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Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis

6 Pages Posted: 4 Jun 2011  

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: May 1, 2011

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.

Keywords: tax expenditure, Winn, Flast, tax credit, direct expenditure

Suggested Citation

Zelinsky, Edward A., Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis (May 1, 2011). Yale Law Journal Online, Vol. 121, p. 25, 2011; Cardozo Legal Studies Research Paper No. 339. Available at SSRN: https://ssrn.com/abstract=1857548

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
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212-790-0277 (Phone)

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