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Monday, August 20, 2018

Tariffs: Taxes By Another Name 

It amuses me when someone who disagrees with a point that I make tries to classify me as an adherent of one or the other of the two competing ideologies that dominate American politics. Yet, as I pointed out in Tax Code Overuse, “When it comes to politics, I dine at the buffet. My focus is on the nation, principles, and policies, rather than on policies, caucuses, or individuals. It is not unusual for me both to praise and criticize the same organization or person.” I then provided an example, and today I provide another example of how I adhere to the principle that conclusions should be reached based on analysis and not on adherence to a particular person, party, or organization. On more than a dozen occasions I have shared a reaction to commentaries published by The Institute for Policy Innovation, and today I offer another. How will I react? The futility of trying to classify me is demonstrated by how I have reacted in the past. On three occasions (Let’s Not Extend The Practice of Tax Extenders, Yes, Tax Uncertainty Hurts, When Congress Dilly-Dallies on Tax Issues) I have agreed, on six occasions I have disagreed (When Double Taxation Doesn’t Exist, How Best to Describe the Use Tax Collection Issue? , The New Five-Year Plan? , So Why Are Workers Struggling? , Does Repealing the Corporate Income Tax Equal More Jobs? , Arguing About Tax Crumbs), and on six occasions I agreed in part and disagreed in part (Tax Code Overuse, Tax Collection Obligation is Not a Taxing Power Issue, It’s Not Just Taxes, Collecting An Existing Tax is Not a Tax Increase, Who’s to Blame for Tax Fraud? , Deducting Taxes: It’s Not the Subsidy). In some instances the disagreement was more a matter of articulation or finding the appropriate remedy to an agreed-upon problem than a rejection of the underlying concern.

A few days ago, in Who Pays Tariffs?, Tom Giovanetti offers an important analysis of how tariffs work and what the recently imposed tariffs will do to Americans and the American economy. Giovanetti points out that in the past, tariffs were a major source of federal tax revenue, that tariffs have been in place for decades, and that until recently, U.S. tariffs were significantly lower than those of the nations with which the U.S. trades. He points out that tariffs on goods imported from a particular country are not paid by citizens or residents of that country but by the Americans who purchase those goods, because the importer passes the tariff along as part of the price charged to consumers. On all of these points, he is correct.

Giovanetti argues that the tariffs imposed by the current Administration aren’t designed to raise revenue, but to increase the cost of imported products so that American consumers will shift their purchasing decisions from those items to their equivalents manufactured in the United States. He notes that this shift also has the effect of raising the prices charged by domestic manufacturers. Tariffs, he concludes, hurt American businesses and American consumers. On all of these points, he is correct. He doesn’t mention that in some limited instances the tariffs might be helpful to a particular American company or its workers to the extent the shift in purchasing decisions increases that company’s sales and profits, though those increases might be offset by the increased costs the company faces when it purchases components and supplies and that its workers face when making their consumer purchases. In sum, this omission isn’t a flaw in his explanation, but a detail that probably has no meaningful impact on the analysis.

Giovanetti describes the “national security” justification presented by the current Administration for its tariff decisions as “an embarrassing fiction.” Of course it is. And when he argues that “any discussion about tariffs should at least be informed by an accurate understanding of who actually pays,” he is spot on.

Giovanetti characterizes the tariff as a tax, specifically, a border tax. It is. In some ways, the word “tariff” is less offensive to some than the word “tax.” It is not unlike a sales tax or a value added tax. And it falls on the person purchasing the item subject to the tariff, just as a sales tax or value added tax falls on the consumer.

Tariffs are not the path to improving the American economy. There is a place for tariffs, but those instances are limited and often should be of short duration. Giovanetti is correct. The current flood of new and increased tariffs is helping no one who needs help.

