MauledAgain

It's the latest rage in reducing state budget deficits and fending off tax increases. Toll roads lead the parade of state assets that politicians propose to sell to private owners, so that the proceeds can be put to other uses. Even though the sales proceeds dwarf the annual revenue, is it a good idea or a bad one to put these assets into private hands?

As noted in this Philadelphia Inquirer article, no one is certain how much a toll road or turnpike is worth. That makes sense, considering that there isn't a ready market for these items. "I'll be back in a minute, folks, I'm going to run out an buy a parkway." Alarmingly, if some have their way, the idea of buying and selling toll roads on a private market won't seem so bizarre.

An alternative is leasing the toll road to a private concern. Where this has already been done, the leases are for such long periods that they are equivalent to sales.

In New Jersey, where discussion of leasing the toll roads to private enterprises or turning over operations to them is just that, concerned legislators, as reported in this story, have introduced legislation blocking such action. This is an issue that will get attention, and generate loud debate.

Advocates of the sale or lease approach claim that private enterprise could raise tolls without incurring political risks as state officials do when they propose toll increases. Though there is some truth to that contention, isn't the point only part of the story? What happens if the private company wants to raise tolls more often and more steeply? Yes, the sale or lease contract can contain restrictions, but how effective would they be? Private businesses don't operate roads other than to make money. Period.

Does the length of a lease matter? It surely does if it's not revocable. What happens if the private company fails to maintain the road properly? I'd like to quip that most private companies would be hard-pressed to come up short as did the Pennsylvania government last week when Interstates 78, 80, and 81 became ice-bound Arctic parking lots, but I've seen too many critical failures in private industry to have much confidence in it. The mentality that brings consumers the blue screen of death, rats partying in fast-food restaurants, foreign objects in restaurant food, and a long list of other slip-shod product and service deliveries easily can bring us toll roads that more resemble Philadelphia streets than the current decently maintained Pennsylvania Turnpike.

Selling or leasing the toll roads is a short-term fix that deceives the public. It infuses a bundle of money into the state budget, but it comes at the cost of losing the revenue. Wait, say the advocates, the state also loses the expenditures. Au contraire. If the private company slips up or goes under, the taxpayers still pay the bill for the repairs. And what happens when the road, if leased, is returned to the state at lease end, or earlier, in poor condition. Who pays?

The major concern is this. If the toll roads are such wonderful sources of income for private industry, why can't they be wonderful sources of income for state governments without selling or leasing them? Is it simply a matter of toll increases being easier for private industry than for government? Nonsense. The cost of using a toll road can be calculated, and the government (or, technically, turnpike or toll road authority) ought to be charging fair market value. Anything less is simply an unauthorized shift of government costs to the general taxpayer, who is funding items that should be funded by the toll road. In saying that, I'm accepting premise of the sale or lease advocates that it is permissible to use toll roads to generate a surplus for use in other budget areas. Personally, I disagree with that concept, however it is applied.

Rather than sell off public assets, why not impose tolls on other limited access roads that require government expenditure? Technology exists that reduces the cost of toll collection to a fraction of what it has been. The idea of mileage charges generally, regardless of the nature of the road, is an idea getting growing support. I dissected this concept in Tax Meets Technology on the Road back in November of 2004.

I am fully aware that private enterprises have bid for, and received, the right to build new highways and to charge tolls for their use. I've been on several, one outside Denver and several in southern California. Despite their locations, there wasn't much traffic on them. There's no surprise there, because the alternatives, though crowded are much cheaper, as in free. Except that free really isn't free, because the true cost of toll-free highways is passed along in other ways. Taxes are being collected through some other channel, including the federal income tax, and funneled into the freeways.

The question of whether to sell an income-producing asset is one that confronts people everyday. Lottery winners sometimes cash in the annuity for a lump-sum. Business owners running profitable undertakings decide to let go, and sell their income-producing enterprise for a lump-sum or a short series of payments. In most cases where an income-producing stream is sold for a lump-sum, the income stream is relatively predictable and stable. Because tolls are predictable and stable, the idea of selling or leasing toll roads attracts the wheeler-dealers. But is it a good idea? What makes it different? What makes it different is that it's a matter of public trust. Once the toll roads, and other highways, enter the private market place, how long until Bill Gates or Walmart ends up owing them? Should citizens be swayed by the promises of quick riches? Will they?

The answer might lie in the story of the fellow who killed the golden goose. I wonder if he'd do it again if he had the chance. I wonder if a public that might decide to support sale of the toll roads would do it again had it the choice. Sometimes the child's do-over isn't very realistic. There's an issue here that needs a wide-open, highly publicized debate. Let's have it.

Fortunately, most of the experiences I've had teaching law have been uplifting, rewarding, constructive, educational, and affirmative. Sometimes, though, shadows pass over the pedagogical efforts. Despite more than two decades of teaching law, in both J.D. and LL.M. programs, I continue to be puzzled by the disconnect that occasionally appears between a student's presence in one of my courses and the student's involvement in the course.

At the end of every semester, in both the J.D. and LL.M. courses, the school administers course evaluations. Students are asked to provide numerical responses to a series of questions about the course, the instructor, the materials, and several other items. They also are invited to provide comments. The evaluations for each program differ, even though both would be improved if questions asked solely on one were asked on both. Even the numerical range differs, with the J.D. evaluation using a 1 to 4 scale and the Graduate Tax Program evaluation using a 1 to 5 scale.

Some faculty claim not to look at or read the evaluations. I do. I make it a point to read each comment. Over the years, there have been helpful suggestions that I incorporated into my teaching. Every year, there are encouraging comments. Every year, there are not so encouraging comments. And sometimes, there are the comments that make me wonder.

It is not unusual to find students in the same course providing totally different opinions. One of my colleagues photocopied and framed two comments from students in a course that he taught some years ago. One comment pretty much described him as a magnificent teacher, the best that the student had ever encountered. The other urged the immediate dismissal of a professor that the student thought was the most horrific instructor ever experienced. Early this month, as I read through the evaluations for one of my fall semester courses, I discovered a similar dichotomy. One student described me as the best of the professors with whom he or she had taken a law course. Another student requested the administration to remove me immediately from the faculty. An examination of the numerical responses indicated that the latter student was pretty much alone in his or her response.

How can two students in the same course at the same time have such totally different perspectives? One explanation is simply a matter of personality preference. Students who dislike my law-practice-based rigorous approach and teaching style often develop an intense dislike that manifests itself on evaluations. Many students who dislike the approach change their minds as the semester progresses, noting the beneficial impact on their educational development of the assignments I give them to do, but others don't figure it out until long after graduation, when they send me the classic "I thought you were a jerk but now that I've been in practice I understand what you were trying to do" message.

Another explanation, though, for the starkly opposite opinions is alarming. Understanding it is enhanced by understanding how negative student comments fall into three categories.

The first category includes a variety of gripes and complaints that are to be expected and that usually manifest themselves in numerical scores one or two steps below the highest possible choice. Students express dismay at the volume of work and at the speed with which some topics are covered. Some detest the idea of graded assignments administered during the semester, having become comfortably and dangerously acclimated to the "all at the end one shot" examination testing process that infects so much of higher education and law school. Some students don't like the course book. In any group of students of significant numbers, it isn't surprising to find a few who don't like the course or how it is taught but who are enrolled because one or another reason persuades them that they need to be in the course even though they'd prefer to be elsewhere. For the most part, these expressions of dissatisfaction are debatable questions, on which people who have not yet lived in the practice world honestly can hold opinions different from those of us who have.

The second category of comments are troublesome but understandable. When students decry the reading load, which is much less than what law school reading loads were 10, 20, or 30 years ago, they are making judgments based on their unfamiliarity with courses in which significant amounts of technical material must be absorbed. Some students go so far as to explain that they have other, more important things to do. By the time students reach my courses, I'd hope they'd been disabused of the notion that legal studies should be tenth or eleventh on their list of priorities. A common gripe is the allegation that my teaching takes them on tangents or includes irrelevant comments, which suggests to me that these students, despite having been through at least one year of law school or five Graduate Tax courses, have not yet grasped the concept of reasoning by analogy. Too many students, especially in the Graduate Tax Program, continue to demand "just the rules and answers" and resist acquisition or development of the analytical process essential to learning law, tax, and most other subjects. In fairness, for students who have journeyed through an array of non-demanding courses, it's not their fault that they recoil when reality confronts them in course replicating the demands of practice. I'm told that many students have the same adjustment problems when they start out in a clinical course. Nonetheless, I do think someone with so many other things to do that they cannot invest the 70 hours a week that law school requires of the average student, or the 6 to 8 hours a week that a Graduate Tax Program course demands, should reconsider and perhaps postpone their law school or Graduate Tax enrollment. Nor do I have much sympathy for students who don't want to do as much work as is demanded by a dedication to future practice success in meeting client needs.

