The "Ability to Pay" as a Fundamental Right: Rethinking the Foundations of Tax Law

Abstract

This article starts by arguing that the ability to pay, as a tax law principle, has a meaning of its own, separate from political or economic considerations of vertical and horizontal tax equity. It then presents three different conceptual meanings of this principle. Each meaning has tremendous importance depending on context: whether it is in the law-making process, the administrative application of tax law, or the moment of judicial interpretation. The essay also summarizes the positions which are skeptical of treating the ability to pay principle as a fundamental right.