An Expressive Theory of Tax

Abstract

The tax code is full of ineffective, inefficient, inequitable, or otherwise problematic provisions that make little sense when evaluated through the lens of traditional tax policy analysis, yet remain popular with citizens and legislators alike. The tax literature is equally full of carefully-researched, technically precise, and theoretically sound proposals for reform that nonetheless fail to get traction in the public debate. Why?

What tax scholarship is missing is the importance of social meaning: what do our tax laws say about our society’s values, and how is taxation being used to construct cultural ideals in contested spaces?

This article applies expressive theory, well developed in the criminal and constitutional law literature, to a series of tax policy puzzles, demonstrating how attention to social meaning can help to explain otherwise inexplicable behavior by legislators and policymakers, and can allow scholars to engage more productively in the policy process. From the tax treatment of Nevada’s legal brothels to tax preferences for retirement savings, social meaning matters, and frequently dominates traditional tax policy concerns. This observation has far-reaching implications for tax scholarship, policy design, and advocacy.

Keywords: tax, tax policy, expressive theory