MauledAgain

It never stops. Usually it is a proposal to permit businesses to claim deductions for expenditures that otherwise would be capitalized and recovered, if at all, over a period of time through depreciation or similar deductions. Now comes a proposal, discussed in this Tax Foundation blog post, to deduct all expenditures related to the operation of their business in the United States, an approach often called expensing. The justification for the proposal is that it would “get people and businesses to invest their money and create jobs.”

As I discussed in The Failure of Tax Policy Deductions: Specific Evidence, a Congressional Research Service study demonstrated the futility of using expensing to stimulate the economy. The report did not surprise me, as I had previously criticized expensing as an inefficient and misdirected approach to dealing with the problem. Existing expensing focuses on expenditures for equipment, not jobs, as I noted in Who’s More Important in the Tax World? People or Machines?. Previously, I had examined the flaws of equipment expensing in Just Because It Didn’t Work the First 50 Times Doesn’t Mean It Will Work Next Time. About a year later, I criticized the Obama Administration for proposing a change in the tax law that would allow full expensing for equipment, in If At First It Doesn’t Work, Try, Try, Try Again. A few months later, in When the Bonus Depreciation Tax Deduction is Not a Bonus for the Economy, I took apart the argument that letting businesses deduct equipment expenditures won’t help the economy. Because businesses already have deductions for compensation paid to employees, a proposal to permit expensing for all expenditures essentially is a proposal to permit expensing for expenditures made for buildings and equipment. We’ve been there, done that.

An example might help demonstrate why the jobs problem needs to be solved from the other direction. Consider a typical small business owner, almost all of whom generate taxable income that puts them below the top rate. Many of them do not benefit from the expensing proposal because they do not have the funds to spend, nor are the banks willing to lend money to them. Many of those that might have some funds or loan resources available do not need to spend money on equipment or to hire employees because their business receipts are not growing or are growing very slowly. When asked why their business is stagnating, the answer almost always is that their customers are buying less, are eating out less, are doing more work for themselves rather than retaining a business, for example, to mow their lawns or paint their living rooms. Why is that? Because the usual and potential new customers of these businesses have lost their jobs, have been the target of pay cuts, are dealing with increased health care costs, or have decided to build up nest eggs because they fear they are next on the list of jobs outsourced to some other country. Until these people resume spending, return to paying businesses to mow their lawns and paint their living rooms, the economy will stagnate.

The proponent of the proposal says that the issue is determining “what it takes to get people and businesses to invest their money and create jobs.” I disagree. As the analysis in the preceding paragraph shows, the question is not how to encourage businesses to spend money, but how to encourage customers to patronize businesses. The answer is to get money flowing back into the hands of the vast middle class and those living near or below poverty so that they can pump money into businesses at a level sufficient to entice businesses to hire people. No business is going to hire someone simply because the compensation is deductible, as it has been for decades. No business is going to buy equipment simply because the expenditure is brought within the scope of deductible expenses.

The proponent of the proposal also suggests that by making a company’s investments and expansion costs deductible, it reduces the percentage of its income that is taxed. That’s true, but as I’ve pointed out many times, in posts such as Spreading the Wealth: Not Necessarily Inconsistent with Growing the Economy, Taxing Capital to Help Capital, Job Creation and Tax Reductions, and Why the Tax Compromise is a Mistake, under existing law any business, and any taxpayer in a high bracket, can reduce their income tax liabilities by hiring people and deducting the compensation. They don’t do that, and for a good reason. They don’t have anything for these would-be employees to do, because not enough people are coming into their stores or buying their services.

The Tax Foundation blog post suggests that the proposal is on the right track. To the extent that the proposal eliminates the on-again, off-again inconsistency of existing expensing provisions, and shoves aside the ever-changing prerequisites for qualification, thus eliminating some of the uncertainty that contributes to business decision hesitancy, it is not as problematic as current and previous expensing provisions have been. However, it nonetheless amounts to nothing more than a windfall tax break for those businesses, chiefly large enterprises that are buying equipment. Giving a tax deduction for an expenditure that already is being made surely is not an incentive to make that expenditure. The solution to job creation is not supply-side, but demand-side. Some members of Congress understand this. Others don’t, continuing to drop raw eggs on the concrete floor from three stories up, in the belief that the eggs won’t break.

When Congress creates provisions to benefit specific taxpayers in specific areas that have been economically disadvantaged, it ends up creating definitional problems that need to be solved. This, in turn, adds to judicial workload, though it creates jobs for lawyers. When the provisions are inserted into the tax law administered by the IRS, rather than into the law dealing with economic assistance handled by other agencies, it adds the the Tax Court’s workload, though it creates jobs for tax lawyers.

A recent case, Blakeney v. Comr., T.C. Memo 2012-289, presented this sort of situation in the context of a provision designed to assist rehabilitation of the areas affected by Hurricane Katrina. Section 1400N(d)(1)(A) of the Internal Revenue Code allows a special depreciation deduction for “qualified Golf Opportunity Zone property.” In turn, section 1400N(d)(2)(A) defines that term as property that satisfies five conditions. The IRS agreed that four of the conditions – dealing with the type of property, when its original use began, when it was acquired, and when it was placed in service – had been met. The parties disputed whether the taxpayer met the requirement that “substantially all of the use of [the property] is in the Gulf Opportunity Zone and is in the active conduct of a trade or business by the taxpayer in such Zone.”

The taxpayer owned and operated two businesses. One was an electrical contracting enterprise and the other was a charter fishing operation started in 1999 and based in Orange Beach, Alabama, which is in the Gulf Opportunity Zone. On November 5, 2005, the taxpayer contracted for the purchase, at a cost of roughly $4,000,000, of a 68-foot yacht to be used in the charter fishing business. On February 10, 2006, the taxpayer took possession of the yacht in Palm Beach, Florida, which is not in the Gulf Opportunity Zone. Because of mechanical problems, the yacht did not arrive in Orange Beach until October 2006. After taking possession of the yacht, the taxpayer and the yacht’s captain took the yacht on a shakedown cruise, to the Bahamas, near the repair yards of the seller. A variety of mechanical and other problems plagued the yacht, which was required to stay in the Bahamas until repairs were made. After repairs were made, other problems developed. Eventually the yacht left the Bahamas and headed towards the U.S. Virgin Islands. In mid-May 2006, while approaching St. Thomas, the yacht’s generators began to fail, and several appliances stopped operating properly. The boat was moored in St. Thomas for repairs, and during that time it began to sink because of a hole that let water into the engine room. With the leak temporarily fixed, the yacht had to be taken to another marina to be lifted out of the water for permanent repairs. While the repairs were underway, the technicians caused additional damage. When additional electrical problems developed, the seller, who had warranted the yacht, directed the taxpayer to take it to Puerto Rico. In September, 2006, the taxpayer was told that the yacht was ready to be taken to Orange Beach, but its captain unexpectedly died. Eventually another captain was hired who took the yacht to Anna Maria, Florida, for more repairs. The yacht arrived in Orange Beach in October 2006. The yacht was made available for charter but there were no customers because the fishing season had ended. During the February –September 2006 period when the yacht was having its difficulties, it was chartered for five fishing trips in the Caribbean.

On the 2006 tax return, the taxpayer deducted almost $2 million of depreciation under the special provision in section 1400N(d)(1)(A). The IRS disallowed the deduction, concluding that substantially all of the yacht’s use during 2006 occurred in the Caribbean, resting its analysis on its decision that every day after the taxpayer took possession of the yacht was a day of use. The taxpayers argued that a day of use cannot occur unless the yacht is in condition to serve its intended purpose, and that the yacht was virtually inoperable during most of the time that it was in the Caribbean, thus causing substantially all of its use to occur after it arrived in Orange Beach.

The Court first determined that the yacht was used in Orange Beach, and thus in the Gulf Opportunity Zone, for the 74 days from when it arrived there until the end of the year. The fact that no one chartered the yacht did not mean that it was not being used in the sense of being available for charter.

