MauledAgain

"We will not raise payroll taxes to solve this problem."

That's what the President said this morning in response to a question as he took questions from reporters after meeting with advisors with respect to Social Security reform. Up to that point, the President had emphasized the need to publicize the scope of the problem (something like $11 trillion of unfunded liability), had spoken favorably of opitonal participant investment alternatives, and had emphasized that he "would not prejudge any solution."

Well, he prejudged the "raising payroll taxes" solution. Does that mean he will oppose removing the cap on the retirement portion of the payroll tax as it was years ago removed for the medicare portion? Or is he simply advocating no increase in the tax RATE?

Well, if raising taxes is precluded, what's left?

1. Decreasing the absolute dollar amount of benefits.

2. Changing the benefit cost-of-living increase from one based on wage increase percentages to one based on the consumer price index.

3. Postponing retirement age.

4. Decreasing benefits for those who retire before a selected age, such as 70 or 72.

5. Trying to find a way to increase the rate of return earned by the investments made by the program's trustees with the excess funds generated by taxes exceeding payouts, for the short period of time during which those excess funds will continue to exist before being used to deal with the shortfall that will arise when payouts exceed taxes (which is expected to happen in about 10 years or so).

Each of these choices has disadvantages and the first four will deeply antagonize current beneficiaries and those nearing retirement. The fifth is appealing, but unrealistic. It had its origins in the 1990s when stock market return rates eclipsed safer investments such as certificates of deposit and, of course, government bonds (the rates on which pretty much indicated the rate of return earned by the investment of the excess social security funds, as the government pretty much borrowed from social security to solve its cash flow and deficit problems). But the bubble of the 1990s is over, it was transitory, illusionary, and misleading, and getting similar returns involves what all high returns require: acceptance of risk. Once that is understood, the fifth choice will find itself no less opposed than the first four.

There is a sixth choice. Maybe this is where things will go. I call it "LET'S PUT THE I BACK IN FICA." That's right, social security is an insurance program. That's what the I in the acronym FICA represents. Most Americans do not know this. They've been sold the "entitlement" theory on social security just as they have been sold the entitlement theory on everything else (such as "interstates are free, so end the tolls on the turnpike" idea I discussed yesterday). Once the program is accepted as the insurance program it was intended to be, that is, a program designed to assist retirees whose pensions were lost in the Great Depression, then it is easy to fix things. A needs test is imposed, which would remove from the social security benefits rolls those folks whose pension and other income is more than sufficient to meet their needs.

The "it's my money" perspective, sold for decades by politicians as a means of gaining elective office, is incorrect. Taxes paid into social security are no more the payor's money than are insurance premiums paid to the insurance company. Other than life insurance, which is designed as an investment, people don't want to collect from their insurance company (at least not in the absence of fraud). Social security has not been managed as an investment, and thus the comparison to life insurance is inappropriate. Social security has been managed as one big PONZI scheme. If you or I did that, we'd be committing a crime. As with all Ponzi schemes, push has come to shove. Party's over.

It's not going to be easy to sell the correct fix. Those for whom social security was a windfall (because they didn't need it) will be perceived as "lucky" by those who will be denied the opportunity for the same sort of windfall. The destruction of the "it's my money" argument, resting on the proposition that for all but those who die shortly after starting to receive benefits the amount received exceeds the amount paid in, won't sit well with the entitlement crowd. The advertising motto "I want it, I deserve it" reflects a philosophy that permeates post-modern culture, and sells us short because it leaves out "I earned it."

Ironic that social security could become the force that destroys post-modern culture and perhaps the nation that, at least in part, has embraced it. The theories crash on the rocks of reality. So, difficult as it will be to sell the correct fix, failure to do so poses risks far beyond those presented by dishing out some honest and tough talk from the high halls of federal government.

In yesterday's post aboutturnpike tolls, I described the turnpike as I-76. Former student, Graduate Tax Program adjunct, and friend Ryan Bornstein was on it in minutes. After joining in singing the praises of E-Z Pass, he noted that the Turnpike is I-276 (east-west) and I-476 (Northeast Extension). I-76 is the Schuylkill Expressway. A few years ago, they redesignated the numbers. I-76 had been the Turnpike from the Ohio border to the Expressway Interchange and then it followed the Expressway, leaving the rest of the turnpike as I-276 (from Valley Forge to the New Jersey border). When the "Blue Route" was designated I-476 they extended that designation through the Northeast Extension (which had been Route 9).

Wow, it's almost like the amendment of the tax law. So I should have gotten it right. I drive those roads often enough.

Ryan's email inspired me to reflect why I wasn't "up" on the route numbers the way I am with tax code sections. Simple. I deal with local route numbers the way some folks deal with tax law: forget the numbers. Locals call the Schuylkill Expressway by that name, or just Expressway (or some others, the only one of which I can print is Surekill Crawlway). The Blue Route is so-called as it has been so designated on the planning books since before my late father was born (and the Green, Yellow, and Red Route alternatives didn't make it). Some people even call Lancaster Pike "the Pike" (which is very confusing even to locals who aren't very local, because in my hometown 10 minutes away "the Pike" is West Chester Pike).

It gets tough for the visitors who listen to traffic reports that talk about places such as the Blue Route, or things like backups near the Conshohocken Curve. I had a taste of this some years ago when I went to visit my sister and brother-in-law in North Quincy, just south of Boston, and heard traffic reports about a backup near the tank. WHAT TANK? My brother-in-law explained, "That tank," as he pointed out the window of their condominium to an artfully painted storage tank. "Everyone knows the tank." Well, I do now. And, of course, I didn't know how to get around the backup at the tank. Now, with GPS, well, that's another topic. Someday.

So I suppose that the same energy that compels me to require students to cite Code sections ought to encourage me to remember route numbers, especially when giving directions to out-of-towners. As for the traffic reporters, who have 30 seconds in which to provide 3 minutes of information, how else to describe the Conshohocken Curve? Oh, for those interested, its a place on the Expressway where the road curves almost 90 degrees in a short distance. It has a mile marker, but I have no idea what it is, and most folks aren't aware of mile markers in urban areas.

Leave it to two tax lawyers to get all numbered up about routes. Anyone want to guess where I-676 is? (And, hey, notice that the interstates near Philadelphia have "76" in the number, as in 1776, as in Declaration of Independence? Almost as good as tax trivia!)

I've devoted several postings to the "mistake" involving the insertion into the appropriations bill of language permitting staff of the appropriations committees to examine tax return information without privacy safeguards. First, I described what happened, then I described how it became a major problem, and finally I described the post-mortem analysis of the problem. The bill finally has been signed, after the Congress passed a resolution negating the inserted language.

So?

Does that mean this is the last posting on the subject?

No.

The particular incident probably won't be the subject of any more in-depth discussion. But the incident, first described as a "mistake" and then as a problem, isn't a mistake and isn't a problem. IT IS A SYMPTOM.

The problem remains.

The problem is how Congress conducts its business. The incident was a symptom.

A problem is not solved by alleviating the symptom. Treating a symptom without treating the problem not only makes additional incidents likely, it can let the problem grow until the symptoms are worse and ultimately untreatable.

But, in the ways of Washington, now that the "problem" has been fixed, oops, I mean, now that the symptom has been alleviated, there's little spotlight value in the issue. So the talk of "the system is broken" will fade into the soundbite archives, until the next time.

One of these days the next time could be the last time. And I don't mean in terms of "problem solved." I mean in terms of problem so bad that its ultimate impact is catastrophic.

Congress, do your duty. Fix it. Now.

As if Congress will listen to me. Hah.

In his Philadelphia Inquirer column this morning [free subscription site], Jeff Brown gives some advice on the timing of retirement, and then notes that his examples omit other factors, such as working while pulling down social security benefits and taxes. He notes: "It seems like a raw deal, but Social Security benefits are subject to tax if....." He describes the "if" clause well enough and sensibly suggests consulting a "good tax guide."

I am pleased Jeff used the verb "seems" because it does SEEM to be a raw deal. But it isn't, at least for those other than the unfortunate folks who die before getting any benefits or who die shortly after starting to receive benefits (assuming that they leave no survivors who get something).

