MauledAgain

It seems I’m not the only one wondering how the IRS is going to administer the additional responsibilities foisted on it under the health care legislation. In addition to my position that responsibility belongs elsewhere, as discussed in IRS Ought Not Be the Health Care Enforcement Administrator, there also is my concern about the impact on the IRS and the tax law of relying on the wrong agency to deal with the reporting and insurance purchase requirements, as discussed in Health Care: Enlarging the Code and Stressing the IRS. Now, from a long-time reader of MauledAgain, comes another practical problem.

According to this reader, the system put in place by the legislation to enforce the health care insurance purchase requirement is deeply flawed, for reasons that have little to do with the selection of the IRS as the administering agency. I agree with my reader. The problem is best illustrated by an example, and I’ll use the one my reader shared. X is a healthy, 25-year-old individual who does not have health insurance in year 1. Though my reader asks, “When is that reported to the IRS?,” it seems to me that it’s not. Instead, the IRS will need to figure out that X exists, and that no one has filed any information returns with the IRS indicating that X is covered by a health insurance plan. Those information returns are due early in year 2. So the question should be, “When does the IRS figure out that X does not have health insurance for year 1?” My reader suggested that the answer to his question is “Sometime late in Year 2 (or later)?” I think that the answer to the question as I formulate it is “Perhaps late in year 2, but more likely, during year 3.” The IRS notifies X, and demands payment. If X has an income tax refund in the works, the IRS can divert some or all of it to payment of X’s year 1 penalty for not having health insurance coverage. As an aside, I suspect this puts X on the “watch out for this person” list and might speed up the process when year 2 comes to a close, and during year 3 the IRS figures out who did not have health insurance coverage for year 2. But if X does not have an income tax refund in the works, what does the IRS do? As pointed out in Health Care: Enlarging the Code and Stressing the IRS, the IRS is not permitted to file a lien against X’s property or to pursue a levy on X’s wages or other income.

Now, continuing with the example, let’s turn to X’s perspective. At the beginning of year 1, or at some time before year 1, X faced a choice. Purchase health insurance or don’t purchase health insurance coverage. To purchase the health insurance, X would be required to pay something in the vicinity of $5,000, which is the average cost of coverage for an individual. The odds of X needing health care, in X’s mind, are surely very low. Actually, even though healthy, X does need preventative care, such as teeth cleaning, eye exams, and a general physical check-up. Those services won’t come close to costing $5,000. So, from X’s perspective, most of the $5,000 premium is the cost of getting coverage for some extraordinary health problem. X probably has some medical coverage on his auto insurance policy, which deals with the most likely cause of X needing serious medical attention during year 1. On the other hand, from X’s perspective, failure to purchase health insurance coverage poses two risks. One is that the IRS figures out that X does not have coverage, and if caught, X is subject to a penalty that starts at $95 and eventually reaches $750. Even if there is a 50 percent chance of X getting caught – there is, after all, a bit of an “audit lottery” at play here – it still is much less a price than the health insurance premium. The other risk to X is that if X does need medical care, X shows up at the hospital as an uninsured individual. Under existing law, which remains unchanged, X cannot be denied emergency care. And, at this point, X will purchase health insurance coverage, but because the law prohibits insurance companies from denying X on account of an pre-existing condition – whatever it is that brought X to the hospital – X can now obtain coverage without paying the premiums for earlier years.

So, as structured, the new legislation encourages healthy young people to continue on their pattern of not purchasing health insurance coverage. It might even encourage those who had been purchasing coverage to stop, because there is so little incentive to purchase the coverage. Even older people who seem, at least to themselves, to be healthy will find it tempting to play the health care coverage purchase lottery that they cannot lose but for one caveat. If someone playing this game also foregoes self-financed checkups, they may end up with a serious health problem, even death, from a condition or disease that could have been treated easily had it been caught sooner. But one can play the health care insurance coverage lottery without giving up on preventative check-ups. One supposes that free blood pressure, diabetes, eyesight, hearing, and other screenings will continue to be available.

In the meantime, Congress has concluded that by having the IRS determine who is not covered and billing them for some amount ranging from $95 to $750 will encourage everyone to acquire health insurance coverage. Congress needs to sit through a course in economics, a course in statistics and probability analysis, and a course in health care management, with an exemption only for members of Congress who can prove they have degrees in these areas. A sensible incentive is a penalty equal to some sort of average health care coverage premium, provided that the penalty is enforceable in ways that make it likely that it will be collected. The proceeds collected by enforcing the penalty should be transferred into a fund available to health care providers and insurers, including the Medicare and Medicaid systems, that are paying for the care of uninsured individuals. Otherwise, the entire enforcement structure set up under current law is, as my reader notes, “a fool’s errand.”

Here’s the irony. If the people protesting the health care legislation realized how toothless it is, they wouldn’t be investing so much energy into trying to kill a paper tiger. Of course, the health care legislation is nothing more for those folks than a surrogate for the true object of their intense anger. Purposeful anger would be better directed at a Congress that has enacted something other than what is advertised to be, namely, legislation that will reduce health care costs. To accomplish that goal, one does not vote for a bill that makes it so easy to continue decisional behavior that has contributed to the health care crisis. Americans deserve better, but asking Congress to get it right might be asking too much.

The ongoing battle in New Jersey with respect to taxes and state spending is heating up, providing lessons in tax policy not only for students in a tax course but also for citizens generally. In November, after a candidate promising tax cuts won the gubernatorial election, I noted in New Jersey to Follow in California’s Tax Footsteps? that in order to keep the tax-cut promise, the new governor would be compelled to cut back on state services. I also predicted that his election did not guarantee tax cuts because the legislature would have a say in what happened. Not surprisingly, the early stages of this highly-charged debate is playing out as expected.

The governor proposed a bundle of tax cuts, which drew my attention in Tying Tax Revenue to Voter Responsibility. I pointed out the inconsistency between the desire for reduction or elimination of taxes with the desire for maintained or expanded state services. This syndrome of wanting something for little or nothing had been the subject of a poll that I discussed in Poll on Tax and Spending Illustrates Voter Inconsistency. It was inevitable that the pressure for tax reduction would collide with the pressure for government services.

According to a Philadelphia Inquirer report, New Jersey’s legislature, controlled by Democrats, has told the Republican governor that it will not approve the proposed budget unless the state income tax continued to include three tax brackets applicable to taxable income exceeding $400,000. Those brackets were enacted last year, effective for 2009. The governor has promised a veto of any legislation that maintains the higher tax rates on incomes exceeding $400,000. The highest of the three brackets applies to taxable income exceeding $1 million.

The first lesson involves the semantics that get tossed about when dealing with taxes. Should failure to reduce a tax be called a tax hike? Should extension of an existing tax be called a tax hike? The answer depends on the baseline. Should a proposed tax rate for 2010 be compared to 2009? To 2010 as it would exist if 2009 had not existed? To 2008?

The second lesson involves the susceptibility of voters to campaign rhetoric. How many people in New Jersey are subject to the tax brackets applicable to incomes exceeding $400,000? Not very many. How many people oppose those tax brackets? Enough to have elected a tax-cut advocate as governor. Considering that failure to maintain those tax brackets means $800 million to $1 billion in cuts to education funding, assistance for the needy, and other public services, and that those programs benefit most people, why are people voting for a philosophy that benefits the wealthy and jeopardizes the poor and middle class? Some of the staunchest defenders of low taxes for the wealthy do not come from the ranks of the wealthy but from those who face increased burdens – in the form of higher taxes, increased government debt, or reduced government services – in order to pay the price of those low taxes for the wealthy. I suspect that most people see themselves as being wealthy some day and want to make certain that the tax-comfortable environment now in place remains in place when they arrive. Unfortunately, so few will attain that status that it’s the equivalent of using lottery-playing rationale to determine tax policy.

The third lesson involves the distributive nature of tax cuts. Is the governor’s objective simply the reduction of state revenue by $800 million to $1 billion? Or is the governor’s objective the reduction of taxes on the wealthy? If his objective is the first, why not reduce income taxes for the middle class? The argument that the wealthy pay a substantial portion of the income tax is the most frequently offered justification for cutting taxes on the wealthy. Using data from the federal income tax, which is a progressive tax not unlike the New Jersey income tax and because comparable information about the New Jersey income tax isn’t readily available, it is clear that the wealthy are not over-taxed. For example, although it is true that the share of income tax paid by the top 1 percent of income earners increased from 37.42 percent in 2000 to 39.89 percent in 2006 (the latest year in the information), it is important to note that the top 1 percent’s share of total adjusted gross income increased during the same period from 20.81 percent to 22.06 percent. What gets overlooked is the fact that the top 1 percent’s share of national income continues to increase. That means that the bottom 99 percent’s share has decreased. The same trends apply to the top 5 percent. Yet, a Tax Foundation blogger puts focus on the fact that the tax burden of the top 1 percent exceeds the tax burden of the bottom 95 percent, and points out that 20 years ago, the bottom 95 percent paid a larger share of total federal income taxes. According to the same federal income tax data, the bottom 95 percent’s share of adjusted gross income fell from 75.89 percent in 1986 to 63.34 percent in 2006. Of course the bottom 95 percent’s tax burden will decrease as a percentage of the whole if the bottom 95 percent earn a smaller share of national income. The logical corollary is that the top 1 percent’s share has increased at the expense of the bottom 95 percent, yet the top 1 percent, or more precisely, people not in the top 1 percent but advocating on behalf of that group though belonging for the most part to the bottom 95 percent, object to, or at least complain about, the increase in tax burden that goes along with increases in income. If the numbers can be ascertained, it is almost certain that the same phenomenon holds in states with nominally progressive income taxes, such as New Jersey. Interestingly, according to Ira Stoll, some prominent economic and tax policy experts and political advisors, characterized as “center-right” are “signaling openness to federal tax increases,” suggesting that at least some lessons are slowly being learned, unless the they are envisioning tax increases on the poor and middle-class.

