MauledAgain

When gambling meets tax law, a variety of interesting issues arise. One of the most interesting is the question of whether a taxpayer who borrows chips from a casino, gambles, loses, and gets a reprieve from the casino has gross income. In Zarin v. Commissioner, 92 T.C. 1084 (1989), the Tax Court held that the taxpayer had gross income, but the Third Circuit reversed (916 F.2d 110, 90 TNT 213-10 (3d Cir. 1990). This question, which continues to stir up debate among tax law academics and practitioners, is not the focus of today's post. There are other interesting questions. Those who are interested can get a good start to understanding the Zarin decision by reading Dan Shaviro's excellent analysis in "'The Man Who Lost Too Much: Zarin v. Commissioner and the Measurement of Taxable Consumption," 54 Tax L. Rev. 215 (1990).

The tax law limits the deduction of gambling losses to gambling winnings. For this reason, people gambling for the fun of it often try to persuade the IRS and the courts that they are carrying on a trade or business, which would permit deduction of gambling losses as business losses unimpeded by the limitation on the deduction of gambling losses. If they succeed, they also obtain deductions for the associated expenses of gambling, such as travel costs if they go to places such as Las Vegas or Atlantic City to pursue their goals.

In Commissioner v. Groetzinger, 480 U.S. 23 (1987), the Supreme Court held that the taxpayer had demonstrated his gambling activities rose to the level of a trade or business. The only salient fact making his situation special was that he devoted most of his time gambling and had no other source of earned income. Most gamblers need to hold regular jobs in order to make money, and thus it remains very difficult for a taxpayer in a specific situation to convince the IRS that he or she is carrying on a trade or business.

And if a gambler does make money, the income is taxed as ordinary income. If the taxpayer in Groetzinger had turned a profit, the profit would have been taxed at ordinary rates. It is also arguable that the income would be subject to self-employment taxes.

The question that gets my attention this morning is how should gambling be defined? In other words, what activities ought to be brought within the deduction limitation? Is it simply a matter of identifying the games available in a casino? Is it a matter of identifying those activities regulated by state gaming boards?

From a much broader tax policy perspective, the question is why should certain activities that involve gambling be taxed at special rates. For all intents and purposes, investing involves a gamble. There is no certainty in making an investment. The odds may differ, giving the investor a much better prospect of profit when investing in land than when investing in an obscure start-up company, but nonetheless, risk is risk. Even an agreement to perform services for a fee is a gamble, because there is a risk that the employer will go bankrupt.

Yet for some reason the Congress treats certain types of gambling, namely, investing in things called "capital assets" or engaging in activities "deemed" to be the same as investing in capital assets, as privileged and worthy of reduced taxation. Thus, the person who puts down a bet today on the 2008 Presidential election will be taxed at regular rates if she wins, but the person who puts down a bet today on the value of stock in Exxon-Mobil during November 2008 will be taxed at special low rates if he wins.

The argument that betting on stocks and other investments deserves a lower tax break because it creates jobs doesn't resolve the distinction even if the assertion is true. After all, there are hundreds of thousands of people holding jobs created to service those who gamble Las Vegas style.

Perhaps there is some sense that investing in land or a fly-by-night start-up is somehow more noble, more valuable, more dignified, or more moral than investing in the outcome of a Presidential election, next year's Superbowl, or oil to be delivered in 2010. But since when does the tax law care about the morality of income? Gross income from dignified jobs is taxed no more or less than gross income from undignified jobs. Gross income from illegal jobs is taxed no more or less than gross income from legal jobs. Gross income from investing in stock in a company manufacturing alcohol or tobacco products is taxed no more or no less than gross income from investing in stock in a company manufacturing cancer-curing pharmaceuticals or chicken soup, though both are taxed at special rates lower than those applied to gross income from any sort of job.

I do not see a difference between the person who devotes their time almost entirely to making casino and similar investments and the person who devotes their time almost entirely to making commodities futures and long-term option investments. Folks doing the latter try to distinguish themselves by arguing that they are using their intellectual skill and acquired knowledge, evaluating prospects, and otherwise doing something more than pulling a slot machine lever (or pressing a slot machine button). Yet that argument fails in two respects. Every person I know who gambles, whether at poker, the track, or using cards, claims that they are using their intellectual skill and acquired knowledge, evaluating prospects and otherwise doing something more than throwing some money at a stock on a hunch. Some folks study corporations and other study horses. The argument by the folks claiming capital gains low rates for their investment gambling, that they use intellectual skill and acquired knowledge and evaluate prospects, demonstrates that they are not very different from the lawyer, physician, or engineer who uses intellectual skill and acquired knowledge and evaluates prospects when deciding how to proceed with their professional endeavors. Yet the income they produce is taxed at the high rates imposed on labor income.

I wonder if the current Administration and its Congressional allies, in proposing to make permanent the special low rates applicable to those who gamble in commodities, options, and similar items, understands that gambling is gambling. Do they understand that making those rates permanent will generate even more incentive for tax shelter designers to find ways to package poker games as long-term investments the income from which would be taxable as capital gains?

Actually, I don't wonder. I'm certain that the thought has not crossed their minds. So I'm not even gambling when I make that observation.

It seems that taxes are so despised in this country that a great way to denounce an economic concept with which one disagrees is to call it taxation. I already can hear the insults. "You ... you .... you .... you tax person, you!" I've been called worse.

This latest observation comes from this CNN report about America OnLine's plan to require businesses to pay a fee to send commercial email messages. AOL, in conjunction with Yahoo!, has been testing an email system that permits the certification of email, which, theoretically at least, would curtail spam. The fee could be as much as $2 to $3 per 1,000 email messages.

Not surprisingly, there are marketers opposed to the idea. The CNN report quotes a USA Today report in which some marketers assert that the contemplated service fee is "a form of e-mail taxation." The CNN report also quotes the CEO of an e-mail services company as saying, "It's taxation of the good guys with cash, and it does nothing to help the good guys who can't afford the cost or to deter the bad guys who spam anyway."

News alert. A fee charged by a private company is not a tax. A tax is a financial imposition levied by a government or government entity, or a non-governmental organization acting on behalf of or under specific revenue-collecting authority of a government or government entity. To be more specific, this definition from Lectric Law Library's Lexicon will help a lot of people doing crossword puzzles: "This term in its most extended sense includes all contributions imposed by the government upon individuals for the service of the state, by whatever name they are called or known, whether by the name of tribute, tithe, talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other name."

The mis-use of the words "tax" and "taxation" by the people unhappy with AOL's plan could be deliberate. It surely makes the fee seem far more devious. Or it could be another case of ignorance, a pale imitation of the use of the term "tax" in the major league baseball collective bargaining agreement. The so-called "competitive balance tax" is simply a charge assessed against member clubs whose payrolls exceed a specified threshold. It has nothing to do with a tax other than the use of the term by lawyers and labor negotiators who decided to use the word "tax" to describe something that is not a tax.

And from such nonsense comes even more nonsense. Perhaps the next step is the exclamation of someone who walks up to a ticket window at a major league baseball stadium, asks for a ticket, and hears the words, "That will be $45, please." The exclamation? "Wow, what an outrageous tax you are sticking on me." Yes, indeed. They're taxing this person for entering the stadium.

Now let me go see if I can tax my employer for my services. Perhaps I'm onto something. Are taxes taxable?

Referring to AOL's plan as an email tax is going to do nothing but stir up that old urban legend about a federal email tax, which had seemed to fade away. Ah, old myths never die, they return in recycled form to haunt yet another generation.

New alert. AOL is NOT proposing to tax anyone. It couldn't even if it wanted to do so.

Yes, even the Superbowl is not without tax overtones. Michigan, the state in which this year's showcase is being played, has an income tax, and imposes that tax on income earned by non-residents from sources within the state. Detroit, the city hosting the game, also has an income tax. Applying the state's 3.4 percent rate and the city's 1.275 percent rate to the income earned by employees of the Seattle Seahawks franchise while in Detroit, Michigan will generate roughly $500,000 of income taxes for Michigan and Detroit.

This is not news. The same general result, though with different rates and dollar amounts, would occur if the game were played in California, New York, or any of the many other states with income taxes that extend to non-residents. In California, where rates reach 9.3 percent, the amount involved could be as high as a million dollars of tax revenue for a few days of work.

What's news is that this is news to folks in Washington, one of the few states in the country without a state income tax. And some of these people, including state representative Christ Strow, think there is a problem. If Michigan and Detroit are going to take tax money from Washington residents, the state must "try and protect [its] athletes," according to Strow.

So Representative Strow has proposed a bill to tax Washington residents when they play professional games in Washington. The bill would not tax athletes from states that do not impose an income tax on Washington residents. Thus, it is "retaliatory" legislation, following the approach taken by Illinois when it enacted what has come to be known as "Michael Jordan's revenge." For more about the Illinois approach, and alternatives, see the student paper, STATE INCOME TAXATION OF NON-RESIDENT PROFESSIONAL ATHLETES, published by the Villanova University School of Law Tax Law Society's Tax Law Compendium.

