ARTICLE
Tax or Welfare? The Administration of the Earned Income Tax Credit
Lawrence Zelenak* 
52 UCLA L. Rev. 1867

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Abstract

The earned income tax credit (EITC) is a transfer program aimed primarily at low income working parents, administered by the Internal Revenue Service (IRS) as part of the federal income tax. Although generally tax-like in its administration, in substance it resembles nontax antipoverty transfer programs, such as Food Stamps and Temporary Assistance for Needy Families (TANF). In recent years, Congress has become concerned about EITC overpayments, and the IRS has responded by emphasizing EITC compliance more heavily than compliance with other aspects of the income tax – an emphasis that has been strongly criticized by advocates for the working poor. This Article compares the vigor of EITC enforcement with the vigor of overall federal tax enforcement and also with the vigor of welfare (Food Stamps and TANF) enforcement, along a number of dimensions. It concludes that the level of EITC enforcement lies between the low level of the rest of the income tax and the high level of nontax transfer programs, but that it lies considerably closer to the income tax end of the enforcement spectrum. Most significantly, the administration of the EITC resembles that of the rest of the income tax, and differs from that of other transfer programs, in that it is generally based on self-declared eligibility rather than on a bureaucratic determination of eligibility prior to the making of payments. The Article considers possible explanations for the differing enforcement practices, suggesting that the greater tolerance for tax underpayments than for welfare overpayments may be attributable to the phenomenon of “everyday libertarianism.” It also suggests that the treatment of the EITC as more tax-like than welfare-like is due to “protective coloration” derived from its placement within the Internal Revenue Code, a placement that is an accident of history. Finally, it argues that the historical accident is a happy one, as tax-based administration of the EITC, on balance, produces superior results to those that would be produced by welfare-based administration.


* Pamela B. Gann Professor of Law, Duke Law School.

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