Friday, June 28, 2013

How I Ended Up Teaching Tax (and Other Things): Part VI 

After I graduated from high school and entered college, I continued to tutor high school students in several subjects. These students were neighbors attending the same high school as I had attended.

My teaching style evolved, in part because I was refining my approach to reflect my college classroom experiences, and in part because I had a better sense of what was required to do well in the courses being offered at the high school.

Because I was attending college in the same general area as I had grown up, I was able to split my time between the college campus and my parents’ home. It was time-consuming, but by that point I had decided that teaching was something in which I was interested pursuing on a more permanent basis, and it made sense to me to invest the time to build up experience.

Though I did not realize it at the time, I was increasingly using techniques that I would later encounter in law school. I refrained from simply delivering information and encouraging memorization. I focused on helping students find patterns of thinking, sequences of analysis, and arrays of comparative contrast.

Wednesday, June 26, 2013

How I Ended Up Teaching Tax (and Other Things): Part V 

High school brought another opportunity to teach. Two thoughts coalesced in my mind. One was that I enjoyed teaching. The other was that it would be helpful to get a head start learning Latin while in eighth grade. That combination of ideas triggered a visit to the convent. I volunteered to teach Latin to the eighth grade students who wanted to get a jump on what was then the entry-level Latin class.

So once a week, for about half of the academic year, I made my way back to my elementary school and taught very basic Latin to a small group of students. Most of these students had finished their classwork for the day and were waiting for the school bus to return to take them home on the second or third trip of the afternoon for the school bus and driver. I conducted the sessions as a regular class, with assignments, quizzes, and a final grade. I didn’t try to cover much, but wanted to give the students enough of a familiarity with Latin so that they did not approach their ninth-grade class with deep anxiety.

Monday, June 24, 2013

How I Ended Up Teaching Tax (and Other Things): Part IV 

By the time I reached high school, I had learned to pipe down in the classroom, though I wasn’t in it all that much by the time I was in eighth grade. It was good that I had learned some degree of self-control, because the European order of priests and lay teachers constituting the faculty of my high school would tolerate no misbehavior. At all. But they also were quite sharp, and quickly figured out that I wasn’t learning anything in Latin I. They asked questions, I answered. They made two decisions. First, I was not going to cruise through Latin I, but would, in addition, study other languages. Second, I would be given the opportunity to become a Latin tutor.

Tutoring other students worked out well for me, and, I think, the students. I learned that teaching on a consistent one-on-one basis is different from standing in front of a group of students in a classroom. I learned that a one-size-fits-all lesson plan would be a waste of my time and the student’s time. I also, for the first time in my life, earned money from teaching. It helped finance my subsquent education.

I remember a few of the names of the students I tutored. There are others whose names escape me but I remember where some of them lived. Most of them were one, two, or three years behind me. I wonder if they remember digging through Latin texts while I looked over their shoulder. I wonder if learning Latin helped them as much as it has helped me. I hope so.

Friday, June 21, 2013

How I Ended Up Teaching Tax (and Other Things): Part III 

My next foray into teaching also has its roots in the struggles that the elementary school teachers encountered trying to deal with me in the classroom. It wasn’t that I was disrespectful, or lazy, or inattentive. I talked too much. Surprise.

Just as I’m confident that the nuns talked among themselves about their students, I’m also very confident that they shared their tougher challenges with the pastor. One day, in fifth grade, I was summoned to the principal’s office to meet with the Rev. Joseph Kane, a brilliant, well-educated, determined, no-nonsense, good priest. He put me to work. I was to study Latin, I was to catalogue his library (which had remained in boxes for the half-dozen years or so since he had been appointed), and I was to learn to be an altar boy sooner than usually was the case.

It wasn’t long before Fr. Kane decided that he could save himself some time by shifting altar boy education from himself to yours truly. Now I needed to learn to be organized, to adapt instruction to the particular learning speed of each trainee, and to be on top of the various topics that were involved. For the curious, the topics included Latin, liturgy, and logistics. The logistics included learning about vestments, candle-lighting, incense, and Mass preparation. And as I was doing this, my education continued, as I was invited and permitted to study from seminary texts, but that’s a totally different thread that has very little to do with this series about becoming a law professor.

