Adam Chodorow, Death and Taxes and Zombies, 98 Iowa L. Rev. 1207 (2013), available at SSRN.
Taxes and brains—or rather, braaaaaaains—have always gone well together, but never quite like this. The income tax and the estate tax present intricate mechanisms for levying assessments on the living and the dead. In Death and Taxes and Zombies, Professor Chodorow turns his attention to the middle of this Venn diagram: the undead. The article reveals that Congress and the IRS have utterly failed to address this topic, creating significant uncertainty as to how the tax laws would apply in the event of a zombie apocalypse.
The article leads the reader through a series of ordinary tax and legal scenarios and applies them to extraordinary circumstances. How do states address the question of what it means to be legally dead? When does federal law trump state law for purposes of determining whether an inheritance has passed? What constitutes taxable income? What are relevant valuation dates when property is transferred, and how are the basis rules applied in the context of transfers from a decedent? What are the loopholes in the estate tax and the income tax? And more important, how do these rules apply to zombies?
For example, Professor Chodorow addresses the question of whether a zombie would be taxed on earned income. The issue turns on whether the zombie is dead and controlled by another, in which case agency rules should attribute this income collected by the zombie to his principal. Self-directed zombies, however, appear to be “individuals” and “taxpayers” under the Tax Code, despite the lack of specific mention (readers are referred to section 7701 of the Internal Revenue Code). (Pp. 1220-21.) Whether the income is properly considered “in respect of a decedent” raises additional wrinkles. Professor Chodorow marvels that the regulations are silent on the matter. (P. 1221).
The best thing about the article may be its biting sense of humor. (“If people who become zombies are considered dead for federal estate and income tax purposes, little will change. Becoming a zombie will be no different than dying from pneumonia, aside from the part where you eat your friends and loved ones.” (P. 1222.)) The “call to arms” tone of the paper is a subtle critique of overzealous academics who get carried away with their own importance. Not everything is an apocalypse.
It is likely, though, that the true strength of the article is as a teaching tool. The basics of tax law are important for students to learn, but can be dry and inaccessible. For students, the article is concise (about 25 pages), fairly comprehensive, and an easy and enjoyable read. It models good legal writing and citation support. It also teaches the value of creativity and considering transactions from different perspectives. I will be assigning it as part of the second day’s reading in my Estate and Gift Tax class this fall.
It takes really meaty brains to put together an article this unique. I can only hope no zombie reads the article and decides to feast upon Professor Chodorow.