MauledAgain

There are dozens of nonrecognition provisions in the Code. Many would require several classes to study in detail. Putting all of them, or even the major ones, on the syllabus would require a 6-credit course. What’s a tax law professor to do?

Nonrecognition cannot be ignored. It is one of the pillars of corporate tax, partnership tax, taxation of real estate transactions, international tax, and several other areas. It is a concept essential to the courses to which some students will progress. It is a key ingredient of the basic federal income tax course.

Some tax law faculty try to cover three or four of the provisions, especially like-kind exchanges and involuntary conversions. In the Taxation of Property Dispositions course, these two topics together require at least 6, and preferable 8, 50-minute class sessions. There’s simply no way to assign as much as 20% of a 3-credit basic tax course to nonrecognition.

Much of the time required to learn a nonrecognition provision arises from the need to absorb a wide array of definitions and limitations. My goal in the basic tax course is to familiarize the students with the concepts common to nonrecognition provisions, particularly the use of adjusted basis to “preserve” the gain or loss that has been deferred.

So after giving the students a 3-minute introduction to the scope of the most common nonrecognition provisions, I use the provision applicable to transfers between spouses and former spouses to get across to the students the practical application of what is a fairly simple nonrecognition provision. This gets the point across with a minimum investment of time.

Next: Taxation of investment income

Only 25 minutes are budgeted for a study of section 121, the exclusion of gain from the disposition of a property owned and used as a principal residence for the requisite amount of time. I easily could take the students on a journey of 2 or 3 classes and still not get into the plethora of interesting issues arising with respect to this provision.

So students learn the basics. They learn that there is a limit on how much gain can be excluded and that the limit varies depending on filing status. They learn about the “2 years out of 5 years” ownership and use requirement. They learn about the exceptions to that rule for certain circumstances and how it reduces the dollar limitations. They do a few simple problems.

The students don’t get into the definition of principal residence. They don’t look at sales of land without sale of the home. They don’t explore sales of residences a portion of which was used for business purposes. They don’t learn about the intersection of the exclusion with like-kind nonrecognition. They don’t study dispositions in connection with divorce, or by married couples who own multiple homes. Nor do they study sales by surviving spouses and remarried spouses. What they don’t learn is far more than what they do, even if they’re absorbing fully everything being offered to them. This is what happens when class time is at a premium. Why bother at all with the exclusion? It invokes important policy and practical concerns, it affects most taxpayers, it helps the students understand why they should try to purchase a home as soon as they can, and it’s the only significant property disposition provision in the Code.

Next: Nonrecognition finally takes the spotlight

Once the employment issues have been explored, an almost abrupt shift occurs. The tax consequences of property dispositions takes center stage. Considering that there is a full 2-credit course in the Graduate Tax Program addressing, and called, Taxation of Property Dispositions, it’s no wonder that the J.D. students again receive a more cursory tour of the topic.

I set aside two and a half 50-minute classes to examine realization and bass. Students return to the realization concept they first encountered in the gross income overview topic and apply it to property dispositions. To some extent this is review, because several property sale examples were used in that earlier topic to solidify the understanding of certain points, and the principle that mere appreciation in value of property is not gross income was explained.

In the property disposition context, the focus is on amount realized, adjusted basis, and the resulting gain or loss realized. I continue to search for an approach that will eliminate fully the frequent errors made by students who confuse amount realized with gain realized. Again the need for precision so loathed by those who prefer to deal in generalities must be stressed emphatically.

The other element in the computation, adjusted basis, consumes at least three-fourths of the time allotted to this topic. Adjusted basis implicates both basis and adjustments to basis. Of the former, the emphasis is on cost basis, gift basis, and inherited property basis. Of the latter, the analysis is limited to improvements and the reduction on account of depreciation, a sort of sneak preview of an upcoming topic.

This module of the course is the one in which students meet part-sale, part-gift transactions. They also learn how liabilities are treated in computing basis and how liability relief affects amount realized. For most students, it is their first foray into the world of recourse and nonrecourse debt. So, yet again, a side trip into another area of financial principles and law is required.

Next: Another gross income exclusion

The next subtopic within the employment topic that I choose to include in the course is one that generates complaints from students and criticism from other tax law faculty. I think it is essential that students understand how social security benefits are taxed, and there is no sensible way to limit the observations to general theoretical constructs. Technically, this subtopic also includes the taxation of unemployment compensation, but because the rule and its application are as simple as tax law can be, I let the students use 30 seconds of their own time to learn it.

Unquestionably, the taxation of social security benefits is complicated. It reflects the product of serial Congressional tinkering that layers an 85% inclusion on top of a 50% inclusion, with two different thresholds for application of those inclusions. Compounding this complex array is a provision making adjustments for the boundary between the two inclusion layers. The statutory language is dense, not unlike other provisions waiting for the students. I move the students through a parsing exercise that demonstrates, yes, with numbers, the purpose and application of each phrase. I don’t require students to do the computations, though if they needed to do so they could slog through the examples I give them, following the pattern, or they could use the worksheet provided by the IRS in the Form 1040 instructions. That’s not the point. What matters is that the students understand how what should be simpler became so complicated. Flaws in tax policy generate flaws in the tax law.

Because social security benefits are taxed only if the taxpayer’s modified adjusted gross income, yet another defined term for students to learn, exceeds specified amounts, the application of the rules provides a “bubble” effect. In other words, the applicable marginal income tax rate for a social security recipient can exceed that applicable to a taxpayer with higher income but not receiving social security. This time the example is of a married couple, retired on a small pension and social security, one of whom returns to work because they need money. The actual marginal tax rate turns out to be higher than the nominal rate, thus causing the working spouse to bring home less money than was expected. This simple introduction to the bubble concept prepares the students for another visit much later in the course, when the impact of phaseouts are considered.

