Monday, April 29, 2024
Taxpayer’s Argument in Sales Tax Case Falls Flat
Reader Morris has directed my attention to a decision by the Commonwealth Court of Pennsylvania that addressed the question of whether Perrier carbonated natural mineral water is water exempt from the sales tax or a soft drink subject to the sales tax. The court explained that the product is a soft drink because it is carbonated using the same process used to carbonate soft drinks. The court relied on the definition of “soft drink” in the statute, which includes “carbonated water.”
As I’ve also pointed out, those who practice tax law learn, and must learn, all sorts of things that are beyond the statutes, regulations, and other authorities that set forth the law of taxation. In this instance I learned that Perrier carbonated natural mineral water isn’t simply natural carbonated mineral water extracted from underground. Instead, the mineral water and the carbonic gas are extracted separately from the same geological formation and then are combined through a process that involves removing impurities, chilling the water, and removing air from the water. Surprisingly, any carbonation in the harvested water is removed before the carbonic gas extracted from a different area in the geological formation is added.
This case is an interesting illustration of why legislatures need to do what attorneys need to do. Before drafting legislation, and while reviewing legislation as it moves through the legislature, legislators should acquire as much information as possible so that they can craft statutes that answer questions. In this situation, because of the arguable ambiguity in the statute concerning the differences between water and soft drink, the legislature could have simply inserted the word “noncarbonated” before the word “water” in the section of the statute exempting water from the sales tax or the phrase “artificially” before the phrase “carbonated water” in the definition of “soft drink.” Either of these tweaks, or any other that would align with what the legislature intended once it made itself aware of the uncertain status of Perrier water would have spared the litigants the cost and time invested in the litigation, and would have reduced the court’s docket by at least one case. On the other hand, if the statute had been so drafted, I and others might have continued with our ignorance with respect to how Perrier carbonated natural mineral water is produced unless some other reason caused us to research the question.
I close by tipping my hat to the court for its clever work with the English language. No, I’m not talking about the word “water” and the phrase “soft drink.” I’m referring to this sentence from the court’s opinion: “The issues raised before this Court bubble down to one question.” With the court’s decision, barring a reversal on appeal, the ongoing dispute between the taxpayers and the Department of Revenue over this issue has fizzled out.
Tuesday, April 23, 2024
When Preparing False Tax Returns Seems to Lack a Financial Motive
Today, the Department of Justice issued a press release describing the sentencing of a woman who had prepared more than 900 false tax returns. According to the press release, these fraudulent returns were prepared from at least January 2017 through June 2023. By claiming unjustified deductions, the preparer obtained for her clients larger refunds than they otherwise would have received. The IRS paid roughly $1.3 million in these fraudulent refunds.
The preparer charged at least $300 for each return that was prepared. That means that over seven tax preparation seasons the preparer collected at least $270,000. That’s only $38,571 annually. It is unclear if this was the total income collected by the preparer over those years from preparing returns, or if other returns also were prepared for which the preparer charged but did not subject to false deductions and credits. It also is unclear if the preparer had other income. I mention this because trying to live on $38,000 annually is difficult.
The preparer was sentence to one year and one day in prison, and to serve one year of supervised release. The preparer also was ordered to pay $1,349,314 in restitution to the IRS. The sentence leaves me with two questions.
First, was the preparer prohibited from resuming the tax return preparation business when released from prison? If not, why not?
Second, did the IRS recover from the preparer’s clients the $1.3 million in fraudulent refunds, and if so, then will the Treasury receive those amounts along with the restitution that the preparer has been ordered to pay? If so, does this constitute a sort of “double dipping” that ought not be permitted? Or should the $1.3 million that the preparer has been ordered to repay as restitution be more properly characterized as a fine or penalty, which would remove the specter of “double dipping” from the situation?
Other questions are not prompted by the sentence. Would the preparer have charged less than $300 for a return if the return did not include false deductions? Did the clients know about the false deductions? If the answers to those questions are “no,” then why not simply prepare false-free returns? I ask, because being required to pay more than $1.3 million and to sit in prison for a year is quite the price to pay in order to collect $270,000 in income, especially if that income could have been collected by preparing false-free returns. Something doesn’t add up.
Friday, April 05, 2024
Are Taxpayers Figuring Out the Games Played by the Starving Oligarchs?
Almost all of the time, until recently, owners of professional sports teams have succeeded in obtaining the public funding and tax breaks that they seek. It’s not as though they cannot make their enterprises profitable without public funding and tax breaks. It’s that they can make their enterprises even more profitable by increasing revenue through public funding and decreasing expenses through tax breaks. They often use the threat of moving to another location in an attempt to persuade public officials and, when the question is put to a referendum, voters. That works because there are locations eager to have a professional sports team even though many of those locations lack a population sufficient to support a professional team.
