MauledAgain

For as long as I have been teaching, students in my tax classes have been amused or frustrated by the frequency with which “it depends” surfaces as the answer to a question. Of course, many of the questions are designed to elicit responses to the follow-up question, “on what?” and to develop student’s fact-finding skills. Tax practitioners well know that some of the questions are simply the consequence of badly drafted tax laws that leave the answer up in the air until resolution arrives through subsequent legislation, a regulation, a ruling, or a judicial opinion.

Thus, it is not surprising that many statements about tax law begin with the ubiquitous “Generally,” or its variation, “In general.” It’s a rather obvious way of hedging one’s answer against the unknown exception. Unfortunately, in a world demanding absolute answers to questions within microseconds, any suggestion of a hedge earns demerits. In turn, absolute assertions spring up. This is true, and quite a problem, not only in the tax world, but for the moment, the focus is on tax.

Last week I received an email that contained a tax analysis that was replete with absolute statements. Though many were correct, two were wrong. The discussion, which can be found here, focused on the tax consequences of a project funding effort called Kickstarter. People in need of funds for a project, called creators, submit details of the project to Kickstarter, and if Kickstarter things it is worthwhile, the project and its details are posted on the Kickstarter web site. This permits anyone who likes the idea to “donate” money to help the project raise funds, and thus to become a backer. The creator submits a financial goal, and if the “donations” are sufficient the funds go to the creator, minus a 5 percent fee for Kickstarter. If insufficient funds are raised, the funds are returned and the creator gets nothing. If the project moves forward, backers “are rewarded with something in return, ranging from the backer’s name on a list of contributors, to a tee shirt, to a DVD of the documentary, to an invitation to the initial performance, to a signed photo of the work in progress by a famous photographer.”

Under the caption “What’s the tax angle?,” the description of Kickstarter provided the following propositions:

1. “Backers are not donating money in the way one donates to a charity. The money someone gives toward a project is just that, a gift. The gift is not deductible on the donor’s tax return. There is an exception: If the project is classified as a 501(c)(3) not-for-profit organization then the donation is a personal — not business — charitable deduction on the donor’s tax return.”

2. “The value of these rewards [the tee shirt, the DVD, etc.] are not taxable to the donor.

3. “The cost of the rewards is a business expense for the creators.”

4. Creators will be sent a 1099-k at year-end from Kickstarter. The money the [creator] receives is taxable income. It is included as part of business gross income.”

I take exception to the claim that the amounts contributed by backers are gifts. In some instances they are. But to the extent the backer receives something in return, the money, or at least part of it, is not a gift, but the purchase price of the item received by the backer. The word “generally” would have allowed room for this aspect of the transaction.

I also take exception to the claim that the value of the rewards are not taxable to the donor. Under some circumstances, and it depends on the language of the contract and the specific arrangements into which the parties have entered, gross income can be generated if the value of what is received exceeds the amount that has been paid. This is unlikely to happen other than in rare circumstances, but it is another instance for use of the word “generally.” It is tempting to think that if the circumstances are so rare it is acceptable to dismiss them as though they did not exist. Yet the tax law, as is the case with other areas of law and other disciplines, is highlighted by situations thought to be quite rare but which were very real to the people who experienced them.

And although Kickstarter explains that backers do not obtain ownership interests in projects, it is only a matter of time before a creator gets creative. Trying to summarize the tax consequences of establishing an ownership interest in an enterprise without using the word “generally” is, generally speaking, quite a challenge.

From a tax perspective, there’s a little something to be said about the value of those television court shows. Twenty months ago, in Judge Judy and Tax Law and Judge Judy and Tax Law Part II, I shared my reaction to several tax propositions that were articulated on Judge Judy’s version of television court. In the second post, I asked, “I wonder what sort of impact on the viewers this episode has made. Has it taught people that it doesn’t pay to commit tax fraud, . . .” Apparently the answer is no.

Last week, I found myself watching an episode of People’s Court. The facts were fairly simple. The plaintiff had purchased a used car from a used car dealer. For some reason, he did not test drive the car, nor did he take it to a mechanic for a pre-purchase examination. He admitted that he had made “a lot of mistakes.” Of course, the car turned out to be a clunker, so the plaintiff sued to get his money back. Judge Marilyn Milian asked for proof of how much he had paid. She asked for the bill of sale. The response? There is no bill of sale. The dealer noted that the price was $500. The plaintiff disagreed, claiming that the $500 was the price the dealer agreed to put down in order to save the plaintiff from paying sales taxes on the much higher amount that the plaintiff claimed to have paid. The judge asked, “And that was the dealer’s idea?” Of course, the plaintiff began to squirm. The judge then observed, “You know that is tax cheating, right?” She then remarked, rather sarcastically, that she likes the cases when someone sues for the actual purchase price even when there is a bill of sale that has a fabricated lower price designed to reduce the purchaser’s sales tax.

