Teaching Tax Law Critically And The Earned Income Tax Credit

Professor Diane Kemker of DePaul School of Legislation shares her argument for extra protection of the earned revenue tax credit score in tax legislation casebooks to enhance inclusivity.

This transcript has been edited for size and readability.

David D. Stewart: Welcome to the podcast. I am David Stewart, editor in chief of Tax Notes Right this moment Worldwide. This week: casebook case research.

Whereas tax legislation is formed by Congress, Treasury, and the courts, tax schooling is formed by professors and consultants who write textbooks and casebooks. These authors are gatekeepers whose work influences what topics and areas of tax legislation are highlighted in lessons.

Our visitor this week has raised issues over the dearth of protection of the earned revenue tax credit score in tax legislation casebooks, and the message that sends to these learning tax legislation.

Right here to speak extra about that is Tax Notes authorized reporter Caitlin Mullaney. Caitlin, welcome again to the podcast.

Caitlin Mullaney: Hello, Dave. Thanks a lot for having me. It is at all times a pleasure to be on the podcast.

David D. Stewart: Now I perceive you latterly spoke with somebody about this. Might you inform us about your visitor?

Caitlin Mullaney: Sure, I did. I not too long ago spoke with professor Diane Kemker. She’s a visiting professor at DePaul College School of Legislation in Chicago. Professor Kemker has written extensively on racial and gender fairness in numerous areas of the legislation and has incessantly been cited by state and federal appellate courts.

David D. Stewart: Might you give us an summary of what all you mentioned?

Caitlin Mullaney: Completely. We mentioned the article that professor Kemker not too long ago authored, “Cracking Open the Tax Casebook: Style, Ideological Closure, and the Earned Revenue Tax Credit score.” The article explores the dearth of protection in tax legislation casebooks of the earned revenue tax credit and ensuing audits, which disproportionately have an effect on thousands and thousands of the poorest Individuals, and the message this lack of inclusion sends to the scholars of tax legislation.

Professor Kemker makes use of literary concept ideas to clarify that what is required is an intervention into the creation of tax legislation casebooks to reveal the ideological closure that takes place, paving the way in which for extra inclusive teachings.

David D. Stewart: All proper, let’s go to that interview.

Caitlin Mullaney: Professor Kemker, initially, welcome to the podcast. Thanks for being right here at the moment.

Diane Kemker: And thanks a lot for having me.

Caitlin Mullaney: Now, professor, earlier than we get into the article, you’ve got authored a number of different articles and books overlaying a big selection of social points within the legislation. Would you want to inform us a little bit bit about your educational pursuits and a little bit extra about what impressed this text on the earned revenue tax credit score?

Diane Kemker: I might be completely happy to. All through my profession as a legislation college professor and scholar, what has me essentially the most are intersections between anti-discrimination legislation and the pursuits of marginalized communities and core doctrinal areas which might be a part of the authorized curriculum. Normally, that is the way in which I might characterize my work is taking an anti-discrimination or intersectional angle on a well-recognized doctrinal space.

After I started writing within the tax space after I acquired an LLM in taxation legislation throughout a sabbatical, now seven or eight years in the past, I introduced that very same method to interested by the tax legislation. One in every of my works in progress began then and continues to be not finished, and the title of that’s “U.S. v. Windsor Was Additionally a Tax Case.” So the case involving Edith Windsor, which introduced down a part of the Protection of Marriage Act previous to Obergefell, is an property tax case.

Among the many little attended to elements of that case, clearly its LGBTQ facet may be very distinguished; a lot much less distinguished is a consideration of a few of its race- and class-based dimensions. It was a problem to a really massive property tax invoice. It was litigated as a refund. Nicely, solely multimillionaires pay property taxes, and solely multimillionaires are ready to pay them after which spend years in search of a refund. These have been Park Avenue lesbians, and I say that not as an epithet or as a joke; it occurs to be true. They lived on Park Avenue, and their view of the world mirrored that.

That is simply not attended to in a lot of the scholarship about how this case struck down DOMA, nor on the tax facet is that a part of it attended to. That is been a seamless theme that then, I believe, is mirrored in what I am doing now, that are a few completely different tasks having to do with the earned revenue tax credit score or the earned revenue credit score — it is referred to each methods — and among the race-based dimensions of IRS enforcement priorities, particularly with respect to it.

