MauledAgain

Eight years ago, in Taxing the Internet, I pointed out that “when it comes to taxing transactions and activities conducted on or through the internet, or taxing access to the internet, those transactions, activities and access should be taxed no differently from the way in which transactions and activities conducted through means other than the internet are taxed” and proposed that states should “tax retail transactions as catalog sales are taxed, imposing use tax collection responsibilities on those with sufficient nexus to the taxing state.” Three years later, in Taxing the Internet: Reprise, I reacted to the introduction of legislation allowing states to shift use tax collection responsibilities to merchants with no connection to the state, noting that despite the claims of advocates for this approach, state 1 has no “independent and sovereign authority” to impose a sales tax on a transaction that takes place in state 2, or to require a merchant in state 2 with no nexus in state 1 to collect use tax on behalf of state 1. I reminded readers that “What’s hurting states is their unwillingness to do what must be done to collect use taxes.” Three years later, in Back to the Internet Taxation Future, reacting to a reappearance of the proposal to permit state 1 to require retailers in state 2 with no state 1 connection to be taxed by state 1, I explained why progress had not been made, pointing out the inability of legislators and others to distinguish between sales and use taxes, the silliness of claims that internet retailers are not required to collect sales taxes at all for any state, the unwillingness of state legislatures and state revenue departments to identify and audit taxpayers not in use tax compliance, the mischaracterizations of the Supreme Court’s 1992 decision in Quill Corp. v. North Dakota, and the inability of legislators, state employees, and citizens to understand the limitations of the Due Process Clause. A week later, in A Lesson in Use Tax Collection, I took a look at California’s approach of requiring in-state business entities to register and report their out-of-state purchases, an approach not without flaws but a step forward in the correct direction. A little more than a year ago, in Collecting the Use Tax: An Ever-Present Issue, I revisited the issue, because a news report about Pennsylvania’s Governor Corbett attempt to deal with the problem of collecting use taxes from state residents who make purchases outside of the state. What had gotten my attention was misstatement of the law embodied within a quote from Christopher Rants, the president of the Main Street Fairness Coalition. The Coalition argued, understandably, that out-of-state on-line retailers not collecting sales or use taxes have an advantage over in-state, bricks-and-mortars retailers. But when Rants asserted that states “can only collect from out-of-state retailers on a voluntary basis,” he presented a proposition that is true only if the retailer has no nexus with Pennsylvania. If the retailer has a Pennsylvania nexus, it is required to collect the tax. The same sort of misunderstanding of sales and use tax imposition and collection law triggered A Peek at the Production of Tax Ignorance, where I debunked the assertion that a resident of Pennsylvania can shop in Delaware without paying sales or use tax.

Because states cannot compel a business to do use tax collection for it unless the business has nexus with the state, some states are attempting to expand the definition of nexus so that it makes nexus exist under pretty much all circumstances. For a variety of reasons, it is wrong, both as a matter of policy and as a matter of efficiency and administration, to require businesses lacking a real connection with a state to do use tax collections for the state. That argument was raised recently in a commentary by Bartlett D. Cleland of the Institute for Policy Innovation. Unfortunately, Mr. Cleland paints the effort to shift collection responsibilities as the imposition of a tax on the retailers, whereas in fact the retailers would not be paying a tax, but passing along a tax imposed on their customers. What is being imposed on the retailers is the aggravation and financial cost of being required to collect taxes for a state with which the only connection is the ability of a resident of that state to view a retailer’s web site on servers not located in that state.

Compelling a business to collect use tax for a state is not “a radical expansion of government taxing power.” It does not change the scope or computation of the use tax. What it does is to force out-of-state retailers to function as tax collectors for the state. It constitutes a radical expansion of government police power. In that context, objections can be raised that might not find strong ground if the proposal to expand nexus is viewed as an expansion of the taxing power. Similarly, when Mr. Cleland describes the proposal as one that would permit a state to engage in “taxing businesses anywhere,” it overstates the flaws of the proposal and makes it easier for the proposal’s advocates to defuse objections to the proposal. On the other hand, when Mr. Cleland describes the proposal as one that “would be to accept state government as limitless as the Internet,” he makes the point the way I think it should be made.

