MauledAgain

No sooner had I reported on the Congressional proposal to impose an excise tax on "regulated pornographic web sites" in yesterday's posting than I heard on the radio a report that Mike Tyson is considering going into the adult film acting business in order to make money that he needs to pay back taxes. A search of the web yielded stories such as this one, which appear to confirm that Tyson did state he has been having discussions with people in the adult film industry. Nothing, though, specifically referred to his tax problems, though Tyson's statement that "My options are pretty minimal, but I will examine them." in the context of his financial situation and the common knowledge that he has had serious tax problems makes the radio report far from implausible.

So wouldn't it be ironic (and a lot of other things) if the adult film industry cranks up its revenues by adding Mike Tyson to its "stars" list because he needed money to pay taxes? Especially when this news is popping up at the same time some members of Congress are trying to use taxes, among other things, to curb the industry's web presence and reach.

For years, I've had a book in the planning stages. It's called "Celebrities in Tax Trouble" and it would be long, because the list of celebrities who have had tax problems is long. But the list of things on my "to do" list with higher priorities also is long and the book idea simply ferments in the back of my mind, occasionally moving into the forward regions when something triggers it. But this Mike Tyson thing might end up changing the title. I'm not going there. Not now. Not in the near future. Maybe after I retire.

It's just getting weirder and weirder in the tax world. Good thing I'm noticing or I'd fit in too easily.

So a bunch of Senators has decided that the solution to the problem of Internet pornography sites luring children to their pages and products is, yes, a tax.

The full text of Senate Bill 1507 can be found by going to the Thomas Congressional web site. Thanks to Brian Coddington for the permanent link.

Clearly the goal of the bill is worthy. The purpose of the legislation is to "set tighter age verification standards to block minors from entering Internet pornography sites" and to "provide funding and support to law enforcement efforts to combat Internet and pornography-related crimes against children."

The bill imposes age verification requirements. I thought those already existed, but apparently not. Third-parties, such as credit card companies, are prohibited from providing services unless the web site complies with the legislation. That, I think, is something new. The Federal Trade Commission would have authority to regulate these web sites.

Here's the tax part: A new Internal Revenue Code section:

Sec. 4285. Internet display or distribution of pornography.

SEC. 4285. INTERNET DISPLAY OR DISTRIBUTION OF PORNOGRAPHY.

(a) Imposition of Tax- There is imposed on amounts charged by a regulated pornographic Web site for individuals to receive the display or distribution of pornography through the Internet a tax equal to 25 percent of the amounts so charged.

(b) Payment of Tax- The tax imposed by this section shall be paid by the operator of the regulated pornographic Web site receiving payment for the display or distribution taxed under subsection (a).

(c) Definitions- In this section:

(1) PORNOGRAPHY- The term `pornography' has the same meaning as defined in section 2256(2) of title 18, United States Code.

(2) REGULATED PORNOGRAPHIC WEB SITE- The term `regulated pornographic Web site' has the same meaning as defined in section 105 of the Internet Safety and Child Protection Act of 2005.

OK, this one can't be criticized for complexity. It's written in fairly plain English, although it does get away with a cross-reference for what is probably one of the most difficult words to define.

The revenue from the tax would be used to fund enforcement of the act, to fund a tip line, to fund a variety of child protection programs, some administered through the states, to fund research and development into filtering technologies, and to fund education of state agencies dealing with the problem. Any remaining revenue would be used to fund federal agencies, and certain private entities. If any revenue is not needed for these activities, it would be used for deficit reduction.

If it works, this would raise money. According to one of the sponsors, as reported by the Washington Post, the Internet pornography industry nets $12 billion annually.

Here's the problem. Or at least one of them. Most of these web sites are located outside the United States. Does anyone, including the sponsoring Senators, think that they will voluntarily pay this tax? Ha ha. Perhaps the plans are to send the military in to seize assets? What assets? Where?

This is what is called "for show" legislation. Even if it passes, like its predecessors, it will not solve the problem. At least one print version report that I read included a quotation from one Senator to the effect that they didn't think it would be effective but it would send a message. A message? To whom?

What would solve the problem is parental control, education, and discipline of children. That, of course, is asking a lot. Put the computer in the living room or den and look at the screen when the child is using it. That might interfere with the golf game, but, hey, aren't the children worth some attention?

So some members of Congress turn to the only thing that they think works, namely, a tax. To be administered by the Internal Revenue Service. Because it has nothing else to do?

The Internet is global. The problem is global. The solution needs to be global. It requires international agreement. The idea that the United States Congress can unilaterally police the Internet is not only short-sighted and narrow-minded, but a losing proposition.

And if another country imitates this legislation, will there be a credit for a tax paid to that country? Practical application of this theoretical idea is what will generate complicated amendments.

Sometimes tax isn't the answer.

A little more than a month ago I shared a summary of the tax provisions of the ENERGY POLICY TAX INCENTIVES ACT OF 2005, as approved by the Senate Finance Committee in late June. The bill has been through Conference, and has been signed into law.

Rather than listing its tax provisions again, I'll point out the major differences between the Senate Finance version and the bill that was enacted. My point isn't so much to turn myself or any of you into experts on these provisions (though eventually I'll need to scrutinize them more closely as I update Tax Management portfolios) but to illustrate how politics ravages the tax law. But we knew that!

** Congress added a provision, from the House version, that treats natural gas gathering lines as seven-year property for depreciation purposes.

** Congress added another provision, also from the House version, that treats electricity transmission property as fifteen-year property for depreciation purposes.

** Congress, again picking up something in the House bill that was not in the Senate version, removed some restrictions on the use of 60-month amortization for certainatmospheric pollution control facilities.

** Congress again went to the House bill to adopt a provision making the credit for producing fuel from a non-conventional source part of the general business credit.

** Congress yet again adopted a House bill provision loosening the requirements for deduction of nuclear decommissioning costs.

** Congress adopted another House bill provision, this one exempting prepayments for natural gas from the tax-exempt bond qualification arbitrage restrictions.

** Congress adopted yet another House bill provision, expanding the small refiner exception to certain restrictions on the use of percentage depletion.

** Congress added Indian coal to the list of additional energy sources specified in the Senate bill as newly eligible for the renewable electricity production credit.

