MauledAgain

A few days ago I commented, somewhat sarcastically, on Tom DeLay's puzzling reaction to Justice Kennedy's use of the Internet to do legal research. Though most of the comments I've since seen or heard are consistent with my reaction, including a quip that the next criticism will be directed toward abandonment of quill pens for ballpoints, I've heard a few speculative explanations that are bothersome if they are true.

Someone suggested that DeLay does not realize that legal research can be done on the Internet. Well, if that is true, it's incredibly outrageous. Tom DeLay is a member of Congress. Congress enacts and amends law. Some of those laws affect use of the Internet. DeLay ought to know something as basic as where legal research can be done.

Someone else suggested that DeLay simply may be casting the situation in a light that will appeal to those persons who think activist judges should be curtailed and that wandering into the broad scope of legal resources available on the Internet, including laws of other countries, is a characteristic of activist judges. As I pointed out in my original post, though there is room to debate the extent to which law in another country should inform decision making by a U.S. judge, it is a quality trait to be active in educating one's self. Gee, that's a trait that wouold be helpful to each and every individual, with members of Congress at the head of the parade.

Another guess was that DeLay may have been voicing a concern that judges use the Internet to discover facts that are not in the record before them. Without getting into an extensive discussion of judicial notice, it doesn't seem as though the concern was a Justice's attempt to ascertain additional facts, considering that the records in Supreme Court cases are almost always thoroughly developed.

Note that the folks who were trying to explain DeLay's comments weren't so much agreeing with the speculation as they were trying to make sense of what is, to me, a totally bizarre episode.

It gets better. Unless Westlaw made a mistake, it appears that Justice Breyer also uses the Internet. In this instance, it was indeed an attempt to clarify a fact in the record. When the Court was hearing the Van Order (Ten Commandments case), Justice Breyer asked:

I've got to get one question before you leave because you're the one who knows the record. And what I've had a hard time finding in the record is what I think there must be some material that the State or somebody in a tourist office or a guide or somebody tells people what the 17 different monuments are. And all I've found is the general brochure which doesn't tell them what they are. And I found something on the Internet. Well, which is in the record. But aside from this page from the Internet in the record and that, is there anything else in this record that if somebody wanders around, they're on the State grounds, they say, what is this, what are these things anyway? There must be something to tells them. And where is it?

It seems that what Justice Breyer found was the same Internet page that already was in the record. That certainly reinforces the proposition that the record is in good shape when the case reaches the Supreme Court. Is it so wrong for a Supreme Court Justice, or any federal or state judge, to do some factual research to get an idea of whether the record has been developed properly?

Here's an even more incredibly outrageous thought: Could it be that DeLay was referring to the question by Justice Breyer when he made the comment about Justice Kennedy? Goodness, it would be nice if someone as high ranking in the House as is Tom DeLay would step up and either clarify or retract his statement. But perhaps the one commentator is correct. Perhaps political purposes aren't well served by a clarification or retraction in this instance. That's too bad. For everyone.

Of course, the analysis of MauledAgain readability brought a swift reaction from my sister. She's an educator with a specialty in teaching reading to students who need remedial and other assistance, and she has spent many of her teaching years in a dual role, serving as an administrator of reading programs. Her response is worth reading in full:

Very interesting.

I will have to compare this with my readability charts at school.

Of course, as a reading specialist, I would have to add that readability is not merely about the number of words in a sentence and the number of syllables in a word. This is the presumption that was made with the old "basal reader" that failed many a child in elementary school.

Readability also includes the overall layout of the text on the page, the font size and color, the effect of diagrams, photos, illustrations, etc. and the way in which the author organizes the materials and includes support for the reader, such as embedded definitions, introductory and summarizing sentences, etc.

The reader, of course, remains the unknown quantity. What is the reader's intent or purpose for reading? What background knowledge does the reader bring to the task? Can interest and focus be maintained? Does the reader actively clarify during the reading? Is the reader attentive enough to be able to effectively retell and summarize portions or all of the material?

Just a few things to think about.

She's quite correct, of course. Anyone who has tried to slog through IRS regulations learns that page layout, white spacing, footers, and other features makes a huge difference in comprehending the message imbedded in the regulations. I've yet to figure out how to adapt MauledAgain to those sorts of features.

Half an hour later, her husband sent me an email. True to form, he tried to be practical and entertaining at the same time:

Interesting. When I put in various chapters of the Bible it turns out that the old testament is much harder to read than the new testament. Obviously some parts of the Bible are much different than the whole - Psalm 23 being simple compared to select chapters of Genesis or Revelations which can reach US government standards in coverup.

The US Constitution is much harder to read than TV Guide, most novels, and the Wall Street Journal - which reconfirms it is beyond the understanding of most politicians.

My first thought was that my sister thought my posting was "very interesting" whereas Michael though it was "interesting." Oh well, maybe there's some sort of sibling premium at work.

Now I'm going to go distract myself and start pumping all sorts of materials into the readability tester!

Sometimes, as in this instance, I abandon my resistance to being a mere imitator. When I saw that Paul Caron had subjected the TaxProf Blog to a readability evaluation, I knew that I had to do the same for mine. After all, I told I speak in long-winded convoluted sentences. Do I write that way? The folks at Juicy Studios have set up a web page that analyzes web sites, single HTML documents, and a few other things.

So.... here we go, and you can draw your own conclusions:

Readability Results for http://mauledagain.blogspot.com

Summary	Value
Total sentences	559
Total words	8,957
Average words per Sentence	16.02
Words with 1 Syllable	5,889
Words with 2 Syllables	1,803
Words with 3 Syllables	855
Words with 4 or more Syllables	410
Percentage of word with three or more syllables	14.12%
Average Syllables per Word	1.53
Gunning Fog Index	12.06
Flesch Reading Ease	61.17
Flesch-Kincaid Grade	8.71

Interpreting the Results
Philip Chalmers of Benefit from IT provided the following typical Fog Index scores, to help ascertain the readability of documents.

Typical Fog Index Scores

Fog Index	Resources
6	TV guides, The Bible, Mark Twain
8	Reader's Digest
8 - 10	Most popular novels
10	Time, Newsweek
11	Wall Street Journal
14	The Times, The Guardian
15 - 20	Academic papers
Over 20	Only government sites can get away with this, because you can't ignore them.
Over 30	The government is covering something up

The following section describes the Gunning-Fog, Flesch Reading Ease, and Flesch-Kincaid algorithms for readability.
Gunning-Fog Index
The result is your Gunning-Fog index, which is a rough measure of how many years of schooling it would take someone to understand the content. The lower the number, the more understandable the content will be to your visitors. Results over seventeen are reported as seventeen, where seventeen is considered post-graduate level.
Flesch Reading Ease
The result is an index number that rates the text on a 100-point scale. The higher the score, the easier it is to understand the document. Authors are encouraged to aim for a score of approximately 60 to 70.
Flesch-Kincaid grade level
The result is the Flesch-Kincaid grade level. Like the Gunning-Fog index, it is a rough measure of how many years of schooling it would take someone to understand the content. Negative results are reported as zero, and numbers over twelve are reported as twelve.

A colleague drew my attention this morning to a story on the Chronicle of Higher Education web site about the disadvantages of information technology. The under-headling, "Wired campuses may be causing 'information overload'" caught my eye and inspired my comment to my colleague, "That's been a problem long before technology evolved. Every day I acquire more information and my brain is getting full." He agreed, and described the challenges of dealing with the fall-out of the Supreme Court's recent sentencing decision, which leaves in its wake a wide array of lower court opinions reacting to the decision. I pointed out that the glut of court cases on sentencing, which is one of his areas of expertise, would have arisen regardless of technology, and that technology made it much easier to search through, sort, arrange, and analyze the cases than would have been the situation in the days of paper, pencil, and photocopies. He agreed.

The primary concern of the computer scientist featured in the first part of the article, David Levy of the University of Washington, is that scholars are losing touch with the reflective and contemplative aspects of scholarship. That need not be the case, though, if scholars are conscious about budgeting contemplation time in their lives. I'm not a scholar in the traditional university mold, though I occasionally play the role to placate some folks, but I allow myself time to ponder. The distractions of e-mail, listservs, blogs, and all the other hallmarks of digital technology are simply an enrichment of the distractions afflicted on students by television during the past half-century. Good budgeting, which for children means good parenting, shoves the television aside for study time. So it was for me. Today, there's more to shove aside, but unlike television, a passive brain-numbing zombie machine, e-mail, blogs, listservs and the like provide opportunities for students and scholars to engage their brain. Of course moderation is in order. Perhaps I was taking that for granted, and Prof. Levy done me a service by reminding me that some folks get so immersed in the acquisition of information, or the generation of information, that they don't take enough time to exercise their "thinking muscles." Prof. Levy says he uses his Sabbath observation as part of his moderating balance, and I can relate. When I go to church, there's no cell phone, no e-mail, no television. But unlike Eric Brende, who advocates giving up all modern devices, I see no point in returning to the candle-lit days of horse-manure-filled muddy roads, its attendant disease, and other disadvantages.

