MauledAgain

First comes news that Grover Norquist described expiration of the Bush tax cuts as not a violation of his no-tax-hike pledge. He said, “Not continuing a tax cut is not technically a tax increase.” Speaker of the House John Boehner countered that allowing the tax cuts to expire would be the equivalent of a tax hike.

Then Norquist’s Americans for Tax Reform issued a statement explaining that failing to extend or make permanent the Bush tax cuts “would clearly increase taxes on the American people” and that “[i]t is a violation of the Taxpayer Protection Pledge to trade temporary tax reductions for permanent tax hikes.”

Suppose an employer hires someone to work for $60,000 a year. During the person’s second year of employment, for whatever reason, the employer pays the employee a $1,000 bonus. During the person’s third year of employment, because of economic conditions, the employer does not pay a bonus, but the employee receives the $60,000. Though one might understand someone saying that the employee had a pay cut, the fact is that the employee did NOT have a pay cut. The employee simply did not have a repeat of a windfall. Similarly, if the government decides not to continue paying a bonus to the wealthy, for the simple reason that, like the employer in the example, economic conditions don’t permit it to do so, the government isn’t doing anything to the underlying after-tax condition of the taxpayer as it existed before the windfall was paid. The only difference between the examples is that the employer paid the bonus after deciding that the employee’s work merited a special supplement, whereas the windfall bonus paid to the would-be job creators did not bring the promised returns.

The scuffling and arguments over the difference between a tax cut expiration and a tax hike are the sort of word games that obscure the analysis. Rather than debating the merits of the tax rates that existed before the Bush cuts and the tax rates that would be restored when those cuts expire, rather than looking carefully at the economy’s condition before the Bush tax cuts and the economy’s condition as a consequence of the Bush tax cuts, rather than focusing on the impact of cutting taxes, twice, simultaneously with increasing federal spending and the federal deficit on account of waging war, those charged with the sacred fiduciary trust of caring for the nation have put on brain blinders that narrow their chatter to a debate over the phrase to apply to tax cut expiration.

It’s easy to play the game. Here’s another word to describe what happens when the Bush tax cuts are permitted to expire. Correction. Correction of a foolish, dangerous, unjustified action. The folks who brought us that debacle are now trying to convince us that it ought to be perpetuated, into perpetuity. Well, not quite, because next on the agenda are additional tax cuts. Just as increasing bonuses for employees when economic conditions are prohibitive will bankrupt the employer, continued unwarranted tax bonuses when economic conditions are prohibitive, especially when those economic conditions were caused by or at least exacerbated by those tax bonuses, will bankrupt the nation. Perhaps to people who care more about party and philosophy than national interest, this doesn’t matter much, if at all. I wonder what interesting word will be invented to mask that bankruptcy. Privatization?

The Transportation Advisory Commission appointed by the governor of Pennsylvania returned with recommendations earlier this week dealing with the gap between how much money the state has to repair and maintain transportation infrastructure and how much money is required to keep bridges from falling down, roads from crumbling into rutted stone piles, and tunnels from collapsing. The gap is $3.5 billion. Considering that Pennsylvania has more structurally deficient bridges than any other state, in addition to at least 7,000 miles of bad roads, the $3.5 billion amount, hefty as it is, ought not be surprising.
The Commission, which has the power to make suggestions but not to implement any of them, offered a variety of suggestions. As summarized in this Philadelphia Inquirer story among the Commission’s recommendations are increases in vehicle titling fees, vehicle inspection fees, driver license fees, and fees for similar documents. It suggested a new “local registration fee.” Another new fee would be a $100 surcharge imposed on motorists who rack up more than one moving violation in a year. And, yes, it recommended an increase in the wholesale gasoline tax, which translates into a 22 cents per gallon jump in pump prices. The Commission also advocated a cost-cutting plan, to permit biennial rather than annual vehicle registrations and to extend the life of a driver’s license from four years to eight years.

Aside from the safety concerns of letting people go eight years without checking in for a vision or other test to obtain a license renewal, the most noteworthy aspect of the Commission’s ideas is that they conflict with the philosophy of the governor who appointed its members. Pennsylvania’s governor is among those who oppose tax increases, period, and though he has given hints that he is open to new user fees and increases in existing ones, nothing of the sort has materialized. The governor, of course, is free to disregard the Commission’s ideas, because it is simply an advisory commission. But what alternatives are there? One is to let transportation infrastructure spending drop to what can be supported by current revenue, causing an increase in the number of deficient bridges and miles of sub-standard highways. That, of course, will lead to more accidents, deaths, and injuries. Nice choice. Another option is to downsize, by closing down the highways and bridges that are deficient and for which there is no revenue to make repairs. That, of course, will lead to traffic congestion, more wear and tear on highways that remain open, until those are closed from the increased damage, and breakdowns in the transportation system that brings supplies to, and provides means for shipping products from, the state’s farms and businesses. This choice is pretty much an economic death spiral.

The governor is in a tough spot. I have no sympathy for him, because it’s a tough spot of his own making, with much help from those who financed his acquisition of the office. If he raises taxes and user fees, he will be seen by his supporters as a hypocrite, as someone who sold out, and as unreliable. His appeal among the anti-tax crowd would diminish, and barring a transformative experience taking him to the other side of the political spectrum, would essentially end his political career. If he stands firm and rejects tax and fee increases, he becomes an historical figure forever associated with the transportation infrastructure disasters and ensuing economic catastrophes triggered by unwise underfunding. Might he try some legerdemain that comes up with a new name for taxes the way Ronald Reagan’s advisors used the phrase “revenue enhancements” to describe the remedy they designed when they figured out their tax cuts had been too much, too soon, and too dangerous for the nation’s survival? Is that a trick, once played, that can be used again? My prediction is that he tries to turn public transportation assets, including not only roads and bridges but also vehicle registration and driver license issuances and renewals, over to his friends in the private sector, letting them jack up what are called “prices” as they extract from the public profits that governments don’t need to generate. At that point people might begin to wonder whether there is a difference between a “tax” charged by a government for provision and maintenance of public goods and a “price” charged by an unregulated, unelected private enterprise for public goods co-opted by the private sector. Spend enough time wondering, and by the time the reality is obvious, it will be too late.

The answer to the question isn’t necessarily “if there are no taxes and no user fees there are no roads and no bridges.” The answer to the question very well may be something much worse.

Please. Isn’t it time that people who step forward and offer themselves as public “servants” bring to the discussion a greater emphasis on responsibility and less concern about trolling for votes? If the message is good enough, the votes will follow. Remember the high school class president candidates who promised to repeal all examinations and grades? Plays well, especially with those ignorant of education’s value, but for the most part, fortunately, didn’t work. Unfortunately, that sort of nonsense seems to resonate among Americans who don’t quite understand life’s realities.

Early this month, a TaxProf Blog headline caught my eye, and I tucked it away for future discussion. Whose eye would not be caught by Michele Bachmann Backs One-Year Income Tax Holiday. Is she serious? Who knows? The headline linked to a Forbes article by Taxgirl Kelly Phillips Erb, carrying a similar headline, “Michelle Bachmann On Board With Tax Holiday.” Kelly’s article in turn linked to a Boston.Com story that explained Bachmann had replied positively to a question from Dan Gorman, a former New Hampshire Libertarian Party state representative, who proposed the one-year income tax moratorium. Bachmann replied, “Put a moratorium on the entire income tax for one year for every citizen in this country and watch this country take off.” Really?

Here’s what happens if the federal government stops collecting income taxes for a year, and this does not take into account the consequences of one or more states going along for this wild and irresponsible joyride. First, the federal government would be unable to pay interest on its outstanding debts. Regardless of what happens to the debt ceiling, the government would be unable to borrow additional money, because creditors will back off when borrowers lose their revenue sources, whether it’s a job or a tax revenue stream. Second, the government will be unable to pay salaries to members of the Armed Forces, including the Coast Guard, and people who staff the Center for Disease Control, FEMA, or any other agency, including the folks who do air traffic control. Third, federal courts will close. Fourth, payments to Social Security recipients, including the retired and the disabled, and to beneficiaries of Medicare and Medicaid will stop. What does this do to the economy? It destroys it. Imagine flights cancelled because there are no air traffic controllers, and no Congress – remember, there is no money to pay the legislators or to keep the Capitol open – to enact laws permitting the “private sector” to “take over” that and many other aspects of government. Imagine tens of millions of retirees with no income source, unable to pay bills and with no money to spend. Whatever increase in spending occurs from workers awash in higher take-home pay is offset by the decrease in spending by retirees. It is quite possible that health systems would go under. State and local services dependent on federal revenue shut down. A “private sector” person on his yacht off the coast of Long Island who finds himself in trouble has no Coast Guard to call. Interest rates soar. If failure to deal with the debt ceiling portends catastrophe, as many claim, the one-year tax moratorium supported by Bachmann surely will bring whatever it is that exceeds catastrophe.