Caitlin Mullaney: Thanks. That is such an attention-grabbing space of the legislation that I really feel like is so generally neglected, as you mentioned within the article, which leaping into now you mentioned the earned revenue tax credit score and the dearth of protection it receives in present casebooks. Are you able to elaborate on what your basic findings have been in analyzing the chosen casebooks?

Diane Kemker: Positive. So within the three books that I discuss, the protection ranges from just a few paragraphs to some pages in books which might be between 600 and about 1,000 pages lengthy. Two of them don’t talk about in any element even the greenback quantity of the credit score, how many individuals declare it, and none of them talk about within the element that I believe is de facto referred to as for audit charges and the impact of those audits on their claimants.

Neither is the protection in casebooks typically inclusive of statistics about underclaiming of this tax credit score. It is solely claimed by about 80 % of the people who find themselves eligible for it. The IRS brags about that. That strikes me as stunning in some methods. They’re strolling down the road handing out free cash, and solely 4 out of 5 persons are selecting it up. That does not appear to me one thing they must be bragging about.

This too shouldn’t be talked about very a lot, nor the truth that when there’s an earned revenue tax credit score audit, it freezes even the a part of that taxpayer’s refund that isn’t in dispute. As a result of earned revenue tax credit score claimants are America’s poorest working taxpayers, it ought to go with out saying that they want the cash and that it imposes an excessive hardship to be disadvantaged even of the a part of their refund that isn’t in dispute. So these points of IRS enforcement go nearly fully underattended to in tax legislation casebook.

Caitlin Mullaney: Within the article, you analyzed three separate tax legislation casebooks. Was there a motive for these chosen works?

Diane Kemker: There’s. Every is, in a basic means, a number one e book within the space, however after all, there are numerous greater than three casebooks on this discipline, like in most. All of them are books that I both have taught from or am presently instructing from. In order that’s first.

Second, certainly one of them, the e book that is usually referred to by Freeland, though it’s now authored by Stephen A. Lind, Daniel J. Lanthrope, and Heather M. Discipline, is the main tax legislation casebook within the nation. It is in use at greater than 100 U.S. legislation colleges out of a little bit over 200. It’s also the longest and probably the most complete, so I regard what it contains and excludes as particularly necessary. It’s the canonical casebook. It has been in print for 50 years, and it is now in its twentieth version.

From my standpoint, most different tax casebooks have been created by individuals who have been taught from that casebook, or taught from that casebook and determined that they wished to take an method completely different sufficient that it was value writing one other casebook. But it surely’s actually the canonical tax legislation casebook.

John A. Miller and Jeffrey A. Maine, the second of the books that I discuss, is the e book from which I taught superior federal taxation at Chapman College in California a few years in the past, and there are a variety of issues that I like about that e book, though we could get to among the issues that I am not so loopy about.

The best way that e book is ready up, every chapter entrance hundreds its issues earlier than they provide the materials you may use to unravel these issues, which I believe is attention-grabbing, and it is an issue technique casebook. It’s one, and if we could have an opportunity to speak about this a little bit extra, that teeters on the point of being a textbook that is not a casebook. It has a sufficiently small variety of instances and they’re excerpted so severely that it is nearly not a casebook. So it is in a means at an reverse excessive.

After which the Joel S. Newman, Bridget J. Crawford, and Dorothy A. Brown e book is the e book from which I am presently instructing federal revenue tax now at DePaul, and a part of what’s notable about that e book is that it has essentially the most numerous essential creator group.

Freeman has added to the authorial group Bridget Crawford of Case and Dorothy Brown, now at Georgetown, who’re two — I might say two of, however actually they’re the 2, I believe main, working feminine essential and feminist tax authorities. Their impression on the e book is starting to make itself felt, in some methods extra within the trainer’s guide than within the e book itself. So that is the third of them.

Caitlin Mullaney: As most legislation college students and professors do know, these casebooks, as you talked about, are sometimes up to date each few years or when a large-scale improvement would possibly require an replace. With such common updates, how is that this problem of an absence of protection of such necessary subjects not addressed?