Another featured academic, Prof. Buzz Alexander of the University of Michigan, directs his students to meet with him in person rather than communicate by e-mail. Sometimes e-mail is insufficient. Some things are more easily discussed in person. But if I tried to shift all my e-mail correspondence to in-person visits, I'd be back in the early 80s with lines forming at the door, with repetitious conversations, and with huge inefficiencies. Some questions are meant for e-mail. Perhaps Prof. Alexander doesn't have the 150 students or more per semester that have been a salient feature of my teaching career.

Prof. Bill McKibben of Middlebury College worries that there are so many trees that finding the forest will become impossible. Interestingly, one of the emphases in my teaching is making certain students know how to find the forest.

Michael Gorman, dean of library sciences at California State University at Fresno, suggests that using google to find information is not scholarly research. Of course. Scholarly research requires doing something with the information. It needs to be analyzed, processed, compared, turned inside out, corroborated, explained, challenged, tested, and absorbed when worthy. Again, it is incumbent on those of us who teach to push students out of the "information in during semester, regurgitate on exam" approach that has become way too common in education. A word of warning to those who push students to answer "Why?" rather than "Who, what, when?" or who demand students identify errors in argument, questions that need to be asked, or assertions irrelevant to an objective. Students are comfortable with "information in, information out," often squirm and complain when moved into what I call the puzzle-solving and puzzle-planning mode, and then, fortunately, generally come to appreciate and enjoy the deeper use of information in the context of contemplation. It's that transition period that is so tough.

When David Landers, director of the student resource center at Saint Michael's College expresses concern that technology deprives students of the face-to-face interaction needed in a work environment, my reaction is to ask, "Have you seen most work environments lately?" Face-to-face interaction, though it still exists, has faded. He's right, though, that students need to do other things. After all, a brain in an unexercised body isn't getting the appropriate nutrients. A brain that doesn't encounter the world in community service is starved for context. Yes, it's a matter of moderating balance, something that we who are older usually grasp more easily than those who are younger, just as we, when younger, generally lacked the ability to be moderate and balanced.

Technology is a tool, or better, a collection of tools. How we use those tools is up to us. If we use them improperly, we ought not blame the tool. A hammer is not good or bad. A hammer is a hammer. When used for a good purpose, like fixing a fence, it remains a hammer. When used for a bad purpose, like bashing in an ice skater's knee (wait, that was a crowbar, right? Sorry), it remains a hammer. If we can teach people how to use hammers in good ways, we can teach people how to use technology in good ways. And we can teach people to think about what it is they are planning to do with the hammer, and why, and to use the hammer appropriately. It's the same mindset that needs to be instilled in people who think they can carry on intense cell-phone conversations (hands-free or otherwise) while driving.

But it's good that some in the academic world are thinking about this issue, and sharing their thoughts. Then the rest of us can think about it. Which is, of course, their very point.

How would you like to have $200,000 or more of income and pay no income taxes to any country? Sound too good to be true? Guess again.

A recent IRS report on high-income taxpayers, based on the last year (2001) for which information is available explains that there were 2,567,220 individual income tax returns with adjusted gross income of $200,000 or more. Of these returns, 3,385 showed no U.S. income tax liability, and 2,875 showed no income tax liability to the U.S. or any other country. In 2000, there were 2,328 and 2,022 such returns, respectively.

Using expanded income of $200,000 or more as the base (which takes into account tax-exempt income), there were 2,605,021 individual income tax returns withexpanded income of $200,000 or more. Of these returns, 4,910 showed no U.S. income tax liability, and 4,119 showed no income tax liability to the U.S. or any other country. For 2000, the comparable numbers were 2,766, and 2,320.

Considering that in 1997 there were only 1,562 returns showing adjusted gross income of $200,000 but no income tax liability to the U.S. or any other country, it is safe to conclude that a trend is developing. I imagine that when the data turns up several years from now we'll discover that the 2004 numbers are much closer to 10,000. Many articles have been written about, and criticizing, the ways taxpayers eliminate their income tax liability, including this brief but informative column by Tom Herman.

A no less important issue is the impact that this news has on the taxpaying citizenry. It's tough to get enthused about paying one's taxes, or even to be accepting of one's civic duties, when thousands are essentially doing the equivalent of going straight from the left turn lane (or, perhaps better yet, making a left turn from the right turn lane as I saw a person do this morning!). I suppose these folks think they're special, better than the rest of us, and entitled to be treated by the world in the same pampered manner to which they've become accustomed.

Here's a clue as to the impact. The Tax Foundation's annual survey of U.S. Attitudes on Tax and Wealth, well worth reading in its entirety, revealed that 59% of respondents thought that they paid more in federal income taxes each year as a percentage of income than has Donald Trump. (Poor Donald, he gets picked on so much, and there's no reason to suggest he is in the zero tax liability crowd). Whether or not the respondents are wrong, it's the perception that matters.

No wonder 77% of the survey respondents think the tax system needs a major overhaul. They're right. Any tax system that lets folks with more than $200,000 of expanded income pay zero income tax on a worldwide basis is a tax system that has written its own death warrant.

This morning's Philadelphia Inquirer story about Tom DeLay's criticism of Justice Kennedy contained a quotation that thoroughly confused me. According to the story, DeLay was interviewed by Fox News Radio, and after describing Kennedy as an activist and isolated Republican-appointed member of the Supreme Court, he said

Absolutely. We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous. And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous.

Although the issue of whether international law should inform Supreme Court decisions is a real one with respect to which there are conflicting views, it startled me that someone would think it "incredibly outrageous" that a Supreme Court justice would do research and would use the Internet to do so.

Perhaps something was taken out of context or misunderstood. Yes, I used the Internet (horror) to check, and the story had been picked up by newspapers across the country. I dug further and discovered that DeLay had made the comments during an interview on the Tony Snow Show on Fox News Radio. At the moment, there is a link on that website permitting people to listen to the interview.

DeLay's comment is, well, sorry, incredibly outrageous. Is it unconstitutional or illegal for a Supreme Court justice to do his or her own research? Is it unconstitutional or illegal to use the Internet for legal research? Using the Internet, one can reach BNA, BNA Tax Management, Lexis, Westlaw, CCH (Commerce Clearing House), documents issued on the websites of countless federal agencies and 51 states, including their departments and agencies, and a huge inventory of other reliable sources of primary and secondary legal information. Yes, there is a lot of "junk" on the Internet, but Supreme Court justices do happen to know enough about legal research to know the difference between the IRS web site and the internet pages of a tax protester. (Yes, had to sneak tax in here, but I can write with confidence about tax research on the internet.)

Perhaps, considering my continual criticism of a Congress that cannot enact efficient, and fair tax laws and that continuously whacks and hacks at what little was left of sensible tax law, I should not have been surprised to have had this opportunity to see into the mind of someone who is a leader of that Congress. That's not to say the other side of the aisle deserves praise; there surely are enough gaffes coming from that direction. But if Tom DeLay has not used the Internet for legal research, it simply adds a few more feet to the depths to which Congressional operations have sunk. This incongruity between reality and Congress matches well with the unwillingness and inability of members of Congress to do their own tax returns. Each time the phrase "out of touch" is used in criticism of the Congress, its reach widens.

Should we watch for a retraction? Or should we stop using the Internet for legal research?

Someone posed a very interesting question. "Why is there no revolt over state tax complexity?" I don't know. As I pondered the question, I fished for explanations, and came up with a few. Then I started arguing with myself. Here's a snapshot of what went through my mind:

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1. There's no revolt over state tax complexity because state taxation is not complex.

This suggestion has to fall flat on its face. State taxation not complex? HA! The person who asked the question was describing her child's encounter with the Massachusetts income tax and called it a nightmare. In fact, she described it as worse than the New York returns that her daughter had to file in previous years.

My experience researching topics such as the effect of federal corporate-shareholder income tax integration on state tax systems (LL.M. thesis, article) and with the state income taxation of S corporations (treatise, BNA Tax Management portfolio, numerous journal columns), and in doing state corporate returns, persuades beyond any doubt that state income taxation is complex. In many instances, it is so complicated that the federal income tax begins to look like an oasis of simplicity. Add in the high likelihood that the tax laws of more than one state will apply to an individual or corporation, and the complexities multiply by orders of magnitude. At least once, and usually several times during each of my tax courses, I make it a point to share this reality with the students.

2. There's no revolt over state tax complexity because state taxation involves such low dollar amounts it isn't worth expending energy on the question.

This might be the answer in a few states, with relatively low income tax rates. But many states have high rates, or rate structures that reach people who escape federal income tax liability, that this explanation doesn't hold across the nation.

The Pennsylvania experience is indicative. The personal income tax is pretty much a flat percentage of income, with very few deductions and no offsetting of income in one category with losses in another category. The complaints are about fairness rather than complexity. On the other hand, Pennsylvania taxation of corporations and LLCs is a labyrinth of confusion, with forms sometimes insisting that an S corporation disclose the names of its partners or a partnership provide the names of it officers. I shared one of my state tax reporting experiences a year ago, and I am sure that others have had similar or worse experiences.

