Tax Law Commons^™

Digital Barter Taxes: A Legal Defense, Young Ran (Christine) Kim, Darien Shanske

Faculty Articles

This short essay, aimed at state legislators, defends digital barter taxes from the most common legal objections.

The Enigma Of Wynne, Edward A. Zelinsky

Faculty Articles

The five-justice Wynne majority used that case to make a major statement about the dormant Commerce Clause. In many respects, Wynne is an enigma that perpetuates an inherent problem of the Courts dormant Commerce Clause doctrine: the Court declares some ill-defined taxes as unconstitutionally discriminatory because they encourage in-state investment, while other economically equivalent taxes and government programs that similarly encourage intrastate economic activity are apparently acceptable under the dormant Commerce Clause.

Wynne is thus more important than the immediate situation it addresses, and will have consequences beyond the immediate circumstances it addresses. A decision as enigmatic as it is …

Why Wynne Worries Me, Edward A. Zelinsky

Faculty Articles

No abstract provided.

Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of The Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky

Faculty Articles

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion …

The False Modesty Of Department Of Revenue V. Davis: Disrupting The Dormant Commerce Clause Through The Traditional Public Function Doctrine, Edward A. Zelinsky

Faculty Articles

No abstract provided.

Rethinking Tax Nexus And Apportionment: Voice, Exit, And The Dormant Commerce Clause, Edward A. Zelinsky

Faculty Articles

The dormant Commerce Clause concept of tax nexus is best understood as a rough, but serviceable, proxy for the taxpayer's standing in the political process. This perspective leads me to defend Quill Corporation v. North Dakota and the much maligned physical presence test for tax nexus. As a matter of legislative policy, the critics of this test may be correct. However, as a matter of constitutional law, the courts should adhere to an expanded physical presence standard as Congress crafts for the long term broader nexus rules based on economic presence. Taxation is an inherently and irreducibly political matter. An …

Tax Incentives For Economic Development: Personal (And Pessimistic) Reflections, Edward A. Zelinsky

Faculty Articles

No abstract provided.

The Incoherence Of Dormant Commerce Clause Nondiscrimination: A Rejoinder To Professor Denning, Edward A. Zelinsky

Faculty Articles

A sound intuition animates Professor Denning's defense of the doctrinal status quo under the dormant commerce clause: the courts should not lightly abandon well-established constitutional canons. I nevertheless remain unconvinced by Professor Denning's effort to justify the long-standing interpretation of the dormant commerce clause as forbidding taxes which discriminate against interstate commerce. Whatever the historical justification for this constitutional precept, its past utility, or its visceral appeal, dormant commerce clause nondiscrimination is today doctrinally incoherent in tax contexts. The problem is not one of borderlines and close cases. Rather, at its core, the notion of dormant commerce clause tax nondiscrimination …

The Future Of The Dormant Commerce Clause: Abolishing The Prohibition On Discriminatory Taxation, Edward A. Zelinsky, Brannon P. Denning

Faculty Articles

Professor Edward A. Zelinsky, of the Cardozo School of Law, argues that "[i] t is time to abolish the dormant Commence Clause prohibition on discriminatory taxation." This is so, he writes, because "the prohibition is today doctrinally incoherent and politically unnecessary." The incoherence, Zelinsky maintains, stems from the disparate treatment by the United States Supreme Court of economically identical activities: "discriminatory taxation favoring local industries," which the doctrine prohibits, and "direct expenditures subsidizing those same industries," which it permits. It is unnecessary, Zelinsky argues, because Congress is able, and better suited, to police any state abuses. In short, "[l]ike a …

Cuno: The Property Tax Issue, Edward A. Zelinsky

Faculty Articles

The author criticizes the decision of the U.S. Court of Appeals for the Sixth Circuit in Cuno v. Daimler Chrysler Inc., in which the court ruled that Ohio's investment tax credit violated the U.S. Constitution's Commerce Clause. Zelinsky says the dormant Commerce Clause concept of nondiscrimination is overbroad and undefinable and should be abandoned. He hopes this decision will give the U.S. Supreme Court an opportunity to reassess the concept.

Restoring Politics To The Commerce Clause: The Case For Abandoning The Dormant Commerce Clause Prohibition Of Discriminatory Taxation, Edward A. Zelinsky

Faculty Articles

No abstract provided.

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

Faculty Articles

The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

The Unsolved Problem Of The Unfunded Mandate, Edward A. Zelinsky

Faculty Articles

No abstract provided.