MauledAgain

My post last Friday referencing a comparison between the laws of tax with the laws of physics brought to mind something I put into my "blog it someday" folder. Is it possible to create something from nothing, in a tax sense, without breaking any rules? That proviso is designed to exclude the fraudulent actions of people who create earned income credits for themselves when they lack the requisite income, and similar schemes.

The issue comes up in Partnership Taxation, the course sometimes described as the "quantum physics" of the Graduate Tax Program. Be aware that in the general J.D. program, tax is described as the quantum physics of law school. It's not just the intellectual similarities. Just as quantum physics is ever present in the cosmos and creation, so, too, tax is ever present in the law. There’s no escaping either one.

When a partnership interest is transferred through sale or by reason of death, the transferee partner’s adjusted basis in the partnership interest reflects purchase price or fair market value, respectively, whereas the partnership’s adjusted basis in its assets, and the transferee partner’s share of that adjusted basis, reflects the partnership’s historical experience with the assets, including purchase, contribution, and depreciation. To make things easier to describe, the partner’s adjusted basis in the partnership interest often is called "outside basis" and the partnership’s adjusted basis in its assets often is called "inside basis." Usually, but not always, outside basis does not equal the partner’s share of inside basis.

That discrepancy can cause all sorts of problems, such as the transferee partner being taxed on income already taxed to the transferor partner. To alleviate this imbalance, the tax law permits the partnership to elect, and in some special situations requires the partnership to make, a basis adjustment. The adjustment is the difference between outside basis and the partner’s share of inside basis. If outside basis equals the partner’s share of inside basis, the amount of the adjustment is zero. If the election is not made and the mandatory adjustment situation does not apply, there is no adjustment.

What’s the use of a zero adjustment? It’s zero, it’s nothing? No. A zero adjustment can be split into positive and negative components to apportion to each partnership asset, whereas if there is no adjustment, there is nothing, and thus nothing to apportion to partnership assets. In other words, there is a difference between zero and nothing. That is a rule of physics. It shows up in computer programming, where zero and nul are different concepts.

Some students are boggled by this idea. They consider zero and nothing to be the same thing. "There’s no difference," one of them once argued, "between having zero in my wallet and having nothing in my wallet. Either way, I’m broke." Yes and no. Even with money and financial assets it is possible to be worth zero and yet own assets, because there would be an offsetting liability.

So, when an adjustment of zero is apportioned into positive and negative components, it appears to be a matter of creating something from nothing. It’s not. It’s the creation of things from zero. Zero is not nothing.

By the time the students reach the part of the course where they meet this basis adjustment (there are two others), they already have experienced the "something from zero" concept. Twice. When I get to the second and third instance of the concept I ask them to identify the previous instance or instances where we encountered the concept. Some can answer. Others, thinking that a person can cram the night or half week before the exam, stare as if they were sitting in the classroom for the first time. It’s a wonderful example that I use to pound home the necessity of assimilating and learning as the semester progresses.

For those curious about the two previous instances, here’s a very brief explanation. When a partnership sells property contributed by a partner, and uses the remedial method to allocate the gain or loss, it is possible for the partnership to recognize zero gain and yet allocate $x of gain to the contributing partner and $x of loss among all the partners. Of course, the partnership might recognize, say, $50 of gain and end up allocating $87 of gain to the contributing partner and $37 of loss among all partners. Similarly, a partner who sells a partnership interest for an amount equal to his or her adjusted basis in the partnership interest, the partner appears to recognize zero gain or loss, but because an aggregate approach is applied, that zero will be split between ordinary income or loss and offsetting capital loss or gain. Again, a selling partner might recognize, say, $50 of gain and end up recognizing $87 of ordinary income and $37 of capital loss.

When tax students, or even J.D. law students, struggle with these concepts, even after being guided, tutored, and repetitively drilled, I begin to wonder if their minds have been honed sufficiently to do the sort of reasoning that is pervasive in tax, and even law. I try to get the point across by using an example of, say, 50 cookies being turned into 87 cookies and 37 anti-matter cookies. I dare not use loaves and fishes, for I might upset the theology department. There are students unaware of the concept of anti-matter. Seventeen or more years of education and they haven’t encountered the concept of antimatter? What have they been doing? I use railroad marshaling yard analogies to describe what section 736 prescribes for liquidating distributions, and I get even more stares. I’ve been fearful of asking if any students thing food is grown in grocery stores.

So there you have it. Tax folks can generate something from zero. But not from nothing.

Recently a tax practitioner asked the ABA-TAX list subscribers for input on the question of how long a tax practitioner should retain client tax records. The bottom line is that tax pratitioners do not want to be the eternal storage bin for their clients' data, especially after the practitioner-client professional relationship has ended. Practitioners who are subject to regulation by professional societies, such as the AICPA, or state law, must maintain records for certain minimum periods, but not forever.

Why the reluctance to retain the records forever? Storage requires space and space costs money. It's called rent. There also is the concern that clients become dependent on the practitioner rather than taking ownership of their fiscal affairs.

There are things clients need to understand about record retention, and tax practitioners should, and usually do, tell their clients about these concerns.

First, the client needs to keep duplicate copies because in the event of fire, computer storage media failure, or other disaster, a client who relies on the practitioner to take sole responsibility for retention will be in serious trouble when calamity befalls the practitioner's office and the IRS happens to come calling on the client.

Second, when the practitioner does choose to remove old records from his or her files, the client should accept the opportunity to collect them from the practitioner. Otherwise, the client's backup, in the event calamity strikes the client's home, will disappear. The client then needs to store the duplicate set of records in a place different from the place where the primary set is maintained.

Third, clients need to understand the danger in believing that after three (or four, or five, or six) years records can be tossed. That is true of records with no tax significance, such as grocery receipts for food the purchase of which did not justify a deduction. What is important to remember is that many records seemingly not connected with tax are tax records. The cost of the new roof will reduce gain on the sale of a home, and if the gain exceeds the section 121 exclusion amount, failure to have the record of the roof work, and the likely impossibility of proving the cost, guarantees payment of tax that could have been avoided.

A little more than a year ago, I touched on this topic when commenting on Jack Bogdanski's Statute of Limitations expiration shredding party:

But, folks, go easy with the shredder. DON'T SHRED anything that has to do with what you've paid for assets, or to improve those assets, because those amounts become part of adjusted basis, which is used to compute gain or loss when the asset is sold. Likewise, don't shred any information about the value of inherited property when the decedent died, or the donor's adjusted basis in property received by gift. Hang onto those contractor's invoices for the addition built onto the home. Keep all those investment records showing dividends plowed back into the stock through a dividend reinvestment program.

My advice has not changed.

Back in 2004, in writing about the digitization of tax data, I explained

There also exists the question of archiving. In the digital world, what guarantee is there that the return will be accessible in the future? Fortunately, my previous year editions of Turbo Tax run on my almost-expired Windows 98 computer, including those that originally ran under Windows 95, and, goodness, MS-DOS!! Will these programs run on the XP computer that sits alongside the Windows 98 box (or the XP computer that will replace it)? I'll find out during the next month or two. In the meantime, because digital backup may mean nothing, I have consistently printed out the return and the supporting schedules. But at least it's one copy and not two.