Friday, August 17, 2018

Indeed, Check Your Withholding, and Do It Now 

Almost two weeks ago, in The Realities of Income Tax Withholding, I discussed the extent to which the revised withholding tables will cause taxpayers to owe tax, or receive smaller refunds, in early 2019. I explained:
My guess is that the number of taxpayers who need to pay more in April will be more than 21 percent. There have been claims that the Administration and certain members of Congress want ordinary taxpayers to think that the 2017 tax legislation significantly benefits them, even though more than 80 percent of the tax breaks in the legislation accrue to large corporations and wealthy individuals. What better way to do this than to increase take-home pay through reductions in tax withholding? Happy wage earners will react in November, and then, in March and April, discover that some, perhaps all, of that extra take-home pay was nothing but a temporary boost in cash while they scramble to come up with money to pay the tax due on their returns. When this claim was raised in December, the Secretary of the Treasury called it ”another ridiculous charge." Tell that to the people who will be writing checks in March and April. But tell them now, or in September, or in October, when this information will be more valuable to them. Learning this in early 2019 will be too late.
I suggested. “Check your withholding and your estimated tax payments. Or have a tax professional do that for you. Figure out what will happen next March and April if you do nothing. Then make adjustments to minimize the pain of early 2019.”

A week after my commentary and suggestion appeared, the IRS offered its opinion. In a news release issued on August 13, the IRS offered this advice:
The IRS urges taxpayers to complete their “paycheck checkup” now so that if a withholding amount adjustment is necessary, there’s more time for withholding to take place evenly throughout the year. Waiting means there are fewer pay periods to withhold the necessary federal tax – so more tax will have to be withheld from each remaining paycheck.

Adjusting withholding can prevent taxpayers from having too little tax or too much withheld. Too little withheld could result in an unexpected tax bill or penalty at tax time in 2019.
In another news release, issued the next day, the IRS elaborated, pointing out that taxpayers with income primarily from sources other than wages, taxpayers with complex returns, and taxpayers with higher incomes also should check their withholding.

The IRS urged taxpayers to run the computations “soon,” advice which makes good sense. The longer taxpayers wait to adjust withholding, the fewer paychecks remain to absorb the changes. To this I will repeat my recommendation that the computation be done before November so that taxpayers can get a much better understanding of what tax “reform” and tax “reduction” is doing for them. In too many instances, it will be much less than expected. In some instances it won't even be a reduction, but an increase.


Wednesday, August 15, 2018

The Wrong Type of Tax Education 

It’s no secret that I support education. Education is the antidote to ignorance, and ignorance is the fertilizer of undesired and unpleasant consequences. Education comes in many forms, ranging from the informal activity of watching and learning as someone works on a project to attendance at lectures in large auditoriums. If a person studiously focuses on the educational process, the person learns at least something and often learns quite a lot.

There is a risk, of course, in supporting education. Without a qualifier, the word education also includes learning how to do things that ought not be done. It’s no secret that one of the flaws of the prison system is that first-time offenders learn from experienced criminals how to polish and perfect their lawbreaking skills. The internet abounds with instructions for creating evil devices and pursuing wicked activities.

So even though it ought not have come as a surprise to me when I read what was revealed in this news story, I indeed did stop and shake my head when I came to one particular aspect of the report.

Put briefly, a woman in North Carolina entered a guilty plea to a charge that, along with others, she prepared 519 false tax returns, generating $1.3 million in unjustified tax refunds. The woman was a co-owner of a tax return preparation business. She also was affiliated with another tax return preparation business. She and the other individuals created false information for their clients about a variety of items affecting tax liability computation, running the gamut from income and deductions to credits. They told their clients to write false information on tax forms and other documents to generate fake records that were used in preparing the returns.