3. The media doesn't put the spotlight on state taxation.

There's some truth to this assertion. The news stories on April 15 about the impending midnight deadline of doom refer to the IRS, show federal tax returns, and provide stock footage of the local IRS office building or the U.S. Capitol. Tax debates in Congress get coverage. The press gobbles up all sort of stories about federal income tax reform. Perhaps local media in New York, California, and other high income tax states pay more attention to state income taxation. State and local property tax policies and relief get attention in the Philadelphia area local press, but those issues aren't ones of complexity but inquiries into fairness and politics.

4. A successful attack on federal income tax complexity will compel states to simplify whereas the opposite is not necessarily the case.

There's also some truth to this assertion. If the federal income tax is truly simplified, or replaced by a VAT or consumption tax, it will leave many states "out in the cold" because their income tax statutes start the computation of state taxable income with a reference to federal taxable income, or adjusted gross income, or some other variant. Many state legislatures would choose to follow the federal example than to draft and enact state statutes that mimic the repealed federal income tax law. I don't think that's true of all states, though. A few states (four at last count) do not rely on federal income tax law (Pennsylvania is one of them). A few other states are big enough to create replacement statutes. Would they? That's a political question that will require some interesting state legislature watching if the day ever arrives.

In contrast, if tax reforms favoring simplification persuade a state to simplify its income tax law, so what? Other states would most likely not follow. And surely members of Congress will not jump up and replace the Internal Revenue Code with an adapted version of the new state income tax.

5. People don't realize that state income taxes are complicated.

Maybe they do. I'm not sure. I know there's a maxim that a person can feel only one physical pain, the one that hurts the most. I'm not certain that's absolutely true, but I've been told a migraine headache masks the pain of a paper cut. If our minds are so caught up reeling from the complexity of the federal income tax, is there anything left to be stunned by the state tax complexity?

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These are serious issues. As the nation's economy becomes less regional, and as the world's economy becomes less national, the attractiveness of uniformity as a factor in legislative policy making strengthens. Even though there is much to be said about local control over revenue, spending, and regulation, the cost of complying with thousands of different tax laws is staggering. And that assumes full compliance is possible. It's not an issue restricted to tax law. Retailers who sell over-the-counter medicines that can be used to process meth are pulling them from their shelves rather than try to deal with the huge matrix of state and local rules regulating their sale. During the next 10 years, as the debates over tax revenue and spending decisions at the federal level get louder, there's no guarantee that similar debates over state revenue policies will be drowned out. The cacophony may shatter the national eardrum.

I laugh at both. What other choice is there?

Now that this year's April 15 is behind us (though August 15 has risen above the horizon), it's worth a look at the collection of tax cartoons assembled at the Tax Guru page by Kerry M. Kerstetter. Be sure to scroll down the entire page, because the appearance of text does not mean you've seen the last of the cartoons. Because my local paper carries only a few of these comics, many of these were new to me. May that be the same for you, too.

My favorite? Probably this one though some of the other death and taxes, or taxes in eternity cartoons run a close second.

So, it seems, the Internet has obsoleted my 25-year tradition of posting tax cartoons on the wall outside my office door. I had already run out of room, so this development spares me the agony of selecting cartoons for removal to make room for new ones. And I'm going to wager that the dean will declare wall posting off limits in the new building (if one ever gets built).

It's what people now call Tax Day. Hah, every day is tax day. Think about it. Don't for a moment succumb to the nonsensical idea that there is one tax day and the other 364 are tax-free. And today is tax day only for those who didn't bother to make their tax day earlier. Why not just get it out of the way, as one tries to do with other annoying or inconvenient tasks. Leave the best to last. Like reading this blog. Ha ha.

Anyhow, to celebrate tax day I've decided to keep one of my "I'll get into this in a future post" assurances. I promised in a recent post that I would explain in more detail the tax law principles that are implicated when law students find themselves caught between the employer who classifies them as independent contractors and the IRS which almost always will take the position that they are employees.

Several decades ago, some creative person decided that attorneys who hired law students could save themselves a lot of aggravation and money by classifying those students as independent contractors. Perhaps the person who came up with the idea was an attorney. Perhaps it was an accountant, financial advisor, or some other guru. Strange that the person's name didn't attach to the scheme. Nonetheless, attorneys jumped on the idea the way ants show up at a picnic. And perhaps other employers, professional or otherwise, jumped onto the idea. The situations that came to my ears, however, involved attorneys. That's not surprising, because for most of the day I'm surrounded by law students and attorneys.

What made the idea attractive? If the attorney hires the law student for $10 an hour (which was the going rate back then), and classified the student as an employee, the attorney was subject to a parade of obligations: withhold federal income tax, withhold state income tax, perhaps withhold local income tax, perhaps remit a per capita or other employment occupation tax, pay the employer share of FICA (including both OASDI ("social security") and medicare), withhold the employee's share of those taxes, probably pay unemployment compensation premiums or taxes, probably pay worker compensation premiums, perhaps include the student-employee in fringe benefit coverages such as life insurance, deferred compensation, education assistance programs, etc., and file a W-2 early in the following year. If the attorney treats the student as an independent contractor, the attorney's only obligation (if the amounts paid are sufficient) is to file a 1099 form early in the following year. It was a no-brainer decision, at least for those who erroneously thought that they simply could decree the classification of the student as an independent contractor.

The surprise for many of these students popped up when they sat down to do their tax returns. That's why I'm discussing this on "Tax Day." I had two more such questions today, so it's quite fitting. To use a typical example, a law student who worked for 14 weeks during the summer, 50 hours a week, $10 an hour, picked up $7,000 of income. Say hello to roughly $1,000 of self-employment tax. Back in the early 80s, they'd also face at least a few hundred dollars of federal income tax liability, and depending on the state, a few hundred dollars, more or less, of state income tax liability. Some had to toss in $70 or $140 of local income tax liability. Worse, because they owed as much as $1,500 of federal income tax, if they didn't fall within an exception to the estimated tax payment failure penalty, they'd be looking at another $60 or $70 of taxes. Ouch.

They were in a bind. What to do? A fortunate few at least had the good luck of being employed by attorneys who "split" the presumed savings and paid the students $11 an hour. Most of them didn't catch that break, nor did they know enough to negotiate for it.

In addition to this financial crunch, there was the reporting problem. Should the student go along with the attorney's characterization, even if it was wrong? If the student did so, what would happen if the IRS audited the attorney? As it turned out, the IRS did audit attorneys, but never bothered to tell the student-employee. So excess monies flowed into the Treasury, and the student was not alerted to the facts that would trigger an amended return generating a refund.

If the student decided to file and report the income as wages, which would eliminate the self-employment tax, the red flags would be all over the return. After all, there was no W-2 to attach. And the IRS probably had received a 1099. Taking this position, even though correct, was tantamount to sending a letter to the IRS alerting it to what the attorney had done. Keep in mind that these students would be back in the job market the following year. What a dilemma. Baptism by fire into the legal profession, no?

Yes, the IRS did audit attorneys, and just as the "here's a great tax savings scheme" news rocketed throughout the attorney networks, so too did the news of the audits. The audited attorneys fared badly. When the IRS sat down to go over the factors that indicate employment status and those indicating independent contractor status, the scales weighed heavily in favor of employment status. One doesn't need to be a tax wizard or a mathematical gymnast to consider the two ends of the spectrum, the classic factory employee and the person who comes to service the home heating system to recognize that the hired student is much more like the former than the latter.

What factors did the IRS use to conclude that the student was an employee? The attorney set deadlines (whereas independent contractors tend to show up and finish jobs as they determine). The attorney provided work space. The attorney provided tools such as books, computer resources, telephones, etc. (think again about the person who shows up to fix the heater). The attorney often set limits on how much time to be spent on a project. The attorney controlled the specifics of what was to be done, simply because the law student was not admitted to the bar (unlike the homeowner who tells the independent contractor heating expert that the heater does not work, fix it, please, the attorney cannot hand a file to the law student and simply ask that it be fixed). The attorney supervised the student (and if the attorney did not do so, the attorney was putting reputation and malpractice insurance premium increases on the line). The attorney or law firm was the only person for whom the student worked (and although an independent contractor can have, in theory, one customer, as a practical matter they have at least several and usually many more than that). The student did not operate a business. The student did not have a separate office, business letterhead, or business phone. The student did not advertise for customers.

Where were the factors showing independent contractor? Perhaps the student could set his or her own hours, but flextime is a characteristic of employment almost as much as it is of independent contracting. Perhaps the student worked at home. Employees can do that.

The IRS put such strong cases before the attorneys that they acquiesced with the IRS determinations. Attorneys were one of the first four industry groups that the IRS put on its industry-focused program. The others were undertakers, car dealers, and commercial fishermen. Interesting combination. I'll refrain from the quips about commercial fishermen finding dead attorneys in the trunks of cars buried at sea by undertakers. No, I don't think that was the connection. Now, of course, there is a audit program and audit guides for just about all industries so the honor of being in the targeted four was short-lived.

The IRS got the results it wanted from its efforts. With failure to file tax returns and tax fraud high on the list of things for which attorneys are subject to professional discipline, the IRS knew it had what today gets called, euphemistically, "leverage." As the news of its activities and successes raced from attorney to attorney, and as lawyers realized the risks to their professional reputation and licensing weren't worth the money in question, the legal profession buckled.