Diane Kemker: Nicely first, we do wish to needless to say the earned revenue tax credit score itself dates again to 1975. So it’s not new. It’s an anti-poverty program constructed into the tax code that isn’t new.

Solely the Freeland e book, of the books that I presently am reviewing, was in print at the moment. All of the others have been written in an surroundings wherein this was already a bit of the tax code. So the dearth of consideration in a basic solution to issues of each race and poverty is fairly endemic to this space of authorized pedagogy. It does not matter that occasions change as a result of it is simply not the main target of those casebooks.

There’s one casebook that isn’t within the article now, although I am contemplating revising to incorporate it, that does dedicate significantly more room. There’s really a chapter on the earned revenue tax credit score within the e book by Joseph Bankman, Daniel N. Shaviro, Kirk J. Stark, and Edward D. Kleinbard. That e book can be in a really late version, so it has been printed for a few years.

What’s hanging about that chapter for my standpoint is that though it provides considerably extra consideration to the earned revenue tax credit score as an anti-poverty program, so it is extra poverty and sophistication conscious, it comprises no dialogue of race and little or no dialogue of the enforcement points. It’s not actually a considerably extra intersectional method, though it does pay extra consideration to among the class- and poverty-based points. That could be a notable distinction. Precisely how greatest to include it, I am undecided but.

Caitlin Mullaney: With these issues of casebooks and the present replace course of highlighted, one argument that you simply would possibly see could be an abandonment of casebooks, an argument that you simply really reject within the article. What is likely to be the adverse results of going to the complete excessive of eradicating casebooks fully?

Diane Kemker: It is necessary to needless to say casebooks proceed to be the gold normal for textbooks in legislation college as a result of they mirror an enormous quantity of scholarship and analysis over a few years, even past a single individual’s lifespan, as I discuss. There are only a few tax legislation instructors, myself completely included, who know even a fraction as a lot as casebook creator teams know. Placing collectively supplies fully on one’s personal shouldn’t be solely an enormous quantity of labor, however for many instructors, college students will not belief that they are really getting what they want, and that may create its personal actually problematic classroom dynamic.

I believe the case technique is one wherein I’m nonetheless principally a believer. However among the issues I will say which might be fairly essential, these are the authoritative supplies of our self-discipline. Attorneys have to have the ability to work with them, and meaning legislation college students have to have the ability to work with them. That is my concern about extra drawback technique casebooks or textbooks.

Authorized issues don’t current themselves on the earth to you want that. They arrive in a large number of information and studying how to determine what legislation controls the scenario your consumer is in. I do not see that there is any shortcut round studying instances. So I am a casebook advocate whereas additionally being a critic.

Caitlin Mullaney: That brings us straight into the title of your article, the idea of cracking open the tax casebook. What would that imply within the total image of the tax legislation schooling?

Diane Kemker: Realistically, I am after all conscious that almost all tax professors and possibly most tax legislation college students do not actually care about issues like a rhetorical evaluation of a tax legislation casebook or certainly of any casebook.

However I do suppose that coming to grasp how texts do what they do, what the sources of textual authority are and the way they’re embodied in bodily objects within the type of books or their digital equivalents, how phrases on the web page that each one look the identical aren’t the identical, is a vital ability for attorneys and legislation college students to have.

I train first-year college students in a wide range of topics, and it comes dwelling to me yearly that they really should be taught that the a part of the textbook that’s an excerpt from a case is judges making legislation. And the half that’s simply the casebook authors speaking is simply folks speaking.

Inevitably firstly, college students will cite indiscriminately, as if what’s on web page 16 stated by a member of the U.S. Supreme Courtroom writing for almost all is not any completely different in its stage of authority from what the casebook creator says in word two. It’s important to study. It’s important to study to learn these supplies.

That is a part of what I am getting at is to cease seeing the casebook as a clear container of impartial contents and as an alternative understanding in a complicated means how texts do what they do. That’s on the place the place what literary students do and what attorneys do overlaps.

