Sophistry, Situational Ethics, and the Taxation of the Carried Interest

Jones, Darryll K. | January 1, 2009

This Article is, in essence, a strident expression of indignation about what a majority of tax scholars and, indeed, legislators consider a glaring yet persistent inequity in the tax code. In short, sometimes extraordinarily well-paid fund managers receive compensation taxed at capital gains rates. All other, usually very much lower-compensated, service providers are taxed at ordinary rates. The result is clearly regressive and yet, as of late, even some respected and knowledgeable scholars-though still in the minority-have unabashedly set forth sophisticated-sounding justifications. Objections based on unfairness, real, or even merely perceived, are difficult to express without a tone of indignation, particularly when the objecting party feels the inequity personally. Thus, the Article occasionally uses rhetoric that is specifically intended to indict as well as to disprove. One simply cannot argue in support of a patently offensive outcome without expecting a strident response, even if the responder strains to express that response with the same degree of dispassionate sophistry utilized by proponents of the inequity. Perhaps apologies in advance are in order. In any event, Section II provides a summary of the indignation and a roadmap to the rest of the Article.