Fiscal federalism is embedded within the U.S. constitutional structure dating back to the founders. Over time the Supreme Court has developed numerous tests and doctrines to balance fiscal powers and responsibilities between the federal government and the states. But these doctrines are a messy jumble. Fiscal federalism is different under the commerce clause when Congress legislates, the dormant commerce clause, state sovereign immunity, the spending clause, section 5 of the Fourteenth Amendment, and the taxing clauses of apportionment of direct taxes and uniformity of excises, imposts, and duties. The result is what one could charitably call a doctrinal hot mess. In their essay, Against Doctrinal Siloing: Harmonizing Fiscal Federalism and the U.S. Constitution, David Gamage and Darien Shanske draw on the concept of proportionality to develop a useful balancing framework that works to harmonize these doctrines and in many ways engender clearer reasoning and discussion of how these two sovereign realms must act in the fiscal space. They thus provide a means to resolve today’s fiscal federalism conflicts beyond just digging through eighteenth-century history to find answers for our twenty-first-century digital economy, while remaining true to a great deal of the Framers’ intentions.

Gamage and Shanske draw on the concept of proportionality, which appears in U.S. law, but is more commonly associated with German and E.U. law. The basic concept is that when there are two conflicting rights, something must give. But it should only give to the extent that it is proportional to resolve the conflict rather than completely choosing one right over the other. They propose the Federal Fiscal Proportionality Review (FFPR). This framework helps to harmonize the doctrines in the disparate federal fiscalism areas. It is also a rebuttably presumptive framework. The FFPR acknowledges that while proportionality is the best way to handle clashing principles, it cannot override a specific, unambiguous textual command. For example, the Constitution’s age requirement for the Presidency cannot get overridden through proportionality review.

The framework has four key parts. One evaluates: “(1) asserted federal interest; (2) the state interest at stake; (3) whether there is reasonable tailoring between means and ends; (4) whether the federal benefit is proportional to the burden on state autonomy.” The key part of the test is looking then at how narrowly tailored the matters are and the proportionality that arises. The framework, in many ways, echoes parts of current doctrine in these disparate areas. Additionally, FFPR helps designers focus on how to calibrate measures to ensure that the rights of the two sovereigns are in balance. It rejects the idea that everything must be an all-or-nothing victory for one sovereign or the other and thus provides a textured and nuanced approach.

The authors then show first how this applies to limits placed on state revenue power. One key example is how it would apply to the morass of the dormant commerce clause doctrine. The authors take FFPR and apply it to the Maryland digital advertising tax, which applies only to an advertiser with at least $100 million in gross receipts in Maryland. No Maryland-based company is subject to this tax. On the first prong, the federal interest is to preserve the national market. The state has an interest in raising revenue related to its consumer base. When it comes to the tailoring analysis, it is true that the tax affects only out-of-state businesses. But it is not really seeking to do that in any substantive way, even by proxy. That helps limit the federal concerns of the national market and discrimination. Finally, on the fourth part, there is nothing here that smells of protectionism for Maryland companies. As a result, it avoids contravening the fundamental federal interest in maintaining a unified national market free from state-erected economic barriers. Of course, if the tax were designed differently with certain carve-outs, that would and should change the proportionality calculus. Design details then are important.

Gamage and Shanske then turn to the limits on the federal taxing power. The FFPR clarifies the categories of direct taxes subject to apportionment and duties, imposts, and excises subject to uniformity. Once classified, FFPR also helps to assess the validity of apportionment measures or uniformity.

When it comes to classification, FFPR helps to protect the fiscal autonomy interest states have. That idea, which comes from both Justice Thomas’s Moore v. United States dissent and the arguments of Professors David Schizer and Steven Calabresi, is based on the concept that the direct tax apportionment language is meant to ensure interstate equality and prevent the federal government from raiding the states. The third and fourth parts of the FFPR help to provide a useful analytical hook rather than having it be a somewhat arbitrary labeling exercise.

