Thursday, May 4, 2023
Orly Mazur (SMU; Google Scholar) & Adam B. Thimmesch (Nebraska; Google Scholar), Cooperative Federalism and the Digital Tax Impasse, 51 Fla. St. U. L. Rev. __ (2023):
The digital economy is changing faster than the law can respond and has challenged legal systems worldwide. In the tax space, the digital economy has undermined traditional tax systems in ways that have created significant tax compliance and enforcement challenges, substantial tax revenue losses, and unwarranted distortions in the market between digital and traditional transactions. These problems are well recognized both in the legal literature and in the public sphere. Unfortunately, the legal reforms that are needed in this space have been slowed by a combination of technical, conceptual, and political impediments. This Article focuses on the digital tax landscape at the U.S. subnational level to demonstrate how those factors are preventing meaningful legal reform and why a novel approach to tax reform may be successful in breaking the current impasse.
The difficulty of reform is particularly problematic in the tax context because reform ideally includes multijurisdictional uniformity on fundamental aspects like tax bases, the characterization of digital income, and sourcing rules. Legal reform is complicated enough on a unilateral basis. Asking for uniformity in those reforms across jurisdictions can seem all but impossible. To respond to these issues, many scholars apply a fiscal federalism lens to evaluate whether reform responsibility is better assigned to the U.S. federal government rather than to the states themselves. However, this Article disagrees that the digital tax impasse will be fixed through state or federal efforts alone. Instead, we argue that the conditions in this area of the law are right for policymakers to explore a cooperative federalism framework. A cooperative federalism structure represents a middle-ground solution where Congress could use its resources to incentivize interstate uniformity but leave the substantive tax rulemaking to the states. This targeted type of federal intervention would better harness the strengths of both the federal and state governments, preserve state tax sovereignty, and overcome many of the shortcomings of past digital tax reform efforts.