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Publication Date

2019

Abstract

Proponents touted the Tax Cuts and Jobs Act (the
TCJA)—enacted in the twilight of 2017—by claiming it
would help American working families. But while the
TCJA expanded some benefits available to parents with
dependent children, these parental tax benefits may be
claimed regardless of whether or to what extent
childcare costs are incurred to work outside the home.
To help working parents with these (often significant)
costs, Congress might have turned to two other
mechanisms in the tax law—the “child and dependent
care credit” and the “dependent care exclusion.” While
these childcare tax benefits are only available to working
parents that pay for childcare, stringent limitations
have kept many from recovering anything near their
actual costs, particularly in the critical years before
children reach school-age. As a result, the Code was
taxing families with different childcare needs
inequitably. And because the TCJA left these childcare
tax laws untouched, it did nothing to address this
problem. By exploring critical junctures in their
development, this Article seeks to understand how
America’s tax laws have (d)evolved in this manner and,
in doing so, situates some of the TCJA’s alleged reforms
into their historical context.
America’s childcare tax laws have not always been so
limiting. In the seventies and eighties, the Code evolved
significantly to allow working parents to claim relief for

a relatively substantial portion of their childcare costs,
resulting in more equitable taxation of family models.
But in the decades following this evolution, Congress
generally failed to adjust childcare tax benefits—even
for inflation—allowing them to devolve in real value as
childcare costs rose. Meanwhile, Congress created new
and expanded existing tax benefits available to all
parents even if they did not need childcare. Thus, over
the past several decades, Congress not only restored but
also perpetuated the inequitable taxation of different
family models that had been remedied by earlier
reforms. The changes made by the TCJA are, therefore,
just the latest iteration of a decades-old trend.
In addition to revealing that the TCJA was a tepid if
not specious attempt to address the working family’s
plight, this history raises broader questions of political
feasibility. This Article identifies several factors such as
increased legal complexity, sophistic political rhetoric
and changed normative expectations to explain the
electorate’s seeming apathy to our childcare tax laws’
(d)evolution. Using this context, this Article argues that
even modest changes to our childcare tax laws, while
incapable of enacting systemic changes on their own,
could nevertheless enact historically significant reform
and revive dormant debates about the role the American
government should play in supporting parents.

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