New Article: Francine J. Lipman & Alan Smith, The Social Security Benefits Formula and the Windfall Elimination Provision: An Equitable Approach to Addressing ‘Windfall’ Benefits, 39 J. Legis. 181 (2013). Abstract below:
Certain federal, state, and local government employees do not pay into the Social Security system, but rather pay into alternative government pension plans. For purposes of the Social Security Act, where a worker pays into an alternative government pension plan, the worker’s employment constitutes noncovered employment. Even if a worker’s employment record reflects significant periods of noncovered employment, the worker may still qualify for Social Security coverage because she satisfies the minimum requirement of 10 years (40 quarters) of earnings in Social Security covered employment. However, an employment record which reflects both covered and noncovered employment presents a challenge to equitable application of the Social Security Act. To determine the benefits to which a worker is entitled, the Social Security Act first employs an averaging provision that considers 35 years of covered employment. Where an individual’s employment record does not reflect 35 years of covered employment, the averaging provision compresses the worker’s average earnings. Effectively, a life-time high-income worker who held both covered and noncovered employment appears to be a life-time low-income worker by operation of the averaging provision. The second step in determining a worker’s Social Security benefits entails application of a progressive benefits formula to the workers average earnings. By operation of the averaging provision and the progressive benefit formula, a high-income worker who held both covered and non covered employment received a higher than statutorily intended replacement rate (the ratio of benefits to average earnings) prior to 1983. In an effort to downward-adjust Social Security benefits for worker who held both covered and noncovered employment, Congress enacted the Windfall Elimination Provision in 1983. This article presents and examines the Windfall Elimination Provision highlighting inherent problems in its design, which include structural and administrative issues that disproportionately impact low-income workers. The article also describes and examines public misperception and resentment of the Windfall Elimination Provision, and deficiencies in the Social Security Administration’s communication efforts. The article also describes considerable legislative efforts since its enactment to modify, replace, or repeal the Windfall Elimination Provision, providing an explanation and analysis of each bill. Finally, the article presents an alternative approach to eliminating the ‘windfall’ benefits that accrue to noncovered workers. The alternative approach balances the fundamental tenants of the Social Security system – a progressive benefits structure and the earned right nature of benefits. As such, the proposed legislative amendment (included in the appendix of the article) ensures equitable benefits to noncovered workers.
New Article: Mary Louise Fellows & Lily Kahng, Costly Mistakes: Undertaxed Business Owners and Overtaxed Workers, 81 Geo. Wash. L. Rev. 329 (2013).
New Article: Francine Lipman, Access to Tax Justice (forthcoming Pepperdine L. Rev. 2013). Abstract below:
Every morning, Monday through Friday, school children across the United States raise their voices in unison and pledge allegiance to America, with liberty and justice for all. America, in turn, pledges to these children and the world that it is a nation of liberty, justice, and laws. Laws drafted by representatives intended to follow through on America’s promise of liberty and justice for all. Yet for more than 16 million of these children and 30 million adults living in poverty in 2011, America does not deliver on its promise of justice. In a recent global study, America ranked 27th out of 31 countries in social justice. Social justice was evaluated by looking at six key factors: poverty prevention, access to education, labor market inclusion, social cohesion and non-discrimination, health, and “intergenerational justice.” Prevention of poverty is a fundamental precondition for social justice. Under conditions of poverty, engagement in and access to basic education, labor, and health care services are demonstrably curtailed. The causes of poverty are numerous, interrelated, and complex. Nevertheless, poverty reflects the consequences of national policies in fundamental societal arenas including education, labor, immigration, welfare, and taxation.
This essay examines access to the most successful antipoverty program for working lower-income families with children, the earned income tax credit (EITC). At almost 40 years young, the EITC lifts more children out of poverty each year than any other program in America today. Nevertheless, because the EITC is a social benefit program delivered through the federal income tax system by the Internal Revenue Service, America’s revenue collector, EITC beneficiaries bear meaningful access to tax justice costs. This essay discusses these costs and proposes specific opportunities to empower, rather than undermine this long-term, successful, bipartisan antipoverty tax provision.
Tax Day Related Report: Phil Oliff & Nicholas Johnson, The Impact of State Income Taxes on Low-Income Families in 2010, Center on Budget and Policy Priorities (2011).
New Article: John Thomas Plecnik, Abolish the Inflation Tax on the Poor & Middle Class, 29 Quinnipiac L. Rev. 925 (2011). Abstract below:
Inflation erodes the purchasing power of money and distorts some income tax liabilities upward, which in turn discourages savings and investment. When inflation is caused by the central bank “printing” money to fund deficit spending, it results in a transfer of real wealth from the holders of dollars or assets denominated in dollars to the government and, in normative terms, may be conceptualized as a tax. The effect of the so-called inflation tax is regressive, because low-income taxpayers often lack the sophistication or liquidity to invest in hedges against inflation.
Following the double-digit inflation of the late 1970s and early 1980s, the U.S. Treasury Department and a host of legal scholars proposed sweeping reforms to comprehensively index the Internal Revenue Code for inflation. However, their proposals were never enacted into law. Instead, Congress chose to respond to inflation on a case-by-case basis. Many of those responses, such as the preferential rate for capital gains, afford relief to the wealthy, but do little to help the poor and middle class. To counter the pernicious effects of inflation and make the Code more equitable, this article proposes an inflation tax credit. Under the proposal, low-income taxpayers may elect between (i) substantiating the average balance of their bank deposits and treasury bills to receive a credit based on that balance, and (ii) taking a standard credit based on their gross income.
Visualizing Economics has great graphics on economics that can be useful for understanding and for class purposes. One of many worth checking out is “How much taxes are paid by the poor, middle class and rich”.
New Article: Lee Anne Fennell, Willpower Taxes, 99 Geo. L.J. 1371 (2011). Abstract below:
Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis of willpower’s workings and its connections to well-being. To begin such an analysis, I focus on three categories of costs associated with willpower problems: the failure costs of suboptimal choices, exercise costs stemming from the willpower exertion itself, and erosion costs that relate to changes over time in willpower levels as a result of patterns of exertions and outcomes. With this framework in mind, I consider the effects of existing and proposed tax policy measures on people with different self-control levels. I then consider how menus of regulatory bundles that are designed to induce self-sorting could address willpower heterogeneity.
Editorial, The New Resentment of the Poor, N.Y. Times, Aug. 30, 2011.