6 Pages Posted: 4 Jun 2011
Date Written: May 1, 2011
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: 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