The fourth lesson involves lessons. If people understood tax law and tax policy as it needs to be understood, there would be a lot less success by those who take advantage of the public’s ignorance about taxation. People need to learn about tax law and tax policy, but the opportunities to do so are limited. Though there are courses and other educational programs designed for tax professionals and those learning to be tax professionals, there’s almost nothing in place for those who do not want to be experts but need to know something. Where are the K-12 tax courses, particularly in publicly-funded schools, considering that one justification for a system of public education is to nurture an informed electorate? Is it ironic, accidental, or deliberate that when it is time to cut spending, many politicians and governments, joined by a chorus of badly informed taxpayers, call for reductions in education? Is it any wonder that students in many other nations out-perform American school children? Though calls for improvement in reading, arithmetic, history, and other typical subjects get attention, has anyone figured out that so long as the politicians keep Americans in the dark with respect to taxation that it is easier for them to manipulate the masses? As I pointed out in Tax Illiteracy as a Threat, a gleam of hope can be found in efforts such as Prof. Marjorie Kornhauser’s Tax Literacy Project, designed, as she puts it, to “use popular media to informally educate young adults about basic aspects of taxation.”

So, however the situation in New Jersey plays out, people throughout the country will have the opportunity to learn about tax law and tax policy. How many choose to take advantage of that opportunity remains to be seen.

Earlier this week, in IRS Ought Not Be the Health Care Enforcement Administrator, I criticized the Congress for dumping onto the IRS the responsibility for administering the requirement that all individuals, save for a few who area within very narrow exceptions, be covered by, or purchase, health insurance. Now that the bill has been signed into law, it’s worth exploring in more detail the scope of this responsibility.

Section 1502 of the Patient Protection and Affordable Care Act adds a new section to the Internal Revenue Code. Section 6055 requires every person “who provides minimum essential coverage to an individual during a calendar year” must file an information return. Ths return must contain the “name, address and TIN of the primary insured and the name and TIN of each other individual obtaining coverage under the policy,” the dates during which those individuals are covered, and if the minimum essential coverage includes health insurance coverage, information on its status as a qualified health plan offered through an exchange and the amount of any advance payment of any cost-sharing reduction or premium tax credit. The return must also include “such other information as [it] may require.” If the minimum essential coverage is provided through an employer, then the return must also include “the name, address, and employer identification number of the employer,” the portion of the premium paid by the employer, and information with respect to the plan’s status as a qualified health plan offered through an exchange, and whatever other information the IRS requires to deal with the new section 45R credit for employee health insurance expenses of small employers. Without getting into a detailed discussion of what terms such as “minimum essential coverage” and “qualified health plan” mean, it’s easy to see that not only must providers generate more reports, the IRS is going to be receiving many more mailbags or email arrivals once this requirement goes into effect. Who is going to sort through this? Who is going to figure out what to do with the information and how to match it up against some sort of list of the nation’s citizens to see who is and is not mentioned on one or more of these returns. The new section 6055 requires that any individual whose name must appear on one of these returns must be given a statement showing the information on the return that pertains to the individual, together with “the phone number of the information contact” for the person filing the information return.

Section 1502 also amends existing Code provisions. It amends section 6724(d)(1) and (d)(2) to include the required returns within the section 6721 penalty for failure to file correct information returns, and the section 6722 penalty for failure to furnish correct payee statements. The first penalty is $50 per return, capped at $250,000 for any one calendar year. The second penalty is $50 per statement, capped at $100,000 for any one calendar year. Both penalties are subject to a variety of exceptions, increases in the event of intentional disregard, and reductions if corrective action is taken within a specified time. Without getting into the details, the point is that the IRS will need resources to sift through returns, and through data that reveals that returns and statements were not filed, in order to determine whether an penalty applies, to assess the penalty, and to deal with the inevitable appeals and other dispute resolution procedures.

Section 1502 also requires the IRS to send a “notification to each individual who files an individual income tax return and who is not enrolled in minimum essential coverage.” That’s more work, and given the condition of the IRS computer system, the answer isn’t the glib “let the computer do it” response. IRS employees will need to invest substantial hours in designing programs and setting up database entry systems to deal with this task.

Section 1514 of the Act also adds a new section to the Code. Section 6056 requires every “applicable larger employer required to meet the requirements of section 4980H with respect to its full-time employees” to file an information return. This return must contain the “name, date [address?], and employer identification number of the employer,” along with “a certification as to whether the employer offered to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan,” and information with respect to that opportunity and the plan. The return must also include information with respect to the employees, including the “number of full-time employees for each month” of the year, the “name, address, and TIN of each full-time employee,” and whatever other information the IRS might require. So hiring or finding employees to handle the information flowing in under section 6055 won’t be enough, because section 6056 will cause that inflow to increase significantly. Keep in mind that there will be individuals for some months are included on returns filed under section 6055 but who, after changing jobs, will end up on returns filed under section 6056. Following the same pattern as section 6055, section 6056 requires that any employee whose name must appear on one of these returns must be given a statement showing the information on the return that pertains to the employee, together with “the phone number of the information contact” for the person filing the information return.

Section 1514 also amends existing Code provisions. It amends section 6724(d)(1) and (d)(2) to include the required returns within the section 6721 penalty for failure to file correct information returns, and the section 6722 penalty for failure to furnish correct payee statements. The first penalty is $50 per return, capped at $250,000 for any one calendar year. The second penalty is $50 per statement, capped at $100,000 for any one calendar year. Both penalties are subject to a variety of exceptions, increases in the event of intentional disregard, and reductions if corrective action is taken within a specified time. Without getting into the details, the point is that the IRS will need resources to sift through returns, and through data that reveals that returns and statements were not filed, in order to determine whether an penalty applies, to assess the penalty, and to deal with the inevitable appeals and other dispute resolution procedures.

Section 1513 of the Act adds yet another new Internal Revenue Code provision. Section 4980H imposes “an assessable payment” on “any applicable large employer” that “fails to offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan . . . and . . . at least one full-time employee of the applicable large employer has been certified to the employer . . . as having enrolled . . . in a qualified health plan with respect to which an applicable premium tax credit or cost-sharing reduction is allowed or paid with respect to the employee.” The assessable payment equals the applicable payment amount multiplied by the number of the employer’s employees. Another assessable payment is required if the employer has a waiting period exceeding 30 days, and this one is a fixed amount based on the length of the waiting period. Yet another assessable payment is imposed if the employer “offers to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan . . . and . . . one or more full-time employee of the applicable large employer has been certified to the employer . . . as having enrolled . . . in a qualified health plan with respect to which an applicable premium tax credit or cost-sharing reduction is allowed or paid with respect to the employee.” This payment equals the applicable payment amount multiplied by the number of the employer’s employees, multiplied by 400 percent. Without getting into the definitions of applicable payment amount, applicable large employer, the exemptions for certain employers, the determination of whether an employee is full-time, and other issues, it is clear that the IRS will need yet more resources to determine if one or more of the assessable payments should be imposed. Section 4980H provides that the assessable payment “shall be paid upon notice and demand by the [IRS], and shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.” Subchapter B of section 68 includes sections 6671 through 6720C, which cover several dozen penalties. Section 6671 states that the “penalties and liabilities provided by this subchapter shall be paid upon notice and demand by the [IRS], and shall be assessed and collected in the same manner as taxes.” Once someone determines that assessable payments should be imposed, even more resources will be required to send the notice, demand payment, initiate collection procedures, deal with appeals, and litigate penalties that the taxpayers decide to challenge in court.

There’s more. Section 1501 of the Act adds a still another new Internal Revenue Code section. Section 5000A imposes a penalty on any “applicable individual” who, for any month, fails to ensure that the individual, and any dependent who is an applicable individual, is covered under minimum essential coverage for that month. The penalty “shall be included with the taxpayer’s [income tax] return . . . for the taxable year which includes such month.” The penalty for each month equals 1/12 of the applicable dollar amount for the calendar year. That amount phases in, starting at $95, until it reaches $750. There is a special rule for individuals under the age of 18. For taxpayers responsible for more than one individual, the penalty is capped at 300 percent of the applicable dollar amount. There are five categories of individuals who escape the penalty, including those who cannot afford coverage, taxpayers with income less than the poverty line, members of Indian tribes, individuals who fail to have coverage for short gaps, and those who can demonstrate hardship. The definition of applicable individual reaches all individuals other than those satisfying a religious exemption exception, those who are in the country illegally, and those who are incarcerated. Without getting into a detailed discussion of the scope of these various exceptions, and without getting into a closer look at the definition of minimum essential coverage, it is clear that the IRS will need even more resources to determine if an individual should be subject to the penalty. It will need to match information on the returns filed under section 6055 and section 6056 with returns that are filed, and somehow deal with matching information with respect to individuals not required to file returns to ascertain whether the penalty should apply. It is going to be a complicated endeavor.