When faced with determining how many days the yacht was used outside of the Gulf Opportunity Zone, the Court concluded that it was not being used when it was so broken that it could not leave the dock. However, because it was chartered on five occasions totaling 43 days, there were at least 43 days of use in the Caribbean, days for which the yacht generated income. Though the Court concluded that days of use in the Caribbean should also include days when the yacht was available for charter but not chartered, it noted that it could not tell from the record whether there were any such days, or, if so, how many.

The Court then turned to whether a use of 74 days in the Gulf Opportunity Zone and at least 43 days outside the Gulf Opportunity Zone constituted use that was substantially within the Gulfo Opportunity Zone. Though the Code and the regulations do not define “substantially” for this purpose, Notice 2006-77 defines “substantially all” as 80 percent. Notices, however, do not carry the force of law, are not accorded deference under the Chevron decision, and may be entitled to deference under the Skidmore decision, but the Court decided it did not need to determine whether Notice 2006-77 should be given deference. Instead, because at most 63 percent of the yacht’s use was in the Gulf Opportunity Zone, the court was “unable to say” that substantially all of its use was in that Zone. Because 63 percent is not substantially all, according to the Court, there was no need to decide if 80 percent is the correct test.

The word substantially is used in many places in the Internal Revenue Code. For example, regulations provide that the requirement of leaving in place substantially all of a building’s exterior walls as a condition for the rehabilitation credit is met if 75 percent of the surface square footage of those walls remain. It would be helpful if Congress, when using the word substantially in contexts that permit the application of a number, would make the effort to provide a number.

The Court did not reach an issue that was not present in the case but that could arise for a subsequent year. When customers chartered one of the taxpayer’s vessels, it went to fishing locations dozens of miles offshore set up and known only to the taxpayer. Would the days that the yacht is far offshore count as use within the Gulf Opportunity Zone? Had the yacht had been offshore for some of the 74 days, the taxpayer’s Gulf Opportunity Zone use percentage arguably would have been even lower.

At least in Pennsylvania, and most likely in other states, taxpayer dislike of real property taxes is pronounced. There almost always is proposed legislation sitting in the legislature that would repeal, amend, or otherwise do something to the real property tax. The latest, the Pennsylvania Property Tax Independence Act would eliminate the real property tax imposed by school districts, increase the state income tax to generate revenue dedicated to public education, increase the state sales tax to do likewise, and permit school districts to enact either a school district personal income tax or a school district earned income tax. An article last Sunday in the Philadelphia Inquirer described the proposed legislation as one that “would eliminate the school property tax and raise the sales and income levies to compensate.” There’s more to it than that. Not only would the state sales and state income taxes be increased, there would be new local income or earned income taxes. In all fairness, trying to summarize the details in a 170-page piece of proposed legislation is impossible in a short article or blog post, and that’s ignoring all the portions with the alarming “reserved” tag attached. What secrets await us when those provisions are revealed?

Eight years ago, in Killing the Geese, I analyzed a similar proposal, one that would eliminate school district real property taxes and replace the revenue with local income taxes, local earned income taxes, increased real property taxes, and business receipts taxes. I explained that the problem with real property taxes is not the tax itself, but the application of the tax to people “whose incomes are fixed and whose homes continue to increase in value.” I pointed out that the real property tax is not a hardship for people with large amounts of income of any sort, and that tagging the real property tax as a tax on the elderly is misleading because many elderly do not own homes and thus do not pay the real property tax, some elderly are awash in income and do not experience hardship on account of the real property tax, and many people who are not elderly do experience difficulties because of the real property tax.

I then argued that if the real property tax is to be replaced, an equitable tax is what needs to be enacted. I explained that that Pennsylvania state income tax, though not necessarily the most efficient tax, is the most equitable tax available. I pointed out that the earned income tax is a terrible tax, one that burdens workers while letting the landed gentry off the hook. My advice with respect to the earned income tax, which clearly has not been heeded by the drafters of the latest legislative proposal on the issue, was simple: “Get rid of it. Do not encourage its proliferation.”

Five years ago, in Taxes and School Funding, I commented on the electoral defeat of the local school district income tax proposal discussed in A Perplexing Tax Vote Decision. I noted that with the defeat, attention would turn to possible sales tax increases to fund education, possible state income tax increases for the same purpose, and cuts in school spending. I pointed out that the sales tax is no less regressive than the property tax, income tax increases encounter the widespread “people don’t want taxes increased, period” obstruction, and cutting school spending revives the decades-old debate about WHAT to cut, and often causes cuts that have adverse long-term consequences for the country. I concluded that the “tax question is not the problem but a symptom,” that the discussion “needs to focus on the tension between what people want schools to do and what people are willing to pay for whatever it is that schools do,” and that disclosure of the cost of “each program, each mandate, and each activity” is necessary.

At least this time around, the drafters of the most recent proposal took my advice on another point. I suggested that school districts be permitted to piggyback onto the state income tax. The most recent proposal includes a provision not quite a piggyback but close enough. It also includes an increase in the state income tax.

The proposal faces all sorts of challenges. According the the Department of Revenue, eliminating the school district real property tax takes away about $12.5 billion in revenue. The proposed increases in other taxes and the enactment of new local income or earned income taxes would raise about $9 billion. Do the drafters of the legislation intend to make up the $3 billion shortfall by cutting education funding? Or by increasing other existing taxes? Or by proposing other new taxes? Is that what the “reserved” provisions are for?

Opposition also comes from the Pennsylvania Budget and Policy Center. It claims that the school district real property tax works well, and that the number of people facing hardship because of that tax constitute only two-tenths of one percent of home owners. That number, however, reflects the number of homes lost because of delinquent tax payments, and thus is both an understatement and an overstatement. There are people who manage to hang onto their homes while cutting back on necessities such as health care in order to make their real property tax payments. And some of the homes that were lost were taken from financially well-to-do people who thought ignoring real estate tax bills was a legitimate tax planning device.

Interestingly, one of the proponents of the legislation claims that if enacted, she would save more than is possible through a mortgage modification. But the risk is that, if enacted, the replacement tax revenue might be much more than the proponents claim or think. As I warned in Killing the Geese,

The impetus for all of this legislative busy-ness is the public dislike of real property taxes. Of course, the public dislikes all taxes, so don't expect a parade down Harrisburg's main street when one bad tax is replaced by another bad tax. Expect another decade of maneuvering to get rid of the replacement tax. To the advocates of real property tax repeal I have these words of advice: Be careful what you wish for. You might get it. And then being pining for the "good old days."

Ultimately the issue isn’t what sort of tax, but who pays. I guarantee that those with the resources to do so are maneuvering into positions that will permit them to escape some, most, or even all of the burden of school funding.

My objections to spending tax dollars to finance the sports stadium projects of multimillionaires and billionaires is no secret. Eight years ago, in Tax Revenues and D.C. Baseball, I explained why I consider diverting tax revenues into the hands of sports teams is unwise. I argued that this public financing does not guarantee economic growth, that community financing ought to take place through ticket sales to willing buyers, and the inevitability of the team building its stadium somewhere. I pointed out that teams want to shift risk to the taxpayers, that team owners who give lip service to free market principles ought to put their action where their words are, and that in the long-run these sorts of incentives wipe each other out in a zero-sum game. I lamented the diversion of tax revenues to wealthy private sector businesses and individuals at the same time services for which the tax revenues are intended get short-changed. I shared a quote from an advocate of taxpayer funding of wealthy sports owners who admitted that, “Primarily, it’s going to benefit folks who own the franchise, and people who entertain in luxury boxes that lease for $200,000 or more per season.” Earlier this year, in Putting Tax Money Where the Tax Mouth Is, I criticized the owners of a sports stadium who, after getting money from bridge tolls to finance their arena and successfully lobbying for real property tax breaks, opposed enactment of a tax on parking fees to make up the city’s revenue shortfall caused in part by the failure of the stadium to produce the economic benefits its owners promised would be forthcoming.

At a time when state and local governments are strapped for cash, funneling resources into profitable private sector businesses is not in the best interest of the vast majority of Americans. Some of the staunchest critics of government spending, and their financiers, line up for government goodies when their own personal pockets are waiting for taxpayer money. It’s simply wrong, on many counts.

In Putting Tax Money Where the Tax Mouth Is, I offered two solutions. One is to reject outright pleas for welfare from the wealthy. The other is to hold these entrepreneurs to their promises, and to impose substantial contract breach damages on them when their promised trickle-down economic benefits fail to materialize.

