Removing Barriers to State Tax Incentive Reform

Abstract

Place-based tax incentives, which are used to promote investment in distressed geographies, have the potential to become an effective tool to fight poverty at the state and local level. However, the incentives that are currently used by state and local governments to advance their community economic development strategies often fail to benefit residents of low-income communities. Ideally, these tax incentives would be reformed by restricting their availability to activities that directly benefit low-income residents of distressed regions within the state, such as by requiring business taxpayers to hire or serve residents of the targeted areas. However, for reasons to be explained in this Article, under current constitutional law frameworks, these proposed reforms would constitute unconstitutional discrimination under the Dormant Commerce Clause—a consequence of decades of Court doctrine that has developed to constrain state tax competition. Successful state place-based tax incentive reform will require Congress to modify the existing constitutional framework to enable these types of reforms. Without such changes, there is a real and imminent risk that constitutional frameworks will continue to evolve in ways that further restrict the use of place-based tax incentives, depriving state and local governments of an important anti-poverty tool.

Keywords: tax, taxation, opportunity zones, new markets tax credit, enterprise zones, state taxation, tax incentives, constitutional law, poverty law

JEL Classification: K34, H20, O18, O23