The employment topic closes with a summary of the taxation of income earned abroad. I leave this to the students to read for themselves, and if I include the topic on the examination it is at a very, very basic level.

Next: Disposing of property

After dealing with the section 132 general fringe benefit provision, I spend about 30 minutes on the Code section applicable to employer-provided meals and lodging. This is another instance in which the rules themselves are fairly straight-forward, but application becomes interesting. I use this topic to focus on two matters. The first seems silly but is a magnificent example of statutory interpretation and yet more proof that tax law isn’t simply a computational exercise. If an employer provides groceries to an employee, had the employer provided meals? In other words, are groceries meals? Strange as it may seem, the matter has been litigated, and the courts have split on the question. Is there any area of life where a tax question isn’t lurking?

In the first comprehensive example of how tax planning takes advantage of tax rules, I illustrate the tax savings available when a sole proprietor incorporates, hires herself, and provides meals and lodging that are for the employer’s benefit. The students who delight in puzzle solving, chess, or similar endeavors sit up and become mesmerized by this example. Some begin to think, and a few actually say, usually to me privately, “Hey, tax can be fun. It’s not boring.” Of course. If it were boring, would I be teaching it?

Next: The taxation of social security benefits

Most people who have been employed know that fringe benefits are an important consideration in selecting among jobs. Some people take jobs for the benefits and not the salary, especially second earners looking for health care, tuition remission, or similar benefits.

The tax law contains at least several dozen provisions specifying the tax consequences of particular fringe benefits. With a limited number of minutes, what can be covered in a basic tax course? The answer is, “Not much.” I let the students read summaries of certain provisions, such as the exclusion for employer-paid health care plan premiums and the exclusion for employer-reimbursed education. By this point, students should be able to look at the applicable Code section and see how the writers of the summaries extracted their explanations from the statutory language.

To show how these various provisions share the two themes of qualification by satisfying a definition and a limitation on the amount of the exclusion, I use section 132, which deals with, among other things, no-cost services, qualified employee discounts, working condition fringes, de minimis fringes, qualified transportation fringes, and a few others that get far less attention. Why these? They provide a variety of opportunities to explore tax policy. For example, why a tax benefit for employer-provided transportation? Students begin to understand how the tax law is used to accomplish most non-tax government policies, in this instance, energy and environmental concerns. They learn more about the power of lobbies and how the personal situations of members of Congressional tax writing committees affect tax law development when we visit the special fringe benefit treatment for parents of airline employees. They have a chance to see the administrative advantages and technical flaws in providing exclusions for amounts that would be deductible if paid by the employee. Some students have held jobs that provided employee discounts, a proportion I can now compute because it’s one of my “clicker” questions, and thus are especially interested in why their W-2s from years past may have reported gross income exceeding their cash pay. I get to learn what the particular employee discount policies of different employers has been.

Next: A Job With Free Meals and Housing?

After examining the several serendipitous transactions selected for close study, the course changes tack and focuses on employment. The topic is important because most taxpayers at some point are employed. Most, if not all, of the students will be employees, and many already have served in that capacity. Most arrive in the course knowing that wages are included in gross income. If it were that simple, there would be no need to allocate course time to the issues arising with respect to employment transactions.

I begin by taking the students through a list of the many ways in which employers can compensate their employees. The list is incomplete, of course, but includes the arrangements that are the subject of specific Code sections. I point out that we have time to study only a few in detail. I let them read, for their own edification, short summaries of some compensatory arrangements that they may encounter but for which there isn’t sufficient class time for more detailed discussion.

At this point I introduce them to the concept of deferred compensation. This is an area of tax law that deserves at least a full course, and in fact we offer several courses in our Graduate Tax Program which are available to J.D. students who are interested. All I am trying to do at this point is to convey the advantages of qualified deferred compensation plans: the exclusion when amounts are set aside, the deferral of taxation on plan earnings, the taxation of the distributions in later years when the taxpayer is probably looking at lower tax rates, and the benefits of deferring the tax liability until retirement. I don’t trouble the students with the technical requirements for qualification, though I do sensitize them to basic notions of vesting, non-discrimination, and several other major qualification principles.

This topic gives me the opportunity to teach the concepts that are the foundation of deferral benefit. Specifically, it is the first point in the course where time value of money, present value, and future value are important. These concepts are critical to understanding much of tax planning, and are at the root of the nonrecognition provisions looming on the horizon.

In an ideal world I wouldn’t need to shift time to the teaching of these concepts. They are essential to many areas of academic study and life generally. They ought to be taught in high school or college. They ought to be required. They are so pervasive in the law, and not just tax, that law schools should make them prerequisites to admission. Even though many law faculty claim that they can turn students into good lawyers no matter their academic backgrounds, a questionable proposition at best, the students in my courses who arrive with an understanding of these concepts learned them before they arrive in law school. Though I’d rather use the time to teach tax law and not financial principles, I’m stuck, because if I don’t bring the students up to speed they won’t learn or understand the tax law in question. The saving grace is that the power of compounding and the benefits of deferral can be illustrated with charts and graphs that widen the eyes of students unfamiliar with the concepts. At least they can begin to understand the advertising that banks and other financial institutions devote to the selling of IRA accounts.

Next: The taxation of fringe benefits

Although not every instance of debt cancellation is a serendipity, many are, and thus I deal with this issue as the last of those in the “Serendipities” batch. As the years have passed, the amount of time I set aside for this topic has dwindled. If it gets 10 minutes, it’s getting a lot. I direct the students to read material and do some more focused self-learning. In class, I make certain that they have the big picture and understand how the issues relate to materials already studied. For example, I ask them to identify the tax provision that applies when a relative forgives a debt in honor of the debtor’s birthday.