Here's why. For the typical social security beneficiry, benefits exceed what the person has contributed. The amounts contributed by the employer were not taxed when the employer paid the employer's share of the social security tax. Earnings were not taxed. To the extent someone receives more than he or she has paid in, the person has gross income that is taxed just as the portion of a pension that represents what the person has not paid into the pension plan is taxed.

The current tax law computation for social security is inaccurate, in contrast to the pension computation, which is pretty precise. But even with the drawbacks of the "rough estimate" approach of section 86, and aside for the few folks who don't have survivors and who get little or nothing from social security because they die "too soon," the taxation of social security is NOT a raw deal.

Yesterday, John Grogan's Philadelphia Inquirer column [subscription site, free] addressed the fallout from the Pennsylvania Turnpike toll collectors' strike. The Turnpike Commission switched to a flat fee toll, and for a few hours on the day before Thanksgiving, waived all tolls. Otherwise the traffic tie-ups would have been paralyzing.

In yesterday's column, Grogan shared reader reaction to a previous column in which he suggested that making E-Z Pass mandatory for all Turnpike users would let traffic flow more smoothly and permit the Turnpike commission to pay workers to do other things. Several toll collectors wrote to defend their jobs as necessary for them to make ends meet. Other readers feared the privacy intrusion of E-Z Pass, convinced that the "government" would be tracking their every move. Other readers praised E-Z Pass. Had I written to Grogan, I would have shared the same sentiment. I've shared my positive E-Z Pass experiences in an earlier post.

The comments that got my attention were the ones that advocated repeal of the tolls. These readers, who consider the turnpike inferior to the "free" interstates (though how anyone can consider I-80 superior to the turnpike baffles me), think that tolls are a roadblock in a competitive world market. Do they really think that Pennsylvania's economic woes are attributable to the turnpike tolls? One of these readers at least suggested raising the revenue by increasing gasoline taxes or one-time registration fees. Another reader claimed that tolls aren't necessary because they are used to fund "excess appointments made by the party in power." Another reader suggested that making the turnpike toll-free and firing the toll collectors would be cheaper. Cheaper? Goodness, I guess those turnpike snow plows and salt trucks don't cost anything.

In a recent posting, I shared some information about the "per mile charge" technology now under consideration in places like California, Oregon, and the UK. I explained why it has advantages with respect to gasoline taxes, and I shared some of the questions that its use would present. Now that one-time registration fees have been mentioned, I need to explain that a one-time registration fee is inequitable because it is not tied to use, and use is the best correlation marker for impact of driving on a road's need for maintenance.

Of course, underlying the argument that the turnpike should be "turned over to the Feds" is the notion that it would become a "free" Interstate. Of course, the Turnpike is already an interstate highway (I-76). And interstates aren't free. They're financed with taxes that aren't as visible as user fees. That's why I like user fees. The user encounters an "in your face" charge that ought to raise the "do I want to do this?" question that isn't as obvious when filling up the tank and paying a gasoline tax.

But until the "per mile technology" is polished and ready for prime time, I do like the "make E-Z Pass" mandatory idea. It's efficient, it's sensible, and even without it the "government" can track people's movement, so it really doesn't pose any meaningful threat to privacy. But it won't happen, of course. Most of my ideas never do. That's why my blog is free, as I just explained.

A subscriber to the tax law professors list passed on a question from an anonymous blogger:

Lawprof John Jones writes a daily blog. Lately, he's been putting out a on-line tip jar, administered by Paypal, that collects small donations. To his surprise, readers have been donating money, for a total this year in the neighborhood of $1000. Must/Should Lawprof Jones report the $1000 as income? No explicit quid pro quo is offered, although Prof. Jones does send the donors an email saying thanks. He does not, for example, plug the donor's law firm or otherwise offer the donor some kind of advertising. Separately, Jones sells advertising on his site, the proceeds of which he duly reports as income (I hope). I would imagine that some donors give because they enjoy reading the blog and want to continue to enjoy it in the future. Some might hope for increased access to the author or perhaps to increase the likelihood that the author will read their own blogs or offer some free legal advice. But this is speculation.

LawProf John Jones is a fictional character, and I am guessing that the blogger who asked the question is not a law professor nor a lawyer.

The tax question, for me, and for everyone who has contributed a response as of this moment, is "there is gross income." Need a citation? Try the Olk case, which held that tips are gross income. Tips are not gifts. There was a bit of discussion about the deductibility of the blogger's expenses (whatever they may be). The consensus is that blogging would fall under the hobby loss provisions of section 183, limiting the expense deductions to gross income and triggering the 2% limit on miscellaneous itemized deductions. One person pointed out that the deductions could be trade or business expenses if the blogger was making a living by blogging, but I doubt that someone could prove, factually, that one can make a living by blogging.

Of course, when I read the question I thought, "A tip jar? Why did I not think of that?" And I answered myself, "Because I don't think like that." I'm not into blogging for the money, even if there were any. So rest easy. No tips requested, no user fees, no taxes. Yes, some things in life are free.

Thanks to Paul Caron and his TaxProf blog for pointing out the Washington Post [free registration site] story about the emergence of economic theory as the principal rationale for anticipated Administration plans for tax law changes. I am particularly fascinated by the discussion with respect to the income tax deduction allowed to employers for employer-provided health care insurance. The rumor mill suggests that this deduction is one of those that the Administration will suggest repealing in order to pay for additional tax savings benefitting those who save rather than spend. Generally, those who save rather than spend are of two types: those who have run out of things to buy and invest the remainder of their income, and those who sacrifice and do without so that they adhere to the discipline of setting aside something for the future even though there are pressing present needs and wants.

To justify repeal of the deduction, the Administration is introducing us to economists who argue that the deduction favors employees of companies that pay for health care, and that the deduction encourages payment of premiums for health care insurance covering expenses for routine care rather than only catastrophic problems. The chair of the White House Council of Economic Advisors refers to "standard economic theory," "textbook economic theory" and "scholarly literature in economics" when advocating this and other changes.

People who know me know what I think of theory: it is useful as an incentive to creativity, so that people are encouraged to try things. If it works, fine. If it doesn't, hopefully no one has been killed or maimed. The difficulty is that some theories, such as those affecting tax and the economy, are a wee bit trickier to test than is, for example, the theory that traffic circles are safer than four-way-stop-sign intersections. The latter can be tested by fooling with one intersection. Tax law doesn't permit disallowing the deduction for a few random companies, and the closest one comes to a tax laboratory is the experience of a state with a comparable tax system that tries out someone's idea.

Let's think about the theoretical arguments raised in favor of repealing the employer deduction for providing health insurance to employees. Does it favor employees of companies that pay health insurance premiums? Yes, it does. The deduction reduces the net cost to the employer of the health insurance premium. To offset this advantage, however, the tax law contains deductions for individuals who are not covered by employer health care insurance. One question thus becomes one of determining, through empirical analysis, whether the savings achieved by the employer who pays for health insurance premiums passes those along to the employees in the form of higher salaries or other benefits. Another question requires empirical analysis of salary and other benefits earned by employees of companies paying for health insurance and employees of companies not paying for health insurance. Has any such study been conducted? Are its results being publicized to support the claims made by the advocates of repeal and the advocates of retention?

Does the deduction encourage the payment of higher premiums? It depends on what sort of theory one applies. The theory that is advanced answers in the affirmative. But another theory says that employers seek to reduce costs. That theory, by the way, has been proven. A deduction saves an employer a fraction of the cost. Thus, if the premium is $100, the employer continues to seek identical coverage for $90. Why? Because even with a deduction, the net cost of the $90 premium is less than the net cost of the $100 premium. The "employers spend more because of the deduction" theory makes sense if the government were fully reimbursing the employer, directly or through an unlimited and refundable tax credit, because then, and only then, would the employer (at least in theory) conclude that price is no object because someone else is paying.