While trying to find a transcript of the episode – I failed – I discovered that a similar situation had arisen in at least two earlier episodes. One of those episodes was noted in TV Judge Gets Tax Observation Correct. In the other case, the dealer left blank the space for filling in the purchase price so that the purchaser could fill in a lower number for sales tax purposes. The parties in the more recent case either did not watch the earlier episode or, if they did, figured they were special enough to pull off the stunt without being caught. Judge Milian apparently does get more than a few of these sorts of cases.

I wonder if the revenue department for the states in which these transactions took place followed through with an audit. Is it any wonder that governments face revenue shortfalls?

It wasn’t that long ago that in Sometimes When It Comes to Tax Violations, Voters Get It Right, I asked, “What’s going on in the heads of people who think they can escape responsibility? Perhaps it reflects the tax fraud defense offered in Browning v. Comr., T. C. Memo 2011-261. In that case the taxpayer explained, 'I]t’s like running a red light or going the speed limit. You do things you shouldn’t while you can.' ” Every which way one turns, someone is trying to rip off someone else, whether it is society at large, individual consumers, voters, property owners, or some random victim. Using lies, scams, con games, fake smiles, fancy words, and every other tool known to the deceiver, these perpetrators are growing in numbers and in boldness. It’s no wonder, as it reflects the example being set by persons in position of authority, in both the public and private sector, and in for-profit and not-for-profit organizations. The tax fraud epidemic is part of a larger fraud pandemic that threatens more than the dollars purloined or the people victimized. It threatens to turn the nation into a den of thieves.

At the end of July, voters in Georgia had the opportunity to approve or reject, through a referendum, a one percent increase in the state sales tax to fund highway and transit improvements. For purposes of the vote, the state was divided into twelve regions, with each region having a list of improvements for that region. Presumably, one purpose of arranging the voting in this manner was to avoid the not uncommon, and frequently criticized, pattern found in many states of transportation taxes in one region being used for improvements in another region.

According to this report, voters in nine of the 12 regions rejected the tax increase. The discussion leading up to the vote generated some strange alliances and divisions. Business owners who usually support anti-tax Republicans supported the tax, whereas the so-called Tea Party, not surprisingly, opposed it. Some Democrats opposed the proposal because the project lists did not, in their view, include sufficient spending in African-American communities.

Reasons for the failure of the proposal in the Atlanta area are as varied as the voters. According to this report, some voters rejected the proposal because they don’t trust the government. Others voted no because they perceived that they would not benefit individually, or would benefit less than people in other areas of the region. Mass transit supporters voted no because some of the funds would benefit car drivers. Still others voted no because the project list included mass transit expansion, with almost one-half of those polled explaining that mass transit causes increases in crime.

There is no question that there are traffic and transit problems in Georgia, particularly in the Atlanta area. Some predict that with traffic woes becoming an impediment to business growth, “valuable young workers” and jobs would leave the region. As one supporter of the tax noted, when employers consider where to locate new jobs, traffic is a major factor in the analysis. So unless and until the voters of Georgia unite behind some sort of funding plan, congestion will increase, highways and bridges will continue to deteriorate, accidents and fatalities will rise, and front-end alignment spending will skyrocket past the small amounts that would have been paid if the proposal had been enacted. The business owners who supported the tax, despite their alleged anti-tax outlook, understood that the tax in question was a cost of maintaining and expanding the transportation resources necessary for their enterprises to thrive and grow. The inability of most people to understand the issue is reflected by the statement made by an opponent of highway funding increases in Texas, as shared in this report. “We don't want more taxes, especially to use roads we've already paid for with tax money.” The problem is that there are two aspects of paying for roads. One is to pay for construction of the highway. The other is to pay for the maintenance and repair of the highway. When teenagers begin to talk about purchasing a car, sensible parents explain to them that the cost of the car is more than the purchase price because they need to take into account fuel, insurance, and repairs. Similar advice is given to those seeking to purchase a home if they are fortunate enough to be exposed to wisdom, as the cost of a home includes not only the purchase price but utilities, insurance, maintenance, and repairs. The long-term effects of failing to teach financial common sense in the nation’s school systems is now threatening the well-being of the country’s physical infrastructure.

Regular readers can easily guess what went through my mind when I picked up the Philadelphia Inquirer and saw this report. Apparently Nadya Suleman, better known as Octomom, joined an online dating service that permits users to pay other users to go on a date. Users bid for the privilege of going out with someone, and Nadya has put the opening bid at $500.

