MauledAgain

For tax practitioners, tax is a rational subject. So, too, is tax law. Occasionally afflicted by illogical provisions, it nonetheless contains a variety of rules, marked by definitions, computations, and limitations, that can be applied, in most instances, by that most rational thing, the computer. Where objectivity fails, it involves issues such as valuation and purpose, raising questions that can be resolved through objective analysis of facts and circumstances.

For many taxpayers, tax appears to be an irrational subject, one that triggers emotions in a serious way. The recently concluded presidential campaign demonstrated that tax is no less a hot-button topic as are the several other issues that can polarize discussion and threaten to polarize a nation. Though it may appear that the principal emotion evoked by the mention of tax is anger, the underlying feeling almost certainly is fear.

Last week, I responded to a request to share my views for a TaxProf Blog post on "Tax Policy Under President Obama." I did so, and my short essay appeared with those contributed by 14 other tax law professors in Tax Policy in the Obama-Biden Administration. Some of the essays attempted to predict what that administration would offer in terms of tax legislation, while others, and some of those that attempted to make predictions, also contained suggestions and discussions of tax theory. In my essay, I emphasized that much of what was promised during the campaign by President-elect Obama would not be enacted or would be significantly modified, that the dire predictions fears made by Senator McCain and his supporters would not come to pass, that the tax law would remain complicated and become even more so, and that changing circumstance would derail some of the campaign proposals. In short, the essay was a preface to my What's Ahead for the Tax Law? post of last Friday. I also noted that the tax law would not change into what I would want it to be, that it would reflect compromise, and that it would continue to generate griping. Though making some rather safe predictions, I also peppered the essay with words such as "perhaps" and "possibly."

Many of the comments that were posted in response to the collection of essays were generally disappointing, though not surprising. It wasn't difficult to pick out the people whose unhappiness at Tuesday's election results and whose apprehensions of impending doom came through loud and clear in their postings. The overused and disproven canard of "socialism" showed its face, as did the assertion that the next administration would steal all the wealth. The essays were described as "a crock" and "embarrassing," threats of tax fraud and voluntary unemploymet were offered, and the fifteen law faculty who contributed were accused of doing nothing more than "discussing their pet peeves and wish lists." One post rested on the assumption that Obama promised to repeal all of the 2001 tax cuts. Another poster advised one of the essay writers to "lay off the meds." The anger is obvious, the fear isn't well hidden, and the ignorance that fertilizes those emotions isn't difficult to find.

The temptation to respond was too strong to resist. I pointed out that someone closely reading my essay would understand that it was not a wish list nor a collection of pet peeves. Though such lists and collections may have surfaced in some of the posts, lumping all of them together as sharing that characteristic is ignorant nonsense. My response also replied to the inquiry, "Does the fact that not one of these experts have any idea of what a President Obama would do, in spite of his innumerable promises, not give a moment's pause?," by explaining that the words "perhaps" and "possibly" were intended to reflect that unpredictability, and by wondering if those words showed up in invisible ink. I closed by sharing the thought that inspired today's post: "Sometimes I wonder whether rational analysis will ever trump emotional reaction."

The fear that taxpayers demonstrate, chiefly through angry comments, is thoroughly disproportionate to the disadvantages that they might face. Joe the Plumber became famous because he expressed his indignation at the very idea that if he managed to generate $250,000 of income -- presumably taxable income -- that his tax bill under Obama's stated plan would be more than that under McCain's stated plan. Had Joe bothered to do his arithmetic, he would have discovered that if his taxable income increased to $260,000, he would pay approximately $400 more under Obama's plan than he would under McCain's plan. Had he thought more, he would have had to admit that in order to make that sort of money he would be taking advantage of employees billed out at rates much higher than their salaries, and that Obama's response was an attempt to instill in Joe the Plumber some sense of obligation to pay back to society a very small portion of the largesse Joe could acquire by conducting business in a nation that protects him, his employees, his contracts, his suppliers, and his business. In other words, Joe, if you do manage to make that sort of money, you can't claim you did it on your own.

Yet somehow, significant numbers of taxpayers, almost none of whom would be disadvantaged by Obama's tax plan, became distressed, angry, and fearful that their wealth would be seized. Almost all of these taxpayers, and perhaps all of them, rallied to the defense of the taxpayers who supposedly would suffer when the tax cut enacted for them eight years ago was revoked or permitted to expire. Why would members of the middle class rush to the defense of the upper class, when the upper class surely won't go bankrupt on account of Obama's tax plan, and when the current economic travails of the middle class are attributable, in no small part, to the stock market and loan-making shenanigans in which those with excess wealth have engaged? Why does it seem so difficult or impossible for the middle class to understand that they are not targets of some wealth confiscation plan? Could it be that clever manipulators have taken the combination of ignorance and fear percolating in the collective subconscious of the middle class and whipped it into a frenzy that makes rational analysis impossible? As many intelligent tax experts, and others, have noted, Joe the Plumber was used.

The appeal to emotion is usually dangerous. It can be effective, but that effectiveness is almost always a short-term phenomenon and a long-term catastrophe. The appeal to emotion underlies most advertising, too much of political campaigning, all hate crimes, and most rumor-mongering. The appeal to emotion is everywhere. It pops up constantly in law school, where students too often begin their arguments or responses to a question from a moot court judge with, "Your Honor, I feel that…" rather than with "Your Honor, careful thought suggests that …" or "Your Honor, sequential analysis of the facts compels a conclusion that …" Though feelings may have a role to play when juries consider punitive damages or the death penalty, it makes little sense to argue that "I feel that section 163(h) allows the deduction." I truly hope that the student, the attorney, the tax practitioner, and the taxpayer would *think* that section 163(h) allows the deduction. Whether section 163(h) allows the deduction is a matter of rational analysis, not of emotional reaction.

The key to muting the anger about tax proposals that has become so rampant in recent weeks is to defuse the fear that fuels it. Fear is broken by knowledge and understanding. Knowledge and understanding are transmitted and acquired through education. The education need not be formal. It is the moral obligation of every educator, whether holding a formal position on a school's faculty or writing a blog, whether teaching a regularly scheduled class or dispensing information on a talk show or news network, to disseminate truth, to refrain from exaggerations and half-truths, to encourage rational discourse and discourage emotion-laden soundbites, and to realize that until fear is dispelled, knowledge cultivated, and understanding acquired, the nation's ability to restore itself, an effort that will involve the tax law in no small part, will be impeded.

Trying to predict what changes will take place in the tax law as we approach 2009 and the commencement of the Obama Administration is a fool's errand. No one knows. Barack Obama does not know. Members of Congress do not know. Tax experts, tax practitioners, tax law professors, and tax return preparers do not know. There are two principal reasons that no one knows. First, legislative proposals get modified, adjusted, expanded, narrowed, and reconstructed as they go through the legislative process. Second, events will take place between now and the date or dates in 2009 when amendments to the Internal Revenue Code are enacted that will influence or even compel changes that had not been contemplated or that had been considered and rejected.

None of that, however, is getting in the way of web site after web site, columnist after columnist, pundit after pundit from venturing into the risky world of making predictions. Although there is some information to be gleaned from party platforms and campaign speeches, there really isn't enough information to make the predictions anything more or less than educated guesses. Many prognosticators simply are presenting what they would like to see happen, even though some of the proposals have very little chance of finding a home in the Code. Others are zeroing in on one or two narrow provisions or proposals, leaving the overall crystal ball analysis to others. I've read enough of these commentaries to conclude that if a tax proposal exists, someone somewhere has come forth with an assurance that it will find life in the Obama Adminstration and the next Congress.

So I'm going to play it safe. Though some have said that other issues will occupy the Administration and keep it from focusing on tax law changes until 2010, I disagree. With one exception, no matter what major issue facing the nation is tackled, the tax law will be amended. In no particular order, because I have no clue as to what the priorities for solving these these problems will be:

Health care? Even the simplest of tweaks will involve changes to at least a handful of Code provisions dealing with medical expenses, health savings accounts, and the like. In Obama's plan is a health care tax credit.

The impending crises in social security and medicare and the shaky status of retirement plans? Much attention has been given to Obama's suggestion that a tax be levied on high level incomes to fund the social security and medicare trusts, and there also are proposals to change the rules currently applicable to private retirement plans, such as eliminating required minimum distributions from plans for taxpayers 70.5 years of age and older.

Energy independence? I guarantee that any program designed to encourage development of alternative energy sources, energy conservation, and similar initiatives will be done principally through the tax law. The precedent is entrenched.

Environmental issues? As is the case with energy independence, proposals being floated will increase the size of the Internal Revenue Code, just as the ideas already enacted have done. Increased credits for clean-fuel vehicles can be found in Obama's tax plan.

Economic downturn? There will be some sort of stimulus payment or, in lieu thereof, some sort of incentive to increase investment, perhaps in the form of an income tax credit for businesses and indivduals making certain types of acquisitions. There will be changes to the taxation of American business activities abroad and to the tax treatment of asset transfers to foreign tax havens.

Fixing problems in the education systems? Obama's plan includes, among other things, an American Opportunity Tax Credit.

The war in Iraq? This is the one major issue that I don't see generating tax law changes. That's ironic, because it's the failure to raise taxes to pay for the war that contributed significantly to the credit crunch.

