Notre Dame Journal of Law, Ethics, and Public Policy, 2018
Bilateral Investment Treaties, ("BITs"), are both a response to and likely at least partly respon... more Bilateral Investment Treaties, ("BITs"), are both a response to and likely at least partly responsible for the significant increase in international investments in the last fifty years. BITs provide potential private investors government assurances regarding a variety of factors relevant to their investments. Among these assurances, BITs regularly address the tax authority that the host government has with regard to the foreign investor, often protecting that foreign private investor against changes to the host country's tax system. If an investor believes the host country has violated the terms of the BIT, that investor can bring a claim against the country in front of an independent arbitration panel, whose decision will be final and binding. Because the power to tax is at the heart of what makes a sovereign authority a sovereign, restrictions on a sovereign's ability to tax foreign investors, which can be enforced by an external body, threaten that sovereign's very essence. As a result, tax provisions in BITs and the adju-dication of those provisions by arbitration bodies must be carefully examined and potentially reconsidered, to protect the sovereign rights of governments to assess tax, to evolve their tax policies, and administer the laws of their countries in the best interests of their people. This Article explains the background and use of BITs, explores theories of sovereignty, and then demonstrates that the current use of BITs to restrict governments' ability to assess and collect tax within their borders threatens sovereign rights. The Article concludes by suggesting ways that the regulation of the taxation of international investments could be modified to protect sovereign rights.
This article is the third in a series examining the continued
relevance and philosophical legitim... more This article is the third in a series examining the continued relevance and philosophical legitimacy of the United States wealth transfer tax system from within a particular philosophical perspective. The article examines the utilitarianism of John Stuart Mill and his philosophical progeny and distinguishes the philosophical approach of utilitarianism from contemporary welfare economics, primarily on the basis of the concept of “utility” in each approach. After explicating the utilitarian criteria for ethical action, the article goes on to think through what Mill’s utilitarianism says about the taxation of wealth and wealth transfers, the United States federal wealth transfer tax system as it stands today, and what structural changes might improve the system under a utilitarian framework.
This Essay proposes a new regulatory regime in response to the Supreme Court decision in U.S. v. ... more This Essay proposes a new regulatory regime in response to the Supreme Court decision in U.S. v. Windsor, overturning Section Three of DOMA. By analogy to the check-the-box regulations, allowing a regulatory election in the face of incongruities in state law, this proposal would allow taxpayers who live in states that do not recognize same-sex marriage to elect to be treated as married for federal tax purposes. While the IRS's issuance of Rev. Rul. 2013-17 allows taxpayers who travel to a so-called "recognizing state" to have a same-sex marriage ceremony performed to be treated as married for tax purposes, there is still a requirement that those taxpayers travel to a state that has same-sex marriage before they can claim the federal tax benefits. This will be especially burdensome to low-income taxpayers, for whom the costs may be prohibitive. These same low-income taxpayers would be especially helped by the tax benefits available in certain instances to taxpayers filing jointly. The Essay considers potential objections to the proposal, and ultimately finds that the proposed regulatory regime, while hopefully only necessary for the short time (as more states enact same-sex marriage laws) will cure an inequity in the tax law.
This Article is the second in a series that examines the estate tax from a particular philosophic... more This Article is the second in a series that examines the estate tax from a particular philosophical position in order to demonstrate the relevance and importance of the wealth transfer taxes to that position. In this Article, I explore Rawlsian equality of opportunity, a philosophical position that is at the heart of much American thought. Equality of opportunity requires not only ensuring that sufficient opportunities are available to the least well-off members of society but also that opportunities are not available to other members merely because of their wealth or other arbitrary advantages. Therefore, an income tax alone, even one with high rates on the wealthy, would be insufficient to achieve these goals. While revenue raised via the income tax should be used to provide additional opportunities to low-income members of society, wealth transfer taxes provide the additional safeguard of preventing the heirs of wealthy individuals from inheriting wealth that would provide them with additional, unwarranted and unjust, opportunities. Given the importance of the wealth transfer taxes, this Article also examines the question of what form of tax is most consistent with Rawls’ position, ultimately determining that an inheritance or accessions tax best fits the role.
Contemporary policy discussions of taxes in general, and of the estate tax in particular, are oft... more Contemporary policy discussions of taxes in general, and of the estate tax in particular, are often dominated by arguments that start from libertarian premises. However, these libertarian views are rarely fully unpacked, and, as a result, the conclusions of these arguments often extend beyond what can be justified by those libertarian premises. With regard to the estate tax, many libertarians argue that government interference with the free transfer of assets after death is an immoral violation of the property rights of the deceased. In this Article, I work through the libertarian arguments of Robert Nozick in his seminal work, Anarchy, State, and Utopia, with special attention to his views of property and inheritance rights. By demonstrating that libertarianism cannot justify property rights that extend beyond death, I show that, in fact, libertarianism is entirely consistent with a robust estate tax. While this does not mean that the libertarian views of property rights require an estate tax, those views do not, on moral grounds, preclude the imposition of the tax.
