The Myth of Pretax Income

Authors

Lawrence Zelenak, Duke Law SchoolFollow

Abstract

What constitutes a fair distribution of the burdens of taxation among the members of a society? Even as politicians and academics vigorously debate the answer to that question, there is widespread agreement that all are asking the right question. In The Myth of Ownership, however, Liam Murphy and Thomas Nagel claim that everyone has been asking the wrong question. To ask about the fair distribution of tax burdens is to take the distribution of pretax incomes as "presumptively just," so that justice in taxation "is a question of what justifies departures from that baseline" (p. 15). But Murphy and Nagel claim that pretax income is a myth, and, as such, has no moral significance. How can my pretax income be a myth, when I can read it on my W-2? Their argument goes as follows: Pretax income means income in the absence of taxes. But in the absence of taxes there would be no government, in the absence of government there would be anarchy, and in a state of anarchy no op.e would have any income. Pretax income, then, must be zero - or, equivalently, there is no such thing as pretax income. If there is no such thing as pretax income, obviously people cannot be entitled to it. Instead, "[a]ll they can be entitled to is what they would be left with after taxes under a legitimate system, supported by legitimate taxation - and this shows that we cannot evaluate the legitimacy of taxes by reference to pretax income" (pp. 32-33). In brief, justice in taxation is a matter of the distribution of after-tax incomes, not a matter of the distribution of tax burdens. More briefly still: "Outcomes, not Burdens" (p. 98).

Recommended Citation

Lawrence Zelenak, The Myth of Pretax Income, 101 Mich. L. Rev. 2261 (2003).
Available at: https://repository.law.umich.edu/mlr/vol101/iss6/40