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58 Tax L. Rev. 399 (2004-2005)
Theories of Tax Justice: Ruminations on the Benefit, Partnership, and Ability-to-Pay Principles

handle is hein.journals/taxlr58 and id is 409 raw text is: Theories of Tax Justice: Ruminations on the Benefit, Partnership, and Ability-to-Pay Principles JOSEPH M. DODGE* I. INTRODUCTION This Article considers the benefit, partnership, and ability-to- pay principles of tax justice with respect to their foundations and how they bear (if at all) on such issues as the role and size of govern- ment, the choice of the tax base, and the structure of rates and exemp- tions. The method of examination is primarily by way of critique of what I call the new benefit principle, which some commentators re- cently have invoked. The old benefit principle of tax fairness, which originated in the Enlightenment period of intellectual history, held that people should contribute to government according to the benefits they receive from it. On its face, the old benefit principle was subject to a critique framed in terms of (1) the impracticality of measuring (nonwelfare- type) government benefits received by individuals and (2) the incoher- ency of maintaining the benefit principle in a welfare state. The new benefit principle attempts to avoid these problems by holding that the proper index for measuring the benefits received from government by an individual taxpayer is the taxpayer's economic well-being, that is, how well taxpayers do in the market economy, because government, by providing security, law, and infrastructure (in the broad sense) en- ables the market economy. One legal academic invoked this ex- panded benefit principle to justify an income tax over a consumption tax,1 and a second to justify across-the-board double taxation of in- come both at source (as acquired) and at use (as available for con- sumption).2 A third work invoked a new benefit principle in order to * Professor of Law, Florida State University School of Law. I Deborah A. Geier, Time to Bring Back the Benefit Norm?, 33 Tax Notes Int'l 899 (Mar. 8, 2004). 2 Herwig J. Schlunk, Double Taxation: The Unappreciated Ideal, 102 Tax Notes 893 (Feb. 16, 2004) (advocating a two-tier realization income tax); see Section IV, which dis- cusses this article in more detail. 399 Images with the Permission of N.Y.U. Tax Law Review

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