MauledAgain

This latest tidbit falls into the category of how the tax law becomes complicated and raises the questions of why a complication should exist and why an existing complication that is scheduled to expire should be extended. What's at issue is section 168(i)(15) of the Internal Revenue Code. Section 168(i)(15) defines "motorsports entertainment complex." Why is that definition required? It is required because section 168(e)(3)(C)(ii) of the Internal Revenue Code provides that a motorsports entertainment complex is seven-year property, which means that in computing taxable income the owner of a motorsports entertainment complex can deduct its cost over an eight-year period, rather than over the longer periods that otherwise would apply, 39 years for buildings and 15 years for land improvements. Section 704(a) of the American Jobs Creation Act of 2004, Public Law 108-357 added section 168(e)(3)(C)(ii) to the Internal Revenue Code, and with subsequent extensions, made the change effective for property placed in service after October 22, 2004, and before December 31, 2009.

Why this special provision for a very small group of taxpayers? The Joint Explanatory Statement of Committee of Conference for the American Jobs Creation Act of 2004 does not give a reason. It simply states existing law and states what the new provision does. The House Report to the 2008 extension contains two explanations. It states that the "Committee believes that extending the depreciation incentive will encourage economic development." It also states that the "Committee also believes that taxpayers should not be required to recover the costs of motorsports entertainment complex beyond the useful life of the investment."

Within the past few days, a bill was introduced in the house to repeal the termination date and make the special tax break for motorsports entertainment complexes permanent. The language of the bill, which can be found through the Library of Congress web site by searching for H.R. 1974, is quite simple. It gives itself a name, the "Motorsports Fairness and Permanency Act of 2009" and then provides for the repeal of section 168(i)(15)(D). The bill was introduced by "Mr. THOMPSON of California for himself, Mr. HELLER, Ms. BERKLEY, Mr. DAVIS of Alabama, Mr. LEWIS of Georgia, Mr. MEEK of Florida, Mr. BACHUS, Mrs. BONO MACK, Mr. BOUCHER, Mr. BRALEY of Iowa, Mr. BURTON of Indiana, Mr. CARSON of Indiana, Mr. COURTNEY, Ms. FOXX, Mr. FRANKS of Arizona, Mrs. HALVORSON, Mr. HASTINGS of Washington, Mr. HILL, Ms. KOSMAS, Mr. LOBIONDO, Mr. MCHENRY, Mr. MCHUGH, Mr. MICA, Mr. MOORE of Kansas, Mrs. MYRICK, Mr. PERRIELLO, Mr. SCOTT of Georgia, Mr. SESSIONS, Mr. WESTMORELAND, and Mr. CROWLEY."

How does this provision make the tax law more complicated? It requires the addition of 205 words to the Internal Revenue Code, numerous words to IRS Publications and instructions to forms, and countless words in professional publications, letters to clients, and web sites. For example, does the special break apply to the cost of racetrack warehouses? To the cost of vending stands? To the cost of fences? How many motorsports racing events must take place to qualify the facility for the special tax break?

Does the special tax break indeed encourage economic development? How has the economy fared since 2004 in the towns that have motorsports entertainment complexes? If those places are pillars of economic robustness, ought every town in America find developers to build these complexes? Assuming that the special tax break encourages economic development, why is there a special tax break for this activity and not for other activities? Are there locations whose economic track record (ha ha, sorry) surpasses those of towns with motorsports entertainment complexes? If so, why not a special break for whatever it is that people in those locations are doing? Are they not doing something even more valuable for the economy?

Does the special tax break prevent taxpayers from requiring the costs of motorsports entertainment complexes beyond their useful lives? In the absence of the special provision, the buildings would be depreciated over 39 years, as are factories, offices, shopping centers, and other non-residential structures. In the absence of the special provision, the other facilities and equipment would be depreciated over 15 years. Is the useful life of a motorsports entertainment complex less than 15 years? Many have been around for decades, and many still use facilities constructed a long time ago. Where is the evidence that after 7 years, the facilities are ready for demolition?

Why is the word "Fairness" in the title of the recently proposed legislation? What is fair about making permanent a special tax break when other taxpayers don't have a similar break and still others who have special breaks aren't candidates for permanency? Is it, perhaps, fair to the members who sponsor the bill so that they have a fair chance of gathering more NASCAR votes? Is that what's behind this proposed legislation?

When legislators bemoan the complexity of the tax law, do they ever look in the mirror? Do they truly understand the economics of the situation? Do they rely on their staffers? Are their staffers experts in this area? Are the legislators and their aides simply doing what their major contributors tell them or their staff to do? Has anyone produced proof that this special tax break has done anything other than reduce the taxes of a very small, select few taxpayers?

And what's the need for this special tax break? Taxpayers suffering from the economic meltdown are buried in losses and don't need accelerated depreciation deductions. They would be just as happy, or even happier, with depreciation extended over longer periods of time. Someone who owns a motorsports entertainment complex anticipates needing this special tax break in 2010 and thereafter. This someone must have some chunk of income that they want to shelter. This someone isn't buried in losses on account of the economic meltdown.

This legislation would do absolutely nothing to increase the take-home pay or improve the economic condition of motorsports fans. How has the introduction of this special tax break in 2004 affected their economic situation during the past four years? Are they better off than they were before it was enacted? Will they ask themselves this question the next time they enter a polling place?

It's unfortunate no one has introduced legislation to repeal section 168(e)(3)(C)(ii) and section 168(i)(15). That could be called the "Small Bit of Permanent Tax Fairness Act."

In How A Transformative Recession Affects Law Practice and Legal Education, I examined the impact of the current recession on law firms, including their relationships with law schools, and extrapolated these developments into a prediction about the future. With clients demanding lower hourly rates and elimination of inefficiencies from the rendition of legal services, and with firms rescinding offers, curtailing or terminating summer programs, and showing the door to associate after associate, the legal world, I noted, is watching "one more nail in the coffin of legal education as we know it" get pounded home. I predicted that the quality of applicants to law schools will decline, that the number of law students will decline unless law school tuition is adjusted to reinvigorate demand, that law schools will need to increase faculty teaching loads and cut back on "scholarship [written] for the benefit of other scholars," and that we might even see the practice world, perhaps a combination of law firms cooperating with bar admissions committees and state supreme courts, establish schools that prepare people to practice law so that their salaries can be justified to the law firm's clients.

In Law Schools, Teaching, Legal Scholarship, and the Economy, I examined Richard Posner's proposal that law schools have a department of legal doctrine. I suggested that law schools, or more precisely, their parent universities, need to separate law teaching and legal institutes so that law school tuition funds education and some other sort of funding, if it exists, sustains the legal think tank. I noted that law faculty need to wake up and get in touch with the realities of what is happening in the law practice world, and that law schools are not insulated from the impact of this sea change in the world economy.

I posted those thoughts on March 16 and March 27, respectively. What feedback came my way was notoriously private, that is, people agreed with me but were unwilling to go public. Understandably, they had more to lose than do I, or at least are in a more difficult position than am I, from challenging the legal education establishment as it presently exists. It's not so much the reluctance to criticize, for it's easy to find people critical of modern American legal education, both inside and beyond the walls of the nation's law schools, but a reluctance to come across as a prophet of doom. There is legitimate concern that when a dean or someone in a comparable position of authority within the academy publicly agrees with the sort of predictions that I am making, there will be a self-fulfilling prophecy that can come back to haunt the person as those hurt by the changes seek to put blame somewhere other than on themselves. Although encouraging voices from within legal education continue to be in short supply in the public forums, more and more commentators outside the academy are chiming in and making many of the same arguments, and predicting many of the same outcomes, as I have been offering.

On April 1, Adam Cohen, in With the Downturn, It’s Time to Rethink the Legal Profession, also looked at the recent developments in the legal profession, and concluded that if there is a "silver lining" to the bad news, it's "that the legal world may be inspired to draw blueprints for the 21st century." He predicts a drop in associate compensation. That's already beginning to happen. He also predicts that lower compensation means that associates will not need to work as many hours. I disagree. The economics of law firms is that law partners think it's more profitable to hire fewer associates to do more work than to hire more associates to do less work. I'm not confident that the perspective of the partners on this issue will change very much. Cohen predicts that the billable hour may disappear. He's probably correct. Then he turns to legal education and, after noting the scale of law graduate debt loads, suggests that law schools "will need to keep tuition and other costs in check" so that students can move into the profession without being saddled with "unmanageable debt." He wonders if more schools will follow Northwestern's lead and offer two-year programs. What he doesn't mention is that the total cost of the two-year program, as it now exists, isn't a 33% discount from the cost of a three-year program. In fact, it's barely cheaper and carries the obstacle of blocking out summer employment income, though at the moment there's not much in the way of summer employment income available. Cohen also emphasizes the need for law schools to "become more serious about curriculum reform," with "more pressure on schools" to add "more focus on practical skills." He suggests that law schools should "pay more attention to preparing students" to end up in "business, government, journalism and other fields." Though I share Adam Cohen's outlook, I must warn that those who "draw blueprints" are those who realize there's a need for a new building or a rehabilitation of an existing one. I'm not yet convinced that law faculty generally understand the need for some heavy-duty construction and reconstruction of legal education. Deans do. But deans are not CEOs and it remains to be seen what they do after they trim budgets and work with the financial statements.