The theory advanced in support of repeal suggests that deductions for the cost of routine medical care are somehow less beneficial to the economy than deductions for the cost of catastrophic illness. The Economic Report of the President states:

If automobile insurance were structured like the typical health policy, it would cover annual maintenance, tire replacement, and possibly even car washes....health insurance markets can be improved . . . [to] focus on large expenditures that are truly the result of unforeseen circumstance [and] to provide a more standardized tax treatment of all health care markets.

What nonsense.

Automobile insurance covers theft and collision. If automobile insurance were structured like health insurance it would pay for the cost of the annual safety inspection, medical examinations for drivers similar to those given to airline pilots, and anti-theft devices. Well, guess what? Although automobile insurance companies don't pay for the annual safety inspection (perhaps because the cost is so low it can be considered comparable to a co-pay or deductible), automobile insurance companies invest in the development of safe vehicles, road improvements and hazard removal, anti-theft device research and development, and a wide array of programs designed to reduce the frequency and severity of automobile accidents. Of course they don't pay for car washes, and health insurance companies don't pay for nail clippers. Likewise, automobile insurance companies don't pay for auto maintenance, such as changing engine oil and transmission fluid, because automobile insurance companies don't pay for the replacement of engines or transmissions that fail because of lack of care. In other words, the comparison made by these theoreticians sounds nice and makes a nice sound bite but it is so flawed that I wonder where they learned to develop analogies. Surely not in one of my law courses, where the ability to make good analogies enhances teaching and learning and bad analogies do so much damage that one quickly learns the difference and avoids the latter.

From the perspective of doing what is best for the economy and for people, the ideal approach is to minimize the need for, and the cost of, medical care. The best way of doing this is to consider that "an ounce of prevention is worth a pound of cure" and to understand that the dollars expended on annual physicals are cheaper dollars than those spent on surgery. If health insurance pays for some or all of the cost of preventive care, people are more likely to get that care than they are if they must pay the entire cost. This isn't theory, it's been empirically demonstrated. Of course there are people who don't get preventive care even when it is covered by insurance, but their reasons for avoiding the doctor visit aren't economic and require some other incentive.

Any argument or theory that considers payment for preventive care to be less deserving of subsidy than payment for catastrophic injury is an argument or theory destined to saddle the economy with even more health care costs. Discouraging preventive care will increase health care costs because health problems will be discovered at later stages, when cures are more expensive, care is more expensive, and adverse impact on life is more expensive.

This, too, is empirically clear. Repeal of the deduction would cause employers operating on the margin to terminate health care coverage for employees, unless the subject of collective bargaining. And in that case, the next round of negotiations would be even more combative than they've become recently as employers try to balance health care cost allocation.

Perhaps the theoreticians believe that people will seek preventive care simply because it makes sense to do so no matter who is paying. That's true. People will seek preventive care but some won't get it because they won't have the economic resources. Unlike those who would simply dip into the "leftover" income that otherwise would be invested, these folks would need to cut back on something. Perhaps they would cut back on the dollars spent for DVDs and X-box cartridges for the children. Perhaps they would cut back on food for the children.

Critics of the crtics claim that the critics tend to dismiss the intellectual merit of the Administration economic policies, and that the criticism ignores how well the economy is doing. The health care segment of the economy is not doing well, and anyone who sees intellectual merit in the horrendously flawed analogy between health care insurance and automobile insurance is....well, I'll let readers of this blog finish the sentence.

And someday, when all is done, an autopsy will follow.

According to a report released this morning, the person who inserted into the appropriations bill the now infamous and highly spotlighted provision giving staff of the appropriations committees the right to see tax returns without being subject to the privacy restrictions that apply to members and staff of the revenue committees has stepped forward and identified himself. Richard Efford, who has been on the staff of the House Appropriations Committee for almost two decades, explained what happened.

Efford is the senior staff member of the House Appropriations subcommittee with oversight responsibility for the IRS budget. Congress has appropriated more than $1 billion for IRS computer system upgrades. Efford claimed that his responsibility included the need to inspect the IRS use of its upgraded computer systems, and that to do so he had to visit IRS facilities to see how computer systems were being used and whether there was a need for continued increases in funding of tax collection efforts.

But when Efford tried to visit IRS facilities, the IRS objected. IRS officials explained to Efford that if a taxpayer's return information was on a computer monitor when he was in the room there would be a violation of privacy safeguards. The officials suggested that Efford get authorization from one of the revenue committees that has regulated access.

Efford explained that he thought there was no reason for a member of Appropriations Committee staff to "have to go beg" a revenue committee for permission to visit a facility where taxpayer returns were visible. When Efford told his story to other members of the staff, from both parties, one replied that he had encountered the same IRS objections.

Efford's solution? He wrote an amendment that would give him and the other staffers the same IRS inspection rights as the staffers on the revenue committees. Except that it left out the privacy protection provisions. That proposal went nowhere because of the risk that the chair of the Ways and Means Committee would react adversely to intrusions into his areas of responsibility.

Efford then turned to the IRS and asked for a statutory amendment that would resolve the objections that the IRS had to visits by Appropriations Committee staffers. The IRS changed "one or two words" in the language that Efford had drafted. The IRS did not add any privacy protection provisions.

Efford then inserted the language into the appropriations bill. It gave the chairs of the appropriations committees the power to designate committee staff who could "access ... Internal Revenue Service facilities and any tax returns or return information contained therein."

No one noticed the insertion because members and staff were busy negotiating and drafting other parts of the appropriations bill, one of the few pieces of legislation to challenge tax legislation for the "humongous" award, as it contains more than 3,000 pages. When asked about the provision, Efford and other staffers simply said that it was good because the IRS provided it. Apparently nothing was said about the fact it was Efford's language that had been run past the IRS with almost no changes.

Because of lack of sleep brought about by the need to work until the wee hours of the morning, no one noticed any problems. They thought it would be covered by standard language in the bill that states "the Internal Revenue Service shall institute and enforce policies and procedures that will safeguard the confidentiality of taxpayer information."

Yet at least one staffer saw a problem and sent an e-mail suggesting that a clarification made sense because otherwise someone would read the provision as letting staffers go look at other people's returns just "for grins." So they put into a separate report an explanation that the provision was intened to "streamline oversight" of the IRS.

Efford did not inform any member of Congress before he put the provision into the bill. He told Representative Istook, to whom he reported, about the provision, but after it was too late to change anything. Efford explained that the staffers saw the provision as "housekeeping" that would help members of Congress but that did not need to be brought to their attention. Efford also claimed to be "dumbfounded" by the controversy.

The story has several salient features that deserve highlighting and that corroborate accusations that the legislative process in the Congress is a mess.

1. What is so wrong with a staff member of the Appropriations Committee having to ask for permission from the Ways and Means committee chair to inspect IRS facilities? The point of asking permission is to bring the staff member within the privacy provisions. Why is asking permission such a problem? Concern that it would be denied for a good reason? Even more proof that asking permission makes sense. Concern that it would be denied for a wrong reason? At that point the member of the Appropriations staff could approach the chair of the Committee and let the matter be decided as it ought, in a dialogue between the elected representatives chairing the respective committees. Could it be that the problem is one of ego or convenience? Certainly. It is inconvenient to ask permission, but we learn as children (or should learn) that when it is necessary to ask for permission we do so, and we give the person being asked sufficient time to consider the request so that the response is timely. In an e-mail world, it really isn't inconvenient to ask permission. What it comes down to is ego, and that is a huge problem in the operations of Congress and much of the rest of the government. Concern over "saving face" or protecting ego too often ends up trumping doing the right thing. I speak from experience when I make the assertion that personality intrudes way too much into the decision making processes in the government. Public servants are supposed to serve the public.

