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BYU Law Review

Abstract

The Internal Revenue Code (the "Code") taxes parents inequitably. Couples with a sole earner are undertaxed compared to couples with dual earners and to single parents. Legal tax scholarship (including my own) has identified the many inequities that result from this sole-earner bias and have called for its elimination. But while these arguments have been sufficient for some, they do remain susceptible to the criticism that they are theoretically incomplete.

That critique might proceed as follows. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, it might be argued, the Code plays favorites all the time. To evaluate whether tax preferences are warranted, scholars have traditionally turned to theories of distributive justice. These theories offer competing visions about the way resources should be allocated. Rather than advocating blanket equality, these theories identify higher order principles that justify preferentialism. But, critics might argue, scholars who have asked Congress to eliminate the Code's preference for sole earners have often failed to connect their arguments with this distributive literature.

This Article, the first in a series, begins to respond to this potential criticism by connecting traditional theories of distributive justice with the debate surrounding the Code's inequitable taxation of parents. To do so, I focus on welfarist theories — a body of distributive theories that seek to maximize social welfare — because of the dominant influence they have exerted over tax debates. It shows why welfarism, and in particular utilitarianism, may sometimes support the Code's sole-earner bias despite the inequities it creates. And it shows how, more generally, it may favor parents who have relatively expansive opportunity sets and are, therefore, better positioned to use their income to achieve well-being than other parents with fewer choices.

Some will find these prescriptions counterintuitive and even troubling. For them, the analysis may reveal the limitations of relying too heavily on welfarism to analyze the taxation of parents. Recognizing this, I conclude by identifying other non-welfarist theories that have received less attention in the legal tax scholarship and discussing how they could expand conversations about how parents should be taxed relative to one another.

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