Now comes what might be good news, though in a complicated situation it may turn out to be short-term rather than long-term. According to this report, voters in Jackson County, Missouri, voted by a margin of 58 percent to 42 percent to reject a proposal to extend a sales tax to benefit the Kansas City Chiefs and the Kansas City Royals. What makes the situation complicated? The proposal was a combination of renovations to the Chiefs’ stadium and construction of a brand new stadium for the Royals. The former is much less expensive than the latter. Some predict that the Chiefs will now move forward by supporting a new proposal focused solely on renovations and thus requiring less public financing than demanded by the defeated proposal, freeing their issue from the more confusing situation enveloping the ever-shifting plans advanced by the Royals. If the separate sought the same amount as the Chiefs sought in the defeated proposal, it would seek $400 million from the taxpayers. Others suggest that if the Chiefs don’t get the requested $400 million, they should or could move across the border to Kansas City, Kansas and seek public financing and tax breaks from that state’s taxpayers though surely in amounts far exceeding $400 million.
Rodney Fort, professor emeritus of sport management at the University of Michigan, notes that owners of professional sports teams are increasingly failing to obtain the public financing and tax breaks that they have been seeking. He cites “the principle of taxpayers supporting venues where billionaire owners rake in profits seemingly one of the damning blows.” That characterization of the issue is in tune with what I have been writing for years.
David Carter, a sports consultant and business professor at the University of Southern California, asks, “Why not go after public subsidies?” He answers his own question: “Teams in (smaller markets) like the Chiefs, they’re delivering huge value for the residents in the community at large…You can argue that the taxpayers should pay for the benefit in their own backyard. That brand is so big and so important that there is some public value. And the owners try to gain that value through tax measures.” That answer resembles the defense offered by the governor of New York after agreeing to funnel $850 million of public money into the coffers of the Buffalo Bills, a few days before proposing a state budget that cut $800 million from the funding of the Office of Children and Family Services, as I explained in Tax Breaks For Starving Team Owners. New York’s governor praised and justified what was done with what I called “the typical ’doing good for the public’ and ‘creating lots of jobs’ claims. I reply to Carter the way I reacted to the governor of New York: “As I explained in Grabbing Tax Breaks, Sports Franchises, Casinos, and Now, a Water Park. ‘but this reasoning would support tax breaks for almost everyone, thus destroying government and civilization.’”
In an era when so many people vote against their own interests, it is refreshing to learn that some voters understood that billionaires don’t need tax breaks and public funding. It seems likely that the voters in Jackson County, Missouri, will have another opportunity to think critically about the impact of diverting taxpayer dollars to oligarchs who can survive, and do quite well, without those dollars. Time will tell.
Sunday, March 24, 2024
The Freedom Caucus Doesn’t Understand that the Mileage-Based Road Fee is “PRO-Freedom,” Not the Opposite
Thanks to Reader Morris, I have now learned that Freedom Caucus members in Arizona are trying to prohibit mileage-based road fees. For the moment, the good news is that their efforts have been, at least temporarily, blocked. The bad news is that they intend to reintroduce the bill, and I suspect they will continue pounding this agenda item until the populace acquires sufficient understand of mileage-based road fees and makes it clear that the prohibition attempt is pointless.
Interestingly, it was a Republican whose opposition to the Freedom Caucus effort that caused the legislation containing the prohibition to stall. The Republican who refused to go along with the Freedom Caucus proposition explained that he tried to get the text of the legislation changed to preclude what he saw as “multiple unintended consequences,” but was “met with flat-out refusal.” That’s no surprise, is it?
The proposed legislation “would ban government entities from tracking vehicle miles traveled by its citizens, bar taxes based on miles traveled and would stop government bodies from attempting to limit vehicle miles traveled in any way.” Supporters “described the freedom to travel by motor vehicle as fundamentally American.” One Republican explained, “Getting behind the driving wheels of our cars and driving without the burden of calculating a mile cost truly feels like freedom, because it is freedom,” and that there is a “looming threat to limit how much people drive.”
What these Freedom Caucus zealots fail to understand are the facts underlying the need for mileage-based road fees and how those fees fit into existing conditions. Arizona drivers already pay for the miles they travel, through an 18-cent-per-gallon fuel tax, which is, in effect, a tax on miles driven though it varies from driver to driver based on the fuel efficiency of the vehicle. Opponents of the mileage-based road fee don’t understand this, mostly because they are peppered with misinformation. Arizona, like other states and the federal government, faces decreased collections from fuel taxes because of fuel efficiency gains and increasing numbers of electric vehicles on the roads. The mileage-based road fee rebalances the burden of paying for necessary highway, bridge, and tunnel maintenance and repairs.
The Freedom Caucus either ignores or is unaware of Arizona Administrative Code section 18-2-1011, which provides
Ariz. Admin. Code § 18-2-1011Though I don’t know if every state has this requirement, I do know that Pennsylvania has the same requirement. So much for boo-hooing about the state knowing how many miles a vehicle has been driven. It is also important to note that the mileage-based road fee, like the state vehicle inspection requirement, reflects how many miles a vehicle is driven and not how many miles any specific driver has driven, a distinction that seems to have eluded the thinking process of the Freedom Caucus.