Or so it seemed. Each year, when I teach the section of the basic tax course that focuses on the deduction for state and local taxes, I use one of the problems to illustrate which taxes are deductible (state and local income) and which are not (self-employment, FICA, federal income tax). That permits me to illustrate, with numbers, the difference between being paid $10 an hour as an employee and $10 an hour as an independent contractor. In the early 80s, students raised the questions before I even reached the illustration. As the 80s closed, I would ask the class. I suppose the decline in student questions on the matter was more a reflection of the trend toward classroom passivity than a reduction in the frequency of the problem, because at least half the class would indicate they were being paid a flat amount per hour as independent contractors. By the mid to late 90s, the same independent contractor question brough fewer and fewer raised hands, until a few years ago, when one hand was raised. I condensed the topic coverage, because so many other topics had been jammed into the tax law, and thus into the course, that could be better served with the saved time.

Two years ago, however, I was startled to see several hands raised. Last year, more than one hand was raised, and several students came to see me in my office to ask about the matter. This year, even more students have stopped by. And the dollar amounts are much more than they were 20 years ago. What's happening?

From what I can tell, a new group of attorneys, not in those networks back when the news of IRS audit successes was making the rounds, has succumbed to the revival of this "independent contractor tax savings scheme" nonsense and its proliferation on the internet. Forgetting, or not having had, law school advice about checking things when one is not an expert in an area, they have embraced the technique without reservation. One, arguing with me through the student who was caught in the middle, suggested that I was a typical academic who didn't understand tax law or tax practice. That attorney, incidentally, was NOT a tax attorney. I laugh when people think that the professorial title I carry means that I am a detached academic hiding behind ivy-covered walls. The world who knows me knows better.

In fact, none of the attorneys who are getting primed for a fun IRS visit are tax attorneys. I'm willing to speculate that most did not take a tax course. Without intending to hurl pejoratives, it's not the tax or business lawyers, it's not the bankruptcy attorneys, and it's not the securities regulation bar that's doing this. It's principally personal injury lawyers and a few domestic relations attorneys. Of course, it's a very small, tiny fraction of those who practice in those areas. But it only takes a few to cast a dark shadow over the entire bunch.

The domestic relations bar put forth a fine effort, some years ago, with the help of the tax bar, when changes in the tax law left many of their colleagues at the mercy of other domestic relations lawyers who had picked up enough understanding of the tax law affecting divorce to pull some rather creative but questionable moves that dumped phantom income on unsuspecting ex-spouses-to-be and their advisors. A few seminars here, a few articles there, and that game was shut down. Perhaps it is time for a similar effort by attorneys practicing in areas seemingly "removed" from taxation to organize seminars and similar presentations for their colleagues at which tax lawyers can show up and explain the unacceptable risks being taken by attorneys who fall for the deceptive seduction of the "independent contractor tax savings" scheme.

And perhaps that would unsnag those law students who get blindsided and sandwiched by the maneuver. And perhaps it would mean that on Tax Day next year I could report that the practice had been fully eradicted. Well, I'd rather that Tax Day hype be eradicated but that's not going to happen in the near future. So I'll go with the more reasonable, more sensible, more likely dream: an end to the manipulation of law student employees by those who misclassify them and mess up their tax situation.

For those who celebrate it: Happy Tax Day, one and all! Have some chocolate, it's medicinal.

What can get me to post more frequently than the habitual Monday, Wednesday, Friday pattern? Among other things, it includes reading an article about the tax treatment of cybertips and noting that some tax misinformation is being delivered by someone quoted in the article. The article about bloggers relying on cybertips in this morning's Philadelphia Inquirer had a dual effect. It brought back memories of a discussion of this topic a few months ago among tax law professors, and it caused me to think that perhaps there is some truth to my theory that the closer we get to April 15 the more tax myths circulate among the citizenry. I'd have been on here sooner with this, but I was detoured for a few hours by an emergency dentist visit to get initial treatment for a broken tooth. No, I was not in a fight. It just broke. Well, what was left of it broke. Maybe it's age. Seriously, I think it is a leftover from the incident that caused the first broken tooth. Anyhow, be happy I spare you the gory details as I'm sure you don't want to hear about the ROOT cause (or effect). And be happy I'm not asking for tips.

Back in February, Paul Caron raised the question on the TaxProfBlog, and also brought it directly to the attention of the tax law professor community. When we had finished sharing our thoughts, Paul compiled the comments in a follow-up post, that, surprise, quoted, among others, yours truly. I'll return to those comments in a moment, but first, the facts.

What triggered Paul's initial post was an inquiry from a law professor who set up a tip jar on his blog. He had the good sense to ask about the tax consequences. Today's Philadelphia Inquirer article not only mentioned Eugene Volokh, who made the tax inquiry, but also introduced me to a few of the many other bloggers who have set up cybertip jars.

There is Susie Madrak, a fraud investigator and former journalist, who picked up $1,500 from her readers when her car died. She begged for the money. She posted a photo of a kitten and threatened to kill it if people didn't send money. Brad DeLong, a professor at the University of California, intends to use his tip proceeds to hire research assistants. John Aravosis, a writer and political consultant, has seen tip proceeds generated at least in part by requests made by his friend Duncan Black, an economist, on Black's blog. Black urges blog readers to send money to their favorite bloggers and asserts that wealthy readers should send amounts in the thousands. Black, though, has turned from seeking tips himself to selling ad space on his blog, and generates about $6,000 a month in revenue. Andrew Sullivan gave up soliciting for tips because when he did his third "beg-a-thon" after raising $79,000 and $120,000 on the first two, and claimed that he had bandwidth expenses, people began to raise questions, considering that bandwidth costs far less than tens of thousands of dollars. So, instead, he is trying to get readers to subscribe for $20 a year.

Now to the law. There is no question that employee tips constitute gross income, and thus are taxable. Some bloggers, though, think that cybertips are not taxable because they claim the tips are gifts. Gifts, of course, are excluded from gross income and thus are not subject to income taxation (though large gifts are subject to federal gift tax). Madrak states, "A gift is not taxable. You don't pay taxes on your birthday presents."

Madrak's statement, taken alone, is correct. In context, it is incorrect. It is relevant only if cybertips are gifts. Are they?

A gift is a transfer for which the donor has no expectation of receiving something in return. There needs to be, to borrow words of the Supreme Court that it warned was not the test but that courts have used as the test ever since, "detached and disinterested generosity." A cynic, of course, can point out that rarely is there detached and disinterested generosity, other than perhaps, when it comes to parents making gifts to children. Is there a gift when transferors think they are buying the survival of a kitten? Is there a gift when transferors think they are ensuring the continuation of a blog? Some tax commentators suggest that if the transferor isn't looking for something in return that there is a gift, and that this approach requires analyzing the motives of each individual transferor. Some of the cybertips could be gifts, and some might not. With the burden of proof on the taxpayer, how does a blogger prove the "detached and disinterested generosity" of transferors? Surely when a kitten's life is seemingly at stake, or the continuation of the blog is said to be at risk, the taxpayer's burden is near impossible.

Some of the difficulty arises from the fact that these contributions are called tips. There is an ironclad rule for "tips." Tips must be included in gross income. The IRS regulation in question (Regs. section 1.61-2(a)(1)) sets forth that interpretation of section 61 very clearly. Section 61 provides that gross income includes all income, unless an exclusion applies. Tips are income. There is no denying that conclusion. Tips make the recipient economically wealthier. So unless an exclusion applies (and the exclusion for gifts is the only one with any chance of being in play), tips are included in gross income, and thus end up in taxable income. When the question has been posed to the courts, the decisions are unanimous. The courts have held that gross income includes tokes left with casino dealers, and side money left for dealers. Gross income includes tips by bridegrooms to city marriage license clerks. Offerings and fees left for clergy members are treated as tips. One case involved money sent to a clergyman by listeners of his radio program. It's very difficult to find a tax-significant distinction between the cybertip jar and the radiotip jar. Different medium, same process, same result.

Here's what I said when Paul Caron first circulated Eugene Volokh's question, in response to an argument that cybertips are similar to amounts spontaneously handed to preachers after an inspiring sermon: "The blogger puts 'if you like this and want more, drop me a few bucks' tag on the web site. Most preachers, I think, do not end sermons with 'if you liked it and want more, drop a twenty in the collection plate when it comes around.' Does the 'fishing' for the money make a difference?" [Ignore the fact that money transferred directly to the church (rather than to the minister) would be non-taxable to the church because it is a tax-exempt entity, because most, if not all, bloggers are NOT tax-exempt entities.]

I think the "fishing" makes a difference. It takes away the spontaneity that characterizes a gift. It gives the transaction overtones of business activity. Surely, considering that the transfers are called tips and have the same characteristics as do gifts, it's quite a stretch to call them gifts.

Ultimately, when the issue is litigated (and it will be considering the amounts involved), the IRS will rely on the case involving the radio preacher. I doubt any taxpayer or taxpayer advocate will find a plausible, reasonable, successful factual distinction that will persuade the court to reach a different conclusion. To think otherwise not only puts the blogger who fails to report this income at risk for an audit, it also puts that blogger at risk for interest and penalties. Perhaps readers will follow-up with cybertips for the "I'm in tax trouble" cybertip jar. Let's just hope no more innocent kittens are put at risk.

