TAX: DIFFERENT, NOT EXCEPTIONAL

• 成果类型: Article
• 署名作者: Abreu, Alice G.; Greenstein, Richard K.
• 署名单位: Pennsylvania Commonwealth System of Higher Education (PCSHE); Temple University
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2019
• 页码: 663-718
• 关键词: income-tax; economists; base; need; LAW

摘要

Tax is different from other fields of law, just as any field of law is different from others. But tax scholarship, judicial opinions in tax litigation, and public attitudes toward taxation have long claimed more than difference in doctrinal details. They have claimed that tax is diffirent in kind from other fields of law-that it is unique. Some scholars have gone so far as to distinguish between the legal system and the tax system. Even though the Supreme Court seemed to kill tax exceptionalism in its 2011 decision in Mayo Foundation for Medical Education & Research v. United States, claims of tax exceptionalism have hardly abated. In this article we take on the concept of tax exceptionalism directly. We begin by accepting that scholars, judges, and taxpayers experience tax as different from other fields of law, but we then tackle the question whether these differences add up to tax exceptionalism. Our view is that they do not, and we believe that pragmatism provides a useful framework for identifying just what is mistaken about claims of tax exceptionalism. From a pragmatist perspective, the question is whether it is useful to believe that the accumulation of the various differences between tax and other fields of law makes tax fundamentally) different. We conclude and demonstrate that it is not useful to characterize tax as exceptional; questions about the differences between tax and other fields of law can be fully answered by focusing on a specific issue and then deciding whether there is something about tax that requires that particular issue to be treated differently in tax. That is precisely what the Supreme Court did in Mayo. Rather than treat tax as different in kind from other fields of law, the Mayo Court treated the tax issue before it as it would any other issue in any other field, thereby rejecting the very premise of tax exceptionalism. In prior work we have claimed that tax exceptionalism has had the insidious effect of stunting the growth of a robust tax jurisprudence by insulating tax from other fields of law, disparaging the lessons that tax can learn from careful attention to those other fields, undermining the legitimacy of tax administration, and perhaps even contributing to the relative lack of diversity in the tax bar. But here our focus is different. In light of the persistence of the concept of tax exceptionalism, which we believe is fueled by the salience of the differences between tax and other fields of law, we tackle the significance of those differences directly. We do not minimize them or deny their existence; rather, we show that despite their existence and their number, they should not lead to the conclusion that tax is exceptional because the concept of tax exceptionalism is analytically empty. It is useless.