It’s not that I consider the topic unimportant. If it were, I’d omit it entirely. It’s simply a matter of insufficient time. There are 42 50-minute classes available, and there are dozens of topics. Something must be omitted or curtailed. Why is cancellation of indebtedness among those so treated? Every teaching lesson that the topic provides is encountered elsewhere. Technical definitions and cross-references are explored in the prize exception. The significance and insignificance of labels popped up in bequests, devises, and inheritances. The question, “What is it, really?” permeated gifts, scholarships, and several other topics.

So long as the students pick up the overview of the applicable principles, and acquire an understanding of what insolvency means, I’m satisfied that they have enough on which to build additional learning in the area if they take themselves in that direction. By this point in the semester, it is time that they begin sharpening their self-study skills, because that is something they’ll need to be doing throughout their legal careers.

Next: Got a Job?

There are a variety of interesting tax issues implicit in the tax treatment of scholarships. I include them in the “Serendipities” batch even though scholarships are not wholly serendipitous, because there is a serendipitous flavor to many of them. I begin by asking the class how many of them have been scholarship recipients. The response usually ranges from 40 to 70 percent. I see a few apprehensive faces, because by now some students have started becoming accustomed to the “it’s not what you would have thought” aspect of tax law principles.

The rules themselves aren’t particularly complicated. There are two reasons for including the topic, aside from student interest in something that rings close to home for most of them.

One reason involves Congressional omission and IRS response to it. The statute excludes qualified scholarships from gross income, and defines qualified scholarships by reference to candidates for degrees. So what happens to scholarships received by elementary and secondary school students? The IRS, in regulations, makes elementary and secondary school students eligible for the exclusion. It’s a good opportunity to show the students why regulations are so important, and to let them see how sloppy legislative drafting can be.

Another reason is a juxtaposition of statutory language with tax policy. Specifically, I ask students to consider the tax treatment of athletic and similar scholarships. The black letter law states that any portion of a scholarship received for performing services is not excluded, but is included in gross income as compensation. Are college athletes being paid for services? If they quit the team, and lose the scholarship, what does that tell us? Sometimes there are one or several former college athletes in the class. Once there was a student who was still playing for the undergraduate soccer team because she had a year of eligibility remaining. Is it any surprise that the level of participation picks up and some intensity is detected?

Next: You’re off the hook for money you owe

Continuing with serendipitous transactions, I devote about half of a 50-minute class to the tax consequences of receiving a prize or award. Almost every time I teach the course I can look to mainstream media for one or more stories in the national spotlight involving people who received gifts and then encountered unhappy tax news. In recent years, Oprah Winfrey seems to have taken the lead in these sorts of stories. So it’s easy to get the students’ attention, especially when they have formed emotional reactions to the tax consequences.

The general rule is simple. The value of prizes and awards received by a taxpayer is included in gross income. Is this fair? That question often pops up during class. The opportunity to explore the cost of exclusion, namely, higher taxes for others, and to examine tax policy issues such as base broadening, complexity due to special rules, and the concept of ability to pay, surfaces here.

There are two major exceptions to the general rule, and I choose to focus on one of them. I do so because it is a very complex definition-based arrangement that provides the first chance to show students how a flow chart is infinitely better for review and assimilation purposes than is the traditional “Harvard” outline that tries to impose on the material a hierarchical structure based on I, A, 1, a, etc.

The exception is, of course, nonsense, considering that at best a taxpayer can exclude no more than $400, and in some instances, $1,600, from gross income. The tax savings is probably less than what a professional would charge to research and explain the issue. The provision is a marvelous example of the power of lobbies, for there is no other explanation for the existence of this exception.

The analysis of the exception is highly technical, and requires a good grasp of simple logic in order to parse the parenthetical phrases and the either/or constructs. The applicable subsection cross-references a subsection in another Code section, which itself is modified by paragraphs not cross-referenced by the latter subsection. This is the first time students see a complex cros-reference array, which is another reason I include this provision in course coverage.

Next: What about that scholarship?

After using the gross income exclusion applicable to gifts to introduce the students to the notion that a simple rule doesn’t necessarily answer a simple question, I turn their attention to things similar to gifts, namely, bequests, devises, and inheritances. Again, the principle is simple. Bequests, devises, and inheritances are excluded from gross income. This time, the challenge is identifying things labeled as bequests or devises that are in fact something else. Students learn that putting a label on something doesn’t make it so.

For example, we explore the tax treatment of bequests made to a person who has performed services in anticipation of being included in the decedent’s will. Is it truly a bequest? Or is it disguised compensation? The students meet the substance over form doctrine in a transactional setting that they can understand. They also reinforce the sense that they should have acquired during their first year of the importance of procedure, after examining a case in which the outcome turned on the basis for a lawsuit against a decedent who failed to fulfill a promise to leave property to the plaintiff.

Somewhere in this topic students should be learning the lesson that precision matters. Students who enjoy theory and concepts more than critical analysis often begin to simmer with annoyance as they focus on this topic.

Next: You win! Now what?

Surely there’s no one right way to sequence the various income exclusion and inclusion provisions in the Code, or those that one selects to cover in a course. There’s no one correct group of such provisions to cover. At best, there is one wrong sequence. It is pedagogically silly to cover the provisions in the order they appear in the Code. The other caveat is that no one tries to cover all of the inclusion and exclusion provisions, not only because there is insufficient time, but also because some of the provisions are obscure and, yes, even boring.

I begin with the income tax treatment of gifts, and I mix in some basic principles relevant to the federal gift tax. Why gifts? There are three reasons. First, students are familiar with gifts. Second, the black letter law is fairly simple. Third, there is a fine line between the serendipity of finding property and the serendipity of some gifts. In fact, the first group of specific gross income provisions that I cover fit together into a cluster that I call “Serendipities.”