And whether anyone likes it or not, there are all sorts of tax provisions expiring in 2009 and 2010, some of which, if left alone, would create all sorts of havoc for taxpayers, including the surreal decision facing terminally ill taxpayers facing an estate tax if they survive from December 31, 2010, into 2011. In other words, there will be no choice but for the Obama Administration and the Congress to do something with the tax law.

What won't happen is simplification. There's very little, if any, attempt to remove or consolidate existing provisions. There will be more credits. The actual tax liability computations will become more complicated. The AMT will continue to star in its own horror movie as the once sensible but no longer viable abuse remedy that will not die.

People will continue to complain about the existence of taxes, the amount of taxes that they pay, and the complexity of taxation. Bickering on Capitol Hill will continue, as members of the House and one-third of the Senate begin to focus on the 2010 elections, with tax policy again finding a spot in the center of the stage.

TurboTax will not go out of business. Tax return preparation and tax advising will continue to be growth industries, though whether that will increase employment here or abroad depends on what changes are made to the tax law.

For me, the basic tax course will not become any easier to teach or to take. The same can be said, to a lesser extent, of my other tax courses. There will be even more tax portfolios and book chapters for me to modify and create. There will be no slowdown in the flow of questions posted to the ABA-TAX and similar listservs.

And I will not run out of material for MauledAgain.

It's wonderful that the number of voters who bought into the "Barack Obama voted to raise taxes on everyone earning more than $42,000" misrepresentation were outnumbered by those who recognized not only its falsity but the extent to which it reflected desperation. It's one thing to debate a point on which reasonable minds can differ, such as the degree of progressivity in the income tax that is best for fixing the economy. It's a totally different thing to make false assertions designed to create fear and panic among people genuinely worried about their economic tomorrow.

The supposed tax increase on income exceeding $42,000 was part of a budget bill, and therefore would not become part of the tax law. What's more important is that the budget plan would have increased taxes on unmarried taxpayers earning more than $42,000, but would not have affected married couples or people filing as head of household. An ad that tries to make married couples earning more than $42,000 think that Obama voted to raise their taxes is deceptive and manipulative. It takes unfair advantage of the overwhelming percentage of Americans who, for one reason or another, do not understand the tax laws, the Congressional budget process, or the nuances of legislative drafting.

On Saturday, a McCain canvasser knocked on my door. We had a nice conversation. It was apparent he was disappointed in John McCain but very worried about the economic policies of Barack Obama. Yet his pitch focused chiefly on the well-worn allegations about Obama's past associations. When, however, he tossed the "voted to raise taxes on everyone earning more than $42,000" claim, I stopped him and told him what I do for a living. His crestfallen expression said it all. I saw him again this morning [edit: by the time this posted showed up it was yesterday morning] when I voted. He asked me if I had changed my views. I responded that after hearing the $42,000 question turned into a radio ad, the door had closed.

Let's face it. Even if Obama wanted to raise taxes on everyone earning more than $42,000, and he doesn't want to do that, there's no way that the Congress would go along. Two years from now, all of the House and one-third of the Senate will be up for election. As critical as I am of the Congress, I'll give them credit for not being so callous as to think that their constituencies would be accepting of a tax increase of such a scope. Yes, there will be some folks facing tax increases, or to be precise, revocation of previous tax cuts. Though there has been talk of revoking tax cuts for those with incomes exceeding $250,000 in 2009, it would not surprise me to see them remain in place until they expire in 2010. What does not exist is a consensus to extend those tax cuts past 2010, though it also would not surprise me to see the tax cuts for those earning less than $200,000 renewed so that they do not expire in 2010.

This much is certain. Though there are going to be quite a few amendments to the tax code in 2009, Congress is not going to increase taxes for all taxpayers earning more than $42,000. It's unfortunate that some people cast votes thinking that Congress would do that if Barack Obama were elected. It's even more unfortunate that supposedly responsible candidates permitted those people to be misled.

Last week, in Wealth Redistribution, Socialism, and the Tax Law, I wrote:

The notion that believing in taking from the haves and giving to the have nots makes a person a socialist means that almost every President elected since 1913, and almost every member of Congress elected since that time, is or was a socialist. How do I develop that reading of the GetLiberty assertion? The federal income tax usually takes something from the haves and redistributes it to the have nots, though in recent years it also has taken from the have less and provided more to the already haves. Since 1913, the executive and legislative branch of the federal government has enacted, amended, and administered a progressive federal income tax. Seen in this light, the notion that Obama, or anyone else supporting the progressive federal income tax, is a socialist, is a total canard, a misleading sound-bite designed to mislead those who are emotionally predisposed to dislike taxation.

From what one hears from those trying to equate wealth redistribution through a progressive income tax with socialism, it might appear that wealth distribution through progressive income taxation is some un-American plot by a small group intent on accomplishing something to which most Americans are opposed.

Perhaps to the surprise of some, but surely not to the shock of many others, a recent Gallup poll tells us that 58% of respondents concluded that the current distribution of money and wealth in the United States is not fair and that money and wealth should be more evenly distributed among a larger percentage of the people. Gallup has been asking this question for two decades, though surely its appearance as a hot button topic in the current election prompted Gallup to ask it again. Whenever it has been asked, a majority of those asked the question reached the same conclusion as did the majority of respondents during the most recent questioning. Gallup also asked if wealth should be redistributed through "heavy taxes on the rich," but only 46% of those responding to the poll agreed. Precisely one-half disagreed. These numbers do not differ significantly from the results when Gallup has asked the question in the past, though earlier this year 51 percent agreed.

Unfortunately, at a time when the country needs to be unified, Gallup's follow-up questions demonstrate the depth of the chasm that divides the populace. Among Republicans, roughly two-thirds think that the current distribution of wealth and money is fair, whereas only one-third of independents and 13 percent of Democrats agree with that conclusion. Among Republicans, only 17 percent agree with the proposition that wealth should be redistributed through heavy taxes on the rich, whereas 47 percent of independents and 75 percent of Democrats agree.

Gallup managed to combine the answers to these questions to determine that 41 percent of Americans are what it calls "strong redistributionists," namely, "those who say money and wealth should be more evenly distributed and that the government should do so with heavy taxes on the rich." Another 15 pecent are "non-government redistributionists," namely, "those who say money and wealth should be more evenly distributed but that the government should not attempt to do so with heavy taxes on the rich." That leaves 32 percent who are "anti-distributionists," namely, "those who say the current distribution of money and wealth is fair and who oppose heavy taxes on the rich." Four percent replied that current distribution is fair but that the government should heavily tax the rich. The others replied "don't know" to one or more of the questions.

What this poll tells me is that if opposition to the current distribution of wealth, agreement with the proposition that the tax cuts for the wealthy should be repealed, or both, makes a person a socialist, the majority of Americans are socialists and have been so for many decades. It ought not be surprising that a majority of Americans look at what tax cuts for the wealthy have accomplished and conclude that it isn't something beneficial for the nation. This issue may not be the sole factor in tomorrow's vote, but it certainly appears to be the principal issue. We'll know late tomorrow evening the extent to which saving the wealthy from the proposed repeal of their tax cut mattered to the electorate.

Today is Halloween. It's also the day that parade honoring the Philadelphia Phillies for their World Series Championship is scheduled to work its way from downtown to the stadium complex. This being Philadelphia, one hopes that what promises to be a long-awaited treat doesn't turn out to be a trick of some sort.

Yes, it's Halloween. Though it began unintentionally, I now focus on this holiday each year when it rolls around. Perhaps it's the connection between candy and Halloween. It surely isn't a break from tax, for I simply haven't succeeding in hiding tax issues behind a mask when October 31 appears on the calendar. Once again, tax leaves its imprint on the world of confections.

Last year, I summed up what I had done for the three previous costumed evenings:

In 2004, I looked at the idea of Taxing "Snack" or "Junk" Food. Those proposals seem to have melted away into the shadows of outright bans enacted by local governments on the use of trans-fats and other injurious food ingredients. But not seeing a ban on candy, I will let this issue settle in for a vampire's sleep. Please, someone, insert a stake through the heart of the dormant candy tax project. Let us not forget, chocolate is medicinal, and most state sales tax statutes exempt medicines from taxation.

In 2005, I had some fun with Halloween and Tax: Scared Yet?. Between trying to use every word associated with Halloween, and trying to find connections between various taxes and the tradition of dishing out candy, I managed not so much to scare people but to make them sick to their stomach, as if they had ingested 15 or 20 non-chocolate candy items.

In 2006, I simply lamented my inability to find four-pack versions of Reese's Peanut Butter Cups. In Happy Halloween: Chocolate Math and Tax Arithmetic, I noted that 2 double-packs isn't quite the same thing. It was a very short post. Imagine that! Perhaps the disappointment in my search for the ideal Halloween hand-out left me at a loss for words.

Last year, in 2007, I added Tricky Treating: Teaching Tax Trumps Tasty Tidbit Transfers, to the list. I again puzzled over the disappearance of the Reese's Peanut Butter Cups four-pack cartons from my usual shopping venues, and I noted that for the first time in six years my teaching obligations would prevent me from greeting the treat solicitors intent on adding weight to their candy bags by knocking on my door. Later that day, I posted Halloween Brings Out the Lunacy, when news broke that the Iowa Department of Revenue had ruled pumpkins are not food because they are used primarily for Halloween decorations.