Now comes the kicker. The woman held training sessions for employees of the tax return preparation businesses to teach them how to, according to court documents, “manipulate the information on clients’ tax returns to maximize the clients’ tax returns.” It’s one thing for education to be flawed because the instructor is inadequately trained, or doesn’t understand the material sufficiently, or lacks communication skills, or demonstrates a lack of interest in one or more of the topics. That’s lamentable, but it’s not intentionally evil. The only good news is that she was caught, and will go to jail. The bad news is that she may end up teaching the other inmates how to file false tax returns. That is why it is so important to maximize the number of Americans provided with quality tax education.

Monday, August 13, 2018

Defending the Indefensible Tax Idea: A Reflection on Tax Policy Ignorance 

A week and a half ago, in Tax Hogs at The Tax Trough, I criticized the proposal that Treasury, independent of Congressional action, index adjusted basis for purposes of computing taxable gains. Of course, I was not alone in lambasting the proposal. Similar, and additional, reasons to reject the proposal were raised by the Tax Policy Center, other law professors, the New York Times, New York Magazine, and numerous other commentators who understand the realities of tax policy.

Of course, it wasn’t long before the defenders of increased wealth and income inequality stepped up to defend the indefensible. Consider the arguments made by Ryan Ellis of the Center for a Free Economy. He argues that because one-fourth of capital gains reflects inflation, that increasing adjusted basis to reflect inflation is justified. Of course it would be, but for the fact that special low tax rates on capital gains reflect intent to offset the inflation element of the gains. When income, in the form of capital gains, is taxed at zero, 15, or 20 percent, and ordinary income is taxed at rates as high as 37 percent, it is obvious that those special low capital gains tax rates offset inflation by much more than inflation. Ellis, unhappy with the portrayal of this proposal as a handout to the wealthy, which, of course, it is, tries to demonstrate that the proposal would assist “normal, middle-class Americans.” His examples include sales of long-held residences by married couples that generate more than half a million dollars in gains, farmers who sell land held for decades, retired individuals selling stocks, and collectors of various memorabilia. As I pointed out in my earlier commentator, I’m all for indexing adjusted basis, provided that, in turn, the special low capital gains tax rates are abolished. When someone argues that because inflation exists they ought to get both special low rates and basis indexation, I return to the vision of tax hogs at the tax trough. And, of course, for every dollar of capital gains that a middle-class taxpayer would escape with indexation of basis, the wealthy escape hundreds, if not thousands, of dollars of gains. Once again, advocates of making the wealthy wealthier think that throwing crumbs to the peasants justifies serving rich pastries to the engorged.

Ellis asks, “If a child buys a toy in 1980 for $5 and can sell it today for $100, why can’t they use the $5 number in today’s inflation-adjusted terms ($16) instead when figuring gain on the sale?” The answer is simple. The $95 of gain is taxed, if at all, at no more than 20 percent, rather than at 37 percent. A fair tax system would required the toy seller to compute gain of $84, using indexed basis, and then pay tax at regular rates on the $84. It’s obvious why the special low capital gains rate structure, rather than basis indexation, was selected by investors when the tax policy debate was framed decades ago. But now, having made their choice, they’re back to grab both. Oink, oink.

