Hastings Law Journal


In her Article, Professor Kornhauser investigates whether couples share or pool financial resources. Although the result has legal implications in many areas-including divorce, trusts, and estates-the Article focuses on the income tax issue of whether the individual or the economic unit is the proper taxable unit. Currently, the Internal Revenue Code treats two individuals who are legally married differently than all other individual taxpayers in that the couple, not the individual, is treated as the taxable unit. An underlying premise of this system is that the married couple-and only the married couple-pools or shares income.

Professor Kornhauser explores the concept of pooling from a practical standpoint by examining several empirical studies-including her own-that address the issue of the allocation of financial resources between a couple. She finds that the premise of pooling is both under- and over-inclusive: Many married couples do not share all their income, and some unmarried couples do. She also considers contemporary family living arrangements and tax theory in connection with pooling. This focus on pooling sheds new light on the more commonly-asked questions about the joint return: Does it comport with theoretical concepts of income? Does it, and should it, promote family values? Is it justified by other concerns such as economic ones? The author concludes that taxation based on the individual better comports with reality, social policies promoting families, tax theory, and economic considerations.

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