This year my recognition of Halloween began on Wednesday evening, as I concluded the Partnership Taxation class for that evening. I suggested to my students that if they truly wanted to frighten the daylights out of the treat seekers, they should answer the door while holding open a copy of the Internal Revenue Code. That two-volume witches' brew concoction has sent more than a few hardy souls screaming into the night. Read that thing, and tax will haunt you forever. It might not be the most frightening Halloween tax stunt. Imagine the horrifying effect on party-goers when they show up to find one or more guests dressed up as revenue agents or tax auditors. Not yet petrified? OK, now imagine the ghastly impact of someone arriving dressed as a tax law professor.

The appalling news of the day is that I continue to fail in my effort to find those four-pack Reese's Peanut Butter Cups. I just don't think two two-packs has the same effect, despite the arithmetical equivalency. There's something impressive about not being able to fit the four-pack into those tiny plastic pumpkin candy-holders that get dragged about by children whose parents refuse to let them haul out the pillowcases. So if I can't get a yell of delight by doing the four-pack thing, perhaps I will generate a scream of loathsomeness if I start distributing the candy bar to end all candy bars. Relax, neighborhood children reading this blog. I haven't abandoned the Reese's. Not this year.

During the past week, the outpouring of "it's socialism" as a response to the proposal to revoke the tax cuts enacted for those with high-level incomes has continued unabated. For example, over at GetLiberty, the assertion is put forth that "Barack Obama is a socialist who believes in taking from the haves and giving to the have nots." It's unclear whether this assertion claims that Obama is a socialist BECAUSE he "believes in taking from the haves and giving to the have nots" or if the claim is that Obama is a socialist WHO " believes in taking from the haves and giving to the have nots." The latter interpretation suggests that there are socialists who do not believe in "taking from the haves and giving to the have nots." Perhaps there are such socialists, but if they exist, they're not on my radar. What is troubling about the assertion is the former interpretation, which must be the intended one considering that the latter interpretation makes no sense. The notion that believing in taking from the haves and giving to the have nots makes a person a socialist means that almost every President elected since 1913, and almost every member of Congress elected since that time, is or was a socialist. How do I develop that reading of the GetLiberty assertion? The federal income tax usually takes something from the haves and redistributes it to the have nots, though in recent years it also has taken from the have less and provided more to the already haves. Since 1913, the executive and legislative branch of the federal government has enacted, amended, and administered a progressive federal income tax. Seen in this light, the notion that Obama, or anyone else supporting the progressive federal income tax, is a socialist, is a total canard, a misleading sound-bite designed to mislead those who are emotionally predisposed to dislike taxation.

Continuing the dialogue and looking at another implication, should one conclude that those condemning the progressive federal income tax as socialist and advocating the denial of votes for any candidate who supports that tax means that they support a candidate who would repeal the federal income tax? If that is a component of their true and disguised agenda, how would they replace the revenue? I suppose some of them would simply cut federal spending to the level supported by, hmm, tariffs? State and local governments would need to impose exceedingly high taxes to provide the services that all Americans, including those who oppose the income tax, presently enjoy. Aside from the loss of economy of scale obtained when one government rather than 50-plus seek to acquire goods and services at the level demanded by citizens, the coordination of state militias that would replace the Department of Defense, for example, boggles the logistical mind.

I suspect that the goal is to replace the progressive income tax with a flat wage tax. The "he's a socialist" crowd is the same crowd, for the most part, that supports reduction and elimination of taxes on investment, whether it be capital gains, dividends, or interest. Or, putting it more accurately, the folks who jump onto the "taxes are bad" bandwagon are wage earners who don't understand that they are being used to create the illusion of popular resistance to the income tax, so that this illusion can be translated into an elimination of taxes on investment activity. If they were to think about it, they would realize what is intended to replace the current income tax is a flat tax on wages. A quick computation of whether they would be better off or worse off under the "I'm not a socialist" plan might shock them. It might even change their vote.

But there's even more dangerous implications in the tossing about of the words "socialist" and "socialism." On Monday, John McCain parlayed Obama's response to Joe the Plumber into an accusation that Obams wants to be, to use McCain's clever sound-bite words, "Redistributionist in Chief." Aside from the reality that using McCain's definition of the clever phrase, almost every twentieth and twenty-first century president has been the redistributionist in chief, the truly alarming implication is that McCain opens the door to an analysis of federal wealth redistribution policy. During the past decade, the relative wealth of the haves has increased, and the relative position of the have nots has decreased, stayed the same, and in a very few instances, increased though at rates disproportionately lower than the rate at which the haves have gathered more wealth. The issue isn't whether the federal government redistributes assets. By its very nature, it must. The issue is "in what direction is the wealth redistributed?" Any sensible American who thinks about this question, who studies the information readily available with respect to changes in wealth distribution during the past decade, and who carefully analyzes the effect of present tax policy, will come to understand that with respect to the wealth redistribution question, the choice isn't between a redistributionist candidate and a non-redistributionist candidate, but between a candidate whose redistribution policies favor those in need over those wallowing in excess and a candidate who advocates retention and extension of policies that favor the haves over the have nots.

From the perspective of those who understand the lesson of history that civilized society and justice are threatened when there is a growing disparity between the haves and have nots, between the nobility and the peasants, between the cartel owners and the workers, the notion that fixing the current economic crisis by undoing the causes of the damage consititutes socialism is genuinely worrisome. The proposal to "stay the tax course" in order to undo the economic woes that are a consequence of current tax policy is nothing more than a belief that if taxpayers can be duped once or twice, they can be duped a third time. When McCain claims, as he did on Monday, that his plan would "create wealth," "end this crisis," and "restore jobs," he must think no one has the ability to figure out that the very policies he advocates are those that ultimately eroded wealth, created the crisis, and destroyed jobs. When McCain claims his approach will create wealth, he is correct only in the sense that his plan, identical in tax respect to that of the person he seeks to replace, created wealth for the privileged few. If McCain's supporters think that socialism is terrible, and that some sort of "anti-socialism" is in order, then in effect they are telling us that they want four more years of a tax policy with an abysmal track record. The only logic in their argument is that, theoretically, if they keep trying the same disproven approach over and over, it might, perhaps, work. Yes, even a blind squirrel can find a nut.

Those who claim that repealing the discredited tax cuts for the wealthy constitutes socialism because it means redistribution of wealth are resting their case in part on something Obama said seven years ago. Here is what Obama said, in response to a Supreme Court civil rights decision:

But the Supreme Court never ventured into the issues of redistribution of the wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break us free from the essential constraints that were placed by the Founding Fathers in the Constitution … And the Warren Court interpreted, in the same way, that generally the Constitution is a charter of negative liberties … I think there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change.

To assist those who, like GetLiberty, label the quotation a "bloviation" because they cannot understand what it means, I will put it into simpler terms. Although the Supreme Court has held, in many cases, including the one on which Obama commented, that it is illegal to treat people differently because of race, ethnic origins, religious affiliation, or gender, the outcome for those who were being mistreated is a shallow victory. Why? Telling someone that they can sit in the front of the bus doesn't help the person who lacks bus fare. Telling someone that they cannot be excluded from a neighborhood because of ethnic origins means little if that person lacks the economic ability to purchase a home. So long as the economic playing field is tilted in favor of those with economic power in the form of excessive wealth, those at the bottom will not be able to get into the economic game. Put bluntly, it's not enough to end physical slavery if the nation continues to wallow in economic slavery. And economic slavery is far more dangerous than physical slavery, for it does not limit itself to any particular race, ethnicity, gender, or religion. Someone earning $6 per hour, with no benefits, working for a company whose CEO pulls down a $70 million salary, enhanced by golden parachutes and tax-free fringe benefits, surely must doubt whether the American dream is something unfairly limited to people other than themselves.

The discussion has turned on the phrase "redistribution of wealth." It doesn't, but should, turn on the notion of "distribution of wealth." Those who oppose redistribution of wealth, particularly redistribution from the haves to the have nots, assume that the unredistributed distribution, the distribution of wealth as it exists untouched by progressive income taxes, is the way it ought to be. They don't question how the wealth distribution ended up as it is. They assume that everyone with excessive wealth acquired it because of some praise-worthy work effort. They ignore the fortune and misfortune of birth. They ignore the corruption and bullying. They ignore the deceit and the theft. They ignore the benefits of monopolies and cartels. They claim that the free market manifests its glory in the wealth distribution patterns that exist. They see the word "free" in the phrase "free market" as meaning "free to do whatever one wants to do to acquire even more wealth" provided that when those who have little or no wealth try to behave in that manner, the much-detested government conveniently is available to slap them back down.

The current economic crisis has caused the wealthy to lose some petty cash. It has caused most Americans to lose or to be at significant risk of losing homes, jobs, dinner money, health care, and retirement resources. To label someone a socialist, and to label an error-correcting tax plan as socialism, under these sorts of circumstances and in a way that misleads the public, is a disservice to the nation. The nation, though, seems to be on the verge of demonstrating that it understands this point very well.

A new study by Prof. Joel B. Slemrod, a University of Michigan business school professor and Andrew Johns of the IRS, The Distribution of Income Tax Noncompliance has provided some surprising and not suprising news about tax compliance. The not surprising news is that 21 percent of taxpayers with annual income between $500,000 and $1,000,000 misreport income and deductions, whereas only 8% of those with annual incomes of $50,000 to $100,000 do so. That's understandable. People with less income have fewer opportunities to avoid taxes with difficult-to-detect schemes, have fewer resources with which to retain tax evasion consultants or to invest in tax avoidance schemes, and have little or no financial cushion to absorb the costs of being caught.