A. The Department shall provide a vehicle inspected at a state station with a uniquely numbered vehicle inspection report of a design approved by the Director that contains, at a minimum, the following information, as applicable to the tests required for the vehicle under R18-2-1006:
* * * * * 7. Odometer reading ;
When I hear these claims about “freedom” being tossed about whenever any proposal that is designed for the betterment of society and the people generally is put forth, I cannot help but think of what many parents hear from their adolescent children, what most middle and high school teachers hear from their students, and what police, prosecutors, and judges hear from law-breakers: “It’s a free country, I can do what I want,” “You are taking away my freedom,” and similar exaggerated uses of the word “freedom” and the concept it represents. To see this same abuse of the word and concept by people entrusted with doing what is best for society is beyond disappointing.
Nothing in the mileage-based road fee imposes a limit on how many miles a vehicle can be driven. Nothing in the mileage-based road fee imposes a limit on how many miles a person can drive in a year. The mileage-based road fee is not, as one of the supporters of prohibiting the fees claims, “anti-freedom.” If anything, it is “pro freedom,” because by rebalancing the burdens of paying for highway, bridge, and tunnel maintenance and repairs, it ensures that drivers will be free to travel without the fear of tire blowouts, broken suspensions, interrupted trips, injuries, and deaths that would become even more common in the absence of appropriate progression into the twenty-first century.
Thursday, March 21, 2024
The Misinterpretation and Misrepresentation of Economic Information
Let’s first look at retail store closings. Why do stores close? They close for a variety of reasons.
One significant cause is the transfer of shopping from retail store browsing and purchasing to online browsing and purchasing. That doesn’t mean the economy is slowing down or speeding up. It simply means that the marketplace has been moving. As older generations accustomed to in-person shopping depart this life and younger generations who are growing up in an online world turn to online shopping, the trend will continue.
Another significant cause is relocation of retail outlets. When people move from one area to another, retailers will follow. For example, when I saw a commentary claiming that Outback’s decision to close stores was due to “Bidenomics,” I did what too many people don’t do. Perhaps it is curiosity, but perhaps it also involves verification preferences. According to a spokesperson for Outback, as reported in this this report, while Outback is closing 41 stores it is opening 40 to 45 replacements. The spokesperson explained, “a variety of factors resulted in the decision, including sales and traffic-trade areas, which means how close customers live to a business location and how far they might travel to patronize it.” Similar closings and new openings also are happening with other retailers. Those who try to score debate points by taking information out of context or omitting all of the facts are, unfortunately, adept at swaying the opinions of those who don’t make any effort to thing through the information being highlighted.
Another cause, perhaps not as significant, is the closing of a store so that it can be renovated or upgraded to keep pace with societal expectation and demands in the in-person shopping environment. When the renovation is a gut-and-rebuild event, the closing appears to be permanent because of the length of time the project requires. I’ve yet to see a meme claiming that the opening or re-opening of a store is a manifestation of a healthy economy. It’s so much easier to criticize than to praise.
Another cause is the cyclical nature of certain sectors of the economy. For decades restaurants have closed and new ones have opened. Why? Sometimes the restaurant is dependent on a particular ownership. But often, people simply get bored or dissatisfied and, as is the case with fashion, music, art, and other cultural manifestations, eagerly turn to whatever is or appears to be new. That pattern doesn’t mean the economy is good, bad, or indifferent.
Another cause, the significance of which is debatable, is the closing of stores because of shoplifting and crime. Yes, this is happening, but only in certain places and not as a widespread national economic collapse. Is this a problem? Yes, of course. Can it be fixed? Yes. Are those responsible for curtailing shoplifting and crime doing their job? No. Is it their fault? In some instances, yes, but in many instances, they have been handcuffed by a variety of well-intended theoretical but pragmatically unworkable attempts to deal with crime in ways that don’t work.
Let’s put aside the “sky is falling” panic fueled by misinformation and incomplete or out-of-context reports and look at the economy. Is the economy a mess? That question masks two questions, namely, how is the economy now, and how is it expected to be in the future. Much like the same two questions concerning a person’s health, the first question can be answered by looking at existing conditions, whereas the second question involves the dangerous exercise of predicting the future and generates answers that are clouded by risks, probabilities, and generalities. I’m not about to join the seers and prophets who think they know what the economy will do, for the simple reason that I don’t know what the economy will do and have no desire to pile onto the growing mass of hedged and conditional forecasts.
What is the current state of the economy? What measure should be used? One can look at gross domestic product, employment, inflation, and consumer confidence, to mention four that get a lot of attention.
Fourth quarter 2023 GDP, the latest for which there is data, increased at an annual rate of 3.3 percent. The forecasts had been for a lower increase. By this measure, the economy is doing well.
When it comes to employment, again the economy performed better than what was predicted. In January, more than 350,000 jobs were added. During 2023, about three million jobs were created. The unemployment rate was 3.7 percent, below 4 percent for 25 months in a row. When was the last time that happened? In the 1960s. An unemployment rate between 3 and 5 percent indicates that the economy is at or near capacity. In other words, it is doing very well. Another employment measure is wages. Average hourly earnings increased from December to January, and increased 4.5 percent over the past year.
