Mapping the Families of the Internal Revenue Code

Publication Date

Spring 2015

Volume

22

Document Type

Article

Abstract

The Tax Code contains not one, but two conceptions of family. Existing scholarship does not address this puzzle but instead takes one of two views on the family—either the family is a tool for avoiding taxes or it is a source of discrimination. Current scholars, motivated by the discrimination concern, reject the relevance of kinship to tax and argue for an increased focus on the individual. This Article takes a different approach. Utilizing the “status” and “contract” distinctions familiar to family law scholars, it explains the puzzle of the multiple families in the Code, identifying the two families of the Code and their respective functions. Specifically, this Article shows that when we convey benefits through the Code, we understand family as broad and contract based. On the other hand, when our goal is to root out or head off tax gaming and avoidance, we constrict our notion to that of the nuclear, status-based family. Current reform proposals undervalue the importance of family to the prevention of avoidance and evasion, make targeting beneficial provisions more difficult, and inhibit the challenging work of reforming the Code to be both administratively feasible and nondiscriminatory. Contrary to existing scholarship, this Article argues we should neither cut kinship from the Code nor rely exclusively upon the contract family. Instead, this Article creates a framework for modernizing the tax treatment of the family that combines the strengths of kinship theory and the status and contract families to maintain fairness and administrability and utilizes that framework to make preliminary reforms to existing law.

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