Regular readers will remember that a little more than a year ago, in The Tax Consequences of Being Paid to Date, I addressed the income tax consequences, and touched lightly on the sales tax consequences, of transactions undertaken through that web site. Yes, it’s still in business. I concluded that the amount received by the person being paid to go on the date is gross income. I explained that it is not a gift, and that it is paid in exchange for the person’s time in the same manner as a psychologist, plumber, or painter has gross income when paid for his or her time, making it compensation for services provided.

When Paul Caron picked up my post on TaxProf Blog, 23 comments were left by his readers. Some agreed it was gross income. Several argued that there was no profit, after taking into account the expenses of “prepping” for the date, but that doesn’t eliminate the status of the fee as gross income nor, turning to another aspect of the question, the requirement that it be reported. There also is some question about the wisdom of assuming that the prepping expenses are deductible, as many people are obligated to “look nice” for their jobs but that doesn’t transform their commuting, attire, or hair care expenses into deductions. Some of the more interesting comments highlighted practical concerns, such as the question, “How would the taxman know you got pay for your dates?” It is true, as someone else noted, that the income tax “‘really’ invades privacy.” Indeed it does, as I explain to my basic tax students every fall. I challenge them at the beginning of the course to be prepared to answer at the end of the semester the following question, “What aspect of your life is not affected by the income tax law?”

Some of those who commented expressed the opinion, shared by the writer of the most recent Philadelphia Inquirer report that the transactions are nothing more than escort services or prostitution arrangements. If that is so, the amounts received unquestionably are gross income. Yes, there are cases addressing this issue. As I noted in The Tax Consequences of Being Paid to Date, I did not go to the site in question. One of those commenting on Paul’s TaxProf Blog post, a person by the name of “anon,” wrote, “That site is terrible. I joined it yesterday and deleted my account only 1 hour later.” I have no intention of replicating anon’s research.

The Philadelphia Inquirer story that triggered last year’s post, The Tax Consequences of Being Paid to Date, revealed that the site in question has 50,000 members, and receives bids averaging $138. With that level of activity, surely it’s just a matter of time before one of these transaction ends up as the subject of a Tax Court or district court opinion.

Indeed, sometimes voters get it right but too often it takes way too long. This was demonstrated recently in the case of Philip Lewis Hart, a member of the Idaho legislature. Hart by profession is a structural engineer, he happens to think that the federal income tax is unconstitutional, and he has written a book explaining his position. He has fared no better in court than have any of the other tax protestors who make the same worn-out, illogical, misguided, and warped arguments. See, e.g., Hart v. Comr., T. C. Memo 2000-78.

Several months ago, with his tax debts heading north of half a million dollars, Hart filed for bankruptcy. According to this story, Hart also owes money to a law firm and is fighting a U.S. Justice Department attempt to foreclose on his home. According to another story, Hart has proposed to pay $12,000 over a five-year period to settle $600,000 of debt. One wonders if Hart noticed the absurd deal worked out for Ford T. Johnson, which I noted and criticized in From Tax Until Eternity. Johnson had complained about a deal permitting him to pay off a $2.5 million debt in $400 monthly installments.

What’s going on in the heads of people who think they can escape responsibility? Perhaps it reflects the tax fraud defense offered in Browning v. Comr., T. C. Memo 2011-261. In that case the taxpayer explained, “[I]t’s like running a red light or going the speed limit. You do things you shouldn’t while you can.” According to this story, the house that Hart is trying to save from foreclosure “was built in part with logs he illegally harvested from state school endowment land.” Despite his claim that citizens are permitted to take the logs for free, he repeatedly lost his appeals but never paid off the judgment. Some people interpret “freedom” and “rights” as licenses to do whatever they want, whenever they want, with no regard for the freedom or rights of anyone else.

Somehow, Hart got himself elected to the Idaho legislature and was re-elected three times. It’s unclear whether voters knew about his log acquisitions and his tax return behavior. Surely some of them did, but perhaps those who did were the ones who voted for the other candidate. Eventually, to avoid ethics sanctions, he stepped down from the Idaho House tax committee. But the good news is that several weeks ago he lost in the GOP primary and will not be serving a fifth term. Enough voters opened their eyes and ears, and used their brains. Why it took so long is unclear.

Suppose for a moment that the Bush tax cuts are extended for taxpayers with taxable income of less than, say, $250,000. Is it possible for taxpayers with taxable incomes of $250,000 or more to avoid the resulting increase in their tax liabilities? Of course. If they hire people to do work that is connected to the trades and businesses that they operate and the for-profit activities in which they engage, their taxable incomes will decrease because of the deduction for the salaries that they pay. Every taxpayer with a taxable income of $250,000 or more has the ability to bring their taxable income to less than $250,000 through lawful means. If they hire and spend wisely, they obtain full value for what they pay, so their wealth position is not compromised. In the meantime, their new employees will be paying taxes on their newly acquired incomes, permitting those new employees in turn to purchase goods and services. The section 162 compensation deduction is not the only existing incentive to help people reduce their tax liabilities by reducing taxable income. Perhaps the problem is that much of what those with incomes of $250,000 or more want to do with their money doesn’t generate a tax incentive. I wonder why.