2. The wickedly bad habit of leaving things go until the last minute, a trait shared by too many people inside and outside of government, generates mistakes, carelessness, and bad judgment fueled by stress, time shortages, and lack of sleep. The need for an Appropriations bill isn't a surprise. Legitimate emergencies happen, and those who need to deal with them do the best that they can even if there is a time shortage, a ton of stress, and sleep deprivation. The blame here lies with the Congress. Perhaps because a majority of the members of Congress are lawyers they bring with them the bad procrastination habit that law students demonstrate and that I find the most challenging to break. The "cram at the end" syndrome, encouraged by faculty who don't shift grade-contributing work into and throughout the semester, fails to teach the lesson that procrastination is bad far more often than it lucks out as a good choice. Cramming at the end fails to teach the lesson because most examinations aren't designed to exact a grade price from the procrastinators. Toss in the manipulators, those who delay the process in the hope that the time shortage late in the year will get others to cave in to the demands of the manipulators, and it's easy to see why something everyone knew needed to be done suddenly needs to be done yesterday. So by the time they get to the Congress, the procrastinators, joined by the manipulators, overwhelm the few members that want to approach government the way successful business entrepreneurs approach business, and turn the legislative process into an inefficient, and in this instance, dangerous process.

3. The Congress, not the staff, is responsible for its legislation. The Congress is so involved in so many things, an effect of 60 years of expansion of federal roles in more and more areas of life, that members cannot keep track of everything that is moving through the legislative pipeline. Most members of Congress do not read most of the legislation on which they vote. Only the high profile stuff gets some attention, and even then, it's a few provisions and not the entire package. Members of Congress have been known to write to the Treasury Department for copies of tax legislation. In this sort of environment, who's managing the legislation? Again, unless it is a high profile provision, it usually falls to the staff of the committee responsible for the bill. Who safeguards the bill from the staff? Apparently, the staff. That's a system that opens the door to the sort of fiasco that happened with the tax return access provision under discussion. There's a reason that lobbyists not only try to buttonhole members of Congress but develop relationships with members of the staff. The lobbyists know that there's hope in trying to get a staff member to tweak the language of a provision to which a member of the Congress has agreed in general principle. The devil is in the details, and the details are under the supervision of the staff.

At least some members of Congress are aware of the problem. Whether they can get this in front of the public and bring about pressure to have the system repaired remains to be seen. Senator Kent Conrad, a Democrat has stated, "Something really seriously bad is going to happen if we let this continue." Sen. John McCain, a Republican has added, "This process is broken."

Indeed it is. Perhaps now all the folks who thought I was hyperbolizing when I predicted this (and worse) would happen can begin to understand the reality. There is a huge chasm between the theory of the Civics classes that once populated every high school and the practices in the halls of government. Chasms of that sort invite disruption and unrest.

So let's hope Congress fixes this, takes a bipartisan approach, and does a better job than it did with the campaign funding issue.

A story in the Chronicle of Higher Education, Weakened Role of Science Advisers Creates 'Crisis' From White House to Capitol Hill, Report Says [subscription site] begins with this lead paragraph:

The process through which Congress and the executive branch receive scientific advice to make critical decisions is in a "state of crisis" that could result in poorly designed programs and costly mistakes, according to a report released on Thursday by the Federation of American Scientists.

All one needs to do is substitute the word "tax" for "scientific" and the phrase "just about everyone who understands the tax legislative and administrative processes" for "a report released Thursday by the Federation of American Scientists." It would read as follows:

The process through which Congress and the executive branch receive tax advice to make critical decisions is in a "state of crisis" that could result in poorly designed programs and costly mistakes, according to just about everyone who understands the tax legislative and administrative processes.

Inquiries from foundations willing to fund a study to prove this proposition are welcome.

Here we go. According to this report, White House officials attending a Richmond, Va., meeting of Congressional Republican leaders setting the agenda for the next Congress are floating the "national sales tax" idea. Perhaps it's like any trial balloon, see if anyone pays attention before getting too deep into the project.

But here's the weird part. The report states: "President Bush and House Speaker Dennis Hastert have both said the idea of a national sales tax deserves a serious look. For many, the idea of a world without the Internal Revenue Service is very seductive."

Who said, "For many, the idea of a world without the Internal Revenue Service is very seductive." I would like to contact that person and ask the following question:

Can you identify a state sales tax that is imposed without the authority, regulation, and administration of a government tax/revenue agency or department (no matter its name)?

The answer, I already know, is "Uh, well, um, ...." That's because a national sales tax would still be generating REVENUE, and it would be INTERNAL, so the agency administering or servicing it at the federal level would be...ta da... the INTERNAL REVENUE SERVICE. Oh, they could come up with some other name, but a federal tax agency is a federal tax agency, and you can't have a national sales tax without one.

So, listen, advocates of a tax that has disadvantages and flaws worthy of discussion in the future if this thing actually gets off the starting blocks, try advocating your project by selling its strengths. Don't mislead people into thinking that the IRS (whether or not renamed) would disappear.

Perhaps the person intended to say "For many, the idea of a world without the Internal Revenue CODEis very seductive." Well, where would the statutes enacting the national sales tax go? Duh, where ALL the taxes go: the Internal Revenue Code. So, nah, even if they meant "Code" and not "Service" they still wouldn't get it.

Right, that is.

Gee, I'm picky, aren't I? No wonder my students think I'm demanding. Yes, I'm demanding accuracy and honesty. After all, life, clients, good science, common sense, they're all demanding. We, the citizens, deserve accuracy and honesty. Ask for it.

Tyler Cowen's musings on the scholarly content of blogging are definitely deserving of the two minutes it takes to read through them. It is the best compilation I've seen to date of the reasons law blogs can, and in certain instances, ought to be treated as legal scholarship. The days of the student-controlled, student-edited, untimely, narrowly circulated, limited production, paper academic law journals hopefully are limited. And if blogging contributes to their demise, I will shed no tears.

Tyler Cowen also makes some good points about how to read a blog, especially the benefits of treating a blog holistically rather than as a collection of separate postings. Readers of MauledAgain surely recognize that recurring themes illuminate my postings, even though I try to juggle about two dozen topics in a typically Maule pattern of multi-tasking (or is it multi-threading?). Someday I'll collect the posts on a selected topic, stitch them together, and publish it in what hopefully will be a digital journal that is timely, reaches tens of thousands of tax practitioners and others, and benefits from the comments readers of the blog have shared.

Someone on a tax listserv asked for help finding a quotation from a court opinion about the challenges of partnership taxation. It was one of those "I remember having seen it but can't find it" situations. Another subscriber came through. It's worth sharing.

From Foxman v. Comr., 41 TC 535,551 (1964), Judge Raum, one of the most brilliant Tax Court judges and tax lawyers I've met, wrote in footnote 9 (long before I met him and long before tax was in my brain) the following paen to partnership taxation, the statutory provisions for which are in subchapter K of the Internal Revenue Code:

The distressingly complex and confusing nature of the provisions of subchapter K present a formidable obstacle to the comprehension of these provisions without the expenditure of a disproportionate amount of time and effort even by one who is sophisticated in tax matters with many years of experience in the tax field.

That was 40 years ago. I wonder what Judge Raum would write if he were alive and writing today. During those 40 years subchapter K has almost doubled in size and quintupled in complexity. In 1964 there was no substantial economic effect rule (nor its regulations) (section 704(b)], a much simpler and optional contributed property allocation rule (section 704(c)), no disguised sale rule (section 707(a)(2)), no rules for the characterization of gain on the disposition by the partnership of contributed property (section 724), no exception to the exception to the exception to the liquidating distribution sorting rules (section 736(b)(3)), no "marketable securities as cash" rule (section 731(c)), no mixing bowl transaction prohibition rules (sections 704(c)(1)(B), 737), and no large partnership rules (sections 771 et seq). I probably forgot something. And of course, the regulations have quintupled in size and whatevered in complexity, in part because of the additions to the statute, and in part because of IRS attempts to deal with issues Congress hasn't addressed (yet), such as the anti-abuse regulations and the check-the-box regulations.

No wonder even LL.M. (Taxation) and M.T. students in the Graduate Tax Program consider Partnership Taxation to be the most challenging course, and one that some fear and that for others generates intensive anxiety. And the J.D. students who have the courage to enroll in Introduction to the Taxation of Business Entities? They rate it the most difficult course in the J.D. curriculum.