Why the concern? Though some people don't hold onto their tax returns for more than say, 3 or 7 years, relying on the statute of limitations, I recommend holding onto all returns, if for no reason other than to maintain records of basis and to guard against the strange day when the IRS claims a return from some years ago was not filed, which would open the statute of limitations, and which can be rebutted quite easily by providing a copy of the return. And what if a lender asks for copies of tax returns for the past three years? If not already in print format, they need to be printed. Will the XP computer run TurboTax for 2000? I think so.

I was wrong. Turbotax for pre-XP versions of Windows cannot be installed on XP systems. What hasn't been printed is inaccessible other than through a Windows98 desktop, of which few remain. So my prediction, from the same post, of what lies ahead seems even more likely:

What may end up happening is that the returns will be "printed to disk" in something like a PDF format. PDF, I am assured by those in the computer industry closer to the action, will endure for decades. So perhaps I will be spending some time (when? ha ha) printing all my returns to PDF and making a CD that holds the entire batch.

For a world living in the information age, there surely is a serious information preservation problem. Is it like the marooned sailor in Samuel Taylor Coleridge's Rime of the Ancient Mariner, "Water, water, everywhere but not a drop to drink"?

Earlier this month, Ellen Aprill of Loyola Law School Los Angeles put a challenge to her tax teaching colleagues throughout the country. She noted that in his New York Times essay, Physics Awaits New Options as Standard Model Idles, Dennis Overbye wrote:

Unlike, say, in the tax code, however, in physics new laws are more elegant and economical than the ones they replace.

Ellen asked if "new tax laws less elegant and econmical than the ones they replace."

My reply was one of my shortest utterances: "Unquestionably. Imagine Congress legislating the laws of gravity." I then appended "Don't fall all over that one!"

Bad? Well, yes, the pun is. But tax legislation drafting leaves much to be desired, as do many of the policies generating the "new" rules of tax. It's not bad to point that out.

Andrew Mitchel, the tax chart designer to whom I referred last week in my Tax Chart Mania post, has reached beyond charts of cases and rulings to decision-making flowcharts. His first, Deductibility of Commuting / Transportation Costs, is a must for tax practitioners. It maps out the reasoning process to get from facts to results.

It would not be surprising to discover tax students grabbing hold of this chart and using it to answer exam or semester exercise questions. Too many students much prefer being given answers than being required to create decision charts. Guaranteed, Andrew learned more by designing this chart than those using it will learn by reading it. That's why I give my students a few charts early in the semester, to show them the goal that they should have, namely, learning how to think through a problem rather than look up (or receive) an answer. Many students are unhappy with this challenge, preferring to listen and repeat rather than solve problems.

I think I will ask Andrew for permission to hand out to my students an amended version of his chart, with one or two errors deliberately introduced. I will then ask the students not for the correct version, because that simply would reward those who can find things on the Internet, but for an explanation of WHY the identified errors are errors. THAT is how lawyers and tax practitioners learn to think.

One of the charts I recommend students create in Partnership Taxation is a matrix of the allocations regulations. Now there, if done properly, is a formidable chart.

A report issued late last month by Citizens for Tax Justice explains how the 99 percent of Americans not among the top one percent in terms of income are worse off under the last five years' tax cuts. Thanks to Paul Caron's TaxProf Blog for clueing me in to the issuance of this report.

The report focuses on the fact that the tax cuts enacted during the past five years have been funded with borrowed dollars. The interest on that debt compounds the cost. By comparing the average tax cut for the top one percent with the average increase in the national debt per person in that income cohort, and by doing the same for other income cohorts, the report determines that only the top one percent have received a net benefit. It measures the benefit at $30,352 per family member in the top cohort. It measures the detriment for the other cohorts at $7,166, with the highest detriment applicable to those with incomes greater than 60% of all taxpayers and less than 20% of all taxpayers. In other words, the middle class takes the biggest hit.

As the report confesses, one can debate how to allocate the increase in national debt among taxpayers. Rest assured, though, that if tax and fiscal policies continue on their present course, the increased debt won't be financed by the upper echelons. That is the story of taxes and finances throughout history.

When I was a youngster, I narrowly missed winning a contest that required the children to guess the number of jelly beans in a jar. Had I been closest, I would have won the jar of jelly beans. By coming in as a runner-up, I won a board game called "Down You Go." It taught me about words. Hindsight tells me that the contest was one of those times I won by not winning.

So perhap a similar contest can be designed for the exploits of TaxChartGuy, the sobriquet I have pinned on Andrew Mitchel. We'll substitute his web site for the jar, and tax charts for the jelly beans. So how many tax charts can be extracted from the tax law? Not having come up with a prize for winner or runner-up, I'm not sure whether it's best to be closest. But I will venture that the total will someday cross one thousand.

About a week and a half ago, Andrew posted another thirty, yes, you read that correctly, thirty charts. Don't forget that a little more than a month ago, Andrew dished up fifty, yes, fifty new charts. From tentative first-step beginnings, a chart here and several there, to their appearance by the dozen or dozens, I suppose if I wanted to be sarcastic I'd note that he's slipping. From fifty to thirty would make day traders panic. Fear not. No panic required. These charts are appearing at an enormous monthly rate.

The posting of the latest batch generated this announcement:

Today we uploaded 30 new tax charts. We now have over 260 tax charts.

The tax charts can be found:

By Topic: www.andrewmitchel.com/topic.html

In Alpha-Numeric Order: www.andrewmitchel.com/sitemap.html

By Dated uploaded: www.andrewmitchel.com/chart_postings.html

Today's charts include:

Section 338 Election Examples

1. QSP - Busted 351 (Via IPO) is a Section 338(h)(3) Purchase
2. QSP - Related Person Acquisition
3. No QSP - Shares Constructively Acquired Prior to 12 Month Period
4. No QSP - Shares Constructively Acquired Prior to 12 Month Period
5. QSP - Acquisition Date for Tiered Targets
6. QSP - Purchase, Redemption, & Purchase
7. QSP - Purchase & Redemption
8. No QSP - Redemption & Purchase
9. QSP - Purchase & Related Person Redemption
10. Purchase & Sale of Target
11. Purchase of Target & Sale of Target's Subsidiary
12. Post-QSP Merger of Target
13. Section 1248 Gain on QSP of a CFC With Gain Recognition Election
14. Section 1248 Gain on QSP of a CFC Without Gain Recognition Election
15. Creeping Acquisition of CFC (U.S. Sellers)
16. Creeping Acquisition of CFC (Foreign Seller)
17. 338 Election - "One-Day" Tax Return
18. 338 Election - Short Year Tax Return
19. 338(h)(10) Election For Some But Not All Targets
20. Pre-Sale Distribution and QSP

Sales of Controlled Foreign Corporations (CFCs)

21. U.S. Corporate Seller of CFC
22. U.S. Corporate Seller of CFC - Pre-Sale Distribution
23. U.S. Corporate Seller of CFC - 338(g) Election
24. U.S. Corporate Seller of CFC - 338(g) Election & Subpart F Income
25. U.S. Individual Seller of CFC - Qualified Foreign Corporation (QFC)
26. U.S. Individual Seller of CFC - QFC and 338(g) Election
27. U.S. Individual Seller of CFC - QFC, 338(g), & Subpart F Income
28. U.S. Individual Seller of CFC - Non-QFC
29. U.S. Individual Seller of CFC - Non-QFC and 338(g) Election
30. U.S. Individual Seller of CFC - Non-QFC, 338(g), & Subpart F Income

Aha, Andrew is more than one-fourth of the way to a thousand. By the end of the decade we could be looking at several thousand, if he keeps cranking them out in monthly batches of thirty and fifty.