Inflation, which was terrible a few years ago, has cooled to 3.4 percent for 2023. It increased 0.3 percent in January, equivalent to an annual rate a bit higher than the 2023 rate, but still within the range of what is acceptable for a strong economy.
Consumer confidence for 2023, as measured by retail sales, increased by almost 5 percent. Disposable income increased more than 4 percent. Those are not signs of a sick economy.
So why do so many people think that the economy is a mess? In a few instances it’s a person’s reaction to their own experience, though too often a person’s economic situation isn’t entirely the fault of everyone but the person, and the person’s own choices surely affect their economic experience. The primary reason so many people are perceiving the economy as in a condition inconsistent with reality is the effectiveness of propaganda. Propaganda works best when it isn’t analyzed and challenged. It works best when it is gobbled up because it resonates with emotional predisposition, thus bypassing the prefrontal cortex. Add to this the woeful state of education in this country and a large segment of the population is a ready market for those who want to hide reality and create an environment of falsity. Where is this propaganda sourced? Much of it arrives from overseas, from countries that include admitted enemies and some countries that pretend to be friendly, because it benefits these nations if the United States is fragmented by creating a population segment that believes in the falsity. There also is a domestic source that puts political gain above national economic health, some of whom are fearful of the nation learning that supply-side, trickle-down economic nonsense shows its falsity when compared to a more sensible management of the economy.
Resisting the siren call of propaganda, misinformation, and misrepresentation is difficult. If it doesn’t happen, the false reality will become true, and the unpleasantness of that sort of environment will generate an understanding that comes too late to do anything about it.
Sunday, March 03, 2024
The Genealogy of My House
Until now.
On Friday, the weekly Delaware County (Pennsylvania) Council Public Relations newsletter arrived with an item explaining that it had upgraded its online property records search engine. The website permits a person to deeds, mortgages, and other documents online rather than making a trip to the courthouse in Media.
I knew I purchased my house from John and Elise Tucci. John was a Villanova Law student a year or two ahead of me. He also was a graduate of the University of Pennsylvania.
I knew the Tuccis bought the house from Ronald E and Iris D Frank, because shortly after moving in a postcard arrived from Japan from a young woman seeking to reconnect with a childhood pen pal who was one of the Franks’ daughters. Ron Frank was on the faculty at the University of Pennsylvania Wharton School when I was a student there, and by the time I spoke with him about the postcard he had taken a faculty position at Emory University.
Until Friday I had not tried to identify the person or persons who sold the house to the Franks? Once I accessed the deed that conveyed the property to them, I learned that the house was sold to them in 1965 by William Laurens Van Alen III and his wife Sydney Purviance Van Alen. So much for the realtor websites that state that the house was built in 1968.
Of course, I was curious about the Van Alens, so I did a bit of research. I discovered that William Laurens Van Alen III also was a Villanova Law graduate, in the class of 1962. In the yearbook (also online) his address was the same as mine now is: 219 Comrie Drive. I learned that like me, John Tucci, and others, he attended the University of Pennsylvania before entering Villanova Law. He then clerked for Chief Justice Bell of the Pennsylvania Supreme Court, practice law, and was a sportsman with championships in lawn tennis, court tennis, and golf. I became curious, sidetracked myself into exploring the Van Alen family, and learned he died in 2010 at his residence in Newtown Square, the nearby town where I grew up. His mother was the daughter of Atwater Kent, pioneer radio manufacturer, and a descendant of the Brinton family of Chester County, some members of which married into the Maule family (or is it the other way around?). His father was a well-known Philadelphia architect, attended the University of Pennsylvania, served on the boards of many Philadelphia institutions, and was appointed to the National Council of the Arts.
One last point before getting back to the house. William Laurens Van Alen III, who sold the house to the Franks, married twice. His second wife’s family name is the same as the family name of the husband of one of my nieces. So there’s another side track to explore.
So who sold the house to the Van Alens? They purchased it from the builder, Villanova Construction Company, owned at the time of the deed by William McCue, the surviving owner of the company. The house was built after the subdivision of a larger parcel of land purchased by the Villanova Construction Company from Howard F. and Charlotte Comrie.
And that answered a question that had been batted around for many years. Why Comrie Drive? I knew there was a town in Scotland with the name Comrie. What was the connection? There was the answer. It was named after Howard and Charlotte. Did they require that as a condition of the sale? I don’t know. So, off I went to see if my hunch was correct. It was. Howard Comrie’s great great grandfather was born in Comrie, Perthshire, Scotland and carried the surname Comrie. No, I didn’t try to trace back his ancestry to see if it connected with the Maule family of Panmure, Scotland.
How did Howard and Charlotte Comrie acquire the larger parcel of property? They purchased it from a trust company who held the property on behalf of Alice Rawle Geyerlin, who, if I am properly reading the deed handwriting acquired part of it from Cornelia L. Ewing and part from Charles Quigley.
