Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis

Abstract:     
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

Accepted Paper Series