On April 6, Katharine Patterson, a long-time legal recruiter and HR management consultant, brought her extensive experience and "in the middle of all of it" perspective to bear in Tough Times for Law Firms, Lawyers May Be Catalyst for Positive Change. Drawing on the impact of the last three major legal recessions on the profession, she, not unlike Adam Cohen, points to the current difficulties as an opportunity for productive change. She predicts the demise of lockstep compensation, the growing use of "more dynamic models that account for productivity and contributions to the firm's long-term institutional identify," and the disappearance of, and I think this is a great phrase, the "donkey and carrot race for partnership." She, too, turns her eye toward university campuses. She tells us, "Law school hiring will change. On-campus hiring will move to the end of the second law school yar, and look a lot more like business school recruiting." She thinks students increasingly will seek admission to two-year programs or "schools that offer stronger internship and practical training opportunities beyond academic legal training." As did I, she uses the "nails in that coffin" language to describe the impact of the recession on the way things have been done in the past, such as institutional loyalty. She then makes a point that I've also heard, in somewhat different terms, from someone who is a law school dean. She explains, "The current generation of young lawyers and law students is cursed not just by its lack of experience of hard times, but by an egocentricity born of good times. They just don't know how to behave, and can come across as self-centered and childish." Amen. Sadly, I can say the same thing of many who are on law school faculty, who have been able to ride a student debt bubble into a journey of writing scholarship for which no market has been, is, or will be willing to pay. I wonder how many deans will use the words "egocentricity" or "self-centered" when describing the reactions they encounter when they break the news that course loads are increasing, scholarship no longer holds center stage, and teaching, as measured by performance of the school's graduates, will be more of a factor in tenure and compensation decisions.

Perhaps all of this turmoil will indeed bring worthwhile change. The change needs to be more than structural. It needs to be more than shortening or lengthening the number of years one enrolls in law school. It needs to be more than incorporating law practice skills into the curriculum. It needs to be more than increasing faculty course loads and decreasing the time invested in scholarship for other scholars. The change needs to reach into the heart of law school culture. Law schools need to be more demanding of their students academically and to be more willing to dismiss those who cannot accomplish what law practice demands. Law schools need to put an end to relying on the useless portions of student evaluations of law teaching, and need to stop playing to the U.S. News rankings. Both best serve legal education and society by being dumped into a landfill. Both have contributed to the current failings of law schools, as the first causes law faculty to play the popularity contest game at the price of giving up the important quality of being demanding and the second has encouraged law faculty to churn out scholarship for other scholars, namely, faculty at other law schools whose U.S. News vote they are trying to acquire.

Patterson predicts that similar changes will wash through law firm culture. She predicts that "lower salaries, fewer offers and a much more competitive job market" will encourage law students and law graduates to "focus on performance and achievement." She tells us that law firms "often condoned shockingly bad behavior by students during summer programs" and that this should end, explaining, "Firms now have a chance to teach tough lessons that will make better lawyers." Indeed, law schools ought to be taking advantage of the chance that briefly exists to "teach tough lessons that will make their students better lawyers."

Adam Cohen concluded with these words: "Law school deans, bar association leaders and firm managers should follow Rahm Emanuel’s advice about never allowing a crisis to go to waste and start planning for what comes next." Katharine Patterson ended her article with this advice: "We are all in this together, firms, companies, law schools, students, folks who want to make careers in the law. Let's take advantage of this time of change and invest in all our futures. Law practice has come a long, long way since 1980, and hard times give us the chance to build an even stronger future together." I conclude with this simple notion: Law school faculties are on notice that they can act now, when there is a chance to influence the transformation of legal education, or act later, when they are trying to survive the tide of change.

Lily Garcia writes an advice column for the Washington Post. In the Sunday, March 29, 2009, edition of the paper, her column, titled that day Explaining Your Credit History; and the Case of the Vanishing Lawyers, addressed a question posed by someone "in middle management at a small law firm." It's unclear if this person is an attorney or a human resources professional. The writer's concern was the firm's experience with associates. "Of every three associates we hire, we inevitably part with two within a year." According to the writer, after being hired, the associates struggle with their hours, and then develop "problems maintaining a responsible level of contact with clients," "struggle with deadlines," and then stop working and billing. The firm offers "training and performance plans" and meets weekly with associates. The question: "Is firing people just the way it is?"

Ms Garcia's response suggests that although the demanding hours and stressful work of an associate's job cannot be changed, a firm can "minimize the chance of firing" the associate. Her advice:

1. Describe the job effectively and eliminate candidates not suited for it, because a good description will discourage unqualified applicants and attract those who thrive in a law firm atmosphere.

2. During the interview, ask questions designed to generate relevant information from the candidate. Ask the candidate how he or she would deal with a particularly challenging set of specific circumstances.

3. Don't let "personal preferences" affect the hiring decision, and if necessary, use some sort of scoring system that takes into account each key characteristic of the job.

4. Because the "employee's training, support, and supervisory relationship most accurately predict success," evaluate the firm's training and "formalize the mentoring relationships," because "many employees will forego opportunities to ask for help for fear of appearing incompetent."

5. Try to learn from employees who don't measure up why things didn't work out for them.

I don't know if Ms Garcia is an attorney. I don't know if she has practiced law. I don't know if her area of expertise is employment counselling. If she's not an attorney, her response is pretty much what I would expect from someone expertised in workplace management generally. If she is an attorney, her response carries a few surprises.

Here is what I would have replied to the writer:

1. If by struggling with hours, you mean that the associates do not manage their time well, rest assured that this is true of almost all law school graduates, because somehow they get through law school without learning good time management skills. Whether it is because faculty tolerate student practices that are not best practices when it comes to time management, whether it is because some law faculty themselves are deficient in time management skills, or whether it is because time management is very difficult to learn when not engrained in elementary and high school education, accept the fact that the firm will need to teach time management skills to its new employees, and not just its new associates. The firm should put in place a formal training program, at least until law schools acknowledge and implement processes that protect the law practice world from graduates who lack time management skills.

2. On the other hand, if by struggling with hours, you mean that the associates are not cranking out sufficient billable hours, ask yourself if you are providing them with enough work, and if someone in the firm is managing their workloads so that they aren't being inundated one week and left bereft of work the next.

3. And if by struggling with hours, you mean that the associates are billing too many hours for the tasks to which they have been assigned, understand that they cannot accomplish in an hour what senior attorneys can accomplish in an hour. Also understand that even though they have graduated from law school, they are novices at almost everything they try to do. They know a good deal of legal theory, some federal legal doctrine, smatterings of international law doctrine and state and local law doctrine, are fairly good at doing legal research, chiefly with case law, and most likely are unfamiliar with procedure and local rules. Again, until law schools revamp their curricula and teaching methods, prepare yourself to do a good bit of training and to make little money during the associate's first year with the firm. If this is too much to bear, consider doing what other law firms, even large ones, are doing. Hire someone with practice experience. Not only has someone else provided the training to get them from law school education into the practice world reality, you also have the opportunity to find out how they worked out in their previous job. Keep in mind that they may be leaving their previous job not on account of having done poorly, but because the job was for a limited term or lacked opportunities for professional advancement.

4. If, when you state that associates develop "problems maintaining a responsible level of contact with clients," you mean that they are not finding and obtaining clients and lack the skills to do so, rest assured that only in the most extraordinary instance does someone come out of law school with this ability. And in those extraordinary instances, which might occure once or twice a decade, the ability often is the student's connections to a family member or family friend who can be a source of new business for the firm. If, when you state that associates develop "problems maintaining a responsible level of contact with clients," you mean that you are giving the associates responsibility to contact clients and they are failing to keep clients up-to-date and informed about their cases, you should be applauded for trying to practice in this manner, for it is well known that too many lawyers do not stay in sufficiently frequent contact with their clients. Again, this is a skill that isn't taught in law school, unless the person you hired had the good fortune to enroll in a clinic taught by a faculty member who did not tolerate student inattention to client care. During the past decade and a half, the number of law students who fail to turn in work on time, fail to get to class on time, fail to reply to emails from administrators and faculty, and fail to deal with other matters in a responsible way has been increasing. Because law schools don't winnow out very many students, graduating close to 100 percent of the students who enter, it falls upon your firm to find a way to screen out candidates who lack conscientiousness. Asking questions during an interview might help identify the truly inattentive, but most law school graduates are smart enough to know how to give the right answer. Think yet again about selecting candidates from among those with a track record. Pay attention to the law graduate's transcript. Look beyond the GPA and focus on the courses. If the candidate was in a clinic or externship, call the faculty member or practitioner who supervised the person. Educate yourself about the candidate's law school, by finding out which courses are the ones that push the students to learn and put them into situations attuned to law practice circumstances. Beware of candidates with transcripts replete with courses more likely to provide high grades than sharp practice skills. Talk with colleagues in the profession. Get the scoop on what's happening at the school, because it's surely not the same place it was when you and your peers were in law school two or three decades ago. Talk with younger lawyers, especially those who are doing well in practice, whether at your firm or somewhere else. Ask questions. Call the school's administration and ask what's in the student's file. If it's something you would be glad you were told, it most likely is something that the student didn't volunteer to disclose. You may find the red flags that you're currently not discovering.