Recently, in Carlebach v. Comr., 139 T.C. No. 1 (July 19, 2012), the Tax Court upheld the validity of a regulation dealing with the definition of a dependent that illustrates why tax statutes are long. Had the statute been even longer, there would have been no justification whatsoever to challenge the regulation because there would have been no need for the regulation.

The issue was simple. The taxpayers claimed dependency exemption deductions for their children. In some of the years in question, none of the children were citizens of the United States. In other years, some of the children were citizens but others were not. The Court first addressed the taxpayers’ argument that their children were citizens during the years in question but rejected the argument. The Court then turned to the core tax question.

Section 152(b)(3)(A) provides that a dependent “does not include an individual who is not a citizen or national of the United States . . .” Regulations section 1.152-2(a)(1) provides that “to qualify as a dependent an individual must be a citizen or resident of the United States . . . at some time during the calendar year in which the taxable year of the taxpayer begins.” The taxpayers argued that the requirement in the regulations that their children be citizens during the calendar year in which the taxable year of the taxpayer begins is invalid. They rested their contention on the argument that Congress enacted a statute that did not include the calendar year time requirement. The taxpayers argued that it was sufficient that their children were citizens by the time they filed their returns, though the Court pointed out that the logic of the taxpayer’s argument was equivalent to a claim that a person qualified so long as they became a citizen by some point before the return was filed.

The taxpayers argued that because Congress included “during the calendar year” language in other parts of section 152, and omitted it from section 152(b)(3)(A), Congress did not intend for the latter provision to be interpreted as provided in the regulations. The Court, however, noted that the language of the Code must be examined in context, and that the annual accounting system inherent in the federal income tax, as explained by the Supreme Court in Healy v. Comr., 345 U.S. 278 (1953) makes it clear that the requirements for status of a dependent must be determined with respect to an annual period. Even if the statute could be construed as ambigous, the Court explained, the regulation is a reasonable intepretation. Though not determinative, the Court noted that the interpretation in the regulation has been in place since 1944.

Certainly, it would be easier if section 152(b)(3)(A) provided that a dependent “does not include an individual who is not a citizen or national of the United States . . . during the calendar year in which the taxable year of the taxpayer begins.” Doing so would make the Code even longer, to the distress of those who think the Code is too long as it is. The problem is that a simple concept, specifically, the dependency exemption deduction, is transformed into an increasingly complex Code provision, interpreted by even longer and more complicated regulations, as a defense against mis-interpretation and gaming, and in response to mis-interpretation and gaming. Even if the Code were significantly shortened by removal of all special interest provisions and all credits, exclusions, and deductions substituting as spending programs belonging to other agencies, the tax law would continue to be more than a grouping of simple concepts. It’s in the application that concepts, no matter how simple, become complicated.

It is not difficult to find professionals who advise, whether in person, on web sites, or otherwise, that tax records should be retained for three years. Some advisors suggest that tax returns should be kept for longer periods or even indefinitely, but that receipts and other supporting evidence can be shredded or trashed after three years. Too infrequently does the advice include a warning that receipts connected with basis determinations need to be kept for at least as long as the property is owned.

A recent Tax Court decision, Roberts v. Comr., T.C. Memo 2012-197, demonstrates the pitfalls of not retaining basis-related records. The taxpayer purchased a property in 1980 and sold it in 2005. The taxpayer testified that he paid $63,500 for the property and the IRS accepted this claim. The taxpayer also testified that he expended $75,000 for improvements to the property but offered no evidence other than what the court characterized as “vague self-serving testimony.” It’s very possible that the taxpayer made improvements of some amount, but because of the failure to retain and produce evidence, the taxpayer was taxed on gain that perhaps did not exist.

One of the interesting aspects of this case is that the taxpayer was an appellate lawyer. Worse, the taxpayer failed to file federal income tax returns for 2004 through 2007. Presumably the taxpayer attended law school. Perhaps the taxpayer took a basic tax course. Somewhere along the line the taxpayer should have learned about record retention, not only for tax purposes, but for other purposes as well. I know I make the record keeping point to my students. I wonder, though, if it sticks. In some instances, I’m sure it does. In others, unfortunately, it’s tossed almost as quickly as the records that taxpayers ought to be retaining.

Several readers requested an index to the series of posts on the federal Ready Return proposal. Here it is.

