“Super-rich” law professors and tax policy

The controversy over Law Professor Todd Henderson’s “We are the Super Rich” blog entry, posted and then withdrawn from Truth on the Market (Sept. 15, 2010), misses how current marriage tax policy divides the not-so-rich to the benefit of the very rich.   See Whiny Law Prof Quits Blogging After Lament for Rich People.

Henderson cites the burdensome expenses of his dual-income family to argue for preserving regressive tax cuts for the super-rich.   On the other hand, some vitriolic attackers trivialize the burdens of these expenses simply because his family is not as squeezed as most.

Henderson complains that his married status means both particularly high taxes, but also particularly high expenses.  He and his physician wife face high student loan debt; high child care costs and domestic service expenses, along with the costs of two cars.  He argues that Obama’s proposed tax increase on those “super-rich” taxpayers with income over $250,000 would mean cutting some expenses needed to support his family’s income, not to mention the income of their service providers.

In fact, his tax burdens come not  from his “marital status,” but more precisely, from his dual-income  marriage.  Henderson and his wife should not be taxed jointly the same as (for instance) one person earning $300,000 (married or unmarried) because neither he nor his wife individually earns that much.  A married breadwinner-homemaker couple with the same income as Henderson’s but only one income earner typically would be in a different, less sympathetic situation.  For the affluent one-earner marriage, the extra $10,000 in taxes that Henderson worries would force cuts in lawn-mowing and housecleaning services likely would mean not less income but less time for leisure activities like playing golf, or perhaps for blogging about wasteful government spending on the poor.

Henderson and his wife (and the much less rich middle class) should be taxed individually, AND with individual tax rates – as well as government spending –designed to give more support for the high costs of successful income-earning (such as higher education and child care).  We need to eliminate what I call the “affluent husband care” subsidy – the marriage-based tax break, which uses gendered, raced, and heterosexualized ideas about homemaking spouses to make it seem like middle-class taxpayers are squeezed because the tax code is too progressive rather than not progressive enough.  I’ve discussed this issue further in Taxing Family Work:  Aid for Affluent Husband Care, forthcoming in the Columbia Journal of Gender and the Law, draft downloadable from http://works.bepress.com/martha_mccluskey/1/.

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