But before Washington proceeds, its legislators ought to take a close look at the United States Constitution, and, more practically, at two important United States Supreme Court pronouncements on what the Constitution does and does not permit states to do when it comes to taxing non-residents. In Shaffer v. Carter, 252 U.S. 37, 52 (1920), the Court stated:

[W]e deem it clear, upon principle as well as authority, that just as a State may impose general income taxes upon its own citizens and residents whose persons are subject to its control, it may, as a necessary consequence, levy a duty of like character, and not more onerous in effect, upon incomes accruing to nonresidents from their property or business within the State, or their occupations carried on therein.emphasis added

In other words, Washington cannot subject non-resident athletes to a tax more onerous than the income tax it imposes on Washington resident athletes. For example, when New Hampshire, another state without an income tax imposed a commuter income tax on residents of surrounding states, the Supreme Court struck it down, in Austin v. New Hampshire, 420 U.S. 656 (1975), saying:

Against this background establishing a rule of substantial equality of treatment for the citizens of the taxing State and nonresident taxpayers, the New Hampshire Commuters Income Tax cannot be sustained. The overwhelming fact, as the State concedes, is that the tax falls exclusively on the income of nonresidents; and it is not offset even approximately by other taxes imposed upon residents alone. Rather, the argument advanced in favor of the tax is that the ultimate burden it imposes is "not more onerous in effect," Shaffer v. Carter, supra, on nonresidents because their total state tax liability is unchanged once the tax credit they receive from their State of residence is taken into account. * * * While this argument has an initial appeal, it cannot be squared with the underlying policy of comity to which the Privileges and Immunities Clause commits us.

According to the State's theory of the case, the only practical effect of the tax is to divert to New Hampshire tax revenues that would otherwise be paid to Maine, an effect entirely within Maine's power to terminate by repeal of its credit provision for income taxes paid to another State. The Maine Legislature could do this, presumably, by amending the provision so as to deny a credit for taxes paid to New Hampshire while retaining it for the other 48 States. Putting aside the acceptability of such a scheme, and the relevance of any increase in appellants' home state taxes that the diversionary effect is said to have, we do not think the possibility that Maine could shield its residents from New Hampshire's tax cures the constitutional defect of the discrimination in that tax. In fact, it compounds it. For New Hampshire in effect invites appellants to induce their representatives, if they can, to retaliate against it. * * *

Nor, we may add, can the constitutionality of one State's statutes affecting nonresidents depend upon the present configuration of the statutes of another State. Since we dispose of this case under Art. IV, 2, of the Constitution, we have no occasion to address the equal protection arguments directed at the disparate treatment of residents and nonresidents and at that feature of the statute that causes the rate of taxation imposed upon non-residents to vary among them depending upon the rate established by their State of residence. emphasis added; footnotes omitted

So there it is. Representative Strow's proposal guarantees litigation, and Supreme Court precedent guarantees a loss for Washington. Even though Strow is following the Illinois approach, the fact that Illinois has an income tax applicable to residents makes all the difference in the world. And in any upcoming litigation.

Another aspect of this situation deserves a bit of attention. That people who work in many states must file many tax returns is a fact of tax life. Until states and localities get together and agree on some sort of combined reporting, the professional athlete who plays games in multiple states must file multiple state and local income tax returns. Depending on how many games are played in states without an income tax, and on how deep into the playoffs the team advances, NFL players and team employees who travel need to file in as many as ten states and perhaps as many localities. For athletes in other professional sports, whose teams play many more games, in more states, the number of state income tax returns could reach several dozen.

The computations can be complicated. Records must be kept of the number of days played in each state. The paperwork burden is enormous, and athletes on the low-end of the salary scale, outside of the major sports, might not be able to afford professional tax return preparation assistance. According to a spokesperson for the Tax Foundation, quoted in this story, some very highly-paid athletes "travel with a coterie of accountants." This same person took the position that, "We consider it to be an outrageous administrative burden on anyone who travels and works for a few days out of state."

But before tears of sympathy are shed for the athletes, consider that anyone who works in more than one state or locality during the year faces the issue. Consider the barely-making it musical group or touring theater company making stops in all the states. Think about the traveling sales representative who criss-crosses the nation, spending several days in each state. Some of these folks are required to file state and local tax returns that can number as many as one hundred.

When people speak and write of tax reform, much, perhaps almost all, of the attention turns to the federal income tax. But for every federal income tax there are more than forty state income taxes. And for every state income tax there are dozens of local income taxes. Add this to the reason that a "flat tax rate" doesn't in and of itself simplify the tax law or tax return filing.

Today may be the day a Super game is being played, although I confess that because the Philadelphia NFL franchise isn't represented, it's just not quite as super as it could have been. But there is no question that the nation's tax systems, from Washington to the tiniest borough, is far from super. Perhaps it will be, aha, superseded by something better. Sorry. I'll take the 5-yard penalty for bad puns.

When my dentist yesterday afternoon asked me what I thought of the State of the Union speech, I wanted to reply, "I didn't hear much that wasn't recycled, and even the comments spoken by the President that were new for him, such as the addicted-to-oil comment, wasn't news to me." Of course, considering my mouth was full of equipment and he was poking around at a tooth, I wasn't able to say much. I couldn't say anything. Yes, the dentist is one of the few people who can get the edge on me in conversation time sharing.

But it reminded me I had intended to share some commentary on the tax and tax-related proposals mentioned by the President. Now that the crammed schedule of Wednesday (four hours of class, presentation, grading, etc.) and the tooth drilling of Thursday is behind me, I have a moment to present some brief notes.

From the President:

Yet the tax relief is set to expire in the next few years. If we do nothing, American families will face a massive tax increase they do not expect and will not welcome.

Because America needs more than a temporary expansion, we need more than temporary tax relief. I urge the Congress to act responsibly, and make the tax cuts permanent.

No, Mr. President, only a few American families will face massive tax increases if the special low rates expire, and though they will appear massive to most people, they won't be massive to the people who incur them, because the return of tax levels to where they had been will affect a very small fraction of these folks' income. Some Americans' tax liabilities would not change if the special low tax rates expire. On the other hand, Mr. President, the alternative minimum tax threatens to carve deeply into the economic well-being of the middle class. Why not fix that problem even if it means that the high rollers give up their special low tax rates? If you need to understand this, take a look at this blog. Scroll through, and you'll find more than enough explanations of why the "we deserve special low tax rates because we're so good for the economy" crowd is serving you about as well as has some sectors of the intelligence community.

From the President:

Keeping America competitive requires us to be good stewards of tax dollars. Every year of my presidency, we've reduced the growth of non-security discretionary spending, and last year you passed bills that cut this spending. This year my budget will cut it again, and reduce or eliminate more than 140 programs that are performing poorly or not fulfilling essential priorities. By passing these reforms, we will save the American taxpayer another $14 billion next year, and stay on track to cut the deficit in half by 2009.

I love that first sentence, Mr. President. It's a great soundbite. But cutting the budget deficit in half is like putting fillings in only half the cavity-afflicted teeth. Some of the deficit arises from those special low tax rates. Another significant portion is the cost of war. Trying to wage war while enabling most Americans to lead peacetime lives is oxymoronic. Wars aren't buildings that can be mortgaged.

From the President:

I am pleased that members of Congress are working on earmark reform, because the federal budget has too many special interest projects. And we can tackle this problem together, if you pass the line-item veto.

My expectations, Mr. President, is that you will live by these words, and just say no to the requests for special interest expenditures and special interest tax cuts. But I'm willing to predict that a discussion of the definition of special interest would be, ah, interesting.

From the President:

We must also confront the larger challenge of mandatory spending, or entitlements. This year, the first of about 78 million baby boomers turn 60, including two of my Dad's favorite people -- me and President Clinton. This milestone is more than a personal crisis -- it is a national challenge. The retirement of the baby boom generation will put unprecedented strains on the federal government. By 2030, spending for Social Security, Medicare and Medicaid alone will be almost 60 percent of the entire federal budget. And that will present future Congresses with impossible choices -- staggering tax increases, immense deficits, or deep cuts in every category of spending.

Congress did not act last year on my proposal to save Social Security -- yet the rising cost of entitlements is a problem that is not going away. And every year we fail to act, the situation gets worse.

So tonight, I ask you to join me in creating a commission to examine the full impact of baby boom retirements on Social Security, Medicare, and Medicaid. This commission should include members of Congress of both parties, and offer bipartisan solutions. We need to put aside partisan politics and work together and get this problem solved.

Well, Mr. President, you're right that entitlement growth threatens the nation's financial health. And it's not just retirement entitlements. Of course the question needs to be studied. Carefully. With input from people who are gifted with skills necessary for analyzing, explaining, and proposing remedies for the structural deficiencies in entitlements. But I fear that the nation will end up with a commission not unlike the one that looked at tax reform, omitted thorough analysis of many alternatives, and recommended changes, from some of which you turned and ran like a little child who hears the dentist's drill for the first time. Make me a promise. Promise you will appoint people because of their expertise, intellgence, willingness to listen, open-mindedness, creativity, and diligence. That disqualifies a lot of the people who might otherwise find their way onto the proposed commission. We don't need folks whose minds are already made up and whose political souls have already been sold to one or another particular devil of a detail.