Here comes some easy blogging. I'll quote myself, updating my comments to reflect last month's chart production:

As an advocate of the value of visual depictions of the facts underlying tax issues, I salute Andrew's efforts. If you haven't read my previous accolades for Andrew's charts (see here, here, here, here, here, here, here, here), here, here, and here, take a look.

Andrew welcomes comments on his charts. Visit his site, and contact him through that portal. There are three ways to access the overall chart collection:

By Topic
Alpha-numeric order
Date uploaded

So when do the TaxChartGuy tee-shirts and mugs become available? When they do, buy two of each, one to wear or use, and the other to save as a collector's item, for when chart #1,000 shows up. Good work, Andrew. Keep going.

It is Independence Day, a time to celebrate not only the freedom earned more than two centuries ago and the values underlying the rights for which so many fought, but also to remember the sacrifices made over the years by those who understood that freedom is not free. Not surprisingly, July 4 is a time when some folks try to persuade us that there is no true freedom unless and until there are no taxes.

Without taxes there can be no freedom. Freedom does not come cheaply. The price of freedom is high. Why? Because it is valuable. Very valuable. In some ways, priceless.

Take away all taxes, and no one will be free. No one.

The American Revolution was not fought to eliminate taxes. It was fought for several reasons, one of which was the idea that taxation should be imposed not by fiat but through representation. Now there is an idea that has been twisted in a venal sort of way. Representation in tax decisions must be equal and not favored to the wealthy. It is in this respect that deep reform is required. Abolition of all taxes does not resolve this problem.

Happy Independence Day to all.

During an interview on a news program this morning (not sure which one), Gov. Corzine of New Jersey explained why the State of New Jersey was closed, as a practical matter, for business. Unable to reach agreement on a state budget, the governor and legislature have entered into stalemate.

The issue is simple. The amount collected (in taxes, fees, and other revenues) must equal expenditures. At the moment, expenditures exceed revenues. The solution is to raise taxes, cut expenditures, or do a little of both. Some want one or the other, but some want neither. Something ultimately will snap, and it won't be pretty.

Without going into gory detail, one significant problem is that a good chunk of the state is designated as a zone eligible for tax breaks. That's what happens when tax breaks are used as political tools and to make everyone happy. Of course, if every person on the planet is promised $1,000,000,000, something will go haywire.

It will be instructive to watch New Jersey try to dig itself out of the fiscal mess its politicians, currying favor with citizens demanding special treatment, have bestowed upon the people of the state. Why? It won't be long before the piper demands similar accounting at the federal level. And the consequences will be far more significant.

A reader, responding to my criticism of the tax break for timber offered as a sweetener to "persuade" member of Congress to vote for estate tax changes not otherwise palatable to them (A Tax Sweetener That Needs to be Cut Down and Turned to Mulch), noted:

Re: your comments on the "sweetener" added to the estate tax bill of lowering tax rates on certain gains from timber sales. I don't have the stats to prove it, but that could be a double whammy against "ordinary" US taxpayers, since the lumber companies often pay extraordinarily low rates for timber they're "allowed" to harvest from US property (BLM, National Forests, etc.) Perhaps that's why they feel they deserve a tax break as well, to compensate them for the extra gain they must recognize due to the low basis.

I'm no timber expert. As I promised the writer, I looked around the web, and from what I've found it appears that the timber industry is laden with controversy, theft, and artificially deflated bid prices. Take a look, for example, at the Field Guide to Timber Theft, and at the article, Cruel Twists Seize Timber Country.

So perhaps the folks angling for the timber tax break are trying to avoid the higher gain generated by lower basis. In that respect, they would remind me of the person who wins a lottery with a ticket received as a gift complaining about the tax rates on the winnings.

But even if the timber was purchased at fair market value, there still is no justification to reduce the taxes on timber sales but not on sales of lemonade, slippers, ballpoint pens, lawn mowing services, or haircuts. So my question remains, what's so special about timber that those who sell it deserve lower tax rates?

This morning's Philadelphia Inquirer story about Pennsylvania's governor signing into law the tax reform bill passed by the Pennsylvania legislature last week made this prediction: "the issue of property taxes will be front and center in this year's governor's race." I agree. There's no risk in this prediction. Soon after the signing, the governor's opponent in his re-election bid described what he claims is the governor's plan (it's not, it's a compromise between what the governor wanted and what the legislature was willing to do) as a "Band-Aid" and then trumpeted the alleged worthiness of his own plan.

The title I gave to my analysis of the recently enacted Pennsylvania tax reform legislation is very descriptive: New Pennsylvania Tax "Reform" Doesn't Add Up. So, too, is the caption for my discussion of the proposal presented by the governor's campaign rival: Taxation Swann Song Should Be Tackled for Loss.

Let's face it. Neither plan earns high marks because neither plan tackles (sorry) the core issues. Hence the generosity with the criticism. Yes, as my students say, I'm fair but demanding. So, too, should be the Commonwealth's taxpayers. Yet perhaps they are as much a part of the problem as of the solution. Why?

Consider what Chris Borick, director of Muhlenberg College's Institute of Public Opinion, said: "Voters are jaded now - I don't know that they believe that there is any person out with the magic bullet to this issue." Replace the word "person" with "politician" and he's absolutely correct. There are people "out here" who have a sensible fix, but they will struggle trying to sell it. Many, perhaps most, citizens want a tax plan that lowers their taxes and raises everyone else's taxes. But that approach is just as nonsensical as what the politicians offer. In fairness to the politicians, they offer what they think will sell to their constituents, who demand low taxes and high levels of government services.

Think about it. People want potholes filled, ambulances at the ready, playgrounds, parks, running trails, open space, clean air, flood protection, and a long list of other programs and benefits. Yet many people do not want to pay. They're special. They deserve a zero tax rate. But this won't work, and a genuine leader will say so, explaining why it is so. Leadership is more than currying favor. Leadership requires truth. And some courage.

Each program or benefit funded by state or local government needs to be identified and realistically priced. Those that ought to be funded through user fees need to be so identified. Those that benefit property, for example, fire protection, should be funded by a property tax. Those that benefit society generally, for example, education and public health, should be funded with an income tax, not a wage tax. Enough with the millionaire pensioners masquerading as poor folks trying to squeak by on a pension pittance and a few dollars of interest income.

This approach requires putting the common good above the narrow, self-focused orientation of the individual. It requires that enhancement of the common good can do more to enhance the individual than can the individual in isolation. It requires purging from the public mentality the sense of specialness that has been hammered into people's heads for far too long. If the politicians cannot or will not do so, who will? How the answer to this question plays out will forecast the fate of tax reform in Pennsylvania.

For years, a few of us stood alone, teaching our law school classes in a way that resembles what students will do as practitioners: solving problems and preventing problems. Many students chafed. The problem approach requires work to be done throughout the semester. It requires more than looking at an outline from the previous iteration of the course. It requires more than the night-before-exam cramming that feeds into the closed-book memorization and regurgitation approach to measuring ability.

