Abstract
The engine of a complex liberal theory of democratic tax law is the participation of individuals in the making of tax norms1. The most compelling argument to assert that somebody is obliged to pay a tax is to show that people are taxing themselves. To put it in more specific terms, legitimacy is to be derived from the right to participate on equal terms in the process of deliberation and decision-making of tax norms2. If this right is honoured, not only would taxes have been decided according to a procedure that treats all taxpayers with equal concern, but it is possible to argue that there is a better than average chance that the outcome is substantively correct3. On the basis of the in-built tendency of democracy to produce correct results, in other words, on the basis of the epistemological privilege of democracy, one can assert the existence of a general obligation to pay taxes.
“The question is not whether those principles are new or old, but whether they are right or wrong”
Thomas Paine, The Rights of Man (II)
“Disengagement from practice produces theoretical hallucinations”
Richard Rorty, Achieving our country
“Discussion of standards should be encouraged; otherwise the arguments tend to become entangled with purely technical questions and the basic reasons for disagreement never become clear. Attention becomes unduly centred on one or a few taxes, to the neglect of promising alternatives. Some important standards tend to be overlooked entirely, and the relative weight to be given to different and possibly conflicting standards is scarcely thought of”
Roy Blough and Carl Shoup, A Report on the Federal Revenue System
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We have made clear that those are not only the ones in charge of quantifying and distributing the tax burden among taxpayers but also those concerning the process of implementation of tax norms, but that from a purely ‘political standpoint’, the most relevant ones are the former. See §§164
For the arguments on why we can “cash” consent into participation in equal and symmetric terms in the making of norms, see §§298–9.
In terms of public correctness, see §§305.
See Pateman (1970: chapters I and II). Against, Crozier, Huntington and Watanuki (1977).
As a matter of fact, the history of democracy is related to its unfolding at several points, as we have seen in chapter 3.
See §303.
See <u>STC 182/97</u>, dissenting opinion by judge Cruz Villalón.
This wider dimension of democracy is present in the attempts of people such as Joshua Cohen and Joel Rogers to design secondary associations as a guarantee of this process of filtering back. See Cohen and Rogers (1995).
9</sup> Rubio Marín (1998).
We can see some of the most recent cases on direct taxation brought before the European Court of Justice as bringing to the fore this sort of questions. See C-80/94, judgement of 11 August 1995, Wielockx and C-107/94, judgement of 27 June 1996, Asscher.
This requires spelling out the implications to be derived from the existence of a plurality of institutions, the practical need of reducing them to only a handful and the convenience of preferring territorial criteria to such effect.
It is a long time since the idea that only nationals and all nationals were to pay taxes. This is reflected in the tax liability of permanent residents and those related to the community through economic links, and the general tendency not to tax nationals that are abroad and have no economic link with their state.
This was already indicated by Griziotti (1929).
See Taxpayers suits as a means of controlling the expenditure of public funds (1937, 1276)</b>
See, for example, Nabais (1998).
Cf. the controversial judgment of the Corte Costituzionale in its judgment of January 30th, 1997. It concerned the constitutionality of holding a referendum on tax witholding at source.
See Levmore (1998).
US taxpayers can decide whether or not to use some dollars of their tax liability to the Presidential Election Campaign Fund, according to 26 USC § 6096 (1994).
That is the case with the mechanism contained in the Spanish Income Tax, which allows the taxpayer to allocate a percentage of her tax liability to the expenses of a religious confession or to general social purposes. Or with the mechanism contained in the Italian Income tax, which allows the taxpayer to decide which religious confession will get a percentage of her tax liability.
See Giardina (1961).
Marín Barnuevo (1996).
Knight (1967).
Cf. §§20–1.
Honoré (1987, 165): “I now list the standard incidents of ownership. They may be regarded as necessary elements in the notion of ownership, in the following sense. If a system did not admit them, and I did not provide for them to be united in a single person, we would conclude that it did not know the liberal concept of ownership, though it might have a modified version of ownership, either primitive or sophisticated. But the listed incidents, though they may be together sufficient, are not individually necessary conditions for the person inherence to be designated owner of a particular thing. As we have seen the use of ‘owner’ will extend to cases in which not all the listed incidents are present”. [my italic]. The key idea is that property is a bundle of rights.
Cf. §§244ff.
See §419.
Naveira (1997, 218ff).
Naveira (1997).
Judgment of 22 June 1995, BVerfGE 93, 121, at 136.
Cf. §§320ff.
Cf. Weinberger in MacCormick and Weinberger (1986, 217): “The probability of arriving at just decisions (at decisions in accordance with the law) can be maximised by a fair organisation”.
Cf. §§193–4.
But not only. Its impact is also quite clear in the qualification of tax laws on what regards the recognition of tax judgments according to the conflicts of law rules (private international law).
10 Dig. De jure fisci, XLIX, 14.
Antonius Peregrinus, “De juribus et privilegiis fisci”, quoted by Scailteur (1952, 335).
Cf. §163 and §§190ff.
Cf. §190. Cf. Rawls (1999a, 40), for a similar line of reasoning, concerning state powers on public security matters.
Cf. §187.
See Habermas (1996a, 150): “We can interpret the idea of the constitutional state in general as the requirement that the administrative system, which is steered through the power code, be tied to the lawmaking communicative power and kept free of illegitimate interventions of social power (i.e., of the factual strength of privileged interests to assert themselves). Administrative power should not reproduce itself on its own terms but should only be permitted to regenerate from the conversion of communicative power”.
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Menéndez, A.J. (2001). The Liberal Principles of Taxation. In: Justifying Taxes. Law and Philosophy Library, vol 51. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9825-5_8
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