TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, April 13, 2010

Fleischer: Charitable Tax Subsidies and Distributive Justice

Miranda Perry Fleischer (Colorado) has published Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice, 87 Wash. U. L. Rev. 505 (2010). Here is the abstract:

Distributive justice plays a starring role in many fundamental tax policy debates, from the marginal rate structure to the choice of base to the propriety of wealth transfer taxes. In contrast, current tax scholarship on the charitable tax subsidies generally either ignores or explicitly disavows distributive justice concerns. Instead, it focuses on the efficiency and pluralism-enhancing advantages of having charities provide public goods instead of or in addition to the government. While identifying these advantages is a necessary and important contribution to our understanding of charitable giving policy, avoidance of distributive justice concerns ignores the very purpose of charity: voluntary redistribution. After all, it’s called the charitable deduction, not the public goods deduction.

As a result, the current body of work on the charitable tax subsidies is incomplete: it purposely under-theorizes what is “good” for society in order to avoid making value judgments about which projects should be subsidized. Although this sounds appealing, completely avoiding such judgments is both impossible and counterproductive. Current scholarship thus excessively under-theorizes the good, creating confusion about the charitable tax subsidies in both theory and practice.

Explicitly addressing distributive justice—in addition to pluralism and efficiency—will enhance our understanding of the subsidies for three reasons. First, existing scholarship is incomplete and inconsistent for generally ignoring distributive justice issues. It is incomplete because it does not adequately identify which projects deserve a subsidy; it is inconsistent because it implicitly contains value judgments that have distributive justice implications but that are unacknowledged (and often disavowed) by their proponents. Second, popular criticisms of the charitable tax subsidies raise distributive justice issues that have not been adequately addressed. And lastly, the law governing the charitable tax subsidies is itself confused on the role of distributive justice.

Extending our understanding of the subsidies in this manner has three benefits. First, it will help the efficiency- and pluralism-minded scholars better address how to structure the tax subsidies to best promote efficiency and pluralism. Second, a better understanding of distributive justice will help us assess existing justice-related criticisms of the subsidies. And lastly, because our society currently spends a great deal of resources subsidizing charity, such a discussion will help us allocate our resources in a more systematic fashion.

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