Teaching through the problem method is challenging. New problems must be created each semester, because using old problems presents at least two problems. First, in some areas of law, such as tax, last year's problem may be obsolete, and this year's problem requires adaptation to a new or amended law. Second, students raised on the memorize-and-regurgitate formal that permeates much of K-12 and undergraduate education, exacerbated by the No Child Left Behind campaign, think that if they can find the answer to last year's problem from someone who previously took the course, they can earn high grades by sharing what they have "discovered." Finding information on the Internet or on last year's course outline is not a hallmark of an A student, other than (perhaps) in legal research courses.

Law schools claim to teach students "how to think like lawyers." The irony is that lawyers don't think much differently than do accomplished people in any other field, be it engineering, music, cancer research, or design. Find the facts, determine what additional facts are required, outline the issues, ponder alternatives, do some trial-and-error application, take a position, argue for one's conclusion. Engineers are trying to solve and prevent problems. So, too, are cancer researchers. So, too, are lawyers. That is why law schools, despite what they claim, are in the business of teaching their students to think. That's it. To think.

Problem solving and problem prevention requires people to think. Thinking, in turn, requires independent thought. The problem approach to teaching nurtures these skills.

So it came as no surprise, and yet as somewhat of a surprise, to learn (as reported here) that Harvard is considering injecting the problem approach into its curriculum. And it surely was no surprise to read confirmation of what already was known: A PUSH FOR PROBLEM SOLVING As Harvard Ponders, Others Embrace Change in Law School Approach. After all, back in 1992, an ABA Task Force on Legal Education concluded that law students should have instruction in problem solving. Has that happened? Yes, for students who enroll in the few courses that use problem solving as part of the pedagogy. Some students manage to float through law school on a theoretical and philosophical track that exacerbates the bewilderment and disillusionment greeting them on their first job (a topic unto itself that I plan to address in a subsequent posting).

I share a few quotes from each article. To those who know me, trust me, these quotes are not mine. Yet they paraphrase things I've been saying for years. I've tossed in a few editorial comments. I just couldn't resist.

From A PUSH FOR PROBLEM SOLVING As Harvard Ponders, Others Embrace Change in Law School Approach:

"I have found it to be a wonderful thing," says Peggy Cooper Davis, an ethics professor at New York University School of Law, "because it gets students thinking about their responsibilities as a professional, and it gets them struggling with what it means to represent someone."

.....

"The [Socratic] method is a great way of teaching, but case method alone is a bit one-sided," says Lewis [Oliver Lewis, a 2006 Harvard Law graduate], who clerks for a 9th U.S. Circuit Court of Appeals judge. "One of the big problems is that the exams are done by the problem-solving method, but the teaching is done by case method, so it feels like you’re looking through the other end of the telescope."

.....

Some Harvard graduates say some faculty members would probably be resistant to incorporating real-life aspects of the practice into first-year courses. [Surprise!]
.....

Michael Meltsner, a professor at Boston’s Northeastern University School of Law, [who] was a visiting professor at Harvard Law [and who assembled what was known as the First-Year Lawyering Program [at Harvard] explains why the program did not last: .... Meltsner says faculty complained the program took too much student attention from regular courses. He also says many faculty members were not comfortable with the intense involvement of practice-related training because they see their role as more scholarly. [Translate: can they design and solve practice-related problems? Are they capable but unwilling to invest the time and effort?]

.....

Lawrence Rosenthal, a 1981 Harvard Law graduate, sees faculty members’ lack of law-firm experience as the problem. "So many faculty members at so-called elite law schools don’t have any significant practice experience, so they manage to convince themselves that you don’t need to know much about the practice of law to teach it," Rosenthal says.

From Twas a time for change:

Many law schools, with their century-old teaching methods, do not prepare graduates for the day-to-day realities of law practice. [When I said this at the outset of my teaching career, I was dismissed as an unlearned rookie. When I said this ten years into my teaching career, I was told I lacked humility and tact. When I say it now, I get strong messages of support from some folks and sharp rebukes and retaliation from others.]

.....

''When a human being walks through a lawyer's door, they don't say, 'I have for you a tort problem' 'They say, 'I was walking to the office this morning and a car came by and knocked over this garbage can and it hit me and I fell off the sidewalk and I twisted an ankle and what are you doing to do about it?'" [One of my favorite questions to students, "So what now will you say to (or ask of) the client?" brings not only stares but on one occasion an email that asserted "You are scaring the h** out of us. This is the first time we've heard a reference to clients" —- clearly from students who had not been in the Legal Profession course nor in a clinic (which, if I were a Dean, would be sufficient in number so that every student would be required to enroll in at least one].
.....

"Young lawyers often find that law practice is starkly different from law school, contributing to high attrition at many law firms." [Another one of my oft-rejected observations]

.....

"The cost to firms of associate attrition is substantial: more than $300,000 per departing lawyer in unrecoverable recruiting, training, and replacement costs" [and clients have tired of paying for the education they expect associates to bring with them to the representation].

.....

"'The case method..... falls pretty far short of actually training people to know how to be a lawyer."

.....

''A lot of lawyers do work .... that reading appellate cases doesn't help you get at." [But because many law professors go from law student to clerkship to law faculty, what else can they do? Lawrence Rosenthal, quoted above, nailed this one, didn't he?]

.....

"Law schools ought to be aware that they're training people for practice" [many faculty disagree, and proudly say so].

.....

''If we get them to think of themselves as problem-solvers, that brings them closer to the realities of law practice." [But the students don't realize that so long as the faculty using the problem-solving approach are in the minority.]

.....

"[The problem solving approach helps students] draw connections between classroom theories and actual practice.

It's so nice to have others wander over to the problem-solving side of the legal education street. Yet the bulk of the crowd remains afraid or unwilling to cross over. The battle for what 21st legal education will be has heated up.

Earlier this week, in Tax Sweeteners Leave Sour Taste, I criticized the strategy laid out by Bill Frist and his House counterparts to push through estate tax changes by buying the votes of legislators holding principled objections to the changes. The votes would be purchased with "sweeteners," a euphemistic term for what I described as "a word to describe offering something to somebody to get that person to do something that they would not do because they have principled objections to doing it." I pointed out that this attitude is what generates the low-quality tax legislation that Congress has been spitting out during the past decade and a half.

Obviously, few, if any, in Congress read my post, or if they did, found it persuasive. Yesterday, by a vote of 269-156, the House passed the sweetened estate tax legislation. The sweetener? A reduction in the tax on gains recognized by taxpayers selling timber. Amazing, isn't it, that legislation intended to amend the estate tax provisions is infected with changes having absolutely nothing to do with estate taxes, other then being the "bribe" offered to bring some Democrats on board. Democrats that the Republicans think are willing to sell out their principled objections to reducing the estate tax to a nominal thing in order to get some tax breaks for some of their high-level campaign donors. The typical citizen earning a salary? Hey, that person isn't even in the game. That "special low tax rate for timber folks" provision adds 140, yes 140, lines of text to the Internal Revenue Code, along with one definition, at least four special rules, a complex mechanism to mesh this special low tax rate with the special low tax rate for capital gains, and a variety of other provisions. Anyone want to guess how many pages of regulations will need to be issued? Or how much time will be spent by IRS and Treasury employees writing those regulations and issuing revenue rulings. How many cases will end up in the courts dealing with the sure-to-be-discovered unanswered questions and inconsistencies generated by this thrown-together-at-the-last-minute "sweetener"?