** Congress rejected the Senate bill provision making clean energy coal bonds tax-exempt.

** Congress also rejected the Senate's proposed credit for investment in clean coke/cogeneration manufacturing facilities property.

** Congress rejected the changes to the enhanced oil recovery credit that were in the Senate bill.

** Congress adopted, from the House bill, a special excse tax rate for diesel fuel blended with water to form a diesel-water
fuel emulsion.

** Congress also adopted, from the House bill, a provision permitting geological and geophysical costs incurred in connection with oil
and gas exploration in the United States to be amortized over two years.

** Congress rejected the Senate bill provision that would have repealed the scheduled phase-out of the credit for electric vehicles.

** Congress rejected the provisions in the Senate bill making changes to the alternative fuels excise tax credit.

** Congress rejected the Senate bill provision creating a business energy-efficient property deduction.

** Congress rejected the Senate bill provision creating a combined heat and power system property energy credit.

** Congress rejected the Senate bill provision expanding the energy credits allowable against the alternative minimum tax.

** Congress rejected the Senate bill provision treatig underground natural gas storage facilities and cushion gas as ten-year property for depreciation purposes.

** Congress rejected the Senate bill provision creating a credit for equipment for processing or sorting materials gathered through recycling, and instead directed the Secretary of the Treasury, in consultation with the Secretary of Energy, to conduct a study to determine and quantify the energy savings achieved through the recycling of glass, paper, plastic, steel, aluminum, and electronic devices, and to identify tax incentives that would encourage recycling of such material.

** Congress rejected the Senate bill provision creating a credit for investment in pollution control equipment.

** Congress rejected the Senate bill provision creating a credit for the replacement of a non-compliant wood stove
with a compliant solid fuel burning stove.

** Congress rejected the Senate bill provision exempting bulk beds from the excise tax on retail sale of heavy trucks and trailers.

** Congress rejected the Senate bill provision establishing an exclusion for certain fuel costs of rural carpoolers.

** Congress rejected the Senate bill provision treating qualified energy management devices as three-year property.

** Congress rejected the Senate bill provision creating an exception from the tax-exempt bond volume cap for certain cooling facilities.

** Congress rejected the Senate bill provision making changes to the excise tax treatment of kerosene and other excise tax provisions affecting fuels.

** Congress adopted changes to the rules for recapture of section 197 amortization with respect to sales of multiple intangibles, in a provision not present in either the House or Senate bill.

Most of the Senate bill provisions that were adopted were modified in minor ways. Those details will not get attention here at this moment.

I may have missed a few things. Take a look at the Conference Report if you'd prefer to dig into the source material.

I close with these concluding remarks from the Conference Report.

Section 4022(b) of the Internal Revenue Service Reform and Restructuring Act of 1998 (the “IRS Reform Act”) requires the Joint Committee on Taxation (in consultation with the
Internal Revenue Service and the Department of the Treasury) to provide a tax complexity analysis. The complexity analysis is required for all legislation reported by the Senate Committee on Finance, the House Committee on Ways and Means, or any committee of conference if the legislation includes a provision that directly or indirectly amends the Internal Revenue Code (the “Code”) and has widespread applicability to individuals or small businesses.

The staff of the Joint Committee on Taxation has determined that a complexity analysis is not required under section 4022(b) of the IRS Reform Act because the bill contains no provisions that have “widespread applicability” to individuals or small businesses.

So if none of these provisions have widespread applicability, how is this bill going to make a difference with how the population uses energy? If almost everyone is unaffected, how does this bill make a difference in terms of energy conservation and development progress?

That was a rhetorical, sarcastic question.

Every once in a while something happens that makes me wonder if I chose the wrong profession.

Sometimes it's an encounter or experience with another profession that triggers thoughts that it would be more fun.

Sometimes it's reading yet another Congressional text emission dumping thousands more words into the tax law.

Sometimes it's dealing with an aggravating situation or person in the course of doing my work.

And sometimes it's stories such as this one from the Daily Business Review. This sentence alone says it all: "A recent survey of 5,000 people by Salary.com found that lawyers ranked 10th on a list of the top "sexiest" jobs." The full salary.com report is here.

But to rub salt in the wound, consider that the "top three 'hot jobs' were firefighter, flight attendant and chief executive officer." I get the first. But the other two? Let's face it...when it comes to CEOs, it's a money and power thing. So much for romance, ha ha. But aren't lawyers more powerful than CEOs? Lawyers can put CEOs in jail.

Yes, money talks. Even though salary.com reports that salary is not an important factor in determining sex appeal, at least one newly admitted Florida lawyer claims he is successful on the dating scene so long as he mentions his income. According to salary.com, "the median salary for lawyers is more than three times that of news reporters, who ranked third on the sexy jobs list." Soundbite masters ahead of lawyers? Hey, lawyers can put journalists in jail, too.

Worse, "Lawyers ranked just below doctors and just above veterinarians." Interesting company we keep.

Yet, according to the story, "News reporters ranked third, in a three-way tie with interior designers and event planners. That seems preposterous enough to invalidate the whole survey."

Just like the surveys that claim personality, kindness, commitment, a sense of humor, and reliability are what people seek in a mate. Right.

That's why I tell people I'm a teacher. They come in eighth, ahead of lawyers. Then I'm asked what I teach, and by belonging to the 8th and 10th positions I drop to 18th. Then toss in writer, which isn't even on the list, and computer programmer, which also absents the list, and it's downhill at breakneck speed.

Even CPAs got some write-in votes. I knew there was a reason I should have accumulated additional weeks of accounting firm work so I could have sat for that exam. Maybe that would make for the winning combination.

Hey, have a good weekend. Just don't lie about your job tonight, hee hee.

All I'll say is this: if you can't pass the bar exam without knowing the questions and answers in advance, you ought not be permitted to practice law, and if you can't pass an academic exam without knowing the questions and answers in advance, you ought not earn a grade that is deserved only by those who can demonstrate they know how to think.

And this: What is alleged in the case, reported by the Legal Intelligencer, has been known to happen in similar ways in law schools. Tsk, tsk. When is integrity going to become a gateway to advancement?