The suprising news is that only 11 percent of taxpayers with annual income exceeding $2,000,000 misreport income and deductions. That outcome is counter-intuitive. Would these taxpayers not have even more resources to devote to tax evasion? One of the study's authors explained, “It could be that the tax gap studies aren't as good at picking up the kinds of noncompliance they would do.” According to the Forbes article on the report, Slemrod noted, “I just don't know whether these audits were able to track down really sophisticated noncompliance or Swiss bank accounts. They may underestimate [noncompliance] at the top.” The answer might be found in an analysis of noncompliance rates for various types of income. Tax practitioners and others know that it is almost impossible to hide wages reported on W-2 forms, and the study confirmed that noncompliance with respect to wage income was 1 percent. Similarly, it is difficult, though not impossible, to hide income reported on Forms 1099, such as interest, dividends, gains, and similar items. In contrast, 62 percent of businesses with income between $50,000 and $75,000 and between $100,000 and $200,000 omitted income, overstated deductions, or both.

At this point, it is not a surprise to learn that, according to the study, taxpayers with true income (reported plus unreported income) of $200,000 or more were responsible for 40 percent of unreported income even though they received only 25% of all income. They also account for 42% of unreported tax. Combined with the data on noncompliance by income type, it appears that the worst noncompliance activity occurs among businesses with $200,000 or more of income. It would not be surprising for the planned additional studies to determine that noncompliance occurs wherever the willingness to evade taxes meets opportunities to do so, and that the opportunity to do so is highest among businesses of moderate size that are subject to the lowest level of reporting obligations. Whether the willingness to evade taxes differs by income class is a question that hopefully will be studied.

Resistance to proposals for better reporting with respect to business transactions usually rests on the assertion that the resulting paperwork burden would be so great that it would impede business activity and impose substantial costs on private enterprise. Although that proposition can be refuted on its own terms, particularly because advances in digital technology make the costs and paperwork minimal, it causes one to wonder whether the underlying motive for opposition is the awareness of how it would shut the door to what presently is massive tax evasion.

One also wonders whether full compliance by businesses with $200,000 or more of income and by taxpayers with incomes between $500,000 and $1,000,000 would generate sufficient revenues to dampen the need for tax increases proposed for taxpayers with incomes exceeding $250,000. Those increases would fall on the compliant. Would it not be better to fund the IRS to the extent necessary so it could collect unreported taxes owed by the noncompliant? If the estimates putting the tax gap at $300 to $400 billion annually are anywhere in the ballpark, there could be $4 trillion somewhere that should have been paid to the Treasury. For all we know, a good chunk of it is overseas. What's fairly certain is that very little of it can be attributed to noncompliance by taxpayers with annual incomes under $200,000.

The information provided by the report should contribute to the debate about tax policy currently finding attention in charge and counter-charge tossed about by presidential and vice-presidential candidates. Surely some carefully researched data is more valuable than emotion-laden charges of “socialism” and “communism.” Those terms, as I tried to explain in Taxes, Bailouts and Socialism, tell us nothing.

My post dealing with the charge that letting tax cuts for high income taxpayers expire, Taxes, Bailouts and Socialism, has generated all sorts of comments. Over at Economists's View, comments range from those that analyze the economic validity of progressive taxation to those that explore why support for revoking tax cuts for high income taxpayers has been tagged as socialism. The former group of comments address the impact of progressive taxation on the preservation of the purchasing power of all taxpayers, and how taxing the wealthy during a recession can steer their dollars into investments, and how stimulation of demand, which is what puts the brakes on a recession, requires wealth transfer. The latter group of comments focus on what the critics of letting the tax cuts expire truly fear. Perhaps it is more government involvement in their life, perhaps it is discussion of the issues that need attention, perhaps it is a fear that lower income citizens will acquire more political power. Other comments note that during the past eight years there has been a huge redistribution of wealth, from the lower income end to the higher, and that government taxation and spending includes benefits transferred to corporations. Still other comments wonder if churches that advocate social welfare are "socialist." As I write, the comments continue. It's very much worth wandering over there and checking them out, though a few are more worthy of being skimmed because they wander into tangential issues that don't bear directly on the issue.

Over at A Taxing Matter, Linda Beale has taken a look at the question, in Progressive Taxation--Socialism? or Just Standard USA Tax Policy?. She does a good job refuting the claim that progressive taxation constitutes socialism, and makes some additional points that I didn't set forth. Take a look.

One of the regular readers of MauledAgain wrote with these comments:

Regarding your blog post on the topic of socialism, it is not merely increasing taxes on the so-called wealthy that is denounced as socialism; it has always been part of Obama's platform to increase tax on the wealthy, but you'll find the media references to "socialism" with respect to Obama has only picked up a great deal lately. It is raising taxes on the wealthy and then redistributing those dollars to people who do not pay any income tax whatsoever (and in amounts in excess of employment taxes they pay) - a tenet of the Obama proposal that has only recently begun to get attention, and Obama's admitting that his goal is to "spread the wealth," that strikes many as socialist. This is plainly stated in the article that you link to at the beginning of your blog post. I don't think your post gave the cries of socialism a fair shake, as you mostly defeat an argument they are not making (you state "revoking income tax cuts for the wealthy isn't socialism" - I don't think many disagree with that, by itself). Additionally, there is likely a heightened sensitivity to socialism currently, following the bail-out and fed purchase of bank stock - each of which has been ridiculed as socialist by many on the right.

It is a basic tenet of socialism to spread wealth around, and the circumstances surrounding Obama's tax cut/raise and his comments do seem to cross an admittedly arbitrary line into real socialism (as opposed to the imaginary socialism, the pejorative term used to describe Demoratic safety net policies that have been around for 70 years). Rather than saying we need to fund government, and what is a fair way to spread the cost around (e.g., Clinton raised taxes predominately on the wealthy in 1993, but on everyone), the new policy is to increase taxes on some in order to write checks to others. You may find the policy pleasing, necessary and/or fair, but it is a new policy in this country that I don't recall any major party candidate advocating, and goes far beyond merely raising taxes on the rich to pay for a war.

Obama has also stated that he didn't care whether increasing capital gains tax would DECREASE government revenue (it is not important whether the premise is true, it's Obama's state of mind that is relevant), because according to him, increasing the tax is a matter of fairness. This comment was also shocking to many, implying that he would deliberately increase the deficit in order to cause certain people to have less money. It is these circumstances which have caused many to claim him to be a socialist.

I responded to his comments as follows:

Perhaps we interpret Obama's statement differently. I did not read it as revoking the tax cut on the wealthy in order to give cash to the poor and middle class. I read it as revoking the tax cut on the wealthy so that the government did not need to rack up deficits to provide the health care, school lunches, head-start education programs, and other benefits that indeed give opportunity to people who otherwise would be stuck in poverty.

This nation has been doing that for decades. It's socialism, perhaps not as far along the spectrum as Sweden's version, but it's socialism. When the administration refused to raise taxes to finance the war, it ended up cutting benefits to those in need. Obama seeks to fix that problem. That problem is exacerbated by the impact of cutting taxes on the wealthy, who didn't trickle much down to the poor other than short-term smoke and mirrors and longer-term financial distress. The poor and lower middle class will suffer far more from the present and continuing recession (depression, perhaps) than will the wealthy.

My reader in turn offered this rebuttal:

A few responses though:

1. Bush cut benefits to those in need? He doubled the size of government yet he managed to cut benefits? I remember all kinds of hollering in the Gingrich years about cuts in spending (which were really increases that were not as large as some liked) but I don't recall hearing that Bush has cut anything. Has he really?

2. This is a side issue, but tax cuts for the rich can be justified on moral/fairness grounds - if I believe tax rates are too high for those making between $200,000 and $500,000, then I'll support cutting their tax rates. Whether wealth "trickles down," or whether or not it helps the economy, is beside the point. The point of raising taxes is to pay for government, not rectify life's injustices or turn on or off the economy.

3. we may interpret Obama's comments differently, but my point is not to argue what Obama meant, but what Republicans who are crying "socialism" mean. They don't mean that raising taxes on the wealthy is, by itself, socialism. They mean that raising taxes on one group, while writing checks to another group who doesn't pay tax, all in the interest of spreading the wealth, sounds like socialism.

4. your response to #3 may be we already have socialism to some degree. True. This raises it a notch. But government ownership of banks, the bailout and the explicit policy of wealth redistribution (taxing some to write checks to others) crosses the line from an acceptable level of socialism (the safety net that's been in effect forever) to, for lack of a better phrase, "real" socialism.

And I, of course, tried to clarify my position:

The Bush spending doubled because of interest on the debt, the Iraq war, the war in Afghanistan, whereas states have struggled under mandates (federal imposition of obligations without federal funding). Taxes pay for government, and government needs to maintain a stable and productive society, which it cannot do if the poor get poorer, the rich get richer, and the gap widens. I'm no fan of the bailout -- read my posts -- but that was bipartisan socialism, and McCain voted for it, so it seems it's ok to take from the poor and middle class and redistribute wealth that way. Or at least to create conditions "conducive to business" that benefit the wealthy. Real socialism occurs when the government owns everything. We're not there yet.

And I should add, that's not where we will be. Surely letting tax rates return to where they were, and to where they should have returned when war erupted, is not going to trigger government ownership of everything. The government didn't own everything when income tax rates were more than double what they would be if the tax cuts for high income taxpayers are permitted to expire.