What's the justification for this timber break? Is it patterned after the excuse for the special low tax rate on capital gains? In other words, are people refusing to cut timber because the tax rate on timber sales is too high? Is there a shortage of cut timber in the country? Is there a national goal of cutting down more and more trees?

What happens when this abomination reaches the Senate, and a head count shows a need for some more "sweeteners"? What will it be? A special low tax rate on the profits of corporations that sell unhealthy fast foods? A special low tax rate on the salaries of people earning more than $5 million a year? A tax credit for campaign contributions made to legislators?

Perhaps someone should bring the Congress to Harrisburg, Pennsylvania, for a visit with the Pennsylvania legislature. I'm sure there are at least a few folks there who have interesting stories to tell about the recent Pennsylvania primary election, in which some incumbents were tossed out because their arrogance and disregard of the citizens they were elected to serve crossed the line.

Is it too much to hope that the Senate does the right thing and spits out this so-called sweetener and the mess to which it is attached? Will Senators understand that something incapable of getting passed without bribing a few legislators does not deserve to pass, and that the American people deserve something better than procured legislation?

A report that is just now making the rounds of various newspapers, such as the St Petersburg Times, the Richmond Times Dispatch, the Philadelphia Inquirer, and the Asbury Park Press discloses that the number of millionaires grew more than 6 percent last year. According to the Tenth Annual World Wealth Report, the number of millionaires has increased from 4.5 million in 1996 to almost 9 million. Wealth is measured without regard to the value of a person's primary residence. The number of individuals worth more than $30 million increased from 77,500 in 2004 to 85,400 people in 2005.

Even though the number of millionaires grew more at a rate of slightly more than 6 percent from 2004 to 2005, the total wealth held by these people increased by 8.5 percent, and not totals more than $33 trillion. This means that millionaires are becoming relatively more wealthy. The "haves" are getting richer. This follows earlier year increases of similar or greater disproportionality, such as the 7.7% increase in net worth of high net worth individuals from 2002 to 2003.

What about the "have nots"? According to the Census Bureau, the world's population grew from 6,376,863,118 in 2004 to 6,451,058,790 in 2005, an increase of 1.15 percent. The wealth of the world is probably on the order of $360 trillion. So roughly 10% of the world's wealth is held by roughly one-tenth of one percent of the world's population.

Though some of this disparity cannot be attributed to a United States tax system, the fact that North America accounts for 2.9 million of the millionaires and $10.2 trillion of millionaire wealth, or one-third of the total, suggests that the American tax system does play a significant role in the widening disparity between haves and have nots. While wage-earners struggle to find discretionary income to invest in wealth-generating enterprises, those already with wealth are taxed at low rates so that their after-tax wealth growth is highly disproportionate. A select few own the world, and everyone else works for them. Think about it.

Ironically, those who argue that the income tax system should not be used to redistribute wealth are the principal beneficiaries of an income tax system that does redistribute wealth. I don't think income tax systems should redistribute wealth per se, in either direction. That is one reason I object to a system that taxes the wealthy at lower marginal rates than it taxes the disappearing middle class. Toss in the attempt to remove estate taxes while preserving the eternal exemption of unrealized gains from income taxation, and it is easy to see that the situation ten or twenty years from now will be even more unbalanced. Why the advocates of tax policies favoring the wealthy cannot see the long-term risks in this trend is a question I cannot answer, aside from a reference to the adage that glittering gold can also dazzle the mind's eye into blindness.

Though folks are usually told it's best not to tour the sausage factory before a meal, perhaps it's best that a feature of the federal legislative process fall into the spotlight. According to this report from the Wall Street Journal's Washington Wire, Senate Majority Leader Bill Frist has a plan to revive the failed permanent estate tax repeal plan. Frist has mapped out the following strategy. The House passes estate tax legislation with "sweeteners" attached. The bill then goes to the Senate, where the sweeteners persuade some Democratic Senators to change their votes. Quoting Frist, "I will ask the speaker and the House to send a bill to us. I will encourage them to attach appropriate provisions to make it attractive and will hope a vote by July 4th."

There's a word for this, a word to describe offering something to somebody to get that person to do something that they would not do because they have principled objections to doing it. This isn't a case of offering something to somebody to get that person to do something because by doing something they are expending time or resources. Offering someone money to mow one's lawn is a legitimate free market transaction. Offering an honest person an incentive to embezzle from his or her employer isn't legitimate. Nor is offering a "sweetener" to a Senator in order to change his or her vote.

It's this sort of attitude that generates the atrocious tax (and other) legislation that oozes out of legislatures. Of course, the sweeteners would add all sorts of complexity to the tax code. Surely they would be tax breaks extending benefits to the partisans of the co-opted Senator. Far worse, sweeteners induce legislators to toss aside a vote based on conscience and what's right for the country or a state so that they can sell out for what ultimately would be more votes from the partisans who benefit. That vote gathering underlies the maneuver planned by Frist is evident from the Republicans discussion of Senator Maria Cantwell's re-election bid.

Without a doubt, some would claim, "This is the way things are done." It is true that, too often, this is the way things are done. But just because something is done a certain way, it ought not be chiseled into granite if it violates the principles on which the nation was built. Tossing taxpayer dollars around as incentives for votes isn't the stuff of compromise. It's the stuff of selling out. These sweeteners aren't sweet.

After dropping the property tax relief ball in December, and then side-stepping the issue in May of this year, the Pennsylvania legislature passed property tax legislation that the governor promises to sign. But does it add up?

Under the legislation, senior citizens currently eligible for property tax relief through income tax credits will qualify for larger credits, in other words, more property tax relief. To their number will be added more senior citizens, because the income cut-off for this relief will be increased from $15,000 to $35,000. There are many retirees earning between $15,000 and $35,000 for whom property taxes are a severe burden. This part of the legislation is a worthwhile, and even noble, objective.

But nothing will happen until 2008, at the earliest. Why? Because implementation of the changes relies heavily on revenues from slot machine gambling, though as I write there are no in-state casinos, no construction underway, and no licenses yet granted. Is there a way to work the phrase "molasses in winter" into the promotional materials? To trigger the property tax changes, at least $400 million of gambling revenue is required. There is no guarantee that this much money will be flowing into the state Treasury by 2008.

Yet it's not so simple as using gambling revenue to reduce the property taxes of senior citizens and to expand the number of senior citizens eligible for relief. Tucked into the bill is a provision that permits localities to reduce property taxes for all property owners by replacing the lost tax revenue with an earned income tax. Here is where the legislation falls flat on its face. By permitting school boards to replace part of the property tax, justifiably criticized on many grounds, with an earned income tax, the legislature is writing a pass for local politicians to move citizens from the fire into the frying pan. Previously, I have described all that is wrong with earned income taxes. Why should wealthy people hauling in huge amounts of dividend and interest income get a free ride? What's project to happen is an increase in overall tax burden for some wage earners, and reductions not only for impoverished retirees but also for the landed gentry with portfolio. The middle, once again, gets squeezed. Take a good look, all ye living elsewhere. What you see here is a rough blueprint for where the Administration and some, though not all, Congressional Republicans want to tax the national tax system.

The Philadelphia Inquirer gives this example:

For example, a homeowner in Haverford Township, Delaware County, with a household income of $100,000 would pay $124 in additional taxes, assuming that anticipated slots machine revenue reached $750 million. That's because the estimated property-tax discount of $876 would be wiped out by the projected $1,000 that the homeowner would have to pay in additional earned-income taxes, should voters approve it.

