Excerpted From: Steven A. Dean, Filing While Black: The Casual Racism of the Tax Law, 2022 Utah Law Review 801 (2022) (66 Footnotes) (Full Document)

StevenDeanThe tax law's race-blind approach produces bad tax policy. This Essay uses three very different examples to show how failing to openly and honestly address race generates bias, and how devasting the results can be. Ignoring race does not solve problems; it creates them. ProPublica has shown, for example, that because of the perils of filing income taxes while Black, the five most heavily audited counties in the United States are Black and poor.

The racial bias long tolerated--and sometimes exploited--by tax scholars and policymakers affects all aspects of the tax law. In 1986, Sam Gilliam was denied tax deductions that others in similar situations enjoyed. In 2000, Liberia was threatened with sanctions for being a tax haven, but Switzerland was not. In 2014, Eric Garner died in police custody after being suspected of evading a tax. In each instance, anti-Blackness played a role in ways the tax law either ignores or actively leverages. Because a succession of Democratic and Republican administrations--including the Biden administration after a full year in office--has declined to embrace comprehensive data on race, the tax law equivalent of body cameras, we must rely on stories to understand the impacts of filing while Black. The role of tax law in Black lives--and on Black deaths--demands our attention. Yet even today, the most powerful voices in tax policy, for example Treasury Secretaries, continue to disregard the lessons countless Gilliams, Liberias, and Garners have suffered or died to teach us.

Part II highlights the tendency of even the most inquisitive tax minds to disregard the potential impact of race on interactions between taxpayers and tax authorities. A Black artist--long treated unequally by dealers, curators, and critics--faced first the pain of being denied a deduction for business expenses readily granted to others, only to then suffer the further indignity of having that denial offered to generations of law students as comedy rather than tragedy. Part III offers a fleeting glimpse of a world in which a Black perspective shapes the course of global tax policymaking, with the Congressional Black Caucus handing a significant setback to efforts by the Organization for Economic Cooperation and Development (“OECD”) to punish poor Black countries as tax havens while ignoring the misdeeds of whiter, wealthier states. Finally, Part IV urges tax experts to ask uncomfortable questions about the role tax policy played in the death of Eric Garner while in the custody of NYC police officers, and how that death should change the design and enforcement of tax laws.

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Sam Gilliam's experience suggests the many ways in which filing while Black-- like driving while Black-- can be costly. Eric Garner's fate shows how even the most trivial tax burden can cost a life. Yet tax experts often remain willfully blind to the ways racial bias may cause Black taxpayers to suffer disproportionately at the hands of tax authorities. The powerful resistance offered by the Congressional Black Caucus to the OECD reveals how different the world might look if tax policymakers forced themselves to consider how their decisions impact Black lives.

This Essay invites scholars, lawmakers and all those interested in shaping our tax rules to consider the hazards of filing while Black. The casual racism of the tax law persists because experts prefer not to ask whether Sam Gilliam's tax result had anything to do with the color of his skin. It persists even after a Congressional delegate defied some of the most powerful actors in the world to spare dozens of its least powerful nations. It persists because tax lawyers and tax scholars refuse to imagine that we may, in even a small way, be culpable in the death of Eric Garner. That can, and must, change.

Steven A. Dean. Steven Dean has been a professor at Brooklyn Law School since 2004.