Wednesday, June 19, 2013

How I Ended Up Teaching Tax (and Other Things): Part II 

My earliest memory of engaging in teaching activities takes me back to fourth grade. It’s possible that I was teaching before that time. Surely I had fallen into the habit of explaining things to people long before I was nine years old. But if I was doing any sort of teaching in those earlier days, no one in the family has ever mentioned it. I’m confident, though, that if I had been teaching, someone in the family would have said something about it by now.

My fourth-grade teaching experience originates in the challenges I posed to my elementary school teachers. I knew the answers, I was bored, and I wanted to help my classmates. So it was not unusual for me to give the answer to get a classmate off the hook. The teachers were unsure what to do. The teachers who were nuns gathered for lunch and dinner in the convent, and my guess is that at one point my fourth-grade teacher made some sort of comment or request for advice about an annoying, rarely silent, but intelligent youngster. My guess is that one of the eighth-grade teachers, a nun with a reputation of being tough, said, “When you’ve had enough of him, send him to my classroom.” And so she did.

One day, after I had blurted out answers to a series of questions, Sister Mary Josetta sent me off to one of the three eighth-grade classrooms. I remember being greeted by Sister Anna Marita with something along the lines of, “So you think you’re smart? Let’s see what you know.” I was first asked to give what could be described as a lecture on world geography, a topic not in the curriculum for the first four grades. After I did an overview of the continents, the various countries, and their capitals, the teacher invited the students to quiz me about geography. Not fourth-grade geography. Eighth-grade geography.

There’s a twist to the story. My older brother was in that class. He and his friends were delighted with the chance to go after “Eddie Maule’s little brother.” So out came the questions. And I dished back the answers. I was having a grand time. The questions became increasingly technical. I was asked to name the principal products of various countries, to select from a list of several randomly named countries the one with the largest land areas, to provide the names of mountain ranges and lakes, and to describe a variety of other things within the scope of geography.

When I returned to the fourth-grade classroom, I was asked to give a report on what had transpired in the eighth-grade classroom. I did. I mentioned that I had enjoyed the experience. So it was not long before I made another journey to visit the eighth graders. Though I do not remember how many times I did that, I do remember the subject matter changing from geography to history, arithmetic, and a few other things.

Two things stuck with me, aside from my discovery that being in the front of the room was much more fun than sitting at one of the desks. First, from that time forward, my brothers’ friends treated me with a strange sense of awe not often bestowed on younger children. Second, the boys grilled me and the girls pretty much remained silent.

Monday, June 17, 2013

How I Ended Up Teaching Tax (and Other Things): Part I 

Every once in a while, someone asks me how or why I ended up teaching tax, or teaching in a law school. There are two versions of the story. The short one, and the long one. When I provide the short version, follow-up questions generate the long version. Today I begin a short series in which I provide the long story. And when the question is posed to me in the future, I can respond with the short version and then point the questioner to MauledAgain.

The stories I share are about me. There’s probably more to the answer, lurking somewhere in my genetic ancestry. Descendants of my ancestor Thomas Maule of Salem, Massachusetts, are disproportionately represented in what I call the “expressive” careers, such as preaching, teaching, lawyering, acting, and writing.

Friday, June 14, 2013

Potholes: Poster Children for Why Tax Increases Save Money 

On several occasions in the past, I have tried to make the point that the cost of stopping tax increases can exceed the tax increase thereby avoided. In Liquid Fuels Tax Increases on the Table, I wrote, “Leaving gasoline taxes at their current levels guarantees more bridge collapses, and pothole-caused front-end alignment repair costs that will take more out of motorists’ pockets than the proposed tax increases.” I made the same point in You Get What You Vote For, when I predicted that “front-end alignment spending will skyrocket past the small amounts that would have been paid if the [highway repair tax funding] proposal had been enacted.” In Zap the Tax Zappers, I explained why tax evaders need to face the consequences with these words, “Lest this be thought too rough, think of the person who dies when their vehicle hits a pothole and goes out of control, a pothole not repaired because of revenue shortfalls and spending cuts triggered by the actions of a group of people who refuse to pitch in and fulfill the obligations of citizenship.”