The third category of comments are the frightening ones. What should one think of a student who claims that I am a bad teacher because there is no syllabus for the course? Yes, of course there is a syllabus. What should one think of a student who claims that postings to the course web page are secretive? I can't even begin to figure out that claim. All students have access and what gets posted can be seen by all. I suspect the complaint is a feeble articulation of someone's annoyance at having to make the effort to visit the course web page, even though frequent visits to course web pages is a requirement not of my courses but of both academic programs. Every now and then a student writes that I glossed over some topics because I must not know that area of the law. I wonder how those students' classmates would have reacted to a decision to squeeze even more coverage into an already packed course. Oh, they'd probably write their own negative commentary. By the way, it ought not be a surprise that I surely know the areas of the law that I treat in summary fashion. On what basis a student could justify the claim of inadequate professorial knowledge continues to bewilder me. Every so often, students list the bad experiences they've had being called on in class, even though I don't call on students in class. It's these counterfactual allegations and premises that concern me. Do people who have distorted perceptions of the facts make good lawyers and tax practitioners?

It is accepted among many of my colleagues that students use course evaluations to vent their frustrations, without taking the time to engage in careful analysis of the situation. Those of my colleagues who choose to ignore course evaluations figure that they're not going to learn much from student rants. I disagree. Not only do I sometimes acquire useful and constructive commentary that improves the courses, I also learn some things about the dark shadows that trouble some students. For someone to write negative comments based on factual impossibilities suggests that there is a serious problem, and that revelation matters. It is one of several factors that influence my proposals and my support for others' proposals to faculty and administration that attention be paid to more than mere intellectual endeavors of students. I'm glad to report that my law school makes all sorts of efforts to reach out to and help students who are struggling. I'm not glad to report that some students who could use assistance aren't identified and don't try to deal with the frustration, anger, and negativity that afflicts them. I suppose I should mention that the course evaluations are anonymous, so these indications of problems don't provide opportunities to offer help.

These concerns don't arise from the silly comments. When I read commentary on my admitted inability to choose suits and ties that impress students, I laugh and wonder whether a different tie would make me or them more adept at working through the law. Students notice things that aren't relevant to the course, so I simply find more incentive to persuade them to focus more of their brain's processing power on the matter at hand rather than my wardrobe, or, for that matter, the attributes of their classmates. Some things never change. When I was in my second year, sitting in Family Law, someone passed me a note to relay to another student. It was open, and said, "Check out the ring on NNN's finger." Hopefully, nothing important was missed while this distraction took hold.

Another source of consternation is provided by the responses to a question on the Graduate Tax Program course evaluations. It's a question that does not appear, but should be provided, on the J.D. evaluations. We ask students how many hours they invest each week in the course. The common expectation is that at least 6 to 8 hours are required if a student properly prepares for class and does assimilation after class. Of the students who filled out evaluations in last semester's Partnership Taxation course, only 20 percent put in as many as 8 hours. Almost a quarter claimed they put in one to two hours. These are typical responses, and motivated my decision to elaborate, during the first evening of class, my expectations of time investment and the status of the course as one in a graduate program offered to tax professionals earning a post-doctoral degree. Some students translate that early warning as arrogance, disrespect, and unprofessionality. Sometimes I almost convince myself that at least some Graduate Tax students view the program as an extended, expensive CLE or CPE session, one that is tantamount to the purchase of a degree. "You talk, I'll listen and write, and then you ask me to repeat it, giving me a high grade if I recycle enough data." Sorry, that's not what it's about. I guess I do aggravate students who don't like my bubble bursting messages.

The appropriate administrators do read the course evaluations. They're quite adept at separating negative comments raising red flags from the negative ones that are counterfactual or expressions of frustration and anger. There have been times when well-written, corroborated student comments have triggered action by a dean or director. The senseless ones are discounted. The only annoyance is that the low scores attached to the evaluations containing ludicrous comments are not removed from the numerical ratings. Truthfully, it's more than an annoyance, because some of those numerical ratings are used for other purposes, and so the fear of low or mediocre ratings inspires some teachers to placate students, in what turns out to be, for the students, short-term delight and long-term catastrophe.

If at this point you wonder why I continue to teach, the answer is that most of my students do work diligently, do try, do seek dialogue when they are frustrated so that they can make adjustments, and eventually do figure out by the end of the semester what I'm trying to encourage them to do. The messages from graduates, both those who enjoyed the courses and those who put aside their dislike and have their epiphanies after a year or two in the practice world, are wonderful. Ultimately, the ones who get it, whether sooner or later, bring to their clients the excellent legal advice and guidance that those clients deserve. The others? I shudder to think.

Over at the Money Law blog, interesting comments are being shared in A great debate at WSJ's Law Blog. The discussion began with a Wall Street Journal op-ed in which Cam Stracher ponders how a paralegal arrested for practicing law without a license had succeeded in doing so for as long as he did without making a mess of things. Stracher, who teaches at New York Law School, observed that there is no reason to conclude the paralegal would have done a better job had he attended law school.

Yes, once again, not surprisingly, legal education is being criticized. Certainly I have contributed more than a few barbs, in pieces such as "So What's the Problem with the Problem Method?", "Bar Exam Pass Rates, Legal Education, and a Plea for More Law School Clinics", "Beer, Softball, 4-Day Weekends: Is This Any Way to Learn Law?", "The Law School Curriculum: Ready for a Change?", "So What Do You Buy When You Pay Tuition?", and "Law Schools: Preparing Students for Practice?". It would appear that there's not much to be added. But appearances can be deceiving.

Despite being convinced of the need for serious reform of the legal academy, for the reasons I share in "Want to Be a Lawyer? Just Say That You Are!",I have not been persuaded that law school and the bar examination should be tossed aside. The proposal to open up alternatives to law school reflected a response to the growing emphasis at most law schools on faculty scholarship, a trend that fuels my commitment to persuade law schools to hire those difficult-to-find faculty who can produce useful publications while bringing law practice into the classroom.

What got my attention was the response [subscription site] to Stacher's op-ed piece that was penned by two Boston University law professors, Tamar Frankel and Wendy J. Gordon. Objecting to practice-oriented legal education, they argue, "Legal education may need revamping, especially as our economy and technology develop, but going back to an 18th century apprenticeship model is not the solution. We teach future professionals, not tradesmen." After correctly pointing out that law schools do offer clinical courses, trial practice courses, and writing courses, Frankel and Gordon claim, "But the best practice will come after law school, with maturity, with watching the senior partners and with learning from mentors."

And that, folks, is the scary part. What Frankel and Gordon are suggesting is a continuation of the decades-long habit that sees law school graduates getting paid to observe, to do research applying first-year legal research skills, to do tasks that paralegal can handle, and even to do secretarial work. That arrangement, made possible by charging clients for the time invested by what can best be called trainees, no longer works well and is breaking down even as some in the legal academy hinge their arguments on it. Why is it breaking down? Clients have become smart. They do not want to pay the apprentice to watch and observe. Similar fee pressures make it more difficult for established associated and long-time partners to invest time in mentoring. Law firms cannot charge clients for the hours of conversation between mentor and trainee.

Yes, it is true that starting salaries at the elite law firms are sky-rocketing. The elite law firms get to hire the best graduates from the best law schools. These are students who have the ability to extract from their legal education and from their experience every bit of useful understanding that they can squeeze from the combination of what the faculty offer and what these usually self-starting individuals dig up for themselves. To the chagrin of my best students, I tell them that I don't try to teach the A students, because they're quite capable of teaching themselves. Others have more need of my guidance.

The pressure on those graduates lucky or unlucky enough, depending on one's perspective, to receive and accept an offer from a top-line high-paying law firm is enormous. If the salary is $165,000, these new employees must generate something on the order of $400,000 or more in legal fees. Is the work that they do truly worth $200 or more per hour? The clients will let us know.

But what happens to the other law school graduates? Some end up as judicial clerks, where they do have a magnificent opportunity to be mentored. Speaking from experience, nothing can substitute for a year or two (or two and a half in my case) of one-on-one examination of the law and legal analysis. But most law graduates do not have the opportunity to bridge the gap between law school and law practice in this manner. Many are tossed into law offices overloaded with work, public defenders' offices and prosecutors' departments operating at full steam almost twenty-four seven. They are, in many ways, dropped into the deep end of the pool and told to swim, no lifeguard on duty, thank you very much. Somehow the idea that the law practice world will step in and make up for the deficiencies of legal education is a bit too much to accept as appropriate or even honest.

Defenders of what legal education has become and is becoming insist that law school is not and should not be "trade school," much in the manner argued by Frankel and Gordon. Of course law school is not trade school. It is not a place where students, other than those in clinical courses, learn which document is filed with a particular county office, or as I heard during my student days, "how to find your way to the court house." That's not what advocates of practice-focused legal education want.

Law practice involves problem solving and problem prevention, on behalf of clients. To that end all legal education should be pointed. Problem solving and problem prevention requires problem recognition, and there is a place in law school for the emphasis that currently is placed on issue spotting. Problem solving often requires creative thinking or development of new public policy, and there is a place in law school for a bit of the public policy analysis and legal philosophy focus that is beginning to swamp the curriculum. When upperclass students tell me that I'm the only member of the faculty that reminds them to think about the client and to try to think as does the client before fashioning a response to the client, I shudder. Ought not an understanding of client psychology have a place in helping students learn what considerations shape the legal analysis they share with clients and how they package that analysis?