And consider the thoughts expressed in the anonymous Washington Examiner editorial. The writer argues, “It’s a bit of a stretch to describe indexing of capital gains to inflation as a tax cut.” There is no question, at least among those who understand taxation, that indexing basis will reduce the tax liabilities of those who sell assets with indexed adjusted basis. A reduction in tax liabilities is a tax cut. Tax cuts exist not only when tax rates are reduced, but when exclusions, deductions, or credits are increased, and when gains, or other inclusions, are reduced. The anonymous writer tries to defend the absurd claim that a tax reduction is not a tax cut with this gem: “True, people will owe less in capital gains taxes as a result, but that's because the federal government will no longer use fake gains to take real money away from them.” I’m all for removing fake gain from the tax base provided the advocates of inflation-indexed basis agree to remove fake tax rates from the Code. Why do I call those special low capital gains rates fake? Because once fake gains are removed from the definition of income, then income is income from whatever source derived, and ought to be taxed at the same rate whether it arises from the sweat of labor or the winnings from playing the lottery or the stock market. The anonymous writer gives a silly example, writing, “ If you buy a stock at $20 and it grows to $30, but $8 of that gain is because of inflation, 80 percent of your gain is notional, not real. Why should you be taxed on $10 when you only made $2?” The answer is simple. First, rarely, if ever, would 80 percent of the increase in stock growing by 50 percent be on account of inflation. Second, under present law, the practical effect of the special low capital gains rate is to tax only a small portion of the $10 overall gain. Of course, using realistic numbers would demonstrate that special low capital gains rates removes the inflation portion of gain from taxation. The anonymous writer claims that “Envy never looks good once it's stripped of its camouflage of concern for fairness.” Somehow this writer wants people to think that grabbing both special low rates and indexed basis is fair. I wonder if this writer thinks it is fair when someone takes a second helping from the buffet table before others even get their first go at the buffet.

These supporters of double dipping by the wealthy are either ignorant of the history of how gains are taxed or are deliberately failing to provide a complete explanation in the hope that keeping people ignorant of reality will increase support for a foolish, dangerous, and unjustifiable idea. The fact that this idea is getting traction among the acolytes of the wealthy proves, once again, that education is valuable because education dispels ignorance. Too few people have been educated with respect to tax policy. It’s time for that to change.

Friday, August 10, 2018

Who Can Bank on Those Tax Breaks? 

My criticism of the 2017 tax legislation as a sloppily-drafted, terrible-for-most-Americans giveaway to the oligarchs is no secret. I have written about the flaws of that legislation in posts such as Taxmas?, Those Tax-Cut Inspired Bonus Payments? Just Another Ruse, Getting Tax Cut Benefits to Those Who Need Economic Relief: A Drop in the Bucket But Never a Flood, Oh, Those Bonus Payments! Much Ado About Almost Nothing, More Proof Supply-Side Economic Theory is Bad Tax Policy, Arguing About Tax Crumbs, Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans, Yet Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans , Is Holding On To Tax Cut Failures Admirable Perseverance or Foolish Stubbornness?, and What’s Not Good Tax-Wise for Most Americans Is Just as Not Good for Small Businesses.

Now there is more evidence that the tax breaks created by the 2017 tax legislation are doing much more for the oligarchy than they do for the vast majority of Americans. According to this newly released Bloomberg report, banks which received an average of almost $400 million in tax cuts for the first half of 2018 eliminated 3,200 jobs. The tax legislation was sold on the promise that tax cuts for big corporations would create jobs, and presumably good jobs. So what was done by the 23 banks classified by the Federal Reserve as “most important” do? They didn’t create jobs. They didn’t leave their workforces intact. They eliminated 3,200 jobs. Several of the banks defend their actions by pointing out that employees fortunate enough to retain their jobs received pay increases, though for most of the banks the portion of revenue going to employee compensation declined from the previous year.

Perhaps these banks increased the loans they make to individuals and small businesses so that consumer demand would increase and small business hiring would increase. Both of those things would stimulate the economy and contribute to genuine job growth. Though they increased loans, by 0.9 percent, they did so at one-half the rate of lending growth a year earlier, before the 2017 tax legislation was enacted. Put another way, those tax breaks handed out by the 2017 tax legislation to these banks caused lending growth to decline. Banks are offering the excuse that their customers don’t need to borrow because they have received their own tax cuts. Tell that to the people who continue to struggle with debt, who continue to delay home purchasing, or who cannot afford the basic necessities of life, but who are either turned down when they apply for a loan from these banks.

What did these banks do with their tax breaks? They have indicated they will increase dividends and payouts by more than $28 billion between now and the middle of next year. I wonder how many of those 3,200 individuals who lost their jobs are looking forward to getting some part of those dividend payout increases.