Then I encountered a problem. The deed books changed from numbers to a combination of letters and numbers. But the website refused to accept letters as part of the book number. There is another path I can follow when I get the time. In her wonderful book, “Radnor: A Rare and Pleasing Thing,” the late Katharine Hewitt Cummin, a member of the Radnor Historical Society, traced the property history of each parcel in the township as defined for purposes of the 1798 federal window tax (that eventually did not get collected). I should be able to trace the property ownership back through the deeds that she researched.
Property genealogies have been done for numerous properties. What interested me was not the fact that the property ownership can be traced, as that is true of all the properties in this part of the country. It’s the connections between the owners of the house and myself. What are the odds that three of the four owners would be Villanova Law graduates? What are the odds that all four would either be graduates of or on the faculty of the University of Pennsylvania? And then there are the court tennis connections but I’ll leave that for another time. And somehow the word tax found its way into this post. Not quite a big surprise.
In a time that history will record as having been flooded with division and divisiveness, it’s nice to find yet another example of connections.
Thursday, February 22, 2024
Does Anyone at the IRS Read This Blog?
My March 2020 commentary addressed an experience reader Morris had when he went to his “regular Chinese restaurant,” and found in his fortune cookie a message, “Tax tip # 8 Travel could be considered a business expense. Even that island vacay. TaxAct Surprisingly legal. Start for Free: TaxAct.com” Doing some research, I discovered that marketing firms are purchasing space on the flip side of fortune cookie slips to print their messages.
The story that reader Morris shared with me explained that the IRS Director of Stakeholder Liaison announced at a conference that the IRS would be using space on the flip side of fortune cookie slips for messages to taxpayers. Fortune companies are making the space available to the IRS without charge. The IRS plans to provide tax advice, including reminders about deadlines. I suppose the last thing someone wants to put into their brain at mealtime is taxation, though I am confident that some people are thinking about deductions when they pay for a meal.
As for the suggestion from reader Morris that perhaps the IRS reads my blog posts, maybe that happens. But I doubt that my post in March of 2020 generated the IRS fortune cookie plan. My guess is that a professional marketing/PR type of company approached the IRS or was approached by the IRS Tax Outreach, Partnership, and Education Team, and someone suggested making use of the fortune cookie messaging approach.
Now if links to this blog or posts on this blog begin to show up on fortune cookie slips carrying the IRS logo, I will want to know. Then I can revisit the question that I asked in the title to this post.
Wednesday, February 07, 2024
Is the Tax Return Preparer or the Client Responsible For Unjustified Deductions?
From time to time, the two topics meet. Thanks to reader Morris, I’ve learned of this sort of situation in a People’s Court case from several years ago. The facts are simple. The plaintiffs returned to the tax return preparer they had used the preceding year with no issues. The preparer told the plaintiffs to save all their receipts, though it was not clear that the plaintiffs understood that the preparer would go through the receipts to identify those that were relevant for income tax purposes. Though there had been no deductions on the previous year’s return prepared by the preparer, deductions were claimed on the return in question that amounted to 50 percent of the husband-plaintiff’s W-2 income. The deductions in question consisted of employee business expenses. The husband-plaintiff worked for a railroad and so deductions were taken for meals, lodging, uniforms, and similar expenses. The IRS determined that there was a deficiency, which with interest, amounted to about $5,000. The plaintiffs sued the preparer, asserting that the preparer should pay the taxes and interest, in effect blaming the preparer for the problem. When the IRS audited the return, it asked for a letter from the husband-plaintiff’s employer stating the employer’s reimbursement policy and details about its reimbursement plan, a letter that in theory could substantiate some or all of the deductions. The plaintiffs failed to request the letter because by the time the IRS asked for it the husband-plaintiff no longer worked for the railroad. The judge found that response to be questionable, and proposed that the husband-plaintiff did not ask for the letter because he knew that the return was claiming excessive amounts of deductions.
The judge concluded that the preparer was not responsible for the taxes owed by the plaintiffs. She also concluded that the preparer was not responsible for the interest, stating that the plaintiffs would otherwise have obtained an interest-free loan for several years.
The judge then admonished the defendant, telling the preparer that she was aggressive. The judge also told her that she had an obligation to manage her clients’ expectations. The judge told the preparer that she knew what she was doing. I interpret that as a warning to the preparer to do something more than simply prepare a return with deductions so high that it would be, in the judge’s words, a “red flag” for the IRS.
When a preparer prepares a return that shows “red flags,” which may or may not turn out to be an indication that something is wrong, the preparer should asked clients for evidence. In this case, the preparer, after seeing the amount of the deductions, should have asked the plaintiffs for the letter from the employer at that point. Then, if the IRS did audit, which in fact it did, the supporting evidence would be at hand. Of course, in this case, it is highly unlikely that the letter from the employer, if obtained, would have supported the deductions in question. And, as the judge told the plaintiffs, when a client looks at a return and sees something extraordinary, such as deductions amounting to 50 percent of income, the clients should know something isn’t quite right.