What I think underlies these charges of socialism is fear. It's fear, not of millionaires paying another fifty or a hundred thousand dollars in taxes, not of government taking over ownership of all assets, but of change. For quite some time, the economic and tax arrangement have favored the wealthy. They created this arrangement by persuading the middle class and even the poor that life would be better if income taxes were cut, particularly income taxes on capital gains and dividends. Yet when all was said and done and the policies advanced by the tax cutters played out, the nation ended up in what may be the worst economic catastrophe it has faced. While wages barely kept pace with inflation, and in some instances fell, while jobs were outsourced, while the quality of products and services suffered, while health care became less affordable and less available, while resources allocated to education continued to be insufficient, the percentage of wealth owned by the wealthy increased. Because the sales pitch worked in the past, they expected it to work again, but to their surprise, the track record of the don't-tax-but-spend crowd has turned out to be no better than, and in most respects worse than, the track record of the tax-and-spend crowd. With that taking the wind out of their economic policy sails, they turned their focus on a broader question, using terminology designed to spread their fear throughout the electorate.

The answer to Joe the Plumber's question was honest. It might not be something with which people agree, but at least it's not the misleading promise that cutting taxes will make everyone economically secure. And underneath this trumpeting of the "socialism" warning cry is an unarticulated lack of faith in America, a notion that somehow citizens will sit back and do nothing if attempts to fix the economic mess turn too sharply to what genuinely is socialism rather than returning the country to the path which uses economic policy to promote fairness, affordable health care, improvement in children's education, and the other characteristics of high quality of life that were promised but not delivered by the merchants of tax cuts for high income taxpayers. I don't see the appeal in continuing to do what has been done, when what has been done is what brought us to where we are.

When a candidate's tax plan is described as socialist during a presidential campaign, it should turn public attention to the tax policy question of why taxes exist. When Senator Barack Obama replied to the question asked by "Joe the Plumber" about his tax plan by noting that "I think when you spread the wealth around, it's good for everybody," he opened the floodgates of accusations that his tax proposals would amount to socialism. The accusations come from the Republican candidates, from journalists, from bloggers, and from commentators.

Determining whether the accusations make sense require two analyses. One is identifying what Obama's tax plan does. The other is identifying socialism.

Obama's tax plan is to increase taxes for individuals with incomes exceeding $250,000. Most Americans do not fall into that category, and 95 percent are unaffected by this particular proposal. Americans in that category are paying taxes at lower rates than they were paying a decade ago. The theory was that reducing rates on the rich would generate benefits not only for the rich, but also for everyone else. This "trickle down" theory turned out to be a failed experiment. All that trickled down was the economic pain inflicted on America by the casino capitalist gamblers. Technically, Obama proposes revocation of tax cuts for the wealthy. They had their chance. It failed, other than to make the wealthy wealthier, the middle class smaller, and the gap between the haves and have-nots wider. Obama incorporated that thinking into the portion of his reply that doesn't get as much attention: ""It's not that I want to punish your success. I want to make sure that everybody who is behind you, that they've got a chance for success, too. My attitude is that if the economy's good for folks from the bottom up, it's gonna be good for everybody."

The tag of "socialism" is an easy piece of red meat (pun intended) for those who want to stir up fears not unlike those afflicting the nation during the "red menace" days. The irony is that just as Communism (with the capital "C") wasn't really communism (with the lower-case "C"), so, too, imposing higher income taxes on the wealthy isn't socialism. Revoking undeserved and economy-damaging tax cuts for the wealthy isn't socialism. If anything, it reflects the fact that the wealth is built on the backs of those who produce it, not those who grab it, manage it, mismanage it, or gamble with it when it belongs to others.

Will Obama's tax plan redistribute wealth? Hardly. The additional revenue generated by the revocation of tax cuts for the wealthy very well may end up paying the interest on the national debt that was incurred because taxes were cut and kept too low during wartime. One could consider those tax cuts to have been a loan to the wealthy, and the events of the past month have demonstrated what they did with it.

But perhaps there's some wealth redistribution involved. One reasonably can argue that the revenue raised by revoking the tax cuts for the wealthy will be used to fund government programs that help only the poor or only the middle class or only the poor and middle class. Does that make it socialism? More important, does that make it bad policy?

Senator Mel Martinez thinks so. He thinks that revoking the tax cuts for the wealthy is equivalent to adopting the economic policies of Cuba. He also called the revocation "communism -- not Americanism." Wow. I suppose the Obama tax plan means that all land will be owned by the federal government? The analysis from Martinez is about as enlightening as the conclusions about Joe the Plumber's tax situation to which people jumped, as I pointed out in Taxing Joe the Plumber.

Colin Powell has suggested that "Taxes are always a redistribution of money. Most of the taxes that are redistributed go back to those who pay them -- in roads and airports and hospitals and schools. And taxes are necessary for the common good, and there's nothing wrong with examining what our tax structure is or who should be paying more, who should be paying less. For us to say that makes you a socialist, I think, is an unfortunate characterization that isn't accurate." Hooray for Colin Powell. I might disagree that taxes ALWAYS are a redistribution, because to the extent that they pay for services being rendered to the paying taxpayer, they do not transfer wealth. They simply represent an exchange of cash for services or property. But that articulation technicality aside, there are, and have been for decades, valid arguments for imposing higher taxes on those on whom America has bestowed better opportunities and greater fortune. Undoing the mistaken tax cuts, and fixing the problems caused by trying to fight a war without raising taxes, isn't socialism. It's an attempt to undo the problems caused by welfare for the wealthy.

Other commentators have pointed out that if someone wants to find socialism in government policies, one need look no further than the $700 billion bailout of the financial services industry. When Governor Sarah Palin was asked about the bailout, she characterized it as "measures that had to be taken by Congress to shore up not only the housing market but the credit markets -- also to make sure that that's not frozen -- so that our small businesses have opportunities to borrow. And that was the purpose, of course, and that part of the bailout and the shoring of the banks." Again, articulation issues aside, why is a rescue of middle-class taxpayers any less a "measure that has to be taken by Congress" to shore up individuals' financial status? The difference, it seems to me, is that she and those of like mind think it's acceptable to shore up institutions and the wealthy but not to help the poor and the middle class.

Senator John McCain tried to distinguish the bailout from a tax increase on the wealthy by saying, "That's the reason why we have governments, to help those who need help, who can't help themselves, and in a time of crisis, to step in and do what's necessary to preserve the lives and futures of innocent people. It wasn't Main Street America that caused this; it was Washington and Wall Street." Whoa. A total ban on wealth redistribution would mean tens of millions of people in need would not get assistance, and in many instances would die. Social Security is wealth redistribution. So, too, is Medicare. So, too, are food stamps. So, too, is the program that provides breakfasts and lunches to school children who would otherwise go unfed. So, too, are all sorts of other programs. If these programs are socialism, and if support for these programs make someone a socialist, then here's some news: by that definition, America has been a socialist nation for decades, and most of its Presidents and legislators have been socialists. So what would it mean to purge "socialism" from public policy? What then would life in America be?

In Children, Toys, Greed, Profits, Gambling, and Lessons from History , I noted that some experts have warned us that if the world's economic problems are not solved quickly, the world will enter a "dangerously deep recession." I then wondered if we tightened up that phrase, would we get Depression?

Well, the experts assure us that there is little chance of a depression. But, instead, they are beginning to express concern about another d-word. According to The Dark Side of Lower Prices, the concern is deflation. What is deflation? It's the opposite of inflation. Instead of increasing every month and every year, prices drop. Look around. Stock prices are dropping. The price of oil has returned to levels not seen for a while. The price of gasoline is now under $3 per gallon. Housing prices have been trending downward for at least a year.

Because inflation causes so many worries, particularly among individuals on fixed incomes and organizations on fixed endowments, it is tempting to think that deflation would be good news. But it isn't. Economists explain that when prices drop because demand falls, producers must cope with production costs that exceed revenues. Their reaction usually is a reduction of production, together with the dismissal of part of their work force. In turn, demand for goods continues to drop, and prices continue to fall.

Economists suggest that it is very difficult to reverse deflation. To many of them, it is "scarier than a recession." Though most of them don't think deflation will occur, the odds that at least one economist puts on it happening are now six times what they were a month ago. Deflation, it seems, can cause, hasten, or worsen a depression, though it doesn't necessarily have that effect.

Conditions for deflation are present, we are told. So it could happen, even if the chances aren't high. It's not comforting to be told that declining prices are not a reason to hope that the economy recovers quickly, but rather a reason to begin worrying about deflation.

Curious, I looked again at the tax code to see if my initial thought was correct. It was. A variety of numbers in the tax law are adjusted for inflation. Technically, they are increased to reflect upward changes in the consumer price or other index. What's missing, I thought, was a downward adjustment for deflation. My thought was correct. If deflation sets in, the tax law will not respond as it does when prices rise, unless Congress steps in and amends the law. We've been living with inflation for so long that no one considered writing the inflation adjustment language in a manner that responds to both deflation and inflation.

It took Congress decades to insert inflation adjustments into the tax law. If deflation comes upon us, will it take Congress several more decades to make adjustments in the tax law for deflation? From the economists' perspective, we had best hope that the question remains theoretical. For if it becomes real, we're in even deeper trouble than the deep mess in which we currently are. And that, folks, is a depressing thought.

When I discuss the portion of the presidential candidate's debate over taxes with people who are not tax experts, they tell me they are bewildered and have little faith in what is being said. When I discuss the matter with tax experts, I generally find the reaction to be one of concession to the inadequacy of a debate as a platform for educating citizens about proposed tax changes.