Section 5000A also provides that the penalty “shall be paid upon notice and demand by the [IRS], and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.” Subchapter B of section 68, as noted above, includes sections 6671 through 6720C, which cover several dozen penalties. Section 6671 states that the “penalties and liabilities provided by this subchapter shall be paid upon notice and demand by the [IRS], and shall be assessed and collected in the same manner as taxes.” It’s the exceptions in paragraph (2) that demand attention. The first exception states that “[i]n the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.” Wow. So what happens when people come up with ways to make it appear that they have coverage when they don’t, such as having their names falsely included on information returns or through some other deceptive means? The second exception provides that the IRS shall not “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section,“ and the third exception provides that the IRS shall not “levy on any such property with respect to such failure.” So when the IRS does get around to determining that someone is subject to the penalty, what does it do after it sends notice and demands payment if the taxpayer fails to pay? Presumably it can let the matter work itself out in the judicial system, but isn’t that inefficient? What’s the point of imposing a requirement, putting enforcement responsibility in the hands of a federal agency, and then restricting the agency’s ability to enforce the requirement?

These aren’t the only responsibilities imposed on the IRS by the Act, nor are they the only additions to the Code. They simply are some of the highlights of what Congress wants the IRS to do, enough to give some sense of the wide scope of the additional work that the IRS must undertake. It is essential to understand that unlike the enactment of a new credit that might apply to one percent, five percent, or even 15 percent of the taxpaying public, these are provisions that apply to all, or almost all, individuals, and to all, or almost all, employers. It’s equivalent in some respects to doubling the IRS workload.

Aside from the inappropriateness of dumping all of this responsibility on the IRS, rather than, for example, HHS, there is the more serious question of whether Congress will authorize the IRS to spend additional money to hire and train new employees, to train existing employees who are transferred from tax work to health insurance enforcement work, to hire and train replacements for those employees, to purchase or develop additional computer hardware and software, to obtain assistance in re-tooling systems to deal with the flood of information returns under sections 6055 and 6056, and to find space in which to house all of the additional employees, computer hardware, and other resources required to comply with the Congressional mandate that the IRS become the Health Insurance Enforcement Agency. Considering the IRS-as-enemy mentality among so many on Capitol Hill, who take that position because it can generate votes on election day, is it unreasonable to worry that the IRS will find itself trying to do more with the same, or even fewer, resources? Will it then cut back on tax compliance enforcement in order to handle health insurance enforcement? Will that not have an adverse effect on federal revenues? Does the Act contain within itself the seeds of its own failure? Only time will tell.

An interesting newspaper article from a few weeks ago, Ticking time bomb: Crisis looms in Pa.’s dwindling pension plans, provides a lesson in the dangers of irresponsibility in taxation policy and demonstrates how today’s tax cut, or rejected increase, becomes tomorrow’s tax increase of two or three times as much, perhaps even more. Though the article deals with the situation in Pennsylvania, it describes a situation challenging other states, and not just with respect to pension costs. Similar analyses can be developed at federal, state, and local levels for a variety of expenses.

In short, the problem for Pennsylvania is that it, and its local governments, have failed to fund pensions that they are contractually obligated to pay. The longer an employer waits to fund a pension plan, the more must be invested to obtain the same return on the investment. Toss in some negative investment experience, and the shortages compound themselves. The problem is one of scale, namely, more than 3,000 local plans and three-quarters of a million participants, who at the moment draw average pensions “of about $22,000.” Pension payments are funded in party by state and local contributions derived from tax revenues, in part by participant contributions, and in part by investment returns.

In 2001, in reaction to pension fund investment returns that had exceeded expectations during the 1990s, the legislature voted itself 50 percent increases in their pensions, while voting for 25 percent increases in pensions for government and school district employees. Those already retired, upset at not being covered by the increases, persuaded the legislature to increase their existing pensions by an unfunded cost-of-living adjustment. Because the investment returns had been doing so well, employer contributions were reduced. That did not last long, because downturns in the stock and other markets brought the robust investment experience to an end. During the same period, employee contributions, as a percentage of salary, increased. In turn, legislation reduced the number of years that an employee must work in order for the pension to vest, and increased the pension from twice the number of years worked to 2.5 times the number of years worked.

By 2003, with investment returns crashing, the actuarial computations determined that state and local governments, as employers, would need to increase significantly their contributions. To do so would require tax increases. To avoid those tax increases, the employer contributions were adjusted, through special legislation, to amounts lower than what were necessary to fund future pensions, and the increased contributions, if required, would be made ten years later. The hope was that in the meantime investment returns would exceed previous expectations and offset the need for increased employer contributions. That didn’t happen. So in about a year and a half, an even larger, much larger, state and local government employer contribution will be required. The dollars supposedly saved in 2003, and the tax increases avoided, pale in comparison to the hit that taxpayers will take in 2013. Employer contributions, according to some computations, will need to quadruple by that year. The following year they will need to be even higher.

One consultant compared the situation to a homeowner who owes money on a mortgage. The homeowner has a job, is saving money, and making payments. But when the homeowner loses her job, she can continue to make payments by dipping into savings. But when savings run out, she’s in trouble. Counting on increases in savings that outstrip the decrease caused by using savings to pay the mortgage is a risky move. But that’s what the Pennsylvania legislature did. So, too, did other legislatures.

The estimate is that the state faces a $4 billion pension funding obligation. Local governments face a similar amount in total. Individual school districts, for example, are looking at 600 percent increases. It means that services will be cut. The number of children in a classroom will increase to levels that impede education, and too many school districts cannot afford to have the children in their care suffer through reduced educational quality.

One must laugh when one of the proposed solutions is considered. In short, it’s a repeat of the stunt pulled off in 2003. State and local governments will be given a much longer time over which to fund the pensions. Though buying time, it will cost more. In 2023, the same problem will re-emerge, but with shortfalls not in the range of $8 billion, but perhaps $20 or $30 billion. Most experts doubt that the next ten years will bring investment returns similar to those of the 1990s. Another proposal is to direct federal stimulus payments into the funds, which means other state programs won’t get the funding that otherwise would be available. No matter what solution is discovered, some experts are predicting that the multiplier needs to return to 2, and the number of years for vesting must return to its pre-2003 level. Another possibility is to do what employers in the private sector have been doing for many years, that is, shifting from defined benefit pension plans to defined contribution plans. What that does, in effect, is to shift the risks and rewards of investment returns onto the employee. If the market does not perform well, the defined contributions do not purchases as much of a retirement annuity. All of these proposals have their advocates and distracters, with arguments being tossed about from every perspective. That’s not surprising.

As several experts have mentioned, there is no “silver bullet” to solve the problem. I certainly don’t have an answer. I unquestionably do not have an answer that would make people happy. However this turns out, there are two lessons to be learned. First, spending tomorrow’s anticipated income before it is received is too risky, particularly for governments. It was a bad decision to increase pensions, increase multipliers, and decrease vesting terms simply because it was assumed that investment earnings in the future would continue at 1990s rates. Anyone who studies market histories knows that these things run in cycles. Second, trying to avoid fixing the roof in order to save a few dollars today is foolish, because in the long term the cost of fixing the entire building and everything in it significantly exceeds the short-term savings. Assuming that the property will continue to increase in value is an unsound decision, yet it’s one that way too many people made during the past few years, one that contributed to the current economic mess. When the penny-wise, pound-foolish decision rests on a desire to avoid tax increases in order to placate the anti-tax and anti-tax-increase crowd, the consequences are far more extensive than they are for one building owner. Trying to avoid tax increases is no less foolish than trying to avoid increases in repair costs.

Yet one more lesson is that governments need to match actual revenues with expenses, rather than spending unpredictable future revenue before it materializes. Isn’t it especially galling that legislators gave themselves pension increases twice what it gave state and local government employees? That alone explains the root cause of the problem. Legislators need to learn to think more about the common good and less about vote acquisitions and campaign paybacks. There’s something about the word servant in civil servant that seems to be escaping legislatures. The cost of that shortcoming has caught up with them. And with us.

Congressman Charles Boustany, ranking member of the Ways and Means Committee’s Subcommittee on Oversight, questioned the wisdom of the provisions in the pending health care legislation that would require the IRS to administer enforcement of “numerous parts of the health insurance system.” In his remarks, he called this “one of the most troubling expansions of IRS power is the power to approve a taxpayer’s health insurance as sufficient to meet the definition of minimum coverage required to be purchased by law.” Elaborating, he explained:

This is the so-called “individual mandate.” Under the Senate’s individual mandate, the IRS would be in charge of verifying that every American taxpayer has obtained acceptable health coverage for every month of the year. If the IRS determines that a taxpayer lacks acceptable insurance for even a single month, then the IRS would have the power to impose a new tax on that taxpayer, even auditing the taxpayer and assessing interest and penalties on top of the tax. This is an unprecedented new role for the IRS – one that will inject the IRS even further into the personal lives of American families.