And, please, worry not about the cost of the tooth repair. The temporary repair has made it possible for me to talk without scraping my tongue on the exposed razor-sharp filling. With pain-free talking having been restored to yours truly, perhaps the temptation will be to send money to shut me up. DON'T. It's been tried. It doesn't work.

Last Friday I addressed the quesion of Do I Really Need to "Take" Tax?" and shortly thereafter this question to me from a law student at another school arrived:

As you know, I am very interested in tax and I plan on taking federal income tax next year. However, a few of my professors have discouraged me from going the "tax route" because I don't have a CPA. I do have a graduate degree in economics, but they insist that I'll be disadvantaged because I don't have an accounting background. Even after I tell them that I get the numbers - I had to take accounting and finance for my graduate degree - I am told that the CPAs will get jobs before me, so don't bother.

I say hogwash. The economist in me says that they are trying to artificially limit the market for tax attorneys by discouraging would-be students from entering the market! OK, I'm just joking about that. I think my professor's are genuinely concerned with my future. What say you? Do you think an accounting background is essential to being a good tax attorney?

My reply is that I think that these law professors, like many, many law students, don't understand what tax practice involves. They see it as a numbers thing in which CPAs dominate the arena. They think it's about preparing tax returns. They think April 15 is the most important day in the tax practitioner's year (hint: why is it tough for tax lawyers to get to New Year's Eve parties on time?) Nothing could be further from the truth.

The tough questions in tax practice, which is what tax attorneys are paid to handle, require analysis and communication skills that are sharpened in law school. That's not to say that there aren't CPAs who can read statutes, engage in legal analysis, and write well-crafted memoranda and opinion letters, but there is enough truth to the stereotype that CPAs are not in the habit of "starting with the Code" and don't set the world on fire with their writing to preclude a world in which CPAs own tax practice. Whether it is problem prevention (planning) or problem solving (compliance), tax attorneys, most without accounting backgrounds, populate areas of the tax practice world into which few, if any, CPAs have ventured (or should venture).

A CPA is a person who is a certified public accountant. CPAs have the edge on public accountants because they are certified, which means they can certify audited financial statements. That has little to do with tax as such. In the employment arena, yes, CPAs will get the edge in some jobs (e.g., in large accounting firm tax departments or for slots that focus on highly technical stuff such as the tax rules for inventory, or OID computations), but there are huge numbers of tax attorneys who not only lack CPAs but don't have accounting backgrounds. Many tax attorneys (and, yes, some tax law professors) did not "turn to the light" of taxation until second or third year of law school, or at some point early in their legal careers.

Granted, a person who has a JD degree and who is a CPA has an edge, just as a person who has a JD degree and an MBA degree has an edge, assuming all the other factors are equivalent. Likewise, the combination of LLM (Taxation) and CPA status moves a person into a small group, but doesn't guarantee the top jobs or the highly prized positions. After all, that person with the JD and CPA, who carries a 3.1 GPA from college and a 2.8 GPA from law school just might be the second choice if the other candidate is a JD from a top 25 law school, carrying a 3.9 GPA and a newly acquired burning desire to wrestle with the words of the Code.

I've taught the basic tax course 24 times (big anniversary party next time around?). I don't think there's been a semester in which at least one person did not come to my office, nervous, perhaps physically shaking, sometimes in tears, frantic because they want to take tax because it's on the bar exam but are convinced they are "no good at math." Before I can address this concern, they then tack on what may be a bigger fear, namely, the wreckage of their GPA as "the accountants will take all the As." Here we go......

Though tax involves numbers, there is very little mathematics involved, even if one treats arithmetic (addition, multiplication, etc.) as mathematics. Most of the time the numbers are far easier to manipulate than those tossed about by these students when they go shopping and are compelled to figure out which purchase opportunity is the best deal. Too often, the "math phobia" is claimed by female law students who have been told all their life that women aren't good with math and science and who have internalized that claim. That claim, of course, is a bunch of malarkey, because even with biological differences in the brain, gender difference doesn't make women arithmetically illiterate. The surprise, to me, is that this nonsense is still being spread about in our K-12 and undergraduate schools and elsewhere, in the face of data that disprove this silly notion. Usually, I get that out of the way with little difficulty.

Then I turn to the "accountants own the As" claim. The first problem is the assumption that there are a finite number of As available to be owned. Actually, for many courses, that's true, when faculty hold to artificial curves, but if one grades against a standard, there theoretically is no limit to the number of As. As a practical matter, reinforced by experience, not every student earns an A. In fact, most don't. But surely if a person does A work, there isn't, at least in my grading, some mechanism that says, "Sorry, you don't get an A because they ran out and you're not an accountant."

Then I point out to them what they, and many others, find incredible. As a group, accountants, namely, those with accounting degrees, who may or may not be CPAs and who may or may not have accounting practice experience, do not do as well as the rest of the class. "What?" you may exclaim in unison with the other non-believers. I have a theory. I think that many of those with accounting backgrounds or degrees figure they can breeze through the course because they "know" the law, or at least know how to get compliance-focused answers. And they do. But, that ability doesn't serve them well in my courses, where the emphasis on understanding as superior in importance to mere knowledge discounts the value of their abilities to crank through computational stuff (which isn't as pervasive in the course as they, or others ignorant of what the course involves, think). They end up not reading the Code. They are the ones who complain on the evaluations that I should be using "the West book because it lays out the rules nicely." Sure, but it doesn't teach them to THINK and to ANALYZE and to COMMUNICATE WELL. And I can usually spot an answer written by an accountant, because their answers very often omit ANY reference to a Code section or other source of law. Of course, because they "know" the rules they can do well enough to avoid very low grades, but that's no guarantee of an A. That's not to say all of the accountants fail to adjust, because those that do demonstrate that the JD-CPA combination can be powerful. It's just that many of them don't make the effort to adjust and lose out on an opportunity to excel.

In the meantime, those frightened and distraught students decide they have no choice but to take my advice (unless they want to skip the course, which, as I explained in Friday's post, is unwise). They become ideal students. They do what I want them to do. Sure, there's a fear factor at work. What happens? By the end of the semester, not only have they come to realize they can do the work and do well, they begin to LIKE tax. Some of them decide at that stage in their law school careers to become tax attorneys. Incidentally, I'm not the only tax law professor who has this experience and I don't take credit for what we call the "tax converts" because it is the nature of the material itself that pulls in these folks. And most of my tax teaching colleagues throughout the country indicate that they, too, don't view themselves as some sort of pied piper guru on this matter, though most, like me, will milk the situation for every joke, smart aleck comment, or pun that they can find.

So why are other law professors telling the student who emailed me to avoid tax because of the absence of CPA status? Simple. They don't have a clue as to the nature of tax practice. Some don't have much of a clue as to the nature of law practice, period. They heard similar rumors when they were students, very possibly didn't take the tax course, tuned out or didn't circulate with those who arrived with a commitment to, or "converted" to, tax as a practice area, and see tax only as the agonizing experience they pass off to a spouse or a paid preparer come tax filing time. These are the ABT of the law faculty, a term given to those laywers who, when applying for a teaching position and asked what they want to teach, reply "anything but tax," amusing not only because of the inclusion but also because of the idea that a person could teach securities law OR environmental law OR land use planning OR domestic relations law OR civil procedure OR admiralty OR trademarks....true renaissance folks, but, ah, not tax!!!! Toss in the fact that most tax law professors can and do teach non-tax subjects and the renaissance lawyer identification picture becomes rather fascinating.

That's not to say that ALL law professors give such misguided advice as was dished out to the student who emailed me. I have more than a few colleagues here, including several who profess to know little about tax (perhaps to avoid getting roped into teaching the course), who know and understand a lot of tax, incorporate bits into their courses, do their own tax returns, and give good course selection and career choice advice to students. Others, though fending off tax as a pit bull thwarts intruders, will send the inquiring student to one of the tax faculty to get sound advice. Yes, I and my tax colleagues have been around here long enough and have brought up the issue enough times that the message has been sent and received, with few, if any, exceptions. That it is not so at some of the other law schools is both surprising and yet, not surprising.

The bottom line answer to the student's question is, "No, an accounting background is not essential to being a good tax attorney. You can be a great tax attorney even if you don't have an accounting degree or a CPA certificate. The list of prominent tax practitioners, Tax Court judges, government tax officials, and other lawyers involved in taxation, who lack 'accounting backgrounds,' is long and inspiring. Of course there are those who DO have accounting backgrounds who have done well. And some who haven't. So the accounting background not only is not a prerequisite, it also fails to be a guarantee."

The news in this report on ink colors used for grading gets my nomination for top prize in the Warped Impact of Political Correctness Contest. And if it can be nominated for more than one award, then an entry for it should be made in the Coddling Oversensitive Student Test Takers Competition. But perhaps it deserves the We Want Everyone to Coddle Our Little Darlings the Way We Do As Parents Grand Prize.

According to the story, parents (but apparently not students) objected to the use by teachers of red ink to point out errors in student responses and to give guidance for improvement. Parents claim that the use of red ink is "stressful." News alert, dear parents, so, too, is life. Try getting your child ready for it instead of teaching your child that the world will accommodate his or her every whim and desire.

