Tax Administration and Racial Justice: The Illegal Denial Of Tax Based Pandemic Relief To The Nation's Incarcerated

Abstract

In the midst of a devastating pandemic that would sicken millions, kill hundreds of thousands, and cause widespread financial distress, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. CARES provided for the IRS to deliver up to $1,200 for adults and $500 for dependent children. It was ostensibly structured as a refundable credit to be claimed on a 2020 tax return, but with a twist. The statute authorized the IRS to pay it in advance, even to those who did not have a tax return filing obligation, and to do so as “rapidly as possible.” While there were some problems, the IRS generally did remarkably well, and within six months it had delivered about 160 million payments totaling over $270 billion.

This Essay addresses one of those exceptional problems: it involves the IRS’s unexplained change in position on the eligibility of those incarcerated in our nation’s federal, state, and local prisons and jails. At first, the incarcerated, just like other Americans suffering the effects of the pandemic, received the money that they were entitled to receive under the CARES legislation. That changed. In early May of 2020, the IRS announced on its web page that those who were incarcerated were not eligible for immediate cash benefits, worked with prison officials to claw back payments it had made, and stopped in their tracks hundreds of thousands of payments that it had not yet made. By October, the government faced a complete rebuke of its policy in Scholl v Mnuchin, a class action suit that held that the IRS’s actions were contrary to law and arbitrary and capricious under the Administrative Procedure Act.

By looking at the IRS actions that led to Scholl v Mnuchin, this Essay explores the relationship of tax administration and racial justice. It reveals how tax administration can normalize and reinforce patterns of racial inequality through the presence of racialized administrative burdens. Finally, this Essay then considers how the IRS’s actions with respect to restricting payments to the incarcerated population can offer lessons to minimize the risk that future IRS actions will harm people of color, especially given the IRS’s role in delivering benefits.

Keywords: IRS, pandemic, incarcerated, refundable credit, administrative burdens, racialized burdens

JEL Classification: K34, K14, I14, I18, I30