Kelly Phillips Erb makes the same overall point, though not so alarmingly. She also notes that Bachmann has an LL.M. in Taxation and worked at the IRS. Bachmann is proof that working as a tax professional and earning an advanced law degree in taxation does not increase a person’s ability to reason sensibly. Kelly also suggests that Bachmann simply is playing to the masses, using rhetoric to drum up support. That would explain Bachmann’s proposal to repeal the Internal Revenue Code, along with just about everything else that the anti-authority segment of society detests, and replace it with, well, it isn’t known what Bachmann would use to raise revenue. Perhaps nothing. Perhaps Bachmann would put all government functions in the hands of the private sector individuals wealthy enough to buy the power necessary to compel everyone else what to do.

Maybe Bachmann simply is pandering for votes. But the people who listen to her Pied Piper promised land nonsense don’t know that and don’t understand that. Those who wish to be public servants have a responsibility to the nation that exceeds the attempt to be elected or re-elected and that exceeds their devotion to their political party. History tells us what happens when the interests of political parties and their financial supporters trump the national interest. It never, ever ends well.

Friday morning, listening to a sports-news radio station on my way home from the gym, I hear one of the commentators share a thought concerning the tax issues facing the fellow who caught Derek Jeter’s 3,000th hit. He asked, “Why does the IRS inject itself into this. Why does the IRS make these things taxable? You win a prize and the IRS takes part of it.” This comment adds more weight to my sad conclusion that the Congress, and those supporting Congress in its efforts, are succeeding in making Americans think that the IRS is responsible for the current condition of the tax law. Though I thought, as explained in Is Public Truly Getting IRS-Congress Distinction? that increasing numbers of Americans were figuring out who enacts tax law, I hesitate to continue thinking along those lines. Hundreds of thousands of listeners, having heard someone spew misinformation on the radio but considering it gospel truth because it comes from somebody who must be brilliant because he’s on the radio, have been led astray.

The Congress decided that a variety of receipts must be included in gross income, and absent deductions that totally offset those items, are subject to tax. It is the Congress that decided salaries, wages, and other compensation is subject to the income tax. It is the Congress that decided prizes and awards, but for two exceptions, are subject to the income tax. Yet people throughout America think that the IRS made those decisions. It didn’t. One of the first things students in my basic tax course learn is that the Internal Revenue Code is a creature of the Congress. I almost always test that point in some way, and the fact that more than a few of my students, intelligent people all of them, get it wrong demonstrates the extent to which this pernicious myth has been beaten into the heads of the nation’s citizens. One wonders why high school students aren’t told who enacts tax and other laws. Who benefits from ignorance on this point?

Consider an example from another situation commonly experienced by most people. A bridge is closed because it is unsafe. A police officer directs traffic to the detour. Aside from the occasional irrational driver who yells at the officer, most people understand that the police officer is not the person who decided to close the bridge. The police officer is simply enforcing the decision. Why do people understand this? Because there is no concerted effort by the officials who closed the bridge to pass the buck to the police department. On the other hand, the Congress itself constantly criticizes the IRS for doing what the Congress told it to do, in ways that make it appear to Americans that the IRS is out of line. Consequently, the IRS acquires a terrible reputation among the citizens of this country, though for other reasons the Congress doesn’t do much better.

Just last month, in If Congress Says So, Don’t Blame the IRS, I repeated my oft-raised warning that Americans need to understand who writes the tax law. As I noted more than a year ago, in Taxes and Anger, “The Congress has done a very good job making Americans think that all their tax woes, all their tax complaints, all their tax unhappiness, all the pitfalls in the tax system, and all the aggravation that federal taxation causes them is the work of the IRS.”

It’s worth repeating what I said in If Congress Says So, Don’t Blame the IRS, although I doubt the sports and news commentators read it last month or will read it this time:

So long as people view the IRS as the source of all that is wrong with taxation and the tax system, or the cause of anything they dislike about tax law and tax enforcement, and overlook the responsibility of the Congress for the tax law, tax policy, and tax administration deficiencies afflicting the nation, the problems will not be solved. Once people understand what Congress has done and is doing, there may be increasing numbers of incumbents who fail to be re-elected. But until Congress understands what Congress should be doing, replacement of incumbents by newcomers who continue the bad habits of Congress will continue unabated.

The longer the “blame the IRS for the deeds of Congress” game is played, the higher the risk that the tax system, and thus the nation, will suffer. What member of Congress has the courage to stand up and admit that it is the Congress that decided people earning salaries and winning prizes are subject to income tax on their wages and awards?

It is disturbing that the “flat tax makes tax simple” myth continues to be circulated, even among those who should know better. This isn’t my first attempt to explain why the flat tax simplifies little, and takes confusion out of pretty much nothing. For example, in Flat is Not Simple, At Least Not with Taxes, I explained why a flat tax does not remove the features of the income tax that contribute to tax law complexity. That short essay came three years after a much longer, detailed analysis of the Forbes tax plan, in The Revived Forbes Flat Tax Plan. Two years ago, in Fighting Tax Ignorance, I took apart, among other things, Paul Ryan’s claim that reducing the tax rate schedule to one or even two rates would simplify the tax law.

This time, it’s William F. Shugart II, a senior fellow with the Independent Institute and the J. Fish Smith Professor in Public Choice at Utah State University. In Flat Tax is a Good Idea, But Spending Is the Real Problem, Shugart writes, “I strongly favor junking the mazelike federal income-tax code, nine million words long and shot full of arcane provisions supplying tax breaks to special-interest groups whose Gucci-shod lobbyists patrol the halls of Congress whenever taxes are on the agenda.” At this point, he and I are in total agreement. He continues, “Replacing those nine million words with a single tax bracket of, say, 17 percent - applying to all income, however earned, with few deductions or exemptions and no loopholes - would produce huge economic benefits.” Whether the economic benefits would be huge or merely substantial can be debated, but the adjective “few” is the doorway through which the special interests that Shugart and I think have no place in tax law would enter.

Reducing the tax rates to one rate, which is the precise definition of a flat tax, does nothing to simplify the issues that clutter tax law analysis. Taxing “all income, however earned,” is a good start, but I’ll put to Shugart the question that confronts basic tax law students early in the semester. “What is income?” Here’s a clue. There’s no definition in the Internal Revenue Code.

The prospect of eliminating all deductions invites challenges with respect to cost of goods sold. A tax on gross receipts is not a tax on income. If people think that the computation of cost of goods sold is a simple thing, they’re in for a surprise. It’s an easy concept but tough in practical application. Cost of goods sold requires determination of inventory. Books have been written on that question. Hundreds of tax cases have been litigated on inventory issues.

Playing with the section 1 tax rates does absolutely nothing to address the question of timing. It does not simplify, for example, installment sale rules, or the dozens of nonrecognition provisions that pepper the Code. And to the extent Shugart thinks a flat tax would fuel the economy, let him explain how that would happen if nonrecognition provisions were repealed. If every time a business traded in equipment for a newer version it had to pay tax, which would happen in most instances, the cash flow burden would stifle the economy. If Shugart’s response is to retain nonrecognition provisions, he’s advocating retention of tax complexity that take multiple volumes to explain. Ask anyone who has studied like-kind exchanges and involuntary conversions. Nor can I imagine what repeal of section 1041 would do to the economy.

A flat tax does not resolve the continuing debate with respect to international taxation. The question of how nonresident aliens and foreign corporations should be taxed, and the question of how American taxpayers should be taxed with respect to overseas operations, is not one that goes away if section 1 is reduced to one tax rate.

The Internal Revenue Code can be simplified. A much more practical tax law can be drafted. But it won’t rest on a flat tax. Too many of the flat tax proposals turn out to be nothing more than a flat tax on wages and a free ride for all other income. Shugart, to his credit, doesn’t advocate this, but I wonder if he realizes that many of the flat tax proposals are precisely this sort of deception. Tax ignorance is a dangerous thing. Beware.

Like every traveler filled with wanderlust, Julian Block the tax author cannot sit still. He took a look at one of his books and decided it was time for revamping it. Four years ago, he gave us "Travel and Moving Expenses: How To Take Maximum Advantage Of Every Tax Break The Law Allow." Now he’s back with a new edition, "Tax Deductible Travel and Moving Expenses: How To Take Advantage Of Every Tax Break The Law Allows!" Four years is a long time in tax law. Things change. Julian chauffeurs us through all sorts of tax issues involving travel and moving.