Apparently Boustany was speaking not only for himself, but also for other Republican members of the House, according to this report which describes some of their statements describing the same or similar concerns.

There seems to be little dispute over the impact on the IRS of requiring it to administer the requirement that everyone purchase health insurance. For an agency already overwhelmed with tax administration, enforcement, and collection, and woefully underfunded, having this burden added to its responsibilities could cripple it. The IRS cannot keep up with the mistakes and errors on the 236 million tax returns that it processes, let alone the tax evaders who don’t even file returns. The IRS computer system is so antiquated that it leaves the agency incapable of doing things that ought to be easily accomplished. The Congressional Budget Office estimates that if the health care legislation is enacted with this IRS responsibility in place, the agency will need $1 billion a year in additional funding to meet that responsibility. Some members of Congress have suggested that the funding would be forthcoming, but all spoke in terms of dealing with the issue after the health care legislation is enacted, rather than making it part of the package. Why? Could it be that adding the cost of administration to the legislation would make the legislation a bit more expensive than it otherwise appears to be?

I agree that the IRS ought not be administering a provision that deals with the obligation of individuals to obtain health insurance. The notion of mandatory insurance is not a new one. States require motorists to carry liability insurance. Are those requirements administered by the state’s department of revenue? No. It’s in the hands of their department of transportation, department of motor vehicles, or equivalent agency. So why does the Congress dump this responsibility on the IRS?

Dumping administration of the health insurance purchase obligation on the IRS would not be the first time that the Congress turns, not to the agency charged with the area in question, but to the IRS. Not too long ago, in Tax Talk at the Gym, I recounted a conversation I had with someone who had asked me about what was then my latest book and the one preceding it. I rattled off a partial list of the Internal Revenue Code provisions in question, such as the work opportunity credit, the Indian employment credit, the various disaster employee retention credits, the many tax incentives for energy production and conservation, and those dealing with family and household transactions. Then, as I reported in my previous post:

he stopped me and asked why the tax law was filled with so many provisions that weren't a matter of revenue collection but expenditures. The answer is an easy one, because it's asked every semester by students in the basic tax course. Why not have the Department of Energy write checks to companies and individuals who are doing things to develop or conserve energy instead of administering the grants through tax refunds? Why not have the Department of Labor reimburse employers who hire members of targeted groups? The answer rests in the Congress' confidence with those other agencies and with the supposed speed with which tax refunds can put money in the taxpayers' hands in contrast to check-writing programs.

Administration of the health purchase obligation does not involve putting money in taxpayers’ hands, and thus any supposed speed advantage of the tax system as compared to check-writing is irrelevant. Administration of the health purchase obligation involves reviewing whether a person has satisfied that obligation, and imposing a fee (erroneously called a “tax”) similar to a fine or penalty on those who do not comply. Many federal agencies impose fees, fines, penalties, and other charges. The IRS does not collect the annual entrance fee imposed by the National Park Service. It does not collect amounts charged by the FCC for licenses. The list of charges imposed and collected by other agencies is long. Why can’t this administrative and collection task with respect to health insurance be put into the hands of those at the Department of Health and Human Services? Why the IRS?

Four years ago, in the frighteningly-titled ”Professor Maule Goes to Washington”, I challenged Congress’s practice of relying on the IRS to do the work of other agencies:

I understand that the Congress, which consistently criticizes the IRS, has a habit of demonstrating its true thoughts about that particular federal agency by putting into the tax law provisions that deal with matters that are within the purview of other federal agencies because the IRS appears to be more capable of administering these programs, but it's time for Congress to demand of the other agencies the same sort of competence that it attributes to the IRS when it turns to the IRS to handle its pet project of the week.

If there is to be health care reform that curtails health costs, that makes delivery of health services more efficient, that rewards and encourages preventative care, that discourages short-term-attractive but long-term-foolish self-insurance, the purchase obligation needs to exist. Additionally, because free health care for all provided and managed by the government is an unwise choice and one not favored by most people, the system needs to be a sensible one, and thus must impose on individuals the same sort of personal responsibility for health care that states have brought to motor vehicle ownership. Just as questions about motor vehicle insurance, the name of the insurance company, the policy number, the serial numbers of the vehicles, the names and ages of those driving the vehicles, and similar information that, to paraphrase Boustany, “inject [state agencies] into the personal lives of American families,” so, too, making certain that every American has health insurance is going to require that a federal agency ask questions about health insurance, the names and ages of those covered by the insurance, the name of the insurance company, the policy number, and other information necessary to determine that a person is in compliance.

My objection is not that there ought not be a health insurance purchase obligation, nor is it with the fact that no such obligation has any teeth unless it is administered, nor with the fact that in order for it to be administered relevant information must be obtained from individuals. My objection is that the Congress, yet again, has picked the wrong agency. As I wrote, presciently, in Not to Its Credit, when addressing a pile of credits cluttering the Heartland, Habitat, Harvest, and Horticulture Act of 2008:

It's not that I object to the goals. I object to the Internal Revenue Service being turned into a institution that is focused more on the technical requirements of energy production activities than on administering revenue laws. I wonder why financial incentives to produce and conserve energy aren't administered by the Department of Energy. Well, I know the answer. The Congress, though every now and then publicly trashing the IRS and characterizing it as harmful, then turns to the same agency to administer its favorite incentives programs. Which should speak more loudly to America? What Congress says when it grandstands or what it does when it overburdens the tax law and the IRS because it apparently doesn't trust other agencies to administer laws relating to agriculture, energy, employment, or health? (emphasis added)

Perhaps some in Congress deliberately intended for the IRS to be given this responsibility, and others were too inattentive to realize that this happened. Why? Because the use of “anti-IRS” sound bites by certain politicians, not unlike the IRS-as-enemy overtones in the statements by Boustany’s and others sharing the same sentiments, gives the opponents of the legislation ammunition to persuade the public that they should rise up in opposition. How difficult would it be to amend the legislation to replace the IRS with HHS, and thus silence the IRS-as-enemy crowd?

Earlier this week, in The Tax Price of a Flawed Tax System, I commented on the a report that at least one member of Philadelphia’s City Council would suggest substituting an increase in the real property tax for the proposed trash pickup fee. On Wednesday, according to this Philadelphia Inquirer story, Council member Frank DiCicco confirmed that he plans to introduce legislation that would raise the property tax by 12 percent. The increase would terminate when economic conditions improved, with some sort of sunset provision yet to be determined. DiCicco mentioned the possibility of a termination provision that would kick in after anywhere from two to five years.

As can be expected, several other members of City Council agree with DiCicco. They consider it “more fair” than the trash pickup fee. Others disagree. They focus on the disarray that afflicts the real property tax assessment system, one that leaves property owners with assessments out of proportion, some higher, some lower, with property values. It will take at least two years to fix that system, and in the meantime a moratorium on reassessments has been put into effect.

The quandary in which Philadelphia finds itself is a good teaching moment, not only for those offering Tax Policy courses, but for citizens and voters in general. If compelled to choose between a real property tax increase or a trash pickup fee, under the circumstances in which Philadelphia finds itself, what sorts of advantages and disadvantages ought to be considered? How much weight should be given to those factors? Consider the trash pickup fee as proposed, rather than variations that could alter the various factors that are relevant.

An increase in the real property tax exacerbates the inequity that is built into the system as it now exists. Those whose properties are relatively over-assessed will be at a greater disadvantage, whereas those whose properties are relatively under-assessed will enjoy even more of an unjustifiable advantage.

An increase in the real property tax is easier to administer. Increasing the tax by 12 percent requires far much less effort than putting in place a separate billing system for those property owners that would be subject to the proposed trash pickup fee.

An increase in the real property tax would apply to all property owners. The proposed trash pickup fee would not apply to certain commercial and multi-unit residential properties, which already have arrangements in place to pay for trash removal.

The proposed trash pickup fee is regressive, because even despite a suggested reduction for low-income individuals, it is a fixed amount and does not vary according to income. Accordingly, the fee would be a relatively much smaller portion of a high-income individual’s income than it would be for a low-income person. An increase in the real property tax, at least theoretically, would be progressive, because generally the higher a person’s income, the higher the property’s value. However, the combination of warped assessments and the ownership of higher valued properties by fixed income owners who purchased those properties years ago dampens the strength of the argument that the real property tax is that much more progressive that the proposed trash pickup fee.

The proposed trash pickup fee does not take into account the quantity or weight of the trash left for collection by a particular resident. Unlike the property tax, where at least some sort of attempt is required to be made to relate the tax to the value of the property, the proposed trash pickup fee does not offer any incentive to cut down the trash removal and landfill burden because it does not shift costs to those generating a higher proportion of trash.

The proposed trash pickup fee does connect a user fee to a particular service, so that to some extent, albeit weakly, taxpayers can see the relationship between the payment to a government and the service being provided. In contrast, the real property tax is not specifically connected with any particular city service.

The amount paid on account of a real property tax increase is deductible for federal income tax purposes. In contrast, the proposed trash pickup fee would not be deductible.

An increase in the real property tax might bring court challenges on the grounds that the increase violates the tax uniformity clause of the state Constitution. On the other hand, there do not appear to be any plausible legal challenges to the proposed trash pickup fee.