Oddly, a significant minority of Americans continue to praise the 2017 tax legislation. Though a tiny percent are happy because the are reaping most of the benefits, the vast majority of those worshipping the 2017 tax legislation are unaware of what looms ahead for them when the bubble breaks. By the time they realize they’ve been conned, by the time they realize even more wealth and income has shifted away from them, by the time they realize that blame for their economic and other woes has been misdirected, it will be too late. Even if, by then, their eyes are opened and their minds change, it will be too late.

Wednesday, August 08, 2018

When It Pays to Pay for Use Tax Collection Work 

I have been writing about the collection of use taxes on internet transactions for more than fourteen years. I started with Taxing the Internet, and continued with Taxing the Internet: Reprise, Back to the Internet Taxation Future, A Lesson in Use Tax Collection, Collecting the Use Tax: An Ever-Present Issue, A Peek at the Production of Tax Ignorance, Tax Collection Obligation is Not a Taxing Power Issue, Collecting An Existing Tax is Not a Tax Increase, How Difficult Is It to Understand Use Taxes?, Apparently, It’s Rather Difficult to Understand Use Taxes, and Counting Tax Chickens Before They Hatch, A Tax Fray Between the Bricks and Mortar Stores and the Online Merchant Community, Using the Free Market to Collect The Use Tax, and A Better Understanding of Sales and Use Taxes Can Enrich the Discussion.

My last post on the topic brought a response from a reader who shared his experience
:The small companies I have audited would prefer if the sales taxes were charged on the items they get from out of state. It would save them time and wages, from not having to go through the invoices to pay the use tax owed.
After considering this observation, two thoughts found space in my brain. The first made me wonder whether two different sales/use tax systems would be better, one for small companies that make online purchases and one for individuals. It is much more difficult for small companies to avoid use taxes than it is for individuals. So, yes, in terms of having the vendor figure out the use tax liability and collect it does spare the small company the cost of compliance. On the other hand, most individuals find it easier to escape paying their use tax obligations, because states lack the resources to go after individuals other than those making out-of-state purchases of registered items such as vehicles and boats and because putting a use tax line on state income tax returns isn’t very effective. Given the choice, most individuals would prefer that the vendors not collect the use tax, because that translates into escaping the use tax. The second thought made me think that support by small companies for having out of state vendors do the computation, collection, and payment work that spares the small companies from the effort and resources they would need to expend in order to file use tax returns strengthens the argument I continue to make that states ought to be compensating out of state vendors for doing that work. Some states do compensate in-state vendors for collecting sales taxes, though I doubt that the amount of compensation covers the cost of computing, collecting, and remitting the sales tax.

It’s unfortunate that states and non-resident vendors did not deal with this issue through negotiations as I have suggested but let the issue end up in the Supreme Court. Vendors have lost much of the position of strength that they would have had in negotiating the issue. All is not lost, however. Considering how desperate some states have been to bring business into their domain through tax breaks and other incentives, might it not make sense for some vendors to write off low population states, or states where their products and services are in low demand, by refusing to sell to consumers whose zip codes are within those boundaries? Put another way, should vendors tell states, “If you want your residents to have the opportunity to purchase what we sell, pay us to do your use tax collection work.” Those who disagree might theorize that competitors would jump in to fill the void, but the overhead of installing use tax collection processes which deters the existing vendor is an even steeper obstacle for the newcomer. As much as small companies making purchases from out-of-state vendors might be happy paying the use tax to the vendors, those vendors might not be very happy, and individuals with neglected use tax obligations will continue to ignore use tax filing unless and until the vendors from whom they purchase collect the use tax. Smart governors and state legislators know that it makes more sense to work out deals with out-of-state vendors than to try to club them over the head with a Wayfair hammer. What better way to induce out-of-state vendors to do the state’s use tax collection work rather than refraining from selling to residents of that state than to pay the vendors for doing the work?