Compelling a business to collect use tax for a state is not, as Mr. Cleland puts it, “taxing without representation.” The use tax is imposed on the retailer’s customers. Compelling a business to collect use tax for a state is “forcing a business to do work without representation.” That is, in some ways, a more serious matter. The use tax itself, like a sales tax, can be passed along to customers, because they are the ones with an existing legal obligation to pay that tax, though few do. The cost and aggravation of functioning as a tax collector for a state in which the retailer does not do business can be passed along to customers only if the retailer wants to risk losing customers because of the price increase.

Perhaps a better approach is for states to seek voluntary contracts with out-of-state retailers, compensating them for serving as tax collectors. There may be state Constitutional provisions or legislation that prohibits contracting tax collection to out-of-state individuals or entities, though I doubt that is the case. For some businesses, being compensated to engage in use tax collection might help the bottom line.

To be clear, I do not disagree with Mr. Cleland’s dissatisfaction with the proposal to change the definition of nexus in a way that makes every business responsible for tax collection duties for thousands of state and local governments. I simply think that the objections should be articulated in a manner that reflects the problem, which is not an expansion of taxing power, but the imposition of involuntary tax collection duties.

About a month ago, in Say One Tax-and-Spending Thing, Do Another, I criticized the politicians and government officials who claim to oppose government spending but who nonetheless support the distribution of taxpayer dollars when doing so benefits a pet project or a beloved patron. Now comes a story about a political commentator who vociferously condemns the federal flood insurance program but who, it turns out, has on three occasions collected federal flood insurance money to rebuild his beach front house.

Understand, I’m not a fan of the federal flood insurance program in its current form because it fails to discourage the ever-increasing development on barrier items and in flood-prone areas. Casualty insurance companies will decline to issue insurance when the applicant’s property violates safety codes or otherwise presents too big of a risk. The amount of human suffering and property losses caused by destructive storms and earthquakes can be, and have been, reduced by insurance company insistence on risk mitigation.

Yet it boggles my mind that someone who thinks that the federal flood insurance program should be eliminated takes advantage of it, not only enrolling in its coverage, but collecting payouts three different times because a beach house is built where it will be knocked down. John Stossel, the commentator in question, agrees with me that the program foolishly is “encouraging people to build homes in high risk areas.” If that is how he truly feels, then why is he building and rebuilding his home in a high-risk area? Is he a subscriber to the philosophy of “do as I say, not as I do”?

Why is the federal government running a flood insurance program? The answer is simple. Private insurers declared the peril of flood to be “uninsurable.” The recent barrage of intensely destructive storms demonstrates the difficulty in providing flood insurance. The damage is so catastrophic over so wide an area that the premiums necessary to cover losses become prohibitively high. In addition, the government can order property owners in flood areas to purchase the insurance, whereas private companies cannot do so and are at the risk of having as customers only those property owners in extremely high-risk areas.

It is fairly easy to respect someone’s position when they live up to its principles. It is extremely difficult to respect the opinions of a person who fails to behave in a manner consistent with how they claim everyone else should be acting.

During debates about taxes and government, one of the examples posed as justification for using taxes to fund a federal government big enough for a twenty-first century nation and the challenges facing it is the role of the federal government in helping citizens cope with disasters. Though some hard-line extremists on one side are taking the “let them drown, let them die, let them starve, let them freeze” position, the vast majority of Americans understand the effectiveness of disaster relief funded and implemented at the federal level. Though some disasters are localized, many and perhaps most are interstate events.