Most difficult. To take as a student? How about to teach? My offer to swap either course for Property, Contracts, Family Law, etc., etc., remains unaccepted. That's no surprise. To be fair, I wouldn't swap for Constitutional Law, because I happen to think that course is most challenging, because it is so different from the structured arrangement of tax. Slippery slopes are dangerous, whether on skis, in a car, or in a Con Law classroom (on either side of the podium). One never knows what's at the bottom.

This from a reader on the per-mile road user fees being proposed as replacements for state gasoline taxes:

Great post on user fees:
[referring to previous post]

While generally sympathetic to user fees, I am concerned about the
impact on less wealthy persons. My concern is not that user fees are
regressive per se, but rather that less wealthy persons will bear the
burden of user fees because of other, structural, reasons including
distance traveled. As an example, my employer lives 2 miles from the
office. I live 20 miles from the office. I would have to pay 10 times
the user fee that he does, yet I do not make anywhere near 10 times the
income that he does. Indeed, he makes about 5 times my income!

What is the solution to this problem? I cannot move any closer because
I simply cannot afford housing near my job site (or any location in
between). This is also true of my 3 similarly-paid co-workers. I
suppose I could get a new job, but that's not feasible. It's not that I
*want* to drive on the roads - I'm about to purchase a road bike to
ride to and from work on the nights that I don't have law school - but
rather that I cannot afford to live close to where I work and thus have
to drive to get there! This problem seems to be a large hurdle to
implementing user fees. Why should I have to pay for the roads when
there is practically nothing I can do to avoid using them? Perhaps
there is some way to distinguish driving to work and driving for other
tasks?

Your thoughts are appreciated.

My reply:

Thanks for your comments.

The gasoline tax generates the same discrepancy.... with the variable being fuel efficiency. If you and your boss get the same MPG you are paying five times the gasoline tax than he is. If he can afford a newer, more efficient vehicle then you may be paying 8, 12 , 20 times the gasoline tax than he is. Of course, if your vehicle is more fuel efficient, you pay disproportionately less gasoline tax. Studies show, though, that the lower the income, the older and less fuel efficient the vehicle. So as a general proposition it could well be that the per-mile user fee, though regressive, is less regressive than the gasoline tax. Of course, there will be individual cases where it plays out differently, but the comparison is best made in toto rather than by singling out the exceptions.

One other variable: your boss may use his car for other activities more than you use yours. He may need to drive more miles going to some place in the other direction. You may be closer to the stores than he is, or closer to you gym. How it plays out in an individual situation doesn't necessarily tell us how it plays out in toto.

I guess it was a good reply, for this shortly followed:

Yes, of course, the variable of fuel efficiency! I completely missed that step. I am now sold.

This could be an idea that catches on. I'll keep you posted.

So what does it mean when a person who favors GPS-based highway per-mile taxes (user fees?) is appointed as Director of the Department of Motor Vehicles in the country's most car-dependent and perhaps car-loving state? Well, if the appointing governor hasn't yet backed the idea, which is the case, it means that even if the idea isn't a certainty, there is a good possibility that it could become reality if the legislature and the governor can be persuaded of its advantages. And yet already the disadvantages are being hung out for viewing.

Similar proposals have been made in the United Kingdom and in Oregon. Read on, because this is an idea that could get hot quickly, in a lot of places.

How does it work?

It simply involves a GPS tracking device in every vehicle. The miles that are driven are reported to a state agency, and a tax, or fee, is imposed for each mile driven. The existing state gasoline tax would be repealed.

Advantages? It provides a steadier revenue stream than the gasoline tax, proceeds from which are expected to decline as drivers invest in fuel-efficient and alternative fuel vehicles. The technology can distinguish among the types of roads used, so it's possible to charge higher per-mile rates for more congested highways, thus giving drivers an economic incentive to use alternative routes. Rates could vary by time, thus providing economic incentives to travel at off-peak hours, though my during my California driving back in 2003 I found it difficult to identify "off-peak" times. I'm told 3 in the morning in some areas is "off-peak." It charges energy-efficient and alternative fuels vehicles an amount that reflects the burden they impose on roads, something not happening under the gasoline tax.

Disadvantages? It removes the "gasoline tax avoided" benefit enjoyed by those now using alternative fuels vehicles. It doesn't distinguish among types of vehicles, and differences in road damage that they cause, although arguably that could be adjusted by setting the per-mile rate at different amounts depending on the weight of the vehicle (and if you think that's not a difference, think again: a large truck does the same damage to a highway as does 10,000 cars). Within days of implementation, the market for devices thwarting the tracking system would be booming (just imagine the new flurry of spam in our email inboxes: "AVOID CALIFORNIA ROAD TAX WITH GIZMO FROM NIGERIAN BANK DEPOSIT BOX HEIR" or something like that). The tracking system would provide details on the location of, and routes taken by, every vehicle in the system, something that worries privacy advocates.

What happens when a person drives into California with an out-of-state vehicle? They no longer would be taxed for their road use when they fill up at the pump. Would California tax California vehicles when they are driven out of state? The technology would permit that to occur. Would the legislature do that in order to offset revenue losses caused by nonresident tourists no longer paying a gasoline tax?

One variant of the system has the tracking device send information to the gasoline pump or other fuel dispenser, which adds the tax to the product cost, thus eliminating the need for the information to be sent to a state agency. But, digital data is digital data. It exists, and surely the government would have access if it wanted to have access.

It's technology makes it possible. And technology scares many people. That which is not understood is far more likely to generate fear than that which is understood. Because so few people truly understand what GPS can and cannot do, all sorts of evil and horrible scenarios can come to mind. Of course, what constitutes evil and horrible depends on who's imagining the possibilities.

EZ-Pass has been in use for several years, and it tracks the passing of vehicles through toll booths. In theory, the system can be used to calculate average speed, and absent a rest stop, the 40-minute 80-mile run could be detected, and speeding tickets issued. So far, that hasn't happened and EZ-Pass officials claim there is no such intent.

Personally, I don't care that my vehicle would be tracked. I don't go anywhere that would interest anyone. I don't do 80-mile runs in 40-minutes. Being tracked could be just as advantageous (proving I wasn't somewhere at a specific time) as disadvantageous (proving where I was at a given time). But I understand that some people are very nervous, just as they are about traffic cameras, pedestrian cameras, security cameras, and all the other "big brother is watching you" stuff that exists and that is on the drawing board. Did I mention implanted RFIDs? (Those are radio frequency identification devices, which can be used to track people and not just vehicles).

But I like the idea of charging a user fee (to use the correct term) that shifts the costs to those using the resource. Will implementation be challenging? Yes. So, too, will be the legislative drafting. Exceptions? Probably the same vehicles that presently get gasoline tax exceptions. What's the point, after all, of the state charging itself for fire engine use of the highways? I'll argue with myself: The true cost of operating the fire engine or other state vehicle includes the road damage it causes and road maintenance it requires (think snow plowing), and thus the per-mile user fee should be charged to state vehicles so that their costs can be in turn shifted to those who should pay (such as folks charged for false fire alarm calls).

Such a fee is regressive. It is imposed without regard to income. The short answer is that the gasoline tax is regressive. So replacing the gasoline tax with a per-mile user fee doesn't make things worse. But would it provide a chance to make things better? Perhaps, but is this the place to take that chance? In theory, folks with lower income purchase cheaper (and lighter) cars, and thus would benefit if the per-mile user fee also included a weight factor. This is an interesting contrast to the clean air problem that surfaced when officials realized that lower income people often purchased used vehicles that lacked proper emissions controls, and that they would face remediation costs not borne by those purchasing newer models. Imposing clean air fees on polluting vehicles fell disproportionately on the poor, making it an even more regressive fee.

Keep in mind that rejecting all fees and taxes that are regressive is counter-sensical. Anything purchased by or paid by a person with less income will consume more of that person's income than will the same item purchased by a person with higher income. The fact that a person with lower income pays more of the income for food, clothing, per-mile user fees or gasoline taxes, and similar items doesn't make the price of those items per se wrong. There are other, better ways, to fix the income deficiency problem.

Thanks to Declan McCullagh of Politech for passing along this story.