5. If you think it helps, describe the job with sufficient detail and with candid assessment of its demands. Anyone applying for a position in a law firm as an associate should know that it is a stressful situation and that the hours are demanding. But it doesn't hurt to put the obvious in front of the candidate because there are candidates who don't know the obvious or who don't focus on the realities of the job until they're in it and discover they're not in law school anymore.

6. Don't let your personal preferences get in the way. A candidate who converses well doesn't necessarily have the character traits you seek. A candidate who is polite isn't necessarily someone who will stay in touch with clients. A candidate who has a fine demeanor isn't necessarily someone who will thrive in a law firm.

7. If it helps to use a scoring system that evaluates each candidate, use it. The act of creating the scoring system will compel you to think about the job, what it requires, and thus what you require in an associate.

8. Be ready to provide much training, as already discussed, and to provide mentoring for the newly hired lawyer. Yes, this requires senior attorneys to invest non-billable hours in the professional development of the young associates, but the present value of its payback in the future exceeds the foregone billable hours, if indeed the mentoring cuts into billable hours rather than increase the senior attorney's total hours at the firm. Yet again, if the pressure of the bottom line makes this prospect unacceptable, think about hiring associates who are further along in their careers.

9. Supervise the young associates. Take a moment to sound them out about their current projects. Set up mechanisms to determine earlier rather than later if they are going off-track. Giving an associate an assignment and then having no interaction until the associate turns in work product is as ineffective as teaching a course for an entire semester and getting all the feedback in an end-of-semester exam. It's a truly bad time to find out that the associate, or the student, was in the wrong place.

10. Hire new associates on a provisional basis. Let them know that there is a probationary period. There are federal agencies that hire lawyers on this basis, and all sorts of employers in other industries who do the same. Though it may seem to be a difference without meaning, there are different psychologies involved when the choice is between firing someone and letting someone's probationary period end. The probationary period puts the associate on clear notice that a job is not something to which the associate is entitled. Many law school graduates enter the workplace with a deep sense of entitlement, and although the experience of an economy gone bad may wash this feature out of American culture, that sense of entitlement is very real and isn't going away tomorrow.

11. Get feedback from the associates. Ask them what they need, what is working well, what isn't working well, and whether their expectations match the reality of their experience with the firm. Make it clear that they're not necessarily going to have the firm restructured to meet their demands, but that if they make a worthwhile suggestion, it will be given due consideration.

12. Set salaries on the lower side, and put in place a bonus system. That should create incentives for associates to perform at their best. It reduces the loss when, despite taking all of the preceding steps, things don't work out, because it reduces the cost of training someone who isn't going to generate significant net revenue for the firm during their first year of practice.

And yet, with all of that, sometimes the associate's failure to work out isn't the fault of the firm, but the fault of the associate. Sometimes getting fired is the wake-up call that brings the associate out of childhood and into responsible adulthood. It's unfortunate that your firm needs to be the one that teaches the lesson because those responsible for educating and raising the person before they entered your world failed to be sufficiently demanding and courageously firm when dealing with people who did not make the progress they needed to have made before they reached your firm.

Andrew Oh-Willeke, who practices law in Denver, has commented on my musings about Tax and Pefection. In A Rare Sighting Of A Common Statutory Species, Andrew notes that he is "more sympathetic " to the staff involved in drafting legislation than am I, and indeed he is. Andrew has contributed to what I hope becomes a discourse that reaches beyond the two of us, and into the world of tax practice and the halls of the Congress.

Andrew makes several important points:

1. The elected legislators and their chief agents "rarely have, and generally are not expected to have, the kind of academic preparation that an excellent tax student should."

2. The "prime qualification" for being hired as a legislator's staffer "are political, not academic."

3. The people who are making the drafting decisions "are rarely fully aware of the problems they are getting into," a condition that similarly afflicts private practice contract drafting, particulary when it comes to drafting partnership agreements.

4. The type of thinking that works well with the precision required for drafting doesn't always align with the sort of brain that can see the "forest of implications" that an amendment to a tax law might have beyond "its immediate surrounding."

5. Drafting is harder than it seems.

6. Tax code amendments often are drafted with "only one set of facts in mind, without much attention to how the text could be read in other circumstances."

7. "It doesn't help that American statutory drafting generally is not particularly systematic by international standards," because American statutes are drafted "with an eye towards practitioners who will cherry pick a sentence or two, rather than having overarching definitions and unacknowledged cross-references." Along the same line, Andrew notes that "American laws are more collections of little statutes, than they are comprehensive codes, a tendency that carries over even into the tax code."

8. It is doubtful that "there is one overarching and universal definition of much of anything 'for federal income tax purposes,'" a position reinforced by the multiple definitions given to terms such as "corporate control" and "dependent."

9. It is easy, when drafting legislation, "to go awry by going beyond what has been expressly agreed," making it unwise to embellish a deal during drafting.

10. Tax legislation is "typically the subject of negotiation until the very last minute and its passage, ready for prime time or not, is often critical to the ongoing functioning of the Republic."

11. Junior committee staffers don't have the clout to solve drafting problems by changing language "carefully crafted to reach sufficient agreement of interested lobbyists, members and senior staff of those members," which "discourages staffers from rigorously identifying every problem," in turn something lobbyists are charged with doing.

12. Tax statutes get caught up in technical problems because they are "prone to Congressional micro-management," which leaves the administrative agencies handling tax matters with much less "authority to engage in quasi-legislative regulatory drafting" than in other areas of the law such as securities and environmental law.

13. There is much less participation in drafting by Treasury officials than "their counterparts in countries with a parliamentary system of democratic government," and "Treasury does not necessarily get much more input than a knowledgable subcommitee chair on the House Ways and Means Committee, or U.S. Senate Finance Committee, or senior staffers on the Joint Tax Committee."

14. Tax practitioners have "even less of a say in the process" of drafting than does Treasury and are "less well equipped to participate" in that drafting.

15. Consequently, tax "administration is less important in statutory drafting than the question of distributive politics and appearances."

16. Perhaps the solution is to give courts "the power to certify questions of statutory interpretation to legislative bodies with the authority to change the statutes in response for future cases, just as federal courts refer unsettled questions of state law to the supreme court of that state."

The points that Andrew makes are keen observations about the realities of how federal tax statutes are drafted, and perhaps carry a bit of justification for the quality level of the material that is produced by the drafting process. Though I can criticize the drafting process, I do not criticize Andrew, for he has contributed to enlightening the populace about the ways Congress does business. The only point with which I must disagree with Andrew is his assertion that I found the error in sections 121 and 163(h). I carefully noted that " It has been suggested that the problem lies with the drafters of section 163(h) and its amendments. Specifically, it has been proposed that the drafters assumed that married individuals filing jointly become one taxpayer for federal income tax purposes." because I did not want to steal someone else's discovery while I also did not want to give that person unwanted publicity. I ought not be given credit for something I did not discover, nor do I seek it. I am not Admiral Peary.

The points that Andrew makes inspire me to elaborate on my initial observations about Tax and Pefection:

1. Because legislators and their senior staff don't "have … the kind of academic preparation that an excellent tax student should," it is even more reason that they hire people who are expertly trained in the substantive matters with which they will deal. That the legislators and their senior staff generally are not expected to have this sort of preparation is true, but is an unfortunate commentary on the state of politics in America, one in which expertise must yield to the sound-bite vote-acquisition game. Is there not something sensible about the idea of calling people to public service who can bring skills that can be put to use solving problems? And ought that sort of calling extend beyond the appointment of mid-level executive branch directors and managers?

2. Thus, though it is true that the "prime qualification" for being hired as a legislator's staffer "are political, not academic," it is unfortuate, and in the long run, risky, that this is true. Staff who are expected to draft legislation ought to have those skills. I have seen tax legislation drafted by staffers without tax expertise, and it makes the Internal Revenue Code appear to be a masterpiece.

3. One of the challenges of lawyering is the ability to become "fully aware of the problems" that are implicated in an issue, whether it is drafting, litigation, or counselling a client. The same is a good trait for computer programmers to have, and every time a program crashes, as happened to me several minutes ago, one is reminded of how a limited perspective can generate pitfalls. Surely a bit more awareness and thinking through a situation reduces the chances of the problem arising.

4. I totally agree that it is rare for someone able to think with the sort of precision required for drafting to have the sort of brain that can see the "forest of implications" for a piece of tax legislation, but people with that combination of skills exist. It is essential that they be encouraged, however possible, to use those skills for the betterment of the nation's tax laws. It is just as essential that they be given that opportunity, even if they don't carry the political attributes that are prevalent among legislatures and their staffers.

5. Absolutely, drafting is harder than it seems. That's why law schools need to put more effort into teaching it. That's why legislatures need to reach out for those who are the best drafters.