If students were not yet having fun and being disabused of the notion that tax is “just some mechanical rules” when they met grab bags, some of the holdouts come aboard when they meet gifts. The rule is simple. The value of a gift received by a person is excluded from gross income. The obvious question? “What’s a gift?” It’s not that easy of a question to answer, is it? I pepper the students with questions that make them lift their eyebrows. “Someone takes you to dinner. Gift?” When most of them, as expected, reply affirmatively, I add, “What if they were trying to warm you up to buying their product?” and then I ask, “What if the person takes you to dinner as part of an effort to persuade you to be very friendly later in the evening?” If they’ve read the Harris case as they should have, they know where this line of questioning will go. Sorry, readers, but the full discussion is a class experience and I’ll leave it there. If nothing else, whatever latent cynicism is lurking within the students is fed by the realization that most gifts are not strings-free, though some are, but in numbers far fewer than the students originally thought.

Next: ever inherit something?

When it is time to turn to analysis of substantive federal income tax law, almost every teacher, if not all of us, begins with gross income. It’s a logical choice. It makes little or no sense to discuss deductions or credits, particularly because many deductions and credits are “tied” to specific items of gross income.

Although there are a variety of specific gross income inclusion and exclusion provisions, learning about gross income requires a student to understand what gross income is. The specific inclusion provisions are elaborations of a general rule, just as the specific exclusion provisions are exceptions to that general rule. The general rule is simple enough: gross income includes income from whatever source derived.

So the door is open to fans of the quasi-socratic teaching method. One turns to the class and asks, “What is income?” Students working with old outlines, commercial study guides, or similar materials might come back with something like this: “Income is any clearly realized accession to economic wealth.” In a bar review course, it’s not unusual for the instructor to recite that rule and then proceed to the next topic. In a law school classroom, however, the point is not to learn the rule but to understand what it means. So I begin with a series of hypotheticals that lead up to the fact pattern in the first gross income case that I have them read. Included among the fact patterns: finding property, paying $1 for a grab-bag and finding a $20 bill in it, paying $1 for a grab-bag and finding a jewel in it, buying something on sale, buying an old painting and finding an original copy of the Declaration of Independence behind the backing (a real life situation proving we don’t invent these questions, and adding a bit more fun to the course), buying a piano and finding cash in it (that’s the case), and buying a piano and discovering that it’s worth far more than what was paid (that’s a question presented by the authors of the book assigned for the course).

The answers to all of these hypotheticals differ. To understand a phrase such as “clearly realized,” students try to find rules that define every situation. I try to get them to think through the rationale for each of the answers so that they could resolve the next situation, one that has not yet been encountered. In many respects this is not unlike the first-year experience of examining some appellate opinions and then trying to resolve a situation that would be factually between two groups of cases. The difference is that for many of the gross income questions, there is no authority. In law practice, it is not unusual for there to be no authority, or no definitive authority. Perhaps there is a split among the courts. Resolving these sorts of situations is one of the things lawyers are paid to do, and it’s no less a challenge in tax than in other areas of the law. Thus, by this point I have demonstrated to the students the fallacy of the assertion that tax is simply a bunch of mechanically-applied rules and thus “really isn’t law,” a belief shared not only by some la students but also by a few law faculty.

I budget one 50-minute class session for this topic. Often it consumes more time. Why? Students ask all sorts of questions. For some of them, their insistence on receiving rules is beginning to weaken. The rule is nowhere as much fun as is arguing about whether it makes sense to tax grab-bag purchasers under the different circumstances. Yes, there is a method to the madness. But it’s now time to examine selected specific gross income exclusion and inclusion provisions.

Next: Ever get a gift?

It is difficult for students to appreciate the context in which cases, rulings, and other tax law sources are developed without understanding the process by which tax disputes arise and are resolved. Very early in my teaching of the course, a student raised his hand and asked, “So how does the IRS know what someone’s income and deductions are?” In addition to responding at that moment to the question, I also reacted by inserting a very compressed overview of tax procedure at this point in the course.

It usually requires about one and a half 50-minute class sessions to describe the self-compliance nature of the federal income tax, return filing, information reporting, audits, appeals, and tax litigation. The material on audits includes the various ways audits are triggered. It is at this point some students begin to think of tax as having at least some element of fun. Looking at audits triggered by informants, or perhaps busybodies, gets the students’ attention. Sometimes I wonder if they’re thinking of people they know who might be under-reporting or worse, but I don’t ask.

Not asking is one of the disadvantages of how the first week of the course is structured. The students are asked very few “clicker” questions. The ones I ask are for my benefit, though the results are of much interest to the students when the summaries appear on the projection screen. For example, I ask how many have prepared their own return, and how many have looked at a return prepared for them by someone else. The latter question sparks a discussion that fits well with analysis of the self-compliance concept.

But the slow transition into the substantive portion of the course now ends. Sporadic clicker questions are about to evolve into a blizzard of them.

Next: So what is gross income?

One of the important questions faced by someone teaching the basic tax course is how to introduce students to the many sources of tax law. Most students, especially second-year students, arrive in the course with an extensive familiarity with appellate opinions. Some third-year students arrive with an understanding of statutes, and most third-year students have dealt with the Constitution. A few students may have been introduced to administrative materials.

In an ideal world, students arriving in the basic tax course would be familiar not only with the Constitution and appellate opinions, but also statutes, committee reports, other legislative history, regulations, administrative rulings, other administrative materials, trial court opinions, and secondary materials. That is not, however, how first-year law school classes are conducted in most instances. Some years ago, Villanova experimented with a “sources of law” course in which the emphasis was on where the law was sourced rather than what the law was. In part because the course differed from the other first-year courses and in part because students have such a “tell me what the rules are so I can recite them back” mentality, students rebelled, and the faculty caved.

Thus, those of us teaching the basic tax course need to orient our students in some way so that they can read and understand the many materials that the meet in the course and that are not appellate opinions. In fact, appellate opinions constitute a small part of the course.

There are two general approaches to the problem. One is to stop each time a new type of material or source of law is encountered and to explain its significance, how it fits into the overall source of law picture, and how it is to be interpreted. The other is to present a “nutshell” source of law explanation at the beginning of the course.