Can someone in the Pennsylvania legislature explain how this is a good outcome?

The minute I heard the news, I figured this recent turn-about was a response to the even worse plan advanced by gubernatorial candidate Lynn Swann. The Philadelphia Inquirer writer offers a similar analysis: "Passage of the bill was seen as a ready-made campaign issue for Rendell, expected to defuse Republican gubernatorial candidate Lynn Swann's criticism that the governor had failed to deliver on a key promise." Yes, it's all about politics, isn't it?

One politician expressed it best: "But what is really being done here is an illusion of property-tax reform. It's not real." This from Rep. Daryl Metcalfe, a Republican from Butler County. He spoke truth. I wonder if he will be re-elected. After all, speaking truth is dangerous. Balancing the criticism, Rep. Gary Haluska, a Democrat from Cambria County noted, "I really have a problem with us pretending we're doing tax reform... . Let's call this what it is: This... is just an enhancement of the rebate program."

Here is what will end up happening: (1) Localities will impose earned income taxes on wage earners, (2) Property taxes will be reduced, with those owning more expensive properties getting the largest reductions, (3) senior citizens at the low end of the income scale will receive larger property tax rebates, (4) this will shift taxes from the wealthy and the poor to the middle class, (5) gambling revenues will be delayed and under projection, (6) the Pennsylvania tax system will be even more of a mess than it is, and (7) the legislature will not feel compelled to do anything more because it will view its 2006 action as a momentous reform justifying another four decades of inaction.

What would be so wrong with (a) take whatever gambling revenue there is, if there ever is any, and use it to rebate property taxes for low-income homeowners whether or not of "senior" age, and (b) enact local INCOME taxes to replace part of the property tax? I suppose that doesn't fit in with the "squeeze out the middle" effort. As I wrote a few weeks ago:

There's an undercurrent to the taxation debate that transcends taxation. It goes to the heart of whether this country will continue to have a middle-class, one of the significant indicia of genuine freedom and democracy, or whether it will atrophy into another of the "many ruled by a few" arrangements that have dominated human history. This question is even more provocative when one considers the ways in which the few have made their way into the elite. Though it is important that discussion of these issues be done in a manner that permits the entire citizenry to understand what is at stake, I have serious doubts that it will. The rhetoric accompanying the small estate tax repeal slice of the much larger question about what sort of nation we are, want to be, and will be, reinforces my doubts.

This is not a new theme of mine, as this analysis demonstrates. If it doesn't begin resonating with the populace, it will be a theme turned lament and nothing more.

After reading the news about Ben Roethlisberger's motorcycle accident, I particularly noticed the fact he was not wearing a helmet. Though some might claim that the issue is whether he exercised good judgment, I consider it a matter of intelligence versus stupidity. Judgment is a talent that is called into play when there is insufficient information to make a decision. Riding a motorcycle that can reach speeds of 200 miles per hour, without a helmet, is stupid. Period. Excuses such as "It feels good" or "I feel free" are simply that. Excuses.

It's too bad a Super-Bowl winning quarterback is hurt. The good news is that he will recover. An important question is whether he will have learned a lesson. An even more important question is whether others will learn a lesson without paying the price he has paid. Considering that he did not learn a lesson from the recent motorcycle accidents that injured several other professional athletes, perhaps ending their careers, it's not all that likely that others will learn from Roethlisberger's unfortunate experience. It doesn't matter that he had the right-of-way, as some news reports are explaining. When a careless, inattentive, or even stupid driver turns in front of you at the last minute, do you want to be on a motorcycle without a helmet, on a motorcycle with a helmet, in a car, in an SUV, or in a tractor-trailer?

The annoying aspect of this incident is that resources must be injected into the health care system to repair damage that ought not to have happened, and that could have been minimized or prevented by the wearing of a helmet. I don't know the details of Roethlisberger's health care coverage. Is he self-insured? Is he covered by a group policy? If he's self-insured, his helmet avoidance is costing him not only the physical injuries but financial setbacks, though perhaps he would have a right to collect from the driver who cut in front of him. My guess is that he is insured under a group policy. Health insurance premiums increase because health care costs increase. Roethlisberger's decision to wear no helmet has increased health care costs. Aggregated with injuries suffered by other helmetless riders, and by people doing stupid things, the costs of these folks' stupid decisions are shifted to others covered by group health insurance policies. This point can be made about other health-impairing behaviors, such as smoking, steroid use, and taking in 70% of one's daily calories in the form of saturated fats. Defenders of the "right" to engage in unhealthy behavior parade out all sorts of defenses, including the famous "if I don't get cancer from smoking, I'm sure to need health care for some other disease" argument. My point today is simply that costs should be affixed to the decision making that generates those costs. And I'm not talking about health insurance premium surcharges for smokers and helmetless motorcycle riding. I'm talking taxes.

Taxes are imposed on cigarettes. The theory is two-fold. First, discourage the behavior by making it more expensive. Second, generate revenue which, theoretically, should and could be used to defray the societal costs of smoking. Why those revenues end up elsewhere is a different issue. There are similar taxes on alcohol, and other activities. What about taxing motorcyclists who refuse to wear a helmet? The difference is that taxes on cigarettes, gambling, alcohol, and the like are easily lumped together as "sin taxes" because they deal with activities characterized by some theologies as morally wrong. Putting a tax on helmetless motorcycle riding into the category of "sin tax" appears awkward to many people, because most people consider riding a motorcycle without a helmet to be stupid, but not a sin. I'll go with that perspective, even though as a child I was taught that such behavior was, in fact, a sin. I'm sure that just about everything people do can find a "sin" home in some theology. But it makes sense to leave religion out of it.

Instead, let's stop taxing "sin" and activities classified as "sin" under certain dominant theologies. Instead, let's tax stupidity, or, more precisely, stupid behavior. I'm confident that the taxes on cigarettes would remain, because, with apologies to the people I know who smoke, smoking is stupid. As for alcohol and gambling, perhaps some mechanism to separate sensible from stupid drinking and recreational from addictive gambling could be crafted, but I've not yet thought of one. Taxes could be imposed on activity that poses unacceptable risks to a person's health that generate costs to society that society ought not be asked to bear. I suppose one could exempt from the tax those who elect to self-insure, but we know that the problems would arise when the "untaxed" helmetless motorcycle rider is delivered by ambulance to the emergency room. Being the merciful society that we are, we should expect more than a few stupid helmetless motorcyclists to expect, sorry, a free ride when it comes to healing the injuries caused by, or exacerbated by, their stupidity.

The idea of "taxing stupidity" isn't new. Pop the phrase into Google's Search Engine, and several hundred hits show up. Sometimes cast as "a stupidity tax," the concept usually arises when people are discussing gambling, making jokes about gambling, efforts to deter stupid digital forum postings, methods of making political careers too expensive for those lacking sufficient intelligence, or even looking for ways to reduce stupidity or to insult someone.

I'm not proposing a tax on stupidity per se. However one wants to measure intelligence or the lack thereof, the issue isn't the existence of stupidity. It's the next step. Stupidity acting out. Many people without so-called high levels of intelligence are brimming with common sense and wouldn't jump on a motorcycle without a helmet. Many people with high IQs do some really stupid things. Paraphrasing a well-known theological adage, tax the act, not the person.