Teaching law in the abstract is something that is far too prevalent in America's law schools. Teaching law in the abstract fails to open the eyes of law students to the practical realities that shape the law when theory meets practice. The common defense, exemplified by Frankel and Gordon, that law schools offer clinical courses and trial practice experiences, is a canard. For many law faculty, clinics are a necessary distraction, and remnants of what was at one time open hostility to clinics and those teaching them still hover over many schools. Trial practice courses are fine, but most law graduates don't litigate cases. Certainly few, if any, litigate as soon as they enter practice, and many lawyers never enter a courtroom as a litigator during their entire professional careers.

Law schools do not need more courses. Goodness, the array of courses in the law school curriculum is overwhelming. During the past decade, all sorts of courses reflecting the scholarly interests of law faculty have been added because they are interesting, provocative, and often necessary to attract the "scholar who will assist in out-Harvarding Harvard in the U.S. News marathon" game.

What's needed is a change in the structure of the traditional doctrinal courses. It's not enough to learn that the law requires one thing or another. It's important to consider whether the parties will act in accordance with it, to understand what the options are when the theoretically correct legal answer does not match the actions of the client or some other person, and to appreciate how one's approach to the matter can influence how the client deals with the matter. It is more important to understand how the law came to be the way it is than it is to advocate some law reform that has little if any chance of seeing the light of day in a committee let alone a court or legislature. Professional responsibility issues need to be incorporated into substantive courses and not stashed in the corner in a separate course, because in practice those issues do not arise in a vacuum. Some of my students bristle when I raise professional responsibility questions in my tax and decedents' courses, because "that stuff is in another course." Well, it ought not be. The same problem exists with respect to digital technology. Most law faculty continue to omit discussion of cutting edge legal issues arising from the existence of legal technology, perhaps because they don't understand it and don't have the time to learn about it because they're under pressure to crank out ten more articles for tenure. It's only in my decedents' course, my students tell me, that they are challenged to consider the legal issues arising from the use of digital signatures on wills, revocation of digital documents, and the issues arising from the disposition of the decedents' email and email accounts. To put it bluntly, law faculty need to prepare students for practice in the twenty-first century.

There are an assortment of comments in the Money Law Blog posting on the Frankel and Gordon reaction to the Stracher op-ed. Take a look. You'll even find a short one from me:

It has to do with truth in advertising. There's something wrong with schools of law ending up as schools of (legal) philosophy, advanced political science and similar elements of the S.J.D. degree. My determination to speak out against the ongoing shift in legal education was triggered by a colleague's comment 15 years ago, "We aren't here to train lawyers, we're here to teach legal philosophers." Sorry, but legal philosophers is far, far down the list of what this nation needs from its educational system.

As much as I like my comment, I will also quote Bill Henderson, because he says it so elegantly: "It is time the legal academy began to focus on the problems and trends are affecting the legal profession today rather than an exclusive focus on the legal issues or scholarly debates that engage law faculty. If we do this, I am confident how and what we teach would change."

Law schools are on notice. It's time they turned their attention from defending the status quo to making a transformation that repairs the connection between legal education and law practice. It's time to reject the monopoly of theory in the same manner that monopoly of practice - the so-called trade school approach - has been consistently rejected. It's time for legal education to be rescued by the lawyers.

Philadelphia's mayor, John Street, made a comment about the recently enacted ban on trans fat that goes into effect in Philadelphia later this year. He noted that he preferred not to pay for the consequences of other people's bad health decisions. I assume he was referring to the higher medical insurance premiums and other medical costs that medical care consumers face because of illness and disease caused by the ingestion of trans fats.

My attempts to find a link to Street's comments have been fruitless. Ouch. Even the web site of the radio station on which I heard Street speak does not have his comments. At least, not that could find after hunting around. Ouch again. The closest I could get was this report.

Street's comments brought several thoughts into my mind. I asked myself why a ban rather than a tax. And then I asked myself why stop at trans fats.

The principal difference between a ban and a tax is that, in theory, a taxed item is available to those who are able and willing to pay whereas a banned item isn't available, period. Of course, the theory ignores smuggling, black markets, and other avenues to avoiding bans. The disadvantage of a tax is that those unable to pay either do without the item or forego something else, presumably something more important, in order to obtain the desired item. If something is horrifically bad, such that no one should have it, then a ban is the ideal approach. Bubonic plague cultures should be banned, not simply taxed.

The tax approach is used for a variety of items that some people think should be banned. Tobacco products probably tops the list. Tobacco products are one of the few exceptions to the adage that one should partake of life in moderation, neither over-indulging or totally depriving one's self of a substance. That ties in with the adage that a well-balanced meal presents at least three food colors on the plate, but I digress.

Why are tobacco products taxed rather than banned? The tax on tobacco products arguably exists for two purposes. One is to discourage use. The other is to generate funds that, in theory, are or can be applied to defray the cost to society of tobacco use. Attempts to ban tobacco products would cause an uproar. Even attempts to ban the use of tobacco products in public have triggered spirited debates. Almost a year ago, in Proposed Philadelphia Tax Break to Manipulate Behavior, I commented on an interesting twist on the tax angle, namely, providing tax breaks for perceived good behavior rather than taxing undesirable behavior. The reason for the creative suggestion was the attempt to find a compromise between those trying to ban tobacco use in public places and those holding steadfast to their claimed right to smoke. People complain about taxes on tobacco and other items, but most end up paying them because they are so intent on acquiring the item in question.

Yet no matter how one slices it (yes, ouch again), the underlying objection to taxation or prohibition of harmful items and activities is that government has no right to control individuals' lives. Some who take this position accept the idea that taxing or prohibiting items or activities that are harmful to others is within the realm of appropriate governmental action because governments have a duty to protect its citizens from harm. Logically, this perspective would support a prohibition on smoking because second-hand smoke can kill, while at best it would favor a tax on trans fats because there is no indication that one person's ingestion of trans fat causes coronary artery disease in someone else.

Perhaps John Street is right, that there is a harm in anyone's use of trans fats because the ultimate consequence is a burden on the health care system that increases costs to others. But that reasoning leads to the next question. All sorts of items and activities impose additional costs on others. People who refuse to wear motorcycle helmets incur higher medical care costs when they are in accidents than do those who wear motorcycle helmets. Should riding motorcycles without helmets be banned? Or taxed? Or should a society that claims to be compassionate simply leave helmetless injured motorcycle riders to their own resources? Again, those with more wealth would have more choices available to them.

Should the concept of taxing harmful items and activities be extended to taxation of non-activity? One cannot ban failure to exercise, for doing so would raise arguments that the government was forcing people to exert themselves, something that many think a government does not have the right to do. Interestingly, governments do require people to shovel snow from sidewalks and to keep properties in good repair, but they don't require that it be done by a specific individual. Again, those with money can pay others to do the work, while those without adequate financial resources end up doing it themselves or facing a tax that is called a fine. This analysis, however, isn't all that helpful when it is applied to something like physical exercise. How we wish we could pay someone else to do our push-ups for us. Fat chance that would do us any good. OK, a big OUCH for that one. Sorry. As I tell my students, I cannot study for them or do the intellectual work they need to do anymore than I can burn calories for them by riding a bicycle. Failure to exercise is no less a problem than trans fats. Should governments ban failure to exercise? Is that possible? Perhaps, though, the advocates of taxes on cigarettes would argue for a tax on failure to exercise. Interesting idea, but probably unworkable and likely to cause a furor that would dwarf that triggered by the public smoking ban.

Some health insurance companies provide premium discounts for insureds who regularly exercise. However one wants to characterize the higher premiums paid by those who don't exercise enough, it is not a tax. It isn't imposed by a government. So why not rely on health insurance companies to provide discounts to those who consume little or no trans fat or to impose surcharges on those who take in too much? The problem is that most of us don't know how much trans fat we eat, most of us cannot figure it out, and too many of us would not report accurately what we were doing. Even those who meticulously read food labels are stymied, in part because the labels aren't always correct or complete, and in part because only the few recluses among us avoid eating food offered by others or served by restaurants. If we rejected all restaurant offerings that included trans fats, we'd be left with a much shorter menu from which to pick.

A tax on trans fats provides another practical challenge. Restaurants and food manufacturers trying to maximize market would need to offer two versions of their menu items or food products. In the case of restaurants, the logistics of preparing and serving two versions of the same item for two different prices, unlike the cost-free "hold the onions" approach, would make eating out too much like doing a tax return. Talk about indigestion.

The libertarian in me wants to say, "Hey, let people do what they want, just don't blow smoke in my face, and if you become ill or die, too bad for you." The practical realist in me responds, "Sure, it may be easy for me to avoid tobacco use but how do I know what's in the food I buy and the food I order at restaurants? Can I protect myself from unhealthy substances without the assistance of a government?" What it comes down to is this: if I'm willing to let the government ban the use of arsenic in food, why should I be uncomfortable with a ban on trans fats? Could it be that I cannot square that with the absence of a ban on tobacco product use?

I wonder if people even will notice that trans fats have disappeared from foods sold in Philadelphia restaurants, other than the asserted increase in price that is required by the use of replacement ingredients. I wonder if people will flock to restaurants in towns that welcome the use of trans fats because the food tastes better. I wonder if medical studies five or ten years from now will show measurable decreases in the rates of disease and death attributable to the ingestion of trans fats.