Federal Ready Return, Part One: Introduction

Federal Ready Return, Part Two: The Value of Self-Compliance

Federal Ready Return, Part Three: Income Tax Return Accuracy

Federal Ready Return, Part Four: The Persistence of the Tax Gap

Federal Ready Return, Part Five: Efficiency

Federal Ready Return, Part Six: Security Risks

Federal Ready Return, Part Seven: Taxpayer Acquiescence

Federal Ready Return, Part Eight: Burden on Business

Federal Ready Return, Part Nine: Economic Impact

Federal Ready Return, Part Ten: IRS Capacity

Federal Ready Return, Part Eleven: Conflict of Interest

Federal Ready Return, Part Twelve: Taxpayer Acceptance

Federal Ready Return, Part Thirteen: IRS Authority

Federal Ready Return, Part Fourteen: Conclusion

In the current atmosphere of anti-taxation sentiment, opposition to tax increases, and efforts to curtail government, it was surprising but very telling that the coach of the University of Alabama football team proposed, according to this story, that “one option to address the Penn State tragedy might be a ticket tax on athletic events and giving the proceeds to child-abuse funds.” Saban’s precise words, “Maybe they ought to tax all the tickets that they sell on athletics” clarifies that his proposal did not reach beyond Penn State ticket transactions. He surely was not suggesting that University of Alabama tickets, nor those of other schools, be taxed. To his credit, Saban admitted that his comments “had to do more with philosophy than a real recommendation,” which probably is why he “didn’t go into details of how a tax would be implemented.”

Details aside, Saban’s proposal is unsound. If the tax is paid by the ticket purchasers, it puts an economic burden on people who did not commit the crimes in question, and did not engage in the behavior that contributed to the wrongdoing. If the tax is paid by the University, it would ultimately be paid by some combination of students through tuition, alumni through contributions, and taxpayers through state grants. Again, its incidence would fall on the wrong people.

The economic cost of the crimes in question ought to fall on the perpetrators. The practical problem is that the combined economic cost, taking into account not only penalties of the sort Saban suggests but also the damages that surely are going to be awarded in the civil suits that are pending, far exceeds the economic resources of the perpetrators and those who are guilty through dereliction of duty and failed oversight. When someone worth $100 causes $1 million of damages, who pays? This nation too often cannot bring itself to impose economic penalties on wrongdoers who have more than adequate resources to compensate the victims of their bad decisions, so it’s even less likely that its justice system would, even if it could, require the perpetrators to pay for the impact of their decisions.

The Penn State situation requires solutions, but a tax on people not responsible for the crimes is not one of the answers.

The nation is not ready for federal Ready Return. Nor will it ever be, until and unless the federal income tax law is overhauled. Ready Return rests on the idea of government-computed tax bills, which works for taxes such as the real property tax or the sales tax. Those taxes, though not simple by any stretch of the imagination, are child’s play compared to the federal income tax.

There are all sorts of reasons to reject Ready Return. In its 2011 Report, the Electronic Tax Administration Advisory Committee provided its list:

little relief for taxpayers with complicated returns or business income, or low-income filers in complicated living arrangements; lack of an IRS computing infrastructure; absence of timely third-party information reports needed to pre-fill a return; need for considerable investment in technology and manpower; potential that a pre-filled return that omitted income, or misstated the return in a taxpayer’s favor could reduce tax compliance and collections; difficulty or impossibility of adapting Simple Return to address all the special credits for low-income households; and, finally, even with technological improvements, the inability for many taxpayers to prepare returns as soon after the close of the year as they currently file their returns in order to obtain their tax refunds.

To that list, I add the loss of civic virtue nourished by the self-compliance aspect of the income tax, ineffectiveness in reducing the tax gap, expanded risk of privacy loss and identity theft, increased burden on businesses, adverse impact on the economy, creation of conflict of interest problems for the IRS, and taxpayer rejection of the idea.

Ready Return is a classic example of a theory that cannot survive in a practical world. Like most theories, it deserved an experiment. It had that chance, not in a small laboratory, but in the nation’s most populous state. It failed. How many times has someone said, “I have a good idea,” no one had the courage to offend the person by explaining it was not a good idea, and the implementation led to all sorts of problems for unsuspecting “beneficiaries” of the outcome? Though in many instances the worst effect is inconvenience, sometimes the results can be far more serious. Fooling around with the nation’s primary source of revenue in this manner is unwise, unwarranted, and dangerous.

Ready Return is something that the IRS has authority to implement. Section 2004 of the Internal Revenue Service Restructuring and Reform Act of 1998 provides:

The Secretary of the Treasury or the Secretary’s delegate shall develop procedures for the implementation of a return-free tax system under which appropriate individuals would be permitted to comply with the Internal Revenue Code of 1986 without making the return required under section 6012 of such Code for taxable years beginning after 2007.