And this: If the allegations are proven, the repercussions will reverberate far and wide. Hopefully we'll get updates.

Joe Kristan of Roth and Company, P.C., weighs in on the Code complexity debate. His post is short and simple. I salute his farm method of accounting example. Take a look.

The recent series of postings concerning the degree to which the Internal Revenue Code is complicted, the last of which is here, has brought a response from Ben Bateman of Amarillo, Texas. Ben's first point:

What's missing in your debate with Mr. Mitchell is agreement on the standard of complexity by which to judge the tax code. You are holding it to some abstract standard of perfection, while I suspect that Mr. Mitchell is comparing it to other statutes. Compared to other statutes, I agree with Mr. Mitchell that title 26 is a model of organization and simplicity, second perhaps only to title 11.

Yet there are standard readability and other word-based objective standards for measuring complexity. I wrote about that some time ago in this post. Much of the Code does not do well under those tests. The Code is not written in plain, simple, straight-forward language. Consider this provision:

For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an organization described in section 501(c)(4), (5), or (6) which would be described in paragraph (2) if it were an organization described in section 501(c)(3).

This is from section 509(a), which deals with tax-exempt entities. Try tossing that at a client affiliated with a tax-exempt organization.

Ben's second point:

For sheer obtuseness, I don't know of any sentence in title 26 that can compare with § 37 of the Texas Probate Code, which packs over 200 words into a single sentence.

Until its repeal, section 341 of the Internal Revenue Code came in at 342 words, 25 parentheticals, 17 commas, 2 dashes, and 1 period. See Steve Willis' Tax Humor page for this and some other doozies. And that's the short list. Ben points out that when spacing, internal subdivision, and margination are taken into account, a provision like section 341 isn't as difficult to read as it would be in the form of one huge batch of text. That's true, but it's no excuse for the Code to fall short of what sapiens sapiens can accomplish.

Ben also notes:

The tax code is complicated in the same way that the dictionary is complicated: There's a lot of information in it. But the information isn't badly organized, and it isn't badly written compared to other statutes.

Another objection I have to the "the Code isn't as bad as the state statutes" argument is that, even though this assertion is true, it reduces things to the lowest common denominator. The fact that many state statutes are just as bad or worse doesn't absolve the Code. It's no claim to fame to be a micrometer above the bottom. Remember that Kreig Mitchell's original point wasn't that the Code was in first place but that it was simple. It's one thing to have NBA-level basketball skills. It's another thing for an adult to stand out when playing basketball with middle school kids. I don't buy the "I'm not as bad as the other person" defense. I want to measure accomplishment against potential. That's how I was raised. And that's how I take on tasks. It's not a matter of rising above others. It's a matter of achieving potential. That's why I detest grading curves that are relative, because they deceive students (and employers and others). And as for organization, I refer again to the failure to put all deductions allowable in computing adjusted gross income in section 62. The Code is decently organized, at best. It isn't as good as it could be. That's the issue. Taxpayers deserve more than "decent job" when what's at stake is not a one-time matter but a permanent Code. For example, are the EITC provisions within "it tells you" to the extent an average taxpayer could understand them? What of the dependency exemption rules? Or the scholarship rules? The list is long. I think sometimes when we work with the Code enough it begins to "make sense"....sort of like closing time at the tavern. True, I teach my students to immerse themselves in the Code so that it loses its mysteriousness and the fear subsides.

Ben then explains:

Many lawyers I know are terrified of tax law because it carries this aura of super-complexity. I'm much more nervous about areas of law in which the relevant statute is badly written or badly organized. Or worse: Even once you understand the statute you don't know the law, because the real law is hidden in the cases or regulations, which are even worse than the statute. In my experience, most law is like IRC § 704(b): An ambiguous statute atop an ocean of impenetrable regulations. But most of the IRC isn't like §704(b). It tells you what it's trying to tell you. It doesn't hide the ball.

I agree there are lawyers terrified of the Code. Why? They haven't bothered to explore it. The familiar is far less like to instill terror than is the unfamiliar. And yes, the regulations are even worse, but why? Because Congress tosses the ball to the IRS. Take a look at section 706(d) and notice how Congress surrendered the completion of the list of cash-basis items to the regulation drafters (who after all these years have yet to step forward with a more complete list). Sure, it can't hide the ball when it hands the ball to the IRS.

Ben concludes with these words:

The tax code could be better, of course. The question is: Better for whom? Lots of different people use it for lots of different purposes. How much simplicity should it have, versus how much precision? How much simpler could anyone really make it? Here's an objective standard of complexity: Is it worth re-writing? In Texas, we just got a new comprehensive statute on business entities to replace an archaic patchwork of statutes dating from the fifties. It took an enormous amount of time to write, and the changeover costs are substantial. But the old statutes were bad enough, and the new one is good enough, to make it worthwhile. If you think that the same is true of the IRC, then maybe you should form a committee and start writing.

Indeed, the Code needs to be rewritten (substantive reforms aside). I'll do it if the Congress asks. Otherwise, any work product would go into the round file. Anecdote: Years ago, when I was in D.C., I drafted a Code provision. The "experts" said something along the lines of, "This is quite good. However, we have a similar provision, nowhere as nicely done, but we need to track it for sake of consistency." That's one of the obstacles to cleaning things up.

In a followup, Ben comments:

I like the IRS approach to presenting tax law, which leaves the actual statute to the professionals while giving the public an array of official publications. It separates ease of access from precision, as the two can never really coexist easily. So if the problem is that the tax law isn't accessible enough for the general public, then the solution lies in that publication system, not in rewriting the tax code.

Yet that's a reason I don't like the current approach. A group of IRS employees explain what they think the Code means, and wherever there is ambiguity it's not uncommon for the IRS to present an explanation favorable to the revenue. Why support a type of guild system under which translators are needed? I know I would not be writing as many (or perhaps as lengthy) portfolios if the Code were written in the language spoken by the people whom it is intended to affect. And the same can be said of many other laws, ranging from parking regulations and zoning ordinances to business licensing and labor laws.