From the President:

We will strengthen health savings accounts -- making sure individuals and small business employees can buy insurance with the same advantages that people working for big businesses now get. We will do more to make this coverage portable, so workers can switch jobs without having to worry about losing their health insurance.

Making health care affordable at the same price to all people must be balanced with the need to preserve the health of medical insurance companies by adjusting rates to reflect the bad health habits of some Americans. Designing accounts that put responsibility on people might just give people a chance to show themselves that they can be responsible. At the same time, remember it's tough for some people to put away money for future health issues when there are children in the house who are hungry. Tax deductions and tax exclusions work for those who have something to spend and deduct or who have income to exclude. Making coverage portable is a very good, but of course, not new, idea. Considering that part of the retirement entitlement concerns involve health care for retirees, perhaps it would make sense to wrap these issues together. Oh, I could live with a separate commission. But again, I want the experts on it. I want to know what should be done, not what politicians think needs to be done to ensure re-election.

From the President:

Second, I propose to make permanent the research and development tax credit -- (applause) -- to encourage bolder private-sector initiatives in technology.

If there is going to be an r&d credit, you're right, it ought to be permanent. It's tough to run a business that engages in r&d without knowing whether there will be a credit 2 or 3 years down the road. The same can be said, by the way, about other credits and tax provisions. It might be fun holding one's breath until reaching the last page of a great mystery novel, but American businesses need an environment of relative certainty, and not one in which it isn't know until May of a particular year that the Congress has retroactively renewed a tax credit back to the beginning of the year. Until entrepreneurs master time travel, they can't go back and grab "do overs" for their January through April business activities.

From the President:

Third, we need to encourage children to take more math and science, and to make sure those courses are rigorous enough to compete with other nations.

Of course this will make it easier for them to learn about the tax law, won't it? I'm doing my part, Mr. President, so if you need advice on how to make a course rigorous, send me an e-mail. Perhaps requiring high school sophomores to take a basic federal tax course would get their brains warmed up and ready for the math and science stuff? Rather than seeing those courses as "too hard" and impossible, they'll jump into those courses with a sigh of relief that they get to take "easier stuff" and they'll know that having succeeded in the tax course they can succeed in anything. Even quantum physics, Mr. President. After all, a little dash of subchapter K in one's high school sophomore year puts the entire cosmos into perspective.

Once again, Andrew Mitchell has created and now shares some more charts, the entire collection of which can be found at his tax charts web site. Here's the latest tax chart news:

Today we added to our website charts of the examples in the section 894 regulations dealing with domestic reverse hybrid entities. The charts include:

Example 1 - Dividend Paid by Unrelated Entity to DRHE

Example 2 - Interest Paid by DRHE to Related Foreign Interest Holder

Example 3 - Interest Paid by DRHE to Related Foreign Interest Holder

Example 4 - Reverse Hybrid for One Interest Holder But Not The Other

Example 5 - Recharacterization of Interest to Dividends Can Reduce U.S. Withholding Taxes

Example 6 - Payment to Related Tax-Consolidated Entity

Example 7 - Interest Paid to Unrelated Foreign Bank

Example 8 - Interest Paid to Foreign Bank Pursuant to a Financing Arrangement

Example 9 - Royalty to DRHE & Interest to Foreign Holder

The charts can be found at this link.

There are three ways to access the overall chart collection:

By Topic
Alpha-numeric order
Date uploaded

If you haven't read my previous accolades for Andrew's charts (see here, here, here, here, here, here, and here), take a look. As those who have followed my endorsement of Andrew's tax law visualization efforts know, I and others (e.g.,here) hold them in high regard.

The Florida Bar Board of Governors has issued announcement in which it explains that it has asked its Professional Bar Committee to determine if "an ethics opinion or Bar Rule is needed to regulate the mining of metadata from electronic documents" by lawyers. The problem is one that affects not only lawyers, but also other professionals and pretty much every computer user. Although the Florida Professional Bar Committee will focus on a narrow question of what lawyers ought to do and not do when they receive documents filled with metadata, the ramifications of the problem extend far beyond that question.

First, what is metadata? According the to announcement, " metadata is information a word processing or document creation program keeps about the history of that document. This history includes changes, deletions, additions, which persons have accessed the document, and electronic notes that have been attached at various times. Such information is not visible on the screen, but it can be held in the background. And this information usually accompanies the document when it is electronically transmitted."

Here are some examples. Lawyer A prepares an estate tax return, using a spreadsheet to do certain computations not done by the return preparation software. In selecting particular values, the attorney makes certain decisions, and puts notes in the spreadsheet. Eventually the lawyer deletes those notes. A beneficiary sues Lawyer A, convinced that the estate tax was improperly computed, causing a diminution of the estate on account of allegedly overpaid estate taxes. The beneficiary retains Lawyer B. During discovery, the spreadsheet finds its way to Lawyer B. If Lawyer B "mines" the document, he or she will discover the notes that Lawyer A made and seemingly deleted.

Or consider an example from the Florida Bar Board of Governors. Lawyer C worked on a brief which was requested by law firm D for a case on which it was working. While working on the brief, C emailed her client with questions and received an email in reply. The email was attached to the brief as it was being prepared, and then was deleted. When C finished the brief, he offered to fax it, but D asked that it be e-mailed. D then mined the brief for metadata, and discovered a history showing every change that had been made to the document by C, information identifying the other persons, such as paralegals and legal secretaries, who had worked on it, and the content of the email sent by the client.

Or try this one that I shared with students in my Decedents' Estates and Trusts course, though I'm not certain I got the point across. Rest assured that to the best of my knowledge, no one other than myself and perhaps one of my colleagues brings this issue, and similar concerns, to the attention of our students. Lawyer A prepares a will for Client 1. Months later, while working on an estate plan for Client 4, Lawyer A decides that the will drafted for Client 1 is a good place to start. Even if Lawyer A is careful to change ALL the references to Client 1's name and gender-based references, a knowledgeable and curious Client 4 will be able to figure out the content of Client 1's will and the fact that it was used as a template for Client 4's will, unless Lawyer A removes the metadata.

Second, should lawyers who receive a document from another lawyer, a client, another party, or any other person, dig through the metadata in order to discover information that has been deleted? At least one member of the Florida Bar Board of Governors thinks so, calling it unethical and unprofessional. I agree. In many respects, the metadata's appearance in a document on the attorney's computer is not unlike the arrival of a misdirected facsimile on the attorney's facsimile machine. In both instances, the sender would not have sent the information had the sender been more careful and less ignorant.

Third, what should computer users, including attorneys, do to prevent other people from mining metadata? The Florida Bar Board of Governors also asked its Professional Ethics Committee to consider if lawyers have "an affirmative duty to take reasonable precautions to ensure that sensitive metadata is removed from an electronic document before it is transmitted."

There is no one answer, because software exists to mine metadata from documents created in Word, WordPerfect, Powerpoint, Excel, Adobe, and most other formats, and the steps that must be taken are not the same for all document formats.

In Word, Powerpoint, and Excel, users should turn off the Fast Saves feature, which isn't very important anymore because computers now run at fairly rapid speeds. In WordPerfect, turn off the "Save Undo/Redo Items with Document" option, but this will not remove all metadata. There is additional guidance at the Corel knowledge database.

Saving Adobe documents in PDF format removes most metadata, but this renders the document un-editable, so many attorneys are using this format if the recipients have no need to edit the document. But saving a Word document in PDF format doesn't necessarily remove the same data as does saving the file from within Adobe. However, a PDF document can be converted into TXT format, edited, and then converted back into PDF format, though doing so removes much of the formatting that makes PDF attractive. It is possible, though, when saving a file in PDF format from within Adobe Professional to make it impossible to convert the document into TXT format. For additional information, take a look at the National Security Agency's "Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF". I suppose imitating the practices of the NSA should be sufficient for lawyers, other tax professionals, and computer users generally.

There also exist "metadata scrubbers" for certain formats, such as Metadata Assistant, ezClean, and Workshare Protect. I haven't found, though admittedly I haven't invested hours searching for, scrubbers that clean up tax return files generated by TurboTax, TaxCut, and similar programs.

So consider this post the sharing of an alert, and not a prepackaged solution. Attorneys and tax professionals need to study the problem, learn the solutions, establish office policies and procedures, and ensure that their employees understand and follow those rules. If a client is harmed by the release of data, a standard of "known or should have known" will leave no easy escape from liability for those who are not paying attention to this issue.

Thanks to the folks on the ABA-TAX listserv who shared their knowledge with the list's subscribers. After reading the questions and comments, I decided I could be of assistance by bringing these concerns to the attention of a different audience.

Almost two years ago I posted an explanation of why it does not make sense to have special low tax rates for capital gains, and why adjusting basis for inflation responds to the arguments for taxing capital gains at low rates that reflect serious problems rather than mere preferences. I have mentioned my opposition to special low rates for capital gains and to the extension of those rates on numerous occasions. Bored? Go to Google, choose advanced search, enter "capital gains" as the phrase, and put "mauledagain.blogspot.com" in the domain box. Seventeen hits. I'm not going to churn out 17 links.