One school surrendered to the parents (who apparently know so much more about education than do the teachers) because the school administrators decided that they "need... the parents' understanding." Understanding of what? Dear teachers, take your teaching skills and teach the parents to understand what good teaching involves. Explain that red is a color that gets people's attention, which is what good teachers need from their students. Point out that the traffic signal for stop is RED. Oh, wait, don't. That might just encourage these progenitors of specialness to campaign against the use of red lights because they, too, make their children stressed. Their children, you see, would be better off with devices in their cars that turn lights green for them as they approach so that they will never, ever be stressed in their lives. Pardon the sarcasm, but the world already suffers from the existence of too many people who think the world, one way or another, should bow to their demands and wishes and too few people who keep the phrase "my responsibilities" parked in their brain next to the phrase "my rights."

So the schools now use blue, and purple, and green, and all other sorts of colors. Allegedly, children are scared of red. Could it be they are scared of the consequences of not paying full attention to their academic tasks because they're caught up contributing to the high national daily television viewing average or the corporate profits of videogame manufacturers? Sooner, rather than later, the same parents, or their successors in spirit and values, will complain that their children's papers have too many comments on them. How amazing that people not only want to pretend toward the unrealistic but want everyone else to join them in doing so.

Another principal told his teachers to use colors that exhibit more "pleasant-feeling tones." A classic example of post-modern politically correct culture at its best. The idea that life and all that one encounters in it will be pleasant-feeling is a subscription to a hedonistic culture that cannot sustain itself. The question is whether it brings down everything around it. The chances of that happening increase when that distorted value set invades the education system. By definition, the tag "postmodern" has no end, and thus it is time to coin a phrase for what passes today as "postmodern" and "politically correct" and that manifests itself in such inanity as this new "red scare." I propose "antiauthoritarian culture" because that's what it is. Pyschologically, deep underneath the protests about the use of red is a rejection of the authority of teachers to evaluate the shortcomings of the efforts put forth by the students whose parents measure their own worth by the success of their children.

Yet one "color specialist" with a psychology background claims it is good to change colors because people tune out when the color is the same. OK, let's change traffic light colors every week. Surely THAT would alleviate boredom, if nothing else. This specialist's concern with the negative reactions of students who have too many red markings on their work product week in, week out distract us from a focus on why some students habitually underachieve and get those red markings. It probably has something to do with the existence or non-existence of home support for education as a noble goal and diligence as a worthy personality trait.

As for the teachers who claim that the goal is to remove the impact of red as a negative messenger, why not continue or resume the practice of awarding GOLD stars for good work? My guess is that some parents would scream that their child deserved gold stars simply because their child is, well, their child. We know what happens when some parents show up at their children's sporting events and don't think their child is being treated as the star that he or she unquestionably is. The fun begins when those parents meet other parents who make the same claim about THEIR children. So why don't we simply conclude that 100% of the population is in the top 10%, give them all As, let them buy medical degrees on the Internet for $10, and then let them perform brain surgery. It will be fun putting together their patient lists.

Continuing with the sarcasm, it is so reassuring to know that as much as I have expressed frustration with the shortcomings of the K-12 and undergraduate education system in general, that steps are being taken to make things worse. The world isn't going to sugarcoat its rejection of failure, and there's no point in misleading children into thinking that they're going to grow up and live in Never-Never Land.

Well, when they get to law school they'll discover that they get their comments in Blackboard classroom postings that are in black. Their grades are reported by the Registrar using black ink or through digital media using black. When I grade examinations, I use red. When I make comments and editorial changes to papers submitted in digital format, I use red. After all, purple is too close to the black that is used by the student in typing the paper, or to the blue or black used in writing the examination.

I've yet to hear a graduate tell me that my use of red stifled their legal career. Quite to the contrary.

Earlier today, someone who is planning to teach a tax course for law students not intending to practice tax law asked advice about leading off the course with a fact situation that might get their attention, specifically, one related to tax issues affecting baseball players that has been under some discussion. Some schools, but not mine, offer such courses, and often they are called "Tax for the Uninterested" because the students who enroll intend to practice personal injury law, domestic relations law, or in similar so-called "non-tax" areas. Often, these courses exist because tax is a required course or because tax is on the bar exam of the state(s) in which the students intend to practice. Otherwise, as is the case at my school where tax is not a required course, there would be (too) many students who would avoid the course for all sorts of reasons, none of which make sense if carefully analyzed.

Someone asked, "How can you be a PI lawyer if you don't understand the tax aspects of structured settlements and the issues of coordinating you fees with your clients collections? How can you be a domestic relations lawyer if you don't understand property settlements, not to mention rearranging the closely held corporation?"

I couldn't resist, and so I rejoined, "How can you be a lawyer if you don't understand tax?"

And as soon as I sent the email, I thought, "BLOG TOPIC!!!!!"

Blog topic indeed.

Tax is everywhere. I'll let you play with the theological implications, even though it is mathematics and physics that are seen as the universal cosmic construct. I also teach a course in Decedents' Estates and Trusts, so I joke that if law were to shrink (imagine!), I'd be the one to turn off the lights, because as the end approached, we'd be left with the law affecting the two certain things: death and taxes.

And that's the point. How, indeed, does someone practice law without understanding tax? I've played this game many times, with students, other law professors, other academics, and even family members who (somehow) aren't lawyers. It's not just domestic relations law and personal injury law. It's corporate law. It's bankruptcy law. It's environmental law. It's immigration law. One of the tougher retorts is "How about criminal law?" The answer? First, there are the cash receipts reporting requirements, putting lawyers, including and as a practical matter, chiefly, criminal attorneys under an obligation to report payments received in cash that exceed $10,000. Second, when negotiating agreements, whether something is cast as restitution, a penalty, or a fine may have adverse or beneficial tax consequences to the defendant depending on how the arrangement is structured.

Each way we turn, there's a tax provision or two or three or dozens or more waiting to "get in the way." Though easily brushed aside in a law school course, those provisions are waiting for the law graduate. Practitioners cannot brush aside the things that are uninteresting, challenging, or complex. Yes, tax is everywhere.

And here is the clincher. Today I had a question from a law student almost identical to a question that I've been asked way too many times during my professorial career. Essentially, what does a law student who works for an attorney do for tax purposes when the attorney treats the relationship as one of independent contractor when in fact it is one of employment? I'll analyze that question in an upcoming post, but the upshot is that, absent very unusual facts, the student is an employee. Years ago many attorneys (and others) thought they had discovered a tax-savings plan and treated their law student employees as independent contractors. The IRS stepped in, audited some attorneys, and sent a powerful message. The practice almost died out, as indicated by the ever-dwindling number of hands raised when I asked students each year when section 164 was on the table if they had been treated as independent contractors. Now, it seems, over the past year or so, the practice has resurfaced. At least a dozen students have raised the issue with me during the past 15 months, as many as had raised it during the past 6 or 8 years.

So.... are tax lawyers doing this? Noooo. It's, well, mostly personal injury lawyers, several domestic relations lawyers, and a few others. And they wondered why, when the IRS announced the first four groups it would scrutinize when it adopted its industry-focused audit programs, lawyers were among the four groups. Yes, that's how bad tax compliance is among lawyers.

So, if for no other reason than the fact lawyers are going into a professional business, they need to take tax when they are law students. Even if their law faculty fails to compel them to do so, they need to take tax. There's no escaping it. And if they're going to get bitten, it's better to miss a few points on an early-in-the-semester exercise than to go down in practice, either on one's own, or taking a client or an entire law firm down with them.

And no, I'm not grubbing for students. My courses are usually full or close to full.

And don't get me started on the comparison of the percentage of lawyers doing estate planning and the percentage of law students who enroll in the tax courses essential to doing estate planning. It's scary.

And I'll leave it at that for now.

Yesterday during an on-line discussion someone raised a question concerning the tax consequences of babysitting cooperatives. I didn't know such things existed until a few years ago when the same question was raised during a similar on-line discussion. One can learn many things teaching or practicing tax law. Someday I'll make a list of "Non-tax Tidbits Learned While Teaching Tax" and I'll share them with my readers.

When the babysitting cooperative issue popped up a few years ago, I wrapped it into an exercise for students in the J.D. Program Introduction to Federal Taxation course. I posted the question, gave them roughly 5 days to respond by email, and then shared with them a model answer accompanied by comments reacting to things they had written. I'm going to share the exercise and the model answer so that people outside the law school (and perhaps people inside the Law School) can comprehend more easily how I try to put law into a practice context rather than in a more abstract or theoretical setting.

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THE PROBLEM: You are working as a law clerk in a small law firm. A partner encounters you and asks: "You're in a tax course, right?"

You reply, "Yes."