Nonetheless, as the debate about Ready Return has heated up, one member of Congress decided it was necessary to introduce a bill, H.R. 1069, expressly permitting the IRS to implement a limited Ready Return system. Another member of Congress, joined by several dozen other legislators, introduced a competing bill, H.R. 2528, which prohibits the IRS from doing so and repeals section 2004 of the 1998 legislation.

Few people pay attention to Ready Return. The 1998 legislative provision received very little attention when it was enacted and not much since. Outside of a small circle of Ready Return advocates and opponents, the idea of government-prepared tax returns has a flickering moment in the spotlight on rare occasions. Even then, it’s a handful of survey respondents, a tiny fraction of California taxpayers, and several bloggers, journalists, and lobbyists who take notice. Of these, a still smaller subset pays close attention. If and when the IRS launches Ready Return, it will come as a surprise. All sorts of people will exclaim, “They can’t do this,” but under present law, “they” can.

Ready Return will not work if taxpayers do not accept it. All indications are that Ready Return will fall flat.

As I pointed out in First Ready Return, Next Ready Vote?, “Only three percent of taxpayers eligible to have the state of California prepare their return took advantage of the opportunity. Only 60,000 people out of 2,000,000 were willing to put their tax fortunes in the hands of an anonymous revenue department bureaucrat or its computer.”

According to New Poll Shows Voters Overwhelmingly Reject Proposal To Have IRS Prepare Individuals' Tax Returns, a Computer and Communications Industry Association poll discovered that 71 percent would not “trust the IRS to prepare their returns, determine their refund and/or how much they owe in taxes.” Of those polled, 73 percent agreed that Ready Return would create a conflict of interest. These results crossed party affiliation, with 80 percent of voters claiming to be “less likely to vote for a candidate who backed an IRS expansion that involved the agency taking over tax return preparation.”

Respondents to the poll expressed other positions consistent with those taken by opponents of Ready Return. Of those polled, 63 percent “said they did not trust the IRS to keep their personal information safe and secure from hackers and identity thieves.” And 75 percent “believe the IRS would be most concerned with getting the maximum tax revenue possible from individuals.”

Ready Return creates a conflict of interest, not, as some claim, because it gives the IRS the dual roles of tax return preparer and tax collector, but because it cause the IRS to function both as preparer and as auditor. As I explained in Ready Return Not a Ready Answer:

ReadyReturn removes third-party protection from taxpayer-revenue department relationships. Will one branch of the FTB audit the work of another branch? Isn't there a conflict of interest when the auditor is preparing the return to be audited? Absolutely. Has not a lesson been learned from Enron about the importance of independence? Apparently not.

In Policy Analysis of “Return-Free” Tax System, Robert A. Boisture, Albert G. Lauber, and Holly O. Paz reach the same conclusion:

A third possible source of increased tax collections under a tax agency reconciliation system could be over-reaching by tax-collection authorities. In a very real sense, this type of system would create a conflict of interest on the part of the IRS. On the one hand, the IRS has an obligation to maximize tax collections in order to protect the federal fisc. On the other hand, a tax agency reconciliation system would require the IRS to act in effect as a fiduciary for taxpayers – analogous to an accountant or return preparer – with an obligation to prepare tax returns accurately, but also in the taxpayer’s best interest. Such a system is inherently subject to abuse.

Similar concerns were expressed by Joseph Cordes and Arlene Holen in Should the Government Prepare Individual Income Tax Returns?.

Ready Return would impose significant demands on IRS resources. Imposing Ready Return on an IRS saddled with computer system problems is unwise. Launching a Ready Return program while the IRS core customer account database system is being implemented, a system still not ready despite several years of work, also is unwise.

Assuming Ready Return is operational, what happens if a taxpayer finds a discrepancy between what the IRS puts on the return and what the taxpayer knows is correct? Would the error be fixed in time for the taxpayer to have a final return in place by the due date? Would the taxpayer file a return inconsistent with the Ready Return, and would doing so increase the risk of a subsequent audit? What happens when the person or entity originally filing the W-2 or 1099 form amends it? Would the IRS have the resources to change the inaccurate data on information returns imbedded into the system? Under current procedures, the IRS sends notices after returns are filed if there are mismatches with information returns, and yet far too many of these automated notices do not match the information returns or otherwise contain erroneous information.

Ryan Young, in A Backdoor Tax on the Poor (Nov. 8, 2011), argues that if the IRS contracts out the software design for Ready Return, there is no guarantee that what the contractor provides will work correctly. He suggests that additional expenses will be incurred by the IRS to pay for software updates and corrections.

