Amicus Brief of Tax Scholars in Support of Appellants

17 Pages Posted: 1 Oct 2020 Last revised: 16 Jun 2021

See all articles by Erin Adele Scharff

Erin Adele Scharff

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Lily L. Batchelder

New York University School of Law

Jeremy Bearer-Friend

George Washington University Law School

John R. Brooks

Georgetown University Law Center

Paul L. Caron

Pepperdine University - Rick J. Caruso School of Law

Adam Chodorow

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Steven Dean

Brooklyn Law School

David Gamage

Indiana University Maurer School of Law

Jacob Goldin

Stanford Law School

Hayes Holderness

University of Richmond - School of Law

Ariel Jurow Kleiman

Loyola Law School Los Angeles

Richard Pomp

University of Connecticut - School of Law; Independent

Darien Shanske

University of California, Davis - School of Law

Daniel Shaviro

New York University School of Law

Jay A. Soled

Rutgers University

Kathleen DeLaney Thomas

University of North Carolina School of Law

Vanessa Williamson

Brookings Institution - Governance Studies

Date Written: August 10, 2020

Abstract

It is hard to describe tax law succinctly. The federal Internal Revenue Code is over 6,000 pages and contains over 4 million words. As scholars who write about taxation, we are well aware of this challenge. Nevertheless, the 100-word summary that appeared on Invest in Education’s petitions accurately describes its proposed change to Arizona tax law.

Arizona's Invest in Education initiative would establish a new, separate surcharge of 3.5% on taxable income above certain threshold amounts. This new surcharge shall be imposed “[i]n addition to any other tax imposed by this chapter” and, it will be “collected regardless of whether the income tax rate brackets in this chapter are changed, replaced or eliminated by an act of the legislature.”

Invest in Education’s 100-word summary described this provision as “establishing a 3.5% surcharge on taxable income above $250,000 annually for single persons or married persons filing separately, and on taxable income above $500,000 annually for married persons filing jointly or head of household filers.” This description straightforwardly describes the tax law change proposed in the initiative text.

The Arizona trial court held there were three tax-related problems with the 100-word summary. The trial court concluded that the use of the term “surcharge” rather than “tax” was misleading, and it held that the description omitted two principal provisions: the relative percentage change in the marginal tax rate and the fact that the definition of taxable income includes income that individuals earn as owners of pass-through entities. The trial court’s conclusions are based in confusion about tax law and a misreading of the Arizona Supreme Court's decision in Molera v. Reagan. As this brief explains, there is nothing misleading about the 100-word summary, and it accurately described the principal tax provision.

Keywords: Taxation, Initiative, Voter

Suggested Citation

Scharff, Erin Adele and Batchelder, Lily L. and Bearer-Friend, Jeremy and Brooks, John R. and Caron, Paul L. and Chodorow, Adam and Dean, Steven and Gamage, David and Goldin, Jacob and Holderness, Hayes and Jurow Kleiman, Ariel and Pomp, Richard and Shanske, Darien and Shaviro, Daniel and Soled, Jay and Thomas, Kathleen DeLaney and Williamson, Vanessa, Amicus Brief of Tax Scholars in Support of Appellants (August 10, 2020). Available at SSRN: https://ssrn.com/abstract=3674110 or http://dx.doi.org/10.2139/ssrn.3674110

Erin Adele Scharff (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

P.O. Box 877906
Tempe, AZ 85287-7906
United States

Lily L. Batchelder

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-992-8156 (Phone)

Jeremy Bearer-Friend

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

John R. Brooks

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Paul L. Caron

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
310.506.4266 (Phone)

Adam Chodorow

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Steven Dean

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

David Gamage

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

HOME PAGE: http://www.law.indiana.edu/about/people/bio.php?name=gamage-david

Jacob Goldin

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Hayes Holderness

University of Richmond - School of Law ( email )

203 Richmond Way
University of Richmond School of Law
Richmond, VA 23173
United States

Ariel Jurow Kleiman

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

Richard Pomp

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5251 (Phone)

HOME PAGE: http://www.law.uconn.edu/faculty/rpomp/

Independent ( email )

860-983-8341 (Phone)

Darien Shanske

University of California, Davis - School of Law ( email )

400 Mrak Hall Dr
Davis, CA CA 95616-5201

Daniel Shaviro

New York University School of Law ( email )

40 Washington Square South
Room 314-B
New York, NY 10012-1099
United States
212-998-6187 (Phone)
212-995-4341 (Fax)

Jay Soled

Rutgers University ( email )

1 Washington Park
Newark, NJ 07901-1825
United States
(973) 353-1727 (Phone)

Kathleen DeLaney Thomas

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-843-7630 (Phone)

Vanessa Williamson

Brookings Institution - Governance Studies ( email )

1755 Massachusetts Avenue, NW
Washington, DC 20036
United States

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