It turns out another possible solution exists, and has been implemented. According to this story, when the Florida legislature appropriated public money for the financing of private sports facilities, it imposed a requirement that any sports arena receiving government funding is required to open its doors to the homeless on any evening that the facility is not hosting an event. In terms of “give back,” this approach is an interesting variant on the contract damages option I proposed. Has it worked? Apparently not. According to two Florida legislators, American Airlines Arena, SunLife Stadium, and an undetermined number of the other sixteen professional sports facilities that have received Florida tax dollars have failed to comply with the law for the twenty years since it was enacted. Another commentator thinks that none of the facilities have complied. The legislators have introduced legislation to compel the owners of these arenas and stadiums to return the money. According to this commentary, some opponents argue that in some instances the owners are governments, which would make the payback requirement counterproductive. Others argue that at least some of the facilities are in areas impractical for use as homeless shelters, and still others claim that homeless advocates do not think the homeless should be given shelter in these places. Yet according to this report, there are homeless advocates who think that enforcing the law makes sense, provided it is done in ways logistically compatible with providing shelter.

It is not surprising that, although they come at the problem from different angles and propose different solutions, both this commentator and the writer of this report consider taxpayer financing of private sector sports enterprises to be a very bad idea. What’s even a worse idea is taking the money, agreeing to provide a public service in return, and then breaking that promise. But, these days, that’s standard operating procedure, isn’t it?

California Representative John Campbell has joined the chorus of voices arguing that America’s infrastructure, particularly highways, bridges, and tunnels should be turned over to the private sector. Campbell argues that general revenues cannot provided the financing because of other demands on those funds, user fees are being diverted to other expenditures, and the gasoline tax is dropping in real dollars because of increased fuel efficiency. The solution, Campbell claims, is “to utilize a structure in the tax code known as ‘Master Limited Partnerships’ (MLP) to get private sector money to fund public infrastructure.” He does not go into “the technical details” because of alleged space constraints and a desire to refrain from “further highlighting my tax-geekness.” Excuse me, but there is no such thing as “Master Limited Partnership” in the tax code. Just to be certain, I searched title 26 of the United States Code – the Internal Revenue Code – and did not find that phrase.

Campbell is correct that general revenues are insufficient to deal with the country’s deteriorating roads, bridges, and tunnels. He is correct that user fees are being diverted. He is correct that the gasoline tax is dropping in real dollars. But his solution treats those problems as unsolvable, opening the path for him to argue for enriching the private sector at the expense of public commonweal.

The gasoline tax revenue problem is easily solved, even though free riders will not like the solution. Adjust the per-gallon rate to reflect inflation that has taken place since the per-gallon fixed rate was last changed. The overwhelming number of taxpayers and politicians who push for inflation-adjusted dollar amounts in the Internal Revenue Code and state revenue acts ought to be delighted to have the opportunity to make yet another tax provision subject to the same adjustment. The objection that gasoline already is expensive enough ignores the reality that the true cost of gasoline exceeds its current pump price when externalities are taken into account. But even if the gasoline tax is left alone, there is yet another solution, one that would permit repealing the gasoline tax. Repealing a tax ought to get some attention and much support.

The user fee diversion problem is very real. See, for example, this recent report on the diversion of federal highway funds based on political considerations rather than actual need. I have discussed it in posts such as Soccer Franchise Socks It to Bridge Users, Bridge Motorists Easy Mark for Inflated User Fees, Restricting Bridge Tolls to Bridge Care, Don't They Ever Learn? They're At It Again, A Failed Case for Bridge Toll Diversions, DRPA Reform Bandwagon: Finally Gathering Momentum, When User Fee Diversion Smacks of Private Inurement, Toll Increases Ought Not Finance Free Rides, Infrastructure, Tolls, Barns, Jackasses, and Carpenters, and Using Tolls to Fund Other Projects. Campbell accepts user fee diversion rather than attacking it as the unwise, morally incorrect, and dangerous practice that it is. As I have pointed out repeatedly, in those posts, it is an easy thing to stop funneling tolls and other user fees to purposes unrelated to the collection of the fee. In some respects, treating user fee diversion as an unsolvable problem makes it easier to advocate turning public assets over to private enterprise. Calls for resisting these diversions are increasing, and allegedly are beginning to cause a backlash at the state level.

The solution, as I have pointed out many times, is the mileage-based road fee. I have explored this twenty-first century alternative in Tax Meets Technology on the Road, and thereafter in Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, and Is the Mileage-Based Road Fee So Terrible? The technology makes it possible to match use with cost in ways that present-day tolling can only approximate. The technology makes it possible to eliminate the nonsense of using tolls imposed on certain drivers to provide free rides to other motorists. When Campbell claims, “I wish that it was possible to do this some other way,” he is demonstrating either an ignorance of mileage-based road fees – for shame – or an opposition based on a dedication to enriching the private sector enterprises at the expense of taxpayers – again, for shame.

Campbell’s perception of private sector takeovers reflects an ongoing delusion among those who think that failed private-sector trickle down somehow surpasses government protection of citizens from the avarices of the not-so-free marketplace. This is a canard I have criticized repeatedly. Among my various posts that examine and de-bunk the myth of private sector superiority when it comes to dealing with public assets are Selling Off Government Revenue Streams: Good Idea or Bad?, Are Citizens About to be Railroaded on Toll Highway Sales?, Turnpike Cash Grab Heats Up, Selling Government Revenue Streams: A Bad Idea That Won't Go Away, Turnpike Lease: Bad Policy and Now a Bad Deal , How Do Toll Road Lessees Make a Profit?, The Pennsylvania Legislature Gets It Right, Killing the Revenue Idea That Won't Die, Are Private Tolls More Efficient Than Public Tolls?, More on Private Toll Roads, and Tax Profiteers Resume Takeover Attempts. Campbell is from southern California, so he cannot possibly be unaware of the private highway failures in San Diego and Orange County. He knows it doesn’t work for the benefit of the public, but for some reason – guess – that doesn’t stop him from begging for a repeat of the same failed policies. Sound familiar?

Campbell is correct that “infrastructure is important” and “essential.” Infrastructure that serves the public must be controlled by the public, through government, must be protected by the public, through government, must be funded by the public, through government, and must be available to the public, through government. Making it the private fiefdom of the private sector nobility, especially when most of the companies making a grab for public money are international and foreign entities, is a deep threat to the survival of American democracy and even the nation itself.

As I explained in The Revenue Diversion Problem, “I take a dim view of governments diverting user fee revenue to purposes unrelated to the reason for imposing the user fee.” My rationale shows up in posts such as User Fees and Costs, When User Fees Exceed Costs: What to Do?, Soccer Franchise Socks It to Bridge Users, Bridge Motorists Easy Mark for Inflated User Fees, Timing, Quantifying, and Allocating User Fees, and Limiting User Fee Use: Beach Tag Fees.

But according to a case from a few months ago that has just now come to my attention, the Supreme Judicial Court of Massachusetts looks at the issue differently, as it must. In Murphy et al v. Massachusetts Turnpike Authority, the court held that the Massachusetts Turnpike Authority was permitted to use tolls collected from toll roads under its control to fund roads, bridges, and tunnels for which tolls are not charged. According to the plaintiffs, 58 percent of toll revenues were expended on roads, bridges, and tunnels not subject to tolls.

The plaintiffs sued, claiming that the diversion of the toll revenue violated article 2, section 7 of the Massachusetts Constitution, part II, chapter 1, section 1, article 4 of the Massachusetts Constitution, article 30 of the Massachusetts Declaration of Rights, and the commerce clause of the United States Constitution. The court rejected all of these claims, and also denied the plantiffs’ request for an injunction barring future diversion of toll revenues.

In rejecting the claim that the diversion was an unconstitutional tax violating article 2, section 7 of the Massachusetts Constitution, the court explained that the fees were not a tax, that if they were a tax they were valid because the legislature had authorized the Turnpike Authority to collect tolls and to expend the receipts on all roads, bridges, and tunnels under its care, whether tolled or not. To be unconstitutional, the tax must be one that exceeds the authorized power of the taxing authority, and in this instance, the tolls, even if considered to be taxes, were within the Authority’s power to impose.