So which one would you pick? Even though the trash pickup fee lacks a connection to quantity or weight, as I would prefer it have, it gets my vote. Admittedly, I favor user fees because I think it is important for taxpayers to see the connection between taxes that are paid and the benefits that are obtained in return. The mayor, when asked about the proposed trash pickup fee, appeared open to the possibility of adapting it to a quantity or weight measurement. Other jurisdictions take that approach, so it can be done. Yet even if it isn’t part of the fee at the outset, it ultimately makes less sense to rely on an increase in property taxes that are measured by flawed assessments and that would be vulnerable to challenge. My prediction is that City Council will end up going for the real property tax increase.

We will find out. Stay tuned.

In November of last year, in New Jersey to Follow in California’s Tax Footsteps?, I asked how the governor-elect of New Jersey, who prevailed in the election by promising to cut taxes, would deal with the inconsistency between public demand for state services and public demand for low or no taxes. This inconsistency was corroborated by a poll, on which I commented in Poll on Tax and Spending Illustrates Voter Inconsistency.

On Monday, the Philadelphia Inquirer published a report that New Jersey’s governor planned to ask the legislature to cap real property tax increases a 2.5 percent per year. This limitation requires an amendment to the state constitution. He also plans to cut state aid “to towns, schools, and colleges. Another trick is to replace the checks that are mailed on account of real property rebates with a credit that applies a year later. That’s a one-time gimmick.

Currently there is a 4 percent limit on property tax increases, to which there are exceptions that permit local property taxes to be raised by more than 4 percent. The governor plans to seek elimination of those exceptions. The exceptions were designed to accommodate extraordinary items, or items that are expenses imposed on localities but authorized by state legislators and thus not within the power of local officials to reduce or eliminate.

Here’s the problem with across-the-board tax increase limitations. There are expenses that will increase by more than the cap, and that officials are powerless to reduce. For example, state law guarantees public workers a defined pension benefit that cannot, at this point, be reduced to the extent it is vested on account of past services. Under the governor’s brain child, if a locality’s pension costs go up 20 percent, it must cut other services. By how much? That depends. For example, assume a locality’s total budget is 1000, and pension costs are 100, and other costs are 900. Assume that under state law, the pension costs for the following year increase to 150. Under the governor’s proposal, the budget is limited to 1025. That means the locality must cut 25 from other expenses. It cannot cut the pay of workers who have contracts. What does it cut? Snow removal? Trash collection? The point is simple. If the cost of the services that the residents want increase by 5 percent, taxes need to increase by 5 percent, unless there are cuts that can be made that represent expenses arising from fraud or inefficiency. When asked to identify specific instances of fraud or inefficiency that could provide the basis for savings, the anti-tax proponents revert back to theoretical commentary and strike out when faced with the practicalities of the details.

The key to balancing government budgets is not a simple matter of limiting tax revenue and triggering a free-for-all among the proponents of particular state services. The key is to price out and advertise the cost of each service that voters tell their representatives that they wish to receive. Pennsylvania has a similar property tax limitation in place, but it can be exceeded if the voters approve a budget that is based on an increase above the cap. By shifting responsibility onto voters, and making it clear that they must pay for what they want, particularly with respect to items that take the form of a user fee, governments can move away from spending decisions that are made by legislatures without any specific directive from voters. The cap ought not be an iron-clad revenue increase restriction that has no bearing to the actual costs of providing government services, but a cap on the spending decisions that are not specifically authorized by voters.

Ultimately, when complaints about high taxes circulate, the response, “You voted for it,” should either dampen the griping or inspire people to reconsider, and cut back, their government services wish list. The debate before each tax referendum, though probably loud, intense, and heated, will be educational, worthwhile, and productive. Imagine how cathartic it will be to listen to the proponents of a tax for a particular service debate those who do not want to pay taxes to provide that service. It will take the issues out of the back rooms and put them on the table Tying ownership of the expenditure process with ownership of the taxing process makes much better sense in the long-run than unworkable and impractical absolute revenue caps.

As expected, the proposed Philadelphia “soda tax,” about which I commented in Yes for The Proposed User Fee, No for the Proposed Tax, has raised all sorts of questions and has encountered opposition from a variety of people and organizations. Though my criticism of the tax rested primarily on the dubiousness of singling out sugared beverages while ignoring other unhealthy dietary substances, as more people look at, and think about, the proposed tax, the more problems with it are discovered.

The other half of the mayor’s deficit-elimination proposal, the trash collection user fee, also has encountered opposition. According to this report, City Council member Frank DiCicco thinks that an increase in the property tax “makes more sense than a flat trash fee. Ditching the trash fee would require a 12% increase in the property tax rate.

Based on the revenue projections provided by the mayor for his two proposals, if a 12% increase in the property tax rate would be required to offset the trash collection user fee, it would take a 3.5% to 9% increase to raise the revenue that the soda tax supposedly would raise. The wide variation in the projected rate increase reflects the very wide $30 million to $77 million revenue estimate that the mayor and his staff attributed to the soda tax proposal. The simple fact is that no one really knows whether the soda tax would generate revenue based on current sales, or generate much less revenue because of a combination of purchases being shifted out of the city and people substituting other beverages that are not taxed.

The unfortunate aspect of this story is that the city of Philadelphia is at the end of the road when it comes to taxation, and its leaders and perhaps too many of its residents are unwilling or unable to reform the system. There are too many vested interests. If the city does not adopt either of the mayor’s proposals, where else does it get the revenue? DiCicco is not alone in turning to the property tax. But is that a viable or sensible option?

The problem with using property tax increases to raise more revenue is that it compounds what already is a flawed tax system. Until the underlying property valuation issue is resolved, and properties are reassessed in a sensible manner, the property owners who are over-assessed will suffer even more detriment, and those who are under-assessed will reap more windfall, if rates are increased. Those increases could reach 21% if city council chooses to use property tax increases while rejecting the mayor’s proposal.

The mess that masquerades as a real property tax system has been the subject of a long series of MauledAgain posts. Beginning with An Unconstitutional Tax Assessment System, and followed by Property Tax Assessments: Really That Difficult?, Real Property Tax Assessment System: Broken and Begging for Repair, Philadelphia Real Property Taxes: Pay Up or Lose It, How to Fix a Broken Tax System: Speed It Up? , Revising the Board of Revision of Taxes, and How Can Asking Questions Improve Tax and Spending Policies?, This Just Taxes My Brain, Tax Bureaucrats Lose Work, Keep Pay, Testing Tax Bureaucrats Just Part of the Solution, and A Citizen Vote on Taxes, it momentarily ends with Freezing Real Property Tax Reassessments: A Nice Idea. One doesn’t need to be a tax professional to understand the depth of the disarray. One needs only to read newspapers and blogs, and listen to radio and television news. And if those sources aren’t satisfying, chat with neighbors and property owners.

It’s bad enough that the real property tax system is dysfunctional. It’s alarming that some in city council are thinking about raising real property tax rates even though the assessment foundation on which the system rests is beyond flawed. It’s distressing that the alternative includes a conceptually and pragmatically flawed soda tax. But it’s worse.

While the city struggles with its tax revenue deficiencies, risking the imposition of a tax that makes very little sense as proposed, the folks who are responsible for the unavailability of a viable alternative, namely, an efficiently administered real estate tax, have struck back at the attempts to clean up the mess. According to this story from last week, five board members of the Bureau of Revision of Taxes have sued the City of Philadelphia in an effort to derail the reforms that are underway to give the city the opportunity to fix the real estate tax. The board is trying to remove from the May 18 primary ballot the referendum question that asks city voters to decide if the BRT should be replaced with two new entities. If the board succeeds, the current property tax inequities and inaccuracies will continue. In an atmosphere of political bickering and litigious self-interest disguised as, at best, questionable concerns, what are the chances that the city can fix its tax system so that mayors and city councils need not dabble in soda taxes?

Ideally, the city would fix its property tax system, and then adjust rates as part of the process of balancing a budget. However, so much time was lost with political nonsense while attempts were being made to fix the property tax system that the city has run out of time. Its choices are terrible. Either it magnifies the shortcomings of the real property tax system, or it turns to an unwise, administratively inefficient, and possibly legally flawed tax on sugared beverages. It faces this brutal choice thanks to decades of political patronage run amok. Ultimately, failure to design and properly maintain one tax system has opened the door to another that might be impossible to design and maintain, properly or otherwise. Other jurisdictions, including the federal government, ought to heed this lesson, because the tax price of a flawed tax system is orders of magnitude higher than the cost of fixing the flawed system before it fails.

Jonathan Salant has written an article for Bloomberg, Business Lobbyists Push to Revive Estate Tax They Tried to Kill, that should be required reading for every citizen above the age of twelve. It is an eye-opening analysis of what happens when lobbyists think in the short-term only to find that the long-term arrives far more quickly than is expected.

Nine years ago, the anti-estate-tax crowd prevailed on the Congress to repeal the estate tax. Regardless of where one stood on the issue, the outcome was a compromise that not only satisfied few, if any, but also created a two days of crisis in the future. That future is now, with one of those days 70 days behind us, and the other less than ten months ahead. What’s this about?

