Strategic Surrogates or Sad Sinners: U.S. Taxation of Bartering in Digital Services

The COVID-19 pandemic caused both a surge in technology use and a deterioration in government finances. At the same time, big tech companies are under scrutiny by lawmakers for tax avoidance, antitrust issues, and other concerns. These realities call for governments to reassess tax policy towards tech companies and for tech companies to reassess legal strategy towards taxes. State and federal governments’ tax bases are eroding because of the non-cash, barter nature of modern transactions. When a taxpayer uses “free” digital services like email, social media, or search engines, she pays via access to her personal data or attention. From a legal and policy standpoint, these barter transactions should be taxed just as if cash had changed hands, but because it is not practicable to identify, value, and tax the data and time of each user, they have escaped taxation, giving many tech companies an unintended tax advantage. To address this unfairness, this article proposes a surrogate tax, where the tech company acts as a proxy to pay the tax that is technically the liability of its users. In contrast to Digital Services Taxes (DSTs), which have been the main focus of policymakers and the extant literature, surrogate taxes adhere closely to standards of good tax policy, providing an administrable means of capturing untaxed digital barter while advancing fairness across the industry’s business models. From a legal strategy standpoint, this article argues that tech companies themselves should support surrogate taxes, to avoid facing more onerous, “sin”-like taxes, such as DSTs.