Now comes news from the United Kingdom that the cost of damage caused by potholes exceeds the cost of fixing the potholes. One-third of drivers belonging to the Automobile Association reported that their vehicles had been damaged by potholes.

In Los Angeles, according to this report, city council is considering a plan to repair potholes that are causing an average of $750 each year on car repairs for each driver. A proposed increase in real property taxes would cost property owners $35 per $100,000 of assessment. The problem, of course, is that some homeowners don’t own vehicles, but all homeowners rely on someone’s vehicle to take them places or to deliver goods and services to them. So which is better, $750 a year in car repairs or $35 in additional real property taxes per $100,000 of assessed value? My guess is that most people think, “Oh, my car won’t be damaged by potholes.” And in the United States, the chances of getting governments, that is, other taxpayers, to pay for front-end alignments, or worse, are very low.

By failing to increase taxes or road charges to deal with potholes, the U.K. government has left itself open to paying damages that cost far more than those taxes or road charges. Eventually, taxes will need to be raised to fund the payments being made to those whose vehicles are damaged by potholes. It isn’t rocket science to figure out that by successfully blocking tax increases, the anti-tax folks have succeeded in generating increases in government spending, thus requiring increases in taxes or increases in deficits. Those two outcomes are situations that the anti-tax folks claim to dislike, so the ultimate conclusion is that the anti-tax folks are working at cross-purposes with themselves. That comes as no surprise to me. Hopefully it comes as a wake-up call surprise to those seduced by the pied piper claims that people save money when they pay fewer taxes. The choice is easy to understand. Pay a little bit now or pay much more later.

Wednesday, June 12, 2013

Reactions to “Parents to Children: Be a Lawyer, Marry a Lawyer” 

My recent post, Parents to Children: Be a Lawyer, Marry a Lawyer, generated a response from a reader. He sent me several links, including Marry a Lawyer? Proceed With Caution. In that commentary, Dr. Fiona Travis answers her own question in the affirmative. She asked, “Do lawyers really have problems building and sustaining relationships?”

Dr. Travis notes that it’s not a matter of lawyers lacking relationship-building skills, but that because they are “overworked, overburdened and squeezed by time,” they “exhibit communication and intimacy breakdowns peculiar to their education, their professional training and work environment.” She explains that “the same traits that bring lawyers success in the workplace also interfere with their achieving meaningful, intimate relationships in the home.”

There is one point made by Dr. Travis with which I quibble. She notes that “The biggest obstacle is the so-called lawyer personality. . . . And it’s not something that happens only after a lawyer passes the bar. It goes all the way back to law school, where one learns to argue, cross examine, stonewall, delay, outwit, and avoid showing weakness to opposing counsel.” My disagreement is that the factors she lists as part of the so-called lawyer personality – “ambition, narcissism, skepticism, defensiveness, perfectionism and the need to be in control” – are not learned in law school. They are part of the individual who arrives in law school. Law school polishes those traits, it sometimes helps a person understand that they have one or more of those traits, it does little to mitigate the impact of those traits, but it’s not as though law school can take someone who does not have the so-called lawyer personality and replace their character with another personality. Think of how many times when interacting with one’s child or another youngster that an adult mutters, “It wouldn’t surprise me to see this one in law school someday.”

These and the other thoughts shared by Dr. Travis in her article are worth reading. Who should read? Lawyers, of course. And the people who teach lawyers. But perhaps, in light of the survey results discussed in Parents to Children: Be a Lawyer, Marry a Lawyer, the parents who want their children to marry lawyers. It is possible, Dr. Travis explains, for lawyers to learn to be more than lawyers.