The last thing we need is support for the existing Code mess. I, for one, do not want to be an enabler of the present system or the type of output we currently get. Stuart Levine is correct. The problem is deeper than the Code language. It's the process that generates it that requires fixing. Otherwise, a redrafted Code will soon relapse back into what it is at the moment, because continuation of the current mindset and process will produce more of the same.

Legislators have an obligation to speak and write clearly. Say and write what you mean. Mean what you say and write. Forget soundbites. Avoid duplicity and deceit. Blow away the smoke and break the mirrors.

Kreig Mitchell has posted an interesting and helpful response to my latest entry in our continuing debate about the complexity of the Internal Revenue Code.

He apologizes for any attack that I perceived to have been made on me. Accepted. I think a defense of the Code's simplicity can be made without characterizing or stereotyping the critic. Mr. Mitchell explains what he perceives to be a connection between how tax is taught and the adverse impact on taxpayers of their fear that the IRS can use a complex Code to do to them whatever it wishes.

I'll bite, though I don't see how taxpayers who have never sat in a law school or accounting program tax course can develop their fears from those courses, other than in the rare instance such as the one cited by Mr. Mitchell, in which a client's law student relative feeds that fear. After all, it would be distressing to think that practitioners who have been through those courses would indoctrinate their clients into that sort of thinking. In this respect, Mr. Mitchell and I share common goal, which is to demystify the Code for our respective audiences. We may have different views on how easy it is to accomplish that goal.

Mr. Mitchell explains how a very stressed client was able to use an index to the Code to find the section pertinent to his problem, and then to read that provision to determine that the IRS was wrong in his particular situation. The taxpayer expressed relief at discovering that "yes" was the answer to his question "is that it?" Granted, sometimes an IRS employee takes a position so at odds with a basic rule that a person who has not been through a tax program can figure it out from the Code. Left for another day is how that happens and why it isn't a good thing that IRS employees take positions so clearly erroneous. But I don't think that the fact the Code is straight-forward with respect to certain issues puts a blanket of simplicity on it.

Let me give an example. If the question is what deductions are allowable in computing adjusted gross income, a Code index would send the reader to section 62. That provision purports to list those deductions, and it is a relatively simple provision, and not too difficult to read. Of course, many students think it is the section that allows the deduction in the first place, when in fact it is classifying deductions allowed by other provisions. That may be one of the "arcane" points to which Mr. Mitchell refers, but it is a critical distinction. Yet that's not the problem. The problem is that there are four (at least, the last time I checked) other deductions allowable in computing adjusted gross income that are not in section 62. The allowance, in computing adjusted gross income, of casualty loss deductions to the extent of casualty gains is the best example. Is it good drafting to put this in section 165(h) and not section 62? No. Now although Stuart Levine explains how this might happen, principally because of working under deadlines and stress, it nonetheless is the sort of sloppiness that creates traps for the unwary. If a client was led by a Code index search to section 62 when seeking deductions allowable in computing adjusted gross income and asked "is that it?" the correct response is no. And when a client, thinking logically, is told that there are other deductions "hidden" elsewhere, the client's reasonable response is that it could be less complicated, couldn't it? This is one example of why the Code does not earn an A, or even a B or C, from me when graded for simplicity and organization.

Mr. Mitchell notes that there have been other instances, including his own academic experiences, in which people teaching tax have impressed on their students the fact that the Code is complicated. Well, it is. The breakdown occurs when the tax student, perhaps experimenting at developing clients who "need" the student's help, uses an "alarm the client" technique. My students are taught that their task is to assist clients and to put them at ease. Perhaps that is not a widely presented point.

However, where Mr. Mitchell and I part company, again, is when he states, "So Mr. Maule, you can continue to tell your students and others that the tax code is hopelessly complex. That is your right." But I don't use the adjective "hopelessly" and that makes all the difference. If I thought it was hopeless I'd be doing something else. I teach my students in a manner that lets them understand (1) the Code IS complex, (2) but it CAN be deciphered, and (3) even though there are a few "easy" provisions, (4) doing the deciphering requires a huge amount of effort. After all, most law students will agree that tax is one of the most, if not most, difficult law school subjects. Most law faculty cannot, and will not, teach tax even though they often claim, on employment applications, that they can teach anything else. Why? The superficial response, "it's boring" masks the truth, "It's way too difficult and much too much work."

Serious harm can be done into making someone think a complex thing is simple. Good teaching, though, moves a student into the complex by taking him or her through a series of layers that begins at the straight-forward and moves to the reality of the complex. Not all Code sentences are complicated. But if the complex ones are removed, there isn't much left. And one has to wonder how simple the simple parts are if an IRS employee can't even get that right even though the taxpayer can. As I tell my students, sometimes you get lucky and have a bright, sensible, accomplished client who can do almost as much with some parts of the law as can a lawyer.

I doubt that most taxpayers would have been able to do what Mr. Mitchell's client did. If the Code were as simple as I wish and think it could be, I'm sure many more clients indeed would be so successful.

Andrew Mitchel is back at it. I pointed out in this post of three weeks ago that he had put together a collection of charts depicting a variety of corporate tax cases and the reorganization provisions. Then I noted in a followup that he had added a group of section 367 charts to his Andrew Mitchel LLC - International Tax Services web site. Now he has added charts for another 20 cases and rulings (including Aiken Industries, Elkhorn Coal, First Chicago, Vetco, Inc., Rev. Rul. 2003-51, Rev. Rul. 2003-79, Rev. Rul. 2004-59, Rev. Rul. 2004-77, and Rev. Rul. 2004-83.

The best place to start is with his sitemap. Understand I'm a big fan of visuals, whether charts, graphs, pictures, or animation, as a means of teaching and learning something that is complicated. So I repeat, Andrew's web pages are definitely worth a look by those studying, teaching, or working with the statutes, cases, and rulings that he has illustrated.

My post yesterday challenging the assertion that the Internal Revenue Code is "clear, simple, and well organized" has brought a quick and intense response from the People's Tax Lawyer (Kreig Mitchell) and a nicely reasoned and balanced "middle position" analysis from Stuart Levine.

Mitchell stresses that he is a practitioner. So, too, am I, though no longer on a full-time basis and no longer with taxpayers (aside from a few to whom I dare not say go away). My clients are tax practitioners, directly and indirectly. So when I help a tax practitioner help a client I'm not doing something all that different (if different at all) from what tax practitioners do.