Monday, August 06, 2018

The Realities of Income Tax Withholding 

For decades, taxpayers whose income comes from wages have paid their income taxes not by waiting until filing their returns but through withholding by their employers. How does an employer know how much to withhold? The employee tells the employer his or her expected filing status and how many withholding allowances the employee is claiming. Those allowances were based on the number of personal and dependency exemptions the employee expected to claim and the amount of itemized deductions the employee expected to claim. The employer then used tables, more recently incorporated into software, provided by the Department of the Treasury.

That changed in December when the 2017 Tax Cuts and Jobs Act was enacted. One of its changes was to set the personal and dependency deduction amount to zero. Because the withholding tables provided by Treasury used the personal and dependency deduction amount, which was adjusted each year for inflation, the existing withholding tables would not work for 2018 withholding. So the legislation gave the Treasury discretion to compute a withholding allowance based on other factors. There was concern that changes in withholding based on new allowance amounts would not generate the proper amount of withholding. Several members of Congress requested the Government Accountability Office to examine what Treasury did with respect to withholding. The GAO did so and issued a report.

In its report, the GAO explained that Treasury officials described Treasury’s goal in adjusting the withholding allowance amount as increasing the accuracy of withholding. Treasury set the withholding allowance at $4,150, which is what it would have been had the 2017 legislation not been enacted. Treasury claimed that no other amount that it tested was better at reaching Treasury’s goal of increasing the accuracy of withholding. Though Treasury officials described the process of determining the amount, they did not provide to the GAO any documentation of the process, claiming that it was “routine and straightforward,” even though federal internal control standards require agencies to document their processes. The GAO reported that the Treasury’s description of simulations that it performed included a conclusion that the new withholding tables would increase to 21 percent the percentage of taxpayers with insufficient withholding. In other words, taxpayers who will discover, during the 2019 tax filing season, that they owe more taxes. How many taxpayers are included in the 21 percent? Thirty million.

My guess is that the number of taxpayers who need to pay more in April will be more than 21 percent. There have been claims that the Administration and certain members of Congress want ordinary taxpayers to think that the 2017 tax legislation significantly benefits them, even though more than 80 percent of the tax breaks in the legislation accrue to large corporations and wealthy individuals. What better way to do this than to increase take-home pay through reductions in tax withholding? Happy wage earners will react in November, and then, in March and April, discover that some, perhaps all, of that extra take-home pay was nothing but a temporary boost in cash while they scramble to come up with money to pay the tax due on their returns. When this claim was raised in December, the Secretary of the Treasury called it ”another ridiculous charge." Tell that to the people who will be writing checks in March and April. But tell them now, or in September, or in October, when this information will be more valuable to them. Learning this in early 2019 will be too late.

Yes, there always have been taxpayers whose withholding is insufficient. The point is, there now will be more. There also are taxpayers who will discover that although they do not owe more taxes, their expected refunds will be less than what they were hoping or planning to receive. Of course, taxpayers can do pro forma 2018 tax returns now, figure out their tax liability, divide it by the number of pay periods, and then reverse engineer the withholding tables to figure out how many withholding allowances to claim, as I described ten years ago in It’s Time to Adjust Withholding, But Can You Do the Calculations?, and Getting More Specific with That Withholding Question. Most people are unwilling or unable to do that. Nor should people be required or expected to put themselves through that laborious process. Of course, I have, year after year. But I’m not most people.

But, people, be forewarned. Check your withholding and your estimated tax payments. Or have a tax professional do that for you. Figure out what will happen next March and April if you do nothing. Then make adjustments to minimize the pain of early 2019. But remember, in November, where you would have been and who put you there.

Americans have been warned. Are they listening? Will they pay the price?