6. Though tax code amendments often are drafted with "only one set of facts in mind, without much attention to how the text could be read in other circumstances," there is no reason that this practice cannot be changed. There is no reason that drafters cannot ask themselves, "How would this affect other things and other people?" That is a question fewer and fewer people ask of themselves these days before embarking on an activity or making a statement.

7. There is no doubt that statutory drafting in this country is not systematic. It is indeed a hodge-podge of "collections of little statutes." That wasn't always the case with the tax law. So long as those charged with its care knew it inside out, its coherency remained intact. But during the past several decades, it has been pushed, pulled, and twisted in so many directions that it has lost its coherency, and it has become quite an adventure to find someone who thoroughly understands the Code, in contrast to some particular segment of it.

8. There probably are a few, but only a few, terms that hold a universal definition for all of the federal income tax, because even those definitions established "for purposes of this chapter" are subject to the inevitable "except as otherwise provided." Much of this stems from the pressure of lobbyists for special rules, so that signs with the word "STOP" mean "GO FAST" for their special clients. The term "small business corporation" has at least four different definitions in the code.

9. Of course, when drafting a statute, staff should not go beyond what has been agreed, but if something needs to be covered by the statute and the agreement doesn't deal with it, the staff should be given the right to request the decision-makers to deal with the issue. If they don't, the statute should not move forward. Should an automobile manufacturer ignore a worker's inquiry about the absence of brakes on vehicles moving down the assembly line? The position of being a legislator includes the responsibility of seeing to the enactment of coherent legislation.

10. Tax legislation would not be enacted under last minute pressures if the Congress would apply time management principles to its workload, deny itself home leave when it's behind on its work, and restore the use of public hearings to the legislative process so that it would get early warning that its decision-making and drafting are heading in a direction certain to create administrative problems. The shift into midnight legislative drafting madness is in part a consequence of letting lobbyists jump in late in the game rather than during earlier, transparent, and public hearings.

11. It is unfortunate that junior committee staffers don't have clout, and even more unfortunate that they are discouraged from telling the manufacturer that the brakes are missing. The increasing role of the "interested lobbyists" coincides with the decline in the quality of tax statutes, and probably explains why many of the folks with that rare combination of focused precision and wide perspective choose to go into the private sector to draft partnership agreements rather than to endure the frustrations of being powerless to accomplish quality work.

12. Congressional micro-management of the tax law is definitely a problem, as Andrew notes. On more than a few occasions, the IRS and Treasury have issued positions favorable to taxpayers in order to fix a drafting flaw, and though at times criticized for allegedly going beyond permissible bounds, have prevented even more problems, and more problems of an even serious nature, than do arise under the statutory language that is enacted.

13. Once upon a time, Treasury participated in the tax legislative process at a level that brought the benefits of its collective experience, knowledge, and wisdom to the drafting table. During the past several decades, Treasury's role has diminished, and its input marginalized, as a combination of lobbyists and legislators who think they are tax experts have taken over the process. I have my doubts that senior staffers on the Joint Tax Committee have as much influence as they once had, and that is unfortunate. It may be a reason that turnover on that staff is higher than it was several decades ago.

14. Tax practitioners would have more " of a say in the process" of drafting if Congress would return to the practice of holding hearings so that it can educate itself about the ramifications of proposed statutory changes. That's how a drafter can become "fully aware of the problems" that are implicated in an issue. And I'm not referring to the grandstanding hearings such as the one at which what turned out to be falsely-testifying witnesses were paraded forth in an effort to blame the IRS for the existence of the income tax.

15. Though Andrew is correct that tax "administration is less important in statutory drafting than the question of distributive politics and appearances," it is a sad commentary on the state of current American political process that appearances trump function. I suppose the shiny car without an engine is more worthwhile to some people than the dinged-up vehicle that runs. Perhaps the good-looking bridge with wrong-sized bolts should be the logo of the "appearances matter more" crowd?

16. I very much like the idea of giving courts "the power to certify questions of statutory interpretation to legislative bodies with the authority to change the statutes in response for future cases." I wonder how long it would take for a response. I wonder how much irrelevant baggage would be tacked onto the response. I wonder if it would make sense to give Treasury and the IRS similar referral authority, so that the question could be resolved long before it reaches the courts many years after the legislation's enactment.

Near the end of his critique, Andrew provides an example of how distributive politics and appearances have trumped tax administration concerns. He refers to the Pease Amendment, which is the phaseout of personal exemptions for higher income taxpayers. To me, that amendment is the epitome of what is wrong with how Congress functions. The amendment was designed to raise taxes without raising the section 1 rates, so that the Congress could tell the nation that it had not raised taxes. The phaseouts, which finally were set for repeal but which unfortunately appear to have been given new life, not only create a higher effective marginal rate for taxpayers not in the highest brackets than for those in the highest brackets, and not only complicated tax forms and the tax law, but also reflect a deceit that tried to trick the public into thinking that by not raising section 1 rates Congress, which had in fact raised taxes, had not raised taxes. Of course, as drafted, the Pease amendment is not a poster child for bad drafting, but for bad policy. And that is another topic.

Ultimately, even if it cannot attain tax drafting perfection, the Congress can improve significantly the process that it uses to generate tax legislation. It can restore public hearings. It can relegate lobbyists to the public arena. It can disclose which individuals injected themselves into the drafting process. It can find ways to bring into the process the people who have the combined ability to be precise and to see the big picture. It can recognize that the far-reaching consquences of its actions carries with it a responsibility to subject those actions to the same sort of careful review it requires executive agencies, product manufacturers, and service providers to bring to their respective operations.

The inability to attain perfection is no excuse for failing to seek the next best thing to perfection.

An email found its way to me, carrying a proposed solution to the economic tribulations of the country. The email claims that the idea came from a reader of the St. Petersburg Times, as a response to the newspaper's request for readers to suggest ideas on how they would fix the economy. The reader whose response is getting attention allegedly proposed the following:

There's about 40 million people over 50 in the work force. Pay them $1 million apiece severance with stipulations.

1) They leave their jobs. Forty million job openings! Unemployment fixed!

2) They buy NEW American cars. Forty million cars ordered! Auto Industry fixed!

3) They either buy a house or pay off their mortgage. Housing Crisis fixed!

Aside from the question of whether such a plan would work, there's the question of whether there is any truth in the story of how the suggestion came to be. I went to the St. Petersburg Times website. I searched for various components of the suggestion, such as "They leave their jobs. Forty million job openings! Unemployment fixed!" but I found nothing. A google search turns up sites repeating the email message but none have a link back to the alleged origin. There's nothing on the Snopes.com Rumor Has It website one way or the other. Because the suggestion is simply that, and aside from one assertion, mostly opinion rather than fact, it doesn’t matter whether the idea came from a reader of the St. Petersburg Times or some other source. Even the asserted fact, that there are about 40 million people over 50 in the work force, isn't critical to the idea, because the idea would be no more or less sensible if there were 30 million or 50 million people over 50 in the work force.

The more important question is whether this plan would accomplish what its unidentified proponent claims it will. My answer is no.

First, assuming the proposal would require everyone over the age of 50 to leave the work force, it would have the effect of removing from the nation's pool of labor assets those members of the work force who, though over the age of 50, possess skills, knowledge, wisdom, intuition, prescience, creativity, and other characteristics that aren't necessarily to be found among those who remain in the work force. The proposal suggests that unemployment would be solved, presumably because 40,000,000 jobs would open up. However, there's nothing to indicate that those seeking jobs have the requisite competencies to step into the positions that have been vacated, unless the unstated premise is that qualification for employment should continue to be eroded. In the short term, there would be far more negative consequences for the economy than positive ones. The people forced out of the work force won't be there to pass their collective wisdom and knowledge to the next generation. In the long run, the damage to the economy could be no less severe than the damage that has already occurred.

Second, assuming that the 40 million who receive the payment are required to puchase automobiles, there would be a huge shortage of available automobiles. According to How Big Will the Post-Recession US Vehicle Market Be?, the peak year for US automobile sales involved 17 million transactions. That was nine years ago, and during that time production capacity has been reduced. Restoring production would be more than a bit difficult with most of the people who know how to do so and who once worked at those plants having been pushed out of the work force in step one of the proposal. Whether foreign automobile production could fill the gap is problematic, because the economy isn't helped by having these 40 million individuals ship money abroad for a set of wheels. Many of these 40 million individuals don't need new vehicles, so requiring them to make the proposed purchases is a waste of resources. Worse, as pointed out in How Big Will the Post-Recession US Vehicle Market Be?, the current woes of the automobile industry are the consequences of needing to adjust to a marketplace that no longer can absorb the glut of product pushed into it during the past two decades. The economic problems in the automobile industry are transformative, and at best the proposal would postpone the inevitable at an unreasonable cost. Unless the automobiles being purchased by the 40 million involuntary retirees consume far less energy and don't rely on fossil fuels, the proposal is counter-productive in the long run. Sometimes pain is a good thing because it is sending a message that needs to be heard.