Readers of MauledAgain know that Julian is a veteran at this. In previous posts, I have taken a look at several of his books. "MARRIAGE AND DIVORCE: Savvy Ways For Persons Marrying, Married Or Divorcing To Trim Their Taxes - And They’re Legal" was reviewed in Tax and Relationships: A Book to Read and Give (Feb. 2006), "THE HOME SELLER’S GUIDE TO TAX SAVINGS: Simple Ways For Any Seller To Lower Taxes To The Legal Minimum," in A New Book on Taxation of Residence Sales: Don't Leave Home Without It (Aug. 2006), "TAX TIPS FOR SMALL BUSINESSES: Savvy Ways For Writers, Photographers, Artists And Other Freelancers To Trim Taxes To The Legal Minimum," in A Tax Advice Book for People Who Write and Illustrate Books (Dec. 2006), "Year Round Tax Savings" in Another Tax Book for Tax and Non-Tax People to Read (Feb. 2007), "Travel and Moving Expenses: How To Take Maximum Advantage Of Every Tax Break The Law Allow" in Tax Travels and Tax Moves: Book It with Block (Sept 2007), "Ultimate Tax-Saving Resource '08" in Helping Tax Clients Understand Taxes (June 2008) and "Julian Block’s Tax Tips for Marriage and Divorce" in
Julian Block Talks Tax with Married, Divorced, and Other Couples (Jan. 2011). His latest journey through the tax law is no less concise, readable, and helpful.

The tour begins with a general overview, in which Julian lays the groundwork for what he is doing by explaining “The Basic Rules” and mapping out why he needs to do this in “Most Americans Don’t Understand Basic Tax Terms.” How unfortunately true. When he suggests that too many Americans don’t understand AGI, AMT, standard deduction amounts, and tax credits, he’s right. As with many things on life’s highways, once understood it seems simple but until the light bulb goes on, the challenge appears insurmountable. Julian’s explanation is much like the light switch. It’s there, but it takes an effort to turn it.

After mapping out the rest of the book, Julian turns to strategies that affect all of the deductions he addresses. He shares information about filing status, timing, and “red flags for audit.” His tips for dealing with automobile and travel expense audits will smooth the ride for taxpayers who didn’t quite pay attention earlier when filing returns or even earlier when engaging in transactions. Thus, his tips for “Correcting Past Mistakes” come in handy for those who made a wrong turn during tax return preparation time.

The next stop is the commuting issue. The classic “commuting expenses are not deductible” axiom meets the case of the “Commuting Cops” and one of my favorite cases that I have my students read, Margaret Green v. Comr., involving the professional blood seller, which gave the world the classic explanation, “Unique to this situation, the taxpayer was the container in which her product was transported to market.” Travel between job sites and the hauling of tools and equipment get their proper due.

Automobile expenses may be one of the more confusing, erroneously applied, and audit attracting deductions in the tax world. Both the actual expense method and the standard mileage rate method are examined, along with the impact of home office use. Julian brings not only tax law, in the form of casualty and disaster losses, but also insurance premium computations and liability exposure, into the picture when he discusses the best way to handle the title for a child’s first car.

Another bumpy road on the travel expense circuit is the question of whether the expenses of a spouse who accompanies the taxpayer on a business trip are deductible. One might expect a simple answer, but the analysis of this part of tax law resembles more a detour with missing signs than the wide open road of a lightly-traveled interstate highway. Julian shepherds the reader through this aspect spousal teamwork before turning to the similarly thorny issue arising when spouses work in different cities.

What about travel to and from locations where business-related education takes place? Or travel that in and of itself is educational? Or travel undertaken to find employment? Or travel on behalf of a charity? Or travel in order to obtain medical care? Or travel to attend investment seminars and shareholders’ meetings. What’s deductible? What’s not? Julian explains these rules in ways that are easily understood by someone who is not a tax professional and hasn’t had the benefit of sitting through a tax course. To those of us who have been in tax courses, as students or teachers, or who have prepared tax returns, those questions are familiar ones. Julian then tosses in one to which I’ve not previously given any thought. Are gamblers permitted to deduct the cost of traveling to the places where they are trying to make money? Curious? The answer is in the book.

Julian shifts gears at this point, turning to the moving expense deduction. He explains the distance test, the time test, the definition of tax home, and the classification of the various expenses paid when moving from one house to another. His list of what is not a moving expense is a valuable checklist.

The next chapter, dealing with amended returns, reaches far beyond travel and moving expense deductions. Mistakes can be made not only in reporting those but in all other sorts of transactions. Advice on how to file refund claims and amended returns is helpful but mostly beyond the scope of the book’s topic. Errors with respect to asset basis, casualty losses, medical expenses, and the standard deduction seem to lie outside the travel and moving expense itinerary. The same can be said of the chapter on getting “free” advice from the IRS. Perhaps these chapters can be considered the “surprise bonus,” the unscheduled and previously unannounced stop on the group tour that causes the folks on the bus to conclude that they’ve experienced an even better deal than what they thought they had.

The book concludes with several questions and answers about travel and moving expense deductions, and a postlude offering “Some Presidential Words on Income Taxes.” I’d opt for even more of the former, and if it meant chopping out the latter, so be it. All in all, though, Julian has maintained his usual folksy and effective style, and has delivered another book useful, as I noted in Tax Travels and Tax Moves: Book It with Block , not only to “students who are trying to go further into tax law than time permits their course instructors to take them,” but also “taxpayers and tax return preparers who need to learn or refresh their understanding of these two very specific areas of tax law.”

Friday brought some news about possible budget and debt ceiling solutions that demonstrates part of what is wrong with the tax policy process and the extent to which most Americans are unaware of what really transpires in that process. According to various sources, one of the solutions under consideration is a change in the inflation index used to measure Social Security and veterans’ benefits and to make adjustments to a variety of numbers in the tax law, including the bracket boundaries for the income tax rate schedules.

One sentence in the story highlights the problem. Read this carefully. “Adopting a new inflation measure would allow policymakers to gradually cut benefits and increase taxes in a way that might not be readily apparent to most Americans.” Can someone explain why tax policy should be approached in ways that “might not be readily apparent”?

It’s not a question of whether the inflation index currently used, the Consumer Price Index for Urban Wage Earners and Clerical Workers, or the proposed index, the Chained Consumer Price Index, is the appropriate measure. It’s a question of whether and how those who advocate this change are willing and able to educate Americans about the significance of the change. Too few Americans understand the interplay between taxes and inflation, and even fewer understand the impact of inflation adjustments in the tax law.

The rhetoric will fly, of course, if the issue gathers more public attention. Should a decrease in the future pace of fixed-dollar taxes be considered a tax increase? So long as taxes are reduced in fixed dollar terms though holding steady in inflation-adjusted dollars, is it appropriate to argue that taxes are being increased? If the Chained Consumer Price Index is the better inflation measure – and I’m not addressing whether it is – then might not one frame the argument that ending what had been a windfall tax decrease using the Consumer Price Index for Urban Wage Earners and Clerical Workers is not a tax increase but the closing of a tax loophole?

Much of the attention in the coming debate will be focused on the impact of an inflation measure change on Social Security and other benefits. Perhaps that is another reason why the tax impact “might not be readily apparent to most Americans.” If enough people read this and pass it along, perhaps it will become apparent, even if not readily, to most Americans.

Last week, as reported in a United States Senate Finance Committee press release, the committee chair, Senator Max Baucus, convened a hearing “to address the relationship between the complexity of the tax code and the $345 billion annual ‘tax gap.’” According to the press release, Baucus “asked whether the complexity of the tax code discourages compliance and to what extent it contributes to the tax gap by making it hard for taxpayers to calculate their tax bill accurately.” Duh. Do we really need to invest the time and energy of Congressional staff to conduct a hearing to ask questions that have been answered many times in the past? What’s next, a hearing to determine if the sun rises in the east? For example, four years ago, in Closing the Tax Gap Requires Congressional Introspection, I discussed the GAO Report, "TAX COMPLIANCE Multiple Approaches Are Needed to Reduce the Tax Gap," explained that the report concluded “that billions of dollars of the tax gap could be avoided if the tax law were simplified or fundamentally reformed,” and after suggesting, “consider the provisions that add complexity to the tax law and thus feed the tax gap,” asked, “Is it the Congress that judges this array of complex provisions in the Code to serve important purposes? Does the Congress even know they exist?” Two months later, as described in Congress Invites My Ideas for Improving Tax Compliance and Of Course I Respond, responding to a public request by Senators Baucus and Grassley, for “suggestions on ways to improve compliance with our tax laws, including specific recommendations to reduce the tax gap," I wrote a letter to both Senators (reproduced in Congress Invites My Ideas for Improving Tax Compliance and Of Course I Respond), in which, among other things, I explained, “Tax simplification is essential if rates of noncompliance are to be reduced. There is a direct correlation between noncompliance and complexity.”