Of course, my entire philosophy could change if someone proposed a ban on chocolate. As best I can determine, the fat in chocolate is not trans fat.

About a week ago, Senator Joe Lieberman proposed that a special tax should be enacted to pay for the war against terrorism. Lieberman made several arguments. First, he noted that it would make it less likely that military and security costs would continue to hamper domestic spending. Second, he commented that aside from the military and a few civilians involved in the campaigns, no one else is being asked to make sacrifices. Third, he explained that taxpayers would know the purposes to which the tax proceeds would be put.

Lieberman's suggestion is not new. In April 2004, Allan Sloane of Newsweek proposed Six Fixes for the Tax Mess, which I discussed in Fixing the Tax Mess: Reaction to a Journalist's Proposals. Of relevance to Lieberman's idea is this portion of the post:

5. A War Surcharge

Mr. Sloane suggests a 10% temporary war tax to pay for the war on terror, rather than financing it with borrowings from foreign central banks. Families with relatives stationed in Iraq and Afghanistan would be exempt. He points out that "Civilians are supposed to sacrifice during a war. ... Instead of sacrificing, civilians are partying with tax cuts."

An interesting idea. Close to a user fee, which I've always supported. Two quibbles: some people who have received tax cuts aren't partying, but he's right: many people are living their lives as though there is no war. There is. The other quibble is that I'd extend the exemption to all military (definitions already in the Code) because Iraq and Afghanistan are not the only places where the military is fighting the war on terror.

Fifteen months later, I revisited the topic, in Taxes and Sustaining a Civilized Society, where I opined

The nation allegedly is at war. We are allegedly at war with terrorism, or terrorists, or terrorist-sponsoring states, or insurgents, or well, bad people, I suppose. Whether or not one supports none, one, or all of the various military actions undertaken in connection with this war, it is inconceivable to me how one can disagree with the notion that if there is a war the war must be funded because wars cost money. Would opposition to specific military campaigns been stronger, or developed sooner, had taxes been increased to fund the campaign, as good fiscal management demands? Maybe. My guess is that those who supported a campaign, or at least most of them, would have acquiesced, reluctantly or otherwise, to a tax increase. The failure to seek a tax increase, or at least to put the brakes on the tax cutting, probably reflected a policy of trying to make everyone happy even though the long-term cost is far higher than would be the cost of an immediate, and thus smaller, tax increase. I've been told, and I've read, that when the nation went to war in 1941, and even as it was preparing to do so in 1939 and 1940, taxes were increased. I don't know if there was much griping, or how extensive it was, but people knew that war means war. It requires sacrifice. My parents have described what life was like under a rationing program for a long list of items. The nation allegedly is at war. A few individuals and their families, constituting a very tiny percentage of the population, have made and are making sacrifices. The rest of us, it seems, are living lives that somehow don't seem consistent with what life is like during war. Perhaps I am wrong, but for me, war is like pregnancy. Either a woman is pregnant or she isn't. Women cannot be partially pregnant or have limited pregnancies. Concepts of limited war or partial war get used not only to create the sorts of conditions that preclude victory, as happened in Vietnam and Korea and as is beginning to happen in Iraq, but also to deflect the effects of war-waging decisions so that war seems, somehow, more palatable. War, at times, unfortunately, is necessary. War, though, should never be palatable.

Last May, in A Memorial Day Essay on War and Taxation, I made so many points that I'm going to quote myself in its entirety:

Thinking about Memorial Day has me thinking about war, helped along by a steady dose of war movies on some of the cable channels this weekend. More specifically, after seeing a few scenes in which decision makers debate the allocation of scarce resources (e.g., aircraft carriers or battleships?), and knowing the bits and pieces I know about the impact of war on taxation, I began to think about the relationship between war and taxation.

Wars consume resources. Wars divert resources. In other words, wars cost money. Wars destroy lives. A life lost is immeasurable, yet economists, lawyers, and juries put price tags on lives, however lost. It is not good for an economy, or for taxation, for lives to end prematurely.

Wars often are fought about resources. Oh, supposedly the Greeks and Trojans had at it because of a woman's beauty, but I suppose in their culture a woman's beauty (or perhaps a woman) was a resource. Here and there wars are fought because of pride. But most wars are about resources. England and Spain, in the sixteenth and seventeenth century, fought over gold and other valuables from the Western Hemisphere. Wars have been fought over fishing rights, water, and trade routes. In the 1930s, Germany wanted "living space," Japan wanted oil and rubber, and the world ended up with war. The Revolutionary War was fought over control of resources and trafficking in resources, some of it manifesting itself in complaints about taxation. The many wars fought over religion almost always disguise a battle for resources, especially when the souls of people are considered a resource, something that a few folks think they can own and control.

The irony, and stupidity, of war is that it often destroys the very resource over which it is being fought. How many barrels of oil, pounds of rubber, or piles of gold have ended up burned, ruined, or at the bottom of the ocean because of war? How many tax revenue dollars end up in materiel that is destroyed, deliberately exploded, or consigned to the scrap heap?

War, though stupid, tragic, and an indictment of a species that dares call itself "sapiens sapiens," unfortunately is necessary when there is no other recourse and the cost of no war, particularly in lives, is greater. War is the consequence of decisions, decisions that require the utmost care and consideration. One of the most important questions, aside from "should it be done?" and "can it be done?" is "how will it be done?" All three questions are tangled together, for if it cannot or ought not be done, there's no point in asking how, yet seeking the answer to "how will it be done?" might answer the question of "can it be done?" and "should it be done?"

War is such a collective expression of the ultimate essence of life and death that it ought not be undertaken half-heartedly, experimentally, impetuously, or foolishly. War requires commitment, and without it there ought not be war. War requires resources, and without a commitment to expend those resources, it ought not be undertaken.

The last half-century has brought a concept of "limited war," a buzz phrase that I think is more about the commitment side than the implementation side. True, in a world with nuclear weapons, a war fought without their use is in some way "limited," but I doubt that the victims of every other sort of weapon, including those that cause entire cities to burn, find much comfort in the notion of "limited" war. The concept of "limited war" is like the concept of "limited pregnancy," whatever that means.

The resource commitment problem with "limited war" is significant. The notion that a country can fight a war without general sacrifice of resources is mind-boggling. Our nation is at war. War has been declared on our nation, not by some relatively harmless but disturbed individual, but by an organization and movement that presents a genuine threat while changing the rules of war. Yet too many of us continue to think that war is something going on somewhere else, fought by others, and beamed into our homes by all sorts of spontaneous communications technology. But for that technology, the funerals of fallen heroes, and the fact today is a day we are reminded to stop and meditate on these matters, one might not know that a war, a global war, is underway. Televisions can be turned off, few visit the maimed veterans undergoing treatment at military hospitals here and abroad, and life pretty much goes on as it otherwise would.

I wasn't around during the last full-fledged, unlimited global conflict. Yet I've listened to as many tales as were shared with me by those alive at the time as I could find, and I've read and watched a lot. So I've heard and read about rationing, double shifts, postponed plans, substituted products, and sacrifice. Every tax practitioner, and every citizen, should understand that during World War Two income tax rates skyrocketed, wage withholding was introduced, and the entire revenue-expenditure structure was altered. War hung as a cloud over every life, and over every dollar. Is that good? I think so. Why? Because war is so serious and so terminal a course of action that it should not be permitted to recede to the background.

Yet the current global war has not been managed in the same manner. Politicians have chosen to fight without increasing revenue, imposing rationing, or deferring projects and activities. In their defense, they argue that none of these things are necessary, that a nation can have its guns without giving up its butter. I disagree, and I happen to think that politicians are reluctant to do what needs to be done because they are more concerned about maintaining their position in office than in making the tough decisions that war requires. So our national leaders have chosen to put the cost of the current war on our children and grandchildren. Those who decry the huge deficits, triggered in part by war and in part by the almost insane concept of decreasing tax revenues (mostly for the wealthy) during wartime, pretty much focus on the economic impact. They ask if, or suggest that, our grandchildren will be facing income tax rates of 80 percent in order to reduce an unmanageable deficit. I think it will be worse. I think our children and their children and grandchildren will become subservient to our nation's creditors. The sovereignty of the United States of America is far from guaranteed, and is at risk. Were these considerations discussed when those in power decided that war can be done on the cheap?

War cannot be done on the cheap. War is not free. War ought not be purchased on a credit card. War is a national commitment. Hiding the true cost of war in order to influence a nation's willingness to engage in war is wrong. Ultimately, the price to be paid will be dangerously high.

Let us not forget those who have paid the price, with their lives. Some have died. Others have been maimed and their lives will not be what they once were or what they would have been. Many have been psychologically scarred. Some are disillusioned. Bitterness, anger, and resentment percolate among those who fight and those who continue with their lives as though there were no war. It is tragic that some of the deaths and injuries have occurred because of insufficient resources for the appropriate armor and equipment. War should not be managed by the corporate cost-cutter types.

To all those who have served, and who serve, I and every other citizen owe thanks. Here it is. Thank you. Now let us go and do what needs to be done to put meaning into those words. Let us make a collective investment in our appreciation, and provide the full revenue support that is required for whatever it is the nation decides to do.

