There are powerful fairness and efficiency arguments for making charitable donations to soup kitchens 100% deductible. These arguments have no purchase for donations to fund opulent church organs, yet these too are 100% deductible under the current tax code. This stark dichotomy is only the tip of the iceberg. Looking at a wider sampling of charitable gifts reveals a charitable continuum. Based on sliding scales for efficiency, multiple theories of fairness, pluralism, institutional competence and social welfare dictate that charitable deductions should in most cases be fractions between zero and one. Moreover, the Central Limit Theorem strongly suggests that combining this welter of largely independent criteria with the wide variety of charitable gifts results in a classic bell-shaped normal curve of optimal deductions, with a peak at some central value and quickly decaying to zero at the extremes of 0% and 100%. Given that those are the only two options under the current tax code, the current charitable deduction regime inevitably makes large errors in most cases. Actually calculating a precise optimal percentage for each type of charitable donation is of course impractical. This Article suggests, however, that we can do much better than the systematically erroneous current charitable deduction. Granting a 100% deduction only for donations to the desperately poor, along with 50%, 25%, and 0% for gifts yielding progressively fewer efficiency, fairness, pluralism, and institutional competence benefits, promises to deliver a socially more desirable charitable deduction.

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22 Theoretical Inquiries in Law 285-334 (2021)


Written for the conference Legal Discontinuity at the University of Tel Aviv Buchman School of Law (December 2019).

The final publication is available from De Gruyter at https://doi.org/10.1515/til-2021-0011.

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