Mitchell writes, "the non-practicing tax professor’s job is to ferret out arcane and obscure rules and fact patterns that may or may not be an issue or even arise in real life. Such a reading of the Code allows the tax professor to test which students deserve the higher mark and which deserve the lower mark." Where Mitchell gets this idea is a question I'd enjoy having answered, because that's not what I do as a tax law professor. There is no time in my courses to ferret out arcane and obscure rules. There's not enough time to deal with the basics. Although occasionally a student complains that I left an exception to an exception for some later day in practice, most appreciate the separation of fundamentals from arcane that characterize the courses that I teach. Granted, some don't quite grasp this until they are in practice and discover that client problems and assignments from partners make my tax courses seem like child's play. My job is to prepare students to learn how to interpret the Code and other tax sources and to learn how to teach themselves as they progress through a career during which there likely will be 20 or more major tax acts changing how they deal with their tax and non-tax clients. Mitchell's assertion reminds me of the students who contend that if they got a question wrong it was because the question addressed an obscure provision. I resist responding that a provision never read is indeed obscure.

Mitchell then attacks academic scholarship:

It also provides academic job security. The process goes something like this. One professor writes an article on some arcane and obscure rule or fact pattern. It is sufficiently long and/or complex so that no one actually reads it. Everyone just assumes that the piece is good and wise and the professor adds another publication notch to his or her belt. Then a second professor writes an article citing the first professor, which adds a publication notch to his or her belt. The process continues until there is a whole mess of writing on an issue that may or may not materialize in real life. Then one or more professors hold themselves out as consultants on the issue -- advising tax planners as to how the issue is important and how they can help their clients avoid it. The process has the trappings of a multi-level marketing scheme. I have not read the particular tax professor’s work, but I think that this is the market for tax translation that the professor mentioned.

Well, as everyone who listens to me or reads my comments on the matter, I'm no fan of typical academic scholarship published in student-edited, and usually untimely, law reviews. I'm somewhat of a misfit in the law school "academy" because my writing, whether articles, book chapters, or books (such as Tax Management Portfolios) focuses on problems that already exist in practice. That's why I keep in contact with practitioners. It lets me find out what's happening in the practice world. Amazingly, and it absolutely amazes me, Mitchell hasn't read any of my writings. Let me be an egomaniac for a moment. How can anyone practice tax and not use Tax Management portfolios, at least now and then? And if anyone is dealing with the income side of tax (in contrast to international or estate and gift), the place to start is with the 8 overview portfolios, all of which have been written by this "particular tax professor." Hmm. That idea of the unread and therefore obscure and arcane provision seems to resurface here. So the accusation that I, or for that matter, any other tax law professor, invents issues that otherwise would not exist and then inject them into the practice world is flat out silly. The few tax law professors who confine their writing to highly theoretical and conceptual explorations are not in a position to so influence practitioners.

Mitchell then contends that

even if these arcane and obscure rules and fact patterns do arise, they have a way of working themselves out. This occurs where the government is not able to recognize the issue; the government recognizes the issue but decides not to pursue it; the government recognizes the issue, pursues it, loses in court, and gives up; or the government recognizes the issue, pursues it, loses in court, and expresses that it will continue to pursue the matter. In the later case it is only a matter of time before the courts or Congress clarifies the issue or the issue becomes a non-issue via one of the previously stated means. In the end, the tax professors are the only ones talking about the issue (typically for many many years).

An issue that affects a taxpayer is not arcane and obscure to that taxpayer. Absent guidance, the taxpayer must choose between safe surrender and risky adventure. Sometimes what little guidance exists comes from things such as Tax Management portfolios. Considering the number of law review articles and Tax Management Portfolios cited by the courts, surely the output of practitioner-focused tax law professors has value. Let me self-promote again. A few years ago, I discovered, thanks to an observant law librarian, that the Department of Justice had cited some of my Tax Management Portfolios in appellate briefs, on more than a few occasions.

Then Mitchell states: "The truth is that a great many tax cases are won on procedural grounds without ever getting to the underlying substantive tax law. Yet very few tax professors write about or even teach tax procedure. The academic world portrays tax procedure as lowly or not worthy of academic study." I must bring this to the attention of the two faculty members who teach a basic and advanced tax procedure course at my school, and, oh, there's one that deals with criminal tax procedure. I devote 2 days at the beginning of the basic tax course taking students through an overview of procedural issues. Every survey result I've seen suggests that J.D. students are getting some exposure to procedure, and LL.M. students are pretty much compelled to take at least one such course. I'd like to see the empirical evidence that supports Mitchell's assertion.

What follows is shocking. He writes, "Rather than teaching the law and skills necessary to do this, tax professors employ their flawed means of reading of the Code to have their students explore the merits of one or two words in the Code." Flawed means? Does Mitchell intend to suggest I (alone or with my colleagues) have turned thousands of students into bumbling tax practitioner fools? Surely such an outcome flies in the face of what my practitioner graduates tell me.

I guess Mitchell doesn't like tax law professors. How else to explain this comment: "But to be fair, reading the Code for arcane and obscure issues and fact patterns is not entirely useless. It does give tax professors something to do, it does allow tax professors to feel like they are contributing something, it does help justify paying tax professors a salary, and in rare cases, it does add to the body of tax knowledge." I wonder what traumatic academic experience brought about such a "paint with a broad brush" attack.

But here is a clue:

This brings back memories of my partnership tax law class. In that class the professor did not simply cover the main rules and point out interesting or novel issues. Instead, the professor went into great detail about very specific fact patterns involving inside and outside basis, tax and cost basis, minimum gain charge back and qualified income offset provisions, and about other minutia. For sure, it was all good information to know. However, the fact patterns presented were very obscure. At the review for the exam one student asked the professor how partnerships could function in the real world given our partnership tax laws and why anyone would set up a partnership given the amount of compliance work that would be required to comply with the partnership tax laws. The tax professor responded by saying that almost no one complies with the law. After graduating and practicing I now know that the professor was partially correct.