To get that point across, Gamage and Shanske provide a comparison between two taxes, a federal wealth tax on all wealth over a threshold amount regardless of how it is held and a federal levy on commercial oil and gas reserves. Both have clear federal and state interests at stake. But for a wealth tax, when looking at tailoring and proportionality, it seems well-tailored and proportional to the interest. Few states tax all wealth, especially the intangible wealth that is highly mobile and makes up the largest share of the wealthy’s holdings. On the other hand, when looking at the oil and gas levy, those impinge much higher on state interests, and thus, mean that apportionment may make more sense to allow for proper tailoring and prevent interstate inequities. Similar inquiries then can be made as to whether something meets apportionment or uniformity depending on the categorization.

Overall, the essay helps to clean up doctrinal messes in fiscal federalism. The FFPR also is useful in another way. In engaging in the proportionality analysis and weighing interests, the FFPR really aims to look at how values interact with one another and how we make tradeoffs workable. The other advantage that the authors do not mention then about the FFPR is that it not only cleans up doctrine, but it makes these value arguments more legible. In doing so, it not only helps courts provide better reasons, but it also allows political actors and the administrative state at both the federal and state levels to articulate their own values and to think carefully about tailoring those conflicts together. Highlighting that too not only enhances federalism, but overall deliberation that is key to our federal system and democracy. In that way too, the FFPR also serves as a light toward helping us better engage with these thorny issues not just in court, but in our public discourse.

Here’s the rest of this week’s SSRN Tax Roundup:

Daniel J. Hemel (NYU), Taxation and Animals, 77 Case Western L. Rev. _ (forthcoming 2026)

Fabian Kratzlmeier (Max Planck Institute), The Tax Creditor Under European Insolvency Law: Special Treatment, Equal Treatment, or Even Worse? (May 13, 2026)

Daphna Lewinsohn-Zamir (Hebrew U.) & Ilana Ritov (Hebrew U.), Harnessing the Identifiability Effect to Enhance Public Support for Redistribution, J.L. & Empirical Analysis 153 (2026)

Surrender Naik Maloth, Legal and Tax Considerations for Starting a Business: A Comparative Study of Germany, India, and the United States (May 11, 2026)

Daramola Joseph Omoyele (Independent), Tariff Threats and Digital Tax Sovereignty (May 11, 2026)

Katherine Pratt (Loyola L.A.), Aligning Reparations and Taxation, 32 William & Mary J. Race, Gender & Social Justice 395 (2026)

Diane M. Ring, Assessing Decision-Making in Global Tax Organisations: A Research Agenda, 2025 British Tax Rev. 61

Tamir Shanan (College of Management, Israel) & Doron Narotzki (Akron), Taxation of Cross Border Migrations: Re-evaluating the Allocation Between Home Country and Host Country, in Fairness in International Taxation (Ira K. Lindsay & Binu Mathew, eds. 2025)

István Simon (Eötvös Loránd U.), Cryptocurrencies in National Laws – Hungary (May 8, 2026)

Donald B. Tobin (Maryland) & Alex Tobin (Independent), Living Constitutionalism, Originalism, and the Sixteenth Amendment, 77 Ala. L. Rev. 511 (2026)

Steven Utke, Closing the Carried Interest Tax ‘Loophole’ Could Raise $90 Billion over 10 Years . . . If the Difference Between Ordinary and Capital Tax Rates Exceeds 50% (May 11, 2026)

Manoj Viswanathan (UC Law SF), Toward Issuer-Based Certification of Qualified Small Business Stock (May 7, 2026)

Payal Wagh, Shadows of Justice: A Critical Analysis of Confidentiality, Accessibility, and Arbitrator Bias in International Tax Arbitration (May 9, 2026)

The post SSRN Review & Roundup: Saito Reviews Gamage & Shanske’s Against Doctrinal Siloing appeared first on TaxProf Blog.

     

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Dean Parrish’s post includes much information about the study. As a long-time supporter of pathway programs and outreach efforts, I applaud the AALS and LSAC for commissioning this study. In a post-race conscious admissions world, we need all the information possible to attract the best and brightest students.

,

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A new tax surcharge on the second homes of wealthy part-time residents of New York City would initially target co-ops and condos that have at least $1 million in “market value,” a bureaucratic metric that often vastly understates a home’s actual worth.

