Giving Credits Where Credits Are (Arguably) Due A Half Century's Evolution in the Design of Personal Tax Expenditures

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Lawrence Zelenak


In the late 1960s, when Stanley Surrey introduced the concept of tax expenditures and the federal government began producing tax expenditure budgets, personal tax expenditures in the form of deductions (for nonbusiness interest, charitable donations, state and local taxes, and medical expenses) equaled roughly 1.2% of gross domestic product, and personal tax expenditures in the form of credits were virtually nonexistent. Although Surrey was critical of all tax expenditures, he had particular scorn for tax expenditures in the form of deductions, which he characterized as upside-down subsidies. He explained that converting deduction tax expenditures to credits would make them less objectionable, by eliminating their upside-down character. Over the ensuing half century, Congress has shifted from deductions to credits—gradually for decades, with a dramatic acceleration of the shift in 2017. Today, in sharpest contrast with the Surrey era, major tax expenditures in the form of personal credits equal roughly 1.23% of GDP, while major deduction expenditures have fallen to about 0.61%. This Article describes this fundamental transformation of a significant fraction of the national economy, first from a big picture perspective and then with detailed accounts of the evolution of the major personal tax expenditures. The Article also offers a policy analysis of the transformation, with three major conclusions: (1) Congress has been overly influenced by Surrey’s upside-down critique, in that it has wrongly viewed as upside-down subsidies deductions justified on income-defining (ability-to-pay) grounds; (2) in designing personal tax expenditures, Congress has legislated as if a number of design features automatically follow from the choice between deduction and credit, when in fact they do not; and (3) Congress has been right (at least mostly) to ignore Surrey’s recommendation that all credits should be taxable. 

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Author Biography

Lawrence Zelenak, Duke University

Pamela B. Gann Professor of Law, Duke University. For their comments on earlier versions of this Article, the author thanks Reuven Avi-Yonah, J. Clifton Fleming, Gregg Polsky, Gladriel Shobe, and the participants in the tax policy seminars of the law schools of Brigham Young University and Duke University.