Yet despite the general American understanding of the role a national government must play when dealing with national disasters, some politicians, their financial patrons, and their cronies prefer that the federal government, and in some instances, all governments, abandon their disaster assistance efforts. For example, as summarized in this report, House Republicans passed the Sequester Replacement Reconciliation Act of 2012, which, had the Senate agreed, would have eliminated the Social Services Blog Grant program which, among other things, funds disaster relief, even though it has lost 77 percent of its value since 1981 due to inflation and budget cuts. In the Budget Control Act, one of the provisions on which House Republicans successfully insisted was a $900 million cut from the budget of FEMA.

Disasters demonstrate yet another consequence of trying to shrink or eliminate government, particularly its function of leveling the playing field. According to a study focusing on Social Vulnerability to Environmental Hazards, inequality was the most important predictor of vulnerability to storm damage. The sorts of factors contributing to vulnerability are the circumstances that federal and state government programs are designed to eliminate, such as lack of access to information and technology, health problems, inadequate housing, and access to political power. Another study,On Risk and Disaster: Lessons from Hurricane Katrina, lack of affordable housing, substandard housing, insufficient financial resources to evacuate in advance of storms, and inadequate education and literacy skills shift the impact of disasters disproportionately onto the poor in the absence of government intervention.

In the meantime, according to this story, the Forest Service ran out of funds to fight forest fires. So it was forced to use its funds slated for fire prevention. Congress eventually transferred some money to the Forest Service, but it still came up short. The formula used for funding the fire fighting efforts is based on an average of the previous ten years of fire fighting costs, but that formula does not work in an era of rapidly expanding fires. There are more fires, they affect wider areas, and they burn more intensely. This trend will continue, just as the trend of increasingly devastating hurricanes and superstorms, a longer tornado season marked by more severe storms afflicting wider areas, and more damaging snowstorms, floods, and mudslides, awaits the nation.

In an age of spiraling disasters and their consequential economic devastation, cutting government is flat out foolish. It’s also immoral.

Once again, thanks to a reader, I have another opportunity to demonstrate why I object to spending tax dollars to finance the sports stadium projects of multimillionaires and billionaires. I’ve tackled this topic on several occasions: eight years ago in Tax Revenues and D.C. Baseball, earlier this year in Putting Tax Money Where the Tax Mouth Is, and two weeks ago in Taking Tax Money Without Giving Back: Another Reality.

This time around, according to this commentary, our attention is drawn to what happened with the financing of the Yankee Stadium parking garages. When the new Yankee stadium was built, the owners managed to extract all sorts of public benefits to assist them. New York City waived $2.5 million in taxes. New York State waived $5 million in taxes. Federal tax breaks amounted to $51 million. New York City dished out $32 million to replace public parks seized by the state legislature. The state’s Empire State Development Corporation contributed $70 million. Some claim that public investment in the stadium and its parking garages comes in at $1.3 billion. Critics has opposed the garages because sufficient public transportation existed in the area, and because the garages are not what is needed to revitalize the neighborhood. Critics predicted that the garages would not be economically feasible.

So what happened? As predicted, the garages are an economic failure. Not surprisingly, the Bronx Parking Development Company has defaulted on $237 million of bonds that qualified for tax-exempt status under three tax systems, city, state, and federal. New York’s mayor has proposed that, “If the owners of the parking garage can’t make money, that’s sad. We’ve got to find a way to help them.” Really? What about the people who can’t make money because the jobs for which they are educated and qualified have been shipped overseas? Should “we” help them? If welfare is so bad, as the anti-tax and anti-government forces claim, why do we find the same folks supporting public assistance for millionaires and billionaires? Why?