Third, assuming that the 40 million who receive the payment are required to purchase a home or pay off a mortigage, these individuals would be assuming responsibility for the maintenance and care of properties that, in present value terms, might require as much investment as the cost of the home. Some of the 40 million own homes on which there is no mortgage, but it is wasteful to require them to purchase a home that they don't need. One might suggest that they be required to rehabilitate an existing structure so that it can be used as a home, but it is not efficient to ask 40 million people to undertake 40 million projects, and thus funneling the money into their hands for this purpose is highly inefficient. Creating this sort of demand for homes simply contributes to sprawl and excessive housing size, and thus sustains elements of the old economic order that holds back genuine economic growth. Nothing in this step of the proposal does much of anything to deal with the problem of toxic mortgage debt, because most of the people who have lost homes or face foreclosure are under the age of 50. Most of the people over the age of 50 own homes, often free of debt, and are far less in need of a $1 million hand-out to be used for housing purposes.

Fourth, after these folks spend a small portion of the $1 million on a car and a house, what will they do with the rest of the money? Will they stash it offshore? Will they spend it? Will they save it in a US bank? When it goes into the US bank, will it be loaned to someone else or held by the bank because the bank officers are reticient to lend money during a bad economy? If it is to be loaned to someone else, does it not make more sense for the government, rather than transferring the money to 40 million individuals who then transfer the money into banks who then lend it, to lend the money directly to people who want to borrow? If the money is moved abroad or consumed overseas, how does that help the economy?

Fifth, the proposal would not do much of anything to deal with the health care crisis, the energy crisis, the environmental crisis, the education crisis, or the crime wave crisis. Ignoring any one of these problems guarantees that no arrangement, whether it is $1 million distributed to 40 million people or bailout money tossed into the black hole of bank and investment company bailouts, will succeed in solving the other crises.

Sixth, to the extent that people over 50 who would receive the $1 million payout are among the wealthy, the propriety of making the rich richer is deeply questionable. From a practical perspective, these folks could buy cars and houses or pay off debt if they wanted to do so without needing or having another $1 million in their hands. To the extent the government distributes money, it ought to do so with respect to people who truly need assistance. The proposal may be nothing more than a satire on the existing bailout deals, in which case it surely proves this point.

Seventh, $1 million for each of 40,000,000 individuals is $40 trillion. According to Table 3 in this Bureau of Economic Affairs News Release, the nation's gross domestic product is on the order of "only" $14 trillion. The total federal debt, according to the Treasury, is on the order of $11 trillion.

The proposal is nothing more than the tax rebate concept on steroids. And it has about as much chance of accomplishing its intended result as did the rebate, excuse me, economic stimulus program. That is, zero.

More than a year ago, in Who Should Get a Tax Rebate?, I suggested that funneling money to taxpayers made sense only if taxpayers would make better use of the money than would non-taxpayers. Even though that concern was addressed in part when the rebate payments were modified so that non-taxpayers could participate in the program, the outcome reinforced my contention that increasing federal debt in order to put money into people's hands would not help the economy unless the people used the money in ways helpful, rather than hurtful, to the economy. As it turned out, the economic stimulus program did not stimulate the economy, in part for that precise reason. I pointed out the reason, and here it is again:

So long as consumption exceeds production, so long as more wealth, particularly dollars, flow out of the country than flow into the country, so long as certain items remain in short supply and project to remain that way, the nation's economic and financial health will worsen. Tax rebates will not increase the supply of clean water, oil, natural gas, or any of the other resources mismatched to the demands of the world population.

The three-step proposal getting all of this attention exacerbates the mismatch between production and consumption, because it would create a group of 40 million people who consume more than they produce, and considering that the world already has far too many people consuming more than they produce, for one reason or another, it makes no sense to add to their numbers when the underlying cause of the global economic meltdown is consumption exceeding resources. As I pointed out in Taxes and Economic Stimulus: Déjà vu All Over Again?":

What seems undeniable is that simply transferring cash to individuals, whether through rebate checks or reduced tax withholding, will have the same insignificant impact on the economy as did the earlier stimulus package. Having the money end up in banks, through savings or loan repayment, simply makes the ocean of bailout money flowing to bank shareholders somewhat, and unnecessarily, deeper. Having the money end up abroad to the extent it is used to boost the consumer goods production in other nations does little to create jobs in the United States, one of the few specific goals mentioned by advocate of a second stimulus package. Transmitting the money to state governments simply removes the question to the next level but doesn't address its ultimate disposition.

This analysis, though, needs to be considered not simply against the ideal, but the reality. Putting aside the question of whether the government should transfer dollars to private individuals or organizations, and focusing on the question that arises if the preceding question is assumed to be answered in the affirmative because it already has been so answered, the question is whether the dollars should be transferred to individuals or organizations such as banks, automobile manufacturers, and investment enterprises. On this point, an argument can be made that, compelled to accept the transmission of dollars to the private sector in this manner, there is something to be said to preferring individuals as the recipients. Nonetheless, the proposal begs the key question, because the best use of the money is for direct government investment in public infrastructure and facilities for the public good, a process that generates public assets in exchange for the public debt incurred to acquire them.

The debate over CCA 200911007 not only raises the substantive points mapped out by Pat Cain in criticism of the issuance and by Marty McMahon in his defense of the position taken by Chief Counsel, but also focuses attention on administrative, procedural, and resource issues symptomatic of a growing crisis in the tax law.

The issue is a simple one to explain. The $1,000,000 limitation in section 163(h) on the amount of acquisition indebtedness with respect to which interest is deductible applies either per taxpayer or per residence. If it applies per taxpayer, then two unmarried individuals who co-own a principal residence would each have a $1,000,000 limitation though the Chief Counsel rejected that conclusion in CCA 200911007. So, too, would two married individuals, though the provision in section 163(h)(3)(B)(ii) cutting the limitation down to $500,000 for each spouse if the couple files separate returns strongly implies that if they file a joint return the limitation is $1,000,000 and not $2,000,000. Reinforcing this implication is the provision in section 163(h)(4)(A)(ii)(I) that treats a married couple filing separate returns as one taxpayer for purposes of identifying the qualifying residences, presumably to prevent them from claiming interest deductions with respect to mortgages on four residences.

It has been suggested that the problem lies with the drafters of section 163(h) and its amendments. Specifically, it has been proposed that the drafters assumed that married individuals filing jointly become one taxpayer for federal income tax purposes. That, of course, is not the case. The suggestion that the drafters made this erroneous assumption rests on the experience of someone who discovered similar problems in section 121, and who tracked down the member of the Staff of the Joint Committee on Taxation who drafted that provision. That person admitted that he assumed that when a married couple files a joint return, they are treated as one taxpayer. Though shocked to discover he was wrong, he admitted the mistake. That, however, does not change the statute. The inference is that the same misconception afflicted the drafters of section 163(h).

This report reveals a serious problem in the tax legislative process. Years ago, in the late 90s, a student of mine did a directed research project that turned out to be so extensive that it never reached the stage where it could be published. It was an empirical study seeking correlations between the number of technical corrections required for each enacted tax bill and the years of tax practice experience of the Joint Committee staff. The focus was on technical corrections, and that was to keep the project manageable for a 2-credit directed research. The research would not pick up drafting problems or underlying erroneous assumptions unless they had been corrected in a technical corrections provision. The information that the student gathered pointed to a strong correlation. As the staff became younger from an experiential perspective, mistakes increased. There is nothing surprising about this discovery but it is distressing.

The problem, illustrated by the defect in section 163(h) as highlighed by CCA 200911007 and reinforced by the empirical research, is pervasive. It compels the following question. How can someone on the Joint Committee staff not know the basic tax concept that a husband and wife are two taxpayers who when filing a joint return merely join together on that return but do not become one taxpayer by doing so? Many years ago, I was told that the Joint Committee wasn't interested in me, or anyone else similarly situated, until we had acquired quite a bit of tax practice experience. Somewhere along the line, that standard has changed. Did the drafters who created and later amended section 163(h), and they were not the same individuals, not take a basic tax course? Did they attend a law school whose basic tax course did not cover this principle? Did they somehow not grasp the principle even though it was taught and yet earned high grades? Were they brought onto the staff despite not having outstanding tax grades and sufficient tax practice experience? Every student in my basic tax class learns this principle when we explore section 151 and they learn that there are two personal exemptions on a joint return, one for each taxpayer, that spouses cannot be dependents of each other, and that spouses can have a personal exemption for the other spouse but only under limited circumstances that cause the other spouse not to need or use the exemption. In basic tax courses that are restricted to issues of economic theory, social policy concerns, and conceptual exploration, this issue very well slips away. I pose those questions not because I want the answer with respect to specific individuals but because I want to obtain a sense of how much tax expertise the staff of the Joint Committee brings to the drafting table. It's not just the Joint Committee staff. I have had conversations with people in Treasury, Chief Counsel, and the IRS that have made me aware of how much they did not know or understand, and in many instances I ended up educating them. How does this happen?