Partner: "Good. I need your help. We have a client who expects to be nominated to the federal bench. As you know, when a person is nominated a significant background check is conducted, including a review of tax returns and interviews with co-workers, supervisors, neighbors, colleagues at clubs and houses of worship, and others. It turns out that when the investigators were talking with the neighbors, they all spoke highly of our client. They especially admired the way our client and her spouse had raised, and I quote, wonderful children who are great babysitters. It turns out that many of the people in the neighborhood had made arrangements to share babysitters. In other words, A's oldest might watch B's younger children one night while B's oldest was rehearsing a school play. Then B's oldest might watch C's children another night. C, in turn, would take F's kids in during the day if F had errands to run. There were about 15 to 20 families involved in this. No money exchanged hands"

While the partner takes a breath, you respond, "I've heard of these so-called neighborhood babysitting cooperatives, but I never saw one up close."

Partner: "Nor have I. But I grew up in a different world. Anyhow, there's some concern among the partners here that there's going to be some problems when our client's tax returns are audited."

You: "Why?"

Partner: "Well, nothing was reported as income on account of this exchange of babysitting and child care services. And if there's unreported income, that's a death knell for a judicial nominee."

You: "Was there much involved?"

Partner: "From what we know, each family ended up with 4 to 5 hours of help every other week, and each family provided about the same. We hear that babysitters can earn as much as $10 an hour, or more, so that works out to about a thousand dollars, give or take."

You: "Hmmmm."

Partner: "OK, I know that means you're stuck, but do you think this is going to be a problem? Do these sorts of arrangements generate gross income? Because if they do, our client may be in the same mess as several nominees several years ago who weren't paying employment taxes. The Congress really dislikes nominees who don't pay their taxes. Can our client's return, as filed, be justly criticized?

You: [Your turn. Give the partner a brief, conversational reply, and no, you cannot say that you need to go do research and will get back to the partner.]

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Here is the model answer:

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MODEL ANSWER

The client's judicial candidacy will be challenged. Whether that challenge will cause the nomination to fail is a difficult question. Theoretically, the candidate has unreported gross income, because the receipt of value in exchange for providing services through the children caused the candidate to be economically wealthier. The resulting income was clearly realized because the candidate took the benefit of the babysitting services that were provided. However, as a practical matter, the IRS does not challenge taxpayer who fail to report gross income from bartering transactions that are small in scope, unrelated to the taxpayer's professional or commercial activities, and modest in amount. Had the candidate been exchanging tomatoes for zucchini, without reporting the gross income arising from such a transaction, the IRS would not have challenged the return and no one, other than an opponent searching for the slightest thread of noncompliance, would make an issue of the matter. In this instance, though, the bartering of services was not small in scope; in fact, it was organized and involved dozens of people. It was more than modest in amount, generating thousands of dollars of value per participant. Nonetheless, none of the participants, including the candidate, operate babysitting services as a professional or commercial enterprise.

I suggest that the candidate be told of the situation so that the decision to withdraw or go forward can be made with full understanding of the risks. Keep in mind that there are thousands of these babysitting arrangements in place throughout the nation and the IRS has yet to make an issue of the matter.

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And here are some of the comments which I made in reaction to what students wrote. They illustrate not only the sorts of pitfalls that await those exploring the application of tax law to a set of facts, but also some basic tenets of tax law that might come as a surprise to some taxpayers who haven't studied tax law:

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An analogy between an attorney performing legal services for a landscaper who provides year- long grounds keeping for the attorney and the babysitting situation ignores the distinction that arguably exists between bartering professional and commercial services and bartering services that are not professional or commercial. The better analogy is the one that involves friends who help each other move.

Amounts received for providing babysitting services constitute gross income. There is no factual basis to conclude that the amount of income derived from babysitting does not generate sufficient income to cause tax liability is incorrect, because it is possible for a person to earn thousands of dollars from babysitting. Consider, for example, the adult who babysits children 40 - 50 hours per week at $15 or $20 per hour.

A person's status as a minor does not affect whether or not a receipt is gross income. None of the gross income concepts or exclusions that we have examined refer to the age of the taxpayer. None of the exclusions or inclusions we have yet to examine or will not examine refer to the age of the taxpayer.

Unquestionably, when people exchange services, they are wealthier. There is no way to defend the client's tax return by asserting that the babysitting services did not make the client wealthier.

It does not matter that the services are being provided by the neighborhood children, because the focus is on the clearly realized increased wealth of the client and the other adult neighbors. Whether the children have gross income depends on facts that the exercise did not disclose. For example, did the parents arrange to provide additional allowances or items in kind to the children in exchange for the children providing services to other neighbors?

The personal exemption ($3,050 for 2003, not the unadjusted $2,000 amount) is not available to children who can be claimed as dependents by another person on that other person's return. Even if a taxpayer has sufficient deductions and exemption amounts to make taxable income zero, that doesn't change the analysis with respect to the existence and reporting of gross income.

There is no debt involved in the transaction. If people agree to exchange services, the "obligation" of the second-to-perform is not a debt that offsets the increase in wealth realized by the first-to-perform. Taken to its logical end, this analysis would negate all income as gross income. For example, under this approach, the "obligation" to perform services would offset salary as gross income. That is one reason this "debt" approach is inappropriate.

No cash exchanged hands. Be careful with facts.

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When people tell me that "tax is not law because it's simply mechanical application of accounting rules" it's easy to find examples of why their perception is, to put it nicely, misinformed. The babysitting cooperative issue is one such example. There are many others.

The IRS has released information on the tax gap. According to the report, based on a sampling of 46,000 tax returns for 2001, the gross annual tax gap is between $312 billion and $355 billion. With the IRS tracking down about $55 billion, the net annual tax gap is between $257 billion and $298 billion, for a noncompliance rate of 15% to 16.6%.

Wow.

Perhaps I need to change what I tell my students, which is that there is more "room" for noncompliance with respect to deductions and credits because the law with respect to gross income is much less fuzzy and withholding makes it difficult to avoid taxes. Yet, despite withholding rules, between $14 billion and $18 billion of taxes attributable to gambling winnings, awards, and similar items go unreported and unpaid each year. Somehow, and this suggests that some employers are conspiring with employees to avoid taxes, enough wages go unreported each year to cause between $14 billion and $18 billion of taxes to go unpaid. Sole proprietors operating businesses other than farms fail to report enough income to reduce tax collections by something between $59 billion and $65 billion each year, a finding that is consistent with the "pay cash pay less" anecdotes and which speaks volumes about public attitudes toward taxation. Perhaps folks not qualifying for all those special interest provisions such as those buried in last fall's tax legislation (which I blogged here, here, here, here, here, and here) are engaging in some "do it yourself tax cuts." Partners, S corporation shareholders, and trust beneficiaries are failing to report items that would generate between $16 billion and $24 billion of taxes.

From a percentage perspective, the results are very enlightening. Topping the list is alimony income that would generate income tax, of which 21% to 23.8% goes unreported. It is followed closely by credits (17.1% to 22.1%), which is not a surprise, because the earned income tax credit has been a compliance problem since it was first enacted. Unemployment compensation income and state income tax refund income follow.

When this news was posted on the ABA-TAX listserv, one subscriber suggested that there are "two culprits for non-compliance," namely complexity and burden of compliance, which in turn encourage people to play games with tax planning. Another subscriber pointed out that some complexity arises from efforts to shut down such game playing, giving as an example the at-risk deduction limitation rules, and that the problem is a cultural one, namely the acceptance of potentially abusive tax avoidance and the re-definition as aggressive of what was once considered to be abusive. I share my reply:

If the at-risk rules were so successful, why, then, the need to layer on the complexities of the passive loss rules? I think there is a difference between complexity arising from the non-tax complexities of life and complexities arising because the tax law creates complexities that otherwise would not exist and that in turn encourage further complexities that taxpayers try to make appear as complexities of life.

For example, if any sort of tax (income, sales, consumption) has an exception, complexity arises when people try to make something that is not in the exception appear to be in the exception. Thus, every special rule in taxation that reflects a tax break rather than a distinction based on something other than tax ought to be repealed, or not put into the law in the first place. That's why bridge tolls are far from complex, even though one could make all sorts of arguments to reduce the toll for car-poolers (environmental policy), or to increase it for extra passengers or weight (less stress on bridge), etc. The latter is at least closer to the purpose of the toll (finance the operation of the bridge) and the latter is the intrustion of non-revenue purposes into the tax law/ bridge toll law. Implementing either would involve complexity (including logistical complexity).

Most complexity in the tax law arises from the insane flurry of legislation enacted during the past 15 years that reflects the "I'm special" (or "my project is special") bleatings of the lobbyists and their clients. The "it would be nice/just/fair/smart/wise/sensible/good/ to create this special rule" argument too often is "it would be expedient to enact this special rule because it gets us votes" politics. Taxpayers know this, and thus feel justified in creating for themselves
the equivalent of the exception for which they did not have the money or connections to get for themselves directly.

Thus, I think that noncompliance increases in direct correlation to the extent taxpayers perceive the tax law as unfair. The more disporportionate a tax law's complexity is to the complexity of the context in which the law applies, the more unfairness will be perceived by more taxpayers.

And I agree, the answer is not simply a matter of changing the type of tax. It's a matter of changing the mentality that spawns the tax law.

I'm a tax teacher. I'm supposed to have the ability to change people's tax mentalities. I'm working on it.

Apparently, a lot of people, if you use P2P (peer to peer) file sharing and have it configured to access files on the same computer drive on which you keep your tax return. And they can see just about everything else on the computer, unless you take steps to isolate the files open to the P2P program.

