Seminar 3: Taxation, state-building and the constitution

What does it mean for tax to be treated as public law? This question is hardly new, but it is seldom addressed directly.  In some jurisdictions, it is so obvious that it is taken for granted.  Elsewhere, it is widely discussed but only in specific contexts such as constitutional adjudication or the exceptionalism debate.  It is argued in this paper that there are in fact three different reasons for analysing tax in public law terms.

First and most obviously, familiar public law disputes can engage in the tax field, for example in relation to the constitutionality and interpretation of tax legislation and the legality of tax administration.

Secondly, the securing of predictable public finances is essential to the establishment of a state and its survival and success thereafter.  As discussed in my recent book Tax, State Building and the Constitution, this is likely to inflect many aspects of tax law and administration and may explain some of the peculiarities (if not ‘exceptionalism’) of tax. 

Thirdly, public law theories are useful as framing devices, which organises our attitudes towards a series of vital questions: which aspects of the vast edifice of taxation are most worthy of notice; whether, how and the extent to which courts ought to intervene in tax administration; the relationship between national and international law; and the extent to which the insights of non-legal disciplines are relevant to identifying what the law is as well as what it ought to be.

These intersections between tax and public law are deeply familiar to tax specialists.  The first is of the essence in judicial review and constitutional review decisions.  The second is explored in the rich literatures on fiscal sociology, tax history, and tax and development.  The third is perhaps most obvious in the work of critical scholars whose central aim is to change our frame of reference and to highlight previously overlooked factors such as gender, race, and social deprivation.

It is argued in this paper that it would be particularly useful for tax specialists to become more familiar with the third, framing, role of public law.  This is because we have a distinct tendency to speak past each other on political, jurisdictional, disciplinary and theoretical perspectives, especially in relation to typical public law questions such as the relationship between taxpayers, benefits recipients and the state.  Public law theory does not answer these questions for us, but it does offer us a sophisticated map of the grounds on which we might disagree and how it might nevertheless be possible to engage with those who have different starting points from us.

The paper outlines various potential benefits of borrowing from public law this better sense of how to disagree, but one that is particularly close to my own interests is the possibility of drawing meaningful comparisons between the treatment of tax in various constitutions.  This is notoriously difficult in view of the tendency of constitutional law towards particularity, but is a worthwhile exercise even for the UK where our ‘unwritten’ (yet extensively documented) constitution obscures deep commonalities with the arrangements in other jurisdictions.  The key is to ensure that like is being compared to like, and once again we can gain invaluable assistance by drawing widely on general public law scholarship.

Presenter: Dominic de Cogan (Senior Lecturer in Tax Law at Christ’s College, University of Cambridge) 

Dominic de Cogan is a member of the Faculty of Law, University of Cambridge.  He worked as a Tax Consultant before completing a PhD in modern tax history, before joining the University of Birmingham and subsequently the University of Cambridge in an academic role.  His research interests centre on the interaction of tax and government, and his teaching responsibilities include tax law and administrative law.  He has visited Denmark once (a small town named Struer).

Discussant: Yvette Lind (Assistant professor, Copenhagen Business School)

Yvette Lind is an Assistant professor in tax law at Copenhagen Business School as of 2019. She defended her doctoral thesis (“Crossing a Border” published by Jure) on taxation and social security contributions linked to cross-border working at Umeå University (Sweden) in 2017 and subsequently received a post-doc from the Swedish TOR/Skattenytt foundation (2017-2019). The post-doc project focused on the relationship between taxation and state aid law in an international setting, e.g. state aid investigations linked to multinational corporations and the design and application of environmental taxes. Currently exploring research questions concerning taxation and democracy. 

SSRN

Twitter: @YsLind