Notre Dame Journal of Law, Ethics, and Public Policy, 2018
Bilateral Investment Treaties, ("BITs"), are both a response to and likely at least partly respon... more Bilateral Investment Treaties, ("BITs"), are both a response to and likely at least partly responsible for the significant increase in international investments in the last fifty years. BITs provide potential private investors government assurances regarding a variety of factors relevant to their investments. Among these assurances, BITs regularly address the tax authority that the host government has with regard to the foreign investor, often protecting that foreign private investor against changes to the host country's tax system. If an investor believes the host country has violated the terms of the BIT, that investor can bring a claim against the country in front of an independent arbitration panel, whose decision will be final and binding. Because the power to tax is at the heart of what makes a sovereign authority a sovereign, restrictions on a sovereign's ability to tax foreign investors, which can be enforced by an external body, threaten that sovereign's very essence. As a result, tax provisions in BITs and the adju-dication of those provisions by arbitration bodies must be carefully examined and potentially reconsidered, to protect the sovereign rights of governments to assess tax, to evolve their tax policies, and administer the laws of their countries in the best interests of their people. This Article explains the background and use of BITs, explores theories of sovereignty, and then demonstrates that the current use of BITs to restrict governments' ability to assess and collect tax within their borders threatens sovereign rights. The Article concludes by suggesting ways that the regulation of the taxation of international investments could be modified to protect sovereign rights.
This article is the third in a series examining the continued
relevance and philosophical legitim... more This article is the third in a series examining the continued relevance and philosophical legitimacy of the United States wealth transfer tax system from within a particular philosophical perspective. The article examines the utilitarianism of John Stuart Mill and his philosophical progeny and distinguishes the philosophical approach of utilitarianism from contemporary welfare economics, primarily on the basis of the concept of “utility” in each approach. After explicating the utilitarian criteria for ethical action, the article goes on to think through what Mill’s utilitarianism says about the taxation of wealth and wealth transfers, the United States federal wealth transfer tax system as it stands today, and what structural changes might improve the system under a utilitarian framework.
This Essay proposes a new regulatory regime in response to the Supreme Court decision in U.S. v. ... more This Essay proposes a new regulatory regime in response to the Supreme Court decision in U.S. v. Windsor, overturning Section Three of DOMA. By analogy to the check-the-box regulations, allowing a regulatory election in the face of incongruities in state law, this proposal would allow taxpayers who live in states that do not recognize same-sex marriage to elect to be treated as married for federal tax purposes. While the IRS's issuance of Rev. Rul. 2013-17 allows taxpayers who travel to a so-called "recognizing state" to have a same-sex marriage ceremony performed to be treated as married for tax purposes, there is still a requirement that those taxpayers travel to a state that has same-sex marriage before they can claim the federal tax benefits. This will be especially burdensome to low-income taxpayers, for whom the costs may be prohibitive. These same low-income taxpayers would be especially helped by the tax benefits available in certain instances to taxpayers filing jointly. The Essay considers potential objections to the proposal, and ultimately finds that the proposed regulatory regime, while hopefully only necessary for the short time (as more states enact same-sex marriage laws) will cure an inequity in the tax law.
This Article is the second in a series that examines the estate tax from a particular philosophic... more This Article is the second in a series that examines the estate tax from a particular philosophical position in order to demonstrate the relevance and importance of the wealth transfer taxes to that position. In this Article, I explore Rawlsian equality of opportunity, a philosophical position that is at the heart of much American thought. Equality of opportunity requires not only ensuring that sufficient opportunities are available to the least well-off members of society but also that opportunities are not available to other members merely because of their wealth or other arbitrary advantages. Therefore, an income tax alone, even one with high rates on the wealthy, would be insufficient to achieve these goals. While revenue raised via the income tax should be used to provide additional opportunities to low-income members of society, wealth transfer taxes provide the additional safeguard of preventing the heirs of wealthy individuals from inheriting wealth that would provide them with additional, unwarranted and unjust, opportunities. Given the importance of the wealth transfer taxes, this Article also examines the question of what form of tax is most consistent with Rawls’ position, ultimately determining that an inheritance or accessions tax best fits the role.
Contemporary policy discussions of taxes in general, and of the estate tax in particular, are oft... more Contemporary policy discussions of taxes in general, and of the estate tax in particular, are often dominated by arguments that start from libertarian premises. However, these libertarian views are rarely fully unpacked, and, as a result, the conclusions of these arguments often extend beyond what can be justified by those libertarian premises. With regard to the estate tax, many libertarians argue that government interference with the free transfer of assets after death is an immoral violation of the property rights of the deceased. In this Article, I work through the libertarian arguments of Robert Nozick in his seminal work, Anarchy, State, and Utopia, with special attention to his views of property and inheritance rights. By demonstrating that libertarianism cannot justify property rights that extend beyond death, I show that, in fact, libertarianism is entirely consistent with a robust estate tax. While this does not mean that the libertarian views of property rights require an estate tax, those views do not, on moral grounds, preclude the imposition of the tax.
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Papers by Jennifer Bird-Pollan
relevance and philosophical legitimacy of the United States
wealth transfer tax system from within a particular
philosophical perspective. The article examines the
utilitarianism of John Stuart Mill and his philosophical progeny
and distinguishes the philosophical approach of utilitarianism
from contemporary welfare economics, primarily on the basis of
the concept of “utility” in each approach. After explicating the
utilitarian criteria for ethical action, the article goes on to think
through what Mill’s utilitarianism says about the taxation of
wealth and wealth transfers, the United States federal wealth
transfer tax system as it stands today, and what structural
changes might improve the system under a utilitarian
framework.
relevance and philosophical legitimacy of the United States
wealth transfer tax system from within a particular
philosophical perspective. The article examines the
utilitarianism of John Stuart Mill and his philosophical progeny
and distinguishes the philosophical approach of utilitarianism
from contemporary welfare economics, primarily on the basis of
the concept of “utility” in each approach. After explicating the
utilitarian criteria for ethical action, the article goes on to think
through what Mill’s utilitarianism says about the taxation of
wealth and wealth transfers, the United States federal wealth
transfer tax system as it stands today, and what structural
changes might improve the system under a utilitarian
framework.