by Laura Kleinberg and Dennie Zastrow; edited by John Basenfelder
Professor Alice Abreu joined the faculty of Temple Law in 1985. She teaches a variety of tax courses, including corporate taxation and international tax. Her scholarship largely focuses on the formulation of federal tax policy. She recently sat down with Temple Law Review to discuss her latest research projects.
Read the full interview here.
TLR: Just tell us, first, generally about what it is that you spend your time researching. Very broadly, for our audience here.
AA: So, for the last couple of years Professor [Richard] Greenstein and I have been working on a series of articles essentially trying to bring jurisprudence to tax and starting from the premise that tax is law and tax ought to be regarded as law, and as law, it ought to have available to it, and part of its jurisprudence, all of the analytical techniques that exist in other areas of law. So that although many people, including many if not most tax professionals, think of the tax law as being a bunch of rules, the tax law, we think, is, as law, more appropriately and fulsomely thought about as containing some rules but also standards. And that once you understand some of the bedrock doctrines in tax as standards rather than rules, then the operation of the law and what you see becomes no longer a puzzle, but just the application of standards, which are indeterminate and have all the usual disadvantages and advantages of standards versus rules.
TLR: That’s very interesting. So is that what you’ve worked on in the past? There’s more than one paper in this?
AA: Yes, there are now a series of three published papers, and we are now working basically on a fourth and a fifth simultaneously, and what we’re hoping to do is eventually, after this fourth and fifth, and maybe there’s one more after that, turn it into a book.
TLR: Oh, that’s interesting. So a total of what, six? So for the one that you’re working on currently, can you give us a little idea of what that one is going to be about?
AA: So that one is, at the moment, the working title is “Tax is Every Law.” That one tackles the subject of tax exceptionalism head on. We think that part of what has isolated tax and prevented its adoption and embracing of normal jurisprudential analysis is this idea that tax is somehow fundamentally different. And the position we’re taking in this paper is that we think that tax exceptionalism really has two prongs or two facets, and one is the experience of the tax law. And on that, there’s a fair amount of really interesting psychological literature on how we process things psychologically and what things are salient and how that makes us react. It’s really fascinating work that suggests that there’s good reason why tax feels different. There’s no other area of the law that forces people to come before their government and bare their financial souls once a year and to do this, just to be in compliance with the law. You can’t mind your own business and keep the government away in the tax law. You’ve got to interact with the government and so that makes the tax law feel unique. But a number of those things, we think, there’s a difference between the sort of experienced exceptionalism of tax, or the duty to file a tax return, and the objective— what ought to be the objective analysis of the law. So that’s what we’re trying to tease out.
TLR: What would be the substantive, practitioner argument for why tax exceptionalism should still exist and should be treated differently?
AA: Well, I think, one easy answer is that everybody likes to feel special. And tax lawyers in some quarters are seen to be especially nerdy, and that’s not good. But in other quarters, they’re also seen to be especially smart, and that’s good.
TLR: That is very good!
AA: And sort of being the gurus of the tax law and being able to master this mysterious field that is incomprehensible and impenetrable unless you possess these amazing powers. So that’s good.
TLR: You’re focusing on tax exceptionalism. Do you think this sort of idea that tax law is different from other law has impacted the way the field has developed over time? Is that something that you’ve looked at?
AA: That’s a really good question. I think the answer is actually yes. I think it affects the way law students think of the tax law and that tax is, you hear law students say, “well gee, maybe I actually like this intro tax class, but if I wanted to be a tax lawyer, it’s so hard and it takes so long, and I have to get an LLM.” That is the only area in which people say, “oh yeah, I have to get an LLM.” And so, I also think the view of tax and the tax system as a system that takes from the private sector and transfers to the public sector makes the tax law seem as something that only people who represent or want to represent rich people or business enterprises ought to worry about. And although I think that’s demonstrably not true, because the tax system today is the biggest provider of government transfer payments from the public sector to the private sector, that’s how we fund the bulk of our transfers from the public to the private sector. The Earned Income Tax Credit, which as you all know is a refundable credit, it’s not just getting back money that you’ve paid in, but it’s, in many cases, the government cutting people a check. It’s the biggest federal transfer payment there is. It’s bigger than food stamps and TANF (Temporary Assistance for Needy Families) and all those programs put together. And now, of course, the ACA, the Affordable Care Act, is enforced through the tax system. And so the tax law is broader than simply transferring funds from the private sector to the public sector, but I think that perception hasn’t yet percolated down. So it’s kind of seen as law for rich people who want to be richer.