In rejecting the claim that the diversion was a disproportionate and unreasonable assessment under Part II, chapter 1, section 1, article 4 of the Massachusetts Constitution, the court concluded that if the tolls were taxes, they would not be taxes on real property subject to the requirement of being proportional and reasonable assessments, and that if they were excises, the legislature has the power to impose them and to use excess tolls for maintenance of public roads, bridges, and tunnels, and for mass transportation, including those that are untolled.

In rejecting the claim that the Authority was an executive department exercising legislative powers in violation of article 30 of the Massachusetts Declaration of Rights, the court concluded that the delegation by the legislature to the Authority of the power to collect tolls did not give the Authority power to impose tolls in excess of those necessary to pay the Authority’s costs, and that the Authority had followed appropriate procedures in giving notice and opportunities to comment, and in filing reports with the governor and legislature.

The court also explained that even though the tolls would not violate state constitutional provisions if they were a tax, the tolls were, in fact, user fees. As such, the court concluded, they were valid because, first, those who paid them enjoyed a benefit, namely, driving on tolled roads, not available to those not paying the tolls, second, the plaintiffs had the option of not using toll roads, and third, the tolls were collected to fund the roads, bridges, and tunnels for which the Authority was responsible. The court pointed out that, “Where, as here, a public authority manages an integrated system of roadways, bridges, and tunnels, and chooses to impose tolls on only some of the roadways and tunnels in an amount sufficient to support the entire integrated system, its purpose does not shift from expense reimbursement to revenue raising simply because the toll revenues exceed the cost of maintaining only the tolled portions of the integrated system.”

The court dismissed the plaintiffs’ commerce clause claim because the plaintiffs, who, rather than alleging that the tolls discriminated against interstate commerce, had alleged that the were excessive and did not represent a fair approximation of the benefits provided by the Authority, failed to allege that the tolls were put to a use prohibited by the statute or that the toll revenues exceeded the cost to the Authority of maintaining the roads, bridges, and tunnels for which it was responsible. For this reason, the court did not examine the issue of whether the plaintiffs, all residents of Massachusetts, had standing to raise the commerce clause claim.

While the case was pending, the Massachusetts legislature enacted a statute the requires all revenues received from tolls to be “applied exclusively to” costs associated with the tolled road, bridge, or tunnel. The legislature also terminated the Authority and transferred its responsibilities and employees to a newly-established Department of Transportation.

Had the legislature not backed down from the practice it had authorized of limiting tolls to only a portion of the overall highway system under the care of a tolling authority, the case would have taken on even greater significance. The case was decided properly, and demonstrates that the question of how user fees should be imposed and their proceeds expended is an issue for the legislature, barring constitutional violations of the sort not present in the Massachusetts case. The case retains significance as an object lesson for voters in other states, where toll receipts are diverted to purposes other than the construction, expansion, maintenance, or repair of the tolled road, bridge, or tunnel. The danger of legislative failure to constrain the use of toll revenues is evident from the sort of abuses discussed in Soccer Franchise Socks It to Bridge Users, continuing through Bridge Motorists Easy Mark for Inflated User Fees, Restricting Bridge Tolls to Bridge Care, Don't They Ever Learn? They're At It Again, A Failed Case for Bridge Toll Diversions, DRPA Reform Bandwagon: Finally Gathering Momentum, and When User Fee Diversion Smacks of Private Inurement. This issue has resurfaced in Pennsylvania, with the Pennsylvania Turnpike system falling deeper and deeper into debt because of the tolls being siphoned off to fund other highway and mass transportation projects, as described in this article.

It’s time for voters to study what is happening and evaluate their election choices based on what legislators are doing, not on what they are saying and promising. An uneducated electorate is the playground of the corrupt and devious. One wonders whether the lawsuit in Massachusetts, though lost by the plaintiffs, triggered the change that needs to be repeated in other states.

They say they detest taxing people and using the proceeds to fund government expenditures. Presumably they detest even more the practice of funding government expenditures without a revenue source. So when confronted with government expenditures that benefit a handful of private sector enterprises and a smattering of taxpayers, they would be expected to pull the plug. Yet when the opportunity arose, the enemies of tax-and-spend decided to continue spending.

The story begins a few months ago. According to this report, when the question of federal subsidies for air flights into and out of small towns was put in front of the House Appropriations Committee, the Republican members of the Committee had a falling out. When more moderate members attempted to cut the program, the Tea Party members objected, and eventually succeeded not only in preventing the program’s elimination but obtained an 11 percent funding increase. Wait. Aren’t these the folks who want to shrink government? How does one shrink government by expanding funding for a program by 11 percent? Incidentally, since 2001, the budget for this program has quadrupled.

What the subsidy does is reduce the cost of the ticket price for people flying to and from the towns in question. The subsidy amounts to hundreds of dollars per ticket, and sometimes reaches or exceeds $1,000. Are the people buying these tickets getting an entitlement? Are they among the 47 percent? Are they among the 1 percent? Are they flying for business reasons? Personal reasons? If anyone knows, they’re not saying. What happened to the free market? If the flights are unprofitable and otherwise make no sense for the airline, do not free market principles tell the airline to discontinue the flights? Isn’t that the argument heard whenever a program disliked by the shrink-government anti-tax crowd gets publicly trashed? Perhaps it’s not so much “shrink government” but “shrink government assistance for the people we don’t like, the slackers, the moochers, the irresponsible, but keep it for our friends”?

This isn’t the only program that the anti-tax, cut-government-spending crowd wants to preserve. Ask them about farm subsidies. To be fair, even Ronald Reagan and George W. Bush have tried to cut the airline subsidy. They failed.

Last week, news came, according to this story, that an airline with a subsidy to fly to a town in North Dakota was giving it up after two decades of taxpayer-funded assistance. The airline announced that the flights in question had become profitable. Surely this outcome will become ammunition for the defenders of the subsidy. But, if taxpayer funding to assist the airline turns out to be sensible, cannot the same be said for the government assistance to automakers? How is it that critics of keeping automakers afloat make all sorts of arguments that are inconsistent with their support of government keeping an airline afloat? Could it be that it’s not the principle but the identity of the recipient of assistance that marks the difference? What does that tell us?

Several months ago, in The Revenue Diversion Problem, I criticized the decisions by some states to funnel a significant portion of the proceeds from settling lawsuits against mortgage servicers into programs and uses having nothing to do with the purposes specified in the settlement agreement. Though the proceeds were designated for mortgage loan reductions, refinancing, loan forgiveness, and similar purposes, some states decided to use their portion of the proceeds to fund prisons, to pay debts, increase the general fund, offset higher education budget cuts, and to pay corporations to relocate. I began that post with a reminder of how “I take a dim view of governments diverting user fee revenue to purposes unrelated to the reason for imposing the user fee.” I have explained my reasoning for my position in posts such as User Fees and Costs, When User Fees Exceed Costs: What to Do?, Soccer Franchise Socks It to Bridge Users, Bridge Motorists Easy Mark for Inflated User Fees, Timing, Quantifying, and Allocating User Fees, and Limiting User Fee Use: Beach Tag Fees. I had noted that the “story is just developing.”

Last month, another bit of good news appeared. Pennsylvania joined the 27 states mentioned in The Revenue Diversion Problem as having put the proceeds of the settlement to the uses for which they were intended. As reported in this story, the Pennsylvania legislature passed Act 70, P.L. 648, which permitted the Pennsylvania Housing Finance Agency to resume funding the Homeowners’ Emergency Mortgage Assistance Program, which had been shut down a year earlier because its funding had been cut off.

Though I don’t always agree with the decisions made by the Pennsylvania legislature, and find some of its actions bordering on the irresponsible, this decision to channel the settlement proceeds to their intended purposes deserves praise. The legislature did the right thing. Hopefully it will continue doing so.

As I mentioned last week in Biting the Tax Hand That Feeds the Tax Critic, the Republican candidate for the Presidency has made it clear he “holds in disdain people he describes as dependent on government.” He, and many of his supporters, think that dependency on government is a terrible thing and that it is bad for the economy, for the country, and for themselves. They conjure up images of lazy individuals who spend their entire lives feeding at the public trough. The candidate went so far as to identify nearly half of Americans as “dependent upon government,” as people “who believe that they are victims, who believe that the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it.”