First, note the typical desire for "main rules" and "interesting ... issues" in contrast to the nuts and bolts of practice. This is a desire of which most of my students need to be, and are, eventually, disabused. Second, inside and outside basis is a fundamental linchpin of subchapter K. Tossing it off as "minutia" indicates a total lack of appreciation for what partnership taxation is about. Questions from practitioners struggling with real-life, practice world subchapter K issues involving basis, minimum gain chargebacks, and similar issues dominate the ABA-TAX listserv. Why? Because the Code, and yes, the regulations, are not well drafted. So I get to "translate" not only for list participants but for the dozens of practitioners who email me directly. If these are silly arcane issues, why are the practitioners wasting their time with them? Yes, compliance is horrible in this area of tax law. Why? Because people don't take the courses? Because the law (Code, regs) is NOT as simple as Mitchell contends? Because as students practitioners "tuned out" anything past "main rules" and "interesting issues"? Surely, reading the Code through a filtering lens of "main rules" leaves the practitioner with a simple (but erroneous) short and easy text.

Mitchell then states, "In the end, many of the partnership tax issues that were so pertinent in my law school partnership tax class are really non-issues in practice. Even then, I recently read an article by that very same professor complaining about the complexity of our tax code. Go figure." Well, of course, go figure. Yes, I complain about the complexity of the Code. Mitchell claims the Code is clear and simple. (He also claimed not to have read any of my works, but I guess he did.) My partnership tax class focuses on issues that practitioners have presented to me in one way or another. There is a long list of issues I don't cover, because time is scarce and these issues haven't been in the spotlight. Time and again, I cite (anonymously) a practitioner question posed to me on the listserv or directly by email. As law professors in most subjects tell their students, "We don't need to make up this stuff." Time and again former students call or write to express amazement that they are encountering in practice what I predicted they'd encounter (not a grand accomplishment considering in most instances I was relaying information from other practitioners).

When Mitchell writes, "The perspective from the ivory tower is not the only perspective out there," he implies I live in the ivory tower. I don't live in an ivory tower or an ivy-ed tower. That's been one of my hallmark characteristics, and one that, at times, has presented challenges fitting in with the culture of a theoretically-focused non-tax academy. I am surely the last tax law professor on the planet to be accused of being too theoretical, isolated, oblivious to the practice world, or residentially ivy-ed.

Mitchell concludes: "I did not say that the Code was perfect. What I did say is that from my perspective, for all it is to accomplish, the Code is model of clarity and simplicity and it is not too complex." As Stuart Levine points out, compared to most state tax laws the federal Code is high quality. True. And amongst 8-year-olds I'm still a very good basketball player. Analyzing the Code through stadard readability tests, for example, is a far better way to determine its clarity and simplicity. It's been done, and the Code is far from "not too complex." That the Code is not as bad as the regulations, or as some degree of organization, is no high praise.

Mitchell never responded to my specific examples of serious flaws in the drafting and style of the Code. Stuart Levine's post presents a good defense, explaining how the drafting process almost guarantees what we get. Where are the examples of clear, easy to read and understand Code provisions? Where are the readability scores showing the Code as a model of clarity?

Attacking the critic is not a useful response to the criticism. This is especially true when the attack on the critic is groundless. I expect better. My students say I am demanding. I am. I am, because I know that practice will be just as, even more, demanding. It demands something more than a gloss on "main rules" and "interesting issues." It demands a thorough understanding of the details that matter in practice. Arcane or not, if the client has the problem, the issue is real. And if the Code were so simple, why are there so many taxpayers seeking or needing professional tax advice?

I stand by my criticism of Mitchell's assertion that the Code is simple and clear. It's not.

The People's Tax Lawyer has posted a defense of the Internal Revenue Code, concluding that it is "model of clarity and simplicity for all it is to accomplish" and that it "is not too complex." The People's Tax Lawyer concludes, "Our Code is clear, simple, and well organized."

In all fairness, much of the post is a complaint about failings in the organization and other features of Treasury Regulations. There will be no argument from me that this complaint lacks justification. My students often hear and see specific examples of bad drafting practices evident in the regulations. The cross-referencing in the section 704(b) regulations (e.g., "(1) and (2) of (b)(2)(ii) of this section" rather than "the first two prongs of the three-prong test" is one of my favorite examples).

But to characterize the Code as clear and simple suggests familiarity breeds affection. At least for the People's Tax Lawyer. But not for me. True, the Code is decently organized. It is not well written. Ask any basic tax student about the "bears to" language that could be, as it is in some instances, a simple "multiplied by a fraction, the numerator of which...." construct. Consider that sometimes effective dates are in a code section, other times in uncodified amending legislation. Consider that parts of section 167 that still apply have been repealed. Check out the application of section 1245 to ACRS property, which requires digging through "old' versions of the Code with several amending acts in hand. Consider the numerous uses of the "we'll let the IRS finish writing the statute" approach. Consider the enumeration of a certain number of paragraphs in a subsection, suggesting that there are those number of requirements, when in fact several requirements are buried in the introductory language. Take a peek at section 71(b) to see that inconsistency.

Of course, when one turns to substance, the Code gets even more convoluted. What is the definition of a small business corporation? Yes, which one? Or the "Notwithstanding provision x, a z is not a z if a w has been held for t years during the time that the z would have been a z but for this rule" grammatically absurd and incomprehensibly dense tweaks grafted onto what might otherwise be a clear and cogent definition. Or perhaps it would be fun to count the many different ways inflation adjustments are computed and rounded?

Some of my professional writing for Tax Management, Inc., involves the exposition and analysis of the tax law as found in the Code (the rest involves regulations, rulings, cases, etc.). Much of the time I take what is in the Code and rewrite it, in English. Apparently there is a market for this translation, a conclusion I base on the number of tax practitioners (and others) who use the portfolios in which I do this. Of course, I am joined by several or more hundred other authors providing the same service.

If the Code were so clear and simple as the People's Tax Lawyer contends, things such as Tax Management portfolios would not be necessary. Now, it could be that all the rest of us are lacking some special skill or insight, but I guarantee you there are times I read a Code provision, especially one recently enacted or amended, scratch my head (maybe that's why I'm losing my hair), read it again, read it to myself out loud, try to rewrite it, and sometimes begin inventing words to describe the poor quality of the provision.