The proposed second-home tax plan, which Gov. Kathy Hochul proposed to state legislative leaders on Thursday, would be instituted in two phases. For the next two years, second homes with a “market value” of $1 million or more will face a tax surcharge between 4 percent and 6.5 percent — in addition to their existing property tax obligations.

But because the so-called market value diverges from a property’s actual sales value, especially at the highest end of the market, it is unclear how many homes would be affected by the tax.

…

The post NY Times: New York Takes Two-Step Approach on Multimillion-Dollar Second-Home Tax appeared first on TaxProf Blog.

     

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Strange but true: Tens of millions of Americans could be owed billions of dollars in tax refunds of Covid-era interest and penalties due to a recent federal court decision. 

But getting these refunds won’t be easy. Most eligible filers will need to send paperwork to the Internal Revenue Service by July 10. This will preserve their right to refunds and other favorable treatment due to the decision. 

Large companies and wealthy individuals are already scrambling to file claims with the IRS. Now, National Taxpayer Advocate Erin Collins, who heads an independent unit within the IRS, is pushing to get the word out to everyone else.

“This is a sleeper issue that’s easy to overlook, but it has opened the door to the possibility of refunds for millions of taxpayers,” Collins said. 

Here’s an overview of what to know. For more details, see Collins’s NTA blog posts, which are linked in this column. 

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https://www.bostonglobe.com/2026/05/11/business/tenure-tufts-medical-school/?s_campaign=8315:varf

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The California Attorney General’s Office announced Wednesday it filed felony charges against an unlicensed cannabis retailer for evading approximately $7.1 million in state sales tax.

The attorney general’s office said they had arrested Pin Hsien Hsu, who operated unlicensed cannabis dispensaries in Los Angeles, Orange, and San Bernardino Counties from April 2019 to November 2022. He allegedly failed to report approximately $80 million in contraband marijuana sales to the California Department of Tax and Fee Administration, according to the complaint.

“Evading taxes through hazy business tactics is not a victimless crime and it carries serious consequences,” Attorney General Rob Bonta said in a press release from his office.

The complaint, filed in the California Superior Court, Sacramento County, lists over 60 charges and allegations for failure to file sales tax returns, engaging in business without a permit, money laundering, and white collar crime enhancements.

“When individuals and businesses deliberately avoid their legal responsibilities, they are shifting the burden onto honest taxpayers and depriving communities of essential funding,” Bonta said.

The California Department of Justice and the tax department said they conducted a joint investigation and seized about $2.2 million in cash and 125 pounds of contraband marijuana products. The state justice department is prosecuting the case.

“Cannabis businesses that do not pay their fair share deprive important programs of critical funding, including youth substance abuse prevention, environmental restoration, and cannabis research,” the tax department’s director Trista Gonzalez said in the press release. She added that the department is committed to holding cannabis sellers accountable for their tax obligations.

The cannabis retailer wasn’t immediately available for comment.

The case is People v. Pin Hsien Hsu, Cal. Super. Ct., No. 26FE007579, complaint filed 4/21/26.

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• Tarun Jain (London School of Economics), Interjecting unilateral Indian GAAR inquiries in cross-border setting: Revisiting tax normativism post Tiger Global
  
  
  

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Check out this inaugural post in a the symposium of the UCLA Law Review. It spotlights the Council of the American Bar Association (ABA) Section of Legal Education and Admissions to the Bar’s proposal to repeal Standard 206 (Diversity and Inclusion). See Athena D. Mutua, Mary Louise Frampton, Steven W. Bender & Susan McMahon for the Critical Legal Collective, Introduction to ABA Standard 206 Blog Symposium, Protecting Diversity and Inclusion Gains in Legal Education Against Backlash (May 12, 2026).

The Introduction links to eighteen letters and comments submitted in opposition to the Council’s proposal to repeal Standard 206. 

Reuters recently reported that the Council’s Standards Committee has recommended “that this national system of accreditation — and the Council’s role as an accreditor — would be imminently threatened if Standard 206 is not repealed.” 

The Council is scheduled to vote on the matter on May 15, 2026, after which the matter will go to the ABA House of Delegates.

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