Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis
Edward A. Zelinsky
Yeshiva University - Benjamin N. Cardozo School of Law
May 1, 2011
Yale Law Journal Online, Vol. 121, p. 25, 2011
Cardozo Legal Studies Research Paper No. 339
Tax expenditure analysis, despite its contribution to tax policy debate, is ill-suited as a tool of constitutional decisionmaking. Sometimes tax provisions are, for constitutional purposes, equivalent to direct monetary outlays; sometimes they are not. That equivalence can only be evaluated on a case-by-case basis, considering the nature of the specific tax provision and the particular constitutional clause at issue. Contrary to the approach of the Winn dissent, the Court is ill-advised to invoke tax expenditure analysis as a tool of constitutional decisionmaking. At the end of the day, we do not know what a tax expenditure is.
Number of Pages in PDF File: 6
Keywords: tax expenditure, Winn, Flast, tax credit, direct expenditure
Date posted: June 4, 2011
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