The deal that was reached phased out the estate tax, by causing the exemption to increase as the past decade progressed, along with decreases in the rates, particularly the top rate. By 2010, the rate would be zero. In effect, the estate tax died on December 31, 2009. So, too, did some people unlucky enough to live another day. Much has been written about the failure of the Congress to deal with the “estate tax disappearance of 2010,” including the seemingly real possibility that at some future point in time the Congress would enact a retroactive amendment reinstating the tax as of January 1, 2010. That sort of outcome poses a variety of practical impediments, conceptual concerns, and even constitutional issues. But that’s just the half of it.

Having demonstrated once again its inability to act with any sense of urgency on just about anything of importance, the Congress not only let January 1, 2010, come and go without doing anything about the estate tax “disappearance,” it’s in no hurry to deal with the second day of crisis. On January 1, 2011, the estate tax, as it existed ten years ago, will rise like a phoenix from the ashes of tax devastation. The rates will reach 55 percent. The exemption will shrink.

The prospect of the estate tax coming back to haunt the estates of the wealthy who benefitted from its diminishment and temporary one-year repeal is too much for the very lobbyists and interest groups that advocated the deal that was reached in 2001, yes, the deal that created this deadline that looms over the anti-estate-tax crowd like a nightmare from the Taxes of Interest Groups Past.

So, according to Salant, a parade of advocates “for small businesses, construction companies, manufacturers and other trade groups are racing the clock to convince Congress to reinstate the federal estate tax they’ve fought for years to abolish.” Think about it. The anti-estate-tax crowd is pushing for its return. Wow.

How has this bizarre turn of events come about? Simply, the anti-estate-tax crowd realizes that if nothing is done, the bane of its existence will return in full flower. So dozens of lobbyists and interest groups are begging the Congress to enact an estate tax bill providing for a $10,000,000 per-married-couple exemption and a top rate of 35 percent. One lobbyist, according to Salant, explained, “Clearly, we can’t live with what’s going to come in 2011.” No kidding. But had these folks been successful in their 2001 attempt to do away with the estate tax, 2011 would simply be, in estate tax terms, just another year like those preceding it.

The opponents of the estate tax are beginning to believe that Congress might do nothing, and let the estate tax of nine years ago resume in 2011. On this point, they are analyzing things rationally and correctly. The risk of Congress doing nothing increases by the day. When the House tried to extend the estate tax as in effect for 2009 into 2010 and beyond, with an increased exemption, Senate Republicans blocked the legislation from being enacted. It’s ironic that by blocking legislation with a 45 percent rate and a $7 million exemption, the Senate Republicans increased the chances of the estate tax in 2011 and beyond coming in at higher rates and lower exemptions. In the long-run, from the perspective of the anti-estate-tax crowd, that’s a steep price to pay for no estate tax in only 2010. It’s yet another example of the inability of our nation’s legislators, particularly certain ones, to look at things in the long-term, even when doing so would be in their own best interests.

According to sources quoted by Salant, the longer Congress delays, the less likely it will do anything. Allegedly the Senate Majority Leader is “very reluctant” to have the Senate take up the issue, and supposedly, as the year progresses, “the stronger his hand is.” Sometimes I wonder if some television producer could generate profits by televising members of Congress playing poker. If the way in which they’re handling the estate tax issue, to say nothing of other major and serious matters, is any indication, I’d not be inclined to conclude that the house (or the senate) has the advantage.

But, as usual, the real losers in all of this are the American citizens, particularly those who don’t benefit from the elimination of the estate tax or the companion reduction in income taxes for the upper income brackets. Unfortunately, I don’t think Americans can simply say, “I’m out. Deal the next round without me.” It’s not that sort of game. In fact, it’s not a game at all, but that message doesn’t seem to get across in Washington.

Peter Pappas, of the Tax Lawyer’s Blog, expresses concern, in Opposition to Increased Taxes is Not Opposition to All Taxes about the ramifications of something I wrote in Snow, Budgets, and User Fees. This is the sentence that alarmed Peter: “[I]f the anti-tax crowd continues to influence the unwitting and uninformed by appealing to emotional distaste for taxation, it might persuade the entire nation to eliminate all taxes and user fees.”

Peter is concerned that individuals who do not oppose all taxes but oppose “high taxes” will be viewed in the same light as is the anti-tax crowd and perceived as being “opposed to any government.” Peter correctly points out that opposition to “high or increased taxes” does not necessarily translate into opposition “to the concept of taxes” nor belief that governments should not exist. Peter also expresses concern that the anti-tax crowd “regularly accuse those who favor higher taxes of wanting to eliminate the private sector and destroy capitalism.”

Peter also is correct in arguing that “[b]oth side’s arguments are logically unsound and designed merely to frighten people by demonizing the opposition.” Peter considers the debate about the “proper rate of taxation” to be “one of degree and not of kind.” However, when he argues that “[e]veryone but Sacco and Vanzetti believes we need some government,” I disagree. There are far too many people in this nation, and abroad, who would be more than willing to live in a world bereft of government, because they think, foolishly I believe, that their lot in life would be better if there were no government. Sacco and Vanzetti are dead, but these other folks are very much alive and very dangerous.

Why is the anti-tax crowd dangerous? It’s dangerous because it trumpets a pernicious message that appeals to far more people than should give it heed. The siren song of “no taxes” is silly, even aside from the effect that a successful “repeal all taxes” campaign would have on government. However much a person “saves” by the repeal of all taxes is dwarfed by the costs that person will incur to acquire the services formerly provided by government. As Peter points out, “We all believe that there should be at least some communal pooling of resources to achieve certain national aims that cannot or should not be left to the private sector.” Aside from the exaggeration that “all” so believe, for I am convinced that there are those who do not, Peter does describe the justification for the existence of government and the imposition of taxes and, I think, in a similar way, user fees.

The sentence that I wrote was not intended to label everyone opposed to tax increases or to levels of taxation above some defined amount as members of the anti-tax crowd. The sentence that I wrote was to point out the danger in the growing popularity of the anti-tax movement, particularly as it finds followers among “the unwitting and uninformed.” Peter Pappas is not unwitting and uninformed, he is not a member of, nor at risk of becoming a member of, the anti-tax crowd. But there are too few people like Peter Pappas who, despite having a position on some tax issues different from mine, is willing to think through and analyze the complex, sometimes tedious, and often frustrating nuances of taxation. He is unlikely to fall victim to an “emotional distaste for taxation.” He and I, and others who accept the need for government and taxation and are willing to debate the issue, as Peter puts it, of “how much government [and taxation] we should have,” belong to a diminishing segment of political society. Polarization is ripping the nation apart, and it is fueled not by the sort of disagreements and debates that folks like Peter and I have, but by the tax hatred vitriol spewed by the anti-tax crowd. The recent rise in anti-government, anti-tax acts of violence corroborates the concern that as the nation faces the need to deal with an increasing need for “communal pooling of resources,” the pain of the necessary sacrifices will make the anti-tax crowd’s poison seem deceptively soothing.

The post that contained the sentence that alarmed Peter focused on the very question that he addresses. One instance, addressed in the post, was simply the dual question of how much snow plowing do people want, and how much in taxes are they willing to pay for it? The same can be asked of many other services and functions that government provides. So long as the anti-tax crowd’s voice in the discussion gets increasingly louder and more seductive, the greater the risk that more and more people will find themselves convinced that snow plowing can be done without paying taxes to finance its cost, and that the same could be said of every other service and function. The notion that one can get something without paying for it has become a cultural poison in our society, and the anti-tax crowd, with the polemics removed, for the most part is a manifestation of the resistance to paying for what one wants. Thus, the point in my post, to the anti-tax crowd, if you don’t want to pay for it, you’re not going to get it.

On Friday, in Yes for The Proposed User Fee, No for the Proposed Tax, I commented on the proposed trash collection user fee set forth in the latest budget proposal from the mayor of Philadelphia. I support the fee, but I acknowledge that there are issues with it that need to be addressed. For example, I explained:

But when the service is provided for a fee, does it make sense to charge the same amount? Bridge tolls for passenger vehicles do not vary based on the number of people in a vehicle or on the weight of the passengers and cargo, even though heavier vehicles put more wear and tear on the bridge. In theory, it would be possible to charge residents for trash collection by the pound, but the cost of installing scales and training the collectors, to say nothing of how weighing would slow down the pace of the trash trucks, makes such an idea impractical.

Technically, bridge tolls for commercial vehicles and trucks sometimes do vary by weight, because those vehicles generally must carry a weight designation. Digital technology, such as E-Z Pass, makes it easier to tailor the toll to the weight of the truck, but even under that system passenger vehicles pay the same fee, unless they are pulling trailers and thus in effect consist of multiple vehicles, regardless of the number of passengers or weight of the suitcases in the trunk.

Concern has been expressed about the impact of a user fee on low-income individuals. The proposed fee contains a discount for persons who qualify, in some manner, as low-income individuals, but the details of how that discount would be administered remains to be seen. Renters would not be charged by the city, because the fee would be imposed on the property owner. Thus, many low-income individuals, who are represented disproportionately among renters, would not incur the fee unless the landlord passed it on. According to this report, some landlords, such as the Philadelphia Housing Authority, already pay a fee for trash removal, and thus these landlords' tenants would be unaffected.