Saturday, January 27, 2024
Is There Ever a Free Lunch, Even in the Tax Return Preparation Business?
Recently, reader Morris directed my attention to a case involving the third-largest tax return preparation business, Liberty Tax. According to the Attorney General of the District of Columbia, an action was brought against Liberty Tax, alleging that it “misled and overcharged” at least 7,300 residents of the District of Columbia who obtained tax return preparation services from Liberty tax. The case rested on a Liberty Tax “cash in a flash” marketing angle. According to the Attorney General, Liberty Tax offered $50 in cash to anyone who filed their returns through Liberty Tax, and described the cash as coming with “no catch.” The Attorney General alleged that Liberty Tax charged customers who accepted the $50 an average of $200 more than what it charged customers who did not accept the $50.
The case did not go to trial because the parties settled. Under the settlement, Liberty Tax must pay $550,000 to the District of Columbia residents who accepted the $50 and then were overcharged. It must also pay $200,000 to the District of Columbia. The settlement requires Liberty Tax to stop using the “cash in a flash” program throughout the nation, and prohibits it “from creating new incentive programs that impact the prices the company charges for tax prep for those consumers who receive the incentive.” To ensure that these settlement provisions are followed, Liberty Tax must report to the Attorney General’s office “any incentive programs implemented to attract consumers, including submitting all of their marketing and training materials,” along with information that enables the office to determine whether incentive programs are affecting the fees charged to customers who accept the incentives.
Lest anyone think that this sort of “cash up front, we’ll get it back and more on the back end” arrangement was invented by, or used solely by Liberty Tax, or that it is specific to the tax return preparation business, rest assured that it is a marketing technique used for decades or longer and used across all sorts of industries and economies. If anyone enticed by this sort of promotion stops to think about it, they would realize that the cash incentive must come from somewhere. Putting aside the possibility of a business printing counterfeit money, there are four possibilities. First, the business does what Liberty Tax did, simply increase the price charged to recipients of the incentive. Second, increase the price charged to customers who don’t receive the incentive. Third, let profits decrease by the amounts paid out in incentives. Fourth, reduce salary and benefits paid to some or all employees. Perhaps there is a fifth, which is to somehow get one or more governments to subsidize the incentive, which shifts the economic burden onto those who pay taxes to those governments, those who receive other benefits from those governments, or a combination of both.
The bottom line is that oft-repeated axiom, “there is no such thing as a free lunch.” The enticement of quick cash or some other benefit, coupled with a lack of understanding of how economics works, makes it easy for marketing ploys such as the one used by Liberty tax to succeed. How can this be stopped? One approach is what happened in the District of Columbia. Government, acting under laws enacted to protect consumers, step in to stop the practice and in some instances provide a remedy. The disadvantages of this approach are that not every deceptive practice is identified, some legislatures are anti-consumer and refused to enact such laws or fund enough oversight, and the chorus of “we don’t need no regulation” from the anti-government, pro-I-have-freedom-to-do-what-I-want crowd continues to grow in volume and intensity, making it increasingly difficult to protect people from deception. Another approach is to educate people, starting from an early age, so that they indeed understand that there is no such thing as a free lunch, learn to spot these come-ons, and develop skills to make economic and financial decisions rationally rather than impulsively or emotionally. The challenges with this approach are the lack of time and resources dedicated to enlightening people and the ever-increasing trend of prohibiting schools from teaching skills and materials that enable people to learn how to think for themselves.
Friday, January 19, 2024
Should Tax Return Preparers Use Their Full Legal Names?
I don’t write every time I read an article or press release announcing the arrest, indictment, or conviction of a tax return preparer. In many instances there’s nothing particularly instructive because the preparer in question has repeated what another preparer has done. Other than differences in the number of returns and the dollar amount of lost revenue, there usually isn’t anything that grabs my attention. But a press release issued yesterday by the Department of Justice caused me to think about an aspect of tax return preparation I had not previously considered.
According to the press release, a tax return preparer pleaded guilty to inflating her clients’ tax refunds by preparing and filing “false tax returns that claimed fraudulent deductions and fictitious business profits and losses.” These filings caused a revenue loss of at least $400,000. The preparer also obtained more than $83,000 in Paycheck Protection Program loans by submitting false IRS forms with fake business income from “bogus businesses.” She also filed a false claim for unemployment insurance with the Maryland Department of Labor based in false federal income tax forms, and as a result, receiving more than $55,000.
What caught my eye was that the preparer did business as “The Tax Lady” and as “5 Starr Business Solutions.” Starr is the preparer’s surname. Should individual preparers be required to do business using their full name, or at least display their full name underneath any business name? Without such a requirement, a prospective client who is doing due diligence vetting needs to do research to learn the legal name of the preparer in order to see if that preparer operates other businesses under different names for which there are records of inappropriate or worse business practices. Most people do not know how to learn the legal name behind a business. Sometimes it’s easy. Too often it’s difficult and occasionally almost impossible.