Apparently Baucus has not read the aforementioned GAO report, or my letter, or if he read them, he soon forgot what they said, because he then asked “whether the complexity of the tax code discourages compliance and to what extent it contributes to the tax gap by making it hard for taxpayers to calculate their bill accurately.” As I explained in Closing the Tax Gap Requires Congressional Introspection, the IRS has concluded that tens of billions of dollars of tax revenue go uncollected because the complexity of the Internal Revenue Code causes taxpayers to make mistakes.

The irony is that Baucus then preached, “The tax code has grown far too complex, and it’s becoming much too difficult for honest Americans to calculate and pay their tax bill. We should make determining a taxpayer’s responsibility as easy as possible so we are able to collect more of the $345 billion in taxes that are owed but unpaid each year Especially in these tough economic times, $345 billion is far too much to waste. A simpler tax code will ease the burden of compliance on honest Americans and help them meet their responsibilities.” No kidding. Guess what? The sun rises in the east.

Congress is responsible for what’s in the Internal Revenue Code, and one example of its many contributions to unnecessary tax complexity is recounted in Objections Raised to Elimination of Legislative Tax Deceit. For whatever political points are scored by standing up and criticizing one’s own handiwork, the members of Congress should shut down the yapping and grandstanding and crank up the doing. Fix the Code. It’s a technically easy thing to do, and the obstacles, chiefly political, can be overcome with courage. Courage. If they need to have a hearing on the definition of courage, that might be a useful expenditure of Congressional staff time. It won’t take long. Courage is doing what is right for the nation while disregarding the benefits, political and otherwise, of catering to the small groups that want the tax law tailored to their preferences.

But I think the Congress will continue as it has, complaining about complexity and doing nothing to fix it while piling on more complexity. Does it not remind us of the five-year-old who trashes his or her room and then complains that the room needs to be tidied up, all the while continuing to pull more toys onto the floor without putting any away? Here’s a challenge for Senator Baucus. The next time someone proposes a tax law change that adds complexity contributing to the tax gap, stand up, explain why it is wrong, and vote against it.

Thanks to a posting by my colleague Lou Sirico on the Legal Skills Prof Blog, I found my way to an Austin-American Statesman article describing plans at the University of Texas to cut the total number of years required to complete college and medical school from eight to seven. Designers of the plan, which has been implemented in similar ways at other schools, want to make medical school education more efficient, increase the number of physicians in Texas, reduce the time and costs required to earn the M.D. degree, eliminate redundancy, and make medical education more suitable to practicing medicine in the twenty-first century. Advocates of the plan point out that students who major in health-related disciplines in college end up taking the same science courses a second time when they enter medical or nursing school. One idea is to test students in particular subjects and if they earn a “proficient” grade, they are released from the obligation to take that course again.

So it’s not surprising that in his Legal Skills Prof Blog post, Lou suggested, “The plan: admit top undergraduate students at your college to your law school after three years of college and thus shave off a year of college expenses.” Is this possible? Would it work?

Admitting students to law school after three years of college is feasible if certain conditions are met. Testing for proficiency would make it more likely to succeed, but for the fact that unlike medical school faculties, law school faculties adhere to the questionable practice of not requiring any specific courses as a prerequisite to admission. It’s difficult to imagine law faculties agreeing on a list of courses in which proficiency should be tested.

What matters is not the number of years invested in college, but the amount of learning that takes place. Simply chopping off the last year of college makes no sense, because in many instances there are important courses that are left for the student’s last year, and unless the student has the foresight to take these courses during the first three years, something that might not be permissible in some universities, the student will enter law school with even less sufficiency of undergraduate education. I phrase the issue in that manner because I do not think that undergraduate education, in general, prepares students for law school as well as it could and should. These are deeper questions I’ve addressed in posts such as Bringing Practical Awareness Into Law School Education and Undergraduate Majors and LSAT Scores: Chickens and Eggs.

An example demonstrates what I mean when I claim that what matters most is the amount of learning, not the number of years. When I was enrolled as an undergraduate at the University of Pennsylvania’s Wharton School, I was required to complete 120 credit hours, or 40 courses, to earn the degree. My friends in the College of Liberal Arts were required to complete 96 credit hours, or 32 courses. This meant that each semester, Wharton students were taking five courses while their colleagues in the College were taking four. Were those four courses equivalent to Wharton’s five courses? No. Wharton students were enrolled not only in Wharton courses, but were required to complete two semesters of Physics, two semesters of Calculus, two semesters of Statistics, and a variety of courses in other colleges, for the purpose of obtaining a well-rounded education, but not at the expense of cutting into the core Wharton courses. Students in the College were permitted to take courses in other schools but did so as replacements for, and not in addition to, whatever their core course load happened to be. Someone I knew at the university’s radio station, where I worked, decided to take five courses each semester while enrolled in the college, and with two summer school courses, completed college in three years, saving not only a year but knocking down tuition by 25 percent. She did not, however, give up on the amount of learning she experienced. There is no reason today’s students cannot increase their semester course loads and thus cut down on their college tuition while retaining their education experience. I’m all in favor of that approach. I’m not in favor of reducing tuition by reducing the education experience. Students arrive in law school sufficiently deficient in education and in need of remedial experiences that exacerbating this condition would not bode well for their professional success.

Yes, three years of college might be enough. Or perhaps two, for the very energetic and talented student. Law schools can make this tuition reduction dream come true by designating education that students need before entering law school and providing proficiency examinations to identify the students who are ready to take advantage of the time-saving, tuition-lowering approach. Whether law schools and their faculties can let go of the “we can teach you to be lawyers (or legal philosophers) in three years no matter what you studied in college” delusion remains to be seen. Law schools that truly care about making the legal profession more accessible to students who are stretched in terms of financial resources will find ways to do what is right even if it is bold, risky, and innovative.

Today is Independence Day, though most people refer to it as “the Fourth of July holiday.” Late last week, while reading a news report about the rather inept manner in which the State of New York has tried to apply its mandatory e-filing requirement to Amish sects that don’t use electricity, let alone computers and the internet, I noticed that one of the individuals remarked that “it’s a free country.” That phrase, and ones like it, have been tossed about so cavalierly that too many people fail to realize that it’s not true. The United States is not a free country.

When I claim that it’s not a free country, I don’t mean that the United States is not an independent country. There is a huge difference between free and independent. Free means to be without cost. The United States was not created, nor has it been maintained, without cost. Many people have paid, in blood, in service, and in sacrifice, in order for this country to exist and to continue existing. It is misleading to use the phrase “it’s a free country” as some sort of blank check for unbridled behavior and willful refusal to contribute to the nation’s health and well-being. There are those who claim that because we live in a “free country,” they should be “free” to do what they want and “free” to refuse to pay taxes. Some go so far as to claim that the War of Independence was fought to eliminate taxation. One of the causes, and certainly not the only cause, of the War of Independence was the refusal to submit to taxation without representation. There is taxation, there is representation, but it’s not clear that the representatives are doing what the represented want. One need only read Americans Support Higher Taxes. Really. to get a sense of how twisted representative taxation has become in a nation that is not free, and has not been free for quite a long time, from self-centered partisanship.

Somewhere along the line the notion that the freedoms enjoyed in our independent nation need to be protected through the participatory service of citizenship was corrupted. Though a brave few continue to put their lives on the line, the proportion of Americans willing to pitch in has diminished, while the chorus of cries for self-centeredness has grown larger and louder. Once upon a time, when it was necessary to defend the nation’s freedoms, everyone pitched in, one way or another. Some served in the military, almost everyone was subjected to rationing, almost everyone paid taxes, many stepped up to perform volunteer services, and almost everyone bore the burden of lifestyle restrictions. Today, claims that letting the poor get poorer, the sick sicker, the unemployed more desperate, and the rich richer will strengthen the freedoms on which this independent, and expensive, nation has been built resonate among those whose ability to see beyond the horizon and into the future is weak or missing. Too many seek ways to avoid paying taxes, very few volunteer for military service, and too many turn their attention to how assets can be hidden off-shore.

Perhaps Independence Day should be a time not only to celebrate what was done several hundred years ago by people willing to pay the price, but also an occasion to examine the extent to which some people take freedom for granted, and others misunderstand what freedom means and what it requires. Freedom is not free. Independence is not free. Trend lines suggest that there may come a day, perhaps sooner than later, when not enough people will be willing to pay what needs to be paid for freedom. The cost in that event will be loss, not only of freedom, but of independence.

Last week, Paul Caron shared Dilbert: Let's Tax Stupidity So We Have Less Of It, to which I commented, “Five years ago, I discussed this possibility in Tax Stupidity? No, Tax Stupid Acts and Stupid Decisions. Tax is not a new idea, stupidity is not a new idea, and taxing stupidity is not a new idea.

