Fiscal Citizenship and Taxpayer Privacy

68 Pages Posted: 22 Apr 2024

See all articles by Alex Zhang

Alex Zhang

Emory University School of Law

Date Written: April 2, 2024

Abstract

Inequality has reached record levels, and the public shares a common belief that the ultra-rich—while accumulating enormous capital—have not borne their fair share of tax burdens. In response, commentators have called for transparency in the tax records of the wealthy and the powerful. The most dramatic illustration was the fight over former President Trump’s tax returns. It ended with the House Ways and Means Committee obtaining those returns—under the quiet blessing of the U.S. Supreme Court—and releasing them to the public. Even more consequential was the leak of ultra-wealthy taxpayers’ records to ProPublica in 2021. Those records revealed that the richest Americans exploited loopholes and tax doctrine to reduce, often to zero, their income-tax liabilities. The leak prompted lawsuits and congressional investigations over what some see as a major breach of the statutory guarantee of tax privacy. But secrecy has not always been the rule. At three critical junctures—the Civil War, the 1920s, and the 1930s—Congress made certain tax records available for public inspection, and newspapers published the incomes of the billionaires of the time. Today, Finland, Norway, and Sweden all allow a significant degree of disclosure of individual tax data.

This Article intervenes in the tax-confidentiality debate by building a novel analytical framework of fiscal citizenship. Until now, scholars have focused on compliance—whether publicity incentivizes honest reporting of income, and if it does, whether compliance gains outweigh the intrusion into a generalized notion of the taxpayer’s right to privacy. But the choice between confidentiality and transparency implicates more than just compliance. It rests on the taxpayers’ dynamic interactions with the fiscal apparatus of a state that aspires to democracy and egalitarianism. This Article constructs such a model. It posits that individual fiscal citizens play the roles of reporters, funders, stakeholders, and policymakers in the tax system. Within these roles, transparency and privacy have distinct valences. And the degree to which any taxpayer partakes in each role depends both on her own income and on the extent of income inequality within the community structured by federal taxation. This Article’s taxonomy of taxpayers’ fiscal interactions with the state suggests that public disclosure is more appropriate for ultra-wealthy taxpayers in times of high economic inequality. The Article thus provides insights to help policymakers design public-disclosure regimes that cohere with the norms implicit in our fiscal social contract with the state.

Keywords: Tax Law, Fiscal Citizenship, Tax Policy, Tax History, Comparative Law

Suggested Citation

Zhang, Alex, Fiscal Citizenship and Taxpayer Privacy (April 2, 2024). Columbia Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4781684

Alex Zhang (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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