Hey, Tax Code, You Stay Boring!
Being a tax professor often involves questions like whether a pre-transaction redemption should be taken into account when determining whether substantially all assets have been transferred so that the transaction can qualify as a C reorganization. The bottom line about these questions is: nobody cares. I mean, your client might care, and if you’re taking a corporate tax exam, your professor might care, but probably your mom doesn’t care (unless she’s a tax dork too, in which case, lucky you!).
But the tax code can be used not only to raise revenue, but also to provide incentives or disincentives for various activities and to express views and values. So in addition to the many important but sometimes obscure or technical questions always present in tax law, difficult moral issues–“hot” issues about which lots of people have immediate, strong views–can also get mixed up with tax.
Addressing such questions can be daunting for tax folk. But sometimes people make claims about tax law that seem really wrong to me, and that’s when I get kind of worked up. Other people might be better suited than I am to have normative views about all kinds of hard moral issues. But who is going to defend the tax law against false claims if not me and the ten or twenty or thirty other people who (a) know tax law, (b) don’t have clients who might get upset, and (c) don’t have any hobbies?
So I was troubled when Naomi Cahn told me that various sources claimed or suggested that people could take a federal adoption tax credit for “adopting” an embryo, because these claims seem to me to be clearly wrong as a matter of current tax law. I think our paper, which explains why no adoption tax credit is available for such “adoptions,” is a descriptive one–that is, I think it is the best explanation of current tax law, as I will describe in my next few posts. But there are, of course, many normative issues raised by these claims. The most obvious question is whether life does begin at conception; I have, I think, little to offer to that particular debate. But I am intrigued by such questions as who should make law (courts or Congress); the use of tax returns as means of expression; to what extent Congress should use the tax code to address contentious issues; and so forth.
P.S. Don’t forget to tune in tomorrow for my post on the tax code, Israel, and Palestine!