Now comes some interesting data from a new Congressional Budget Office (CBO) report. In 2003, the top one percent of the population received 57.5% of all capital income. This is the highest percentage for any year since the CBO began examining data for 1979. Before 2001, the share of the top one percent was under 50 percent, and usually was significantly lower than 50 percent. The trend, therefore, is that by the time data for 2005 is reported two years from now, the share of the top one percent may reach 60 or 65 percent. Or more.

In the meantime, the bottom 80 percent of the population received 12.6 percent of capital income. In 1989, it was almost double that, at 23.5 percent.

So why does this matter?

Capital income consists of capital gains, dividends, interest, and rent. Two of these categories already enjoy lower tax rates. The President's Tax Reform Panel proposed adding interest to the group. These are the types of income at the center of the debate over tax rates and the campaign to make the lower rates permanent. Capital income does not include income earned by tax-free retirement plans.

One of the arguments made in favor of special low tax rates for capital gains and dividends, and for extending those tax rates and/or making them permanent (to the extent anything Congress does can be considered permanent) is that, to quote the report, "stock ownership is widespread and thus the benefits of extending these tax cuts will be widespread as well." That argument makes for such a nice soundbite, but it just isn't so.

Another argument for special low tax rates for these sorts of income is that it frees up income that can be invested in ways that create jobs. Yet from the period 1979 through 2003, the "average after-tax income of the top one percent of the population more than doubled, rising from $305,800 (in 2003 dollars) to $701,500, for a total increase of $395,700, or 129 percent.... By contrast, the average after-tax income of the middle fifth of the population rose a relatively modest 15 percent (less than one percentage point per year), and the average after-tax income of the poorest fifth of the population rose just 4 percent, or $600, over the 24-year period." It's not a matter of creating jobs, it's a matter of creating jobs that provide the opportunity to have proper shelter, food, clothing, health care, and the other necessities of life.

For me, the report data is further proof that some people would like for a one-percent portion of the population (themselves included) to own ALL the capital income and property, so that they can "hire" the other 99% to work for them. Of course, those workers would need to shop at company stores, rent company-owned housing, and visit company-provided hospitals when ill. Does something in this seem familiar? Which empire? Oh, perhaps the now-defunct Soviet Union. Or the People's Republic of China before they figured out that the existence of a prosperous middle class and a diminution of the economic underclasses was essential to developing into a first world country? Or perhaps any of the many other historical and current have/have-not nations that lacked a middle class and thus ultimately faded from the arenas of history or continue to exist as shadows of what they could be.

The CBO report concludes that "Extending lower tax rates on capital gains and dividend income would exacerbate the long-term trend toward growing income inequality." I'd add, "Extending lower tax rates on capital gains and dividend income would accelerate the decline and fall of the American dream." Even for the top one percent. After all, without the 99%, where would the 1% be?

An interesting question raised by a tax listserve colleague yesterday provides a wonderful example of how a simple tax law concept can become complicated, and how an attempt to keep it simple raises the possibilities of abuse. Because the tax provision in question is one easily understood by most people, and relevant to tens of millions of taxpayers, it provides a wonderful object lesson.

The concept is that students should not pay income tax on scholarships. In implementing this concept, Congress limited the exclusion from gross income to "qualified scholarships." See section 117(a). Technically, the exclusion is limited to "qualified scholarships" received "by an individual who is a candidate for a degree at an educational organization described in section 170(b)(1)(A)(ii)." Because the specific question involves the definition of "qualified scholarship" the other requirements for an exclusion need not receive additional attention.

Section 117(b)(1) of the Internal Revenue Code in turn defines a "qualified scholarship" as "any amount received by an individual as a scholarship or fellowship grant to the extent the individual establishes that, in accordance with the conditions of the grant, such amount was used for qualified tuition and related expenses." Again, because the specific question involves the definition of "qualified tuition and related expenses" the other requirements of the definition of "qualified scholarship" can be ignored.

Section 117(b)(2) of the Internal Revenue Code in turn defines "qualified tuition and related expenses" as follows:

For purposes of paragraph (1), the term "qualified tuition and related expenses" means--
(A) tuition and fees required for the enrollment or attendance of a student at an educational organization described in section 170(b)(1)(A)(ii), and
(B) fees, books, supplies, and equipment required for courses of instruction at such an educational organization.

Regulations proposed by the IRS pretty much repeat this definition and then add a requirement not relevant to the specific question, namely, that "in order to be treated as related expenses under this section, the fees, books, supplies, and equipment must be required of all students in the particular course of instruction."

The specific question is whether health fees charged by a university to its students and which are covered by a full scholarship grant are eligible for the exclusion. Neither the Code nor the proposed regulations, nor, as best as I can tell, any other source of guidance, deals with this specific question.

One approach is to take the language for what it says. Tuition and fees required for enrollment attendance are within the exclusion. If the health services fee is required for enrollment, then it is within the exclusion. That seems simple enough. Why complicate it?

The other approach points out that the simple approach opens the door to abuse. Using an extreme example, what if the school charged a "BMW fee" and provided BMWs to all its students? Should the portion of a scholarship covering this fee (assuming there would be such a scholarship) be excluded from gross income? Would that make sense in light of the presumed intention of Congress in enacting the scholarship exclusion, which is to prevent a federal income tax from obstructing the use of scholarships granted for educational purposes. What's educational about using a BMW?

Perhaps this is a theoretical concern. After all, political pressure and state legislative oversight would discourage or even prohibit state-funded schools from charging BMW fees. And market pressure would do the same to private schools. But the issue of the health services fee, a commonly charged fee, is far from theoretical.

It is easy to see that the simple approach does open the door to abuse. Forget BMWs. That's too obvious. What about fees for TGIF parties, intramural sports, computer equipment use, or the so-called "general fee"? Those concerned about abuse suggest that the portion of the scholarship used for a fee should be excluded only if the fee is used for a "related expense" and that to be a related expense, the charge must be related to tuition.

In one respect, it makes sense for there to be some sort of definition that restricts the exclusion to amounts used for education or for things directly related to education, such as lab fees, textbooks, computers used for course work, and similar items. The portion of a scholarship used to pay activity fees, sports fees, health care fees, and similar items would be treated in the same manner as the portion of a scholarship used for room and board. It would not be excluded from gross income.

But in another respect, this would elevate form over substance. Even those advocating a restrictive interpretation of "related" agree that the portion of the scholarship used for tuition is excluded from gross income. Consider a school that charges tuition, but no fees. There does not appear to be any requirement, either in the statute or by the IRS, that the school separate the tuition into the portion used for course work and the portion used to operate the university's student health care facility. Of course, many schools charge fees because it keeps the stated tuition lower, permits the school to announce lower tuition hikes while jacking up fees, and permits the school to charge fees to its employees who qualify for free tuition. Thus, a narrow interpretation of "related" puts a scholarship recipient at a tax disadvantage if he or she attends a school that breaks out fees from tuition.

There is another concern. The term "qualified tuition and related expenses" is a term of art. Even if each word in the phrase should be interpreted, the word "related" should mean "related to tuition" and not "related to classroom and course work" or some similar restrictive definition that excludes health care fees. The definition of the term "qualified tuition and related expenses" in turn encompasses two types of fees that qualify for the exclusion. One is the fee required for enrollment or attendance at the school. The other is the fee required for a course of instruction at the school. The latter fee is included in the group that the proposed regulations restrict to those required of all students in the particular course of instruction. There doesn't seem to be any justification for carving out a definitional gloss.

Is it abusive to permit exclusion of the portion of the scholarship used for student health fees? I don't think so. The school has determined that providing basic health services to its students furthers the educational purpose. The rationale, I think, is that the school would shut down if students not sick enough for hospitalization but sick enough to infect the campus aren't treated, and treated quickly. Yes, there is some parentalism involved, but that's nothing new, even for universities (in contrast to private K-12 schools where parentalism is a sina qua non of the experience).

If someday, somehow, somewhere, a school manages to charge fees for things beyond the pale, such as BMWs, Congress will need to revisit the provision. The outcome surely would be more complexity. Complexity would arise if school-required fees had to be sorted into two different piles, with some fine line separating those charged for things more closely related to education and those charged for things less closely related to education. If schools avoid charging fees for BMWs and other over-the-top things, as I expect they will, the complexity will not enter the tax law. The lesson? Complexity often is the product of taxpayer attempts to push the envelope. In this particular instance, because the schools are tax-exempt, they have far less incentive to push the envelope, and most likely are not going to do so on behalf of their scholarship students' income tax exclusions.

Many thanks to Reggie Mombrun of Florida A&M College of Law, who presented the question, and to Alan Gunn of Notre Dame, Mike McIntyre of Wayne State University, Margaret Raymond of the University of Iowa, and anyone else whose name I've overlooked who contributed to the discussion.

According to this report, federal prosecutors have convened a grand jury in New York to investigate three lawyers at a well-known Dallas law firm who allegedly marketed illegal tax shelters. This news suggests that the federal government is casting its criminal prosecution net beyond the KPMG waters. The article provides very little specific information about the shelters, because the proceedings are sealed and only small bits of information have found their way into the public sphere. At least for the moment.