The recent changes made by the Congress to establish a uniform definition of "child" for federal income tax purposes included a revision of the statutory provisions defining dependent for purposes of the dependency exemption deduction. I outlined these changes in my "Redefining Children" posting about a month ago.

A closer scrutiny of the new statutory language, encouraged by a question from a perceptive student in the basic tax course I teach, raised an interesting question. Did Congress inadvertently, or intentionally, change the substantive dependency exemption rules when it was ostensibly conforming the language to reflect the new uniform definition of child?

About the same time that the question was posed to me, a similar question popped up on one of the listservs to which I subscribe. The consensus response was "probably not." I think that's right, but in some situations the facts may be such that the outcome differs.

The problem arises for college and graduate students (and in theory, preparatory school students) who live at or near the school rather than with their parents or other support-providing taxpayer. I will refer to the parents as the support-providing taxpayers since in most cases it is the parents who provide the support. The problem exists when the child has more gross income than the exemption amount, which for 2004 is $3,100.

Under the old law as applied to 2004, parents who provided more than one-half of the support of a child were entitled to claim a dependency exemption for the child if the child's gross income was less than $3,100 OR, if the child had gross income of $3,100 or more, had not yet attained age 19, but if the child had attained the age of 19 the dependency exemption was available if the child was a full-time student who had not yet attained the age of 24. So a 19-to-24-year-old child who went off to school, whose parents provided more than one-half of the support, and who earned $3,100 or more would generate a dependency exemption deduction for the parents.

Under the new law, the parents are entitled to a dependency exemption deduction for a qualifying child. A qualifying child is a child who does four things:

(1) the child must satisfy a relationship test, and in the situations being discussed that’s not an issue, because the child by definition satisfies the relationship test.

(2) The child must have the same principal place of abode as the taxpayer for more than half the year, and we will return to this in a moment.

(3) The child must meet age requirements, which in the situations being discussed are unchanged.

(4) The child must not provide more than half of his or her own support for the calendar year in which the parents’ taxable year begins, and again, in the situations being discussed, this is not an issue, for if the parents are providing more than one-half of the child’s support the child, logically, is not providing more than one-half of his or her own support.

If the child does not have the same place of abode, the child can qualify as a dependent by being a qualified relative, but to do so the child’s gross income must be less than $3,100, and there are no age exceptions to that requirement. Thus, if the child has $3,100 or more of gross income, the parents lose the dependency exemption deduction unless the child meets the “principal place of abode” requirement.

So it’s that “same principal place of abode as the taxpayer” requirement that can be an issue. THAT REQUIREMENT DID NOT EXIST UNDER THE LAW AS IN EFFECT BEFORE THE WORKING FAMILY TAX RELIEF ACT OF 2004 CHANGED THE LAW.

Thus, the question is, “Does a college or graduate student who lives at or near school for the roughly 8 to 9 months of the school year “have the same principal place of abode” as the parents?

What is the principal place of abode? It’s not the domicile, though domicile is a factor in making the determination. So held the Tax Court in Prendergast v. Commissioner, 57 T.C. 475 (1972), and in other cases as well.

Abode requirements exist in other areas of the tax law. For example, a taxpayer cannot claim head of household status unless there is at least one qualified person for whom the taxpayer’s home is a household which constitutes the principal place of abode and of which the qualified person is a member. A similar test applies to unrelated persons who are claimed as dependents by virtue of being members of the taxpayer’s household. Being a member of a household requires occupancy. IRS regulations with respect to the head of household filing status track legislative history and provide that temporary absences for a variety of reasons, including education, are not considered when analyzing occupancy.

In legislative history for the head of household filing status abode requirement, the Congress stated,

As a general rule, for the taxpayer's household to be the dependent's principal place of abode, the dependent must physically occupy the household during the entire taxable year in question.

The Congress then described the temporary absence exceptions. This language though, suggests (1) the child can have an abode at the parents’ home without occupancy, and (2) lack of occupancy by a college student does not automatically fix the parents’ home as the child’s abode.

Thus, though the question of abode is a question wrapped into the question of occupancy, the question of “what is the abode?” remains critical because occupancy does not guarantee abode, and lack of occupancy may or may not prevent abode at the parents’ home.

The same legislative history contains this “clarification”:

Section 12(c) [an earlier version of the head of household filing status] is intended to apply only where the taxpayer and such other members of the household live together in such household during the entire taxable year (except for temporary absences due to special circumstances). The fact that a child may be at college during the college term does not prevent the home of the taxpayer from also constituting the principal place of abode of the child. However, such home will not be considered as the principal place of abode where the child establishes a separate habitation and only returns for periodic visits. Similarly, such home will not be considered as constituting the principal place of abode of a dependent of the taxpayer who is supported by the taxpayer for a substantial part of the year in lodgings other than those occupied by the taxpayer even though such person may at various periods live in the household, unless the residence of the dependent in other lodgings is not permanent and is due to necessity such as illness.

Thus, it is possible for a college or graduate student to establish an abode separate from that of the parents. And if the child does so, the parent loses the dependency exemption deduction under the new law even though under the old law the dependency exemption deduction would have remained intact.

Did Congress intend this result? Or is it an oversight, a consequence of reshuffling paragraphs and subparagraphs without thinking through the impact? Ask any computer programmer what happens when a few dozen lines of code are altered without full analysis of the interaction with the rest of the program. It isn’t pretty.

Perhaps Congress did intend the result. I say that even though at least one member of Congress has been quoted as saying that the “temporarily at college” exception solves the problem. I don’t think that it does. It solves the problem only insofar as the child WOULD have had an abode at the parents’ home but for the temporary absence. It does not solve the problem insofar as the child has moved his or her abode from the parents’ home.

How does a child move the abode? Certainly if domicile is shifted to the child’s school residence a very strong argument can be made that abode has shifted. Even if domicile hasn’t shifted, abode can shift. Suppose a child registers to vote in the locality where the child lives during the school year. Assume the child also changes his or her address for purposes of official and unofficial school correspondence, for utility bills at the rented apartment, etc. An extremely strong argument can be made that the child’s abode is at the school residence. Under the new law, the parents say goodbye to the dependency exemption deduction.

Why would Congress care and intend to change the outcome? Here’s a thought. Think back to the recent election. Reportedly, tens of thousands of college students, natives of states such as Connecticut and New York, registered to vote in states like Pennsylvania. Why? Well, their votes weren’t “needed” in Connecticut and New York because the outcomes were pretty well easy to predict. But at the time of these voter registrations, the outcome in Pennsylvania (and to a lesser extent, in New Jersey) was, at least to some, a close call.

Changing voter registration generally requires showing permanent residency established in the state. Were the students successful? Yes, they registered. Many of them also discovered that they no longer qualified for student financial aid from their “home” state assistance programs because they had moved their abodes to other states. And they also discovered that they did not qualify for “in-state” reduced tuition at Pennsylvania state schools because they had not been established in Pennsylvania for a sufficient period. What an expensive cost to voter registration. And, for many, all in vain.

So could it be that a Republican-controlled Congress has added salt to the wound? Could it be that the parents of these students (or at least the parents who provide more than half the support of children with gross income of $3,100 or more) will discover in March or April that they have lost a dependency exemption deduction? Of course, some of the students registered Republican, and some of the students who registered Democrat have Republican parents, but I’d venture an unempirical guess that most of the students and their parents are Democrats. Perhaps the Republicans are willing to zap a “few of their own” to put it to Democrats.

Perhaps I’m just seeing another conspiracy, a grand arrangement far beyond the simple imaginations of some Code drafters who accidentally changed the rules. Perhaps I’m turning an innocent mistake into a political hot potato. That never happens, does it? He asks that sarcastically, and to understand why, read this previous posting and this followup posting. Then decide if there’s even a shred of plausibility in my suggestions.

Well, yes, indeed, as I noted in my Thanksgiving oration, Congress does provide so much grist for the MauledAgain blog mill.

Several days ago I shared some thoughts on the mess created when a provision was slipped into the appropriations bill permitting the Chairs of the House and Senate Appropriations Committees and their assistants to view tax returns without the privacy restrictions that apply to tax return examination by the House Ways and Means and Senate Finance Committees.