Also coming my way was a link to Low-Divorce Jobs. The post links to a spreadsheet that ranks the rate of divorce among 512 professions, occupations, and careers. The post also contains a similar list compiled for the year 1900. Lawyers aren’t even on the 1900 list. But they are on the 2010 list. There are 70 professions, occupations, and careers with higher divorce rates than the lawyer rate. But to return to a concern I mentioned in Parents to Children: Be a Lawyer, Marry a Lawyer, should we translate divorce rate into the inverse of a “happiness rate”? I think not. All sorts of factors influence divorce rates, and unhappiness is but one.

The bottom line is that parents ought not suggest that their children marry someone of a particular occupation, height, ethnic background, or eye color. They ought to be suggesting that their children be concerned about how a person’s honesty, dedication, perseverance, kindness, and how the person treats others, to mention but a few of the things that truly matter.

Monday, June 10, 2013

Code-Sized Ignorance Discussion Also Is Growing 

It started with Bush Pages Through the Tax Code?, and continued with Anyone Want to Count the Words in the Internal Revenue Code?, Tax Commercial’s False Facts Perpetuates Falsehood, How Tax Falsehoods Get Fertilized, How Difficult Is It to Count Tax Words, A Slight Improvement in the Code Length Articulation Problem, and Tax Ignorance Gone Viral, Weighing the Size of the Internal Revenue Code, Reader Weighs In on Weighing the Code, and Code-Size Ignorance Knows No Boundaries. Several readers have been sharing reports of erroneous assertions with respect to the size of the Internal Revenue Code.

Another report can be added to the list. It is troubling because of the source, as was the case with the reports discussed in Code-Size Ignorance Knows No Boundaries.

It consists of what CCH calls The Tax Law Pile Up. It’s a graphic that purports to show the number of pages of tax law. Unfortunately, as I have pointed out in previous posts, the 70,000-plus pages include not only tax law but substantial amounts of annotations, commentaries, charts, indices, and similar helpful guides that do not constitute law. CCH surely has the resources to share the number of pages of code and the number of pages of regulations without producing a misleading report on a lumping together of dissimilar items.

A glimmer of hope showed up, however, when Kelly Phillips Erb commented on the CCH release, in Keeping Up With IRS: Tax Updates On Twitter, Facebook And More. Rather than referring to the 70,000-plus pages as “the tax law” or “the Internal Revenue Code,” Kelly wisely referred to it as “CCH Report downloads.” And that is the correct characterization of the 70,000-plus pages. CCH reports. Not the Internal Revenue Code, though the Code is a small part of the 70,000-plus pages. Not “the tax law,” although some tax law is within the 70,000-plus pages. Kelly does refer to the pages as being 11 by 8.5 inches though the CCH reports are printed on pages smaller than that.

At the rate that the erroneous claims about the size of the Internal Revenue Code are growing, it won’t be long before reports about the size of the Code exceed the size of the Code, and eventually exceed the absurd 70,000-plus page claim. Would it not be so much better if the folks who have fueled the misinformation come forward, admit their mistakes, correct the record, and turn their energies into something more productive? They face one of the few times where admitting a mistake does not risk arrest, litigation, imprisonment, job loss, or eviction. To the contrary, the tax world will bestow respect on those who can put aside the ignorance.

Friday, June 07, 2013

Parents to Children: Be a Lawyer, Marry a Lawyer 

The results of a new survey by the blog lawyers.com reveals some surprising or perhaps not so surprising perspectives. The survey disclosed that 64 percent of parents “hope their children will grow up to pursue legal careers,” and by legal careers, the occupation of attorney – and not for example, legal secretary or paralegal – is what is contemplated.

What is surprising is that at a time when J.D. graduates are pounding the pavement and beating the bushes looking for employment there are people, and a lot of people, who want their children to join the tens of thousands who are unemployed law school graduates. Perhaps what is unspoken is the sense by many of these parents that although there are troubles in the market place, some graduates are finding jobs, and their children surely will be among those who get jobs because their children are, well, special.