And eventually along come the technical corrections. I wonder why those are necessary, he asks sarcastically.

Sorry, People's Tax Lawyer, on this one I flat out disagree. Even accepting the substantive mess that it has to reflect, the Code is not as well organized or drafted as it could be. After all, I think my translations are far less convoluted. I'll let the practitioners score that assertion.

I begin my Introduction to Federal Taxation Class, after getting through the "housekeeping" details, with an illustration of the federal and state income tax liabilities of someone who earns roughly what a first-year associate at a medium-sized Philadelphia law firm would earn. My goal is to orient students to thinking in terms of post-tax income. Why? Primarily to provide an overview of how income taxes are computed, but also to awaken students to the idea that a person who earns $x a year cannot spend $x a year without going into debt, digging into savings, or hitting up relatives for gifts. It's a reality check. Every year there are audible reactions from some students.

Last week I received an email from a former student whose experience with taxes in a work world setting had a more profound impact than did the classroom example. He wrote, with redactions intended to shield his identity:

The reason I am writing is that I now more than ever feel the need for the tax code and current tax structure to be overhauled. As you may recall, I am receiving a fellowship for my work this summer from PIFP. Fellows receive a $4500 total fellowship, but the actual pay is so far removed from this figure. There are six gross payment of 750 each that are disbursed to students over the summer. I was shocked to discover that my last net pay was a mere $580, after two FICA taxes, federal withholding tax, [state Q] state tax, AND a $52 Radnor EMS tax (even though I am not working in Radnor, but in [city D in State R], leaving a meager $580. Is it just me or is there something wrong with the system? Just wanted to send my thoughts to you

Let's take this apart.

1. If all he earns for the year is the $4500, he will have no federal income tax liability. Someone appears to be withholding at a rate based on a $27,000 annual salary. It often happens with summer jobs, and can be prevented by indicating no withholding on the W-4 form. Most people miss that option.

2. As a resident of State Q, he is subject to withholding of state Q income tax. As best as I understand that state's income tax, he will have liability even if he earns only $4500 for the year. I don't think there is a "do not withhold it's only a summer job" option for that state.

3. The two FICA taxes are social security and medicare. Unless the wages are exempt, and in this instance they are not, it's bye-bye to 7.65% of the $4500. In a follow-up email, he indicated that if he dies before working 40 qualifying quarters, the money is gone. I think that is correct. That's simply another aspect of the pyramid scheme of the current FICA system.

4. Why is a Radnor tax withheld when he is a resident of another state and working in yet another one? The answer is that because Villanova is writing the fellowship checks for the work done in the other state, the Radnor tax must be withheld. That's a flaw in the ordinance. The EMS (emergency and municipal services) tax ought not apply to someone who is imposing NO burden on the Radnor emergency or municipal services systems.

5. These arre four different taxes, enacted by three different jurisdictions. Changing the Internal Revenue Code would have no effect on the Radnor EMS tax glitch. Nor would it affect the state Q income tax. Reforming the federal income tax would not fix the FICA problem. In fact, of all the problems, the one that is most transitory and easily handled is the federal income tax W-4 withholding option. I suppose somewhere, somehow I didn't even try to get that point across in class (mostly because it is a small bit on a huge structure to which only 42 50-minute sessions are devoted).

So if a law student who takes a federal income tax course has this sort of taxing experience, what's it like for everyone else? Surely not fun. Perhaps unpleasant.

The story begins when the IRS decides to write a history of its criminal enforcement activities. Presumably it was an anniversary project, as it is called "75 Years of IRS Criminal Investigation History" and covers IRS criminal enforcement from 1919 through 1994. Part of it is a republication of a 1936 summary coveringa mere 17 years of enforcement efforts.

It describes individual cases involving celebrities, public figures, politicians gone bad, organized crime syndicate members, and others. Some of the stories are familiar: Al Capone, George Raft, Teapot Dome, Bobby Baker, and hundreds more. There are names, dates, dollar amounts, and enough material to write several movie scripts, or more.

The story gets even more interesting when the IRS, after sending copies of the book to federal depositary libraries (such as the one at Villanova), determined that it ought not to have done so because of personal tax information in the book. It asked the libraries to return the book. Hah, hah. A Freedom of Information Act request to the IRS for the book brings a heavily redacted document. The horses are out of the barn and the IRS has shut the door and stands guard over it.

Steven Aftergood of the Federation of American Scientists' Project on Government Secrecy scanned the book. Michael Ravnitzky, who brought this to my attention, proofread it. You can find it at The Memory Hole web site.

It's well worth the read. I've read parts of it, skimming through and stopping when I saw a recognizable name. I'm sure when I go back and read about the unfamiliar names I'll find more good tales. Anyone teaching or praticing in the criminal tax law area must read this. The rest of us tax folks should. And taxpayers generally might find some interesting beach or mountain lake reading. After all, the American public seems to like reality shows, and what's more real than a tax fraud case? Talk about FEAR FACTOR. OK, if there's not a movie script, surely a Fox reality show. TAX CHEATS. Talk about desperate. Sorry, it's late.

Warren Rojas of Tax Notes, made this connection between my recent posts (here and here) on the word for the streamlined process for authenticating documents internationally and the sentencing of a Hull, Massachusetts, man for bank fraud. The fellow generated false tax and income statements in his wife's name and used those documents to obtain loans. Here's the clincher:

EDELKIND, who filed for bankruptcy in October 1999, used his wife's name on all of the loans. EDELKIND prepared loan applications in his wife's name, listing fictitious employment and income information, backed up by forged tax and payroll records. EDELKIND fabricated a variety of documents, including forged "W-2" Wage and Tax Statements and tax returns. As the loans got larger, the amount of income claimed grew as well. Early in the scheme EDELKIND submitted records showing that his wife had an annual income of roughly $200,000 -- by the end he claimed she earned $1.1 million as Chief Operating Officer of a company called Apostille, Inc.

So even the con artist (who gave an address for Apostille, Inc. that postal authorities said would be in the Atlantic Ocean) knew about this word and I didn't. Proof I don't know everything.

And he used tax forms to do his deeds, too. I knew there was a connection.