I think one problem is that the workload imposed on the people writing and administering the nation's tax load has increased tremendously while Congress fails to match the increase when it is time to allocate resources. I suspect that throughout these organizations, from Joint Committee to Treasury, Chief Counsel, and the IRS, there aren't enough people to provide thorough review of each other's work. Add to this the pressure to crank out legislation at the midnight hour, to issue overwhelming amounts of guidance in the short period between legislative enactment and effective date, if there even is any such period of time, and to get responses back to employees "in the field" who need help dealing with the tax consequences of a particular transaction. The IRS itself admits that the difference between salaries in the private sector and those paid to its employees leaves it in a disadvantageous position when litigating tax issues, and it's not unlikely that similar constraints afflict its guidance and administrative functions. Perhaps the current economic downturn will cause that difference to narrow. These compensation and resource constraints make it increasingly difficult to hire people with tax practice experience of any sort, and make it more likely that those hired are coming right out of school. Law schools, however, are not trying to prepare their J.D. graduates to step into these positions ready to do what is demanded of them, in part because law faculty continue to think that government agencies will do the training that needs to be done. But just as this guidance and review at law firms is disappearing, to the point where some law firms choose to hire only lawyers with several years of post-law-school training acquired at someone else's expense and risk, so, too, the amount of guidance and review in government agencies, including Treasury and the IRS, is diminishing. All of this is topped off with the continuous replacement of high-level management and those in policy-making positions, putting the agencies and the subordinate employees in a world of constant turmoil, riled even more by continuous tinkering with the tax law by the Congress.

The people who were confused by the status of married individuals and concluded that they are one taxpayer probably were confused by the tax policy concept underlying section 1041 nonrecognition, the marital deduction, and similar provisions that are justified on the notion that transfers between spouses ought not be taxed. Some justify these provisions on a theory that the married couple is one person, a concept that was touted during the 1980s and again during this decade by those who saw the tax law as a mechanism to bolster traditional family structures, at least in terms of how its advocates interpreted traditional in that context. The provisions also can be justified, and more sensibly, by viewing spousal transfers as an inappropriate and administratively unwise time to impose taxation, in a manner similar to the justification for not taxing increases in the value of property until a realization event occurs.

Yet understanding the difference between a fundamental doctrinal principle of tax and a jurisprudential justification for a much less fundamental principle is a core lawyering skill. Someone without that skill ought not be working on matters that affect not only one client but tens of millions of clients. The American people are the clients of the government, for the government exists to serve the American people and to that their interests and rights are protected. The more people who rely on a product or service, the more that product or service must be properly designed and implemented. That's not an approach limited to application in the government sector, for it surely explains the dangers of inadequate products or services globally or nationally marketed by private sector enterprises, and it's not necessary, is it, to name names?

It wasn't long after I shared these views that a response appeared. Nicely and smartly titled, "Perfection is not available at this time. Try again later," it advised me that my expectations about perfection are "way too high for human beings and real world." I was reminded that "drafting is very very hard."

In my reply, I explained that my standard isn't perfection. It's "good enough." Every semester I reassure my students that it is possible to earn an A without attaining perfect scores on all of the semester exercises and the examination. If perfection were the standard, no student ever would have earned an A in any of my courses. They often earn perfect scores on individual semester exercises and specific examination questions. They do this working alone, with no one reviewing the work that they submit for a grade or score. In fact, one can earn an A by attaining roughly 75 percent of perfection. In the practice world, the standard must be raised, and one way of doing so is to have the benefit of careful review and, where feasible and appropriate, team efforts. If the chances of a person making an error are 10 percent, the chances of two people making the same error drop, and with a reviewer in the mix, the chances of an error drop below 1 percent. Unfortunately, having one's work reviewed is becoming more of a luxury than a routine process, because we live in a world of increasingly reduced time and money resources, a world filled with a desire for instantaneous results. Had the Congress and its various staffs invested a little more time by having brains attached to other eyeballs think through the ramifications and issues implicated in the bonus taxation legislation, far fewer resources would have been wasted in the ensuing flap over the matter.

What matters, I continued, is the nature of mistakes. Mistakes will be made. Mistakes that are harmless easily are tolerated by the tax system. Thus, the misspelling of "mortgage" as "morgage" in a tax statute doesn't impede the administration of the tax law. Mistakes that compound mistakes are the worst type, and that is what the section 163(h) issue has become. The failure of Congress to think through the question of co-ownership of principal residences, the application of a tax doctrine that does not exist, and the flaws in CCA 200911007 described more fully in the previously cited postings coalesce to form a perfect storm of a mess. In some ways, it's the difference between the mistake made by someone who knows that a hammer is required and knows how to use one, but misses the nail, and the mistake made by someone who doesn't even know a hammer exists and thus tries to accomplish the task using a blowtorch.

Yes, drafting is hard. So, too, is interpreting statutes. So, too, is taking into account the hundreds of variables that must be considered when engaging in estate or business or tax planning on behalf of a client. The opportunity for error is high, and can be reduced through the use of teamwork and review, which requires adequate resources. It's not enough to toss off these crucial deficiencies in the tax law by falling back on the imperfection of humanity. Unlike teachers who think, as I have been told, that a C minus sends the message that the work is a failure or that an A is deserved by someone who did his or her best, I think that there are times when our best isn't good enough. That's why we need teamwork and review. That's why, when the margin for error is slim, preparation and practice must be given due attention. The resources devoted to preventing an error in a document affecting tens of millions of people ought to be far more than those dedicated to a document that carries less weight and affects one person.

It was then pointed out to me that the drafting sessions of several decades ago, when two dozen people would be in one room helping the principal drafter craft the statute, have gone out of style. It was suggested that this was not unintentional, for those who dislike tax rarely try to do a good job drafting its legislative text. Even though this might appear to ring of conspiracy and ulterior motives, I think it is quite plausible. What better way to destroy the tax system than to pay little attention to the care in its drafting? To paraphrase recent statements about the President, are there not those who, when pressed, would confess, "I would like to see the tax law fail"? Indeed there are. What better way to destroy the income tax than to riddle it with badly drafted language, unwise provisions, and unjustifiable complexity, while claiming that what is being done is for the sake of simplicity and with a goal of public service? Does this pattern not encourage noncompliance and make it more difficult for those who want to comply to do so?

To this there is made the argument that laws aren't, and presumably, cannot be, perfect, and that the relevant agency, in this case Treasury and the IRS, must accept responsibility for dealing with the problem. That might work if the error is one of omission that generates an ambiguity that must be interpreted. It doesn't work well if the mistake is one that cannot be fixed without legislative technical or other correction. When one person consistently fixes the errors of another, the first person is enabling the second person's inadequacies and so long as the second person does not undertake responsibility to avoid and repair mistakes, the mistakes will continue.

Even when it is possible and appropriate for the Treasury and the IRS to deal with statutory flaws, it needs to do so using a process that permits comment, reflection, and deliberative consideration of the issues. That process needs to be transparent. Yet in recent years, the trend is for increasingly reduced guidance, leaving practitioners with fewer regulations and revenue rulings so that they grasp at CCAs and PLRs. More and more guidance shows up in Notices that look like regulations but have not been through a vetting process, and press releases. Yes, press releases. This is no way to govern a nation or to administer the tax law.

My view on this score also brought an objection. Such a process would not permit the agency to get its work finished. There is a need, and this is a valid point, to get guidance published before too many people go astray trying to file returns or plan their transactions. PLRs and CCRs, it is noted, are not intended to be public guidance but simply advice to a taxpayer or an IRS employee dealing with a specific situation. But because these documents are public, those who write them think that they carry the weight of regulations and they begin using them in lieu of regulations and revenue rulings. Put together, this person explained, a first-year docket attorney and a bored reviewer who doesn't think about the implications of the document, and the errors are compounded.

In response, ought not the comment, reflection, and deliberative consideration of tax issues be the work, or at least part of the work, that the agency must do? If the agency cannot do all if its work, thus causing a proliferation of CCAs and PLRs that stand alone as guidance on an issue, the reason is lack of resources. That lack of resources is a problem brought to us by the same people who have contributed to the undermining of the tax law. The ultimate responsibility rests with the Congress. That ought not be a surprise to anyone who knows my view of how Congress operates and how it has failed the nation.

Yes, it falls back on the Congress. Congress doubles the number of Internal Revenue Code provisions but doesn't double Treasury and IRS resources to issue the requisite regulations and other formal guidance, to staff help desks, or to audit returns to encourage compliance. The inability of humans to attain perfection ought not be an excuse to give up trying to get as close to it as is good enough. When an issue generates the sort of dispute that CCA 200911007 has triggered, there is de facto proof that the statute is not good enough. The inability of a basketball player to shoot 100 percent is not good reason to stop practicing shooting or to focus when trying to make a basket. And if the person's best isn't good enough, the person may end up not making the team or playing in the game.

Will Congress ever get its act together and revamp the way it does business so that it generates legislation of sufficient quality? Perhaps if the tax system collapses as did the financial sector, Congress will understand the problem, because it's as deaf to the warnings about the state of tax administration as the "wizards" on Wall Street were to those who had been criticizing its culture long before they spewed out those derivatives that broke the back of the economy.

It won't require perfection to fix the tax law. But it will require something far more than we've been seeing and getting.

Thanks to Paul Caron's TaxProf Blog posting, I was directed to a series of articles addressing that seemingly critical question, "Is Legal Scholarship Dead?" Paul nicely quotes from each of the articles, and does so in a way that leads up to the suggestion on which I cannot refrain from commenting.