This news does not sit well with J. Craig Williams, of May It Please the Court. In this posting he argues that it is wrong for the IRS to prosecute lawyers who "come up with tax shelters". He explains:

It's just plain wrong. Think about it. Congress passes laws that require us to pay taxes. Once you establish the rules and write them down, it's up to the lawyers to figure out the loopholes and the way around them. * * * * * So, when enterprising lawyers go out there and successfully figure out how to shelter money from taxes, the IRS takes aim and prosecutes the lawyers for being smart enough to figure out what they did wrong when they wrote the code. I'm not sure if the lawyers are being prosecuted because they showed the ________ (fill in your own word) of the IRS and Congress to the rest of us or because the result of their work actually means less dollars in the government's hands and more money in our hands.

Sure, there's another way to look at it: the lawyers actually did something illegal that was precluded by the code, and they should be punished. As you can see just from these paragraphs, however, there's no such thing as black and white in the Internal Revenue Service code.

I suggest that it is premature to evaluate the wisdom or appropriateness of the federal government's investigation of these lawyers. Perhaps there will be an indictment. Perhaps not. If there is an indictment, it means that a grand jury was persuaded that what transpired was more than simply good chess playing.

We don't know the facts. There are tax shelters that rest on fraud, and not on the ambiguities of the tax law. The notion that "there is no such thing as black and white in the Internal Revenue Service code" is nonsensical. Not only is there no such thing as the Internal Revenue Service Code, but there are clear tax rules. The fact that some tax issues are unresolved, or that there are ambiguous provisions, or that application of particular principles to specific facts is near impossible, there's no escaping the existence of numerous unambiguous provisions that are turned to a tax savings benefit only through fraud or similar manipulation. For example, no taxpayer is entitled to deduct a dependency exemption for his or her pet canary. That's an easy rule, though it isn't one that will generate much in the way of fees when explaining it to a client. Somewhere there is an attorney trying to figure out how to make the canary a child of the taxpayer. The unsophisticated were in the habit of putting the canary on the return as a dependent, but then Congress required that the dependent's social security number be provided. Perhaps some clever attorney is figuring out how to get a social security number for a canary. Silly example? No. After all, credit cards have been issued in the name of dogs.

There are tax shelters in the Code, and though most require the assistance of an attorney to set up, none require the invention skills of an attorney. For example, real estate investment is a huge shelter, because a person can invest a few of her own dollars and many dollars of a bank, watch the property increase in value and simultaneously claim depreciation deductions. Though an attorney's assistance in drafting the acquisition documents and setting up the ownership vehicle is most helpful, no attorney is going to rake in huge fees simply by inventing the "real estate tax shelter."

What gets attorneys, and others, in all sorts of trouble is the attempt to take a transaction that does not provide a tax benefit and turn it into one that does. Layers of nominal owners, transparent entities, and circular transfers are pasted onto the core transaction to generate the appearance that the transaction is something that it is not. A great example is the attempt to classify a debt as recourse for purposes of the creditor, who unequivocally wants recourse to the borrowers, while claiming to the IRS that it is a nonrecourse debt (which generates tax advantages) even though that assertion requires taking a position inconsistent with the reality. The reality is hidden underneath a panoply of smoke and mirrors.

It is true that lawyers, and other tax practitioners, can and should assist their clients in minimizing their taxes to the least amount required by law. If a lawyer figures out that an S corporation makes more sense than a C corporation, there's no problem in steering the client to the more tax-advantaged form. But trying to make a C corporation look like an S corporation when in fact it does not qualify is an effort of a totally different character.

J. Craig Williams leaves us with the impression that it is impossible to do something "precluded by the code," and thus illegal, because "there's no such thing as black and white" in the tax law. Baloney. If it turns out that the three attorneys under investigation did counsel tax law transgressions, and we don't know if they did or did not, then so be it. Disbar them, imprison them, fine them, and, yes, cheer for the folks duped by their clients' tax shelters who already have filed civil lawsuits against them and their firm. If it turns out that the three attorneys did not break the law, so be it.

The whole purpose of empaneling a grand jury and conducting an investigation is to find out what happened. J. Craig Williams seems to think that there is some sort of per se rule that no tax attorney can possibly commit tax fraud while creating tax shelters. Thus, he rails against the idea of federal criminal investigations. Why? If he is correct, all of the grand juries (surely there will be more) will refuse to return indictments. I wonder if the real concern is that the grand juries will return indictments, causing the culture of greed and self-centered selfishness so prevalent during the past 14 years to come crashing down.

I am sure we will be hearing more about these investigations. Put on the breathing masks, put on the shades, and get ready for a tour through the smoke and the glaring mirrors. If they exist in this case. Or the next. Or the one after that. Odds are, they'll turn up.

Now that the start of the income tax return filing season is upon us, I decided it was time to pull this item from my "blog this someday" list and to transform it into a quiz.

Question 1. According to the IRS Office of Professional Responsibility, what percentage of certified public accountants failed to file a tax return for the last year for which the statistics were compiled?

A. 48%

B. 37%

C. 24%

D. 18%

E. 11%

F. 1%

G. None. Certified public accountants always file their returns.

Question 2. According to the IRS Office of Professional Responsibility, what percentage of tax attorneys failed to file a tax return for the last year for which the statistics were compiled?

A. 46.5%

B. 33.5%

C. 20.5%

D. 13.5%

E. 8.5%

F. 1%

G. None. Tax attorneys always file their returns.

If you chose answer E for both questions, give yourself an A. If you chose answer F or G, perhaps it is time to retire the dreams. If you chose answers A, B, C, or D, you're even more pessimistic than I am. Of course, I knew the answer. It was in a BNA Daily Tax Report email of a few months ago. I saved the data so that all of us who are filing tax returns, for ourselves and others, can find some inspiration when we're several hours into the task and ready to give up.

It is rather shocking, isn't it? After all, the non-filing CPAs and tax attorneys don't have some of the reasons/excuses offered up by most non-filers. "I didn't know I was required to file." That might seem plausible coming from some people, but not from a tax professional. "I couldn't figure out how to do it so I gave up." Ditto.

My guess is that the reasons fall into these sorts of explanations: "I forgot." "I was too busy with other things." "I'm like the shoemaker whose kids go barefoot, because I was so dedicated to filing returns for my clients I neglected my own responsibilities." "I don't like paying taxes."

Perhaps when someone is looking to retain a tax professional, in addition to the usual questions about education, experience, pricing, and deadlines, the person ought to ask, "Have you been filing YOUR tax returns?" According to the BNA information, roughly one in ten, if honest, would say, "No." But I wonder how many would answer honestly. Perhaps one in ten?

The irony is that one would think that tax professionals would know that the IRS has a greater chance of discovering their failure to file than it does of discovering anyone else. Especially considering that the IRS is taking affirmative steps to track them down.

Every time I teach the basic tax course, I point out to the students that attorneys are among the groups targeted by the IRS for special audit consideration, that failure to file tax returns is one of the leading reasons for disbarment and suspension, and that their education and experience makes it more difficult for attorneys to avoid the penalties for failure to file and pay taxes. Whether this news has any impact, or changes a student's values, I don't know. But I will continue to hope that it is worth the several minutes I set aside for it.

Numerous reports, such as this one, are popping up with the newest explanation offered by "Survivor" winner Richard Hatch for his having filed an incorrect income tax return. My summary of Hatch's tax adventures is in the "Honorable Mention" cluster of TaxProfBlog's The Top 10 Tax Stories of 2005.

During a break in Hatch's trial for tax fraud, his lawyer explained to the judge that he planned to question his client about a deal allegedly reached between Hatch and the show's producers. After telling the producers that he had caught his competitors cheating, Hatch was assured by the producers that if he won they would pay his tax bill. But when testimony resumed, Hatch was not asked about this new development.

Although some have questioned whether the cheating Hatch claims took place could have happened, I'll skip over that debate because I simply don't know enough to evaluate the allegations. Maybe the other competitors had friends who figured out how to sneak them food. Maybe not. That doesn't matter.

Why does it not matter? Because I find it difficult to believe that someone could conclude that they were not obligated to report their income on a tax return, despite having been told by tax professionals that it had to be reported, simply because someone else promised to pay the tax bill. I might accept such an explanation if the taxpayer didn't pay the tax due, because I can accept the idea that a person's mistaken though sincere belief that they don't need to pay taxes that they think someone else has already paid should block a criminal conviction for wilful failure to pay tax.

But Hatch filed a return that did not report the income. He was told by tax professionals that the income had to be reported. He filed a return that was generated to show what his tax situation would have been had he not won the money. He was told not to file that return. And his explanation has nothing to do with hundreds of thousands of dollars of other income that he failed to report.

The trial continues. Unquestionably the saga has not yet ended.

Thanks to Mark Morin for the initial tip about this new twist in the story, which he sent me several days ago but which I've had to leave aside while other professional duties with a higher claim to my time took hold.

There has always been a tension in the tax law, and in law generally, between theory and practice. Some of the tension simply reflects the unwillingness of individuals, corporations, and other entities to comply with requirements that, at least in theory, have been put in place through a democratic process reflecting the will of the people. Some of the tension reflects the disconnect between the textbook civics lesson of how tax and other laws come into being and the reality of how they are made. There are a variety of other causes for the tension. One that has always fascinated me is the tension that arises from the chasm between a theory made law and the inability of taxpayers to comply with that law. Another is the cluster of traps for the unwary that illustrate the extent to which taxpayers can get caught by conflicting regulations.