Friday, August 03, 2018

A Self-Designed Tax Shelter That Failed 

When people try to avoid or evade taxes, they often become creative. Tax creativity is good if it works, and is a nightmare when it fails. A recent case, Grainger v. Comr., T.C. Memo 2018-117, demonstrates how not to design a tax shelter. The taxpayer, a retired grandmother fond of shopping, developed what she called her “personal tax shelter.” When she learned that taxpayers generally may claim a charitable contribution deduction equal to the fair market value of donated property, she concluded that the fair market value of a retail item is the price at which the retailer first offers it for sale. So the taxpayer decided to purchase items that were “heavily discounted” from the original price on the sales tag and to donate those items. Her reasoning caused her to conclude that if a $100 item went on sale for $10, she could pay $10, donate the item, claim a $100 deduction, and save more than $10 in taxes.

The taxpayer started using her self-designed tax shelter in 2010. She reported non-cash charitable contributions of $18,288. In 2011, she claimed $32,672, and in 2012, the year in issue, she claimed $34,401. In the two following years, which were not in issue, her claimed deductions rose to $40,351 and $46,978. That’s a lot of shopping.

The items that she donated in 2012, for which she claimed a non-cash charitable contribution deduction of $34,401, cost her $6,047, consisting of $2,520 in cash, and $3,527 in store “loyalty points.” The items were described by her on Forms 8283 as dresses, jackets, and other clothing.

The IRS denied all but $2,520 of the claimed deduction, concluding that the taxpayer’s method of determining fair market value was not a qualified method. On appeal, the IRS increased the deduction to $6,117, mostly by including the loyalty points. It’s unclear why the $6,117 exceeded the $6,047 outlay. Thereafter, the IRS issued a notice of deficiency and the taxpayer filed a petition with the Tax Court. The IRS moved to reduce the allowed deduction by $3,527, arguing that it had erred when it included the loyalty points in the allowed deduction, but the court denied the motion because it was untimely and would prejudice the taxpayer.

The Tax Court denied the taxpayer’s claimed deductions in excess of what the IRS had allowed. It did so because the taxpayer had failed to obtain a qualified appraisal, required because the clothing items, when grouped together as required, exceeded $5,000 in claimed value. The Forms 8283 that the taxpayer had attached to her return were not executed by an official of the donee organizations. In addition, the court held that the taxpayer had not obtained the contemporaneous written acknowledgments. The court then explained that even if the taxpayer had provided the required substantiation, her claimed deduction would be disallowed because she did not use a qualified method for determining fair market value. The court pointed out that fair market value of an item is not the price at which a retailer initially offers the item for sale. The fair market value is the price for which the item was transferred from the retailer to the purchaser, which was the amount the taxpayer had paid. And, the court added, even if the taxpayer could establish that the fair market value of the items exceeded what she paid for them, because she donated them shortly after purchasing them, she would be required to reduce the deduction by the amount of gain that would not be long-term capital gain had the taxpayer sold the items for the claimed fair market value.

One of the many symptoms of the current tax law’s sickness is the ease with which the wealthy can enter into tax shelter arrangements that are unavailable to taxpayers of much lesser means. Tax shelter promoters, whether hawking legitimate or not-so-legitimate deals, turn their attention to the wealthy, in part because it doesn’t pay to offer $10 tax shelters, in part because investment regulations block people of modest means from most private offerings, and in part because the wealthy are in a better position to cause the enactment of legitimate tax shelters in the tax law that are feasible only for those with sufficient funds. It is not surprising that a retired grandmother, whose income from the facts appears to have been quite modest, would engage in a creative but misguided scheme to reduce her tax liability.

Wednesday, August 01, 2018

Tax Hogs at The Tax Trough 

It ought not be shocking that the folk who pay lower federal income tax rates on their incomes than typical middle-class Americans do are back asking for even more tax reduction. Yet there is some degree of shock, and most certainly disgust, at the extent to which the greed of the oligarchs and their acolytes permeates their every thought, word, and deed.

