Do Black Taxpayers Matter? A Critical Tax Analysis of IRS Audit Practices


The Earned Income Tax Credit, a federal anti-poverty program administered through the tax system, provides a total of about $65 billion a year in “refundable credits” (a payment in excess of tax liability) to more than 25 million working low-income taxpayers, who receive an average of about $2000 (the precise amount depends on their number of dependents).  Its complex eligibility rules produce persistently high error rates, which are in turn used to justify high audit rates and a grossly disproportionate share of IRS enforcement activity.  Because of the small dollar amounts involved, EITC audits are not lucrative, although they are also not terribly costly (as most are conducted by correspondence and not contested).  EITC audits are pre-refund, forcing poor taxpayers to wait months even for the undisputed portion of what they claim.  Those who are audited are deterred from claiming it again; some mistakes can disqualify taxpayers from receiving it in future years.  Given all this, perhaps it is not surprising that the EITC is underclaimed (about 20% of the eligible do not claim it).

Making matters worse, despite the formal race-neutrality of the Internal Revenue Code and all IRS policies and practices, EITC audit practices have grossly racially disparate effects.  America’s poorest, Blackest counties are audited at some of the very highest rates.  Black EITC claimants, and especially Black single fathers claiming the EITC, are the likeliest taxpayers in America to be audited.  Recent work by economists has confirmed what many critical tax law scholars have long suspected: that the same systematic racial inequities long identified and decried in the allegedly race-blind criminal justice system afflict the tax enforcement system as well.

This Article breaks new ground by using critical theory, the work of Michel Foucault, Critical Race Theory, and intersectional analysis to help understand and interpret empirical data about the EITC and IRS EITC audit practices that otherwise defy explanation – not only do the complex and punitive features of the EITC produce racially disparate impacts, but also expend scarce IRS resources on pointless EITC enforcement.  This analysis unearths the role played in tax policy and tax enforcement by the very same persistent anti-Black stereotypes that have distorted both criminal justice and American welfare policy: myths about Black laziness, criminality, promiscuity, and family dysfunction.  The Article also reveals the inadequacy of tax law casebook coverage of this issue, which generally either ignores it or, worse, perpetuates the same damaging stereotypes.


Stanford University Stanford, CA
  • Diane Kemker, Do Black Taxpayers Matter? A Critical Tax Analysis of IRS Audit Practices, 20 Stan. J. C.R. & C.L. 133 (2024).