This isn't my discovery. It was publicized by Michelle Malkin.

And this isn't my discovery of the discovery. It was brought to my attention by the ever-eagle-eyed Paul Caron of the TaxProfBlog.

This is not an urban legend. It isn't all that much of a surprise to those who know how P2P works when it isn't configured properly and files on the hard drive aren't protected from the prying eyes of those peers using the P2P software.

I'm posting this because I think it's something everyone needs to know. Your computer on a home network with a child's computer on which P2P is running? Yes, then this is something you need to know. And do something about.

My recent post about gasoline price increases brough not only a response from one of my students, Nakul Krishnakumar, posted here, but also a response to that exchange by another student, Anand Dash, with whom I had this dialogue:

Regarding your Blog article from March 23 on Gasoline Prices and solutions and my friend Nakul's response:

I will begin by saying that because of my lack of thorough knowledge and information on gasoline taxes and how they would affect consumption, I do not propose a tax related solution to the current high gas prices. But regarding your comment that we are "oversensitive and insufficiently illogical when it comes to the environment", I respectfully disagree.

First, specifically, as to drilling in the ANWR, I understand after speaking to Prof. Dellapenna that many of the major oil digging companies have refused to accept drilling contracts because the amount of oil that could be extracted is simply not worth their time and investment.

But more importantly even if there was a large amount of oil to be found there, I still cannot see how we could justify digging in the ANWR. My reason is that say that we do dig and in the process we get enough oil for the time being to lessen our dependence on foreign sources and thereby ultimately reduce the gas prices. But in the meantime we have destroyed the natural habitats of animals native to the area and moreover left the place as an eyesore. But the oil that we take from the ANWR is only so limited that it will eventually run out, i.e. oil is a finite natural resource. And when it runs out, we will have left parts of the ANWR as a waste land and the problem of oil supply and high prices will resume.

As to being oversensitive about the environment and against anti-roads bans, I can only pray that you really don't mean that:
Last summer I took a solo road trip to Baxter State Park in the remote mountains of Maine, and I remember distinctly asking myself after being just overwhelmed by the smell of pine trees, the immense beauty of the mountains, and the single lonely dirt road running through the remote wilderness area, how can anyone who has ever truly experienced the wonders of nature think to take a metal chain saw and massacre one of the greatest gifts that God has given us: Natural beauty and a wilderness that is a sanctuary from our technology-driven and hectic lives. Personally, if ultimately I couldn't afford to pay the gas prices I would walk or ride a bike to school or the store or where ever I needed to go, rather than see the natural wonders of the Earth destroyed.

I admit that in posting these lines, I have not fully thought through many of the logical consequences of my plea and of course of the well crafted and well-argued counter responses that may follow by you...

And I admit that this posting may come across as being sentimental, but if you have ever experienced the indescribable feelings that I did in Maine in your own travels, whether in Europe or in the States, I hope that you will see that my feelings are genuine and that we can never be too oversensitive when we only have one Earth. I think we would be insulting the intelligence of human beings if we are to say that in light of our material needs we have no solution but to demolish and destruct the true and natural beauty of our Home.

Anand raised some important concerns, and prompted me to think about how I had articulated my views. To that end I replied:

Anand,

I do think too many environmentalists get carried away. I have been a conservationist since I was a child. I enjoy the outdoors and I object to unmanaged sprawl or the building of resorts in remote wilderness areas. What's being done to the Amazon rain forest is horrible.

Yet it is embarrassing to watch opposition to dam construction because of a fish (snail darter) that turns out not to exist in the river in question. Or to watch a highway reduced to 2 lanes each way to appease anti-highway forces (some of whom proudly announce their use of the highway), only to see traffic sit and spew pollution and gobble gasoline because the highway capacity is outdated before it is built.

As for ANWR, I like the idea of leaving it alone until everyone else runs out of oil. But I don't think that doing work on a hundred acres of a million acre area is going to be a problem. The same fears were expressed with respect to the pipeline, and yet it turned out to be an environmental plus. The notion that drilling would create a wasteland isn't supported by experience or the facts.

The real problem is something people don't want to discuss. It's overpopulation. At 6.5 billion, and growing, overpopulation threatens every single resouce. Long before the forests are gone, we will run out of fresh water. Long before the oil is gone, we will run out of food. A report issued last week by a panel of experts maps out the resource problem. Almost every environmental problem (and some others, such as urban decay, violence, and war) can be traced to overpopulation. Yet attempts to have intellectual analysis override emotional reaction fail time and again. There are people who claim the planet can support 10 or 15 billion people (the estimated population by mid century), yet even at 6.5 billion there are shortages of steel, lumber, oil, concrete, fresh water, medical services, and all other sorts of things. No home, even a mansion, can remain beautiful if 750 people are living in a 12,000 square foot palace.

* * * * *

Thanks for writing.

Anand in turn followed up on my comments:

Perhaps unlike a good lawyer, I have no rejoinder but to honestly say that I fully agree with you that many environmentalists do get carried away and that population certainly is a major and most critical issue.

The population issue especially strikes a chord with me because somewhat unrelatedly, I believe population also to be the single greatest impediment to the societal and environmental progress of my parents's homeland, India. In India, the country has most of the modern comforts and amenities in their big cities as we have in ours, their computer and software technology as you may know is equal if not superior in many respects to the States, and they are a strong and stable democracy. Sadly, however, it is primarily their population that is severely holding them back in almost every aspect of conservation, development and progress. India's population I believe will soon surpass China's because of the fact that as a democracy India is not currently able to limit the births per family.

One further note on the population issue is that I had a professor at William and Mary who posed a question as to whether human beings should be viewed strictly like any other species of animals who are susceptible to the natural law of survival. And following this premise, if eventually the human population vastly exceeds food supply and natural resources, should the strong and fittest of the population in order to stablize the population "squeeze" out the weak, as would occur in the animal kingdom? Clearly, I recognize that there are basic moral and ethical issues involved, but from a purely biological and scientific viewpoint, perhaps the theory makes sense and may turn out to be the only solution to a overcrowded world with finite resources. But in light of the Schiavo case, and with all due respect and sympathy, I imagine that there would be critics who would jump all over this natural law theory as applied to human beings.

Thank you for taking the time to respond. * * * * *

The population issue is not going to go away. It will move to the forefront. It will get more attention not only on account of end-of-life issues such as those currently making headlines but also on account of beginning-of-life issues that will get increasing attention as medical and scientific developments present even more challenges to each and every person on the planet. Whether the population issue takes center stage because of conferences, articles, discussions, and legislative debate, or whether it takes center stage because it triggers the sorts of problems that are percolating under the surface (wars, violence, crime, and economic disorder) is a question that will be determined by the decisions each person makes. From the perspective of tax policy, which cannot avoid entanglement with environmental issues, population is an ingredient in the analysis that often gets taken for granted. Will the connection between tax law and population also move into the spotlight? We will see.

Back in January I shared my analysis of a case involving New York's insistence on taxing a Tennessee resident, who is not a New York resident, on the income he earns in Tennessee doing computer work for a New York organization. He lost at the trial court level. He appealed.

Now comes news that by a 4-3 vote the New York Court of Appeals has rejected the taxpayer's appeal. The taxpayer's attorney is considering taking the case to the Supreme Court.

I hope they decide to do that, and I hope the Supreme Court gets it right.

After all, the taxpayer spends 25% of his time in New York, so it's tough to argue with New York taxing 25% of his income. But, no, New York wants to tax all of it. The Court of Appeals noted that perhaps if the taxpayer spent 1% of his time in New York, a tax on 100% of his income would be disproportionate but a 100% tax on someone spending 25% of their work time in New York isn't. Excuse me, did anyone study arithmetic? OK, maybe I can be sold the idea of 100% taxation when the time spent in New York is 99% or even 95% (though there's no reason not to multiply the total income by 99% or 95%). But 25% is NOT proportionate to 100%. Not on this planet.

The fact that most states do the right thing and apportion should be even more proof that New York is out of line. It's tough to give up that $100 million annual revenue stream, especially for a state that is so addicted to collecting and spending money. Money from people who do not vote in New York, who impose far less burden on New York services than do New York residents, and who might begin pressuring businesses to move their operations to other states. Finding a state with open arms of welcome will not be difficult for businesses who want out of the tax revenue siphon.

When New York argued that it had a right to tax 100% of the employee's income because the employer received benefits from New York all the time, the red flags began to fly. That theory would permit New York to tax all the employees, no matter where located and no matter where working, of employers with offices in New York. The flaw in the reasoning is serious. That four judges bought the argument is discomforting.

The good news is that even the four judges who voted in favor of New York's Department of Revenue suggested that there is a limit, and taxing nonresidents with "remote" connections to the state would not fly. I predict that when New York goes after the person with a 5% or 10% connection its reach for everything will be a reach too far. If New York officials cast their eyes 90 miles to the south, they can see their future, a place that shows the consequences of insisting on tax policies that drive businesses out. It's called Philadelphia. And it's in a state that doesn't set much of a good tax policy example for that city.

Ultimately, if a person or state does not play fair, that person or state will discover that no one will play with them. Even if they are the biggest on the block.