Although a flat fee is easier to administer, is it possible to design a system that sets the fee according to the burden that the individual puts on the trash collection, incineration, and landfill system? In theory, weighing the trash comes in second place, but it would be difficult unless scales and digital technology to record weight and transmit it to the billing department were acquired and installed. That's expensive. The first-place theoretical approach would be wholly unworkable, because it would analyze the trash to determine how much of it was more easily handled and how much posed more serious and expensive burdens on the system. Although toxic materials are not permitted in trash, it happens, far more often than one would expect. But there's no feasible way to set a user fee in this manner. According to the same story, the city considered a "pay as you throw" system but decided it would be too complicated. Indeed, it would. It also would encourage people to dump their trash in places where they ought not be dumping, a problem that already afflicts the city and that would become much worse.

The city rejected the idea of basing the trash collection fee on the value of the property. According to the same story, the unreliability of property assessments in the city makes that approach difficult to defend. Another problem, not mentioned in the story, is that the value of a property is no indication of the amount of burden on the trash collection and landfill system generated by the residents of that property, nor is it that much better a measure of ability to pay.

Perhaps an answer lies in the city's attempt to increase recycling efforts. Because I've been recycling for more than 40 years, having started with newspaper recycling fund raising long before recycling was mandated by government, it's too easy for me to assume that everyone recycles. I live in a township that requires recycling, and in a neighborhood where residents routinely recycle. Yet that's not the case, apparently, in many areas of Philadelphia. The city does have a program called RecycleBank, which provides residents with coupons, that can be redeemed at local businesses, for recycling. Is there not some way to make the reward for recycling tied to a reduction in the trash fee? How would a resident "prove" that he or she has recycled, and that the amount of recycling is sufficient to earn a specified credit? One possibility is to have residents take recycling to a recycling center, where their contributions to environmental and economic value could be measured. This option, though, doesn't work well for those people who have difficulty getting out of their house or getting around, let along lugging empty cans and bottles or stacks of newspapers to a recycling center. Another possibility would be to license entreprenuers, preferably youngsters with too much time on their hands, to collect recycling and remit to the supplier a significant portion of the fee that is collected. The logistics of such an approach are challenging. How does one prevent these enterpreneurs from defrauding the elderly and others who are in need of the service? Would the unions object to these money-earning opportunities being farmed out to non-union youngsters? Under the circumstances, though, it's worth exploring and trying to make work.

If the City Council rejects the trash collection user fee, it has two choices. It can impose or increase taxes or other fees. It can cut services. Imagine, though, if the city decided to pick up trash every two weeks or once a month. Surveys indicate that city residents would rebel at such a notion. If the matter were put to a vote, it is highly unlikely that any sort of consensus would be reached on what should be cut. A few would vote to cut library hours, a few would vote to cut back hours on recreation centers, a few would vote to close city swimming pools, a few would vote to close some firehouses, a few would vote to eliminate eleventh and twelfth grade from the public schools, a few would vote to shut down public health centers, and the list would go on until one realized that each program would be the favorite cutting candidate of one percent of the population. When a city works at such cross-purposes, and a sense of the common weal disappears, chaos ensues. The current budget crisis is the beginning of a much bigger crisis. Whether the downslide ends at this point depends on whether city residents, through participation in the hearings that City Council will hold, can set aside self-interest in an effort to spare themselves the consequences of refusing to pay more while also refusing to accept less.

According to this Philadelphia Inquirer story, the mayor of Philadelphia, reluctant to cut any more essential services and squeezed by declining tax revenues from existing taxes, will propose a 2010-2011 budget that includes a $300 annual trash collection user fee and a 2-cent-per-ounce tax on beverages containing sugar. The $300 fee would be reduced, probably to $200, for low-income residents. Revenues from these two proposals are projected to make up for the current deficit in the city's budget. Not surprisingly, it is far easier to estimate the $100 million that the trash collection fee would generate than to determine how much revenue would be forthcoming from the so-called soda tax. Estimates for the latter range from $30 million to $77 million annually.

Paying separately for trash collection is not a new idea. In many localities, residents must hire private contractors, who charge whatever fee the market will bear but that will also make their enterprise profitable. In other localities, the government does the trash collection but invoices the residents separately. In some places, trash collection is provided by the local government without a separate fee, but a special fee must be paid for removal of appliances, large items, and other materials above and beyond some ill-defined notion of regular trash.

Objections to the proposed trash collection user fee in Philadelphia is that it would not reduce any taxes currently being paid by those who would be subject to the fee. If the $100 million is used to pay for trash collection, what happens to the funds that until now were being funneled into those costs? Because of the deficit, those funds don't really exist, so one would not expect an increase in funding for other activities or a reduction in other taxes. However, the mayor seems ready to propose reinstatement of leaf collection and expanding the program for cleaning up empty lots.

It is unclear whether the trash collection fee will be the same amount for someone living in a rowhouse as it is for a store, an office, or some other commercial building. If I recall correctly, the commercial enterprises must contract for private collection of their refuse. Another point of difficulty is the application of a single user fee no matter the amount of trash generated by a particular residence. When trash collection is funded from general revenues, it is possible to justify the imbalance in services received by comparing the situation to the imbalance in services received when some residents need police attention because of a burglary and others don't. Many government services are of the sort most people don't care to need, such as fire fighting, burglary investigation, and ambulance calls. People prefer to live fire-free, crime-free, and healthy. But when the service is provided for a fee, does it make sense to charge the same amount? Bridge tolls for passenger vehicles do not vary based on the number of people in a vehicle or on the weight of the passengers and cargo, even though heavier vehicles put more wear and tear on the bridge. In theory, it would be possible to charge residents for trash collection by the pound, but the cost of installing scales and training the collectors, to say nothing of how weighing would slow down the pace of the trash trucks, makes such an idea impractical.

All things considered, I would vote for the trash collection user fee. I would try to institute others, but that's beyond the scope of the news report in question.

On the other hand, the tax on sugary beverages is a non-starter for me. It's not just the issue of whether the city has the authority to impose the tax, or the issue of whether it can sneak it into the business privilege tax. Nor is it the issue of whether the city has the authority to levy a different business privilege tax on vendors of certain types of beverages. What disturbs me about the proposed tax is that it singles out one sort of food or beverage as though sugary drinks impose a cost on society that no other food or beverage does. In What Sort of Tax?, I questioned why soda would be singled out for taxation if the justification for the tax was a concern about the adverse impact of obesity on health. I again shared my criticism of a soda tax in The Return of the Soda Tax Proposal after the idea of singling out sugar-flavored beverages, but not any other unhealthy food or beverage, resurfaced. Today, I repeat that question. Why not a tax on red meat? Why not a tax on sugary chewing gum? Why not a tax on high cholesterol foods? Why not a tax on ice cream? Why not a tax on the sugar packets used to sweeten coffee?

One member of City Council asked, "If you were going to go out on the street and ask, 'Would you pay more per ounce of soda so you can have your street plowed?', I think people would say, 'Yes,' " But is there any indication that a soda tax would fund street plows? Should snow removal be funded by a soda tax? Or is there some other, better source of revenue? Surely soda consumption does not cause snow. Where's the connection?

Another member of City Council has decided to support the soda tax but oppose the trash collection user fee because the latter is, in his opinion, "more regressive and hurtful than a property tax." Aside from the anti-regressivity offered by a reduced rate for low-income residents, the trash collection user fee is no more regressive than the soda tax, because soda consumption does not increase with income. If anything, soda consumption is proportionately higher among lower income individuals in part because it is cheaper than the fancy coffees and other beverages that tend to be consumed more often by those with higher disposable incomes.

Instead, I would support a "healthy diet" tax, one that would target foods and beverages that contribute to poor health. The tax would raise revenue that could be used for city health services and funding activities that get people off their chairs and onto the playing field or into the gym, such as city parks and playgrounds, recreation centers, and youth programs. If effective as a deterrent, the tax would decrease the number of people with health problems attributable to unhealthy diets, or at least reduce the severity of those problems, thus permitting the city to incur lower expenses for ambulance service, public health clinics, and other services the costs of which increase when the health status of the populace worsens.

So I would vote no for the soda tax. Incidentally, as I pointed out in The Return of the Soda Tax Proposal, I gave up soda a long time ago, so I'm not voting from self-interest. After all, I generate less trash than anyone else in my neighborhood, but I don't fuss about the fact that my taxes aren't discounted to allow for the disproportionately reduced burden that I impose through my generation of refuse. No, I simply don't think one particular type of unhealthy beverage or food should be singled out to bear a burden that is generated by many types of unhealthy beverages and foods.

Recently, in Snow, Budgets, and User Fees, I concluded my thoughts with this prediction about the impact of cutting taxes and user fees too sharply:

Of course, if the anti-tax crowd continues to influence the unwitting and uninformed by appealing to emotional distaste for taxation, it might persuade the entire nation to eliminate all taxes and user fees. What must be understood is that we would then be living in a country with no national defense, no police protection, no fire fighting services, no snow removal, no trash pick-up, no airspace allocation for airliners, no food, housing, or medical care for the folks who have lost jobs because of corporate greed and corruption, no prescription drug approval, no highway maintenance, no national or state parks or recreation areas, and all other sorts of inadequacies. What we would have is a large-scale version of those youngsters rioting in center city Philadelphia, except that the rioters would not simply be expending excess energy because they have nothing better to do. They would be fighting for survival. The price that would be paid would far exceed the inconveniences of taxes and user fees.