I noted that blame had been put on Representative Ernest Istook, and that perhaps he was being falsely accused. Istook took the cue, and denied having anything to do with the provision, though he knew enough to assert that the IRS had drafted the provision at the request of Appropriations Committee staff. The most the IRS can do is to generate proposed statutory language. It has no authority, or ability, legal or practical, to insert something into pending legislation. The IRS makes a convenient target, but to blame it for something it cannot do is more than too clever.

Late this afternoon, according to this report, the Congress has turned the issue into a hot potato. Recall that the provision was inserted into the appropriations bill, which needed to be signed into law by the President in order for the government to continue operating (because without the legislation it has no authority to spend money). Recall that House and Senate leaders promised to remove the offending provision, to do so quickly, and to get the appropriations bill to the President quickly.

Well, the Minority Leader of the House, Democrat Nancy Pelosi, decided that the Democrats would not permit the provision to be removed from the bill unless Republicans agreed to comply with the House rule that requires a three-day wait between the time a bill is reported out of Committee and the time the House votes on it. Republicans point out that when Democrats controlled the House they, too, honored the 3-day rule in the breach. Pushing legislation through the Congress without time to study it has been a mainstay of both parties for many years. Why?

The why is that Congress, like many people, lets things wait until the last minute. Exam in the course? Study the night before. Brief due tomorrow? Ask an associate to research it at 4 p.m. the previous day. School project due tomorrow? Ask mom for help at 9 p.m. And, of course, the more someone chooses or is compelled to accommodate the procrastinators, the more the procrastinators are enabled. People who know me are aware that I operate under a different mindset. I pretend that something unplanned will pop up at the last minute (and often it does). I require my students to do graded exercises throughout the semester. I not-so-quietly prod people to get on with it while there is time for measured study and analysis. Sometimes I succeed and sometimes I don't.

But I don't think that in this instance the "rush job" mentality of the Congress is the reason for the so-called "mistake." I explained that in my previous posting on the matter. If Pelosi held up the remedy in order to extract information on how this happened, it would be a worthwhile maneuver. But that's not the point. Maybe compliance with the three-day rule, a noble goal in and of itself, would have revealed the surreptitious appearance of the provision, but perhaps it would not have done so. Why not identify the culprit? Oh, wait, it's the IRS. Uh-huh. Some one or more persons in the legislative branch of the government, and not the executive branch IRS, did the insertion. On a computer. Who? Why?

It appears that members of the House and Senate Appropriations committees wanted the right to visit IRS facilities. So the bill contained language giving them that right, but it also included the language “any tax returns or return information contained therein” after the term "facilities." Nice. Some Republicans claim that it was merely "sloppy drafting" by the IRS and congressional staff, echoing and expanding Istook's claim. Sloppy indeed. Oops, my pen slipped and in went this extra language. They claim that they were trying to deal with committee members entering offices where tax return information is available. Well “any tax returns or return information contained therein” is NOT the way to get to that result. And one wonders why the Code is such a mess.

Why the desire for this right to visit IRS facilities? We're told it's because members of the Appropriations committee and aides to the subcommittees of the Appropriations Committee don't like having to ask the House Ways and Means, Senate Finance, or Joint Tax Committees for permission to visit IRS facilities that have tax returns or tax return information available. Well, excuse me. Isn't there a reason that tax issues, and the IRS, are within the purview of a specific committee? Those committees, as I noted in the previous posting, operate under a set of rules protecting privacy and imposing civil and even criminal sanctions when the privacy is violated. But those provisions weren't included in the language giving members of the Appropriations Committees the right to visit IRS facilities.

The AIDES don't like asking permission? Excuse me again, but aren't the aides hired servants of the people? Oh, wait, I'm special. Enough already with the Washington egos. I left decades ago, as mine was too small.

It also was reported that much of the drafting on the spending bill was done by aides who had not slept for days. Do I believe that? Yes. That's another aspect of the "last minute" chaos of how the Congress operates. Congress has also been known to stop its clocks so it could meet deadlines. Do that on a law school exam and it's bye, bye (I hope). "Let's pretend it's still 11:59." OK. Let's pretend it's still 1971 and we don't need to file tax returns for 1972 through 2000 and infinity.

So the Congress lets its aides work without sleep. This is compassionate what? This is the same Congress that would be fighting for the media spotlight to criticize any employer who required an employee to so function. Would a member of Congress want surgery from a resident who hadn't slept for days? Or to fly on an airplane piloted by a captain who hadn't slept for days? But, sure, go ahead, let the drafting of legislation be done by sleepless zombies. Nice. Very nice.

So, the bill can't go forward because the Democrats won't let the Republicans fix the "mistake" and the Republicans won't send the bill to the White House as it is because they'd be painting even bigger bulls-eyes on their political backs. So the government shuts down? Oh, no. A handful of Representatives and Senators still in town, perhaps the ones waiting to go home after the evening traffic snarls, passed a bill letting federal agencies spend money until December 8. So that keeps this entire issue on the front burner, because Congress will return to Washington and will need to deal with the mess. In the spotlight.

Oh, happy Thanksgiving.

I doubt I will be posting tomorrow, so here's an advance oration.

I am thankful that I was born with a brain that understands tax and a few other things (though the ability to slam dunk in the NBA or hit a major league curve ball would have been nice).

I am thankful that I had two parents who challenged me to use well my talents, to be truthful, and to think beyond myself, and that I had many teachers who pushed me as I now push my students to reach for more than mere acquisition of knowledge.

I am thankful for a Congress without which I'd have half as much stuff about which to blog and far less about which to complain.

I am thankful for the folks on the ABA-TAX and taxprof listserves, who keep my tax brain working and who provide raw material for examination questions and semester exercises, for which my students may or may not be thankful.

I am thankful that the Congress passed an extension to the Internet Tax Moratorium Act so that there is time for careful planning to deal with the problem without 50-plus jurisdictions doing a bunch of uncoordinated things.

I am thankful that the Pennsylvania legislature killed the tax breaks for the (impoverished?) Comcast Corporation because it gives me hope that when it comes to taxation common sense and equity have a chance.

I am thankful that my mother said to me, when I was young (true story), "I don't believe that parents should tell their children what to be when they grow up. Make your choices after thinking about it. I just want you to do well, it can be anything, but make sure it's legal."

I am thankful that I was introduced to clickers (or student response pads to use the technical term) and to the people who pioneered their use in law courses and who let me know they exist, because clicker use has invigorated the students in my courses and has added some new fun to teaching.

I am thankful for all the researchers who continue to share the results of their research that demonstrates chocolate is, indeed, medicinal.

I am thankful that trees have leaves that end up falling and blowing onto my property, again and again and again, because by raking them, again and again and again, I can get exercise that counteracts the caloric effects of the aforementioned medicine.

I am thankful that blogs were invented, because now I have one (though I wish they had existed when I was a child because, oh, never mind, the thought alone is scary but it would have been fun, I guarantee it).

I am thankful that I am healthy, that I have two wonderful children (even though BOTH of them are now announced a desire to attend law school), that I have family and friends who put up with me, and that I have not a mere job but a professional position with opportunity.

I am thankful that people come and visit this blog and read my postings.

Have a Happy Thanksgiving.

Just in time for Thanksgiving, a news story from Reuters that doesn't seem to have yet swept the print and web media, tells us in a marvelous headline: Chocolate ingredient can help cure persistent coughs.

It has been demonstrated that theobromine, which is found in chocolate (or more specifically, in cocoa), was almost a third more effective in stopping persistent coughs than is codeine. Codeine currently is the best cough medicine.

Taking codeine sounds like taking a drug. Taking chocolate doesn't. So on Thanksgiving, be thankful for chocolate.

Well, the Congress has itself in a fine mess of hot water this time around. Readers of this blog know that I'm no fan of how Congress does business nor of most of what it generates.