I opt for the second approach. I have several reasons. I find it distracting to interrupt substantive analysis in order to bring students up-to-speed on a source of law point. They, too, find it distracting, and it interferes with their focus on the substantive point. Worse, the sequence in which new types of legal sources are encountered in the course isn’t a sequence best suited to picturing how the various sources of law fit together. This sort of haphazard introduction to sources of law is counter-productive.

So I invest about a 50-minute class, sometimes more, taking the students through the significance to tax law of the Constitution, the Internal Revenue Code of 1986, earlier Codes, Revenue Acts, amending acts, committee reports, Joint Committee Explanations, legislative regulations, interpretative regulations, temporary regulations, proposed regulations, revenue rulings, revenue procedures, PLRs, TAMs, the existence of other administrative issuances, Tax Court regular opinions, memorandum opinions, and summary opinions, appellate opinions, and secondary sources. Once upon a time I spent time on a “primer on tax research,” but because Congress added provisions and made others more complicated, I removed the tax research primer from class-time coverage and left it to the students to read for themselves. Sometimes I have one very short exam question designed to see if the student read the material. Missing the question does not preclude a high grade, but when a student who earned less than an A questions his or her grade and becomes argumentative, demanding, or entreating, I look to that student’s performance on this question, and several others, to help me analyze why the student did not earn an A, and to assist me in explaining why sympathy is not forthcoming from me.

Next: how does the tax process work?

Today I begin a series describing how and why I have structured the basic tax course that I teach in the way that I do. This is Part I because I intend for there to be more. If something dramatic happens in the tax world, or if there is something else on which I need to opine that strikes me as more important, I will interrupt this series and then resume. The usual Monday-Wednesday-Friday academic year blogging schedule to which I usually adhere will change, by dint of circumstances, into an irregular one. More on that later.

Early in my teaching of the basic tax course, the name of which has changed several times, I realized that much grief for students and aggravation for myself could be prevented if I presented to the class, at the outset, a definitive description of what the course involved, what I expected of them, why their anxieties about the material reflected the common misunderstanding that tax law is all about math and numbers, and the general information applicable to the course. I try to do this in half of a 50-minute class, but sometimes it takes 30 or 35 minutes.

Then I turn my attention to an overview of the course. Just as it is important for an attorney making an oral argument to present a “road map” to the court at the outset, as stressed by those teaching appellate advocacy courses, so, too, it is important for a teacher to outline the direction in which the course will go. Appellate advocates need to teach judges, and so it makes sense that they pattern their approach on solid educational principles. Teachers who adhere to this principle let students know where the course is going. It is a rare instance when it makes sense to have no plan or to hide the plan.

I present the overview not by rattling through a set of condensed rules, but by showing the students a sample tax return of a first-year law firm associate. I do this for three reasons. First, it illustrates the overall structure of the income tax, namely, determine gross income, determine deductions, compute adjusted gross income and taxable income, look up the tax, and apply credits to generate a tax due or a refund. Second, it is something to which the students can relate. It’s not some abstract conceptual person engaged in a transaction that the students probably have never encountered. Third, it awakens in the students an appreciation for the impact of taxation. Believe it or not, there are some students who are shocked that a person earning a salary of $90,000 doesn’t take home $90,000 to spend as they wish. Speaking of shock, when I hear the audible gasps of surprise I know I have identified the students who did not do some or all of the assigned reading, because I make the illustration available as part of the class materials and direct them to read it before class.

Although most of the emphasis in the course is on federal income taxation, I take the opportunity presented by the illustration to toss in state income taxation, using Pennsylvania because that’s where we are, and federal insurance contributions act taxation (social security, to use the common terminology), to get across to students that there’s much more to taxation than the federal income tax. At one time I also tossed in the Philadelphia wage tax, but dropped that a few years ago because it was getting too complicated, and thus distracting. That decision fit well with the decreasing number of students taking their first job in Philadelphia.

Next:: where do we find tax law?

A recent Law School Survey of Student Engagement turned up some interesting data.

When asked if they had participated in a clinical or pro bono project as part of a course or for academic credit, 72% responded that they had not. That means barely more than one-quarter of law students have experienced law in settings most similar to law practice. It's no surprise that I would like to see clincal experiences mandatory and law schools enlarge their clinical programs so that all students can be given the opportunity to discover what law practice involves. Aside from preparing students intellectually and practically, it would dispel the media-based perception of law practice that falls apart when law school graduates enter law firms and discover that law practice isn't what television and movies portray it to be.

It's not that the students don't want the experiences. The survey indicates that almost all first-year students plan on spending time in pro bono work and clinical experiences, but that by the second and third year many have not. That suggests lack of opportunity rather than lack of desire. Although I'm no fan of the "law student as consumer" approach to legal education, this is one instance where the students have the right intention, and law schools need to accommodate student demand for these practice world experiences. If it means hiring faculty other than philosophers and "scholars," so be it. There's nothing wrong with a healthy balance and mixture of strengths among a law faculty.

Another result troubles me. According to the survey, "The typical student spends 15-16 hours per week reading assigned material for class. Six hours per week are devoted to unassigned preparation (e.g. studying, writing, other academic preparation)." I tell my students, as I was told, that for each hour of class they need to invest 2 to 4 hours outside of class, preparing and assimilating. If the typical student is investing 21 to 22 hours per week in out-of-class effort, and if the typical student is enrolled in 14 to 15 credit hours in order to meet the typical 85-90 credit hour graduation requirement, the typical student is falling short by 7 to 39 hours per week when it comes to out-of-class effort. The best students can invest an hour of preparation for an hour of class, but many students need one and half to twice that. The survey's typical student does not appear to be doing what is required. Where the effort appears to fall way short is in the assimilation process. Too many students yield to the temptation to use a prior year outline (perhaps gambling that's it's not out-of-date), a nutshell, a commercial product, or some other "short cut" to learning "what the law is." Too many students don't seem to get the message that reading and knowing the "rules" applicable to bicycle riding do not prepare a person to ride a bicycle, that watching a person ride a bicycle is not enough, and that there is no substitute for getting on the bicycle and pedaling. In other words, the process of creating the outline, chart, or other work product is what exercises the brain; the resulting product has far less value. Well-designed examinations can distinguish between students who memorize and students who analyze, but poorly designed examinations reward memorization skills and not much else, thus encouraging the insufficient assimilation investment that the survey suggests and that my observations confirm.