The difficulty, of course, is that one cannot discuss proposed tax changes with people unless those people understand what it is that would be changed. The average American citizen does not understand the nuances of federal taxation that both major presidential candidates seek to change. Information is generalized, assertions are misleading, rhetoric trumps technical analysis, and people remain confused. It is even more difficult to put policy considerations into the spotlight if they are resting on a foundation of half-truths, mis-information, and rhetorical jabs.

In trying to make their point, both candidates argued about the impact of their tax plans on a fellow named Joe Wurzelbacher. He's a plumber who had a conversation with Senator Obama in Ohio during a campaign stop, and who has now become known as Joe the Plumber. Joe told Obama that he was planning to buy the plumbing business for which he has worked, but was concerned that his income taxes would increase under Obama's tax plan. So Senator McCain brought up this encounter during the debate and asserted that Joe's taxes would increase under the plan.

Here's the problem. No one knows the facts. Is Joe the Plumber looking to buy a business that generates taxable income of $250,000? Gross profits of $250,000? Revenues of $250,000? One need only google "Joe the Plumber" and "taxes" or "Joe the Plumber" and "250000" to find all sorts of web sites raising questions, and making factual assertions about Joe Wurzelbacher's plumbing enterprise. Some commentators are trying to analyze the income of the business based on the assertion that there are only two plumbers working for it, using assumptions with respect to hourly charges, hours worked, expenses, and similar issues. So for all we know, this particular Joe will have a taxable income of less than $250,000. Or perhaps his taxable income exceeds $250,000. We don't know.

What we also don't know is the impact of other proposed tax changes on Joe's hypothetical income tax liability were he to acquire the plumbing business. What is the impact of McCain's proposed elimination of the employer deduction for health care coverage or for the inclusion of health care coverage in gross income, coupled with a credit?

When the two candidates then engaged on this question during the debate, the analysis became totally clouded. McCain claimed that Obama would put Joe in a higher tax bracket, which would cause him not to be able to employ people. McCain then added "which Joe was trying to realize the American dream." Did McCain intend to describe employing people as the American dream? Later he clarified the American dream as that of "owning their own business." McCain continued to claim that fifty percent of small business income taxes are paid by small businesses. Excuse me. Does that mean that the other fifty percent of small business taxes, whatever in the world that might mean, are paid by businesses that are not small
businesses? If they're paid by businesses that are not small businesses, why would they be small business taxes?

Because we don't know the taxable income generated by the business Joe the Plumber is considering buying, we don't know by how much, if any, its taxes would increase under the Obama plan or under the McCain plan. Would those taxes increase by an amount equal to what Joe would pay an employee? We have no idea, and I doubt McCain has any idea. What we heard were sound bites that would earn more credit in an English literature class than in a tax course.

Obama responded by trying to demonstrate what he called the major difference in tax policy between himself and McCain. He noted that the issue wasn't whether taxes should be cut, but for whom the tax cuts should be enacted. As he phrased it, hopefully most listeners could understand the basic issue in the tax discussion. Who should get a tax cut? Obama proceeded to describe McCain's plan as one that would provide tax breaks to large corporations, specifically noting that Exxon Mobil and other oil companies would get a $4 billion tax cut. Is that so? No one has shared the computations by which that estimate has been determined, though there is no question that McCain's proposal would reduce corporate taxes. Of course, it would reduce taxes for corporations other than oil companies, but I suppose it serves Obama's debate purposes to turn the spotlight onto corporations that strike negative chords in most Americans. Would noting that taxes would be reduced for Wal-Mart have the same effect? Several commentators note that McCain's proposals would reduce taxes for General Motors, supposedly a good idea because it would help preserve jobs with that company, but the problem is that General Motors isn't paying taxes because it's not making money.

Obama then repeated his claim that the 95 percent of Americans who "make" less than $250,000 a year would see a tax cut. What does "make" mean? Earn? As in salary? Have as taxable income? As in any type of income? Note that he did not mention whether those who make $250,000 or more would see no tax change, or a tax increase. He then noted that independent studies had concluded his plan provided three times as much tax relief to middle-class families as did McCain's plan. But what is middle class? Does someone earning or making or getting $250,000 of taxable income from a business get classified as middle class? Perhaps, if compared to the folks hauling in tens of millions of dollars a year in income. Perhaps not, if compared with people earning $50,000 or $100,000 a year. Taxes, of course, ought not be set at three rates, one for top, one for middle and one for bottom. They ought to be set on a sliding scale so that even if the tax on someone with $300,000 of taxable income is increased, it is increased at proportionately less than the increase for someone with $1,000,000, or $3,000,000, or $10,000,000 of taxable income. Of course, trying to explain this in a short debate, without access to visuals, is extremely difficult. Were I debating, I'd insist on access to Powerpoint.

Obama then made an interesting observation. He noted that tax breaks are more important to those who are trying to get to the point where they were making more money rather than lowering taxes for those who had already achieved that goal. To do this, he said, " requires us to make some important choices." He did not specify those choices, but to someone understanding tax policy issues, they are fairly clear. At what income levels should each tax bracket be imposed, and for what percentage. Obama also noted, again, a correction to assertions being made about small businesses and the impact of his proposals by explaining that "98 percent of small businesses make less than $250,000." From what I've seen over the years, that seems to be a reasonable conclusion.

McCain then claimed that Obama wants to "take Joe's money, give it to Sen. Obama, and let him spread the wealth around" but that he wants "Joe the plumber to spread that wealth around." It is most helpful that McCain made this point. If Joe's business generates $260,000 in income, what Obama plans to do increases Joe's taxes by a few hundred dollars. To use Obama's articulation of the question, is that a choice America wants to make? It depends on whether one thinks the taxes paid under current law by someone generating $260,000 in income are too much, too little, or just right. The complementary question is whether business would spread the wealth around. The presumption that the additional cash flow generated by tax breaks to a business end up as salaries and not as contributions to the purchase of luxury items manufactured abroad has not been proven, and events of the past several years puts this "trickle down" theory to a genuine practical test that questions its validity.

McCain asked, "Why would you want to increase anybody's taxes right now …Why would you want to do that, anyone, anyone in America, when we have such a tough time?" Obama answered that there are people who are not having a tough time and who "can afford to pay a little more in taxes." Of course, that's not the fundamental policy question. That question is whether they ought to pay more taxes, and the answer should explain why they should pay more taxes. McCain then tried to reject that response by asserting "We're talking about Joe the plumber" but his question was "why would you want to increase anybody's taxes right now." Someone paying close attention would see what's wrong with the reference to Joe the plumber in that context. Obama rejoined that the reason was to generate funding for tax cuts to give to Joe the plumber when he was still trying to get to the point where he could make $250,000.

Obama then shared a general tax policy observation that often gets overlooked: "So, look, nobody likes taxes. I would prefer that none of us had to pay taxes, including myself. But ultimately, we've got to pay for the core investments that make this economy strong and somebody's got to do it." McCain's response trivialized the policy question: "Nobody likes taxes. Let's not raise anybody's taxes. OK?" Here's the problem. If we don't raise taxes, we face either crippling deficits that threaten the nation's security and survival, or we cut spending, including Social Security, Medicare, and national defense, and perhaps even interest on the national debt, which also threatens the nation's security and survival.

What neither candidate said is that taxes need to be increased to undo the damage caused by excessive tax cuts that were not removed when the nation went to war. As has been said, "You can pay now or you can pay later, but you will pay." It's no longer now, it's now later, and we will pay. Now, which candidate, if either of them, understands that dilemma?

According to a recent report, one of the ideas being batted around Capitol Hill is a proposal to suspending capital gains taxes on securities purchased during the next two years. The rationale appears to be a belief that this move would encourage people to buy stocks, bonds, and similar investments. The proposal refocuses attention on the question of whether and to what extent the tax law ought to be used as a prod to influence behavior.

It is one thing to use the tax law for more than revenue collection purposes if the provision in question is designed to help people by reducing the economic impact of unavoidable losses. Thus, one can justify in a general sense, though criticizing the complexity of, the numerous provisions that assist the victims of natural disasters and war to put their economic and literal houses back in order. These tax breaks do encourage people to rebuild and restore life in disaster zones, something that people would be doing even without tax breaks, as demonstrated by a history of human reaction to disasters reaching back to times long before the existence of an income tax.

It is another thing to use the tax law for more than revenue collection purposes if the provision in question is designed to encourage people to do things that they otherwise would not do. Decisions to do something ought not be induced by tax breaks, even though there is now a long history of politicians using the tax laws for such purposes. If it takes a tax break to persuade someone to purchase stocks he or she would not otherwise purchase, what does that tell us about the person's opinion of the quality or investment worthiness of the stock?

But let's assume that the tax law should be so used. I'm not endorsing the idea, but simply exploring the paths that would then be open for the Congress. The current proposal is to eliminate capital gains taxes for stock purchased during the next two years. How is the prospect of zero capital gains going to encourage very many people to make these purchases? For some, they already face a zero capital gains rate because they intend to hold the investment until death, or may end up holding it until death even if not planning to do so. Is it not better to ask why people aren't making these investments, when in fact they were making them two, five, eight years ago when the capital gains tax was no lower than it is now? Some people aren't making these investments because they don't have the funds. These people aren't helped by elimination of taxes on capital gains. Others aren't making the investments because they are gripped by fear, or perhaps consider them to be too risky. What would help these folks isn't elimination of a tax they might not be paying in any event, but a tax break that switches their decision making in terms of risk or cash flow.