According to reports proliferating throughout web and print press (CNN, New York Times, Tax Analysts, and Tax Guru, to name a few), the spending legislation that Congress passed on Saturday contains a provision that permits the chair of the Senate Appropriations Committee and the chair of the House Appropriations Committee and their assistants access to income tax returns unrestricted by privacy protection. Members of the Senate Finance and House Ways and Means Committees, which have primary responsibility for drafting tax legislation, have limited access to tax returns, so that they can evaluate IRS and other assertions that existing law is being abused or fails to accomplish legislative intent, but their access is subject to serious civil and criminal penalties if they disclose or misuse the information. The provision slipped into the spending bill lacks those restraints.

After people reading the text of the spending bill raised questions about the provision, spokespersons for House and Senate leaders said that the provision was a "mistake" and an "error." They promised to remove it, and the Senate quickly passed a resolution stating that the provision "shall have no effect." The House is scheduled to take up the resolution on Wednesday, and House leaders promise it will pass. Until it does, the spending bill will not be sent to the White House for the President's signature.

Congressional aides claim that the provision was inserted at the request of Representative Ernest Istook, Jr., who chairs the transportation subcommittee of the House Appropriations Committee. Istook is no stranger to controversy, as this 1995 chronology of the "Istook Amendment" demonstrates. The bit about subcommittee staff admitted to the falsification of documents surely hasn't inspired me to rethink my disdain for how Congress operates.

The two chairs of the Appropriations Committees claim that they were unaware that the provision had been inserted into the legislation. Senator Kent Conrad of North Dakota fumed that the incident reflected a bigger problem, that is, the pattern of Congress having mere hours to review legislation that runs on for hundreds (or in this case, 3300) pages. (And people think I am wordy, ha ha). Yet Senator Stevens reacted negatively to Conrad's complaint, claiming that the incident was a unique event in his "more than 30 years" on the committee.

What's going on here?

Is it just a matter of the typical chaos and confusion? I've been on the Hill while legislation was being drafted. It's only a tad less frenetic than the pit at a commodities exchange. It is easy to see how mistakes can be made. But even if this incident is simply a consequence of how Congress does business, it is a sharp reminder that, as Senator Conrad reminds us, Congress doesn't do a good job handing the way it does business. If a business did business the way Congress does business, the business would soon be out of business.

Was it a mistake? Some members of Congress think not. They think it was deliberate. I think they're right. That's not to say I disbelieve the chairs of the two Appropriations Committees. I think that because of how Congress does business, someone very easily could have slipped the provision into the legislation without either one of them knowing it.

If "mistake" means "something that should not have been done" then, yes, this was a mistake. Accidents are mistakes. But if "mistake" means "it wasn't deliberate" then this incident was NOT a mistake. It's one thing to have something fall out of the legislative text. Or to have a page disappear (which almost always generates truly incoherent language). Or to have a typographical reversal of two numbers, or to use the wrong punctuation. Or to let an earlier version of a proposed statutory section supplant its replacement. But it's a totally different thing for a tax-related provision, an administrative provision, a provision having nothing to do with appropriations, to appear whole-cloth in a spending bill. One minute, not there, the next minute it's there.

How can this happen?

Why would something be inserted because Representative Istook wants it? Who's he? Oh, a subcommittee chair? With what, pre-emptive rights to single-handedly rewrite legislation outside a public hearing process? Perhaps he is being falsely accused of requesting the provision's insertion. Perhaps it was some other member of Congress.

Could it have been done by congressional staff without the knowledge of ANY member of Congress? Perhaps. Aside from the abdication of responsibility demonstrated by members of Congress if it were possible for legislation to be the subject of tampering without their knowledge, it amazes me that any person belonging to a congressional staff would take it upon himself or herself (or themselves?) to alter legislation. But after reading about the admissions of document falsification in the 1995 chronology of the Istook amendment, I suppose I ought not be amazed. Disappointed? Yes. Disgusted? Yes. Surprised? I should know better.

The staff should be drafting what Congress wants. I understand that the Congress does not and will not (and perhaps cannot) write the precise words. But if Congress requests a provision to do A and B, then the staff ought not insert something that does A, something that does B, and something that does C. Nor should any member of Congress, behind closed doors, instruct the staff to do so.

If a business executive or any other person asks a secretary to prepare a letter, it is conceivable that the secretary, trusted and experienced, could be left with the task of selecting precise language or inserting boilerplate. It is also the responsibility of the person signing the letter to read it, and woe to the secretary that inserts something not requested and not appropriate (sorry for the bad pun) for the message that the letter writer wishes to send. Procedures would be in place to prevent wilful and deliberate modification of the letter. Mistakes could happen, because typographical errors can be made, and words can be misspelled (even to the point of embarrassment). And, goodness, letters have been known to be put into envelopes addressed to persons other than the intended recipient. But if the secretary changes the letter, or inserts something when requested by some other person without authority to change the letter, all sorts of values are ill served. There is no justice, no fairness, no integrity, and no valor in such a surreptitious endeavor.

And there is no justice, no fairness, no integrity, and no valor in deliberate alteration of legislative material. There is no justice, no fairness, no integrity, and no valor in a Congressional process that lacks safeguards against such behavior. And there is no justice, no fairness, no integrity, and no valor in a Congress that won't change the way it does business.

The good news is that this incident was detected, and thwarted. The bad news is that the persons responsible may go unidentified, or if unidentified, unpunished. The even worse news is that there is no guarantee that it won't happen again. And that's just flat out outrageous.

My posting the other day on Getting It Right brought this insightful response from none other than my sister. The one who is a teacher, not the one who is an attorney (and who sometimes teaches as an adjunct).

After quoting this from the post,

Anonymous auditors were sent to 44 sites, pretended to be taxpayers, and presented various fact patterns to the volunteers. Ultimately 35 returns were prepared. How many were properly prepared? None. That's right, NONE.

she asks:

Could it be possible that the anonymous auditors were either:

a.) wrong in their results (who double-checked their findings?) Given the difficulty of completing a tax return described in the rest of the article, how can one believe that even the auditors were accurate?

or

b.) "setting up" the volunteers with scenarios that were rare or poorly presented to the volunteer? I wonder what a typical tax return that is brought to a volunteer would entail - what degree of complexitity or simplicity would a volunteer normally receive from a taxpayer? If the auditors "fact patterns" were significantly unlike those the volunteers generally prepare, than a zero success rate is not surprising.

Then again, it may be interesting to compare the accuracy rate of tax preparation by Joe Taxpayer with the most recent national statistics from high school No Child Left Behind test results. What Math and Comprehension skills are required of high school students? How are they performing on those tests? What is the Math and Reading level of the IRS tax booklet and forms?

Maybe President Bush should consider an amendment to the No Child Left Behind legislation that funds tax preparation classes in the nation's high schools. Students who earn an A can qualify for a 10% reduction in their taxes their first four years out of college, to help offset those huge college tuition loans.

Then again, if the anonymous auditors are hired to assess student's performance in the course, no students will be properly prepared and all will fail the class. (...which may then entail more government funding of the tax course, with even more stringent No Child Left Behind requirements that would require the auditors and the teachers to be fired for failure to perform.with replacement by IRS employees...who will then be too busy and too tired to properly audit the nation's tax returns.which would then cause our Senators and Representatives to step up to the task to ensure there's enough money for their salaries.which may finally result in a simplification of tax law.)

Anyone reading this can tell she's my sister! But she raises some good questions.

I do not know for sure but I think that the test scenarios taken to the VITA centers by the anonymous auditors posing as clients were reviewed by several or more reviewers. The more people that examine the return, the less likely there will be a mistake. I am very confident that the auditors used scenarios identical or similar to those encountered by the VITA volunteers when helping taxpayers. I glean that from the report that was issued.

I like the idea of teaching tax (and some other useful skills) in high school. I've made that suggestion to my classes throughout my teaching career. The idea of giving people tax reductions if they do well in such a course interests me. The question is whether it would interest anyone else. After all, a well-structured tax course for high school students would necessarily involve discussion of tax policy (and politics), which might be something some folks would prefer high school students not hear or see (he says sarcastically).

Perhaps members of Congress would volunteer to teach those courses. In the fall semester. So that they could be VITA volunteers in the spring. So that they can experience what they've imposed on their constituents.

What do you think?