Today is July 1, 2011, so it is fitting that I succumb to the temptation to share my standard response to an email that has been circulating relentlessly since the beginning of the year. The email claims, in these or in slightly modified words, “This year of 2011, July has 5 Fridays, 5 Saturdays and 5 Sundays. This happens once every 823 years. It is called 'money bags' so forward this to your friends and money supposedly will arrive within 4 days.” The first sentence is true. The second is total nonsense. The third consists of a sentence that might be true and an admonition that is silly.

Every time I receive this email I send a “reply all” in my feeble and apparently doomed-to-fail attempt to educate the world and take a bite out of the stupidity that is overwhelming our inboxes. Here is what I write:

It amazes me that this July thing keeps circulating. So I keep debunking it.

There are 5 Fridays, Saturdays, and Sundays in a July if July 1 is a Friday (So that the Friday-Saturday-Sunday combination is July 1-2-3, 8-9-10, 15-16-17, 22-23-24, and 29-30-31). It doesn’t work if July 1 is any other day.

July 1 will be on a Friday roughly every 7 years, with skips on account of leap years. July 1 is a Friday on 2011. July 1 was a Friday in 2005, 1994, 1988, 1983. July 1 will be a Friday in 2016, 2022, 2033, 2039, 2044, 2050, 2061, . . .

Folks, that’s NOT “once every 823 years.” Not even close.

The “Money Bags” email also includes this claim to authoritative justification, coupled with another admonition: “Based on Chinese Feng Shui: ‘The one who does not forward.....will be without money.’” Perhaps it should explain, “The one who does not forward…..will provide a helpful step in the education of the world.” Perhaps the tax on stupidity should be a tax on each person who forwards the “Money Bags” email, computed by multiplying one cent by the number of people to whom the email is sent. The tax form could state, “Make many forwards…..give U.S. Treasury positive balance.”

Here’s a real-world public finance and administration, tax-related problem. The problem is easy to describe, and difficult to solve.

Last week, as reported in this Philadelphia Inquirer story, a series of shootings rocked the small borough of Darby, just outside Philadelphia. Giving the story an added attention-getting twist is the fact that on the day of the first shooting, a former mayor was robbed. Toss in a car chase, a “midday gunfight,” and a shooting near an elementary school. The last event prompted borough officials to declare a state of emergency. That permitted the borough to request, and receive, law enforcement assistance from other municipalities, in addition to giving the “police expanded powers to pull people off the streets.”

About 11,000 people live in the borough. The borough has eight full-time and several part-time police officers. The former mayor has demanded the hiring of an additional 15 full-time officers to bring the ration between population and police staffing “back up to the national standard formula.” The difficulty is that the borough lacks the money to make those hires. The former mayor admits that the borough’s residents, who are on the low end of income measurements and who have already been hit with school tax and county tax increases, would find it impossible to pay even more taxes. Yet the former mayor also stated, “We should have raised taxes – that’s what we should have done, but we didn’t do it because Darby Borough as it hard enough as it is.” Contributing to the borough’s financial woes are multiple heavy flooding incidents during the past several decades and a cut-off of federal and state funding. And it’s unclear how the borough will pay for the outside assistance received during the state of emergency.

Those are the facts. Here is the question. What should the officials of Darby Borough do, or at least try to do? I could leave this as an essay question, but perhaps multiple choice appeals to some. There are a variety of choices. Raise taxes and perhaps see the population decrease as people flee. Raise taxes and end up collecting very little. Leave things as they are and watch the criminal element continue its ascendancy. Ask the state and federal government, namely, taxpayers from other jurisdictions, to provide financial assistance. Persuade an adjacent municipality to absorb the borough and take on its financial and social and crime problems. Declare the borough extinct, shut down the local government, and let the state figure out what to do with the resulting wild, wild West.

The process of trying to find an answer to the question is significant for more than the people of Darby Borough. There are municipalities throughout the country in the same conundrum, and there are even more on the verge of slipping into similar situations. The gated communities may feel safe, but as things around them crumble, the adverse effects will spill over political boundaries. Local communities throughout the nation are far more interlocked with each other than standard political maps show.

So what would you do if you were a Darby Borough official? Resignation is not an option other than as part of the declaration of extinct borough choice.

On at least two occasions in the recent past, I have criticized the Congress for contributing to the expanding budget deficit and for failing to deal with the consequences, specifically, the debt ceiling. In What Sort of War is the “Real Budget War”?, I proposed “that the uncertainty raised by the dilly-dallying and political posturing infecting the process is one of the most significant reasons American businesses are hesitant to expand, hire, borrow, lend, produce, or commit to much of anything other than what is imminently necessary.” In Paying Interest Alone Does Not Foreclose Treasury Default, I explained how Senator Toomey’s statements concerning the debt ceiling and U.S. government default on its obligations demonstrates a serious misunderstanding of the situation, a problem that afflicts many more people than just Senator Toomey.

Now comes news that after several months of negotiations with respect to the debt ceiling, Republican legislators participating in the process walked out. Why? They were unhappy that “Democrats were pushing for higher tax revenues.” If everyone who disliked what the other party requested during negotiations walked out of those meetings, negotiations would never be successful. Some quoted in the story suggest the walk-out could be a negotiating ploy. I don’t think so. I think the anti-tax movement is firmly committed to shrinking the federal government into the size of a meaningless formality.

The problem, though, is much worse than negotiating procedures gone awry. In an article appearing the same day as the negotiating walk-out news, two economists offered their take on the debt ceiling issue as part of a larger exploration of the sad state of the economy. Both stressed the importance of raising the debt ceiling. One proposed that doing so would be “the quickest solution” to restore “investor and consumer confidence,” and that it needs to happen “sooner rather than later.” The other economist added the warning that simply chopping federal spending would “dramatically increase unemployment and put us in a double-dip recession.”

The nation’s budget deficit is a problem. Problems need solutions. Solutions arise from identifying and examining the causes of the problem. The causes of the budget deficit are easily identified. There are two causes. One is insufficient revenue. The other is spending that exceeds available revenue. In solving a problem, it also helps to identify when the causes came into existence. The latest budget problem, one of hyper-deficits unlike any previous deficits, arose when Congress decided to increase spending in order to fund two wars while simultaneously cutting taxes. Another mechanism for solving problems and dealing with the causes of problems is to examine similar situations. In 1941, when Congress moved forward with huge increases in military spending, did it cut taxes? Of course not. Aside from a fringe element, Americans did not demand tax cuts during wartime. Americans knew that wars cannot be fought on the cheap. Americans sacrificed. Those Americans, though, were of a different generation, perhaps the greatest, perhaps not, but surely smarter and more patriotic than the crew that demanded tax cuts to increase discretionary spending while they continued living their lives as though war were something on a movie or television or laptop screen. Where was the sacrifice? Aside from the devoted few who have given of their lives and time in military service, most Americans bought into the “we can have our butter and buy guns too” siren song of the economically short-changed pipers.

So if a combination of tax cutting and spending increases created the problem, does it not make sense that a combination of tax cut repeals and spending reductions should solve, or help solve, the problem? The Democrats have suggested spending cuts, even though that would, to some, be contrary to the stereotypical Democratic economic policy. Republicans, however, have no hesitation in continuing to resist restoring taxes to what they were before the Great Mistake was made. As I wrote in Paying Interest Alone Does Not Foreclose Treasury Default:

The nation is approaching, more and more quickly, the point of no economic return. I wonder when someone will make it clear to the entire nation, and not just to the few readers of this and a few other blogs who understand the maxim, a nation is doomed when it spends trillions on war while simultaneously continuing and increasing tax cuts that especially benefit the wealthy. I wonder when someone will succeed in persuading the nation that the only hope is a reversal of the mistake, even though it cannot be fully reversed. Even a partial reversal poses the possibility of redemption. Toomey wants “concrete steps toward fiscal sanity.” Would not undoing the fiscal insanity of the past decade be the place to start?

There is a very real risk that the Great Mistake will evolve into the Great Implosion.

Of the thousands or tens of thousands of readers who read the Philadelphia Inquirer article, Site is Pay for Play, perhaps I am the only one who immediately thought of the tax issues. When fall semester arrives and I again take students through the fun analysis of “what is a gift?” as we explore the section 102 exclusion, this story will ramp up the hypotheticals that I usually use. In attempting to get students to understand that it isn’t as easy to characterize a transaction as a gift as they might think, I ask them to consider a variety of relationship experiences. Among the situations I present is dating, with its many forms of expectations and conditioned acceptances.

According to the Philadelphia Inquirer article, someone set up a website called WhatsYourPrice. Notice that I’m not providing the link, and those who are sufficiently curious can find their way there on their own. I haven’t visited the site, so I’m relying on the reporter who wrote the article. What makes this web site different is that “so-called generous members (most men) open their wallets and bid real money for a first date with members who list themselves in the ‘attractive’ category (mostly women).” The web site makes its money by charging members for the right “unlock e-mail conversations with attractive members.” Winning bidders pay a separate amount to the person with whom they sought a date. The article explores the psychology and social implications of the arrangement, including charges that the web site is nothing more than a fancy escort service. Members claim that’s not the case. No matter, what I found most interesting is the tax angle.