Consider the matter of electronic filing and electronic payment of taxes. Among the many advances delivered by digital technology is the convenience, and occasional cost reductions, of filing a tax return through the internet rather than through the postal service or a delivery company. Another of the many advances brought to us by digital technology is the convenience, and presumable cost reduction, of moving money from one account to another through an internet or touch-tone telephone connection.

So, in theory, one might think a taxpayer can proceed as follows. On April 14 or 15, take one last look at the Turbotax or other software-generated tax return, click the appropriate menu items, and send the return on its way to the IRS. Technically, it goes to the Turbotax or other electronic filing service, which then checks it for compliance with electronic filing standard, sends it to the IRS, and notifies the taxpayer that the return has been filed. In the meantime, if the taxpayer owes taxes, the taxpayer can instruct Turbotax or its counterpart to make payment on behalf of the taxpayer, or can go directly to the Electronic Federal Tax Payment System and make payment of the taxes.

It's the digital world equivalent of the "old paper days" when a taxpayer would complete the return, write a check, put the return and the check in the envelope and get it postmarked by midnight on April 15. The return and check would reach the IRS some days later, and the check would be cashed at some point after April 15.

But guess what? It doesn't work that way.

Thanks, again, to Jim Counts CPA CTFA, for an important alert. Jim shares a response he obtained from the IRS after he made an inquiry following up on something he heard at a professional meeting. The question simply is this: is the tax timely paid if the electronic payment is directed to take place on April 15? The answer:

Yes, it would be best if the taxpayer scheduled his/her payment at least 48 hours in advance of the payment due date, using electronic payment options. It does not always happen, but it could take up to 48 hours to receive acknowledgment of the IRS' receipt of the payment. If a
return were filed on the due date, or even the day before, it would be in the taxpayers' best interests to make sure that any payments for tax liabilities were received by the IRS by the due date in order to avoid potential penalties.

A return could be filed or mailed on the due date, and still be timely, since the postmark date is used to determine a timely filed return. However, a[n electronic] payment must be received by the payment due date, to be considered as timely paid by the IRS.

Of course, once everyone knows this, it ought not be a big problem. It's easily solved if people pretend that returns and taxes are due on April 11, but that's not always possible. My question is this: if writing a check and mailing it by April 15 is sufficient, why is it inadequate to direct electronic payment on April 15? The IRS almost always gets the cash from depositing the check long after it gets the cash from the electronic transfer.

What's a taxpayer to do? Jim Counts recommends one approach, and I agree that it works. File the return electronically but mail the payment the old-fashioned way. Alternatively, process the electronic payment earlier than April 15, though that may require paying more than is necessary if the return is not finished by April 8 or 9.

Jim adds a "final thought." He says, "This issue needs to be fixed by the IRS and Treasury." Indeed. Whoever is writing the regulations and rules relating to electronic payment of taxes needs to provide that taxes are deemed paid when the electronic payment is ordered, just as they are deemed paid when a check is placed in the mail. If the electronic payment "bounces," deal with it in the same manner as a bounced paper check is handled.

After all, the IRS has been pushing taxpayers, and in some instances, requiring them to file returns electronically. The IRS has been encouraging, and in some instances requiring, electronic payment of taxes. So why throw an impediment in front of taxpayers who are trying to be twenty-first century citizens? Why the disconnect between what's encouraged on the one hand and made difficult on the other? Why the trap for the unwary, which surely would have caught even more people were it not for the alertness of Jim Counts and his generous willingness to share what he learned on the ABA-TAX list and with the readers of MauledAgain?

So until the IRS and Treasury fix this, the song continues:

In theory use the internet to file and pay
In practice pay up the cash on an earlier day
Else send the IRS a check the old-fashioned way
This is the path to keeping tax penalties at bay

[Yeah, it rhymes and the meter is right. But, ok, see why I teach tax and not poetry?]

My recent post on the shortcomings in K-12 and undergraduate education, "No Wonder Tax Law Seems So Difficult," brought a response from a long-time, loyal reader whose writing style, at least in this one, rivals the sarcasm sometimes found in my retorts.

The comments were directed to this particular portion of my post:

The answer? Graduate schools must become more demanding of the K-12 and undergraduate education systems. They must abandon the notion that they can teach anyone anything, and dictate to their applicants an appropriate list of skills that must be held before they can enter. Hopefully, the spillover to the college students not intending to pursue a graduate education will, as it is said, be a rising tide that makes all the boats ride higher.

After sharing this quote from CNN,

Without "proficient" skills, or those needed to perform more complex tasks, students fall behind. They cannot interpret a table about exercise and blood pressure, understand the arguments of newspaper editorials, compare credit card offers with different interest rates and annual fees or summarize results of a survey about parental involvement in school.

this reader explained:

Soon to be release new curricula for all public school districts:

The Newest, Latest, and Greatest Planned Course Outline:

1. Students will interpret an exercise table.

2. Students will interpret a blood pressure table.

3. Students will understand the arguments of newspaper editorials (even if the editors do not).

4. Students will compare credit card offers, noting differing interest rates and annual fees.

5. Students will summarize the results of a survey about parental involvement in school (even if zero parents took the survey).

However, students will not be encouraged to understand that the latest changes in course syllabi are directly related to the inability of politicians to interpret literacy studies. They will not be expected to understand that the reduction of course expectations from grades K-12 to a sequential list of skills that produce proficient and advanced test results does not necessarily result in students who can problem-solve or engage in witty repartee.

Likewise, no consideration is to be given to home environments and any expectation of learning from parents. Furthermore, more individuals without education degrees will be encouraged to leave their high-paying jobs (where they're likely to be laid off a few years before retirement) and become teachers.

Still under consideration by politicians is the bill to take infants from parents from birth to college graduation, at which time children will be returned to parents. In all likelihood, their college diploma will not enable them to find employment that pays well enough to live on their own; all high-paying jobs will be taken by children who attended private schools and were encouraged to use their multiple intelligences.

Wow. Lurking in this satirical response are several very important points:

1. There are good teachers and there are bad teachers in every sort of school system, whether public or private, and whether K-12, undergraduate, or graduate. The more money that is invested in education, the more likely that the teachers are better. Yet some underpaid teachers excel, and some overpaid teachers are an embarrassment. Why? Because some of the characteristics of good teachers aren't measured by mere competence tests. How does one measure caring? Or patience? Or perseverance? Or holding the well-being of students more dear than the addiction to office and faculty politics?

2. When is the appropriate time to measure outcomes? As the students are completing a year of study? Or six months, two years, or a decade later, when time tells us what sticks and what doesn't, and when subsequent events in a real world are more indicative than artificial measurements that may or may not tell us what needs to be known?

3. Too many parents think that education is the task of everyone but themselves. No school system can read bedtime stories to children. No school system can engage in constructive dialogue at the dinner table. No school system can direct children's activities when school is not in session, seeing to it that the children get a balanced blend of physical activity, passive absorption, and active learning.

4. Being competent in a subject matter is no more a guarantee of teaching competence than is brilliant classroom demeanor devoid of intellectual value. Being knowledgeable doesn't guarantee the ability to inculcate understanding in the minds of students. Great teachers, even good teachers, are like athletes: born with skills, and coached to excellence.

5. Society speaks volumes about the value it places on teaching by supporting economic structures and policies that pump more money into the hands of a professional athlete or name celebrity than some public school systems have for their annual budget.

6. Academic discipline is a key ingredient to learning. Concentration, diligence, perseverance, and respect for others are core elements of a disciplined student. Discipline cannot be learned when discipline is avoided because children, and their parents, claim that their "feelings are hurt" when attempts are made to nurture discipline. Has anyone counted the number of good teachers who finally broke and left because the parents, politicians, and professional administrators cared more about votes and public image than the long-term educational effects of good discipline?

7. When will the message that learning occurs not by attending class but by getting immersed in a course become the standard fare of school systems? I'll find out when I notice fewer, rather than more, students with the "I'm paying the tuition to purchase a degree" mentality. Somehow they think that having letters after their name, or a piece of paper saying they were physically in a building for 200 days, means that they have the requisite ability to prevent and solve problems.

8. Students who learn by rote tend to become "memorizing regurgitators" who panic when presented with a fact situation similar but not identical to ones with which they are familiar. I see this too often among law students, and I wonder why the skill of "reasoning through analogy" which supposedly is a hallmark of "learning to think like a lawyer" isn't just as valuable to almost all other professions, occupations, and activities, and thus emphasized in every learning environment.

I am sure that some teachers will read this and be offended. But first, understand that I am not trying to indict all teachers. In some respects I'm not trying to indict teachers. It's the system, which in large part is the product of educational systems being subjected to the whims of politicians and politics, to the power of money, and to the influences of the wider culture. Understand that I know many teachers, almost all of whom are superb. Yes, I guess either I'm lucky in having met mostly great people or perhaps I'm just a snob who doesn't make friends with very many less than competent or priority-disordered individuals.