What are they up to this time around? It’s the Capital Gains Inflation Relief Act of 2018. Not unexpectedly, its advocates claim that passage would fire up the economy and bring all sorts of economic benefits to those most in need of economic assistance. Nonsense. That sort of trickle-down policy does not work, has never worked, and yet continues to bamboozle enough Americans that they line up to vote for the very people who are making their lives miserable.

The legislation would index the adjusted basis of some capital assets for inflation. What’s wrong with that? In and of itself, nothing. The problem is that the special low rates paid by investors on their investment income, rates lower than what wage earners pay on their salaries, have been justified by the lack of inflation adjustments to offset the portion of capital gains that reflect inflation rather than real income. Indexing adjusted basis for inflation makes sense, but only if the special low rates are repealed.

Many years ago, in Capital Gains, Dividends, and Taxes, I explained how this would work:
The advocates of low (or no) capital gains taxation claim that they are being taxed on "phantom" income because some of the gain represents adjustments in price that reflect inflation. They point out that adjustments for inflation exist in the tax law for a wide variety of items (for example, the personal and dependency exemption amount, the standard deduction, the cut-offs for the phase-out of various deductions and exclusions, etc.) But they overlook the fact that the tax rate schedules themselves are adjusted for inflation. Not good enough, they reply.

The answer, therefore, is simple. Make an inflation adjustment to the basis in the asset being sold. Capital gain reflects the difference between the net selling price and the amount invested ("basis") in the asset. So if T buys stock for $100 and ten years later sells it for $400, T has capital gain of $300. If T is in the 30% marginal bracket, T pays tax of $90 on the gain. But T argues some of the gain reflects inflation. How that justifies taxing T at a rate of 5% or even (as the advocates admit is their goal, zero percent) is impossible to understand, let alone accept. Why should T's tax on the gain be $15 or $0? Let's assume that during the 10-year period in question inflation was 35% (that's roughly 3% a year compounded). What makes sense is to let T adjust the basis from $100 to $135. Then T's gain would be $265 ($400 minus $135). Taxed at 30%, T would have a tax liability on the capital gain of $79.50. That's lower than $90 but not near the unfathomable $15 or $0 that T thinks is "fair."
But as I pointed out several years ago, in Special Low Tax Rates Hurt the Economy and Thus the Nation, the goal of the oligarchs is not fairness, but tax oppression:
Advocates of special low tax rates for capital gains have one sensible argument, an argument that is inapplicable to dividends. To the extent that the gain reflects increases in value of property that mirror inflation, taxing the gain would be taxing non-real income. The solution, of course, is to index adjusted basis for inflation. There are dozens of places in the tax law where amounts are indexed for inflation. It’s not a new concept, it’s something easily done, and it solves the problem cited by the advocates of special low tax rates for capital gains. So why do they push that solution aside? The answer is that it would not permit real gains to escape taxation at the same rate that wages are taxed, and the advocates of special low tax rates for capital gains and dividends are intent on taxing labor at higher rates. Why? It’s not difficult to figure out that taxing labor at high rates and investment income at low rates speeds up the growth of income inequality and shuts down the upward mobility that tax-cut and tax-elimination advocates claim is their goal.
So now the advocates of wealth and income inequality have decided, considering the current political atmosphere and the accelerating pace of middle-class destruction, that it’s time to stop pushing aside the indexed-adjusted-basis approach, and to adopt it, not in substitution for unwarranted low and zero tax rates on the oligarchy, but in addition to those tax breaks. Apparently, the grab-all-the-plates-you-can-and-stuff-yourself-at-the-tax-break-giveaway-buffet-while-shouldering-the-small-fry-out-of-the-way bonanza has reached fever pitch. It’s too bad there are so many Americans who do not understand how the tax system works, who do not give themselves the opportunity to look at tax forms and tax returns to observe the discrepancies in how people are treated, and who do not understand the extent to which they are being snookered by a group of self-centered greedy money addicts, who in the process of feeding their addiction are destroying the nation.

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