The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the 2017 Tax Legislation

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Minnesota Law Review, Vol. 103, 2018

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David Kamin; David Gamage; Ari D. Glogower; Rebecca M. Kysar; Darien Shanske; Reuven S. Avi-Yonah; Lily L. Batchelder; J. Clifton Fleming; Daniel Jacob Hemel; Mitchell Kane; David S. Miller; Daniel Shaviro; Manoj Viswanathan Show More Hide
Tax; Legislation; Tax Planning; Reform; Loopholes; Tax Cuts and Jobs Act (TCJA)
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paper description
The 2017 tax legislation brought sweeping changes to the rules for taxing individuals and business, the deductibility of state and local taxes, and the international tax regime. The complex legislation was drafted and passed through a rushed and secretive process intended to limit public comment on one of the most consequential pieces of domestic policy enacted in recent history. This Article is an effort to supply the analysis and deliberation that should have accompanied the bill’s consideration and passage and describes key problem areas in the new legislation. Many of the new changes fundamentally undermine the integrity of the tax code and allow well-advised taxpayers to game the new rules through strategic planning. These gaming opportunities are likely to worsen the bill’s distributional and budgetary costs beyond those expected in the official estimates. Other changes will encounter legal roadblocks, while drafting glitches could lead to uncertainty and haphazard increases or decreases in taxes. This Article also describes reform options for policymakers who will inevitably be tasked with enacting further changes to the tax law in order to undo the legislation’s harmful effects on the fiscal system.