So it is not surprising to me, or to anyone who understands my taxation philosophy, that I encourage the Congress to consider most seriously the Senator's suggestion.

My revenue-raising preference is for user fees. I understand that in some instances they aren't feasible, or impose too much of a financial burden on individuals who are unable to pay. Yet I like the psychological impact of user fees because it compels the payor to associate the cost with the alleged or actual benefit. It increases the chances of the payor's involvement in genuine participatory democracy if the payor has issues with the user fee. The user fee is much easier to understand, and thus less likely to provide opportunities for politically ground subterfuge.

Even if Lieberman's proposal isn't crafted as a user fee, it provides the opportunity for a similar transparency in decision making. By putting the cost of war and defense into a revenue-raising spotlight, the proposal provides an opportunity to debate benefits and burdens. The reality that war is not free can be brought home to more than just the brave few who return maimed or the relatives and friends of the heroes and heroines who have died.

There is one aspect of the Senator's idea that troubles me. I don't think that all wars and defense activities should be lumped together. Though there are some who make no distinctions among them, whether in support or opposition, many, perhaps most, Americans hold positions that require the recognition of critical distinctions among the campaigns in which the nation's military currently are serving. Putting a "war and defense" tax as an "all or nothing" proposition could be counterproductive. I am sure many join me in wanting to see the cost of transportation security separately stated and not lumped in with the cost of the foray into Iraq, the cost of border security separated from the cost of domestic intelligence efforts, the cost of public facility protection identified separately from the cost of tracking terrorists in Afghanistan, and the cost of training and equipping first responders listed separately from the cost of tracking overseas banking transactions. Support for a tax funding one of those endeavors might be very different from that forthcoming for another of those engagements.

By proposing a war and security tax, or perhaps a series of war and security taxes, Lieberman brings a group of critical issues to the table in a manner that pushes the discussion past the rhetoric and into a reality zone. As I've written, war should not be fought on a credit card with the costs left to future generations. With the tax proposal putting the economic costs into full focus, the wisdom and folly of the nation's many current military engagements can be recognized, and decision making can proceed sensibly and rationally rather than emotionally.

Several weeks ago Joel Majka, a regular reader, sent me a link to an article about the tax consequences of home makeovers. Joel commented that he recalled having seen a post on MauledAgain about the topic. Indeed he did. He may have been referring to Extreme Makeover, Extreme Tax, to Extreme Makeover, Extreme Tax, to Tax Consequences of Home Makeovers: Does the IRS Read MauledAgain?, to two of them, or to all three of them.

The topic resurfaced recently when a tax-teaching colleague at another school inquired about a comment in a newspaper article he had read. The article referred to contestants being told that there was a tax law provision that let them receive the makeover free of income taxes. I responded that the reference probably was to section 280A(g). I neglected, until tonight, to point out the IRS letter on which I commented in Tax Consequences of Home Makeovers: Does the IRS Read MauledAgain?. In that letter, the IRS took the position I had described a year earlier. No matter, the debate over the appropriate income tax treatment continues.

The article referenced by Joel, Dream home brings a big tax hike, primarily addresses the state and local real property tax quandary in which these contest winners find themselves. Their new or remodeled homes are worth much more than their old homes. So their property tax bills soar. The article discussed attempts to have legislation enacted that specifically exempts these specific prize winners from the property tax increases. In one instance, the exemption would apply only if the prize winner or someone in the family living in the home was disabled.

A spokesperson for one producer explained that "contestants are made well aware of the potential tax increase and sign a contract before agreeing to the makeover." The production company, according to the article, "was widely criticized, however, for putting contestants in a precarious situation with the IRS."

Here's my prediction. As increasing numbers of taxpayers receive home makeovers, there will be more of these tax questions. The Dream home brings a big tax hikearticle explains that from "coast to coast" reports are coming in about people having tax and financial difficulties after winning the home makeovers. This trend will continue. These taxpayers will want property tax relief. They will face IRS audits. Who is going to pay for the costs of these proceedings? The answer is obvious. Because America likes reality shows, create a new one. Call it "IRS AUDIT!" and let television production companies select among previous home makeover and other television contest winners for those whose legal bills it will pay if it permits the audit to be televised. Oh, yes, I know the IRS will balk, but perhaps tossing in a voluntary contribution to the Treasury might bring a reversal of IRS policy. Or perhaps those with experience lobbying state legislatures for property tax relief can lobby the Congress for legislation requiring the IRS, with the consent of the "IRS AUDIT!" prize winners, to permit broadcast of the audit. Imagine how educational that will be. Just imagine. Yes, just imagine.

Sometimes I really wonder. There are some questions answers to which continue to be elusive. They invite speculation, discussion, disagreement, and even argument. But they also open a window on human imperfection.

What triggered my most recent bewilderment is a story about a cheater. On Friday morning, while driving to the gym, I heard this KYW news radio story. I heard it again on the way home. So whatever doubts about my hearing that might have entered my mind the first time dissipated.

A young man, perhaps on his own, perhaps at the behest of parents or others, decides to attend law school. The first formal step in the process is to sit for the Law School Admissions Test (LSAT). The test measures a person's aptitude for legal studies. The results are an important factor used by almost all law schools in making admissions decisions. As one might expect, higher scores suggest higher likelihoods of being admitted, and higher scores suggest higher success at the more highly ranked law schools.

This young man took the LSAT twice. According to the story, he failed twice. Technically, one does not pass or fail the LSAT, just as one does not pass or fail an eye color examination. It is possible, though, to attain a score so low that no law school in the country would open its arms in welcome to the test taker. My guess is that the young man earned very low scores.

Now comes the critical point in the story. To me, there are three choices. Choice one is to look in the mirror, look at the test scores, and reach the same conclusion that many of us do when we look in the mirror, look at our batting averages, and stop seeking invitations to spring training. Choice two is to seek assistance, from a tutor or other professional, to learn if the causes of the low scores are inadequacies that can be remedied with additional exercises, practices, and counseling. Choice three is to play the pretend game, in other words, to cheat.

So the young man in question allegedly chose the third option. He tried to buy a copy of the examination. How? He allegedly put envelopes, each containing $100, on the cars of people working for the company that administers the LSAT. Those employees contacted police, the police sent an undercover detective, and the young man handed over $5,000. Rather than getting a copy of the test, he acquired a first-hand experience of being handcuffed.

So now my wondering kicks into high gear. What would the fellow do with the test if he had obtained it? Would he take it to someone who could provide answers? How would he know if the answers were correct? Even if he obtained the correct answers, was he planning on memorizing them? Was he sufficiently confident that the test he received would be the one administered when he next sat for the LSAT?

Suppose he managed to make all of that work, and scored very well the third time he took the test. Does he think law school admissions deans and directors would not notice something strange when the reports show two low scores and then a very high score?

Suppose he gets past that point somehow. Perhaps he explains that he had two bad days and then life returned to normal. Perhaps he says he did poorly and then sought out a tutor. Then what would happen?

He would be admitted to a law school. What happens in law school? Professors ask questions. They administer exams. They assign tasks. What does the young man think he would do? Unlike the LSAT, rarely does someone get two, let alone, three opportunities to sit through the first year of law school. Again the three choices would appear: withdraw, seek assistance, or cheat. Once a cheat always a cheat?

And suppose he gets through law school with grades sufficient to earn the degree? What's next? Oh, no, the bar exam. Would not the same challenges arise that were presented by the LSAT? The two exams are not very dissimilar. After the bar exam, it's time to deliver the goods. Will it be possible to enter a courtroom and fool the judge? Will it require getting someone to ghost write memoranda? When does the charade end? And how many clients suffer on account of it?

At some point, does not the reality out the cheater? Of course. Do cheaters know that? Perhaps they do, deep down inside. Yet most, if not all, seem to think that somehow they will be the ones that beat the odds and succeed in fooling all of the people all of the time. Do cheaters know their long-term chances of success are very, very low? Yes. Then why do they persist? Perhaps because they see the folks who succeed for long periods of time before getting caught and figure that they need only add a few years to the run in order to extract more from life than they ought be taking. But perhaps they also are not getting the message. Perhaps the message isn't being sent. If cheating is tolerated in kindergarten, cheaters will try again in first grade. If it meets with inconsequential reaction when it is discovered, it will reappear again and again. If the "cheating is evil and unacceptable" message is hammered home from the outset, perhaps there would be fewer Enron episodes, fewer indictments of politicians, lower health insurance costs because fraud is eliminated, and much less of a tax gap. You knew I'd work in the tax angle, even if it took eleven paragraphs!

A final thought. It's not mine. It is something I hear often when I discuss cheating with other faculty or with students. "You think cheating in law school and in law is bad, what about cheating in medical school?" I'm told it exists. So who wants to seek care from a physician who cheated on the MCATs, cheated throughout medical school, cheated on the boards, cheated ...? Well, supposedly the screening and detection process in medicine is much better than it is in law. If that is so, that's too bad. After all, not every wanna-be cheating lawyer is, to use the District Attorney's word in this instance, so "stupid" as was this young man as to make detection simple.

