Authors

• Orli Oren-Kolbinger, University of Oregon School of LawFollow

Keywords

Taxation-Federal, Law and Economics, Social Welfare Law, Public Policy, Income Distribution

Abstract

Constructive taxation reveals a mismatch between the redistributive objectives Congress claims to pursue and how tax administration is carried out. Procedural barriers allocate benefits through bureaucratic processes rather than on the basis of need or eligibility, reflecting implicit judgments about who deserves them. Low-income households must still file, even when the government already has the necessary information to determine eligibility. Examining this through Congress’s taxing and spending powers, the Article shows that refundable credits function as tax expenditures, using the tax code to deliver benefits while creating administrative burdens that resemble economic penalties. When procedural barriers prevent eligible taxpayers from receiving benefits, the tax system serves as both a tool for redistribution and a form of constructive taxation, potentially resulting in regressivity and exclusion that run counter to the aims Congress publicly invokes.

The Article proposes administrative reforms to bridge the tax-benefit gap, including automatic enrollment, prefilled returns, non-filer portals, and rethinking the link between eligibility and annual filing. Viewing these issues through the lens of constructive taxation offers a way to evaluate the efficiency, fairness, and effectiveness of tax-based social benefits. It provides a framework for aligning administrative practices with the redistributive commitments Congress asserts in public debate.

Recommended Citation

Orli Oren-Kolbinger, Constructive Taxation: How Filing Requirements Turn Tax Benefits Into De Facto Taxes, 21 FIU L. Rev. 77 (2026), https://doi.org/10.25148/lawrev.21.1.6.