Interrogating the Relationship between 'Legally Defensible' Tax Planning and Social Justice

Abstract

This article, prepared for presentation on September 23, 2016 at a conference at NYU Law School, organized by the Center for Rights and Global Justice and entitled Human Rights and Tax in an Unequal World, mainly takes the form of a dialogue between two fictional individuals. The conclusions that the discussants reach (insofar as they are able to agree) can be summarized as follows:Large-scale tax avoidance by wealthy individuals and large companies that is legally defensible under relevant national tax laws can nonetheless have major adverse effects on social justice and/or public morale. However, its legal defensibility complicates analyzing its ethical implications, as compared to the more straightforward case of committing tax fraud. Legal defensibility also complicates the analysis of the extent to which human rights advocates should focus on such desiderata as “good corporate tax behavior” and the ethics of tax professionals.Much of this complexity pertains to (1) issues of ex ante legal uncertainty regarding whether a defensible position would actually be upheld if closely scrutinized, (2) the multifaceted character both of tax professionals’ ethical obligations and of their incentives, and (3) the ambiguity of people’s personal ethical obligations to act altruistically, rather than just self-interestedly. It also is hard to judge the tactical questions associated with focusing on these issues, rather than on the tax rules’ content. Ethical challenges may help to undermine social acceptance of current practices, but also may distract from legal reform efforts.