Caitlin Mullaney: You state within the article that your casebook criticism is completely different from prior critiques along with your use of literary concept ideas, particularly the interplay of style reform and ideological closure. How is it attainable that these ideas which might be related to literature have a spot in books full of tax instances and authorized choices?

Diane Kemker: This can be a crucial query, after all. It is the largest burden of persuasion that I’ve within the article. Why does this matter? Why is that this a reliable or helpful, useful, productive, fruitful means to consider the tax legislation casebook or any legislation college casebook?

So first, though we frequently consider style as a means of describing works of fiction, like novels or motion pictures. Is it a rom-com? Is it chick-lit? Is it a western? Is it science fiction? Even nonfiction texts even have style. An instance that I take advantage of within the article is Italian cooking. Suppose we have now three completely different books about Italian cooking: a journey e book, a e book in regards to the historical past of meals and cooking in Italy, and a cookbook. All of those are nonfiction books. They’ve the identical subject material, however you’d know immediately which ones you have been studying. How? Due to style conventions. The style conventions that distinguish a recipe from historical past, from journalism or a journey log or one thing like that.

So understanding that something that we’re studying has style conventions that it both obeys or does not obey. How that units up our expectations of what we’ll discover within the textual content, what occurs if we do not discover it there, what the creator is asking us to do as we work together with the textual content, how we have interaction in that means giving, which is what’s occurring once we’re studying and deciphering a textual content.

This stuff completely apply outdoors of fiction. Bringing it into the textbook context units up not simply the two-way relationship the place we have now our creator and our reader in relation to the textual content, however an extra character in that drama, the trainer, and every of those mediate between the others in varied methods.

That is a part of why supplementing is difficult as a result of in supplementing a textual content, the trainer is inserting themselves in between the reader and the textual content. It takes a variety of authority to try this, and also you spend political capital if you do this. In case you’re persuasive, it’s also possible to accumulate capital along with your college students by doing that, by bringing in supplies which might be significant to them and that assist them to make extra intelligible their very own reactions to the textual content even when these reactions appear to not be what the creator intends.

However all of those are methods wherein college students in legislation college are regarding texts, facilitated by instructors who’re giving them studying assignments and standing up in entrance of the textual content, speaking about what’s in it. Turning into extra self-aware about that, I believe, is a worthwhile a part of the tutorial enterprise.

Caitlin Mullaney: Are you able to elaborate on the position that these ideas have performed inside the exclusion of the earned revenue tax credit score from the essential tax legislation schooling?

Diane Kemker: I can, and that is what actually impressed this as I grew to become increasingly more within the earned revenue tax credit score, substantively, as I started learning it, understanding it extra substantively, placing it into the context of IRS enforcement priorities after which going to the casebooks and discovering simply nothing there.

It is not simply that these points find yourself usually behind the e book, to the extent that they are talked about, which signifies that many instructors won’t ever get there as a result of most books are learn kind of from the start and straight via. However that if I wished to show about it, I used to be going to should go outdoors the 4 corners of the e book to do it with all of the difficulties that that introduced, which then acquired me to interested by why. Why do tax legislation casebooks have the priorities that they’ve?

Why are many multiples of pages spent on some obscure rule about when the holders of patents can deduct sure issues? Not saying that that isn’t necessary to those that it impacts, however it certainly can not probably have an effect on as many individuals as, for instance, the earned revenue tax credit score.

That is after all not the one attainable normal for what number of pages you dedicate to one thing in a e book that will have instructional functions of one other form. However if you take a look at the e book as a complete, you start to see whose pursuits are the pursuits that matter, what’s conveyed to college students about what kinds of questions matter, which kinds of taxpayers matter, which kinds of occasions which have financial and tax-related implications in folks’s lives matter. If you do this, you get what I regard as a reasonably skewed image. It goes hand in hand with the tone that’s taken in lots of books, which I perceive.

It is not that I do not perceive it or at occasions sympathize with it, however a tone that I believe is supposed to encourage a distancing from the actual pursuits of people who find themselves deeply affected by these tax legal guidelines. I do perceive why it’d make sense to match the tax code or the illustration of taxpayers in opposition to the federal government as to a sport with a really difficult algorithm.

