The Dormant Foreign Commerce Clause After Wynne

62 Pages Posted: 11 Mar 2020 Last revised: 26 May 2020

See all articles by Michael S. Knoll

Michael S. Knoll

University of Pennsylvania Law School; University of Pennsylvania Wharton School -- Real Estate Department

Ruth Mason

University of Virginia School of Law

Date Written: March 8, 2020

Abstract

This Essay surveys dormant foreign Commerce Clause doctrine to determine what limits it places on state taxation of international income, including both income earned by foreigners in a U.S. state and income earned by U.S. residents abroad. The dormant Commerce Clause similarly limits states’ powers to tax interstate
and foreign commerce; in particular, it forbids states from discriminating against interstate or international commerce. But there are differences between the interstate and foreign commerce contexts, including differences in the nationality of affected taxpayers and differences in the impact of state taxes on federal tax and foreign-relations goals. Given current Supreme Court doctrine, we provide states guidance as to how to conform their regimes for taxing international income to constitutional requirements.

Suggested Citation

Knoll, Michael S. and Mason, Ruth, The Dormant Foreign Commerce Clause After Wynne (March 8, 2020). 39 Virginia Tax Review 357 (2020), Virginia Law and Economics Research Paper No. 2020-03, U of Penn, Inst for Law & Econ Research Paper No. 20-21, Available at SSRN: https://ssrn.com/abstract=3550746

Michael S. Knoll

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6190 (Phone)
215-573-2025 (Fax)

University of Pennsylvania Wharton School -- Real Estate Department ( email )

Philadelphia, PA 19104-6330
United States

Ruth Mason (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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