The flaw in the dependency argument is the notion that those who benefit from government assistance do so for their entire lifetimes, or for most of their lives, and that 53 percent of Americans do not fall into this category. Once again, facts are being rewoven into a tapestry of innuendo, distortions, and lies. Before making statements about dependency, it is helpful to ascertain the facts.

A reader pointed me to an editorial that in turn relied on a study by the Cornell University Survey Research Institute, called The Social and Governmental Issues and Participation Study of 2008. Though I cannot find it on the Institute’s website, it is described, and some of its findings are republished, in this article by one of the study’s authors. In the study, the authors examined the extent to which Americans rely on government benefits.

The study looked at 21 benefits provided by the federal government that do not arise from activities that benefit everyone. Thus, the study set aside spending on national defense, food safety regulations, and similar programs. It included direct spending along with spending buried in Internal Revenue Code tax breaks or delivered through funding of private organizations. The study included benefits such a social security, Medicaid, the G.I. bill, unemployment insurance, the mortgage interest tax deduction, and various tax credits. It asked people who were surveyed if they had relied on any of the programs at any time in their lives.

What the authors discovered is that 96 percent of Americans have relied, at some time in their lives, on the federal government for assistance. Most of the 4 percent who did not were young adults who generally are not yet eligible for most of the benefits in question. The average American has benefitted from five of the programs, some in the form of direct payments, and some in the form of tax breaks or federal assistance to private organizations that in turn provided social benefits. Though individuals in households with income under $10,000 used, on average four types of direct benefits whereas those in households with income of $150,000 or more used only one, those in the wealthy households used three of the indirect benefits whereas those in the low-income households used, on average, only one. When analyzed in terms of partisan allegiance, though some benefits were used more by members of one party than those of another, it cut both ways, and members of both parties – 97 percent of Republicans and 98 percent of Democrats – took advantage of government assistance. There was no difference in the length of time during which a benefit was used.

Yet when asked if they had ever used a “government social program,” individuals identifying themselves as conservatives were less likely than those identifying themselves as liberal to answer in the affirmative, even though the same respondents answered affirmatively when asked about use of specific governmental assistance policies. In other words, conservatives, leading the charge against government assistance and dependency, are no less dependent on government than anyone else but somehow lack the ability to comprehend that they are using government benefits and are just as dependent as 97 percent of the population.

One can quibble whether all of the programs fall into the same category of dependency. The G.I. Bill is, in many ways, compensation to veterans for services performed. Social Security is a return to retirees for their investments, albeit mandatory, in the Social Security program. But pulling those programs out of the analysis still leaves the long list of government assistance in the form of tax breaks for both upper-income and lower-income individuals, though upper-income individuals benefit much more from government spending hidden in the tax law.

As the author of the editorial, who also is one of the authors of the study, points out, the practice of condemning one group of Americans as, to use Ayn Rand’s terminology, “moochers,” while treating others as “producers,” is misleading and counterproductive for the nation’s overall welfare. For one group of dependent Americans to attack another is absurd, especially when the attacking group thinks it can pull off this sort of nonsense because its dependency is not as visible. It is not uncommon for students in middle school to form cliques and to anoint themselves as “cool,” when, in fact, as responsible adults would note, they’re not “cool” and certainly not “cooler” than the ones they exclude from their cliques. That sort of behavior, one would hope, disappears as middle school children mature and acquire, during their 20s, fully developed frontal lobes. Unfortunately, the “attack those we think aren’t as good as us” approach that has infected one of the political parties since the early 1990s has sparked partisan warfare, Congressional impotence, political obstructionism, and distraction from attention to the problems that affect everyone and that need to be solved. It’s time to take control of the political process away from the middle schoolers who haven’t grown up.

Thursday’s Philadelphia Inquirer brought a story about the failure of federal agencies to pay over federal income taxes and social security taxes withheld from their employees. Paul Caron’s TaxProf Blog picked up the story and directed readers to the full report.

This is a truly astounding situation. It is a problem that has existed for so long, spanning enough Administrations, that it truly can be characterized as a bipartisan problem. Problem is the nice word to use to describe this nonsense.

Perhaps I do not quite understand federal accounting practices. I have always thought that the U.S. Treasury handles money coming into the government and money leaving the government. It also, I think, handles money being moved around within the government. Of course, in most instances cash is not being transferred. Instead, debits and credits are made to the various accounts that represent the amounts appropriated to agencies and expended by agencies. But perhaps I am wrong. Perhaps it works some other way. And if so, that could be the root of the problem.

So what I think should happen, which obviously is not what is happening, is as follows. Congress appropriates, say, $100 million for Agency X. Treasury credits Agency X with $100 million. Agency X needs to pay its employees. Assume that the payroll in question is a gross payroll of $100,000, with taxes of $10,000 being withheld. What I think should happen is that Agency X orders checks or direct deposits totaling $90,000 for its employees. Treasury should write the checks or make the direct deposits only in response to Agency X’s request that includes the gross payroll and withheld tax information. Treasury not only issues the checks or makes the direct deposits totaling $90,000, charging Agency X’s account for $90,000, it also charges Agency X’s account $10,000 which it then credits to the tax accounts maintained by the IRS.

So what’s going wrong? Is Agency X writing checks and making direct deposits independent of the Treasury? That makes no sense. Is Agency X sending a request for $90,000 in checks and direct deposits for employees without mentioning withholding? That’s foolish, and ought not be permitted by the Treasury. Is the Treasury failing to ask about withholding when it receives a request to issue payroll checks or make direct deposits? Could it be that clueless? Is Agency X not even keeping a record of required withholding? That’s equally as foolish. The only thing that is clear is that Treasury is not crediting the IRS tax accounts for the taxes in question.

The federal agency tax remittance system design, both conceptually and in terms of implementation, can be and ought to be simple. But it’s not. Totally lacking are, sorry, checks and balances. Agencies ought not be issuing their own checks or making direct deposits. Treasury needs to require tax withholding information as a prerequisite to issuing checks or making direct deposits, and needs to make the transfer from the agency account to the IRS account. It’s that simple. Unfortunately, taxpayer dollars had to be expended to fund a study to determine the scope of the problem, to identify the agencies in question, and to make recommendations. Worse, the report does not explain how the agencies manage to become delinquent and instead appears to focus on what to do with delinquent federal agency accounts. Yet the more important question is how to prevent agencies from falling into delinquency in the first place. As usual, it’s almost always better, and easier, to put the effort into preventing a problem than it is to pump resources into solving a problem.

There was an interesting editorial in Monday’s Philadelphia Inquirer, which reacted to a recent study by the Pew Charitable Trusts indicating that the “middle-class tax burden in Philadelphia is now comparable to what suburbanites pay.” The editorial writer concluded that this “makes it even more urgent to improve schools and make neighborhoods safer so the city can attract families and businesses.”

There is no doubt that people are less likely to bring their businesses or their families into a city that lacks good schools and that presents risks to safety beyond what people are willing to tolerate. And there is no doubt that good schools and acceptable public safety require money. And there is no doubt that in order for there to be sufficient money, there need to be taxes.

The editorial makes an important observation. It specifically refers to “suburban residents' willingness to pay higher taxes for better schools and municipal services - public safety in particular.” It also notes that the city isn’t collecting taxes that it ought to be collecting, because of the problems with real estate assessments, an issue I’ve previously explored in An Unconstitutional Tax Assessment System, Property Tax Assessments: Really That Difficult?, Real Property Tax Assessment System: Broken and Begging for Repair, Philadelphia Real Property Taxes: Pay Up or Lose It, How to Fix a Broken Tax System: Speed It Up? , Revising the Board of Revision of Taxes, How Can Asking Questions Improve Tax and Spending Policies?, This Just Taxes My Brain, Tax Bureaucrats Lose Work, Keep Pay, Testing Tax Bureaucrats Just Part of the Solution, A Citizen Vote on Taxes, Freezing Real Property Tax Reassessments: A Nice Idea, The Tax Price of a Flawed Tax System, Can Bad Tax Administration Doom the Tax?, Taxes and Priorities, R.I.P., BRT, A Tax Agency Rises from the Dead, and Tax Law as Subterfuge: Best Use Valuation v. Current Market Valuation, How to Kill a Bad Tax System That Will Not Die?, The Bad Tax System That Will Not Die Might Get Another Lease on Life , Robbing Peter to Pay Paul, Tax Style, Don’t Rob Peter to Pay Paul: Collect Unpaid Taxes, The Philadelphia Real Property Tax: Eternal Circles, A Tax Problem, A Solution, So Why No Repair? , and Can the Philadelphia Real Property Tax System Be Saved?.