Perhaps a tax credit equal to a percentage of the investment would be enough to tip the scales and make the internal rate of return of the investment high enough to overcome the risk. One can take this even further. By allowing a tax credit, the government in effect is making a loan to the investor. Perhaps when the investment is sold or otherwise disposed of, the credit should be recaptured, perhaps on a reduced scale if the investment is held for some specified period of time. This would discourage panic disposition of the investment in the short run. In other words, the credit would be the equivalent of government investment, but rather than in toxic debt, in securities strong enough to generate purchase interest when the credit offsets the higher risk that has been triggered by the fear finding a home in the financial markets. Of course, it would also help if the government took steps to identify those who caused the problem, seize the illegally obtained profits, enacted provisions to prevent the same or similar frauds from being repeated, and enforced the laws already on the books. Perhaps a tax credit for those who provide information leading to the identification and arrest of people who made mortgage loans that ought not to have been made?

Surely there is a better way to deal with current financial problems than with the overused and discredited (sorry) "lower the tax rates" mantra. We've done the lower tax rate thing. We've seen where it took us. It's time for something new.

The Reuters headline says it all: "IMF Warns of Financial Meltdown." Or does it?

Of course, it does not say it all. It doesn't tell us how the problems can be solved. It doesn't identify the practices that need to be changed, the expectations that need to adjusted, and the cultural and social values that need to retuned. It doesn't use the words greed, corruption, secretiveness, collusion, ignorance or foolishness. The story accompanying the headline notes that while United States political and financial leaders ask for patience, the Internatlonal Monetary Fund warned that there isn't much time left to prevent a catastrophe. Some experts not that if the problems are not solved quickly, the world will enter a "dangerously deep recession." Hmm, if we tighten up that phrase, do we get Depression?

When a tool is misused, people tend to become very cautious when dealing with that tool. When a child uses a toy inappropriately, the responsible parent puts the toy out of reach, but also finds a way to instruct the child on the toy's proper use and why it is important to respect the purpose of the toy. Eventually the toy is returned to the child, who has a better appreciation of its purpose and treats it with the appropriate respect. Similarly, when the casino capitalists misuse debt and leverage, banks have become very cautious in making loans, but they, or someone, need to find a way to instruct the greed merchants on the proper use of debt and leverage and why it is important to respect the power of those tools to do generate not only financial benefits but also economic doom. And someone needs to find a way to then restore the use of debt and leverage in national and international business and consumer transactions.

For example, someone needs to step up and make it clear that a free market isn't a license to shift the consequences of bad decisions onto the unwitting and the unwilling. Recently I read a comment, and unfortunately I cannot find it, that equated greed with the seeking of profits. It's one thing to seek income and assets in order to meet what one needs to survive, to be comfortable, and to support one's dependents. It's a totally different thing to seek income and assets orders of magnitude beyone what is needed for survival and comfort. In today's economy, no one needs to own billions of dollars of assets or to earn tens of millions of dollars per year. Seeking these sorts of profits and accumulations of wealth is a matter of addiction, of thirst for power, or both. A person can eat only so much, can wear only so much, can drive only one vehicle at a time, and has only one body in need of health care. So what does one do with the excess income and wealth? One buys votes. One controls society through off-shore entities. One tries to arrange for one's children and grandchildren to live lavishly without needing to work. Are these behaviors good for society? I propose that the answer is no, because the efforts made to attain these options have imposed a huge price on society, and we're only beginning to see the extent of the damage that has been done. I can imagine there are those who would point the finger at the homeowners who applied for mortgages they could not afford, and the members of the so-called middle class who tried to "make a killing" in the markets for their retirement plans. No, I don't condone the foolish decisions of seeking debt beyond one's ability to repay or sinking 100 percent of one's assets into risky investments. But it also should be understood that many people in this position were so acting because the tax and economic policies of the past decade widened the chasm between the haves and have-nots, leaving the have-nots and those perceiving themselves to be at risk of becoming have-nots with what they saw as no choice but to gamble for their economic future.

Of course, some parents neglect to discipline their children. Some children fail to get the message. It doesn't always work out the way it ought to work out. Similarly, there's no guarantee that governments, and more specifically, their officials, will discipline those who abused the free market, and there's no guarantee that the casino capitalists will get the message. A similar message was sent in 1929, many people learned, their children and grandchildren viewed them as overly cautious, and the lessons were forgotten. History repeats itself. There's no guarantee that it will not.

The bailout, excuse me, rescue bill, known as the Emergency Economic Stabilization Act of 2008, managed to get Congressional approval because hundreds of pages of extraneous provisions, mostly in the tax area, were attached to the bill that failed to get passed a few days earlier. Objections to this process rest on two grounds. First, combining unrelated provisions makes it difficult, if not impossible, to evaluate the legislation on its own merits. This creates the sort of trap that is used to trip up members of Congress who vote against legislation because junk has been matched with something worthwhile, so that voting against the bill because the junk ought not be enacted brings claims that the legislator opposed the good idea, whereas voting for the bill despite the junk because of the value of the good idea brings claims that the legislator voted for the junk. Second, if a bill cannot stand on its own merits, as was the case with the bailout, rustling up votes by tacking on other provisions is nothing less than a purchase of the aye vote.

Many opponents and critics of the legislation describe the tacked-on provisions as pork. Defenders claim that the additional legislation were simple "extenders," that is, provisions that extended tax breaks that had expired as of the close of 2007 or would expire at the close of 2008. Is this so? Several days ago I read, or should say skimmed much of and read some of, the Emergency Economic Stabilization Act of 2008, focusing on the depreciation deduction because I am splitting what is one Tax Management Portfolio into two. In the process of doing so, I must gather all the developments that have taken place since I updated the portfolio about a year ago. The list of things that require further revision grew much longer after I culled the bailout legislation for items affecting the depreciation deduction. So here they are, and I'll let you decide (a) if they are simply extenders, and (b) if they are pork.

1. Section 201 changes the definition and nomenclature for cellulosic biomass ethanol, for which an additional first-year depreciation deduction is available, to cellulosic biofuels, thus expanding the reach of that deduction.

2. Section 305 extends the termination date for the treatment of qualified leasehold improvements and qualified restaurant improvements as 15-year property.

3. Section 305 also expands the definition of qualified restaurant improvements to include new restaurant buildings.

4. Section 305 also adds qualified retail improvements to the 15-year property class, a recovery period shorter than that to which they otherwise would be assigned.

5. Section 306 adds qualified smart meters and qualified smart grid systems to the 10-year property class, a recovery period shorter than that to which they otherwise would be assigned.

6. Section 308 adds a new subsection 168(m), creating an additional first-year depreciation deduction equal to 50% of the cost of certain reuse and recycling property.

7. Section 315 extends the termination date for the assignment of Indian reservation property to recovery periods shorter than those to which they otherwise would be assigned.

8. Section 317 extends the termination date for assignment of motorsports entertainment complexes to the 7-year property class, a recovery period shorter than that to which they otherwise would be assigned.

9. Section 505 adds certain farming business machinery and equipment to the 5-year property class, a recovery period shorter than that to which it otherwise would be assigned.

10. Section 710 adds a new subsection 168(n), creating an additional first-year depreciation deduction for qualified disaster property.

11. Section 711 adds a new subsection 179(e) to provide increased first-year expensing for qualified disaster assistance property.

I count three simple extenders out of the eleven items. Though I may have missed something, I don't think I missed so many that the "27% extender" conclusion is way off the mark. Eventually I'll go through the legislation again to cull the energy-related provisions, as that is another project getting my attention. But from what I saw, there are even proportionately more changes and additions that are not extenders. Is it possible that some things were slipped in unbeknownst to most of the nation's citizens?

There's not much to like about the bailout. Before Congress enacted what I called A Financial Crisis Solution That Doesn't Solve the Problem, I explained, in both Where is the Money to be Found? and Funding the Bailout, that creativity was required in finding the resources, going so far as to make one suggestion, in Risk Premiums with a Greed Tax? Finding a solution, I noted in Greed, Stupidity, and Fraud: Lessons from Tax Law and Does It Matter Who or What is to Blame?, required understanding how the crisis arose. I explained, in Why Vote Aye for Bad Legislation?, how the legislative process once again failed the American people.

Advocates of the bailout, renamed rescue as though that changes its shape or smell, asserted that it ought to be given a chance, even though many of them admitted to ignorance with respect to the causes and solutions. Others argue as though they are omniscient, claiming that folks who take the position I have shared will be proven wrong.

What's been proven wrong is the notion that the bailout, excuse me, rescue, package would be of help. Since it was enacted on October 3, stock markets throughout the world have plunged. On Monday, the Dow Jones Industrial Average fell 370 points, and then on Tuesday it plummeted another 508 points. Most of that drop occurred after the Federal Reserve Bank took the unprecedented step of lending cash directly to corporations. Investors are sending a message, namely, they don't think the government can solve the problem taking the approach it has decided to follow.