To these concerns, I add several more. What happens if a web-based Ready Return system goes down? What happens if mobile Ready Return apps fail to work because of overloads on phone networks? What is the likelihood that malevolent individuals or thrill-seeking youngsters initiate a denial of service attack against the Ready Return web site? What happens if they launch it on April 14 and succeed?

Ready Return proponents claim that it will save people several billion dollars in taxpayer return preparation fees. If that’s true, that puts a lot of preparers out of work. But it’s not true, and tax return preparers would continue to make money. As I noted in Federal Ready Return: Theoretically Attractive, Pragmatically Unworkable:

Let’s face it, if the IRS adopts a federal Ready Return, tax return software companies would have a ready advertising opportunity, namely, offering its products as tools to check on the accuracy of returns prepared by an agency so long underfunded that it’s not surprising it makes so many errors processing returns. . . . Taxpayers would end up taking these “tentative” returns to tax return preparers or using software to see what results it generated, so the alleged efficiencies of a federal “Ready Return” is another theoretical construct that falls apart when put to the test in the practical world.

On the other hand, if Ready Return puts preparers out of work, it is unlikely that the jobs created by contractors preparing the IRS software would make up for these losses. But where is funding acquired to pay for the development of Ready Return software? The IRS continues to be underfunded. Can the nation afford an expensive experiment that does not provide the claimed savings and requires infusions of cash? Should taxpayers be financing a government tax return preparation department in the IRS? I think not.

In order for Ready Return to work, even putting aside all of its other flaws, the IRS would need W-2 and 1099 2 forms to be submitted earlier. Advocates of Ready Return admit this, as I explained in Federal Ready Return: Theoretically Attractive, Pragmatically Unworkable:

The current Administration, supporters during the campaign of pre-filled tax forms, discovered that the sound-bite didn’t fly when put to the test. Information doesn’t reach the IRS in time to get pre-filled or tentative returns out to taxpayers in time to give them ample opportunity to review the proposed return and then file by April 15. [Randall] Stross [in Why Can’t the I.R.S. Help Fill in the Blanks] deals with this issue by suggesting that the deadlines for filing information returns with the IRS be advanced to earlier in the year. I wonder how many employers, corporate payroll departments, and bookkeepers at small business operations were interviewed to determine if it is feasible to shut down for several weeks at the beginning of the year in order to process this information. Perhaps it is. But I doubt it.

My conjecture has been corroborated by business owners and by the Electronic Tax Administration Advisory Committee. In its 2011 Report, the Committee reported:

Shortening the processing period from three months to one month is a significant workload increase, especially for small businesses. ETAAC’s concerns about the practical business impact of such a change are heightened by Congress’ recent statutory repeal of expanded 1099 reporting by businesses, which had been enacted just last year as part of the healthcare legislation. The legislative reversal resulted from the substantial concerns expressed by the small business community about the additional associated costs and burdens, which the President described as “an undue barrier to small business growth.” Policy makers must avoid creating the same kind of costly business burden again, particularly on small business, without adequate study of its practical impact including a consideration of other potential opportunities.

Ryan Young, in A Backdoor Tax on the Poor (Nov. 8, 2011), estimates the cost of complying with the accelerated reporting schedules necessary for federal Ready Return as somewhere between $500 million and $5 billion. And that is to deal with W-2 and 1099 forms. It doesn’t even take into account forms such as the K-1.

Another danger of the Ready Return method is that it can induce taxpayers to accept IRS positions to which they would object if raised during an audit of a return initiated by the taxpayer. As I explained in First Ready Return, Next Ready Vote?:

There’s a reason that a cash-strapped government like California is so eager to prepare tax returns for taxpayers. It certainly isn’t a case of doing penance for the state having inflicted taxpayers with a patchwork income tax system that begs for true reform. Nor is it a desire to have taxpayers save money, because the response of California and the advocates of Ready Return to concerns about errors is that taxpayers are free to consult with independent tax return preparers. In other words, taxpayers would still face expenses, and even though they would be called tax return review fees rather than tax return preparation fees they still would require the taxpayer to reach into his or her pocket. So if taxpayers would be going to independent professionals, why is the state bothering to divert resources into preparing Ready Returns? The answer must be that the state is banking on taxpayers who receive a Ready Return, consider it official because it came from the government, sign it, and do nothing more. Unfortunately, there are taxpayers who will react in that manner. Whether from ignorance, laziness, unjustified trust in government, fear, confusion, or some other distraction, if enough mistakes are made on their returns and go undiscovered, the revenue flow to the state increases. The people who profess that they “love” Ready Return are saving time only because they are putting themselves at the mercy of the California state government, blindly accepting whatever they’re being told, and exposing themselves to risk if California later decides that the returns filed by the state on behalf of these folks are, in fact, erroneous. I wonder when that love will become love lost.