What is not surprising is that many parents want their children to be lawyers. In fact, many parents push their children to be lawyers even when the child does not want to be a lawyer. Having taught thousands of law students, and having met parents at 33 graduations, I have heard on more than a few occasions the words, “We’re [or I’m] so glad [insert name] is a lawyer,” while watching the student cringe. In some instances I already knew that the student was not reaching his or her potential because he or she did not really care that deeply about law study. In a feeble attempt at being diplomatic, I did not say, “Your child is not yet a lawyer; there is the small matter of a bar exam.” I could not bring myself to tell them the stories of law graduates who did not sit for the bar examination, not because they wanted a legal education to enhance another profession, but because they did not care to be a lawyer.

The survey also revealed what I consider to be an anachronism, but perhaps I’m missing something. Of the mothers who were surveyed, 55 percent expressed interest in their children marrying attorneys. Yet only 38 percent of fathers shared that view. Is it a matter of bragging rights? I’ve heard plenty of people brag about their children. Goodness, I’ve done that. I’ve also heard people brag about the fact that their child married a person of a particular profession. Perhaps it’s a matter of having someone in the family to do the estate planning, handle the real estate settlement, or defend someone charged with a crime. At a discount, I suppose. I thought we had moved past characterizing someone by the occupation of a spouse and were concerned more with caring about someone being in a happy relationship.

What the survey does not disclose is whether lawyer is the favorite occupation desired by parents for their children, or by mothers as the career of potential children-in-law. Turning again to my anecdotal experiences, it seems that putting someone into medical school comes first, with law school as the destination of the second child, or the first one if medical school is beyond reach. Perhaps not much has changed, other than the details, from the days when the first son inherited the land, title, or business, the second went to the military, the third went to the church. I wonder how many of those children were happy about where they ended up.

Wednesday, June 05, 2013

Code-Size Ignorance Knows No Boundaries 

For almost nine years, I have been trying educate people about the size of the Internal Revenue Code. Trying to eliminate the woeful ignorance that spews forth from politicians and clueless commentators is challenging and frustrating. Learning that even tax professionals can’t get it right is downright disappointing. As Joe Kristan pointed out, “That '70,000-page tax code' really bugs him.” Yes, it does. My annoyance with the continued repetition and dissemination of grossly erroneous claims about the size of the Internal Revenue Code has been shared in a series of posts, starting with Bush Pages Through the Tax Code?, and continuing with Anyone Want to Count the Words in the Internal Revenue Code?, Tax Commercial’s False Facts Perpetuates Falsehood, How Tax Falsehoods Get Fertilized, How Difficult Is It to Count Tax Words, A Slight Improvement in the Code Length Articulation Problem, and Tax Ignorance Gone Viral, Weighing the Size of the Internal Revenue Code, and Reader Weighs In on Weighing the Code.

The latest group of erroneous Code-size claims to come to my attention is particularly troubling. Journalists, tax professionals, and even a tax law professor can’t get it right.

In The Tax-Code Mess, Chris Edwards, associated with the Cato Institute, asserted that the “total quantity of federal tax rules is gigantic” and that CCH “collects all the paperwork in one volume, and it currently spans 73,608 pages.” When Andrew Sullivan commented on Edwards’ post, one of Sullivan’s readers criticized Edwards’ 73,608-page claim. He wrote, “The ‘tax rules’ do not span 73,608 pages . . . The standard CCH edition of the Code is 5,500 pages long, but that is highly misleading. That volume is targeted at tax practitioners and includes old statutory provisions that have been repealed or revised.” Edwards was offended. In Tax Complexity: Am I a Liar?, Edwards offered this rejoinder: “I don’t understand why people make such snarky comments when they clearly haven’t done their homework. . . . Now, about those “lies.” CCH itself publicizes the data I used showing federal tax rules spanning 73,608 pages. The CCH folks have been publishing information on federal taxation since 1913, so they know what they are talking about. Note that I said tax ‘rules’ not tax ‘code.’ The total rules that tax practitioners have to take into account are lengthier than just the code and regulations, and that’s what the broader CCH publication captures.” Good try, Mr. Edwards, but here is some homework review for you. The 73,608 pages in the CCH publication contains not only “rules” but also huge amounts of material that do not qualify as rules, such as annotations, obsolete and amended provisions, commentary, planning tips, visualizations, citation histories, and a variety of other useful information that are simply not rules. Chris Edwards is an economist, who serves as Director of Tax Policy Studies. As a tax professional, he owes it to his readers to understand the difference between rules and things that are not rules.

