Critical Tax Policy: A Pathway to Reform?

Abstract

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity movement that has shown how facially neutral tax policy can reinforce existing inequities or bias. It also incorporates the insights of critical tax scholars who write from a diverse range of outsider perspectives and acknowledges the constitutive role of tax policy in the larger "blueprint for the aims and ambitions of the nation state."

Traditional tax policy is focused primarily on distributional concerns defined by income level. Tax policy intentionally looks past the identities of individual taxpayers and is self-consciously indifferent to the impact that taxation can have on existing social, political, and economic disparities. This strong belief in "taxpayer neutrality" is even reflected in data collection practices and, as a result, it is currently impossible to "put a face on America’s tax returns." This Article first engages the multiple claims of neutrality in existing tax policy and then outlines the essential components of the critical lens. It also explores practical ways to integrate the key insights of Critical Tax Policy in the development of federal tax policy. These proposals all draw on long-standing institutional traditions and include: 1) enhanced information collection, 2) the creation of a "diversity expenditure budget," and 3) the requirement of a "diversity impact statement."

Keywords: tax policy, critical tax theory, tax reform, tax expenditures, tax expenditure budget, Stanley Surrey, impact statement, impact assessment, taxpayer neutrality, diversity impact statement, DOMA, qualifying child, O’Donnabhain, racial privacy

JEL Classification: H20, H21, H24, H50, H60, K34