But when it could strike us as unusual to try this if you happen to have been instructing the legislation of capital punishment, it ought to strike us as unusual to try this if you’re instructing tax legislation as a result of whether or not you come up with the money for to fulfill your primary wants is definitely a matter of life and loss of life. Whether or not you possibly can take an entire deduction on your patent analysis bills might be not.

Once more, I do not imply to be ganging up on any specific deduction, however once we take into consideration time spent in school, which is valuable — time we ask college students to spend studying and considering, inevitably to a point placing themselves within the place of both the taxpayer, the taxpayer’s council, the federal government, authorities council — who and what are you interested by on a regular basis, and what’s occurring someplace off stage, beneath or under the priority of the intense tax lawyer or tax scholar? That is my concern.

Caitlin Mullaney: Going off of that, in your casebook evaluation, you mentioned the completely different creator inclusions of race, gender, and sophistication points current inside completely different authorized ideas. Was there something that stood out to you on the way in which the authors selected to deal with these areas and their evaluation?

Diane Kemker: There are a pair issues which have stood out to me as I’ve hung out with these casebooks on this analytical mode versus which piece do I’ve my college students learn, and when, which is the same old sensible means that you simply cope with a casebook, and that’s that the inclusion of issues of race, gender, and sophistication is uncommon.

One of many penalties of that’s that it could actually simply lead the scholar to suppose that quick checklist of locations the place it is talked about are the one locations the place it issues as a result of in any other case would not you be mentioning it in all places that it issues. So there’s that. The second factor, and I stay up for the Newman, Crawford, and Brown e book in subsequent editions shifting in a path I wish to see the place that is involved, however it is vitally uncommon that the evaluation is in any means intersectional.

For instance, most casebooks now in speaking about group property and revenue splitting, discuss gender. They discuss conventional marriage roles and the distinction within the tax scenario between two roughly equal earners and two very disparate earners — why there are tax benefits, if there is a large disparity in earnings, for certainly one of them to cease incomes altogether. That is sometimes a spouse in a conventional association. The methods wherein the tax code does not simply mirror however really rewards that association of 1’s intimate life.

Casebooks at the moment principally have one thing to say about the way in which that’s gendered. Treasured few deliver that along with the long-term financial penalties of no entry to same-sex marriage, or the race dimensions of financial discrimination in opposition to folks of coloration because of which it was a lot likelier that each spouses must work and that their incomes could be a lot nearer to 1 one other’s due to the character of the work and a wide range of different financial elements.

Even if you get a little bit little bit of that sense that the tax code shouldn’t be impartial about, for instance, how folks organize their intimate lives, it’s not impartial. Mainly, a very refined intersectional method shouldn’t be there. It is there in an article right here or there.

Dorothy Brown has finished an enormous quantity of labor on this. Her latest e book, The Whiteness of Wealth, brings a variety of that collectively in a really efficient means. What I am searching for is for a few of that to make its means into the casebook the place she’s a member of that editorial group.

Caitlin Mullaney: Now let’s talk about the usage of language by the authors of their restricted mentions of the earned revenue tax credit score. In your evaluation of Fundamentals of Federal Revenue Taxation, you word that the authors current a picture of reliable IRS versus an untrustworthy earned revenue tax recipient. Are you able to increase on this?

Diane Kemker: Sure. In speaking about earned revenue tax credit score enforcement, particularly via correspondence audits, which is the first means that these claimants are audited, it may be very tempting, I believe, to undertake wholesale the IRS’s personal official line, which is that very vital enforcement assets should be devoted to it due to its allegedly very excessive error fee.

I am clearly not ready to evaluate whether or not the error fee is as excessive as they are saying it’s, however to illustrate it’s. For instance that the error fee actually does method and even exceed 50 %. Fifty % of all earned revenue tax credit score claimants are claiming the incorrect quantity.

One of many issues the IRS by no means says is whether or not they’re overclaiming or underclaiming. We really do not know whether or not these errors cancel one another out. We do not know whether or not these errors are literally costing the fisc very a lot, even when the error fee is as excessive as they are saying.