In The Irony Of An Internet Tax That Demands Simplification, Steven Malanga not only tells his readers that the Internal Revenue Code contains nearly 4 million words, but also calls it the “IRS code.” If someone with as extensive a resume as Malanga, associated with the Manhattan Institute, can’t get it right, who will? And how much confidence should anyone place in anything else that is being asserted? As someone writing about tax issues, Malanga owes it to his readers to get it right.

From P. J. O’Rourke in Taxes Are a Fraud!, we get the news that according to the Government Printing Office, the Internal Revenue Code fills 16,845 pages. To that claim, someone submitted a comment stating that O’Rourke was wrong because the Code fills 72,000 pages. So, doing the research that someone apparently did not do, I went to the GPO website and downloaded the Internal Revenue Code. This version also contains substantial annotations, including amending acts and other extraneous information. The number of pages is 3,837, not 16,845, and certainly not 72,000. Take out the material that is not part of the Code and that 3,837 number shrinks quite a bit.

From Frank Gillispie comes this quip: “But I recently found a statistic that boils my blood. Did you know that the Internal Revenue Service now has 73,554 pages of rules and regulations about our taxes?” Where did you find this “statistic,” Mr. Gillispie? Any chance of a link? And, did you know that the “rules and regulations” come from Congress and the Treasury Department? And that 73,554 pages claim? That includes all sorts of material that doesn’t qualify as a rule or as a regulation. As a journalist, you owe it to your readers to do more than pass on misinformation.

In 3.8 Million and Counting: The Complexity and Wordiness of Tax Law, Marjorie Gell, a tax law professor at the Thomas M. Cooley Law School, repeats Tax Advocate Nina Olson’s claim that the Internal Revenue Code contains 3.8 million words. She concludes it would take 212 hours of reading, at 300 words per minute, to get through the Code. As I pointed out in Tax Ignorance Gone Viral, Olson’s conclusion reflects some sort of number that ignores reality. It most likely was generated not by Olson but to an underling to whom she assigned the task. All one needs to do is to obtain a copy of the Code itself, examine it, and figure out it does not contain 3.8 million words. The annotated Code, which comes in at roughly 2,000 pages, would need to have 1900 words per page in order to reach the 3.8 million mark. But let’s face it, anyone who has read the Code cover to cover, as I have on several occasions, knows that it takes far fewer than 212 hours. That alone is a huge clue that something is wrong with the 3.8 million claim. Every tax professional needs to read the entire Internal Revenue Code, at least once in his or her professional career. Yes, it’s long. No, it doesn’t take 212 hours.

There are those who wonder why I persist in criticizing ignorance, especially on the part of tax professionals. Three things come to mind. First, if we tolerate, and thus enable, ignorance on something this simple, we will end up tolerating ignorance on more serious issues. Wait, we already are. Ignorance is an infection, and if it is not confined and eliminated, it spoils entire systems. Second, many of the people making these outlandish claims are doing so to emphasize the fact that the Code is a mess and the tax law needs to be fixed. I agree that the Code is a mess and needs to be repaired, but making ignorant claims in support of the position weakens the credibility of those advocating tax reform. The outlandish claim suggests that there is little confidence on their part that they can succeed if they stick to the facts. One can show the mess that the tax law has become without dishing out ignorant statements. Third, if we fail to stand up to ignorance, we let despair triumph over hope. Once upon a time, almost everyone in Europe was convinced that the world was flat, and that someone sailing west would fall off the edge. Once that foolishness was disproven, somehow we arrived at the point where almost everyone knows that the world is a globe. If we can remove flat-earth ignorance from 99.999% of the world, we surely can remove the 70,000-page Internal Revenue Code ignorance. And we ought to do so, before ignorance becomes the defining characteristic of the species.