But what of the corporate tax return preparation companies that employ hundreds or thousands of tax return preparers? Those companies are much easier to find. They are accountable for misdeeds by any of their employees. They are big enough that they cannot hide the way some individual preparers do and have done.
And what of individual tax return preparers who operate through a corporation using an invented corporate name? Again, it isn’t all that easy to identify the preparer who is behind that corporation. Should tax return preparers be prohibited from operating through an invented name?
When certain professionals, such as physicians and attorneys, operate a business that isn’t their actual name, whether or not in partnership, LLC, or corporate form, they are required to display their name or names in the appropriate place. Their names are on the firm’s or practice’s website, on emails, on letterheads, on court filings, on prescriptions, on medical reports, and on any other relevant document. If they can do that, so, too, can tax return preparers. Note that some states permit the use of fictitious names by physicians but from what I can figure out, the physicians need approval and it’s granted when a physician wants to omit a middle name, use their original name after changing their legal name due to marriage, or shortening their name if it is long and difficult to pronounce. That is a totally different issue than practicing medicine or law using an invented name that disguises the person’s identity.
People want to know who is giving them legal advice, representing them in negotiations or litigation, giving them a medical examination, or prescribing their medications. Do not people want to know who is preparing their tax return?
Thursday, January 04, 2024
Not That More Proof is Needed, But Here’s Yet Another Example That Taxes Aren’t “Just Numbers”
Today one of my tax-related email alerts drew my attention to another example of why tax is much more than just numbers. In Philadelphia Energy Solutions Refining and Marketing, LLC v. U.S., 2022-1834 (Fed. Cir. 3 Jan. 2024), the U.S. Court of Appeals for the Federal Circuit affirmed the decision of the Claims Court that a mixture of butane and gasoline did not qualify for the alternative fuel mixture credit. That credit is designed to offset the excise tax on alternative fuels. There also is an excise tax on taxable fuels, which by definition are not alternative fuels. An example of a taxable fuel is gasoline. Examples of an alternative fuels include benzol, benzene, and liquefied petroleum gases. The petroleum industry treats butane generally as a liquefied petroleum gas.
About ten years after Congress enacted the credit, the taxpayer filed refund claims for each taxable quarter in the years 2014 through 2017, claiming that it paid excise taxes on a mixture of butane and gasoline, and that it was entitled to an alternative fuel mixture credit to offset those taxes. It argued that the mixture in question was an alternative fuel. The IRS did not respond to the taxpayer’s filing so the taxpayer sued for a refund in the Claims Court. The Claims Court denied the taxpayer’s claim, holding that butane is not an alternative fuel and that a mixture of butane with gasoline is not an alternative fuel.
The Court of Appeals pointed out that although this was the first time it had faced the question, two other Courts of Appeal had done so and had held as did the Claims Court. Somehow I did not notice those other two Court of Appeals decisions.
The Court of Appeals explained that under the statutory definition, an alternative fuel mixture is “a mixture of alternative fuel and taxable fuel (as defined in subparagraph (A), (B), or (C) of section 4083(a)(1)) which— (A) is sold by the taxpayer producing such mixture to any person for use as fuel, or (B) is used as a fuel by the taxpayer producing such mixture.” The Court explained that there was no dispute between the parties that gasoline is a taxable fuel. Under the statute, taxable fuel “means—(A) gasoline . . . .” The parties also did not dispute that under the same definition, butane is a taxable fuel, because the statute provides that the term gasoline includes “any gasoline blend stock.” The regulations under the statute state that gasoline blend stocks “means (A) Alkylate; (B) Butane; (C) Butene; . . . .” Accordingly, because both gasoline and butane are not alternative fuels, a mixture of the two is not an alternative fuel because an alternative fuel requires a mixture of a taxable fuel and an alternative fuel.
Nonetheless, the taxpayer argued that the credit should apply to the mixture because liquified petroleum gas is included in the definition of alternative fuel, and under industry understandings, butane is a liquified petroleum gas. The taxpayer argued that because the Congress did not provide a cross-reference in the credit statute to the definition of alternative fuel even though it provided a cross-reference to the definition of taxable fuel, it must have intended that the definition of alternative fuel for purposes of the credit was not the same as the definition of alternative fuel for purposes of the excise tax on alternative fuels. The taxpayer pointed out that the definition of alternative fuel in the credit statute states that alternative fuel “means—(A) liquefied petroleum gas, (B) P Series Fuels . . . .” Accordingly, argued the taxpayer, because the statute did not define liquified petroleum gas for purposes of the credit, the definition should reflect the industry understanding that it includes butane. The Court rejected the argument because even though looking at the credit statute in isolation it might appear that the taxpayer had a point, the analysis required looking at the “statutes as a whole,” which makes it clear that butane is not an alternative fuel. This conclusion was buttressed by the fact that a taxable fuel, such as butane, was by definition excluded from the definition of alternative fuel.