As much as I write and read, I continue to marvel at the accomplishments of those productive authors who can produce more books in a year than some generate in a decade or lifetime. Yes, Julian Block kicks off the New Year with his fourth book in twelve months. In February 2006, I reviewed his "MARRIAGE AND DIVORCE: Savvy Ways For Persons Marrying, Married Or Divorcing To Trim Their Taxes - And They’re Legal," in Tax and Relationships: A Book to Read and Give. August brought a review of Julian's "THE HOME SELLER’S GUIDE TO TAX SAVINGS: Simple Ways For Any Seller To Lower Taxes To The Legal Minimum," in A New Book on Taxation of Residence Sales: Don't Leave Home Without It. Julian's 2006 hat trick of books closed with my December review of "TAX TIPS FOR SMALL BUSINESSES: Savvy Ways For Writers, Photographers, Artists And Other Freelancers To Trim Taxes To The Legal Minimum," in A Tax Advice Book for People Who Write and Illustrate Books.

Julian's latest effort shakes us out of our single-minded focus on preparing 2006 tax returns. In "YEAR ROUND TAX SAVINGS," Julian reminds us that it's time to do tax planning for 2007. Many people think tax planning is something done at the end of the year, when the finality of December 31 is on the near horizon. Yet maximizing tax savings often requires that expenses be paid, retirement contributions be made, and other transactions be undertaken early in the year. Julian devotes several chapters to "timing payments of itemized deductions" and "timing receipt of income." Timing also gets important attention in his chapters on investment strategies. He asks if our "withholding is out of whack." If it is, it's best fixed by making adjustments in January or February, and not in November. The chapter entitled "Make Tax Planning a Year-Round Job" echoes the theme of the book.

This is a useful book. As are his earlier volumes, Julian's newest book is appropriate for people not expertised in tax law, but it also is a handy reference for tax practitioners who service individual clients. The anecdotes and stories sprinkled throughout the text are alone worth the read. My favorite is the widow who left cash in an armoire and jewels behind a loose board in a summer home closet. Law professors like myself can find themselves thinking "exam question, exam question" while they add more data to the "We don't need to make up this stuff" mantra.

To order a copy, contact Julian Block at 3 Washington Sq., #1-G, Larchmont, NY 10538 or go his website, julianblocktaxexpert.com. Or, as was the case with the previous books, email Julian at julianblock@yahoo.com.

Even though I do a significant amount of writing, not only on tax and other professional topics but also on family history, I make time to read. Several years ago I accepted an invitation that Paul Caron, of the TaxProf Blog, delivered to tax law professors to write reviews of the books they were reading. At first I wrote up one book at a time. Then I covered a few books in one piece. This time around, having let almost 15 months go by, I ended up with 44, yes, 44, books to review. So the reviews are short. If you're interested in what I read when I'm not writing, take a look at What Tax Profs Are Reading ... Jim Maule. Perhaps my comments will inspire you to pick up one or a few for the next time you want something to read.

I thank Paul for the opportunity to share my literary selections. Of course, a careful reading of my short reviews will reveal that some of my choices are influenced by a friend who has a gift for figuring out before I do what books I will enjoy. It is fortunate that two people who like to spend lots of time reading find moments in which to swap books and book suggestions.

Last Friday, in Health Care Standard Deduction: Solves Uninsured Problem?, I expressed my bewilderment at the prospect of a health care standard deduction that would be available even if no health insurance was purchased. I asked if I was missing something. Indeed I was.

Joe Kristan, who has been sharing Joe Kristan's Tax Updates for more than five years, provided some answers. In his explanation, he points out that according to the White House fact sheet on the plan, the deduction would be available only to those who purchase health care insurance. It is the amount that would be standard. Aside from not having dug up the White House fact sheet, I also made the error of thinking that the word "standard" meant that nothing need be done to get the deduction, in a manner similar to the section 63 standard deduction that is available without proof of any expenditures.

To my question of whether anything prevents someone from using the tax savings from the health care standard deduction for something other than health care premiums, Joe answered in the negative. On this issue he and I have reached the same conclusion. Joe, however, characterizes this possibility as a feature rather than a flaw. It encourages taxpayers to seek low-cost health insurance. That, of course, usually means higher deductibles and co-pays. In my email to Joe thanking him for his response, I asked, "Do you think companies will drag out 'no frills' insurance with very low premiums, very high deductibles and limited coverage to sell to (self-perceived) healthy young folks? Will it become a tax shelter? Then when one of those "almost self-insured" young folks has an accident or develops a health issue, what happens?"

In what Joe calls an oversimplified description of Arnold Kling's thesis, he notes that people tend to use more health care if someone else is paying for it. I wonder if that is true, though it takes us again to the world of tax rules being used to regulate social behavior. Do people use health care because it's there, or because a medical professional urges them to get a particular test or treatment? So, for me, the next question is whether medical professionals will suggest fewer or cheaper (read: less thorough) tests and treatments if the patient carries cheaper health care insurance that provides fewer benefits? Or will tests and treatments be recommended and prescribed because they exist and can assist the medical profession in providing the best possible health care?

As Joe notes, there's no chance of the plan being enacted in the near future. As people continue to dissect the proposal, the likelihood of it ever being enacted probably continues to decrease.

About a month ago, Wesley Autrey made news by saving the life of a teenager who had fallen onto New York City subway tracks. During the next few weeks, Autrey has received a variety of items, nicely set forth by Paul Caron on his TaxProf blog. The list includes cash, scholarships for his daughters, a fully-paid week at Disney World, theater tickets, free New York City public transportation passes, and other items.

As Paul notes, Bryan Camp asked us to consider the tax consequences. Must the value of the items be included in gross income? If so, in whose gross income must they be included?

One respondent took the position that all of the transfers are gifts excluded from gross income. The argument is based on the premise that all gifts are "motivated by the recipient's perceived 'goodness.'" Though the black-letter law defines gifts as transfers arising from "detached and disinterested generosity," this argument rejects that definition, claiming that there is no such thing as "detached and disinterested generosity."

To the extent this approach dismisses "detached and disinterested generosity" as meaningless, I agree. When I teach the basic tax course, I challenge my students to identify situations in which a transfer occurs because of detached and disinterested generosity. Of course, some students are unhappy that I push them to think rather than give them (sorry) a set of rules. The cynic can see in every transfer some quid pro quo or expectation of benefit. Even the so-called gift to a stranger or charity raises the possibility of gain in a theological or moral sense. In my analysis, though there are transfers that must be characterized as gifts, such as a parent's birthday gift to a child, there are many other transfers that probably are not gifts, yet remain unreported as gross income in part because the administrative challenges of enforcing the tax law are overwhelming. Think, says the cynic, of the dinner, flowers, and candy proffered to a blind date. Oh, well, that's going to start some arguments. Lest anyone think I have a vivid imagination (I do, but I don't need to use it in this context), many years ago I was set up on a blind date with a woman who refused to go out until I told her whether I planned to take her to a restaurant of sufficient quality as measured by price. I saved myself several hours of annoyance and ended the conversation. Fine, some students call that interlude a wasted tangent, but I call it a proof that the question is more than a hypothetical with no connection to reality.

The key to the analysis, I think, is the identification of the distinction between gift and reward. That distinction matters because rewards constitute gross income. Regs 1.61-2(a). See Roco
v. Comm'r, 121 T.C. 160. How does one determine if Wesley Autrey has received rewards or gifts?

Rewards are made under two sets of circumstances. In one, a person offers a reward, someone else learns of the reward and successfully does whatever is required for the reward. In the other, a person does a good deed and then learns that he or she qualifies for a reward that previously had been offered. Rewards follow a simple pattern, namely, "$X offered for the return of property or for the return of a missing or kidnapped person." Rewards don't follow a pattern of "$X offered for the return of property or for the return of a missing or kidnapped person provided the person bringing back the property or missing or kidnapped person does so with awareness of this reward."

In Mr. Autrey's case, there was no pre-existing award. Does that matter? If the transferor decides to bestow something on a person who has done a good deed after the good deed has been done, is the transfer a gift because there is no expectation of additional benefits by the transferor?

Does it matter that at least some of the items received by Mr. Autrey have been called rewards? Does it matter that the same items have been called gifts by other sources?

In Mr. Autrey's case, the items have been provided not by the rescued teenager but by strangers. Does that matter? Is it possible that at least some of the transferors might be motivated by public relations and advertising benefits?

The regulations that require inclusion of rewards in gross income do not define reward nor make distinctions between the circumstances under which they are offered and collected. Should the IRS add several pages to the regulations setting forth a complex definition of the term "reward"? If it did so, would I be estopped from complaining about the complexity of the tax law?

As I tell my students, the black-letter law is short and simple. Gifts are excluded from gross income. Transfers from an employer acting in the capacity of employer are not gifts. Rewards are included in gross income. So, as I will ask my students next time around, what do you advise Mr. Autrey when he asks for advice in filling out his 2007 federal income tax return? It's not enough, I tell them, to identify issues (especially in an instance where that's already been done), to set forth the rules (also unnecessary at this point), or to analyze the arguments in favor of each possible conclusion. Ultimately, the tax advisor must exercise judgment and assist the client in making a tax return reporting decision. Perhaps that conundrum is one of the salient features of the chasm between law school theory and practice world decision-making.

