MauledAgain

The provision permitting deductions related to for-profit activities, to use a loosely-formulated succinct description, is fairly easy to cover after having considered trade or business deductions because several of the definitional components are the same. Having set aside only one-half of a class to examine the topic, I emphasize two points.

One important consideration is the very subtle, yet important, difference between the requirements for a deduction arising from a for-profit activity and a deduction for a loss arising from a transaction entered into for profit. The best example is that of a person who tries to sell a principal residence but then rents it out to tenants because the housing market is not favorable. There are cases permitting the rental expenses as deductions of a for-profit activity but disallowing the loss incurred when the property is sold. Some students struggle with the distinction, especially if they are not accustomed to working in areas demanding significant precision. At this point in the semester, students who are having difficulties understanding the technical difference between the meanings of similar, yet distinct, phrases need to know that they would benefit from more intense statutory interpretation practice.

Another important consideration is the allowance of a deduction for the expenses of preparing tax returns and obtaining tax advice. I take the opportunity to reinforce a point I made when dealing with the inclusion and deductibility of alimony, namely, how essential it is for attorneys to provide clients with invoices broken down into the specific tasks performed by the attorney so that the portion attributable to providing tax advice can be identified with little or no effort by the tax return preparing. Finally, I inject some humor into the picture by describing the case of an LL.M. student who, failing to qualify for an education expense deduction, tried to obtain a deduction for his LL.M. tuition because he characterized the education as an expense of preparing his tax return. Goodness, part of me admires his courage and his inventiveness, especially when I consider how much one needs to know and understand to prepare a tax return. Yes, he lost. But the students again have the chance to appreciate why tax can be fun.

Next: The three-minute topic that became a three-hour topic

Six specific trade or business deductions receive more than passing mention in the course. Two of these are left to the students to learn on their own, namely, the deduction for reasonable compensation and miscellaneous business deductions, such as the deduction for work tools and work clothing. Four 50-minute class sessions are set aside for a greater or lesser scrutiny of travel and transportation expenses, education expenses, losses, and depreciation.

Over the years coverage of the travel and transportation deduction has diminished, to the point where describing it as cursory would be generous. At best, students come away understanding that the cost of commuting is not deductible, learn that meals are not deductible unless the travel is overnight, and examine the concept of tax home and away from home. They don’t dig into all the permutations of business travel. For example, the rules applicable to meetings on cruise ships are passed by.

Education expenses get attention. Once again, the students meet a topic that relates directly to their lives. Once again, they’re unhappy. No, they can’t deduct their tuition. Sometimes I hear expressions of disappointment. Even though they aren’t education expenses, I toss in bar admission fees, bar dues, and several similar items. There’s something gratifying about making a course relevant.

Trade or business losses don’t require much time. I take the opportunity to bring the section 267 loss disallowance and nonrecognition rules into the line-up, because they involve situations in which bad planning triggers bad tax consequences.

The substantial portion of the allocated time is dedicated to depreciation. Even without sinking into the details, there are all sorts of issues to explore. The dynamic nature of the tax law is demonstrated by the existence of three major depreciation systems. The timing aspect of the deduction needs attention. The difference between straight-line and accelerated depreciation must be understood. There are conventions, methods, and sub-systems. There is the section 179 expensing overlay. This is another example of how the tax law constantly changes. This provision has been amended almost every year during the past decade.

Many law faculty try to reduce depreciation to concept, but I think that without visualizing the way the deduction “spreads out” under the different combinations of section 179 and the depreciation methods there’s no way to appreciate the significance of the choices faced by the taxpayer. The depreciation computation is simple, at least at the level to which I take the students, because it consists chiefly of finding the appropriate table and doing a simple multiplication. Lest anyone think it’s too complicated, rest assured I do nothing with the additional layer imposed by section 280F other than to point out its existence and general purpose and scope. It was worse when the section 168(k) bonus depreciation was in place. Fortunately, that’s gone, at least for the moment.

When I’m told that this is too complicated, I reply that I do the students a disservice if I portray the law as something less than it is. The Congress doesn’t smooth things over for lawyers. Even so, I do oversimplify much of this topic, and others, so I resist further attempts to water this topic, or the course, down to something so simple it’s useless when applied to the practice world as it exists.

Next: For-profit activities

Finally, usually 2 or 3 classes behind schedule, we reach deductions. After a brief overview of the four groups of deductions, I jump into the first, trade or business deductions. Waiting for their turn later in the semester are for-profit activity deductions, deductions allowable in any event, and deductions limited to individuals.

About one 50-minute class is used to understand the core ingredients of section 162(a), namely, ordinary and necessary, paid or accrued, trade or business, and carrying on. Also included in this cluster is the distinction between repair expenses and capital expenditures.

As one might imagine, none of these definitional elements or concepts is treated in ultimate detail. As has been the case all along, there simply isn’t enough time. So my goal is to sensitize the students to the issues. Ultimately, the questions are factual ones, which frustrates the students. Whether something is ordinary and necessary, whether someone is carrying on a trade or business, whether an activity constitutes a trade or business, and whether an outlay must be capitalized depends on the specific facts of the transaction. All I can do is to have the students think about some specific instances and hopefully acquire a sense of how it all works out.