Here's something of a surprise. Despite all the griping and complaining, the survey reports that "Eighty-two percent of all students rated their law school experience 'good' or 'excellent.'" and that "Only 3% said their experience was 'poor.'" Buttressing these conclusions, "Four in five students said they would 'probably' or 'definitely' attend the same school if they were starting over." Could it be that the unhappy twenty percent account for ninety percent of the complaints that reach faculty and administration ears? Could it be that those who are satisfied rarely say so?

Where student dissatisfaction was reported at substantial levels, the target was the placement and advising function. According to the survey, "Students were most dissatisfied ('unsatisfied' or 'very unsatisfied') with job search help (45%), career counseling (44%), personal counseling (40%) and academic advising (37%)." My guess is that student expectations for these law school services are higher than they should be. There are students who think that law schools should simply present them with a job, rather than facilitate student contact with employers. There are students who think that advisors should be giving them some sort of magic formula that will generate excellent grades and numerous offers of employment. On the other hand, there are student concerns about the employment search process that need attention, particularly with respect to the conflict between interviewing schedules and class attendance. And to some extent, academic advising would be under far less pressure if certain messages were hammered home in the classroom rather than left to students to decipher for themselves.

Anyone interested in law school education should take the few minutes required to read the survey analysis. I can't see any reason why law students, law faculty, and practitioners, including judges, should not read about themselves, those whom they are teaching, and those whom they are about to hire.

The headline, County Judge Rules Pa. Assessment Law Unconstitutional is enough to get any tax practitioner's or tax law professor's interest. It isn't very often that a tax law provision is adjudged violative of a constitution. So when it happens, it's news. Of course, this particular decision surely will be appealed, so it's not unlike watching a lead-gaining homerun in the bottom of the seventh inning. It's too soon to call it a game winner.

At the root of the problem is the manner in which real property is assessed a value for purposes of the real property tax. In theory, the tax applies to the value of the property. The computation is simple. Multiply a value by a rate. The difficulty, as I often tell my students about law generally, is when a simple legal rule is subjected to the challenge of factual determinations. The value of the property is a fact. Someone must determine that fact. In theory, the valuation assessment would be done on the day that the tax is assessed. But in practice, that would require the localities to hire, collectively, tens of thousands of assessors. Instead, the valuation that is used depends on which of six separate state laws applies to the particular county in question. In some counties, the assessors simply revalue property when it is sold. So some properties were last assessed a short time ago, and others haven't been assessed for years, meaning that two properties of substantially identical value, next door to each other, could be assessed at very different amounts because one property was sold during the past year or two and the other has been owned by the same person for several decades. In some counties, assessments of real property must be conducted every three years. There are counties that last did assessments in the 1950s. In some counties, the legislature permits counties to use a base year for valuation rather than valuing at current value.

In Allegheny County, the county council decided to set assessments based on values in the year 2002. That created another problem. People living in areas with skyrocketing prices pay taxes that are a lower percentage of the property's actual value than do people who live in areas with declining or stagnating values. What the county was doing, according to the plaintiffs, amounted to an impermissible assessment freeze. The county's justification for selecting 2002 was that assessing properties using a later year as the base year would generate tax increases for people who had purchased properties since 2002.

Pennsylvania's Constitution has a uniformity clause. It requires taxes to be imposed in a uniform manner. That is why it would be unconstitutional to make people whose names begin with vowels to pay sales tax at a higher rate than do other people. And that is why there is a problem if properties are assessed at values that do not reflect the same timing, manner, and process of valuation. So a judge in Allegheny county, in Clifton v. Allegheny Co., held that the base year law violates the uniformity clause. The judge determined that using a base year generates "arbitrary, unjust, and unreasonably discriminatory results." He also decided that in most instances, it "produced substantial levels of inequality in the ratio of assessed values to market values that could be significantly reduced through periodic reassessments." The judge ordered the county to do full reassessments in 2008 and 2009, and that part of his decision has stirred up even more controversy, because the county claims the judge lacks jurisdiction to issue such an order.

An example of the absurd results caused by the system being used in many Pennsylvania counties is mapped out nicely in The Great Pennsylvania Property Tax Calamity. How can a home with 8 rooms, 4 of them bedrooms and 3 of them baths, having 3,427 square feet of living space, sitting on 1.02 acres of land, and purchased in 1986 for $315,000, be assessed at $347,300, while another property, with 10 rooms, 5 of them bedrooms and 4 of them baths, having 5,594 square feet of living space, sitting on 9.6 acres of land, and purchased in 1940 for $1,350,000 be assessed at $293,400?

One of the attorneys representing plaintiffs in the Allegheny County litigation, stated, "By all objective measuring points, this is an unfair system." A legislator chimed in, describing the system as "s unfair and difficult to manage." The county objects to annual assessments because the cost of making the assessments and the cost of handling the inevitable appeals would be prohibitive.

The issue is one that must be tackled by the legislature. If the situation is a mess now, imagine what happens when judges in 67 different counties come to grips with the challenges certain to arise in the wake of the Allegheny County decision. The problem is a statewide question, and needs to be addressed in a sensible, methodical manner. Perhaps the difficulty of determining the current value of properties will be the straw that breaks the real property tax back, although it might make more sense to perceive it as a sledgehammer.