Since the inception of this blog, each year when Halloween rolled around, I have focused on a connection between that holiday and taxation.
In Taxing "Snack" or "Junk" Food (2004), Halloween and Tax: Scared Yet? (2005), Happy Halloween: Chocolate Math and Tax Arithmetic (2006), Tricky Treating: Teaching Tax Trumps Tasty Tidbit Transfers (2007), Halloween Brings Out the Lunacy (2007), and A Truly Frightening Halloween Candy Bar (2008), Unmasking the Deductibility of Halloween Costumes (2009), Happy Halloween: Revenue Department Scares Kids Into Abandoning Pumpkin Sales (2010), and The Scary Part of Halloween Costume Sales Taxation (2011), I have aimed for the light-hearted, the ridiculous, or the goofy when describing how Halloween and taxation can intersect. My habit of playing with words found a ready environment when writing about tricks and treats.

This year, Halloween and its eve (which, yes, I know, grammarian friends, is redundant) have brought the worst sort of reason to explore the tax side of Halloween events. It’s not a time to play word games. It’s no fun to consider what the great storm of 2012 has done in terms of deductions for disaster losses, casualty losses, medical expenses, and the tax consequences of business interruption insurance payments and property insurance receipts. This sort of event puts candy and costumes into the background. Tax, of course, doesn’t go away. Nor will the anxiety, the pain, the sadness, the disappointment, and the sorrow that has descended on so many people. There are no deductions for those. Just prayers.

About five months ago, in Are Private Tolls More Efficient Than Public Tolls?, I described why it is wrong to put public assets into the hands of private sector entrepreneurs so that they can enrich themselves at public expense, and how attempts in the distant past and the recent past to provide travel access through private highways failed. I explained, citing earlier posts, how privatization of public highways works for the entrepreneur only by disadvantaging the public. Aside from raising tolls, the entrepreneurs play all sorts of political games to force motorists to use their highways, such as “persuading” legislators to enact laws lowering the speed limits on public highways, adding unnecessary traffic lights and stop signs, and forbidding the widening of, or other improvements to, public highway alternatives to the privatized toll road. Now comes a report describing how the ringleader of the anti-tax movement is partnering with a billionaire to stop construction of a public bridge that would compete with the billionaire’s privately owned, highly tolled, and terribly maintained bridge.

A good bit of commerce and traffic flows between Detroit, Michigan, and Windsor, Ontario. Most of the travel between the two cities goes across the Ambassador Bridge. The Ambassador bridge is owned by billionaire Matty Moroun. The bridge is in terrible condition. The pathway for bicyclists and pedestrians, required by the charter authorizing the bridge, has been closed. Twice in the last three years, a state court has held Maroun’s bridge company in contempt for failing to update access roads and make other improvements required by state and federal law, and put him in jail for one night. Moroun also has been ordered to take down a duty-free shopping complex built on public land on the Detroit side of his bridge. And he faces a new set of fines for selling bad gasoline at that complex and disregarding orders to stop selling the noncompliant gasoline.

To deal with the deficiencies of the privately-owned bridge, authorities in Michigan and Ontario agreed to build a new bridge. Moroun proposed building a second privately-owned bridge, and sued sued to prevent the construction of the proposed public international bridge. Under the agreement, Canada would pay for the construction. The incentive for Canada is that the Canadian end of the privately-owned bridge terminates in local Windsor streets. The proposed new public bridge would connect directly to Canada’s limited access highway system.

Stymied in his litigation efforts to prevent the construction of the new public bridge, Moroun paid more than $4 million to put a proposed Michigan state constitution amendment on the ballot. The amendment would prohibit the building of public international bridges unless approved by two-thirds of the Michigan legislature. Moroun then shelled out more than $9 million to purchase ads supporting his proposed constitutional amendment, falsely claiming that the cost of the proposed bridge would fall on Michigan taxpayers. These misleading, to use a gentle adjective, have been roundly criticized, yet polls show that the proposed amendment is favored by Michigan residents 47 percent to 44 percent. A substantial number of Michigan residents do not live or work within 25 miles of the proposed bridge location, and thus presumably see no direct personal interest in its construction. Moroun’s ads don’t mention the fact that the new bridge would add 12,000 jobs during the first four years of the construction, and 8,000 jobs permanently.