Yet we know there is a problem. The assessment I discussed in the earlier post tells us so. Something is seriously wrong, not just in the superficial trappings but in the very center of the educational universe, and if it isn't fixed quickly, it will be too late.

The entire nation, and not just some solitary blogger and some interested readers, should be alarmed. A poorly educated citizenry makes for a poorly prepared nation, a country that cannot compete economically, a land that suffers from bad decision making, a people who are disordered and ill-served. The nation's children are the nation's future. It's bad enough that today's youngsters are being put in harm's way because of structural budget deficits project to last generations but also because they're not learning what they need to learn so that they have a chance to save themselves by the mess being created for them to handle.

For if we don't give our children and grandchildren the education they'll need to enjoy the American dream, there won't be an American dream for them to experience, or perhaps even envision. The opportunities that a poorly educated nation presents to the nefarious oppressors of the world are no less expansive than those a well-educated nation presents to itself.

The issue of whether employers ought to get a return of excess social security taxes as do employees, which I first discussed last Friday, and visited again on Wednesday needs yet another bit of attention.

An enrolled agent in Michigan wrote to remind me that the Federal Unemployment Tax (FUTA) also generates the same sort of overpayment problem. It's on a far smaller scale, because the limit is $56, and the total amount involved is far less than the billion dollars caught up in the social security overpayment trap.

But if the problem is to be fixed, all of the taxes should be given appropriate attention.

The National Center for Education Statistics undertook a National Assessment of Adult Literacy. The ensuing report, called "A First Look at the Literacy of America's Adults in the 21st Century" contains all sorts of interesting, disturbing, and important information. As a teacher of students who have completed four years of college education, I was most interested in the survey results describing the literacy status of college graduates.

The survey focused on three types of literacy: prose, document, and quantitative. Prose literacy is defined as "the knowledge and skills needed to perform prose tasks (i.e., to search, comprehend, and use information from continuous texts). Document literacy is "the knowledge and skills needed to perform document tasks (i.e., to search, comprehend, and use information
from noncontinuous texts in various formats). Quantitative literacy is "the knowledge and skills required to perform quantitative tasks (i.e., to identify and perform computations, either alone or sequentially, using numbers embedded in printed materials)." Unquestionably, these are skills that law students need to bring with them when they arrive in August of their first year.

The Center administered the assessment to a nationally representative sample of 19,714 adults ages 16 and older. Calculators were permitted. From the test results, the Center determined what percentage of each group possessed skills that were below basic, basic, intermediate or proficient. For each type of literacy in each of the four levels, the report provides an example of a task typical of the level:

Below Basic:

Prose: ability to searching a short, simple text to find out what a patient is allowed to drink before a medical test
Document: ability to sign a form
Quantitative: ability to add the amounts on a bank deposit slip

Basic:

Prose: ability to find in a pamphlet for prospective jurors an explanation of how people were selected for the jury pool
Document: ability to use a television guide to find out what programs are on at a specific time
Quantitative: ability to compare the ticket prices for two events

Intermediate

Prose: ability to consult reference materials to determine which foods contain a particular vitamin
Document: ability to identify a specific location on a map
Quantitative: ability to calculate the total cost of ordering specific office supplies from a catalog

Proficient:

Prose: ability to compare viewpoints in two editorials
Document: ability to interpret a table about blood pressure, age, and physical activity
Quantitative: ability to compute and compare the cost per ounce of food items

As a law professor, I surely want my students to be proficient in all three types of literacy. After all, they are going to be reading and comparing two or more judicial opinions, documents far more complex that editorials. They are going to interpret statutes in the light of regulations, in an exercise much more strenuous than looking at a matrixed table. They are going to deal with numbers when working out personal injury settlements, preparing tax analyses, and negotiating child support and alimony payments. They need to reach levels far beyond proficient as defined in the Center's assessment.

So how do college graduates fare with these skills? For prose literacy, 3 percent were below basic, 14 percent were at the basic level, 53 percent were at the intermediate level, and 31 percent were proficient. For document literacy, 2 percent were below basic, 11 percent were at the basic level, 62 percent were at the intermediate level, and 25 percent were proficient. For quantitative literacy, 4 percent were below basic, 22 percent were at the basic level, 43 percent were at the intermediate level, and 31 percent were proficient. (Due to rounding, not all totals are 100.)

This means 69 percent were less than proficient with respect to prose literacy, 75 percent were less than proficient with respect to document literacy, and 69 percent were less than proficient with respect to quantitative literacy. It is appalling to think that the majority of college graduates are being awarded degrees even though they cannot do what are basic life skills. We're not talking rocket science. For example, according to this summary of the report, non-proficient "students could not estimate if their car had enough gas to get to the service station."

What's worse is the trend. Although skill levels for quantitative literacy remained the same, give or take a percentage point as they were in the 1992 study, the drop-off in prose and document literacy is frightening, especially if the trend continues. In 1992, 40 percent of college graduates were proficient in prose literacy, but in 2003, only 31 percent attained that level. That's almost a 25% decline in the number of college graduates proficient in prose literacy. For document literacy, the percentage dropped from 37 to 25. That's almost a one-third decline.

What's happening? This isn't the first survey to reveal some serious deficiencies in the educational achievements of students eligible to apply to law school, one example being a National Council on Economic Education survey I previously discussed. As I wrote almost two years ago:

Yes, there is something about teaching children to think that would make law school a natural next step rather than the jarring awakening that it is for most students. I am no fan of most pre-K, K-12, and undergraduate education programs. There are some very good ones, and there are some very good teachers. Remembering that parents, entertainers, celebrities and politicians also are teachers, in one way or another, too many teachers aren't teaching what needs to be taught.

Not only are many of the youngsters being encouraged to let feelings stifle rational thought, they end up thinking that the acquisition and regurgitation of information is the essence of education. It isn't. In this regard, most law school faculty, especially in the dreaded first-year, don't help. Closed-book final examinations that constitute 100% of the course grade encourage cramming and memorization, and rewards those with good memories. The best thinkers often don't have the best memories.

Or, as I opined just a few months ago:

There are folks, I think, who have the impression that the government can command an increase in the oil supply. These same folks think food is grown in supermarkets. Perhaps they're among the 90 percent of American adults who do not know what radiation is, the more than two-thirds who cannot identify DNA as a key to heredity, or the twenty percent of American adults who think the sun revolves around the earth. No, I don't make this up, for it comes from Dr. Jon D. Miller of Northwestern, who thinks that this ignorance "undermines" the ability of citizens to participate in democracy in a meaningful way, as explained in this New York Times story. And people wonder why I keep griping about the miserable overall condition of the K-12 and undergraduate education system in this country, especially after we set aside the schools catering to the elite.

A Philadelphia Inquirer report on the Center's study quotes both Stephane Baldi, a director at the American Institutes for Research, and Joni Finney, vice president of the National Center for Public Policy and Higher Education, who expressed hope that "state leaders, educators and university trustees will examine the rigor of courses required of all students."

The Center's assessment, according to the same story, "showed a strong relationship between analytic coursework and literacy. Students in two-year and four-year schools scored higher when they took classes that challenged them to apply theories to practical problems or weigh competing arguments."

So now there is even more proof that academic rigor is a good thing, and that analytic study (translate, problem solving and problem prevention) rather than mere memorization, is a much better way to get the most out of one's education.

A report in InsideHigherEd provides some additional information and some speculation about the causes of the problem. It also conveys the reactions of educators and others, none of which I will repeat, all of which are less than stellar comments on the K-12 and higher education systems in this country, and all of which can be read by reading the report.

One problem is the "declining interest in reading and a culture that increasingly 'takes as heroes people who dropped out of school in eighth grade and made a gazillion dollars'". Another is the possibility that many of the people contributing to the growth in college enrollments are academically underprepared, an explanation that shifts blame from the higher education system to the K-12 system but which doesn't get to the root of the problem. Another is that we live in a culture that dances from sound bite to sound bite, factoid to factoid, in a world of "flashes and bits of material," with no one being challenged to "use the information or analyze it in some way.”

But here is what can be considered both a symptom and a huge part of the problem. According to the InsideHigherEd report, "One study at Illinois State found that honors students were assigned an average of fewer than 50 pages of reading a week, and that two of five students acknowledged completing less than half of that work. 'Students seem to spend a lot of time on Facebook, and when you think about the literate practices involved in Facebook, that’s probably not contributing a lot to the scores on something like this literacy test.'"

No wonder students complain about the reading load they face in my courses, despite the fact that they are asked by me to do far less reading than I was asked to do as a law student. The desire to "buy a degree" is overtaking the desire to pursue the natural outcome of intellectual curiosity and the mature and responsible awareness that life demands people get themselves educated. More than one student has expressed the opinion that having the degree is more important than learning the subject.

And then what?

Well, then what is what we see and experience. Incompetence and ignorance at every turn. The failure of cosmetic window dressing to make up for the deficiencies in preparation. Fortunately, there are people who are proficient, who work diligently to polish their natural talents, who do a good job, who care, who never stop learning, and who understand what sapiens sapiens means. Unfortunately, they aren't as numerous as they once were, as the survey demonstrates. And, unfortunately, they're not necessarily the ones in the spotlight, the ones making the tens of millions, and the ones with the power.

