TaxProf Blog

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

Thursday, May 26, 2011

Zelinsky: The Inadvisibility of Constitutionalizing Tax Expenditure Analysis

Edward A. Zelinsky (Cardozo) has published Winn and the Inadvisibility of Constitutionalizing Tax Expenditure Analysis, 121 Yale L.J. Online 25 (2011):

Tax expenditure analysis, despite its contribution to tax policy debate, is ill-suited as a tool of constitutional decisionmaking. Sometimes tax provisions are, for constitutional purposes, equivalent to direct monetary outlays; sometimes they are not. That equivalence can only be evaluated on a case-by-case basis, considering the nature of the specific tax provision and the particular constitutional clause at issue. Contrary to the approach of the Winn dissent, the Court is ill-advised to invoke tax expenditure analysis as a tool of constitutional decisionmaking. At the end of the day, we do not know what a tax expenditure is.

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Anyone who wants to think and write more intelligently about tax expenditures should read what the government’s experts have written about the subject at

Although the term "tax expenditure" had some potential for productive use, it has been hijacked, broadened, and will soon be discredited, in service of a higher-revenue agenda. The only way to unambiguously define "tax expenditure" is 100% of after-tax income. That's a definition that nobody would accept.

If “spending” is interpreted to include all tax breaks, then mass market tax breaks are the least harmful type of “spending”. They leave money in the private sector rather than redirecting it narrowly and wastefully. Removal of a $100B mass market tax break will harm the economy much more than removal of $100B of narrowly focused discretionary spending.

Posted by: AMTbuff | May 26, 2011 2:47:42 PM