The editorial then suggests that “The suburbs need to pay as much attention to the Pew study as Philadelphia, but for the opposite reason. They are going to lose residents if they continue on this course. Their rising tax burdens have become a much heavier lift for families still struggling after the recession. But without more revenue, it's hard for towns to keep up with residents' demands to maintain or improve services.” Exactly. You get what you pay for. The question is who is going to pay for what.

The editorial concludes by proposing that “The situation begs for consolidating many of the taxing districts in the region. The suburbs are cluttered with mayors, superintendents, and police chiefs, all doing the same jobs in side-by-side jurisdictions. The inefficiencies, duplication, and growing personnel costs are becoming a luxury that suburban taxpayers cannot afford.” The risk, though, in consolidation and centralization is that voices are no longer heard, people are crowded out in the larger throngs jamming into township buildings for hearings, and students get less individualized attention and more bureaucratic lock-step treatment. So, again, the question is, what really matters enough to be worth paying for through taxes?

The Republican candidate for the presidency holds in disdain people he describes as dependent on government. He considers this dependency to be a bad thing, bad for the economy, bad for the country, and surely bad for his wealthy friends and supporters.

Thanks to a reader, I’ve identified someone who is dependent on government. This person attended the Naval Academy. Who paid? The government. This person attended the U.S. Naval War College. Who paid? The government. This person started a business, borrowed half a million dollars, on a loan guaranteed by the federal government. Who pays when the business defaults? The government. Another of his businesses collected money on government contracts. This person also received other government benefits. Who pays? The government. The business that received the government-guaranteed loan hasn’t paid taxes. Governments have had to spend money auditing this person and his businesses, paying for filing liens, and in one instance incurring costs in shutting down a business for not paying state registration fees. Who pays for all of this? The government, but we know that this means other taxpayers are paying. So one must suppose that some taxpayers who resent paying taxes, those who hail the Republican candidate as the font of all wisdom, must resent forking over money to finance someone getting government benefits and not paying taxes.

Incidentally, what does the Republican candidate think of taxpayers who should be paying taxes but aren’t? Does he include them among his famous 47 percent as freeloaders?

One might think that this person whose business hasn’t paid taxes considers government spending is a good thing. One might think that this person would be disturbed that the Republican candidate for the presidency has a dismal view of government programs and government assistance. One might think that this person considers himself to be held in disdain by the Republican presidential candidate.

Surprise.

This person has said that government is the problem. He claims that government stimulus programs are a bad thing. He insists that government spending must be cut. In fact, he blames government stimulus programs for the failure of his business. How?

According to this person, the current president is responsible for his business failure. He explains, “Our business was closely linked to commercial real estate, so when that market faltered, so did ours.” Here’s some news for this person. The real estate market collapsed before the current president was sworn into office. It collapsed as a result of shenanigans by the wizards of Wall Street coupled with decreased government regulation advocated by the Republican party. This person continued to explain that his business “crater[ed] again as uncertainty grabbed hold of the economy.” The uncertainty is the product of obstructionism in the Congress. And everyone knows who is responsible for obstructing progress, not only announcing their plans to do so but proudly proclaiming that they have succeeded. That success, according to the owner of the business in question, is a reason that the business failed.

So who is this person? According to this report, it is Ernie Liediger, a Republican member of the Minnesota House of Representatives. Yes, that’s right. A Republican. A Republican who got his from the government and now wants to close the door on those who follow him. There’s a word to use that describes someone who benefits from government programs and government spending while criticizing it. Look it up. This sort of attitude reminds me of teenagers who, while eating meals at their parents’ dinner tables, complain that their parents don’t love them and don’t do anything for them. There’s a word for that, too. Look that one up, too.

Attempts to shame people into paying their taxes are multiplying and taking on new forms. Back in March, I considered the effectiveness of the shaming approach, in Taxes, Citizenship, and Shame. I noted that, “We live in an age when shame does not have the effect it once did.” A month later, in Cheating, Taxes, and Shame, I examined a survey that revealed most people do not consider being caught cheating on one’s taxes as shameful as three other behaviors. Earlier this month, in Taxes, Citizenship, and Something More Than Shame, I discussed the California reaction to the limited effect of shaming, one in which the state revokes or denies professional and business licenses to tax delinquents.

During the past week, a reader sent me several references to news items discussing the use of shame in dealing with nonpayment of taxes. One dealt with the globalization of the shame technique, one dealt with finding new ways to shame taxpayers, and the third dealt with both issues.

Tax shaming is not limited to the United States. According to this article, Croatia disclosed the names of tax delinquents, which in turn has brought calls for similar action in Bosnia. According to another article, tax authorities in India are taking steps to shame delinquent taxpayers.

According to this article, officials in Great Falls, Montana, tried a new tactic when sending tax bills to delinquent taxpayers. They stamped the word DELINQUENT on the envelope. Although collection agencies are prohibited from stamping an envelope in that manner or even identifying their status as a collection agency, governments are not similarly restricted. Yet the fallout from the stamping practice was enough to convince the local government to ditch the stamp next year. According to the article, “And if Americans hate anything, they hate being shamed,” but yet that survey indicated many Americans are not particularly shamed by failure to pay taxes. My concern about stamping DELINQUENT on the envelope is that there are times when the local tax collector is in error, the records are jumbled, the person no longer owns the property in question, or some other circumstances preclude the person from being delinquent. Shaming someone ought not occur if the person has not yet been given an opportunity to exonerate herself from having done anything deserving of shame. The strange thing about envelopes – in contrast, for example, to a sign on the front lawn of the property – is that the only people who see the envelope are the postal workers handling it, and the people who live at the same address and might see the front of the envelope when they bring in or open the mail. Odds are that the people in those circumstances either already know of the problem or ought to know of the risk in which they are being placed.

In India, according the previously mentioned article, the South Delhi Municipal Corporation has decided to send drummers to pound out rhythms at dawn outside the homes of property owners who are delinquent in paying their property taxes. It is unclear whether the drummers will visit the homes where the property owners live or the property itself even if the taxpayers live elsewhere. The authorities also intend to inform the neighbors about the tax delinquents. Otherwise, I suppose, the neighbors would wonder why all of the racket early in the morning. I doubt, though, that the explanation is going to soothe the anger and annoyance felt by law-abiding citizens when noise keeps them from sleeping, from focusing on their take-home work, or from trying to get a sleepy infant to nap. At least the authorities also plan to publish a list of the top delinquents and to seize their properties for auction.

If the drumming doesn’t work, what’s next? Trumpet blasts? Amplified heavy metal music? If they need other ideas, there are some at this sound experiment site. If all else fails, perhaps they will roll in a blackboard on wheels under the care of someone with long fingernails.

In an effort to defend tax breaks available only to the oil, gas, and extractive mineral industry, a variety of commentators are claiming that reference to “subsidies” received by the industry ought not include tax breaks. For example, in this American Spectator article, Bernard L. Weinstein asserts that:

But the industry doesn't actually receive "subsidies." What it does receive is access to the same "deductions" that are available to most corporations. Simply put, deductions from gross revenue allow businesses to write off legitimate expenses incurred in the production of that revenue to ensure that taxes are levied on net income.

By contrast, a "subsidy" is a direct payment from the government -- i.e. taxpayers -- to a business enterprise.

It’s not only commentators who make this claim. Senator Scott Brown has stated that “Oil companies don’t get subsidies. . . . I’m positive. They’re able to take deduction like every other business.”