Clearly the amounts charged by the web site constitute gross income. Whether it pays income tax depends on whether it’s collecting more than it is paying in expenses, and only the owners of the site know the answer to that question. As a visible business, it’s quite likely that the web site operators are filing tax returns. They’re not the ones with the interesting tax question.

What are the tax consequences of being paid to go on a date? One woman interviewed for the story explained that she received $120 in a card handed to her by the member who successfully bid for a few hours of her time, which she says was spent at dinner at a fine restaurant. Is the $120 gross income? How can it not be? It’s not a gift. It was delivered in exchange for a few hours of the woman’s time, company, conversation, and attention. How does that $120 differ from $120 paid to a psychologist, plumber, or painter? What are the tax consequences of the meal received by the woman? Does the fact that she was paid to go to dinner make the value of the dinner she received additional compensation? Assuming that people who are treated to dinner on dates for which they are not being paid almost surely are not reporting the value of the dinner as gross income – though there are arguments that they should be reporting it – does the tax nature of the dinner transaction change because of the $120 compensation? If so, should the tax treatment of other dinner dates depend on what other “consideration” is involved in the overall transaction? One member’s explanation of her goals may come back to haunt her come tax time: “If it's going to be a big, huge waste of time, at least I'm going to get paid for it. A lot of these guys are wealthy gentlemen, and I think my time is as valuable as their time." Getting paid for one’s time is compensation gross income. As for deductions, apparently the “attractive” members don’t pay the web site to unlock emails. No payment, no deduction. The ones paying the web site fees aren’t carrying on a trade or business or for-profit activity, and the payments surely aren’t charitable contributions. No deduction.

In contrast to my guess concerning the web site owners’ tax compliance, I am rather confident that the people being paid to go on dates are not even thinking about the tax consequences and very likely are not reporting gross income, or, for example, state sales tax. I am just as confident that they would characterize the payment as a gift, though the fact that they entered a market place, albeit digital, to acquire the payments makes the gift argument almost frivolous.

Is this a trivial issue? No. The web site claims to have 50,000 members. It says that bids average $138. One woman reported bids of $300. It appears that members are getting three to five dates per month, though it’s not clear if those are actual dates or unlocked email communications seeking dates. But even a cautious estimate of two dates per month for 50,000 members for $138 per date generates $3,312 of annual gross income per member and $165,600,000 of gross income. The income might not be much when compared to the off-shore tax shelters of wealthy individuals and corporations, but often is said, “Every little bit helps.” There’s probably $10 million of sales tax revenue lurking in these transactions.

Will the IRS and state revenue departments chase after these monies? Probably, if nothing else but for the fun of auditing transactions far more entertaining than checking on cost of goods sold calculations, home office deductions, or medical expense deductions. I do think, though, that I and my students will have at least as much fun, if not more, when we get to the fifth or sixth tax class of the fall semester. As I and my colleagues frequently tell them, “We don’t need to make up this stuff.”

EDIT: A former student who now teaches as an adjunct in the Graduate Tax Program emailed me to let me know that he, too, thought about the tax issue and looming IRS audits. So I'll amend the "Perhaps I am the only one . . ." to read "Perhaps I and a few others were the only ones . . ." I wonder how many other former students have "TAX ISSUE!" screaming in their heads when they read or see things. Hopefully I'll hear from so many graduates that I need to amend yet again, along the lines of "Perhaps I and an ever-growing number of tax-educated people are the only ones . . ."

As I pointed out in the update to The Broccoli and Brussel Sprouts of Taxation, Philadelphia City Council last week opted for an increase in the real property tax rather than the enactment of a tax on sugary beverages. In How Mayor Nutter’s Soda-Tax Proposal Lost Out to Property Tax, Philadelphia Daily News writers Catherine Lucey and Jan Ransom explore the impact of politics on tax policy debates. According to the article, when Council met, it appeared that neither tax proposal had the necessary nine votes. Allegations that the mayor’s team made promises for support and threats for opponents were neither confirmed nor denied. By early afternoon, nine votes were lined up for the so-called soda tax. One member of council explained that he left the negotiations momentarily, and when he returned, the ninth vote had disappeared. It seems that the lobbyists working against the soda tax had managed to persuade someone not to go forward with an affirmative vote. In the meantime, another member of Council opted to support the property tax rather than the soda tax, but on condition that one of the property tax advocates on Council vote for a sick leave ordinance that has absolutely nothing to do with the tax issue. The Mayor then pressed for a real property tax hike that would raise more revenue than the soda tax would have raised, but Council rejected that demand. Is it any wonder that municipal tax policy is a mess?

The disconnect between careful analysis of a tax proposal and the realities of how legislators, and those pushing them to act one way or another, is no more evident than in the post-defeat lamentation and promised resurfacing of the soda tax proposal by Jeff Gelles. In Consumer 11.0: The Soda Tax’s Time Will Come, Gelles predicts that the soda tax eventually will be enacted, despite opposition from soda manufacturers, distributors, retailers, and truck drivers, because “it makes too much sense for the rest of us.” To his credit, Gelles addresses two questions that I have been asking throughout my series of soda tax postings (What Sort of Tax?, The Return of the Soda Tax Proposal, Tax As a Hate Crime?, Yes for The Proposed User Fee, No for the Proposed Tax, Philadelphia Soda Tax Proposal Shelved, But Will It Return?, Taxing Symptoms Rather Than Problems, It’s Back! The Philadelphia Soda Tax Proposal Returns, The Broccoli and Brussel Sprouts of Taxation), namely, why tax sugary beverages and not other items containing sugar, and why focus on sugar and ignore other ingredients that can be unhealthy?

Gelles likens “Big Soda” to “Big Tobacco” in his attempt to classify soda as a pernicious item. He cites a Yale University researcher whose target of “high-calorie, low-nutrition foods” has been twisted into a campaign against one specific type of such items. This researcher claims “[Soft drinks are] completely empty calories. I mean, even a Twinkie has some nutrition.” Gelles claims that research “suggests . . . that people’s bodies react differently to calories consumed in sweetened drinks than in food [because l]ess sated by the sugary liquids than by solid food, they are more likely to consumer additional calories beyond their basic needs.” Gelles lumps soda with “pollution and tobacco” as “externalities” that should be taxed to reduce “public harm that everybody must pay for.” Gelles quotes a University of Pennsylvania economist for the proposition that sugary drinks “imposes costs that we all may have to pick up” and that “it’s very likely that your future self would prefer that the government impose taxes to prevent your young dumb self from destroying the body that your future self will inherit, the same way that my future self would want higher cigarette taxes to prevent my current self from destroying my lungs.”

The problem with these attempted explanations for why sugary beverages are singled out in the “we need revenue, let’s tax something” version of the defeated proposal is that they rest on erroneous factual assumptions, conflate information, and ignore reality. First, though moderate and sensible use of sugar does not trigger obesity and other illnesses, there is no such thing as moderate use of tobacco because any use of tobacco ramps up the risk of cancer and other disease. Second, sugar is not the only substance that, consumed excessively, causes health problems. Excessive intake of fat, for example, is just as dangerous, if not more so. Even water can be deadly, as evidenced by people who have died in foolish water drinking contests. Where is the logic behind “Sugar is bad, tax it, fat is bad, don’t tax it”? The notion that people will take in more sugar drinking soda because soda is not filling ignores the fact that gulping down a huge amount of liquids will leave a person with less stomach room, and less desire, to take in food. Does it make sense to encourage the ingestion of Twinkies rather than soda because it’s better to fill the stomach with sugar and fat? Finally, the notion that cigarette taxes has cut smoking is debatable, particularly with respect to tobacco use among younger people, who supposedly are the targets of the “tax will teach you a lesson” proponents.

From a health perspective, the target needs to be the items originally indicted by the Yale researcher, namely, high-calorie, low-nutrition substances. The issue isn’t so much the item, other than the true poisons such as nicotine and trans-fats, but the quantities being consumed. Even low-calorie, high-nutrition foods can be dangerous if consumed in excess. The focus on soda, intense as it is on the part of the soda tax advocates, suggests something more is at work. I wonder if we would be seeing “donut tax” proposals offered with the same zealousness had it been donut manufacturers who tossed money at school boards to install vending machines in the schools. I wonder.

All of this suggests that what people have learned in civics classes – few and far between as they are – about how legislation gets enacted is woefully inadequate. Legislation, including tax legislation, is far more influenced by back-room deals, promises, threats, and proliferation of overhyped allegations than it is by careful analysis, research, and thorough consideration of the bigger picture and long-term consequences. I could mention the sausage factory, but I won’t. It might just give someone an idea of something else to tax.

