Post-Disaster Tax Legislation: A Series of Unfortunate Events

51 Pages Posted: 16 Nov 2006

See all articles by Ellen P. Aprill

Ellen P. Aprill

Loyola Law School Los Angeles

Richard Schmalbeck

Duke University School of Law


When a disaster strikes the United States, Congress typically feels heavy pressure to enact legislation, including tax legislation, to provide relief. This Article discusses features of two tax legislative initiatives, which responded to two quite different disasters: first, the response to the devastation of the fall 2005 hurricane season and, then, the response to the earlier terrorist attacks on the World Trade Center and Pentagon of September 11, 2001. The Article first raises the possibility that some of the provisions of these acts may be vulnerable to indirect constitutional challenge under the Uniformity Clause. In examining some of the problems inherent in post-disaster tax legislation, it discusses the role, usually unfortunate, of sympathy in tax legislation. It goes on to consider how, despite the fact that the targets of relief legislation are generally thought to be people in need, it nevertheless seems to be the case that a good deal of the benefits of disaster legislation in the tax area goes to relatively high-income and high-wealth taxpayers. It asks whether a better approach can be institutionalized. It suggests that Congress identify those provisions enacted in response to the recent disasters that make sense generally, such as five-year carryback of net operating losses, and amend the tax code to adopt these rules generally. It further recommends that Congress identify those provisions needed in particular when a whole area is devastated - a five-year period for replacing destroyed property, credit for wages to pre-disaster employees, and routine entensions of filing deadlines - and make them available to any declared disaster area. It urges as well two kinds of longer-term approaches. One is to consider and evaluate disaster tax relief provisions as a kind of national insurance against disasters that the private market does not supply. The other is to develop off-the-shelf provisions to be activated when a disaster strikes.

Suggested Citation

Aprill, Ellen P. and Schmalbeck, Richard L., Post-Disaster Tax Legislation: A Series of Unfortunate Events. Duke Law Journal, Forthcoming, Loyola-LA Legal Studies Paper No. 2006-40, Available at SSRN:

Ellen P. Aprill (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1157 (Phone)
213-380-3769 (Fax)

Richard L. Schmalbeck

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7078 (Phone)
919-613-7231 (Fax)

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