Anyone interested in this issue must read the Clifton opinion. It's long. Ninety-four pages long. But it's as good an education as one will get on the question. Hopefully every member of the Pennsylvania legislature will read it.

Paul Caron's highlighting of Scott Jaschik's article in Inside Higher Ed, "Could RateMyProfessors.com Be Right?" enticed me to visit Rate My Professors. Jaschik commented on a study by Theodore Coladarci and Irv Kornfield of the University of Maine,"RateMyProfessors.com versus formal in-class student evaluations of teaching" in Practical Research, Assessment and Evaluation.

Wow, there are all of four ratings for me at RateMyProfessors.com. Here's what I find totally amusing. It's one of the reasons I put high value on an individual evaluation's quality comments and so little value on the overall results. Consider two of the four comments. One persons claims that I am "sarcastic, lacks clarity of thought, wholly ineffective" while another assets that I am "One of the clearest professors I have ever had. I wish more professors would adopt his homework and testing style."

This "night and day" reaction to my teaching is not uncommon. Does one set of opinions have more value than another? I think so.

Far more of the evaluations on the school's "official" evaluations (numbering far more than a statistically insignificant four) reflect, if not happiness and enthusiasm, at least grudging acceptance of what's going on, than do the folks whose frustrations with law study erupt in a demanding tax course. On the school's official Graduate Tax Program evaluations we ask students to disclose how many hours each week they invested in preparation for the course and assimilation of the course work. Most replies, I think, are honest, but they are disappointing. Few students devote the suggested 6 to 8 hours per week that a course like Partnership Taxation demands. Isn't there some reason to put a higher value on the opinions of students who were involved in the course at the depth required by it?

Another indicator of an evaluation's quality can be found in the content of the comments. Currently in first place is a recent evaluation comment by a student highly critical of my teaching because my teaching did not accommodate students who came to class unprepared. Sorry, but there's no reason to bore prepared students with some sort of CLE-type lecture for the benefit of someone who did not prepare. Yes, I understand that there are times when client problems or other difficulties prevent preparation the night before class, but isn't it wise to prepare a few days ahead of time so that if something happens the night before class it isn't as catastrophic?

Ultimately, evaluations come down to opinions that reflect all sorts of reactions and not simply precise analytical evaluation of a course and the professor's teaching. I've had students criticize me for not having a syllabus. Yes, there is one, and I don't know why evaluations ask that question because it can be answered without disturbing every student with the question. How much value should be placed on the "opinion" of someone who sat through a course with a very detailed syllabus and who claims there is no syllabus? RateMyProfessors.com has a "hotness" index. Sorry, but of what relevance is that factor? Considering that RateMyProfessors.com is focused primarily on undergraduate teaching, it's not surprising that it enables such characterizations. To their credit, Coladarci and Kornfield have little regard for the chili peppers of RateMyProfessors.com.

Fortunately, there are students who take evaluations seriously, who don't worry about the professor's wardrobe or tie selection, and who make useful comments. Some of the things I do in class or in preparing for class came about because a student made a comment that made sense and that opened the door to an improvement in my teaching.

I'm not surprised Coladarci and Kornfield found a positive correlation between student comments on school-administered evaluations and RateMyProfessor.com evaluations. They are the same students and are likely to say the same thing each time they are asked to provide their reaction to a course or a professor. If Coladarci and Kornfield are looking for a correlation study, I'd suggest an examination of the seeming correlation I notice between the students who make helpful suggestions and those who take their educational responsibilities seriously; both require the investment of time, critical analysis, and deep thinking. Unfortunately, the evaluation processes at most schools and the one at RateMyProfessors.com give equal weight to the careful analyses of serious students and the emotion-laden reactions of students who aren't as dedicated to their academic endeavors.

The proposal by Coladarci and Kornfield that universities put the results of their evaluations on-line is troubling. Many universities make evaluation results, if not the comments, available to their students. That makes sense. Students at University A can benefit from knowing what other students at University A have said about a course or a professor, assuming that what has been said reflects careful thinking and that the students looking at the results have the ability to separate useful from groundless comments. But what's the point of making the information available to students at University B or people living in country Z? Years ago, several of my colleagues posted some evaluation comments outside their office door, principally because the comments were downright funny or frighteningly indicative of student intellectual nondevelopment. The administration reacted by suggesting very strongly that the practice be stopped. Why? There was a concern that students would be writing comments in an effort to "make the wall posting" rather than to provide genuine reactions. Whether that would have happened is a question to which I have no answer. But it was possible, and that was enough.

Personally, I prefer peer evaluation of teaching, even though several of my colleagues think my course problems, class hypotheticals, and semester exercises are "too hard." Perhaps I should prefer evaluation by practitioners and judges, because most of them tell me I'm being too easy on my students. Considering they're the ones that the students ultimately need to impress, it may be worth looking more closely at their reactions. Their opinions are opinions I value.

When I teach the depreciation and asset expensing deductions in the basic federal income tax course, I purposefully do more than discuss the concept and theory of depreciation. I show the students some fairly simple computations, for several reasons. One is that by seeing the actual numbers students can see the actual impact of the acceleration feature of MACRS, the front-loading effect of section 179, and the difference in results when the straight-line method is used. Another reason is to give students an appreciation for how legal rules reflecting theoretical principles are applied to real-life practice-world facts. Yet another reason is to show students the dynamic nature of the tax law so that they grasp more fully the notion that law, and tax law in particular, is not a static set of rules but an ever-changing array of principles that present more than enough opportunities for mistakes to be made.

When I turn to section 179, I have yet another goal in mind. I want students to see the application of inflation-based adjustments. Doing planning and compliance work without an understanding of how changes in dollar amounts, or the lack of changes in dollar amounts, matters can doom a practitioner to an unpleasant malpractice experience. Waiting until the turn of the year to execute a transaction may or may not make sense, and determining whether it does requires a sense of how the “playing field” can change.