Gamblers are persistent. Those who lose continue to play thinking that they're overdue for a win. Those who win think they've got a system that works, and so they stick with it. Very few gamblers have the discipline to cut losses, or to fold when it's time to surrender. So it's not surprising that lottery winners who sell the rights to their future winnings continue to litigate a settled issue.

The latest decision comes in the appeal of Roger Leslie Wolman and Caroline R. Wolman to the Tenth Circuit from a decision of the Tax Court holding that the amounts received from selling the rights to future years' payments from the lottery do not qualify for the special low tax rates applicable to capital gains. In its decision, the Tenth Circuit affirmed the Tax Court, and simply cited its decision in an earlier case, Watkins v. Comr., in which it also affirmed the Tax Court's conclusion that the sale of rights to lottery winnings are ordinary income and not capital gains taxed at special low rates.

In its Watkins decision, the Tenth Circuit relied on a half-century old Supreme Court decision, Comr. v. P.G. Lake Inc., 356 U.S. 260 (1958), in which the Court held that capital gains treatment does not apply to the receipt of a payment in exchange "for what would otherwise be received at a future time as ordinary income." Courts, relying on the P.G. Lake decision, have applied this principle to taxpayers who received lump-sum payments for relinquishing rights to interest payments, rental payments, commissions, movie receipts, and mineral leasehold payments. As lotteries proliferated during the past several decades and winners began to sell their rights to future payments, the Tax Court held at least a half-dozen times that amounts received in exchange for future years' lottery payments are ordinary income and not capital gains taxed at special low rates. Before the Tenth Circuit tackled the issue, the Third and Ninth Circuits had considered appeals from Tax Court decisions and affirmed the Tax Court's conclusion.

Taxpayers, facing the inevitable, have dragged out preposterous arguments in an attempt to get a low tax rate on their gambling winnings. Several have claimed that the amount paid to enter the lottery is a capital investment and that the amounts they won were returns on investment. That argument has been rejected by every court to which it has been presented, because the gambler is paying for the privilege of playing and not for ownership of an investment. One court stated, “[t]he purchase of a lottery ticket is no more an underlying investment of capital than is a dollar bet on the spin of a roulette wheel.”

So why do taxpayers who win lotteries and sell the rights to future payments insist on reporting the income as capital gains taxed at special low rates when they know, or should know, and their return preparers know or should know, that doing so violates the tax law? The answer is simple. They think they'll get lucky. They're gamblers. They're taking a chance that some Court of Appeals will tilt the machine and hold in their favor, creating a circuit split that would take the issue to the Supreme Court. Yet anyone who understands tax law knows that with the Ninth Circuit having rejected the taxpayers' arguments, there isn't a federal appeals court in the country that will reach a different conclusion. And even if that happened, the Supreme Court, which decided P.G. Lake, surely would affirm the conclusion that lottery winnings and the proceeds of selling the rights to future lottery payments are ordinary income.

At some point, a court is going to slap a taxpayer with a frivolous lawsuit penalty for bringing a case that is nothing but a loser. And at some point, an appellate court is going to stick a taxpayer with a frivolous appeal penalty. The risks are going to shift even more unfavorably for the taxpayer. Yet they persist.

Why?

It's the lure of the special low tax rates for capital gains. There's a big difference between a tax rate of ten or fifteen percent and a tax rate in the thirty percent range (depending on the amount of the lottery winnings and the taxpayer's other income). This is yet another reason that special low tax rates for capital gains is unwise tax policy. It diverts resources into the "let's make ordinary income look like capital gain" industry, and encourages taxpayers to gamble with the characterization of what clearly is ordinary income, in a last-ditch, high-stakes reach for a tax break to which they think they are entitled. After all, their neighbors plunk money into the stock market, take the gamble, win, and are taxed at low rates on their winnings. They go for the lottery ticket, hit, and get taxed at higher rates on their winnings. They see the state's take on running a lottery being used to benefit a variety of useful social programs, whereas the stock market gains aren't so directed. It's no wonder that they are being stubborn, though foolish.

Here's my advice to these folks. Stop trying to find relief in the courts. It won't happen. The courts are bound by the House rules, namely, the tax code. Bring the action to the Congress. Lobby for a tax break for lottery winnings. Of course, doing so will bring into the public spotlight the foolishness of the special low tax rates, and the outcome might even be a reform that taxes all income at rates between the special low tax rates for capital gains and the much higher rates applicable to other income. Yes, there is a real risk of such an outcome. But what do the lottery winners have to lose at this point by switching from sure-loss, penalty-looming court battles to a legislative debate?

Well, their time and effort, that's what they'll lose. I guarantee that if such lobbying begins, I'll be on it. Happily, for it will illustrate that the negative reaction to tax breaks for lottery winners will easily become a "be consistent" challenge to the favoritism shown to day traders and other stock market and financial markets gamblers. Perhaps the stubbornness, or, better yet, persistence, of the gambler will be the spark that triggers reform of the tax law.

Perhaps I ought to start several pools. One on how many more taxpayers bring their "lottery winnings are capital gains" losing argument to litigation. Another on whether the issue reaches the Supreme Court. Another on whether Congress does anything. A few more of these and I can open a tax-themed casino in Las Vegas, where the house always wins. And yes, my casino will include The 1040 Lounge, the subchapter K pool, and the flow-through lounge. Room numbers would be matched to Code sections. The tax audit thrill ride and the generation-skipping nightclub will have a place. And with the tax law changing as often as it does, the property will never go stale.

Would it work? Perhaps. After all, there are people, they say, who will bet on anything. Even on the Jim Maule Taxes-Are-A-Sure-Bet Casino.

My pattern of posting regularly on Monday, Wednesday, and Friday mornings, and irregularly on other days, has become so predictable that when I miss a Monday, Wednesday, or Friday morning, people, or at least a few people, begin to worry. Don't. Don't worry unless several weeks go by without my having said anything. When academic year ends, my posting schedule becomes less predictable. My schedule changes, there are no classes to teach, and sometimes I travel and don't have the time to post, or access to the Internet.

What happened this morning? I was in my car, driving from Cambridge, Massachusetts, back home. I don't try to do the "cell phone and drive with one hand" thing, so there's no way I'm going to try to post to my blog while driving.

I was in Cambridge to attend my son's graduation from Harvard. He did well. Very well. Very, very well. But this is not the place to start trumpeting his accomplishments. I'll let him start his own blog. No, MiniMauledAgain won't work. He's a half-inch taller, though he claims it's an inch. I'm confident he'll figure out a name when he's ready. Needless to say, I'm thrilled for him. He worked hard, as I wish all students would. What's nice is he doesn't need to be encouraged to work hard. It comes naturally.

Having been away for almost three days, I have some things on which I need to get caught up. I plan to be back with some tax and other fun on Monday.

Having had the fun experience of hosting a blog carnival back in April, Blawg Review #53, that focused on taxes, I am delighted to report that the Carnival of Taxes has arrived. Organized and lauched by Kay Bell, a journalist who considers herself a tax geek, it promises to be as successful as her Don't Mess with Taxes blog, which has won some awards. I expect the Carnival of Taxes will do the same.

The first edition of Carnival of Taxes spotlights no fewer than 16 tax and tax-related blogs. Yes, MauledAgain was tagged, and I do intend to nominate future posts for inclusion. If you're one of my "have my own tax blog but like to read yours" readers, get in touch with Kay and send her material. Carnivals are supposed to be fun, so let's help her make this one live up to that goal.