So enter Grover Norquist, king of the anti-tax movement. About a year ago, in Tax Policy, Elections, and Money, If the Government Collects It, Is It Necessarily a Tax?, and Debunking Tax Myths?, I explored the unwarranted and excessive influence that the unelected Norquist holds over federal, state, and local tax policy and decision making, described the adverse effect of his efforts on the American people and the nation’s economy, and concluded, based on his own words, that his anti-tax stance is simply part of his strategy to destroy government.

Norquist, who does not appear to have any connections to Michigan other than his desire to eliminate its taxes, showed up at a press conference to support the billionaire’s proposed constitutional amendment to block a public bridge so that he can maximize his profits while failing to maintain his private bridge properly and failing to comply with court orders. Legal experts are debating whether the constitution amendment would apply to a project already approved, with some concluding that courts would reject retroactive application.

So a so-called billionaire job creator uses his tax cut money to fund opposition to the creation of jobs. People fall for the billionaire’s misrepresentations, and fail to understand what is in their own best interests. An anti-tax, anti-government crusader joins forces with the ultra-wealthy in an effort to continue a privatized bridge that has brought fortune to its billionaire owner and troubles for its users and the neighborhoods of Windsor through which its traffic flows. Will it take another catastrophe, such as a collapse, or a vehicle falling through a pothole, for the public to rise up in indignation? Will the cry then be the familiar “How did the government let this happen?” If so, my response will be, “How did you people let this happen?” I know the answer. You voted the wrong way, and you got what you voted for.

Though I have been accused of being a fan of raising taxes to support increased spending, the reality is that I favor spending reductions when the spending is unwarranted. Unwarranted spending arises in a variety of circumstances.

There are the padded invoices funneling tax dollars to someone’s cronies. That’s wrong. There are the expenses that bring no return, or a benefit less than what has been spent. When dealing with public funds, that’s wrong. There is the spending that would not be necessary but for the negligence of someone whose inattention causes damage to public property. Though the spending is necessary, the cause of the spending is wrong, and ultimately reimbursement should be sought.

And then there is the foolish spending. I first met foolish spending when I was a child, and I listened attentively as my father and his siblings complained about a decision of the Philadelphia School Board to install carpet in an elementary school. I remember one of my uncles commenting, “We don’t need our schools to be Taj Mahals.” Someone else opined that a contractor was getting some sort of deal. One of my aunts pointed out that it is foolish to install carpet in a building where most of the occupants are prone to throwing up, and that cleaning tile floor is much easier than cleaning carpet. Looking back, perhaps I should have said, though surely I would have been admonished for interrupting the adults, that perhaps some contractor running a carpet cleaning business was in on the deal.

Recently, a reader brought to my attention to what I think presently holds the prize for Taj Mahal spending at a school. According to this story, the school district in Allen, Texas, opened a $60 million high school football stadium. The funds came from a bond issue for which 63 percent of those voting gave approval. School district officials explained that it was not their intention to recoup the costs, and that it is not practical to do so.” Although it is expected that revenues will exceed the cost of operations, it is very unlikely that the bond issue will be paid back with anything other than taxpayer dollars.

The stadium in question has a 38-foot wide high-definition video screen, spacious weight rooms, separate practice areas for the wrestling and golf teams, and concrete rather than aluminum stands. The absurdity of the cost is highlighted by the fact that in today’s dollars, the Cotton Bowl cost $4.5 million, and the stadium currently being built by the University of North Carolina-Charlotte is tagged at $45 million. Someone’s making money on this deal, and it isn’t the taxpayers and it isn’t the students.