Andrew Mitchel is at it again. I pointed out in this post of two weeks ago that he had put together a collection of charts depicting a variety of corporate tax cases and the reorganization provisions. Now he has added a group of section 367 charts to his Andrew Mitchel LLC - International Tax Services web site. Defintely worth a look by those studying, teaching, or using these provisions.

Some things don't mix. Oil nd water come to mind. Some things ought not be allowed to mix. Drinking and driving, for example.

So how about this hook-up? Choicepoint and the IRS.

Choicepoint, as most news readers know, from stories such as this one, is a data gathering enterprise that became (in)famous after the personal and confidential records hundreds of thousands of indiividuals were stolen from the company's computers. Now along come the IRS, according to reports such as this one, which awards a 5-year contract to Choicepoint to run IRS data batch processes. The contract could amount to as much as $20 million.

Isn't this nice? Get lax with security, put other people's data, identity and even lives at risk, and be rewarded with a government contract. This suggests that the IRS managers who entered into the arrangement didn't think there was anyone else out there who could be better at what counts, at least not at the specified price.

Fortunately, members of Congress have jumped in to criticize and even attempt to stop the implementation of the contract. Senator Patrick Leahy, joined by Senator Arlen Specter, in a bipartisan effort, has called for a review of the contract to ensure that taxpayer data and privacy are protected. Representative Ed Markey, using a nice word twist, pointed out that the contract left taxpayers with no choice about the destination and spread of their data.

The IRS responded by ordering a full review of the contract. Considering what's at stake and Choicepoint's track record, it had best be a thorough review. I doubt a confirmation of the contract will sit well with people, especially those whose lives have been inconvenienced and ruined by the "make profits at others' expense" philosophy of most big business enterprises.

Other than pressure their legislators, what can taxpayers do? Not much. So, as usual, this falls back on the Congress. It writes the tax laws. It created the IRS. It appropriates tax dollars to the IRS. So it had best do its duty.

No sooner had I posted my "discovery" of the apostille, both word and process, than the English major and expert of the family sent this:

http://switzerland.isyours.com/e/faq/apostille.html
What is an apostille?
An apostille is a special seal applied by an authority to certify that a document is a true [sic] copies of an original. Apostilles are available in countries, which signed the Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents, popularly known as The Hague Convention. This convention, created in 1961, replaces the time consuming chain certification process used so far, where you had to go to four different authorities to get a document certified.
www.wordfocus.com
apo-,
wordinfoap-, aph- (Greek: from, away from, asunder, separate, separation from, derived from; used as a prefix).
tillo-,
wordinfotill- (Greek: to pluck, tear, pull).

So kudos to my sister for digging this up. And thanks. I don't think I would have guessed a Greek origin.

One never knows when one will learn something new. For me, this time, it was during a visit with one of my cousins, retired from the diplomatic corps. We were discussing estate planning, and the fact that Portugal, where he owns a property does not "understand" or recognize the trust. The lawyer in Portugal needed some documents, including some tax papers, and they had to be certified.

Once upon a time it worked as follows. Let's assume a county tax document. The document was taken to the county court house, where the clerk certified the document. Then it was forwarded to a state official, who certified that the certifying county clerk was indeed who he or she claimed to be. Then this was forwarded to the state's Department of State, which certified the authenticity of the state official's certification. Then it went, if I am remembering this correctly, to the U.S. State Department, which certified it to the other country's consulate or embassy, and then it made its way to the lawyer in the other country.

Fortunately, the U.S. entered into a treaty that streamlined the process. It calls for something called an APOSTILLE. No, not apostle. After I left, my cousin sent me the link to this explanation of an apostille.

Perhaps you knew about this. I didn't. I've learned some law. So, if you ever need to certify a tax or other document to another country, that's how it's done.

The word apparently is both a noun and a verb. At least it is used as a verb on that web site. Imagine if I used it playing Scrabble. I would be challenged. So would you. Now you have proof it's not a figment of your imagination. According to Webster's, it is a noun, not a verb, and it means " marginal note on a letter or other paper; an annotation". Look at the Webster's site for all sorts of trivia about the word. But I haven't found the origin of the word.

It's almost Independence Day. It's a day that means a lot of things to a lot of people. We have opportunities unlike those available to most people in the world. For example, what percent of the world's adults own their own home? In some countries, private home ownership is rare or reserved for a privileged few. Sometimes it's economics, but usually it's politics. And often when it is economics, it's really politics in disguise.

That's why the following response to my post several weeks ago on Home Price Sticker Shock is appropriate at the moment. Dave Harmon wrote:

Here in NYC, the housing boom is driving gentrification (bye-bye, Bowery) and pricing the middle class out of town. It was already messing with the demographics and social structure -- especially, police officers either can't afford to live in the communities they serve, or don't dare to (in the slums). Note that the slums are part of the same problem: these are places where the landlords can't score "enough" money from rent, so they don't bother with maintenance, let alone investment. They just wait for the developers to come along and buy them out, often with subsidies from the same City Hall that couldn't be bothered to deal with the neglect. I'm sure there are tax issues in there, but mostly it's just power politics.... ;-(

Well, there is tax in this, from the beneficial impact of the real estate property tax deduction and the home mortgage interest deduction on home ownership, to the debilitating impact of rapidly rising local property taxes on continued ownership by citizens on fixed incomes, to the variety of incentives, gimmicks, and other control features woven into state and local tax law. If housing prices contine to escalate, and of course the question is whether they will, the tradition of private home ownership by the majority of citizens, nurtured and strengthened by American political and socio-economic characteristics, will be in jeopardy.

Why is this so important? I think "pride of ownership" extends beyond care of the home to care of the community. Home owners have an investment flavored wth an emotional attachment not found in other investments (except, perhaps, cars, jewelry and collectibles). There are many freedoms in independence. Homeownership reflects one.

Happy Independence Day.

This traffic backup/tieup simulator is VERY cool. Run the uphill grade variant and decide if the truck in the left land should be charged an "unwarranted use of left lane for passing beyond capability of truck engine" user fee. The technology exists to do this. Note that in the simulations there are no accidents, bad weather, etc. I was clued into this by a tax faculty colleague. Who says tax profs aren't forward thinking and capable of spotting the cool stuff?