Ready Return makes it too easy for an erroneous IRS position to sneak by the taxpayer.

Ready Return poses serious security risks for taxpayers, particularly if the system is set up in a manner that requires taxpayers to access their Ready Returns by visiting a web site or using some equivalent electronic connection. The reason is simple. The world is overflowing with individuals who would delight in the opportunity to access someone else’s financial and personal information by hacking into their IRS account. A malevolent person who succeeds in breaking into a taxpayer’s IRS account obtains a free pass to identity theft. It’s one thing for the Treasury to operate an electronic funds payment system used by sophisticated business owners and holding limited amounts of data, but it’s another thing entirely to create a system used by almost the entire population and holding enormous amounts of data.

Daniel Horowitz, in The IRS as Tax Preparers? (Nov. 14, 2011) notes that the Government Accountability Office has cited “information security deficiencies” at the IRS that “increase the risk of inappropriate access, alteration, or abuse of proprietary IRS programs and electronic data and taxpayer information.” Lest anyone think that the specter of privacy breach and identity theft epidemics is an exaggerated concern, recall this flap, and the one about the IRS contracting taxpayer information out to a company whose databases had been compromised?

Ready Return can pose even greater risks to taxpayers. To deal with the inadequacy of returns based on the information currently available to the IRS, Ready Return’s advocates suggest that the IRS be given even more information. To do a better job with Ready Returns for taxpayers who sell their homes, marry, have children, enroll in educational programs justifying credits or deductions, or engage in any other activity that affects deductions and credits, the IRS would collect information that it currently does not collect, such as the details of taxpayers’ financial accounts, cleared checks, credit card statements, organization membership information, and all sorts of similar records. That information would be added to the database that the hackers are eager to attack and mine.

Though it is true that taxpayers’ tax returns currently reside in electronic databases, access is much more difficult than it would be if web-based and smart-phone-based gateways are opened by the IRS. In a world rampant with all sorts of digital security breaches, unnecessary additions to the data at risk must be avoided.

Advocates of Ready Return claim that it saves people time. After I shared my opinions about Ready Return on public radio, as described in First Ready Return, Next Ready Vote?, Professor Alice Abreu disagreed with my contention that Ready Return is not a time saver:

Jim Maule is just flat wrong in saying that ReadyReturn doesn't save people time, and the taxpayers in CA who love it are proof of that. Even if the return wasn't completely done, just having the form filled in with all of the W-2 information the government already has would be a tremendous time saver. Indeed, that is where the attention on the federal level has moved. If that information was filled in, returns could be done more quickly, and that would be a time and moneysave. Think about it: checking the information against what you have on your W-2 has to be faster than typing it in and then checking it.

I continue to disagree with the proposition that Ready Return reduces the amount of time that a taxpayer must invest. As I stated in First Ready Return, Next Ready Vote?:

Unfortunately, I must disagree with Alice. Checking to see if someone else has done something properly is never a time saver. There's a reason "it's faster if I do it myself," "it would have been faster had I done it myself," or some variant is heard so often, not only in tax return preparation but in other areas of law and life. Banking on a state or federal computer system getting it right is risky, especially when one takes into account all the information that has been released concerning the antiquated state of most government tax computing systems, programming errors, data entry errors, data transfer errors, and a variety of other glitches. Think about the error rates in advice obtained from telephone calls to the IRS. Think about all the mistakes on the information return reporting letters, which are based on the same systems that would be generating these "government prepared" tax returns.

To use an example from teaching, it takes less time to write a paper about a tax topic than it is to work through a student’s draft of a paper about the same topic. Though it may appear that writing or typing comments takes less time than writing the paper, what needs to be taken into account is the time needed to analyze what the student has written, determine if it is correct, and if it is incorrect, to figure out why that is so.

The IRS Commissioner, echoes an argument made by Randall Stross in Why Can’t the I.R.S. Help Fill in the Blanks. As I explained in Federal Ready Return: Theoretically Attractive, Pragmatically Unworkable:

Stross claims that the current system is the equivalent of credit card companies asking customers to fill out their own monthly invoices using receipts. He does not address the fact that checking a credit card invoice is very easy, because it requires only that the customer compare receipts to what’s on the invoice. Unlike the federal income tax system, the receipts aren’t separated into various categories, subject to varying floors and ceilings, discounted if a particular number of exceptions to exceptions to a general rule apply, and held up against an ever-changing set of rules. When the federal income tax system is converted into something as simple as adding up credit card receipts, then a federal Ready Return might deserve serious attention.

Trying to compare auditing a Ready Return prepared by the IRS with reviewing a simple credit card statement is careless at best.