This week, David Gamage (Indiana) discusses a new report, The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the New Legislation.
The House and Senate Republicans’ tax bills are now headed to conference. This may well turn out to be the most substantial new tax legislation since 1986. It threatens to be overwhelming to even list the ways in which these bills might transform important aspects of the U.S. economy.
Given the massive scale and importance of this legislative effort, it is imperative that the new legislation be considered carefully and deliberately. Unfortunately, Republican leadership is currently rushing to meet a self-imposed deadline of passing this legislation before December 22nd.
I agree with some of the policy goals underlying these bills, and disagree with others. Yet whatever one thinks of these broad policy goals, draftsmanship is also important. Without careful drafting, tax law provisions can easily have numerous unintentional harmful effects.
Led by the primary drafters of Ari Glogower (Ohio State), David Kamin (NYU), Rebecca Kysar (Brooklyn), and Darien Shanske (UC-Davis), this new report explains some of the “games, roadblocks, and glitches” in these bills. Nine other signatories also joined as signatories and secondary drafters of this report, and—full disclosure—I am one of these additional co-drafter/signatories.
Similar to the tax bills being evaluated, this report is something of a rushed work product. The report is incomplete in various respects and there is much that could be quibbled with. However, with the tight timeframe the Republicans are currently proceeding under, writing this report was a Herculean effort, and the primary drafters deserve heartfelt praise.
The specifics can be found in the report. Here, suffice it to say, the current versions of the House and Senate tax bills are sloppily drafted. If enacted in anything like their current forms, these bills would generate a host of unintended harmful consequences.
Tax law drafting is too important and affects too much of the economy to withstand a rushed legislative process. Care and deliberation are needed. We can only hope that this report might cause some key Republicans to pause and reconsider their carelessly hectic pace.
See also Slate, Law Professors Just Published a Delightful, 34-Page List of Ways People Will Game the GOP Tax Plan
Here is the rest of this week’s SSRN Tax Roundup:
- Reuven S. Avi-Yonah (Michigan Law), Guilty as Charged: Reflections on TRA 17, Tax Notes, Vol. 157, No. 8, November 2017
- Calvin H. Johnson (Texas Law), Winter is Coming: Tax Policy for the Coming Bitter Hard Times: A Review of Robert J. Gordon, The Rise and Fall of American Growth, 157 Tax Notes 851 (Nov. 6, 2017)
- Herbert I. Lazerow (San Diego Law), Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act of 2016, The International Lawyer, Forthcoming
- Samuel C. Thompson, Jr. (Penn State Law), Tax Reform: Taxing Trump and Curry Under the Republican Plan, Tax Notes, Vol. 157, November 2017