Monday, June 03, 2013

Does a Mandatory Compensation Deduction Reduction Make a Credit Mandatory? 

On Friday, I described some of The Tax Woes of a Corporation Owned by an Indian Tribe. Specifically, in discussing Uniband, Inc. v. Comr., 140 T.C. No. 13 (2013), I described the corporation’s failure to convince the Tax Court that it was tax-exempt and its inability to file a consolidated return with the tribe that owned it.

Another issue was presented to the court. The corporation claimed a deduction for all of the compensation that it paid to its employees. The corporation did not claim any general business credits, including the section 45A Indian employment credit. The IRS concluded that the corporation was entitled to that credit, reduced by the section 38(c) credit limitation. Accordingly, under section 280C(a), the IRS reduced the amount of the corporation’s compensation deduction by the amount of the section 45A credit. The reduction in tax liability caused by the credit was less than the reduction in tax liability caused by claiming all of the compensation as a deduction rather than the reduced amount of the compensation.

The corporation raised two arguments in opposition to the IRS position. First, it argued that the section 45A credit is not mandatory. Second, it argued that if a reduction in the compensation deduction were appropriate, the reduction should be the amount of the credit after application of section 38(c)(1) and not the gross amount of the credit before application of section 38(c)(1). It is the first argument that most interests me.

Six years ago, in No Thanks, Uncle Sam, You Can Keep Your Tax Break, I addressed the question of whether deductions and credits are mandatory or optional. I concluded that they are optional, unless there is specific statutory or other authority reaching the opposite conclusion with respect to a specific deduction or credit. In this case, the Tax Court’s specific holding was that the corporation’s compensation deduction must be reduced, under section 280C(a), by “that portion of the wages or salaries paid or incurred for the taxable year which is equal to the sum of the credits determined for the taxable year under sections 45A(a), . . .” The Court emphasized that the key word is “determined” and that it means something other than claimed, allowed, or allowable. The Court pointed out that section 45A itself does not “allow” a credit, but simply provides for an “amount . . . determined” which in turn is part of the section 38(a) general business credit. The Court also pointed out that other elements of the section 38(a) general business credit, in other words, other credits, are permissive.

Technically, the issue was whether the compensation deduction should be reduced under section 280C(a). The answer clearly is that it must. That issue, however, is a different issue from whether the section 45A credit must be claimed. In this instance, the corporation, compelled to reduce its compensation deduction, relented and accepted the use of the credit because at that point there was no advantage in forgoing the credit. Perhaps under other circumstances, a taxpayer will reduce the compensation deduction and yet conclude it is better off not claiming the credit. The Uniband decision does not prohibit taking that return position. It simply mandates the reduction of the compensation deduction.

Interestingly, the corporation pointed out that it would have been better off, tax-wise, if it had hired fewer Indians. The Court agreed. The corporation also pointed out that because Congress intended the section 45A credit to encourage the hiring of Indians, the Court’s interpretation of section 280C(a) conflicted with that Congressional purpose. The Court, however, explained that because the language of section 280C(a) is unambiguous, the intent of Congress is overshadowed.

Once again, better drafting by the Congress would have better served this corporation, and Indian tribes generally, but once again, the statutory framework is unnecessarily self-conflicted. If the goal is to maximize Indian employment, then taxpayers ought to be given the flexibility necessary to make that goal attainable. Worse, one wonders why the Congress insists on using the tax code rather than direct spending grants to encourage its goal of maximizing Indian employment. The cynics would answer that it permits Congress to spend money while claiming that it is reducing taxes and not spending money. And I would agree.

Newer Posts Older Posts

This page is powered by Blogger. Isn't yours?