What would I do? Not much, at least until I get more information. Were the transferors acting according to long-standing "rewards" policies? Had they made previous transfers to other heroes and heroines? Did they attach conditions, such as appearances by Mr. Autrey in connection with the items? From what I can tell based on the limited information available, it appears that the factors suggesting the items are gifts outweigh, though slightly, the factors suggesting that what he received are rewards. I would also tell him that because it is a close call, getting additional information is essential. Ultimately, the decision is Mr. Autrey's to make, and it would be necessary to explain the risk of audit, the chances of success, and how interest and penalty computations enter into the risk evaluation. Yes, I'd put everything in writing once I was ready to render an opinion based on all the information I could grab.

Oh, and then I'd tell Mr. Autrey that I'm sorry we have an income tax system so indeterminate that a fine man like him must agonize over an issue simply because he did a good deed and triggered feelings of generosity among people grateful for his existence. I'd also tell him that I hope all of these tax gymnastics don't deter tomorrow's heroes and heroines.

Oh, by the way, Mr. Autrey, if you're reading this, it's not tax advice. Why? First, you're not my client. Second, because I don't know all of the facts, and it's possible there are considerations that would change my analysis. As for this posting, it's a hypothetical. Feel free, though, to share it with your tax advisor, so it helps him or her in thinking about the question and formulating advice for you. To Mr. Autrey and his tax advisor: I and the tax world would appreciate whatever you wish to share concerning the conclusions that are reached with respect to the tax issues, and any IRS reaction.

Yes, it was three years ago this date that I posted my first MauledAgain entry. It was a very short TWO WORD comment ("Stay tuned.") logged at 8:20 in the morning.

Imagine. A two-word post from me. It is, and probably will remain forever, my shortest blog entry.

Thanks for reading. It's been fun writing.

More than a few people have asked me to comment on the Bush health care plan. Until more details had emerged it would trigger too much speculation. Now that there is more information available about the proposal, it is possible to make some comments based on more than guesswork. Of course, the predictions that the plan will not advance through the legislative process makes commentary as useful as critiques of the never-released film, but why let that stop me now?

There are so many issues raised by the plan that a full evaluation would require many paragraphs. So I decided to focus on one aspect of the plan that I do not understand. Perhaps in doing so I will encourage those who do understand this particular question to share with me, and thus with readers of MauledAgain, an explanation.

The plan would provide a "standard health deduction" of $15,000, with a smaller deduction of $7,500 for unmarried taxpayers with no dependents. The amount isn't critical to my question. By making the deduction "standard" the plan would not require the taxpayer to purchase health insurance. For taxpayers with employer-provided coverage, the deduction would offset, to a greater or lesser extent, the inclusion in gross income of the amount paid by the employer, an amount excluded from gross income under current law. For these taxpayers, the plan would have one or more of several effects: (1) encourage the employer to drop coverage, (2) leave the taxpayer worse off economically, (3) leave the taxpayer better off economically, (4) provide incentives for the employer to seek less expensive coverage (as if employers aren't already doing that). There are some good examples of the different economic impacts of the plan on the Tax Foundation web site.

But what of those folks without health insurance for whom the plan supposedly is a solution? The tax savings from the deduction might be a few thousand dollars annually, but would that be enough to provide the premiums for health care, which usually are higher, sometimes much higher, for coverage purchased by an individual rather than through an employer group? Wait, that's not my question. That was a rhetorical comment in the form of a question. Here's my question:

What's to prevent a person from using the tax savings from the standard health deduction for something other than health care premiums?

As I read the plan, the answer appears to be: Nothing.

Unless I'm missing something, a person who concludes that health insurance isn't worth it, who has other pressing financial needs, or who is irresponsible, will remain uninsured. Young adults, still convinced of their immortality, remain just as convinced of their invulnerability. Self-insurance, which makes sense for large organizations and wealthy individuals under certain circumstances, makes no sense when it comes to health care. What happens under the Bush plan when an uninsured person shows up in the emergency room? Is the person turned away for being uninsured? If not, isn't a possible incentive to purchase health insurance with the tax savings generated by the standard health deduction wasted?

A similar issue exists under programs that provide cash to impoverished citizens. They are left with the decision of how to spend the money. Milk for the baby? Cigarettes? Shoes for the children? Lottery tickets? One of the primary defects of cash welfare systems is the lack of concomitant education in the making of sensible financial decisions.

Why not a deduction equal to the amount paid for health insurance, capped at $15,000 or $7,500, as the case may be? How burdensome is it for a taxpayer to retain a record of the premium?

OK, I've asked more than one question, but they're all variants of the core concern. I don't understand how the plan encourages purchase of health insurance by all of the people who need to do so. What am I missing?

Last Friday, in New Tax Site, Decimal Decimation, Body Advertising, and Government Goofs, I passed along news about the mess created when a ballot initiative for an 80 cent per pack cigarette tax increase ended up on the ballot as a proposed .80 cent per pack increase. I ended that particular tidbit with the observation that, "Precision matters."

Shortly thereafter, Mark Morin directed my attention to a significant pricing dispute between Verizon and some of its customers. It seems that a Verizon representative, when asked about the cost of out-of-country Internet usage, quoted a price per kilobyte of data transfer at .002 of a cent, but then billed at a rate of $.002 (which is .2 of a cent). It's a hundred-fold difference that caused one customer's expected charge of 71 cents to show up as 71 dollars.

The best part of the Verizon mess is the trail that modern technology permits people to make when they are trying to resolve a problem. First, go to Verizon Bad Math and listen to the mp3. It's nowhere as long as the website indicates, so don't expect a 2-hour talk. To quote Mark, "You will be astonished midway through. The sublime stupidity will take your breath away once the supervisor comes on to the line." Then get the legal history of the dispute at Verizon Math and be sure to follow the links to the descriptions of the milestones along one fellow's interesting adventure trying to straighten out sublime stupidity. Finally, there is a synopsis, with comments and a youtube clip at Verizon Doesn't Know Difference Between Dollars And Cents.

Last week, a student who had done some high school teaching before entering law school told me a story about the challenges of getting students to focus on their studies and do their homework, and the extent to which parents fail to nurture children's intellectual development. One student, in particular, who couldn't do much of anything with math, with lack of effort being one of the significant causes, intended to pursue a career in the medical field. It's a bit worrisome, isn't it, if a pharmacist, nurse, or physician cannot tell the difference between 5 mg and 500 mg, or 10 cc compared with 100 cc. Perhaps math blunders give us the most stunning tales, but it's a problem not limited to math.

Another person commented that decimal placement errors could wreak havoc with tax returns and audits. Could? No, it has. I'll spare you all but one of the stories. Early in my law teaching career, I listened to the adventures of a colleague who struggled to return to the IRS amounts erroneously deposited into his bank account because someone had done something that added several zeroes to his income tax refund. He surely did not develop a good impression of how some people at the IRS did things.

What's happening? A combination of factors are at work. Advances in technology and science have outpaced the capabilities of more and more people. Frustration with this gap encourages youngsters to give up. The learning skills required to grasp and work with concepts, whether in math, science, grammar, foreign language study, law, or any other area, aren't developed to the extent they are necessary, and in some schools aren't developed at all. Parents either lack the ability, the desire, or the determination to assist their children's educational development. Special interest groups, bureaucrats, and government policies turn resources and attention from the tedious tasks that must be accomplished to the quick-and-easy fix that fails to deliver on its promises despite gobbling down huge amounts of money. Recreational diversion chops away at time dedicated to academic pursuits. Wouldn't it be fun to learn that all those students chatting away on cell phones were discussing their math homework? Hah.

In both the Verizon matter and the situation presented by my colleague several decades ago, the error was easily identified. Those responsible for making and fixing the mistake put far more effort into denial and excuse generation than into constructive solutions. Why is it so difficult for so many people to work on fixing a problem once the error has been demonstrated? I think it's one outcome of telling youngsters, no matter what they do, that what they've done is magnificent, in that amazing effort to build up self-esteem. Self-esteem ought not be the mask for self-deception. That's way too dangerous. It's important to explain an error in ways that are not deprecating, but why try to cloak the mistake? Teach children they are infallible and they grow up to be insufferable. Listen again to that Verizon mp3.

Yes, something is seriously wrong. Most people know this or sense this. Politicians milk the issue for votes and appropriations grabs. Fingers are pointed. Blame is cast. And the children continue to suffer. We are beginning to see the impact of educational deficiencies of the past several decades as folks lacking core skills are thrust into positions of greater responsibility. We owe it to our children to maximize their abilities.

And they wonder why I look closely at every invoice that arrives in the mail. I don't trust the professed accuracy. I've been that way for a long time. Sublime stupidity no longer takes my breath away. My concern is that it will take lives away.

Friday's posting on New Tax Site, Decimal Decimation, Body Advertising, and Government Goofs, which was picked up and referenced as "Tax Tidbits" on Paul Caron's , has triggered several interesting sequels. One is so amazing it deserves, and will get, its own post, hopefully Wednesday. The others merit a few paragraphs today.

I mentioned the story about the pregnant woman trying to sell advertising space on her stomach to get Superbowl tickets. I should have known that she would not be the only person trying to get tickets. All sorts of gimmicks, plans, and arrangements are being proposed. What's interesting isn't just the wide range of eyebrow-raising proposals, but the breadth of tax issues involved in them, issues probably not apparent to people who are not tax practitioners.