The latest issue of the IRS Statistics of Income Bulletin (Vol. 30, No. 4) has some interesting information that suggests the deep flaws in the income tax system now in place. For 2008, the latest year for which the information is available, there were 4,375,660 individual income tax returns with adjusted gross income of $200,000 or more. According to the IRS, there were 4,416,986 returns with expanded income of $200,000 or more. One problem with this information is that because expanded income is measured by adding to adjusted gross income items of income discernible from the return, it does not include the gross income or excluded income not revealed by the return. So the analysis is limited to what is available.

Of the 4,375,660 returns with adjusted gross income of $200,000 or more, 18,783 reported no U.S. income tax liability. That’s a significant increase from 2007, when 10,465 out of 4,535,623 returns with adjusted gross income of $200,000 or more reported no U.S. income tax liability. What does this mean?

For there to be no U.S. income tax liability, the taxpayer either has deductions exceeding adjusted gross income or credits exceeding tax liability computed on taxable income. Though individuals paying income taxes to foreign countries can “wipe out” their U.S. income tax liability, 10,824 of the 4,375,660 returns with adjusted gross income of $200,000 or more reported no income tax liability to any nation, period. The corresponding number in 2007 was 4,841.

The IRS does not disclose the specifics of what causes the zero tax liability. The IRS provides some general explanations of how a taxpayer can have zero tax liability, and presents some information showing what sorts of deductions are claimed on these returns, but that data does not answer the question. Nor do the combined tables help, because they don’t pinpoint what deductions or credits are wiping out taxable income or tax liability on specific returns. The “largest effect” tables also don’t provide a clear answer.

It does appear that for returns showing tax liability to other nations, the foreign tax credit is the most significant reason for the reduction of U.S. income tax liability to zero. The individuals filing those tax returns are paying income taxes, just not to the U.S. On the other hand, individuals not paying income taxes to any nation aren’t claiming the foreign tax credit. Other things are the cause. Huge unreimbursed casualty losses are a possibility, but how many can there be? Because charitable contribution deductions are limited, those cannot account for zero taxable income. Is it a consequence of one or more of the dozens and dozens of credits? If so, are the credits being claimed by the individuals and for the activities that Congress intended? Knowing how badly the first-time homebuyer credit worked out, is there a possibility that other credits similarly are abused?

A simpler income tax also can be a more transparent tax. The fewer gimmicks, loopholes, special provisions, and other warps in the system, the less likely that two people in the same situation end up paying different amounts of federal income tax. Complexity provides a shadow in which too much tax avoidance can hide.

Last week, in It’s Back! The Philadelphia Soda Tax Proposal Returns, I included, among the many reasons the proposed Philadelphia soda tax misses the mark, the fact that it would not apply to all sugary products but only to beverages. Earlier this week, according to Joseph N. DiStefano’s PhillyDeals column in the Philadelphia Inquirer, beverage entrepreneur Harold Honickman made the same point. It’s not that Honickman opposes taxes, or even opposes paying a tax. What he wants is fairness. He commented, “I think there should be a sugar tax in the whole city. Why isn't ice cream, cookies, candy part of this?” Indeed. Why soda and not other items? A caterer interviewed by DiStefano explained that from servicing high school proms all over the metropolitan area, he has observed that soda drinking is rampant among public school children, whereas private school students, having been educated about the adverse effects of excessive soda drinking, frequently ask for water. Though it’s doubtful that the city’s mayor intended to work the apparent class difference into his proposal, the soda tax would have such an effect. As Honickman put it, “The rich have better choices.” No kidding.

In an editorial the other day, Jonathan Saidel made the same point. Calling the proposed tax discriminatory, he notes, “Taxing these particular products and this particular industry, while exempting many other products containing high levels of sugar or other potentially unhealthy ingredients, would be simply unfair.” Saidel also suggests that the tax would cause job losses and encourage black market activity. In another twist that had not crossed my mind, he also suggests that some or many city retailers would tax all beverages, even those not containing sugar, “to simplify their bookkeeping.”

In related news, a member of City Council declared the soda tax proposal “dead on arrival.” At least six members of the 17-person Council have expressed complete opposition to the idea. Although they may have been influenced by the anti-soda-tax rally outside City Hall, they had announced their opposition long before the rally.

I wonder whether the mayor re-floated the soda tax idea to provide a backdrop against which to set his proposed real property tax increase. If City Council decides to increase real property taxes – and signs are that it dislikes that idea no less than it dislikes the soda tax – the mayor can respond to complaints by claiming that he had offered a soda tax option that Council refused and thus it isn’t his fault that real property taxes were raised. Perhaps the mayor belongs to the school of parenting that thinks a good way to get children to eat broccoli is to offer them brussel sprouts.

UPDATE: Philadelphia City Council again rejected the soda tax, opting for an almost 4 percent increase in the real property tax. The blame-shifting and finger-pointing is inevitable.

More than two years ago, in Just Because It Didn’t Work the First 50 Times Doesn’t Mean It Will Work Next Time, I criticized the revival of section 168(k) bonus depreciation and the expansion of section 179 first-year expensing. I argued that these changes to the tax law don’t help restore vitality to the American economy. I wrote:

Does it make sense to increase deductions for acquisitions of equipment? How does that restore confidence in the economy, which is essential to putting the nation back on track. How does a tax provision that encourages businesses to use their limited funds to buy machinery put people in this country back to work? Nothing in the provision requires that the property be built in the United States, and it's almost certain that such a requirement would violate at least a few trade agreements and treaties. What's the point of enacting tax breaks that create jobs in other nations? Dollar-for-dollar, a tax break for creating jobs directly is worth much more than a tax break for purchasing equipment.

Almost a year ago, in If At First It Doesn’t Work, Try, Try, Try Again, I criticized the Obama Administration** for proposing a change in the tax law that would permit taxpayers to deduct the full cost of asset acquisitions made in 2011. I noted:

Such is the life of one of the business world’s favorite tax breaks. Entrepreneurs salivate at the idea of getting a deduction for making an investment. The idea of getting a tax break for swapping cash for equipment of equal value is the sort of thing that makes lower-income taxpayers roil, because they don’t have the opportunity to get, in effect, cash flow from the government in the form of lower taxes by swapping cash for equipment of equal value.

I then asked:

The previous incarnation of section 168(k) “bonus depreciation” as well as continual expansion of section 179 expensing have been consistently hailed as solutions to the nation’s economic woes of the moment. Yet no evidence exists that these tax giveaways have had the claimed effect. Why is it, for example, that during 2008 and 2009, while businesses basked in the benefit of 50-percent bonus depreciation, the economy got worse, not better? Where are all the jobs whose creation was promised when the proposal for the 2008 and 2009 tax break was being trumpeted as the answer? Where is the economic recovery that supposedly was an inescapable consequence of enacting those tax breaks? Similar questions can be asked about the long parade of tax breaks for business investments during the past 50 years. Though the economy doesn’t benefit, though economic fundamentals do not improve, though joblessness doesn’t abate, something fuels the repetitive re-enactment of this bundle of tax breaks. Could it be that it’s good for business? Could it be that what’s good for business isn’t necessarily good for those in need, especially if the funds generated by the tax break go the same way as the excess cash that businesses have been accumulating during the past year and a half, namely, somewhere other than the economy?

Last December, in When the Bonus Depreciation Tax Deduction is Not a Bonus for the Economy, I concluded:

This expansion of section 168(k) bonus depreciation is touted as yet another essential piece to putting the economy back on track, which is pretty much the equivalent of asserting police departments would be improved if they hired and gave guns and badges to convicted felons. This approach hasn’t worked in the past, and it won’t work now. It’s yet another unnecessary concession to those holding lower-income and middle-income citizens hostage.

Now comes an interesting report that explains why companies awash in cash are spending, when they choose to spend, on equipment but not people. We are told that equipment “is getting cheaper” and workers “are getting more expensive.” We are told that in order to compete with China and other countries providing cheap labor, processes need to be automated. Using equipment rather than people is efficient, because the economy “is producing as much as it was before the downturn, but with seven million fewer jobs.” Machines, we are told, don’t need to be trained, whereas people require training and clearances that cost money and the time of more experienced existing employees. Business spending for workers has grown 2 percent, whereas spending on equipment and software has grown 26 percent. The article then points out that tax incentives to make equipment and software purchases makes it likely that this trend will continue. The article confirms another complaint that I previously voiced. We are told that “much of the equipment used to replace American workers is made by workers abroad.” None of this is good news for the unemployed and the underemployed.

