June 15, 2018 The Tax Lawyer

The Distributive State and the Function of Tax Expenditures

Vol. 71, No. 3 - Spring 2018

Eric A. San Juan

     This Article describes tax expenditures in relation to received legal ideals. Recent scholarship in social science has raised paradigmatic questions of economic inequality and distribution, which may be reflected in the law. Tax expenditures are one way to effect redistribution. Curiously, certain tax expenditures that have a notably regressive effect amount to a significant fraction of the U.S. government budget, which does not identify them as appropriations. In large part, health care, education, and retirement are financed in the United States by the privatizing mechanism of tax expenditures, although they are the three principal public (or quasi-public) goods in modern states. Evaluating the role of these various provisions in a theoretical and historical context entails consideration of individual productivity, natural competition, and potential crisis or collapse within the political economy. To persist, the fiscal apparatus of the state needs to avoid both exhausting productive resources and fostering a rentier class. Alternative presumptions about national shareownership animate specific tax provisions as well as larger visions of the future. While recent restructuring legislation involves tax expenditures, this Article does not propose any specific policy solution but offers legal and economic details in a descriptive analysis.

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