A Sports Illustrated story lists the top ten "outlandish offers." Yes, the "advertise on my stomach" woman made the list. The others are a woman offering a night with herself, two unrelated men each seeking a "beautiful, hot girl" to occupy the other seat linked to their ticket pairs, a guy "willing to trade his lifetime gold VIP membership at a Wisconsin strip club for two tickets," people offering dental work, driveways, professional fireworks displays, videography services, plumbing, vehicles, and high definition televisions, others offering signed memorabilia, fans wanting to trade 2007 season tickets and Oprah Winfrey show tickets, and people offering time in resort timeshares. Of course, some simply beg, setting themselves up as folks deserving of sympathy best provided through tickets to the Miami extravaganza. The prize went to an amazing proposition, and I agree it's number one: ""My right nut for Superbowl tickets." Followed, of course, by "You don't really want to take it, but I can't miss this game." Perhaps before he makes the trade he might want to read my take on "The Taxation of Kidney Swaps", which also was published, in somewhat more polished form, in the BNA Tax Management Insights & Commentary series, as, yes, "The Taxation of Kidney Swaps."

The shock of discovering that taxes are everywhere will not only annoy or even anger the people trading tickets and trading for tickets, it has compelled the winner of a free trip into space to reject the prize because he lacked the cash with which to pay the taxes. An MSNBC report, "Taxes ... the final frontier for space rides:
IRS brings hype over suborbital ticket giveaways back down to earth," explains how Brian Emmett did not want to go into debt to pay $25,000 of taxes on a "$138,000 galactic joy ride." The report includes discussions of other space-ride contests and the different ways in which sponsors try to soften the tax blow.

After looking at the growing list of "to be blogged" items in my email inbox, I decided it's time to share a few of them at one time.

Item 1: Tax attorney Alvin S. Brown has started a new website called IRS Forum: The Taxpayers Form. He has set up a variety of useful tools. There is a blog, a group of forums, a form for reporting IRS abuse, articles, links, and a tab labeled "misconduct" but there's nothing there yet. The forums include ones devoted to levies, liens, wage garnishment, examination, offer in compromise, appeals, employment tax, penalties, suing the IRS, systemic problems, tax litigation, innocent spouse, installment agreements, non-profit hospitals, other non-profit entities, and one for each state's tax law issues. Some of the forums already have several threads underway, and one has eight. It's a resource worth visiting from time to time. For some, it may become part of their daily routine.

Item 2: A major goof in Arizona promises to bring some interesting litigation. An initiative was offered that would increase cigarette taxes by 80 cents per pack. When the ballot itself was printed, someone who doesn't understand decimals characterized the increases as an ".80 cent" increase. The initiative passed. The state increased the tax by 80 cents per pack. RJ Reynolds complained. The state Attorney General concluded that what counts is the initiative, and not the ballot. Wow. This news came to me from Matt Gardner, Executive Director of the Institute on Taxation and Economic Policy, and there are full details and links to the documents on the Talking Taxes blog. Take a look. Can you imagine someone mistaking .80 for 80 or 80 for .80 when building a bridge, measuring medicine for an IV, or selecting the carats for their fiancee's ring? There are people who wonder why I insist that my students demonstrate precision in their legal analyses. Precision matters.

Item 3: This just in. I'm watching the evening news as I write my blog. My attention is diverted when I hear the newscaster describe a pregnant woman in the Chicago area who's so desperate for Super Bowl tickets that she is offering advertising space on her stomach in exchange for those tickets. I google the story, and get hundreds of hits. This one, for example, sets out the details. Jennifer Gordon put her ad on Craigslist as "My Body for Your Tickets." Wow, that will get attention. She got her idea from observing the many "paunchy" male Bears Fans surrounding her at games, who had written "Go Bears" and similar messages on their chests. As of the time the story went to press she had received 45 offers. So where's this going? If she makes a deal, what are the tax consequences? Do you remember Taxes and the Sale of Baby Wardrobe Advertising Space and its followup More Baby as Billboard Taxation? As law students learn, the difference in the facts (advertising on clothing versus advertising on skin) ought not make a difference. Gordon won't be the first woman putting advertising on her body; I mentioned the GoldenPalace.com transaction in the followup post. Anyway, I'm detecting some gross income here for both parties, with a possible deduction for the advertiser. Could it be self-employment income? I have a feeling I will be returning to this topic.

Item 4: And another news story, which I heard Thursday evening on the radio and Thursday night on the news. According to the Pennsylvania Department of Revenue, it has mailed almost one million erroneous Forms 1099 reporting state income tax refunds and interest payments. Somehow, the figures for taxable year 2005 were used instead of the amounts for 2006. Oops. There's that precision thing again. Taxpayers are advised to trash the Forms 1099 that they have received, but I suggest shredding them. Taxpayers who have filed returns based on the incorrect Forms will need to file amended returns. Isn't it fun when someone else's mistake makes more work for us? Oh, well, that seems to be the story of our lives.

Thanks to Paul Caron's TaxProf Blog posting, I learned that the GAO had issued a report, "TAX COMPLIANCE Multiple Approaches Are Needed to Reduce the Tax Gap." The report concludes that the tax gap "has multiple causes and spans different types of taxes and taxpayers." Accordingly, "Multiple approaches are needed to reduce the tax gap. No single approach is likely to fully and cost-effectively address noncompliance since, for example, it has multiple causes and spans different types of taxes and taxpayers."

Three major approaches are considered:

1. Simplifying or reforming the tax code.

2. Providing the IRS with more enforcement tools.

3. Devoting additional resources to enforcement.

Minor approaches include "periodically measuring noncompliance and its causes, setting tax gap reduction goals, evaluating the results of any initiatives to reduce the tax gap, optimizing the allocation of IRS’s resources, and leveraging technology to enhance IRS’s efficiency."

The report points out that billions of dollars of the tax gap could be avoided if the tax law were simplified or fundamentally reformed. It explains, for example, that the IRS "has estimated that errors in claiming tax credits and deductions for tax year 2001 contributed $32 billion to the tax gap."

Unfortunately, the report then concludes that "these provisions serve purposes Congress has judged to be important and eliminating or consolidating them could be complicated." Even fundamental reform, in which tax preferences are limited and "taxable transactions are transparent to tax administrators," is "difficult to achieve." The report provides an almost irrefutable axiom, that "any tax system could be subject to noncompliance." Finally, it provides another difficult-to-rebut observation: "Withholding and information reporting are particularly powerful tools."

Two things pop into my head.

First, consider the provisions that add complexity to the tax law and thus feed the tax gap. Is it the Congress that judges this array of complex provisions in the Code to serve important purposes? Does the Congress even know they exist? Individual members might be aware of some, but no member comprehends all of them. These provisions exist chiefly because special interest groups arrange for their enactment. If the item is highly visible, it gets some attention, but many simply wander by the side door, unnoticed by most, while the ruckus at the front door over the appropriateness of some soundbitten proposal gets the attention. The most significant question is whether American taxpayers judge the causes of complexity to serve important purposes. Most taxpayers have a few favorites, and a few taxpayers have dozens of favorites. But should attempts to reform the tax law be diverted simply because of some presumed Congressional attachment to what exists? I don't think so. If Congress were so enamored of what it has created, why does it change it every time we blink? The answer is that Congress is enamored of the process by which tax law provisions become the handouts for electoral support. Is this any way to run a country?

Second, consider information reporting and withholding. Well-designed use of these tools could reduce the tax gap tremendously. So why would anyone object to comprehensive reporting and withholding? Perhaps we can ask those who successfully lobbied for instant repeal of a provision imposing withholding duties on payors of interest and dividends. We can examine the tactics. The payors generated what was at the time the largest "write your member of Congress" campaign by telling their payees that withholding was a "new tax." Withholding is not a new tax. Yet the gullible gobbled up the gobbledy-gook. Congress, conscious of elections, replaced withholding with a backup withholding mechanism that is helpful but far from universal and riddled with shortcomings.

Left to instinct, most people would prefer to pay no taxes, and exist as beneficiaries of others. History teaches that most of those who can grab have done so, and that many who could not exerted themselves to find ways to do so. The tax gap is a reflection of some unintentional errors and lots of intentional evasion. Careful intellectual reasoning, though, teaches us that civilization requires taxation, economic principles tell us that taxation should be efficient, common sense tells us it should be simple, and ethical principles tell us that it should be fair. It takes leadership to persuade the civilized world why it makes no sense, in the long-run, to behave in ways that generate tax gaps. Fraudulent behavior by taxpayers contributes to the tax gap. So, too, does the way in which Congress does business. Ought not the Congress take the first step in leading by example? Until the Congress understands that the way it does business encourages the non-filers, the protesters, the illegal tax shelter promoters, and the rest of the noncompliant population to act in ways that undermine the tax law and fuel the rapid growth in the tax gap, talking about closing the tax gap is not much more than rhetoric. Yes, I talk and write about it, but I've not undertaken the responsibility that members of Congress have sought and accepted. If they don't think they can or want to fix the problem, no one will stop them from returning home.