To convey the significance of the “carrying on” requirement, I use a problem that involves job search expenses. This resonates with law students. Of course, they’re not happy with the result of applying the law to their own circumstances. It is enlightening for me to hear all the clever, but futile, arguments that they raise in their attempts to persuade me that they are carrying on the trade or business of practicing law when they work as law clerks. Even if they accomplished the impossible, they would need to persuade the IRS. What matters, though, is that they try, and in trying they exercise their brain cells.

Next: Specific trade or business deductions

The gross income segment concludes with a close look at the tax consequences of alimony, child support, and property settlements. It is not too difficult to learn what needs to be done to cause an alimony payment to be includible in the gross income of the payee spouse, which makes it deductible by the payor spouse, One can see the transition developing in this topic, as it is impossible to understand the gross income aspect of alimony without considering the deduction.

The challenging aspect of this topic is alimony recapture. This is the students’ first encounter with recapture, one that they will meet again and again as the course progresses. Recapture is yet another timing concept. What makes it frustrating is the absurd computational scheme. Ignoring the computations removes the ability to illustrate how it works, and without the illustrations students simply don’t “get it.” So I end up using at least 2 50-minute classes working through the basic alimony definition, recapture, child support, and property settlements.

The topic involves not only the timing impact, but also the impact of tax rate differentials. These include not only differences between the spouses’ rates, but also differences between the rates applicable to each spouse in the year or years of payment and in the year of recapture.

The topic also provides a marvelous example of why domestic relations lawyers need to understand tax. One or two tales of malpractice gets the students’ ears, though the ones who need to hear this aren’t in the course. Students learn, for example, that the timing of the first payment and one spouse’s departure from the household can have significant adverse or beneficial tax consequences.

Next: It’s deduction time

Because the taxation of damages depends on what the damages represent, it makes sense to leave this discussion to near the end of the gross income segment of the course. Afer all, if a person successfully sues for an unpaid annuity, the damages are taxed as though an annuity had been paid. Damages representing unpaid tax-exempt interest are excluded from gross income. To tackle damages earlier in the course would be counterproductive.

In recent years, the Supreme Court has addressed the taxation of damages more than a few times. For me, the question is what to remove from the course to “make room” for the more recent decisions. It’s not an easy choice. It is one factor in the decision to reduce significantly the emphasis on like-kind exchanges. It is, though, an opportunity to explore the policy issues underlying the exclusion of damages for physical injuries and to ponder the meaning of physical in this context.

Next: Alimony and child support

When it comes to teaching the taxation of investment income, I let the students teach themselves the two easiest topics, and use classroom time for two topics that are more difficult for students to learn on their own. It ought not take students more than a few minutes to learn that interest and dividends are included in gross income, and that tax-exempt interest is not. I tell them not to worry about the technical requirements that must be satisfied in order for the interest to qualify as tax-exempt. It also is not yet time to examine the special low tax rates that apply to most dividends. I also let the students teach themselves the basics of the education bond interest exclusion, because it is helpful for them to appreciate that they can teach themselves something new, an experience sure to occur many times while they practice law.

It is with life insurance and annuities that the students need assistance. Though many have heard of life insurance, very few have a clue as to what annuities are. Those who have heard of life insurance rarely understand its components or how it works beyond providing a death benefit. Once again, the challenge is not the tax law but the underlying transaction. This phenomenon is consistent with the observation that first-year students have more difficulty with, and thus less fondness for, civil procedure and contracts than torts, because they are less familiar with the transactions involved in the former courses. I’ll resist the temptation to write an essay on the need for undergraduate institutions to teach their students about two subjects with which every person must cope, whether or not in law school.

So why include these two topics in the course? Both introduce students to another timing concept, that of basis recovery over a period of years. Both are key ingredients of subsequent tax courses, including corporate and partnership tax and estate planning. Annuities are the foundation of retirement plan distributions, so students intending to practice in that area, and students intending to receive retirement plan distributions, benefit from the brief introduction they receive in the course. In other words, these are topics with practical implications for the students’ lives and professional careers. It is frustrating that only 25 minutes can be allocated to this topic.

Next: Taxation of damages

OK, so I don't interrupt my blog series on designing the introductory J.D. income tax courses to comment on the recent change-of-heart in Murphy, but I do need to interject this bit of information. On Murphy, what could I add to what others have said. I doubt anyone else will comment on this bit of information.

According to the editor of CollegeDegree.Com, a site dedicated to providing reviews and advice about on-line college and graduate degrees, I've made their list of 55 of the Hottest, Smartest, Most
Talked About College Professors. I'll buy one of the smartest, small ego that I have. I don't think anyone, including myself, could go with hottest. Talked about? Who knows? Perhaps some folks are so bored they need to amuse themselves talking about a tax law professor and author.

So I'll enjoy one of my fifteen minutes of fame. Surely I'll be bumped off the list by some parvenu whose name appears with that bullet with which so few of today's music fans are familiar.

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?