First comes this quotation from Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803 (2009):

American legal scholarship today is dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period. ...

Now it’s true that we’re producing at a vastly faster rate than ever before. More papers. More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster. Over seven thousand American legal academics—and all of them cranking out those talks and papers as fast as possible. The speed of legal scholarship is just off the charts right now.

And yet, nothing’s happening.

How could this possibly be? The short answer is that, all around us, there is more, vastly more, of nothing happening than ever before.

To this responded Daniel R. Ortiz in Get a Life?, 97 Geo. L.J. 837 (2009):

What a depressing prospect! Many years short of retirement, I’m condemned, Schlag says, to generate necessarily (but, I hope, excellently) mediocre “legally cognizable material” at an ever-increasing pace. Like a hamster spinning on a wheel, my only hope is that my audience—and that’s probably only my dean—will applaud my display of energy as I move ever more quickly nowhere.

And to that lament came Richard Posner's proposed remedy, in The State of Legal Scholarship Today (A Comment on Schlag), 97 Geo. L.J. 845 (2009):

Might it not be a good idea for law schools, just as they have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the “regular” faculty, to have a department of legal analysis? The members would be legal doctrinalists, and their salaries would probably exceed those of the other professors in the law school (because lucrative private practice would be a close substitute for what they would be doing in law school, which is not the case for more “academic” law professors), but they would have somewhat higher teaching loads and the school would have different and lower expectations with regard to their scholarly publication. The practice of law has become a team effort—so has medicine— so why not legal education? Already regular law professors and clinical law professors work side by side in general amity. Why not have a third group of specialists, the legal analysts, working alongside them?

Posner's suggestion deserves attention, not only because it presupposes some conditions that are questionable but also because it raises serious questions that need to be addressed. His suggestion deserves attention because, as Mike Livingston points out in his comment to Paul Caron's posting, law schools seem to be heading in that direction, but haphazardly and not deliberatively, creating an arrangement different in critical respects from the one envisioned by Posner.

The first concern is Posner's assertion that "law schools … have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the 'regular' faculty," which may be true at some institutions but certainly isn't the case at all institutions. That fact proves the axiom that it need not be the case at any institution. Faculty at my law school are treated in the same way regardless of whether they are teaching a clinic or not. The hiring process may focus a bit more on certain credentials, namely, practice experience in a clinic's substantive area, but clinic faculty are not relegated to some "second class" membership in the faculty. They vote, they are subject to the same tenure review standards, they are not on a different pay scale, etc. There are faculty who teach both a clinic and a "regular" course, which would compound the many problems that would arise from separating clinicians from non-clinicians. Posner's point, though, survives despite the seeming universality of his assertion. His point is that separating law faculty into two (or more) groups would solve a problem.

My second concern is the idea that creating another "class" of law faculty is, in some way, a solution to the problem that threatens to transform law schools, and to do so in ways beyond the schools' control if their administration and faculty don't start focusing on the realities of the current recession and its long-term impact on legal education, as I discussed in How A Transformative Recession Affects Law Practice and Legal Education. It's not just the creation of a separate class of faculty that is disturbing. It's the proposed disparity in treatment, and, worse, the economic justification for the proposed dichotomy.

Posner suggests a "department of legal analysis" that would hire or take over "legal doctrinalists." Presumably, these would be the faculty who teach legal doctrine to law students. Law students, however, need more than legal doctrine. They need the ability to interview clients and dig out relevant facts. They need to learn how to negotiate and bargain. They need to learn compliance and planning techniques. They need to learn how to write, how to teach themselves, how to organize their thoughts, and how to express their reasoning and conclusions. They need to learn how to react to ever-changing legal landscapes. Posner describes what these faculty would be doing as something for which "lucrative private practice would be a close substitute." Yet not all great practitioners are in lucrative practices, because some great practitioners toil in public service organizations, in prosecutors' offices, or in government agencies, serving well their constitutencies and clients and yet not becoming the second coming of Midas. Ideally structured, most law faculty would be teaching clinics and other courses, making the divide between clinician and non-clinician a thing of the past. But that issue distracts from the chief problem with Posner's idea.

Posner suggests that the legal doctrinalists would earn higher salaries than the "'academic' law professors" and would have higher teaching loads than would the "academic law professors." This could mean two things. It could mean that legal doctrinalists would teach, for example, 16 credits during the year, and earn, let's say, $140,000, whereas the academic law professor would teach 8 credits during the year, and earn $70,000. Presumably, that would give the academic faculty more "free time" to devote to "legal scholarship." But it also could mean that that legal doctrinalists would teach, for example, 16 credits during the year, and earn, let's say, $140,000, whereas the academic law professor would teach 8 credits during the year, and earn $125,000. The former interpretation means that academic faculty would be compensated economically for their scholarship only if they found someone willing to pay for it, a proposition extremely unlikely to materialize. The latter interpretation means that law student subsidization of legal scholarship would continue. If that is what Posner envisions, I disagree with his proposal.

To ask the critical question is to ask why law students should subsidize legal scholarship. The replies from the defenders of this practice are interesting. They argue that the legal scholarship done by faculty at Law School A enhance the reputation of that school and thus enhance the employment prospects of its graduates. Yet graduates of law schools that have generated significant increases in "scholarly output" by their faculties haven't gained in the marketplace because those increases in scholarly output haven't diminished the employment prospects of Law School A's graduates. Advocates of student subsidization of legal scholarship also argue that the scholarship contributes to the development of the law, in the legislative arena, through administrative pronouncements, and in judicial decision making. Yet that is far more the exception than the rule. Members of Congress rarely, if ever, read the academic journals. Administrative agencies rely on those practicing in front of them or submitting comments, and rarely does a law review article turn up as an agency submission. Judges turn to the law reviews with ever-decreasing frequency. Practitioners subscribe to services that keep them current in the law, which means that their subscriptions to academic journals has withered away to de minimis numbers. It may be sad from the wider perspective of legal philosophy, but clients pay for what solves and prevents their problems today, and aren't all that interested in how things would turn out for them if Professor X were the czar of the legal world.

How did this come to pass? Years ago, the Supreme Court, in Griswold v. Connecticut, 381 U.S. 479 (1965), cited a law review article written by a law school professor and dean, Erwin N. Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. (1960). No, I don't think the two Griswolds were related, at least not in terms of considering themselves members of the same family. The appeal of being cited by the Supreme Court resonated with the egos of many a law school faculty member and many more wanting to be law school faculty. And so the race was on to pen the definitive analysis that would lift its author, and the author's school, into prominence when it was cited by the Supreme Court. The irony is that Erwin N. Griswold tackled a practical problem and dealt with it in practical ways that made it useful to the court. So much of today's "dead" legal scholarship plays upon a theoretical landscape offering impractical ideas that it's no wonder the judiciary finds less and less value in the pages of the academic journals. In contrast, practical writing that guides lawyers as they seek to assist their clients also gives judges a good road map to working through a case. When I do write what is considered "true legal scholarship," and I do that from time to time, I focus on practical problems and address a question that has come up in practice and that is near or already in litigation. My practical writing, which is what principally author, ends up being cited with some regularity, particularly in judicial briefs. I doubt the Supreme Court ever will cite me, and yet that in no way diminishes my conclusion that I've been helpful with my writing. My point is that one can both teach and write, in ways that are harmonious, without needing to wander into the places legal scholarship has taken itself during the past twenty or thirty years, apparently, according to some, to places where it will die or already has died.

And that brings us to yet another argument made by those who support the idea that law faculty should be cranking out scholarly article after scholarly article. They claim that these articles will contribute to the betterment of society, by influencing the development of law in a beneficial direction. Yet, as I've pointed out, they're more likely to achieve this result if they focus on practical problems in practical ways rather than trying to justify positions on abstract conceptualizations. Not long ago, a professor from another school came here to present a paper. The issue was important, the analysis was interesting, but for me the paper ended too soon. I asked the author if the goal was to produce something to guide legislatures in framing a statutory solution, to help judges decide the seemingly inevitable case, or to provide practitioners with arguments and planning approaches to use in litigation and planning work. The answer floored me. "I'm not writing for them. I'm writing for other scholars." I bit my tongue. I wanted to ask, "On whose dime?" Why should law students undertake debt in order to fund this sort of production? The answer, of course, is that they are easy targets, riding on a bubble of education debt that made it a no-brainer to increase law school tuition every year to fund more and more faculty scholarship as average teaching loads declined, made possible by expanding the size of law school faculties.

Mike Livingston, in his his comment to Paul Caron's posting, notes that law schools already are "substituting non-tenure track (and primarily nonscholarly) faculty for the more traditional variety" and he characterizes that as a ruse. Indeed it is. These non-tenure track faculty, cost law schools far less than do "regular" faculty and yet their increasing presence doesn't yield tuition discounts or rebates for law students. Why? Because more and more regular faculty demand reduced teaching loads, in order to generate legal scholarship, law schools end up needing to hire non-tenure track faculty, and even adjuncts, to teach courses, including core courses. Here's the catch. These non-tenure track faculty and adjuncts earn less, not more, than the "academic law professor." Law schools have it backwards. They're slip-sliding into an inversion of Posner's suggestion. They will end up, if the trend continues, as institutions paying high salaries to academicians writing legal scholarship and lower salaries to faculty doing the teaching. And law students will continue to borrow money to pay for this experience, why?

