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7 Pitt. Tax Rev. 159 (2009-2010)
No Reparation without Taxation: Applying the Internal Revenue Code to the Concept of Reparations for Slavery and Segregation

handle is hein.journals/pittax7 and id is 163 raw text is: NO REPARATION WITHOUT TAXATION: APPLYING THE INTERNAL REVENUE CODE TO THE CONCEPT OF REPARATIONS FOR SLAVERY AND SEGREGATION Andre Smith and Carlton Waterhouse* I. INTRODUCTION: MULLING OVER TAXES AND REPARATIONS Carlton: Andre, if you don't mind terribly, I'd like your opinion on the relationship between taxes and the concept of reparations generally and reparations to Blacks for slavery and segregation specifically. As you know, I have done considerable research and writing on the subject of reparations for slavery and segregation.' Most scholarship explores its justifications and likelihood or its scope, form and administration.' But reparations scholars have neither explored the implications of federal tax statutes to reparations schemes, nor the possibility of using federal tax statutes as an instrumental part of a reparations program.3 I am hoping our correspondence can fill some of this gap. * Andre Smith, Assistant Professor of Law, Florida International University, College of Law; B.S., University of Maryland; J.D., Howard University School of Law; LL.M. in Taxation, Georgetown University Law Center. Carlton Waterhouse, Associate Professor of Law, Indiana University School of Law-Indianapolis; B.A., Penn State University; J.D., Howard University School of Law; M.T.S., Emory University; Ph.D., Emory University. We would especially like to thank Dorothy Brown for her thoughtful review and comments on an earlier draft. We would also like to thank Eric J. Miller and other conference participants who provided valuable feedback when we were invited to present this article at the Critical Race Theory at 20 Conference. Finally we would like to thank David Brennen and Darryl Jones for their consideration of an earlier draft. I. See Carlton Waterhouse, Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration ofBlack Life Under American Lawfrom 1619 to 1972 and a Challenge to Prevailing Notions of Legally Based Reparations, 26 B.C. TtuRD WORLD L.J. 207, 262-65 (2006). Parts of this article are adapted from this previous work. 2. See BORIS I. BITTKER, THE CASE FOR BLACK REPARATIONS (1973); Roy L. Brooks, Rehabilitative Reparations for the Judicial Process, 58 N.Y.U. ANN. SURV. AM. L. 475 (2003); Alfred Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. ANN. SuRv. AM. L. 497 (2003). But see Richard A. Epstein, The Case Against Black Reparations, 84 B.U.L. REv. 1177 (2004); Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 COLUM. L. REv. 689, 692 (2003). For a response directly towards Posner and Vermeule, see Roy L. Brooks, Getting Reparations for Slavery Right-A Response to Posner and Vermeule, 80 NOTRE DAME L. REv. 251 (2004). 3. For one exception, see Harold Peckron, Reparation Payments-An Exclusion Revisited, 34 U.S.F. L. REv. 705 (2000). Professor Peckron analyzes some tax consequences relating to reparations paid to Jews by the German government for the atrocities of the Holocaust. He suggests taxation of reparations should be excluded on moral grounds. He does not examine whether tax benefits can be used as a reparations program. Id. For another exception, see Saul Levmore, Privatizing Reparations, 84 B.U. L. REv. 1291 (2004), suggesting the use of tax incentives to promote voluntary, private reparations.

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