There are two different issues to consider when analyzing these statements. One involves the meaning of subsidy. The other involves the tax breaks available only to the oil, gas, and extractive mineral industry.

About a year and a half ago, in Whether There is Money Depends on Who’s Asking, I explained, “Tax breaks, of course, are nothing more than government spending equivalent to a direct grant to the taxpayer getting the tax break.” Weinstein wants people to think there is a difference between getting a check from the government and getting a reduction in tax liability from the government. If A wants to give $10 to B, does it matter whether A writes B a check or A tells B to reduce the amount that B owes A on a previous loan? A list of experts who agree that tax expenditures are the equivalent of subsidies, and it surely is not a complete list, is nicely set forth by EcoWatch and include the Joint Committee on Taxation, the Tax Policy Center, the Pew Charitable Trusts SubsidyScope, and the Center for American Progress. The attempts by Weinstein, Brown, and the others who are trying to mask subsidies as something other than subsidies are simply wrong, and though some of them may be ignorant and misled by the industries in question, others are deliberately incorrect.

At about the same time, addressing the issue of tax breaks for the oil and gas industry, in One of the Great Mysteries of Tax Law?, I explained why it is disingenuous to claim that a subsidy is not a subsidy if it is clothed as a tax break:

Distinguishing tax incentives from subsidies for special interests is very difficult, if not impossible, because in many instances they are the same thing. It can be argued that all subsidies for special interests embedded in the Internal Revenue Code are tax incentives, because these subsidies are in the form of incentives that reduce tax liability. However, there are tax incentives that are not subsidies for special interests because they are available generally and are not limited to a select group of taxpayers. For example, . . . the deduction for income or sales taxes, because that deduction is available to all taxpayers. Yet there are tax incentives in the form of subsidies for special interests. For example, section 181 permits taxpayers who produce films and television programs to deduct costs in a more favorable manner than taxpayers in other industries whose deduction is computed under less generous depreciation deductions.

There is no question that every tax break available to an oil, gas, or extractive minerals business that is not generally available to all businesses is a subsidy.

The resolution of the first issue turns attention to the second issue. Are there tax breaks available to the oil, gas, or extractive minerals industry that are not available to other taxpayers? Absolutely. In in One of the Great Mysteries of Tax Law?, I explained two of the tax breaks available only to oil and gas companies, specifically, the deduction for depletion and the deduction for intangible drilling costs. There are at least seven others, as outlined in this list.

Consider the percentage depletion deduction. It permits a taxpayer to deduct the cost of its oil by subtracting from gross income a percentage of the income generated by the sale of that oil. For example, if a taxpayer pays $100 for the right to extract the oil in a specific place, and sells that oil for $1,000, the taxpayer’s depletion deduction easily can exceed $100. Taxpayers in other industries do not have this tax advantage, though surely they would like to benefit from such a tax break. Imagine paying $10,000,000 for a building and deducting $50,000,000 over the period of time that the building is owned. To claim, as Weinberg and others do, that “What [the industry] does receive is access to the same "deductions" that are available to most corporations” is to misstate completely the reality of the tax law and the tax break in question.

When a special interest or specific industry gets a tax break, it causes one or the other, or a combination, of two things to happen. First, if nothing else is adjusted, the reduction in tax revenues causes an increase in the federal deficit, which in turn adversely affects everyone. Second, if revenue is maintained, it means other taxpayers must pay more in taxes to make up for the reduction in taxes for the special interest or specific industry, and that clearly affects everyone. I wonder if, when the hero of the business world speaks with disdain about those who allegedly think they are entitled to government hand-outs, subsidies, and similar breaks, the special interests and specific industries that benefit from tax breaks are crossing his mind. Or does he, too, erroneously conclude that a tax break for a specific industry or special interest is not a subsidy?

I’ve known for many years that K-12 teachers dip into their own funds to provide supplies and materials for their students because school districts, constrained by insufficient tax revenues, are unable to provide what is necessary for children to learn. I’m aware of this problem not only because there are K-12 teachers in my near and extended family, but also because for taxable years beginning during 2002 through 2011 the federal income tax law provides a tax break for these expenses. Under section 62(a)(2)(D), an exception to the requirement that employee business expenses be treated as itemized deductions, and thus often wasted on account of the standard deduction, exists for employee business expense deductions “not in excess of $250, paid or incurred by an eligible educator in connection with books, supplies (other than nonathletic supplies for courses of instruction in health or physical education), computer equipment (including related software and services) and other equipment, and supplementary materials used by the eligible educator in the classroom.” This exception permits the taxpayer to deduct the expenses in computing adjusted gross income, the effect of which, generally speaking, is to reduce taxable income by the amount of the deduction, thus reducing tax liability. The $250 limitation means that somewhere between $10 and $75 of federal income taxes is saved by the K-12 teacher who is bearing a disproportionate burden of financing the education of the nation’s future.

Last week, I received an email directing me to the web site for Takepart’s Great Back-to-School Challenge. What got my attention is the scope of the problem. According to the web site, American teachers dish out THREE BILLION DOLLARS each year to buy supplies for their students. I don’t think the three billion dollars includes the amounts paid by teachers to provide their own teaching supplies. According to census figures, there are about 7 million K-12 teachers in the United States, some of which surely teach at private academies whose staff is not required to dig into their own pockets to fund the education system. If roughly 5 million teachers are privately funding their students’ education, the three billion figure means each teacher is spending about $600 each year to help their students with expenses that the citizenry fails to fund. A federal income tax savings of $10 to $75 doesn’t make much of a dent in what amounts to a $600 pay cut.

The sad thing about section 62(a)(2)(D) is not that it is more symbolic than anything else, but that it even was needed in the first place. How many wait staff in restaurants end up paying, out of their own pockets, for tablecloths and utensils for the customers to use? How many bank loan officers are required to pay, out of their own pockets, the cost of the forms that they hand to customers to fill out? How many electric utility repair personnel pay, out of their own pocket, the cost of the trucks they use to travel to, and repair, downed wires? How many hedge fund managers are required to pay, out of their own pockets, the cost of the computer software used by their firms?

In many respects, the three billion dollars shelled out by teachers is a hidden tax. It’s a tax on teachers. It’s not a tax paid by wait staff, bank loan officers, utility workers, or hedge fund managers. Section 62(a)(2)(D) does not solve the problem, nor could it, nor should it. At best it was a very leaky band-aid. So when proponents of reducing taxes on the wealthy complain about how little in taxes allegedly are paid by the non-wealthy, they ought to take this hidden tax, and others like it, into account.

If asked which I dislike the most, tax ignorance or political ignorance, my reaction is to duck the question, not by saying “both, equally,” but by pointing out they are difference facets of the same thing, namely, civic ignorance. The sad and sorry state of knowledge and understanding among the citizens of this nation is appalling. I’ve shared my views on tax ignorance in posts such as Tax Ignorance, Is Tax Ignorance Contagious?, Fighting Tax Ignorance, Why the Nation Needs Tax Education, Tax Ignorance: Legislators and Lobbyists, Tax Education is Not Just For Tax Professionals, The Consequences of Tax Education Deficiency, The Value of Tax Education, More Tax Ignorance, With a Gift, Tax Ignorance of the Historical Kind, and A Peek at the Production of Tax Ignorance. Now there is an opportunity to appreciate the extent to which the two aspects of civic ignorance reinforce each other.

According to recent Reuters article, describing a Reuters/Ipsos poll, when asked if the wealthiest Americans should pay higher taxes than they now do, more than 80 percent of those interviewed agreed. But when asked who had the “better approach” to taxes, 35 percent favored Mitt Romney and only 25 percent favored Barack Obama. That means at least 55 percent of those polled, though agreeing with a major element of Obama’s tax policy approach, preferred the approach of someone who wants to reduce taxes on the wealthy. The same sort of incongruent poll responses were generated by questions dealing with health care and public assistance. If the poll results are extrapolated across the population, there are a huge number of very confused or very irrational people in this nation. Or perhaps it’s a matter of people letting their emotions, subconscious or otherwise, color their analysis. Read the article, to the very end.

