The Dormant Foreign Commerce Clause After Wynne

75 Pages Posted: 11 Mar 2020 Last revised: 17 Mar 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 Article surveys dormant foreign Commerce Clause doctrine to determine what limits it places on state taxation of international income, both income earned by foreigners in a U.S. state, and income earned by U.S. residents abroad. Among our conclusions is that, just as the dormant interstate Commerce Clause forbids states from discriminating against interstate commerce, the dormant foreign Commerce Clause forbids states from discriminating against international commerce. We also consider 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 international tax policy goals. Assuming we are correct that the dormant foreign Commerce Clause places similar limits on states to the dormant interstate Commerce Clause, 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). Virginia Tax Review, Forthcoming; 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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