Taxing Parents: Welfarist Theories

The Internal Revenue Code (the “Code”) taxes parents inequitably. Couples with a sole earner are under-taxed compared to couples with dual earners or single parents. Previous scholarship has identified these inequities and then argued that this sole earner bias should be eliminated. These arguments, however, have often been incomplete. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, the Code plays favorites all the time. Scholars have traditionally turned to theories of distributive justice when evaluating whether tax preferences are warranted. These theories offer competing visions about the way resources should be allocated. Rather than advocating blanket equality, these theories identify higher order principles that justify preferential-ism. But scholars who have asked Congress to eliminate the Code’s preference for sole earners have often failed to connect their arguments with this distributive literature. This Article, the first in a series, begins to connect traditional theories of distributive justice with the debate surrounding the Code’s inequitable taxation of parents. To do so, it focuses on welfarist theories — a body of distributive theories that seek to maximize social welfare — because of the dominant influence they have exerted over tax debates. It reaches the surprising conclusion that welfarism may, in many cases, support the Code’s sole earner bias. But the reasons for this prescription are revealing — sole earners have fewer costs and time constraints than single parents and dual earners and may, therefore, be better positioned to use their income to achieve well-being. Many will find it counter-intuitive to favor sole earners just because they have more choices than other parents. For them, the analysis may reveal the limitations of relying too heavily on welfarism to analyze the taxation of parents. This Article concludes with a call for sustained consideration of other non-welfarist theories that have been largely overlooked in the legal tax scholarship.