Luís Calderón Gómez (Yeshiva University – Benjamin N. Cardozo School of Law) has posted Is Tax “Law”? (94 Fordham L. Rev. (2026)) on SSRN. Here is the abstract:
Although taxation remains a hotly-contested issue in debates by both politicians and political theorists—over the optimal size of government; distributive (and sometimes corrective) justice; or even the legitimacy of current private property arrangements—taxation has been largely ignored by legal theorists, to the detriment of both tax law and legal theory. This Article argues that tax law, driven by its battle against tax evasion, is in deep conflict with widely-accepted conceptions of “legality”—that is, the qualities that make a rule distinctively and normatively “law”. That matters because legality is a key buttress in jurisprudential and political theory accounts that legitimate the law, the State, and their coercive nature.
Specifically, this Article contends that three fundamental principles of legality (non-contradiction, congruence, and clarity) are critically flouted by our tax law. The nearly universal use of vague anti-abuse rules in the tax code violates the principle of non-contradiction, often presenting taxpayers with impossible choices. Tax law’s price discrimination, through special incentives and individualized determinations, violates the principle of congruence, which requires that the law be congruent between its communication and its enforcement. Lastly, the tax law’s unique complexity and its unintelligibility to laypersons and experts alike violates the principle of clarity, despite the widespread availability of services like TurboTax that purport to make tax law approachable. So, what do we do if tax law—a basic component of our public law and a cornerstone of a functioning State—is not really “law”?
This Article counsels against a resolution to that question that requires either disposing of our current tax architecture or of our strong conceptions of legality undergirding mainstream jurisprudential theories. Analyzing tax law’s particular legality shortcomings reveals a pattern: a critical driver of this conflict is the State’s necessity to ensure that taxpayers obey the law. Rather than underscoring the inevitability of the conflict between legality and modern taxation, this driver reveals an opportunity; recent research on tax compliance shows that taxpayer compliance is itself driven by taxpayers’ perceptions of legality. As a result, targeted reforms could both restore legality and enhance tax compliance. The Article concludes by highlighting specific policy proposals designed to both restore legality and increase compliance and by underscoring deeper policy-making reforms directed at more generally preventing these conflicts.
Recommended.