It would not surprise me to hear the advocates argue that absent the bailout the situation would be worse. That reminds me of the story I heard as a child about the fellow who was asked why he was standing at a downtown intersection snapping his fingers. "It keeps the pink elephants away," He explained. When told there weren't any pink elephants, he triumphantly replied, "See? It works." So perhaps it would have been worse, but I doubt it. I think the markets view the most recent federal government actions, and those of other national governments, as ineffective. I think investors simply don't trust those who make policy, just as banks no longer trust most loan applicants, just as citizens don't trust Congress, just as voters don't trust politicians, and just as people don't trust the wizards of theory who used the world's population as guinea pigs in their monetary experimentation. We now have learned what happens when someone designs the "If all goes well, the financial elite win, and if it falls apart, everyone else loses" investment vehicle.

I previously spelled out what I think needs to be done. At this point, considering the ineffectiveness of the "solution" designed by the people who created the problem, perhaps it's time to try something else.

To say that what Congress did on Friday was disappointing would be an understatement. What Congress did was, and remains, downright dangerous. A huge sum of money has been thrown in the direction of institutions and people who are either malevolent or ignorant. Banks and other institutions find themselves holding assets that have been significantly devalued because, surprise, someone discovered they were packed with toxic mortgages. If these banks and other institutions purchased these investments without knowing what was in them, then they were grossly negligent in not having done due diligence. And if they did know, then their actions in acquiring this junk are totally malevolent.

Now that the giveaway is underway, the industry already has started to prepare America for the bad news, namely, that this raid on taxpayer dollars won't solve the problem. According to this report, despite the legislation having passed, lending won't ramp up overnight, it might not get underway for weeks, and it might take even longer for things to get better. In the meantime, hundreds of billions of dollars flow into the marketplace and nothing happens? The folks who testified at Congressional hearings that they had no clue may have been telling the truth, but those who engineered this so-called bailout surely knew what they were doing. When they discovered that American opposed the idea, they worked out a deal. They added $150 billion of unrelated tax provisions to the legislation, and in turn persuaded several dozen legislators to switch their votes. Consider this quote from House Republican leader John Boehner, "We've made this bill better." Better? It's the same legislation, with a variety of "vote getters"tacked on, as I described in Why Vote Aye for Bad Legislation?.

According to various reports, such as this story, banks are drowning in cash but are reluctant to lend money. Why? We're told that they are "paralyzed with fear." Fear of what? That they are incapable of distinguishing a credit-worthy loan applicant from someone not qualified to borrow? That they are incapable of figuring out which fancy, exotic, smoke-and-mirrors creative investment packaged by the wizards of Wall Street they should buy? Here's some advice to the banks. Try making loans to people, one at a time. Ignore the packaged deals and other theoretically cool but pragmatically stupid investments cranked out by a generation of investment bankers who either outsmarted themselves or, as is more likely, embarked on one of the if not the most, outrageous greed-inspired money grabs in history. In other words, these banks don't need money. They need that unique combination of intelligence and honesty that is no less lacking in the financial services market as it is in the political arena.

What should have been done? The problem that should have been attacked with money is what underlies the crisis, not the symptoms and not the losses incurred by investment bankers, banks, and other institutions complicit in the crisis or negligent in their investment decisions. The crisis exists because a very small percentage of homeowners, perhaps as few as 3 or 5 percent, cannot meet their mortgage payments. Imagine what would happen if $700 billion were used to pay interest and principal on the roughly 1,500,000 home loans that are bad. The loans generate payments, the strange investment vehicles in which they are packaged recover their value, bank balance sheets return to normal, and the crisis is handled.

Instead, consider what will now happen. The Treasury will seek to borrow $700 billion so it can buy these bad mortgages, as described in Where is the Money to be Found?. What is the effect of that borrowing? I'll quote myself:

Borrowing money increases interest rates, which benefits some investors and hurts borrowers. Borrowing money also makes the nation even more beholden to those in a position to lend the money, namely, foreign countries and foreign investors rolling in dollars accumulated when Americans purchased foreign oil, foreign goods, and foreign services. Having a nation that spends beyond its means borrow even more money to bail out bad debts arising from individuals who spent beyond their means is not unlike pouring gasoline on a fire.

Good money is thrown after bad, while the folks who profited from this debacle chuckle all the way to their off-shore bank, leaving behind some underlings to take the FBI heat.

So the national debt increases by $850 billion, soon to be followed by the impact of $500 billion annual budget deficits. On the heels of that escalating national debt comes the looming crises in Social Security and Medicare. According to the 2007 Financial Report of the United States Government (Dec. 2007), as of September 30, 2007,the future unfunded costs of Social Security, Medicare, and other obligations has reached $53 trillion. Yet there are politicians who continue to advocate cutting taxes, and whose votes were obtained when tax reductions were tacked onto the bailout bill. Hanging onto the mantra that we can tax cut ourselves out of the mess, they seem to ignore the reality that we tax cut ourselves into the mess. Had the wealthy faced the tax rates in effect before the 2001 reductions, had they not had the advantage of special low tax rates for capital gains and dividends, and had they not available the tax breaks tailored to their wants, they would not have had the funds with which to play what someone else called "casino capitalism." I've always wondered what one does with a $10 million or $50 million annual income. Perhaps you have, too. Now we know. It's house money, and it lets the wealthy take enormous risks that they shift onto the rest of us. As the Secretary of the Treasury admitted, this bailout legislation puts taxpayers at considerable risk. Risk of what? We'll soon be finding out. It isn't going to be pretty.

So after the House of Representatives votes down proposed legislation that would give the Secretary of the Treasury $700 billion to use however the Secretary wished to purchase toxic debt that no one else wants, the Senate takes its turn. Despite knowing that citizen opposition to the proposal is overwhelming, the Senate decided that the way to get the legislation enacted would be to tack on a variety of unrelated legislative proposals as a sop to those who would otherwise vote against the bailout giveaway. For once, the public gets to see this very common legislative technique in stark relief.

So what did the Senate do? First, it increased the $100,000 limit on FDIC insurance for bank accounts to $250,000. The theory is that this will restore public confidence in the financial markets. Will it? It won't take long for someone to compute how much money the FDIC would need to find if all banks fail. Considering that the limit had not been increased for quite some time, and is not indexed for inflation, this change might make sense, but the FDIC is not permitted to charge the financial institutions for this insurance. Instead, it must borrow from the Treasury. That's just what the nation needs, more borrowing.

Second, the Senate extended the temporary fix for the alternative minimum tax problem that catches middle class taxpayers within a net designed to trap the ultra wealthy who find ways to avoid taxes. The irony is that the fix merely helps the middle class taxpayers but does nothing to deal with the ultra wealthy who continue to avoid taxes despite the existence of the alternative minimum tax. One must wonder whether the continued failure of Congress to reform the tax law and the continued success of the wealthy in avoiding the tax encourages some of them to be just as bold in finding other ways to increase wealth at the expense of other taxpayers.

Third, the Senate extended a variety of tax provisions that had expired as of the end of 2007 or that were scheduled to expire at the end of 2008. There's no question that extending these provisions does nothing to solve the financial markets mess. What is guaranteed is that the extensions will increase the federal budget deficit, which in turn will put more pressure on the credit markets, an outcome contrary to one of the expressed justifications for the bailout bonanza.

Fourth, the Senate enacted a new group of tax breaks for renewable energy. Again, this does nothing to solve the financial crisis. For several decades, the Congress has been using the tax law to deal with energy, enacting a variety of incentives to wean the country from its foreign oil addiction, surely a contributing cause to the increase in government, business, and consumer debt, and yet the country uses more and more foreign oil. Perhaps using the tax law to deal indirectly with the problem makes far less sense than dealing directly with it? Together with the extensions, these tax breaks add $110 billion to the cost of the legislation.

Fifth, the Senate enacted a requirement that health insurers treat mental health issues in the same manner that they treat physical illnesses. About the only connection between this issue and the financial crisis is that the latter is likely to cause a significant increase in the number of people with anxiety, stress, and other pyschological problems.

It's distressing to note that the Senate did not add provisions to fund the bailout, to track down the funds moved offshore by the perpetrators of the schemes, to hold accountable the decision makers who permitted the markets to become a casino, to require public education that reduces the opportunities for manipulators to dupe individuals and investors, and to lead by example in an effort to eradicate the greed mentality that infects society. Instead, the Senate pounced at the opportunity to saddle the legislation with unrelated provisions in which particular Senators were interested.

What should trouble the nation is the manner in which a legislator who thinks a legislative proposal is a bad idea and who would not vote for it on that basis nonetheless will vote for it if something that the legislator wants or likes is appended to that legislation. If a legislator thinks that the bailout is a bad idea, then it is a bad idea and the legislator ought not vote for it. Changing the vote from negative to positive, that is, doing something that the legislator otherwise would not do, simply because the legislator is getting something in return is very troublesome. To vote for something that is against one's principles because one is receiving some sort of unrelated benefit suggests that votes are for sale. A proposal ought to sink or swim on its own merits. That's not to say that amendments germane to the issue ought to be precluded, but the legislative practice of packaging bills so that everybody gets something and no one votes no even though most, if not all, of the provisions ought not be enacted is something that should end immediately. To say that this is the way Congress has done business is nothing more than an invitation to consider whether the crisis presently engulfing the nation is a product of the way Congress has done business. The federal government is trillions of dollars in debt, the federal budget deficit is growing at astronomical rates, the nation and many of its citizens have become indebted to foreign nations and investors, unemployment is rising, insufficient resources are allocated to health care, infrastructure repair, and development of new energy sources, and the dollar remains weak. Business as usual put us in this situation, and business as usual must be pushed aside. It is time for a change in how laws are enacted and administered.