The absurdity of the decision to spend $60 million on a football stadium is exacerbated by the fact it was done during a bad economy, at a time when school districts are laying off teachers, working with outdated textbooks, enlarging class sizes, and producing students whose world ranking in core subjects continues to drop. It raises questions about priorities. As Ross Perot put in thirty years ago, when there was outrage at the spending of $5.6 million for a high school football stadium, also in Texas, “Do we want our kids to win on Friday night on the football field or do we want them to win all through their lives?” The father of one football player provided a comment that could be considered a response: “There will be kids that come through here that will be able to play on a field that only a few people will ever get the chance to play in.” So it’s good to fork over tens of millions of taxpayer dollars to benefit a few kids? In return, what do the taxpayers get? A more educated nation? A nation whose citizens are competitive in a global marketplace? A healthier citizenry? Or just another version of taxpayer-funded entertainment for the benefit of a select group? What about facilities for the debate team? The language clubs? The science fair? The math contestants? Do they not matter?

The report that I read, one of dozens, used two phrases to describe this use of taxpayer money. One was “monumentally stupid.” The other was “pathetically ridiculous.” I’m having difficulty deciding which is the better description. What I can choose is the report’s final two sentences: “The voters of Allen, Texas ought to be ashamed of themselves, look in the mirror, and ask themselves what’s more important, a cool football stadium or their children’s future? So far, they’ve answered that question incorrectly.” Indeed they have.

Sometimes it’s easy to determine when an idea is gaining traction. The signal is the increase in the frequency and intensity of criticism of, opposition to, and misrepresentations about the proposal. Most ideas that move society ahead leave behind a few people, usually those who have a vested interest in keeping society from moving ahead or who have profited from the disadvantages afflicting society because of the deficiencies that the idea seeks to ameliorate. Such is the case with the mileage-based road fee. I first explored this idea eight years ago in Tax Meets Technology on the Road. A few years later, I visited the topic repeatedly, in posts such as 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?

Over the past few years, particularly during the most recent twelve months, opposition to the mileage-based road fee has become more strident. Today I want to address the objections that have been raised.

One objection that comes up constantly is the claim that the mileage-based road fee is an unwarranted invasion of privacy. This assertion is made, for example, by Anthony Gregory, Felix Salmon, and Ed Morrissey. There are several responses to this concern. First, even though implementation of a mileage-based road fee could provide some information that otherwise would not be available, the jurisdictions that have implemented the fee have not done so, as explained, for example, by James M. Whitty and by the Oregon Department of Transportation. Second, even if the GPS or other system put in place to implement the fee revealed where a vehicle was driven, it would reveal nothing that is within the realm of a reasonable expectation of privacy. It would not disclose who is in the vehicle, what items, legal or otherwise, are in the vehicle, what the people in the vehicle are saying, or what music they are playing. Third, the system put in place to implement the fee would provide little or no information that isn’t otherwise collected by road cameras, traffic light cameras, existing electronic tolling systems, credit card records, the eyes and ears of traffic enforcement officers, and similar technologies and practices currently in place.

Another objection is that people won’t accept a mileage-based road fee or the systems adopted to implement it. For example, Felix Salmon explains that New York taxi drivers went on strike in opposition to the insertion of GPS devices in their cabs. Those devices, however, were intended to be used solely for the tracking of the taxis, in response to complaints about coverage, refusal to pick up passengers, taking unnecessarily longer routes to jack up fares, and similar problems. The drivers were objecting because they knew that the plan would put an end to their shenanigans. It’s not surprising they objected. On the other hand, Brad Plumer reports that after trying the system, 70 percent of drivers had a favorable reaction, thus negating the claim of widespread opposition.

Yet another objection is that the mileage-based road fee would encourage increased fuel consumption because the gasoline tax would be reduced or eliminated. In fact, as indicated, for example, in this report, where the fee was implemented on a trial basis, drivers subject to it decreased fuel consumption. The Oregon Department of Transportation gives an example of why the fee does not encourage the purchase of less fuel-efficient vehicles:

Consider the example of a Prius that gets 48 miles to the gallon and an SUV that gets 15. If gas is selling for $3.30 a gallon (including the 30 cent state gas tax), the Prius will pay 6.9 cents per mile, and the SUV will pay 22 cents per mile in fuel costs and user fees. Taking out the gas tax and adding in a 1.5 cent per mile fee, the Prius will pay 7.8 cents for every mile it drives. Because it’s unlikely that lower mileage vehicles will transition to a VMT fee anytime soon, the SUV will remain on the gas tax and continue to pay 22 cents for every mile driven—nearly triple what the Prius pays, providing plenty of monetary incentive to buy a fuel efficient vehicle.