The answer? Graduate schools must become more demanding of the K-12 and undergraduate education systems. They must abandon the notion that they can teach anyone anything, and dictate to their applicants an appropriate list of skills that must be held before they can enter. Hopefully, the spillover to the college students not intending to pursue a graduate education will, as it is said, be a rising tide that makes all the boats ride higher.

The latest posting from Rosa Brooks on the new LawCulture blog has triggered many comments and reactions. She suggests that she may shift her writing away from law reviews and into other genres.

Other than several law review articles that I have published because a topic came to mind that was best handled in a law review article, I said goodbye to law review articles a long time ago. In fact, I started that trend before I earned tenure. Early on I chose to write books, and did several before earning tenure, because I saw little value in writing for the small audience of law review readers. I want what I say and think to reach as many people as possible, and most of the people whom I wish to reach, and help, are taxpayers and citizens who rarely look at law review articles.

Of course, there are many in "the academy" who look down on my writing. Fortunately, deans, who know what really is involved in teaching to more folks than just those currently matriculated, and who delight in any positive mention of the law school in any venue, have been supportive. Hey, my school's dean has a blog. He encouraged me to blog (and thus remains, sometimes bemused, as an unofficial godfather of MauledAgain).

So to those who are pondering Rosa Brooks' observations and dilemma, there are several things to consider:

1. Law schools with merit compensation systems in place give higher value to articles published in journals than to blogs, op-ed pieces, etc. Of course, if money doesn't matter, this point is irrelevant. Well, no, it's not. Consider the next point.

2. Law schools encourage post-tenure publishing (as well as pre-tenure publishing) because they want points in the rankings game and they like the publicity that scholarship brings. Whether law schools have the valuation priorities in appropriate order is questionable. Why?

3. Law review articles are read by few people, but among those few might be people filling out US New Surveys, though I've never figured out why someone on the faculty of a top 40 school would put a non-elite school ahead of an elite school. After all, folks who have claimed seats at the head table may fight over the seating placement at that table but they'll gang up to keep interlopers from grabbing a seat.

4. Publicity in terms of quality rather than quantity has its advantages, but not for most of the purposes for which law schools desire scholarship. A well-written article in a poorly circulated journal carrying little reputation is far less likely to better the reputation of that journal than to wallow in the dark shadows of the edge of the cosmos.

5. Publicity in terms of quantity is better served by books than by law review articles, better served by being quoted extensively in newspapers and magazines than in other law review articles, and better served by writing a blog read by hundreds or thousands a day than by publishing some obscure paper delivered at some closed membership obscure society. Law school valuation of scholarship does not match publicity as such, but familiarity among members of a closed and small elite.

6. "Newer" forms of writing about legal issues don't get the same respect from most law faculty because most law faculty are unfamiliar with those newer forms, insecure about using them, or caught up in the pack mentality that, surprising to many outside the legal academy, permeates most law school faculties. Conformity is so enforced by the self-appointed guardians of what's right that only a few dare shift to publishing through blogs, wikis, and similar outlets. And, almost all of those who do so keep at least one foot in the "traditional legal scholarship" room.

7. Some law faculty define book by the binding, giving no allowance for digital publication or bindings that permit rapid updating because the area of law is one that changes with the speed of law practice rather than with the glacial movement of academia. There's something ironic about claiming legal scholarship is a dynamic, breathing, vibrant fuel for reform of and change in the law, and yet giving highest accolades to ideas published in a fixed, unalterable, hard cover bound book. Think about it. Seriously. Law publication ought not be considered scriptural and unerring, and thus is best published in ways that permit rapid correction and update: spiral bound monographs, looseleaf binders, blogs, wikis, listservs......

8. Doing "scholarship" the wrong way detracts from law faculties' ability to fulfill their primary obligation, which is preparing law students to assist their clients who need to have problems solved and problems prevented. Doing "scholarship" the right way enhances that ability. Absolutely nothing assures anyone that hard bound books and traditional legal student-edited journal scholarship is the "right" way.

Generations ago, someone had the courage and vision to write the first law review article. Will the current generation of law faculty have the courage and vision to move legal scholarship into the twenty-first century?

My post about the windfall to the Treasury from excess employer FICA payments brought a variety of interesting responses and comments.

CPA Elaine Soost wrote:

As usual you hit upon a “real life” issue that is generally overlooked, both from the perspective of the employer and the employee (for whom it is a time value of money issue for having taxes withheld that shouldn't be). However, it is not just applicable to Federal social security taxes. In some cases it happens with state taxes as well, CA in particular.

She also pointed out that when an employer merges with another company, the acquiring company ends up as a "new" employer, and thus wages earned from the acquired employer earlier in the year aren't aggregated with the earnings from the acquiring corporation for purposes of the $94,200 limitation. Additionally, the California state disability insurance premium charged against employees, which is subject to an annual limitation, ends up being treated in the same manner. The process of getting a refund of over-withheld state disability insurance premiums when there has been a merger of employers, at least in California, is cumbersome at best. Supposedly the employees are to seek refunds from the most recent employer, who in turn is supposed to seek a refund from the state. Does anyone involved in writing these laws and setting up the procedures go through a complete "if this then that else something else" analysis that covers all the possibilities? Do they understand the realities of the workplace and the burdens put on employees?

Elaine also asked if there are statistics indicating how many taxpayers file for over-withheld OASDI payments, how much excess OASDI is paid by small business employers in contrast to larger ones, and whether the disproportionality is higher in states where wages are generally higher, such as California, New York, and Hawaii. A quick bit of research turned up some interesting information. According to these summaries, in 1985 there were 870,892 income tax returns on which a total of $600,136,000 in excess social security payments were claimed. In 1990 the numbers had risen to 931,283 returns and $905,327,000 of excess payments. And in 1995, the numbers grew to 1,033,189 returns and $1,081,454,000 in excess payments. Theoretically at least, and surely as a practical matter, for every dollar of FICA over-withheld from an employee there is a dollar of excess FICA paid by an employer. We're talking more than a million taxpayers, and perhaps more considering that many of these returns are joint returns involving two taxpayers with excess social security payments. More important, we're talking in excess of a BILLION dollars.

I could not find anything, at least not on a quick search, breaking things down by size of employer or by state of residence. The latter information might exist in a detailed appendix to an IRS Statistics of Income report. I haven't invested the time seeing if it exists. I have my doubts if there is anything providing a breakout by employer size.

Someone else pointed out that in some states, state employees are not within the social security system but instead pay into a state retirement system. A state employee who has other wage or self-employment income is required to pay FICA or SECA even if their state earnings exceed the $94,200 OASDI limitation. To me, this is an apples and oranges situation. Many employees who pay FICA, and many self-employed individuals who pay SECA, also pay into a retirement system. Payments into the retirement system don't, and ought not, absolve the individual from paying into social security. What exists for these state employees is nothing more than an exemption from social security, both from paying into it and from taking benefits out of it. Are they better off? I don't know. Someone paying into both social security and a retirement system may be better off, but perhaps they are not. It depends, as they say, on the numbers. Speculation is that the exemption was designed to benefit the employees of one particular state, a representative from which was at the time a very powerful member of Congress, but because several other states had identical systems, the exemption ended up applying to their employees. That powerful member of Congress, by the way, ended up resigning in disgrace, for other reasons.

During the same day that these comments were arriving, another email arrived from a totally different source, from someone who, to the best of my knowledge, does not read this blog and is not a tax practitioner. It was one of those emails that the recipient is asked to forward to all their email contacts. The point of the email is that "Our Senators and Congresspersons do not pay into Social Security and, of course, they do not collect from it." Congress has their own plan. Here's how it works: "When they retire, they continue to draw the same pay until they die. Except it may increase from time to time for cost of living adjustments. For example, Senator Byrd and Congressman White and their wives may expect to draw $7,800,000.00 (that's Seven Million, Eight-Hundred Thousand Dollars), with their wives drawing $275,000.00 during the last years of their lives. This is calculated on an average life span for each of those two Dignitaries. * * * * Their cost for this excellent plan is$0.00. NADA....ZILCH...." The email proposes this solution: "Jerk the Golden Fleece Retirement Plan from under the Senators and Congressmen. Put them into the Social Security plan with the rest of us. Then sit back..... and see how fast they would fix it." Interesting concept. Merely bringing a few hundred people into the system moves some petty cash around the federal budget. On the other hand, perhaps if members of Congress faced the same prospects as those relying on Social Security, they would fix it. But are not members of Congress also entitled to a retirement plan? After all, many Americans have retirement plans. And many do not. Some state employees have retirement plans, perhaps not as generous as the Congressional plan, and like members of Congress, are not subject to social security. Uniformity would be helpful. What would be more helpful is a thorough overhaul of how America plans for the retirement years of its citizens. Let me correct that. What would be more helpful is a thorough overhaul of how American citizens plan for their retirement years. It's an issue that extends beyond over-withheld employer FICA payments. Perhaps understanding how poorly they dealt with this aspect of social security, or perhaps how intentionally they made it so, might help us understand why the repairs needed to deal with retirement income security are so difficult to identify and make.