Document Type

Article

Publication Title

Tax Law Review

Publication Date

2016

Abstract

The paradigm tax dispute involves a taxpayer on one side and the government on the other. In that traditional dyad, only the taxpayer matters, even though the interrelatedness of taxpayers across the fiscal system means that the outcome of any one dispute often affects the interests of many other taxpayers. Yet everyone else is invisible to the legal system, without enforceable rights in the administrative or judicial structure. This article focuses attention on such invisible taxpayers and what justice for them would require. It proposes a theory of tax injury that is determined by “legal shares” and argues that conventional standing doctrine can accommodate broader taxpayer access if courts acknowledge the financial interrelatedness of taxpayers. Invisibility deprives taxpayers of both economic fairness (a traditional tax policy norm) and democratic fairness (a norm requiring tax institutions to treat people with equal respect and concern). This article explains how the Supreme Court has turned tax expenditures into invisible laws. It evaluates tax expenditures as tax law, challenging the standard scholarly approach that assumes tax expenditures should be not only economically, but also legally, equivalent to direct spending programs.

Examination of invisible taxpayers and invisible laws reveals some troubling truths about the tax system. Invisibility has led to substantial injustice for real people. It has allowed unconstitutional taxation to proceed without challenge. And it has reduced the role of courts in taxation to a very narrow one, while simultaneously allowing unchecked discretion for both Congress and the Internal Revenue Service. This article explains (1) how standing doctrine denies redress to some taxpayers who suffer injustice, and (2) how tax expenditures make some harms immune from attack. It argues that both courts and administrative procedures could ameliorate these injustices.

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