Here’s a question for NFL fans. Can you identify the only NFL stadium built without any public funding? The answer is provided in this article. The point of the article is that all sorts of private enterprise sports businesses grab funding from the government revenue streams that many of their owners attack as unwarranted. The article, for instance, notes the Bloomberg News analysis showing that $4 billion of taxpayer subsidies have been pumped into sports stadium and arena construction since 1986, through tax exemptions and subsidized bonds. One example provided by the article is the property tax exemption granted to the owner of the Dallas Cowboys franchise for its stadium.

The point made by the article isn’t new. Eight years ago, in Tax Revenues and D.C. Baseball, I explained why, given the finite limits of government revenue and spending, private sports franchise owners ought not be grabbing for public financing when so many other more basic needs, such as food and shelter, are unmet. Earlier this year, in Putting Tax Money Where the Tax Mouth Is, I again explained the problem: “Private enterprise, which for the most part rejects taxation and government regulation, is quick to find ways to tap into public funding that is financed by the very tax systems that private entrepreneurs detest.” These are but two of the several posts that I’ve shared focusing on the misdirection of tax revenues from the hands of the average taxpayer into the wealthy owners of private enterprise.

It amuses me to listen to the private sector claim that “we built it.” Surely the private sector has built things, but the public funding of sports arenas and other private enterprise facilities, such as warehouses, factories, and office buildings, makes it impossible to consider the private sector claim as anything other than, at best, a gross exaggeration, and at worst, a calculated lie. Perhaps what is lost on the folks making this argument is the irony of the location selected by the Republican Party for its convention. The Tampa Bay Times Forum was built by, and is maintained with, public funds, as described on its website. Perhaps the solution is to cut taxes and simultaneously cut all tax breaks for the “we can build it ourselves without any government help” private sector. What better way to bring the anti-tax crowd out to show its true vision of tax policy.

Six months ago, in Taxes, Citizenship, and Shame, I reflected on the effectiveness of publishing the names of tax scofflaws, noting “We live in an age when shame does not have the effect it once did.” A month later, in Cheating, Taxes, and Shame, I reacted to a survey showing that being caught cheating on one’s taxes did not generate as much shame as three other behaviors. With almost half of Americans, according to the survey, unashamed about cheating on their taxes, some other incentive is necessary.

One of my readers brought to my attention something that California is doing with respect to tax cheaters. He pointed me to this article, which describes how California Assembly Bill 1424, enacted a year ago, will allow the Medical Board of California to deny an application for licensure or to suspend the license of any licensee owing more than $100,000 in California taxes. The article referred to a press release from the Board.

The reader asked, quite understandably, “Do certain occupations or professions have a higher duty to pay their taxes in full and on time?” In other words, why pick on doctors?

Curious, I dug up Assembly Bill 1424. Among the many things it does, it requires the State Board of Equalization and the Franchise Tax Board to publish a list of the 500 largest tax delinquencies. It requires the Franchise Tax Board to include additional information on the list with respect to each delinquency, including the type, status, and license number of any occupational or professional license held by the person or persons liable for payment of the tax and the names and titles of the principal officers of the person liable for payment of the tax if the person is a limited liability company or corporation. Assembly Bill 1424 also requires a state governmental licensing agency that issues professional or occupational licenses, certificates, registrations, or permits, to suspend, revoke, and refuse to issue a license if the person’s name is on the list of delinquents.

So it turns out that California is not picking on doctors, though it appears to be picking on tax delinquents engaged in a business or activity that requires any sort of state licensing. But, not surprisingly, there are exceptions. The provision does not apply to the Department of Motor Vehicles, the State Bar of California, the Alcoholic Beverage Control Board, or the Contractors’ State License Board. So, it turns out after all that California is singling out some professions and occupations, but not all, for this income-jeopardizing consequence. For most licensed professions and occupations, loss of license is tantamount to loss of income.

The first set of questions addresses the scope of the provision. Why not permit the revocation of law licenses held by lawyers who are delinquent in their taxes? Why not revoke the licenses of bars and restaurants that are delinquent? What about contractors who aren’t current in meeting their tax liabilities? And why limit this approach to licensed professions and occupations? Why not pull the driver’s license held by a delinquent taxpayer?

The second question addresses the effectiveness of the provision. If losing one’s license to practice a profession or occupation reduces or eliminates the person’s income, would that not also reduce state revenue by reducing the tax base? I suppose that the answer is an expectation that the business would be taken to another professional or entrepreneur, who thus would earn more income and pay more taxes to offset the revenue loss incurred by the income reductions afflicting those whose licenses have been revoked.

Assembly Bill 1424 also prohibits California state agencies from buying goods or services from a contractor whose name is on the delinquent taxpayer lists. Though this cuts back to some extent the exception made in favor of contractors, it doesn’t have any impact on contracts not involving California.

The new law appears designed more as an incentive to compliance than as a punishment for noncompliance. Yet something more than mere shame is involved when a person not only sees his or her name appear on a tax delinquent list but also sees his or her license to practice or engage in an occupation revoked and watches that revocation receive state-wide publicity. The question is whether this “something more” is enough.

It is understandable why do-it-yourself lawyering has become popular. Although there always have been a few people who, for reasons of thrift or to prove to themselves that they were no less capable of handling their own legal matters than an educated lawyer, decided to be their own lawyer, in recent years do-it-yourself lawyering has become ever more commonplace. Part of the reason is that the cost of retaining an attorney has become increasingly less affordable for growing numbers of people in a shaky economy, and part of the reason is the proliferation of web-based do-it-yourself lawyering kits.

A recent Tax Court case, Larievy v. Comr., T.C. Memo 2012-247, demonstrates the adverse tax consequences of venturing into do-it-yourself lawyering. Acting as one’s own lawyer without the appropriate training can pose all sorts of other adverse outcomes aside from tax, but I leave those issues aside. In Larievy, a husband and wife decided to divorce. In 2004, they agreed to separate. Without consulting an attorney or any other professional, they reached an oral agreement that the husband would pay $2,605 each month for the living expenses of his soon-to-be former wife and for their children. Four years later, in May 2008, they filed for divorce, again without consulting an attorney or other professional. On December 1, 2008, the court entered a divorce decree, which included a provision that the former husband would pay $1,400 each month in alimony to his former wife, to continue until either one died, but that beginning on June 1, 2009, the amount would be reduced to $1,100 through June 1, 2013. The husband made the $2,605 payment each month, except for one month in which he wrote a check for $2,600. In the papers filed with the court in 2008, the former spouses included a document that recited the history of the payments made since 2004 but did not indicate how much of the $2,605 was for spousal support and how much was for child support. Apparently the husband and wife had an understanding of how the $2,605 was split but they did not reduce that understanding to writing until it was set forth in the December 1, 2008, divorce decree.

The former husband deducted the payments as alimony. However, no deduction is allowed for alimony unless the amount that has been determined is in writing. The statute, the regulations, and previous case law establishes that principle. Even if the agreement to pay $2,605 per month had been put in writing, the failure to designate the portion that was child support also would have precluded the deduction. In this instance, as the court explained, “no qualifying written divorce or separate agreement existed until December 1, 2008.”

It is unfortunate that because, for whatever reason, the former spouses did not have the benefit of professional advice, the former husband lost significant deductions and thus paid more federal income tax than would have been payable had the simple task of putting in writing the agreement and the specific alimony and child support amounts. The taxpayers were not trying to game the system. They were not trying to hide income in overseas bank accounts. They were not trying to make use of offshore tax shelters. They simply did not understand the technical requirements of the tax law.

How can similar outcomes in the future be prevented? Although simplifying the tax law is one quick response, it isn’t applicable in this situation because the whole point of requiring a writing is to provide the requisite proof of the agreement. In this instance, the taxpayers were derailed by failing to put an agreement in writing, a wise move in most transactions in life, and not just for tax purposes. Somewhere along the line, the taxpayers either did not hear or did not get the message, put it in writing. Lawyers often are accused of slowing down transactions or complicating deals when they insist on a writing, and even face charges of being unromantic when advising couples to sign ante-nuptial agreements, but there are too many situations in which the lack of a writing worked to the detriment of someone. Under the circumstances at issue in Larievy, the risk of being unromantic surely was not a concern. It’s just that there was no one, lawyer or otherwise, reminding the taxpayers that a written document is a wise choice even when not required by law.