What law schools, and their parent universities, need to do is to become honest. The law school is a school. Its tuition should fund teaching, and by teaching I mean not only doctrinal pedagogy but also clinical and other experiential classes, planning courses, practical writing exercises, and all of the other skills that lawyers need. The university, if it so chooses, can establish institutes, or think tanks, that hire people who want to ponder and engage in discourse on topics of interest, to themselves, to the university, to the institute, to whomever, as the university chooses to support. Funding? Consult the think tanks and learn how they obtain money. Think tanks aren't charging tuition. A person who wants to teach and write could be given the opportunity to take a part-time appointment in the law school and a part-time appointment in the think tank, with salary set accordingly. A person who wants to write, and there are law faculty who would invest all their time writing if they could and who view teaching as a necessary distraction, could seek an appointment in the institute. A person who wants to teach, and who doesn't want to engage in the academic scholarship game, could seek an appointment in the law school. None of this would prevent the law school faculty member from writing practical material. None of this would prevent the law school and the institute from collaborating on programs of interest to law students and the practice world, though I predict there would be much experimentation before these organizations figured out how to do it in a way that works.

If law schools don't make these adjustments, they will continue on the slip-slide until the day the faculty wakes up, realizes students are heading for those much less expensive educational organizations established by the practice world, a possibility I suggest in How A Transformative Recession Affects Law Practice and Legal Education, and notices that the revenue required for their incomes has shrunk considerably. The law school will have become the institute, after dismissing most of the faculty, its building will be taken over by the university, to be rented to the new law teaching organization, in some sort of cooperative venture with the practicing bar and perhaps the state judicial system. The outcome will be far less pleasant than the one that can be obtained by a careful and deliberative process of reforming and re-forming legal education. The post-2010-recession economy will not be hospitable to the current arrangement. It truly is a simple choice. What will happen to it?

With all the turmoil concerning the taxation of those AIG, and similar, bonus payments, as discussed in Taxing Bonuses, it's time for a change of pace. There's only so much critical analysis a person can usefully pursue, such as the one in Tax Concept Spawns Tax Details, before concluding that it makes sense to wait and see how the legislation fares in the Senate and whether it survives the President's veto pen.

A different perspective on the challenges of tax administration highlights a similar problem. The problem in this instance is the inability of state, local, and national governments, and even international agencies, to curtail or even eliminate the "tax phishing" that infects life in this digital age. It's a problem for the people who fall victim. It's a problem for the IRS, because it must shift resources to dealing with the problem and helping victims. It's a problem for the robustness of the internet, because the backlash against these outlaws could end up restricting innocent internet users. Why is this problem similar to the bonus taxation problem? In both instances governments struggle to find ways to deter in appropriate behavior, and to fix the consequences of that behavior, without affecting adversely those who are not among those who think law is nothing more than a distraction to their unflinching pursuit of money in total disregard of what is right and wrong.

There is a difference, though, between the two problems. In one case, the arrangements were crafted carefully, and the ability of fact finders to ascertain the truth was impeded by cunningly disguised implementation. In the other case, the sloppiness betrays the incompetence of the money chasers, even though there are, unfortunately, people who don't know enough to recognize the obvious and almost comical attempt to prosper through greed.

So here's a chance to experience what it's like to face a quiz, or more accurately, a semester exercise, in a tax course. You can pretend to be an associate in a law firm who is asked by a partner whether an email received by a client should be ignored or given a response. If that thought is too disturbing, pretend that a relative or friend has approached you to ask how they should react to this email. Your task is easier than it could be, because I will tell you the first part of your response. You would tell the partner to tell the client to ignore the email, just as you would tell the relative or friend to delete it and move on. Your responsibility is to identify the clues in the email that suggest it's not the IRS message it claims to be.

Here's the email, which is a verbatim replication of one that I received very recently:

*******************************************************************
From: Department of The Treasury [mailto:message157@legalnotice.org]
Sent: Friday, February 27, 2009 8:48 AM
Subject: Tax return (Message ID: JN34534362)

After the last annual calculations of your fiscal activity we have determined that you are eligible to receive a tax refund under section 501(c) (3) of the Internal Revenue Code. Tax refund value is $189.60.

Please submit the tax refund request and allow us 6-9 days in order to IWP the data received. If u don't receive your refund within 9 business days from the original IRS mailing date shown, you can start a refund trace online.

If you distribute funds to other organization, your records must show wether they are exempt under section 497 (c) (15). In cases where the recipient org. is not exempt under section 497 (c) (15), you must have evidence the funds will be used for section 497 (c) (15) purposes.

If you distribute fund to individuals, you should keep case histories showing the recipient's name and address; the purpose of the award; the maner of section; and the realtionship of the recipient to any of your officers, directors, trustees, members, or major contributors.

To access the form for your tax refund, please click here

This notification has been sent by the Internal Revenue Service, a bureau of the Department of the Treasury.

Sincerely Yours,

John Stewart
Director, Exempt. Organization
Rulings and Agreements Letter
Internal Revenue Service
********************************************************************************

Don't read further in this post until you try to identify the clues. Some are very obvious, and you should be able to collect enough of them to earn a decent grade. Some take a bit more thought, and finding those can bring the grade up to a very good level. A few of the clues are a bit oblique, but they provide a chance for the A students to stand out.

So don't peek at the list that follows. So to push those clues further down the page I will provide two more bits of information.

First, it would not be surprising to discover that you have identified a clue that I don't identify. The outcome of collective effort on client problems usually exceeds the output of a single attorney. That's why professionals work as teams. The tax lawyer sometimes brings in one or more other tax experts, and when the matter warrants, an accountant, an appraiser, an actuary, an engineer, or some other professional who brings a special expertise.

Second, here's how in my "score against a standard" grading approach you would do with this problem (roughly, because there are insufficient total points to generate a course grade and cut-offs are adjusted to prevent one point from making a difference in a course grade):

16 to 20 clues: A
15 clues: A-
14 clues: B+
12 or 13 clues: B
11 clues: B-
9 or 10 clues: C+
7 or 8 clues: C
6 clues: C-
4 or 5 clues: D
3 or fewer clues: F

Ready for the clues? Here they are, in the order they appear in the phishing email

1. The email address associated with the Department of the Treasury is not from a Department of the Treasury internet domain.

2. Tax refunds are not issued under section 501(c)(3). Section 501(c)(3) is the definition of organizations that are tax-exempt on account of being organized and operated for religious, charitable, scientific, and other specific purposes.

3. If a tax refund has been determined, there ought be no need to request it.

4. The acronym IWP makes no sense in the context of the message, and even if one could come up with words that would fit those letters, it is highly unlikely that a message with respect to a tax refund would use the term as an infinitive form of a verb.

5. It is patently absurd to think that a government message sent by email would be written using text messaging shortcuts, as is the case with "If u don't receive."

6. There is no "IRS mailing date shown."

7. The email is purportedly sent by the Department of the Treasury, and thus one would expect a reference to "the original Department of the Treasury mailing date"?

8. The grammar in "If you distribute funds to other organization" suggests that the message writer does not use English as a primary language, and is the sort of error that would not persist in a form letter of the sort that goes through multiple levels of review.

9. Even more incorrect grammar shows up in "If you distribute funds to other organization" because either organization should be in the plural or the word other should be another.

10. The misspelling of "wether" corroborates the thought that this email originates with someone who does not use English as a primary language, and is yet another type of error that would have been caught, as described in #8, above.

11. There is no section 497, so there surely is no section 497(c)(15) and there are no such things as section 497(c)(15) purposes.

12. Yet another misuse of the English language shows up in the phrase "If you distribute fund to individuals."

13. The meaning of the phrase "the maner of section" can be guessed only by making the assumption that the word "selection" was intended but ended up as "section."

14. The word "maner" must come from the same dictionary as does the word "wether" and corroborates the point made in #10, above.

15. If "maner" and "wether" aren't enough to raise suspicions, perhaps "realtionship" does.

16. The URL that shows up under "click here" surely is not a Department of the Treasury or IRS web site.

17. If the notification was sent by the Internal Revenue Service, why is it packaged as a message from the Department of the Treasury?

18. The IRS does not appoint people to be the Director of a Letter.

19. The placement of a period after the word Exempt is yet another grammatical error demonstrating that the email is a deception.

20. Anyone who reads the paper knows that the IRS does not use email to initiate contact with a taxpayer concerning refunds.

Sadly, somewhere someone has clicked on the link in hopes of getting a few dollars, and ended up providing a criminal with sufficient information to permit the criminal to steal the person's identity or to use some other nefarious technique to acquire funds to which the criminal is not entitled. Is it not time to being teaching high school students how to identify phishing emails? Surely that is as important a life skill as are most of the others that are taught in our school systems? Hoping that someone's common sense would be sufficient is asking too much.

So how many clues did you identify?