Now comes news from a city that has chosen to cut back services rather than raise taxes. According to this CNN report, officials in Colorado Springs, Colorado, have decided to remove the trash cans from its neighborhood parks, to eliminate evening and weekend bus service, and to remove one-third of the city's street lights. Brilliant. Well, ok, sorry. Brilliant it's not, and that's not simply because there will be less night-time lighting. Brilliant it's not because it's a short-term solution to a long-term problem that will generate even more long-term problems requiring far more resources to fix than the few dollars being saved by making the city dirtier and less safe. No trash cans? There will be more litter blowing around on the streets. No bus service during evenings and weekends? That means more vehicular traffic, with its accompanying pollution and congestion. Reduced lighting? That means an environment more conducive to accidents, pedestrian injuries, and crime. And in what appears to be a theme, the city is selling its police helicopters. The decision to close community centers that serve children and seniors is apt to put a lot of youngsters on the streets, and we know what happens when youngsters are out on the streets with nothing to do rather than busy with supervised after-school activities or jobs.

In Colorado, state and local governments cannot raise taxes unless voters approve. When asked to increase taxes, residents of Colorado Springs voted no. One politician reacted by saying, "You can cry about the fiscal situation ... or you can take it as an opportunity to change, reinvent yourself and innovate and that's what we're going to do in Colorado Springs." Change surely there will be. From illuminated streets and sidewalks to darkness. From clean parks to wind-blown litter. From energy-saving and pollution-reducing bus service to vehicular congestion.

Colorado Springs is considered by some to be a "libertarian paradise." Not only is its philharmonic orchestra privately funded, a not unusual situation that makes sense, but its garbage collection is privately funded. If that means that a private enterprise has a franchise to collect fees from residents for garbage collection or that multiple enterprises are permitted to compete to do so, that's close enough to a user fee to satisfy my prefernce for user fees. But what happens if the private sector enterprises decide to close down and leave because the residents of the city, accustomed to and intent on paying as little as possible, resist increases in the garbage collection fee. Those who argue it cannot happen should visit towns where there are no services of a particular kind because the economics did not work out. So much for the joys of the free market.

Perhaps in this "libertarian paradise" they can simply get rid of the police department. The town can rely on its residents using privately-held weapons to combat criminal activity. Surely posses and vigilante groups operating in the private sector are so much more efficient, safe, and sensible than police departments. Yes, I'm being sarcastic.

Yet one of the city's politicians argues that government should not provide the services that it has been providing, and that "the solution may be in weaning people off of government services. The larger the government is, the more conditioning with certain people that they don't need to take personal responsibility of their life." So according to this official, individuals, acting in their own capacity, and not the city, are responsible for illuninating the streets, providing airborne police protection, and driving vehicles rather than taking the bus.

This politician continued his explanations with this comment: "Should it be doing all of these things, or should it really be focused on the vital things that clearly have a public interest?" Excuse me, but is the city of Colorado Springs focusing on vital things that clearly have a public interest when it cuts back street lighting, police protection, neighborhood park trash cans, and bus service? What remains as a a vital thing that clearly has a public interest? Perks for the city officials? Money to dish out to influence voters? The key to the answer is the phrase "certain people" in the official's claim that, "The larger the government is, the more conditioning with certain people that they don't need to take personal responsibility of their life." So somehow by having evening and weekend bus service for people who need to commute to evening and weekend jobs conditions those people to be irresponsible? So somehow by illuminating the city's streets people are encouraged to be irresponsible? Sorry, but none of this resonates with logic.

Though this may seem to be a tempest in a teapot, or the detritus of a Tea Party, it's more like a canary going quiet in a mine. As the weeks and months of 2010 progress, we will be reading and hearing more stories about state and local governments cutting back services because the powers-that-be either stand in the way of appropriate tax increases or dupe the less affluent and the poor into voting against taxes on the wealthy, without disclosing that the less affluent and the poor will bear the burden of the service cuts that accompany the fiscal irresponsibility that plagued the nation at the federal level during the past decade and that is spreading like a viral disease among states and localities. Today, Colorado Springs. Tomorrow, your town and my town. But, hey, at least we'll be free of taxation and we can tea party all day and all night, well, at least during the day because there won't be any lights on at night, no bus to take us there, and no trash cans into which we can put the soiled tea bags.

About a month ago, in Caveat Emptor, Law Students Seeking Outlines, I expressed disapproval of an enterprise that encouraged the sharing of outlines by law students for a long list of reasons that I explained in that posting. I had half expected to hear from someone at Outline Depot defending the enterprise's operations but I did not. I had one comment, from a current law student, who tried to persuade me that using old outlines was the way to get through law school successfully, at least for him.

So imagine my surprise when late last week I received an email from Outline Depot. The subject caused me to laugh. "Easy money at Villanova Law!" Are you kidding me? I had to open this email. So I did. It was an invitation! Here's what it said:

Apply to be an on-campus rep for OutlineDepot today!

It's super easy and you can start earning extra cash instantly.

OutlineDepot.com

Wow. Instead of criticizing my position, instead of arguing in favor of law student outline use, instead of offering empirical proof that using old outlines works, the folks at Outline Depot decided to follow some variation of the old adage, "If you can't beat them, join them." In this case, it must be "If you can't disprove their position, invite them to join you." Or perhaps it was a matter of the wisdom that one catches more flies with honey than with vinegar. Who knows what the Outline Depot folks were thinking?

Unfortunately, it isn't going to work. I haven't applied and will not apply to be an on-campus representative for Outline Depot, or any other business that trades in law school outlines. Even an offer of five million dollars, which by my calculation would set me up for life, will not change my mind. No, I don't think such an offer would be forthcoming. My guess is "extra cash" is something less than that. Much less. I'm laughing again.

So what am I to think? An enterprise that engages in circulation of old law school outlines invites an outspoken critic to represent it. Actually, I know what I think. What do you think?

Early this week I wrote about Taxes and Anger. Today I will describe how taxes can trigger disgust. There’s simply no point in getting angry. It’s simply so beyond that.

On Tuesday I sat down to do the tax returns for TaxJEM, Inc., the corporation through which I marketed and update computer-assisted tax law instruction exercises for law students and others interested in determining how well they understood federal income tax law. The federal 1120S, which is filed for federal income tax purposes, was easy. The Pennsylvania PA-20S/PA-65, which is filed for state income tax purposes, was manageable despite the bizarre attempt to use one form for both S corporations and partnerships. The Pennsylvania RCT-101, which is filed for Pennsylvania corporate franchise tax purposes, was disgusting. It’s not just that the RCT-101 combines the franchise tax, the loans tax, and the corporate net income tax. It’s not just that the RCT-101 must be used by S corporations even though the corporate net income tax does not apply. It’s not just that the form is six pages long, printed in small font with places to enter numbers that must be written in extremely small script. It’s not the absurd layout. It’s the computation of the franchise tax. I’ve filled out this form for several decades, so it’s not a surprise. It’s just that the more I deal with the form the more I wonder why it needs to be what it has become.

The RCT-101 requires the taxpayer to fill in book income for the current year and each of the preceding four years, but if there are any short years, those, too must be entered. The amounts are totaled, and divided by the number of years, which is usually five. The result is “average book income,” and if it is less than zero, it is reset to zero. Then it is divided by .095. This is an attempt to determine what amount of investment would generate that income. How many people or companies are getting a 9.5% rate of return these days?

Next, the taxpayer is required to enter, on line 7, the shareholders’ equity at the end of the current year. On line 8, the taxpayer must enter the shareholders’ equity at the beginning of the current year. The next step is priceless. I’ll quote. “If Line 7 is more than twice as great or less than half as much as Line 8, add Lines 7 and 8 and divide by 2. Otherwise enter Line 7.” Think about that for a while. Pick two random numbers and put one in line 7 and one in line 8. Then figure out the next step. If you have flashbacks to the SAT or some other standardized test that asked what you would be viewing if the object had a transverse axis more than twice as great as its length but less than half as much as its width, I apologize. It is an averaging device, but why not just average lines 7 and 8? Granted, this is a creature of the legislature and not the people who create the form, but does it really need to be so disgustingly complicated? Why?

If the outcome of the computation is less than zero, it is reset to zero. Then it is multiplied by 0.75, and the result is added to the amount that was generated when average book income was divided by 0.95. The combined amount is divided by two. Then $150,000 is subtracted, and if the result is less than zero, it is reset to zero. At this point, I am finished, because TaxJEM, Inc. is small. Trust me, it’s not worth anything near $150,000. But if subtracting $150,000 yields a positive dollar amount, it is then multiplied by the “proportion of taxable assets or apportionment proportion,” a percentage which requires filling out yet another schedule on the form, a process that might involve filling out a manufacturer’s exemption schedule that is a separate four-page folded-over delight whose center pages contain 32 rows and 10 columns. In other words, there are 320 little boxes, or cells, each possibly commanding a number.

Though I defend the need for taxes, I do not try to justify unjustifiable complexity. The state of Pennsylvania is trying to phase out the franchise tax, but economic conditions and budget deficits have stalled that endeavor. That’s too bad. This is a tax, and a form, that needs repeal or serious overhaul, sooner than later. Surely simplification ought to outweigh whatever considerations brought about this level of computational complication.