Short is not a word one finds being used in connection with taxation, other than in phrases such as "short tempered" tossed about in mid-April each year or "comes up short" used to describe the comparison of actual tax legislation to what needs to be done. A running joke about a "short tax form" is the two-line parody, "1. What did you earn? 2. Send it in." As for tax legislation, the phrase "short tax legislation" seems oxymoronic. Until now.

After receiving an e-mail imploring me to lobby in favor of a specific estate tax reform bill, I decided to look first at the legislation that has reinvigorated the debate about the federal estate tax. Introduced early in the 109th Congress, and thus one of only 9 bills to have a one-digit number, H.R. 8 was passed by the House on April 13 of last year. It was then sent to the Senate and place on its calendar. Subsequently, a variety of other bills have been introduced, each a variation on retention of the estate tax with higher thresholds than applied before the 2001 legislation was enacted to trigger the gradual phase-out of the tax scheduled to be complete in 2010.

The text of H.R. 8 is as short as a tax bill can get:

109th CONGRESS

1st Session

H. R. 8

AN ACT
To make the repeal of the estate tax permanent.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Death Tax Repeal Permanency Act of 2005'.

SEC. 2. ESTATE TAX REPEAL MADE PERMANENT.

Section 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001 shall not apply to title V of such Act.

Of course, it makes no sense unless one examines section 901 of the referenced 2001 tax legislation and identifies title V of that act. It's easy. Section 901 is the "sunset" provision that terminates most of the 2001 changes and restores the tax law to what it was before the 2001 legislation took effect. Title V of the act is the provision that phases out the estate tax. H.R. 8, therefore, removes the estate tax repeal from the sunset provision that would restore the estate tax. In other words, it does what the Act title says. It makes the estate tax repeal permanent.

There are two major issues afflicting the estate tax conundrum. One is the question of whether it should be retained as it was in 2001, repealed, reduced in application, or otherwise modified. The other is the identification of some way to resolve the first issue without leaving taxpayers in suspense while they try to plan disposition of their property at death.

These issues have been discussed intensely by tax commentators during the past several decades. They have been reported, although usually in summary fashion, by the mainstream media. They are tackled by bloggers throughout the nation. Arguments in favor of one approach or another have been advanced, criticized, dissected, and rebutted. The debate is afflicted with misleading facts, appeals to emotion, predictions of dire consequences, and generous use of the words "fair," "selfish," "corrupt," "family," and other attention-getting buzz words.

Because the legislation, amendments to it, and substitutes have resurfaced in Congress and are scheduled for votes this week, it is time to revisit what I think is a very sensible way to resolve the divide between the advocates of total repeal and those who advocate retention of some sort of estate tax, however limited. In other words, it's time to consider, yet again, the repeal of the estate tax in exchange for the income taxation of unrealized appreciation in the decedent's property. Summarizing a my previous explanation of the proposal, the plan has these key elements:

1. Repeal the estate tax, for some of the reasons advocated by the advocates of repeal. The tax is complicated, it nurtures an industry dedicated to assisting wealthy taxpayers dance around the tax, it consequently is nowhere as efficient or effective as theory indicates, it encourages a variety of otherwise nonsensical transactions designed to reduce the impact of the tax, it imposes an additional layer of tax to the extent it is levied on property representing accumulation of after-tax income, and it requires the maintenance by the IRS of a cadre of professionals whose skills and efforts are consumed in countering the dance steps of those helping taxpayers do bizarre things with their property in efforts to avoid or reduce the tax.

2. In turn, include the unrealized appreciation in the decedent's property in gross income for the decedent's final taxable year. Death should not be a tool used to avoid income tax. The escape from income taxation offered by death contributes to the "lock-in" effect advanced by those who successfully advocated the special low tax rates applicable to capital gains and certain dividends, but not to wages, other gains, interest, and other income.

3. Permit taxpayers to index basis for the same reason other amounts in the tax law are indexed for inflation. The argument that inflationary gains ought not be subject to income tax because they do not represent genuine economic growth carries sufficient weight to support this component of the proposal. A person whose property increases in value by 1 percent when inflation is 1 percent is not a wealthier person and ought not be taxed on that increase.

4. Repeal the gift tax. It is, after all, nothing more than the flip side of the estate tax.

5. Include the unrealized gain in property gifted during lifetime by the decedent in the decedent's unrealized appreciation at death, unless the decedent elects to include that gain in gross income at the time of the gift. See, there still will be work for the estate planners. Actually, there still would be work without this election, and the election is not being proposed as a fop to the estate planning industry. Another option is giving the donee the option to include the value of the gift in gross income and removing the gains from the donor's tax base.

6. Provide a "capital gains deduction" for the decedent's final income tax return. The exact amount, whether two million dollars or five million dollars or some other amount, requires the crunching of numbers using the revenue estimating software that no one in government seems willing to share. It ought not be difficult, though, to calculate an amount that raises the revenue that the estate and gift tax system had been generating.

When I floated this plan last fall, it did not go without criticism. I addressed the questions and concerns in that earlier post, which I will not repeat. It is important, though, to restate several key points.

Determining deemed amount realized as of death is no more of an issue than is determining fair market value as of death. The proposal does not add any additional burden or administrative problem.

Determining indexed adjusted basis as of death is no more difficult that determining it a week before death if the decedent, not anticipating death, had chosen to sell the asset at that time. Even if it is easier for the decedent to determine basis than it is for the decedent's executor or heirs to do so, as I explained in this post, it's really a matter of who digs through the paper or digital files that the tax law requires the taxpayer to maintain. The basis determination objection to the taxation of unrealized appreciation is a feeble distraction.

To the extent liquidity is an issue, the estate tax payment deferral arrangements in current law can be adapted to income taxes arising from the decedent's final return. Here, too, a piece of existing law is maintained.

The debate over the estate tax, and the various proposals, including mine, plays out against a backdrop that is very disconcerting, and if it isn't, it ought to be. Most advocates of estate tax repeal refuse to accept the idea of taxing unrealized appreciation at death. They want a system that taxes investment income at low or zero income tax rates and to the extent accumulated, escapes estate taxation. Likewise, they want growth in investment assets to escape taxation. Whatever wonderful arguments can be paraded out in favor of exempting investment income from taxation, the upshot is that the burden of paying for government shifts to wage earners. That shift has already started. Considering the decline in real wages, the payment of low wages to undocumented workers, and the difficulty for wage earners to accumulate sufficient post-taxation discretionary income to move into the investor class, the ability of the nation to sustain itself by seeking all necessary revenue from wage earners is at risk. Many who reply that the solution is to cut government spending are among the first to object when a specific government expenditure is nominated for termination.

There's an undercurrent to the taxation debate that transcends taxation. It goes to the heart of whether this country will continue to have a middle-class, one of the significant indicia of genuine freedom and democracy, or whether it will atrophy into another of the "many ruled by a few" arrangements that have dominated human history. This question is even more provocative when one considers the ways in which the few have made their way into the elite. Though it is important that discussion of these issues be done in a manner that permits the entire citizenry to understand what is at stake, I have serious doubts that it will. The rhetoric accompanying the small estate tax repeal slice of the much larger question about what sort of nation we are, want to be, and will be, reinforces my doubts.