Within the casebooks, when there’s any dialogue of this in any respect, it’s often within the context of its error fee with nobody, from my standpoint, asking what appears to be a reasonably apparent query, which is, nearly 50 years into the earned revenue tax credit score, cannot we make it less complicated?

These are America’s poorest, hardest-working taxpayers. Why is it so arduous to get it proper? These research, by the way in which, embody returns ready by tax preparers. So it isn’t simply that persons are doing this all on their very own. The error fee is simply as excessive when folks pay. So not solely are they out of pocket to have had their tax return ready, however as usually as not, these of us make errors too.

A part of this, if we actually are going to get a little bit bit into it, is many earned revenue tax credit score claimants have, from an IRS standpoint a minimum of, comparatively untraditional household formations, and who can and who cannot declare a baby finally ends up on the middle of this. Both each dad and mom are claiming a baby after they should not, or the kid is displaying up in a single place however not within the different. They’re displaying up as a depending on one, however the tax credit score’s being claimed by the opposite and so forth. It is necessary to needless to say we’re not speaking about people who find themselves engaged in elaborate tax fraud.

We’re speaking a few credit score that runs into $5,000 on the excessive finish, even the largest errors. These are nickels and dimes, once we take into consideration the fisc, once we take into consideration everything of what’s collected by the IRS. I am not within the place, after all, to evaluate whether or not they are surely making this many errors, however we must be asking why if that is true and never demonizing working folks paying their taxes who’re solely attempting to get what the Congress has advised them they’re entitled to.

Caitlin Mullaney: As you beforehand famous, the Federal Revenue Taxation: Instances, Issues, and Supplies e book had a considerably better size and extra distinguished clarification of the earned revenue tax credit score than the opposite two books. Did the better house dedication present a superior inclusion over the opposite two casebooks?

Diane Kemker: Sure. From my standpoint, it is higher not simply because extra is best, although in some methods I believe extra is best merely due to the significance that’s awarded to it, but in addition as a result of it is a way more thorough and far more intersectional method. I hope they proceed to go additional in the identical path. I am glad that is the e book from which I am instructing as a result of in any other case the fact is I might most likely be supplementing with materials from that casebook if I have been instructing from one other one.

Caitlin Mullaney: Nice. And I believe that circles us again round to your dedication that what’s wanted is for the tax legislation casebook to be cracked open. What do you see as the subsequent steps to enhance an inclusivity of the earned revenue tax credit score and different underemphasized social points into the tax legislation schooling?

Diane Kemker: There are just a few various things that I am attempting to perform, each via my very own work and by amplifying the work of others. The best way that it may come into the tax legislation casebooks is by starting to point out up in notes and issues, and authors being urged to increase their protection of it for causes that may be made significant to them, the most important scale of these causes which Alice Abreu at Temple Legislation College has explored over the course of her complete profession is rising the inclusivity of the tax bar itself has to begin within the legislation college classroom.

The classroom must be made to be an inclusive house for many who in any other case would really feel like that is an space of the legislation that holds no curiosity for them. I consider this as a two-way course of. It is one thing I mentioned in one other article about instructing essential tax. As a result of tax legislation is an elective, the general public who self-select into it are most likely, in equity, not additionally taking the essential race concept seminar.

This can be the one place they’re uncovered to a few of these extra essential concepts. In the event that they see that these too are a part of the legislation of tax, that is an necessary message to be despatched. By the identical token, traditionally underrepresented college students who discover themselves within the tax legislation classroom — I believe it is vital for them to really feel that the issues of the communities of which they’re an element are additionally mirrored within the casebook. All of those casebooks emphatically say that tax legislation touches all the things. What then counts as all the things issues quite a bit.

Caitlin Mullaney: Nicely, thanks a lot for that. Sadly, that is on a regular basis we have now for at the moment. I wish to thank professor Kemker for approaching the podcast.

Once more, I wish to refer any folks to professor Kemker’s article entitled “Cracking Open the Tax Casebook: Style, Ideological Closure and the Earned Revenue Tax Credit score.” And thanks once more to Diane Kemker for coming onto the podcast at the moment.

Diane Kemker: Thanks a lot once more for having me. Everybody who writes articles hopes that they are going to be learn with this diploma of care and a focus, so I respect it.