Spitz: § 104(a)(2) Discriminates Against Women & Minorities

Laura Spitz (Colorado) has posted I Think, Therefore I Am; I Feel, Therefore I Am Taxed: Déscartes, Tort Reform, and the Civil Rights Tax Relief Act, 35 N.M. L. Rev. 429 (2005), on SSRN.  Here is the abstract:

This symposium paper explores the intersection of tort law and tax law in the context of noneconomic, nonphysical personal injury claims, and asks whether the distinctions drawn in section 104(a)(2) of the Internal Revenue Code make sense as a matter of tax law, tort law or anti-discrimination law. In concluding that they do not, the paper further asks whether the new Civil Rights Tax Relief Act eliminates or reduces the problems created by section 104(a)(2), and suggests that it does not. Both section 104(a)(2) and the Civil Rights Tax Relief Act are premised on the assumption that physical and nonphysical injuries should be compensated (and taxed) differently. The paper explores the philosophical history of the distinction between the mind and the body, and argues that a distinction between physical and nonphysical harm – for the purposes of law – is a destructive dualism that has the effect of discriminating against women and minorities.