Identifying Illegal Subsidies
UVA Law Faculty Affiliations
This Article argues that current methods for identifying illegal tax subsidies trigger the well-known conceptual difficulties of tax-expenditure analysis. To avoid these problems-particularly the irresolvable conflict over the correct baseline for measuring tax expenditures and tax subsidies-this Article advocates the "internal consistency test" as a superior method for identifying illegal subsidies. Developed by the U.S. Supreme Court to evaluate the compatibility of state taxes with the dormant Commerce Clause, the internal consistency test easily can be adapted to the subsidy context.