There are several lessons to be learned from this case. First, as pointed out at the beginning of this post, tax practice is more than dealing with numbers. Second, as I’ve pointed out many times, those who practice tax end up dealing with everything in life, not just meal exclusions, medical expense deductions, and similar transactions, but also the definition of fuels. Third, though law students think accounting majors “have the edge for grades” in the basic federal income tax course, they don’t, but perhaps when it comes to the alternative fuel credit chemistry majors would have an advantage but for the fact that no basic federal income tax course of which I’m aware covers these taxes (not only because it is a complex and specialized area but also because it involves an excise tax). Fourth, to no one’s surprise, once again we are blessed with an example of inadequate statutory drafting by the Congress, reinforced by the fact that after the years in issue in the case Congress amended the statute to provide that a mixture of gasoline and butane is not an alternative fuel.
Thursday, December 21, 2023
Should (Will) Implementing the Mileage-Based Road Fee Cause Privatization of Highway Infrastructure?
This morning, reader Morris directed my attention to a commentary that supports implementation of the mileage-based road fee, but that also suggests, and seemingly supports, the idea that the implementation will open the door to privatization. The author argues that privatization is “a concept supported by numerous studies showcasing the efficiency and performance improvements possible through transparent and well-structured public-private partnerships,” and adds, “The private sector has a proven track record of driving innovation in transportation safety. Extending this partnership to infrastructure allows for the implementation of cost-effective technologies, ultimately making our roads safer and more efficient.”
What I do not support is the privatization of government functions. I have explained my objections to public-private partnerships and privatization of public functions in posts such as Are Private Tolls More Efficient Than Public Tolls?, When Privatization Fails: Yet Another Example, How Privatization Works: It Fails the Taxpayers and Benefits the Private Sector, Privatization is Not the Answer to Toll Bridge Problems, When Potholes Meet Privatization, and Will Private Ownership of Public Necessities Work?
Why do I believe that public functions belong in the public sector. There are several principal reasons that I oppose putting public functions into the hands of those who control the private sector.
First, public-private partnerships don’t work out well, as I explained in posts such as Selling Off Government Revenue Streams: Good Idea or Bad?, Are Citizens About to be Railroaded on Toll Highway Sales?, Turnpike Cash Grab Heats Up, Selling Government Revenue Streams: A Bad Idea That Won't Go Away, Turnpike Lease: Bad Policy and Now a Bad Deal , How Do Toll Road Lessees Make a Profit?, The Pennsylvania Legislature Gets It Right, Killing the Revenue Idea That Won't Die, Are Private Tolls More Efficient Than Public Tolls?, and More on Private Toll Roads. These posts pointed out failures in places like San Diego, Orange County, and South Carolina. The failure list grows, and now includes arrangements that did not work for the Interstate 69 project in southern Indiana, and the Pocahontas Parkway in Virginia. From the searching that I undertook, it appears that the problem is a global one and not limited to the United States.
Second, when public functions are re-routed into the hands of private sector businesses, voters lose the ability to control, vote out, or do much of anything with respect to the private entities now running government functions. It is a regression from democracy to a blend of feudalism and authoritarianism.
Third, these arrangements contribute to the corruption of government. They are the product of legislative attempts to find funding without raising taxes while generating revenue for their private sector donors, with hopes that the outcry against tolls and similar charges will be directed against the private entity involved in the project. When things go wrong, legislators don’t react because they perceive themselves at risk of losing funding from the favored private entities and thus at risk of losing the next election, something on which they focus too much.
Aside from the long-term disadvantages of privatizing public functions, the arguments offered in support of that path are flawed. To argue that privatization is “a concept supported by numerous studies showcasing the efficiency and performance improvements possible through transparent and well-structured public-private partnerships,” totally ignores the repeated failures, perhaps because from the viewpoint of the companies and individuals collecting public funds not only find these partnerships to be a success for themselves but manage to persuade everyone else that the success of these private sector participants translates to success for everyone, which is the opposite of reality. The claim that “The private sector has a proven track record of driving innovation in transportation safety” is hilarious when one considers the track record of the private sector when it comes to safety. Aside from noting the Corvairs and Pintos of the world, it has been government that has compelled the implementation of safety features and insisted on recalls due to flawed manufacturing despite the sing-song of the anti-government crowd that chants “we don’t need no regulation.” Yes, you do.
The claim that “Extending this partnership to infrastructure allows for the implementation of cost-effective technologies, ultimately making our roads safer and more efficient” ignores the reality that even if the roads are made safer and more efficient, an questionable claim in and of itself, it makes voter control more difficult rather than more efficient, it funnels public money into the hands of private individuals and companies, and in the long run it increases the cost to the public of using highways, bridges, and tunnels to levels higher than they would be if there weren’t a need to generate profits for those private individuals and companies.
It is sad and alarming that, yet again, when a good idea in the public sector begins to gain traction, the wealthy who yearn for even more wealth, and their acolytes, turn their thoughts into how they can milk more money from the proposal. Enough with the outsourcing of government to privateers.