I don’t play games with the students when I teach depreciation and asset expensing deductions. A fair-sized chunk of the topic consists of presentation rather than demands that the students solve problems and answer questions.

So, for example, when I reach section 179, there comes a time to explain the two limitations. One is the absolute dollar amount limitation, in contrast to the other, which is the taxable income limitation. The slide, as it exists at the moment, says this (without the color, font change, and other visual attributes):

The first is an absolute dollar limitation.
1. For 2003 through 2009, that limit is $100,000. §179(b)(1).
It has increased in stages: $20,000 for 2000, $24,000 for
2001, $24,000 for 2002. Don’t get tricked by references
to the 1999 $19,000 limit or to earlier limits.
1996, 2003, 2004, and 2006 legislation amended §179.
2. This amount is REDUCED by the excess of the cost of
§179 property placed in service for the year over
$400,000. §179(b)(2). (For years before 2003 and years
after 2009, $200,000 is used instead of $400,000.)
3. For 2004 -- 2009 these amounts adjusted for inflation.
For 2006, $100,000 is $108,000, $400,000 is $430,000.

Now I must change the slide. I also need to change my class notes, the examples, and the problem solutions. I also need to change the problems because I try to keep the computations and examples limited to round numbers.

Why do I need to change the slide, the examples, my class notes, the problem solutions, and probably some other things I’m not recalling at the moment?

The reason is Public Law 110-28. It’s called the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, though people are calling it the Iraq Appropriations Act. Buried in it is the Small Business and Work Opportunity Tax Act of 2007. Isn’t it absurd how Congress puts Acts within Acts? I suppose it’s some sort of Russian doll syndrome.

The text of the act can be obtained by going to the Library of Congress Thomas web site and selecting 110-28 under Public Law. The site’s search mechanism works in such a way that the URL showing up when I searched won’t work.

Of particular interest is section 8212 of the Act:

SEC. 8212. EXTENSION AND INCREASE OF EXPENSING FOR SMALL BUSINESS.
(a) EXTENSION- Subsections (b)(1), (b)(2), (b)(5), (c)(2), and (d)(1)(A)(ii) of section 179 (relating to election to expense certain depreciable business assets) are each amended by striking `2010' and inserting `2011'.
(b) INCREASE IN LIMITATIONS- Subsection (b) of section 179 is amended--
(1) by striking `$100,000 in the case of taxable years beginning after 2002' in paragraph (1) and inserting `$125,000 in the case of taxable years beginning after 2006', and
(2) by striking `$400,000 in the case of taxable years beginning after 2002' in paragraph (2) and inserting `$500,000 in the case of taxable years beginning after 2006'.
(c) INFLATION ADJUSTMENT- Subparagraph (A) of section 179(b)(5) is amended--
(1) by striking `2003' and inserting `2007',
(2) by striking `$100,000 and $400,000' and inserting `$125,000 and $500,000', and
(3) by striking `2002' in clause (ii) and inserting `2006'.
(d) EFFECTIVE DATE- The amendments made by this section shall apply to taxable years beginning after December 31, 2006.

In other words, the numbers have changed yet again.

What disturbs me isn’t so much the additional work that the Congress has created for me, or even the additional aggravation for students and practitioners. It’s my inability to understand the point of making the change. There standard justification for the long parade of increases in the section 179 limitation is that the increase will encourage businesses to make equipment purchases that they otherwise would not make, thus boosting the economy. That explanation seems plausible, at least on its face, but I cannot imagine that more than a few people will run out and spend an additional $25,000 on equipment because they’ll save $8,000 in taxes. Where will they get the net cost of $17,000? My guess is that they would cut back spending in some other area, thus causing a negligible impact on the economy generally, though perhaps boosting one segment at the expense of another.

Here’s what I think happens. Businesses that have already spent, or plan to spend more than $100,000 but less than $400,000 on new equipment, get a windfall. Suddenly, they benefit from as much as an $8,000 tax decrease. Yes, this stimulates the economy because it gives them $8,000 to spend. But at the same time, others will be paying additional taxes because this most recent bill allegedly is revenue neutral.

Here’s one of the revenue offset provisions:

SEC. 8241. INCREASE IN AGE OF CHILDREN WHOSE UNEARNED INCOME IS TAXED AS IF PARENT'S INCOME.
(a) IN GENERAL- Subparagraph (A) of section 1(g)(2) (relating to child to whom subsection applies) is amended to read as follows:
`(A) such child--
`(i) has not attained age 18 before the close of the taxable year, or
`(ii)(I) has attained age 18 before the close of the taxable year and meets the age requirements of section 152(c)(3) (determined without regard to subparagraph (B) thereof), and
`(II) whose earned income (as defined in section 911(d)(2)) for such taxable year does not exceed one-half of the amount of the individual's support (within the meaning of section 152(c)(1)(D) after the application of section 152(f)(5) (without regard to subparagraph (A) thereof)) for such taxable year,'.
(b) CONFORMING AMENDMENT- Subsection (g) of section 1 is amended by striking `MINOR' in the heading thereof.
(c) EFFECTIVE DATE- The amendment made by this section shall apply to taxable years beginning after the date of the enactment of this Act.

Fun, isn’t it? The upshot is that more children will have their taxable income taxed at their parents’ rates. Added to that group are children between the ages of 18 and 19, and children between the ages of 19 and 24 who are students, provided that their earned income does not generate more than one-half of their support.

So, put simply, the tax burden on some taxpayers, age 18 through 24, will be increased so that some businesses can get tax reduction windfalls from equipment purchases they would have made in any event. Interesting, isn’t it? Yet more is being put on the backs of teenagers and those barely out of their teens.

Anyone want to guess how much of the $8,000 windfall sustained by a business will be used to create a job for a student trying to work his or her way through college?

I thought so.