After reading the article, it occurred to me that there is something more than the tax subsidy that helps tilt the equation even more in favor of equipment investment. The tax law process also encourages businesses to prefer asset acquisition over employee hiring. Although there have been several employment credits put into the tax law, companies are reluctant to hire because employment involves a different sort of commitment. A tax break that encourages the purchase of a piece of machinery does its job in the year the machinery is acquired. The business no longer worries about the effect of future tax law changes on its decision. In contrast, a tax break that encourages hiring encourages the employer to make a long-term commitment, and if the tax break is repealed or adversely modified, the employer can find itself out on a limb. Compounding the problem is a concern that the article mentions in passing, namely the “uncertain future costs of health care and other benefits,” which, I hasten to point out, are regulated in part through the tax law. Making the tax break permanent would alleviate this problem, but Congress refuses to do that because it removes the opportunity to solicit funds from lobbyists as the tax break reaches its expiration date. As I noted in Congressional Mis-delegation Endangers Tax Collections, “Most of the tax breaks come with expiration dates, most of which are annually extended by a Congress that can hold the extension hostage to the vote collection process. There’s much more leverage available to a legislator when a tax break is on the verge of expiring than there is when a tax break is permanent.”

Business leaders explain that workers seeking new jobs require retraining, but that it is difficult to accomplish this in the short term. Job applicants lack the “right skill sets to work in modern manufacturing.” They are, according to one business owner, “deficient in computer, mathematics, science and accounting skills.” That’s no surprise to me, nor to anyone else who has been questioning the course and major selections of college students and the scope of high school education. When the same business owner claims, “It seems as if technology has evolved faster than people,” he misstates the case. The problem is that technology has evolved faster than has the education system.

Here is what needs to be done. First, as I suggested in When the Bonus Depreciation Tax Deduction is Not a Bonus for the Economy, section 168(k) bonus depreciation and expanded section 179 first-year expensing should be limited to the excess of the taxpayer’s business equipment expenditures for the current year over the average of the taxpayer’s business equipment expenditures for the three previous years. That rewards business expansion rather than mere continuation. Second, the deduction should be limited to purchases of equipment produced in the United States by American workers. Third, the deduction should be available for American-manufactured equipment acquired by domestic taxpayers and put into service overseas. Fourth, Congress needs to enact a non-expiring credit based on the excess of the taxpayer’s inflation-adjusted current year domestic payroll for employees earning less than the cut-off for the highest income tax bracket over the average of that amount for the previous three years. Fifth, Congress needs to tailor education loans, including issuance and repayment terms, so that they favor students who enroll in, and earn above-average grades in, the majors and courses teaching the skills that are needed in the American workforce, provided those students remain employed for at least ten years in positions that make use of that education.

Though the preference for investment in equipment rather than workers comes across as a short-term problem, it is a long-term issue and a pending permanent disaster for the economy. In many ways it is not so much a problem but a symptom of a deeper flaw. What Congress has done with the tax law, though perhaps good for Congressional campaign fund-raising, undermines the health of the nation. Not only does the tax law need to be fixed as I’ve suggested, the process by which it is changed needs to be altered. It is time for a cultural revolution in the Congress, a reform whose necessity is reflected not only by the tax law mess but by the other Congressional nonsense that has been gathering so much attention during the past two weeks.

**Something that should be noted carefully by those who suggest that my tax policy positions are one-sided. When it comes to criticizing flaws in the tax law, I am quite generous, and party affiliation protects no one from my remonstrances.

At least thousands of persons were startled last week to learn that the organizations with which they are affiliated in some manner had lost their federal tax-exempt status. In many instances, because state tax law mirrors federal tax law in this respect, they also lost state tax-exempt status. The IRS press release explains that 275,000 organizations became taxable entities because they failed to file legally required annual reports for three consecutive years. It is likely, according to the IRS, that many or most of these organizations went out of business, so to speak, long ago. The list of organizations losing their exempt status is here. According to this Philadelphia Inquirer story, one of the tax-exempt organizations to lose its status is the Philadelphia Housing Authority Development Corporation, an affiliate of the Philadelphia Housing Authority that has been riddled with all sorts of problems. Apparently those responsible for filing the returns concluded that the entity was not required to do so.

In 2006, Congress enacted legislation requiring tax-exempt organizations to file annual information returns. Previously, smaller organizations were not required to do so. The new law also provided that failure to file for three years in a row automatically revokes tax-exempt status. Fortunately, the IRS has instituted a procedure that can be used to reinstate tax-exempt status. The IRS has invested time, money, and other resources trying to make tax-exempt organizations aware of the change in the law. It sent more than 1,000,000 notices to organizations that had not filed, published a list of those at risk of losing tax-exempt status, extended the deadlines by five months, and set up transition relief for very small tax-exempt organizations, including a reduction of the $850 or $400 filing fee to $100.

What’s interesting is the reaction of at least one person connected with an organization that lost its tax-exempt status. According to another Philadelphia Inquirer article, the vice president and treasurer of one such organization stated, “I guess they want more paper so they can keep themselves busy.” He explained that his organization was properly registered with the state’s Bureau of Charitable Organizations, but that he was not aware of the federal return filing requirement. He intends to file what needs to be done to be reinstated as a tax-exempt organization, noting, “I’m sure they’ll need to hire five more people to read it.”

This outlook suggest that the IRS is not busy, is looking for work, and yet needs to hire more people to do that work. Aside from the internal inconsistency, the comments reflect a misunderstanding of what happened. The Congress decided that information filing for tax-exempt organizations should include those previously excluded from the requirement, because too many organizations not required to file were taking advantage of that lack of oversight to abuse the system. Surely the IRS, already overburdened with tax and social program administration, was not looking for more work. It was the Congress, not the IRS, that enacted the law imposing automatic revocation on organizations failing to meet their filing obligations.

So long as people view the IRS as the source of all that is wrong with taxation and the tax system, or the cause of anything they dislike about tax law and tax enforcement, and overlook the responsibility of the Congress for the tax law, tax policy, and tax administration deficiencies afflicting the nation, the problems will not be solved. Once people understand what Congress has done and is doing, there may be increasing numbers of incumbents who fail to be re-elected. But until Congress understands what Congress should be doing, replacement of incumbents by newcomers who continue the bad habits of Congress will continue unabated.

According to this BNA Daily Tax Report story, National Taxpayer Advocate Nina Olson declared that the first-time homebuyer credit should never have been part of the Internal Revenue Code. She criticized the credit not so much because it is a social program operated through the tax code, but because it missed its mark. A person who purchases a home in year one only to wait until year 2 to claim the credit on the return isn’t being helped in terms of cash flow. Converting the credit from a loan into a outright credit partway through the process didn’t help matters. Worse, with three different versions, the credit became confusing, and its administration was, to use Olson’s words, “a nightmare.” The IRS rejected returns from taxpayers in 22 states because those states do not use HUD settlement statements, which the IRS required taxpayers to provide as proof of the home purchase. Hundreds of thousands of returns were frozen when taxpayers who had claimed the earlier loan version of the credit tried to make the required repayments. Stories about prisoners claiming the credit abound. This story is just one of hundreds.

Olson proposed that the “simple solution” is a HUD-directed spending program. For years, I have been advocating leaving social welfare spending out of the Internal Revenue Code and sparing the IRS the task of doing other agencies’ work. Most recently, in Congressional Mis-delegation Endangers Tax Collections and The Problem with Income Tax Vehicle Credits, I criticized the Congress for burdening the IRS with administration of all sorts of programs that ought to be handled by the federal agencies charged with oversight of those sorts of programs. I noted that The IRS Oversight Board Annual Report to Congress 2010 corroborated my position. Now the National Taxpayer Advocate has joined in the criticism.

So why does Congress continue to put non-tax programs into the tax law? Olson pointed out one of the factors. A spending program administered by an agency other than the IRS is “scored against the budget,” that is, it is characterized as spending. On the other hand, by hiding the spending as a tax reduction in the form of a tax credit or tax deduction, the Congress makes no less of an increase in the federal budget deficit but can claim that it has not increased spending. Until people understand that a $100 tax credit issued to ten million taxpayers is no different, for federal budget purposes, than the writing of ten million $100 checks, the nation’s attempt to get its fiscal house in order is doomed. Worse, by distracting the IRS with additional program responsibilities without increasing its funding, Congress forces the IRS to divert resources from its primary mission, namely, protecting the revenue.

Members of Congress have figured out that if they enact legislation granting $3 billion to a pet project, they risk taking heat for bestowing taxpayer dollars on a special interest. They have also learned that if they jam a tax credit into the Internal Revenue Code that reduces the tax liability of the taxpayers operating that pet project, not only is the give-away not treated as federal spending, it is also much more likely that no one will notice. But a few of us do, and my hope and goal is to cause most of us to notice. Perhaps then the betrayal will be sufficiently visible to bring about the electoral upheaval that betrayal should bring.