Although the mileage-based road fee can be adjusted so that fuel-efficient vehicles get a discount, Anthony Gregory claims that doing so would be a consumption tax and a “new invasion of privacy.” The gasoline tax is a consumption tax. The mileage-based road fee is a user fee, and to adjust a user fee to reflect the environmental and energy burden imposed on society by a vehicle is within the bounds of reasonable approaches to paying for vehicle transportation. As for it being a “new invasion of privacy,” that is simply is not so, because for decades state motor vehicle departments have been aware of which vehicles have been purchased, and the fuel-efficiency classification of vehicles is about as public as information can be.

Still another objection is that the mileage-based road fee fails to take into account the fact that some roads are costlier than others. This, too, can be managed through the mileage rate imposed when a vehicle travels a particular road.

Even another objection is that mileage-based road fees do not take into account the fact that vehicles have different weights and cause different amounts of damage to highways, bridges, and tunnels. Again, the mileage rate can be adjusted based on the weight of the vehicle, much like existing tolls are scaled to reflect the weight of, and number of axles on, a vehicle. However, Anthony Gregory, for example, claims that making such an adjustment in the fee would make the system “more invasive and arbitrary.” More invasive and arbitrary than what? Existing toll systems? What is arbitrary about the weight of a vehicle or the number of its axles?

There are two objections to the mileage-based road fee, implicitly raised by Stephen Frank, that present serious concerns. One is that some jurisdictions are not following appropriate procedures as they consider implementing the fee. I agree. No fee or tax should be adopted without the appropriate process being followed. The other is that some jurisdictions propose using the revenues from the fee to fund things other than roads, bridges, and tunnels. Again, I agree. I have addressed the inappropriateness of diverting user fees 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.

At least one critic, Felix Salmon, thinks that the mileage-based road fee is all about reducing congestion, and claims that national implementation of such a fee is difficult, offering little marginal upside compared to charging fees to enter cities. The problem with this perspective is that it treats traffic congestion in cities as imposing a social cost but ignores the social costs generated by vehicles used outside of cities.

Perhaps it is Anthony Gregory who raises the curtain on where much of the opposition to the mileage-based road fee is originating. He advocates a “free market in road maintenance” and asserts that government cannot mimic the market, and can only distort it. What distorts the free market is the flood of cheating, Enron-style management, defective and dangerous products, misleading warranties, planned obsolescence, monopolistic practices, and other unacceptable behavior that infects the “free” market, and would destroy it but for the intervention of society as a whole through its instrument, government regulation. Gregory admits that he wants government out of roads, and a return of roads to the private sector. Anthony, we’ve been there, done that. I discussed the history of private highways, and the eventual abandonment of that inefficient system, in Are Private Tolls More Efficient Than Public Tolls?

The short version of the attempts by private money-seekers to discredit the mileage-based road fee and push for privatizing highways is instructive. The same crowd that blasts any transfer of public funds to private individuals to save lives, protect health, provide food and clothing for the needy, or otherwise benefit anyone not part of the ruling oligarchy turns right around and looks for any edge, valid or otherwise, to divert public resources into their own private pockets. A mileage-based road fee, necessary because of the impact of declining liquid fuels use and reduced revenues from liquid fuels taxes, thwarts the effort to incorporate the nation into a private fiefdom. For that reason, it will be subjected to criticism, and for that very same reason, it must continue to be supported until it fully replaces the liquid fuels tax.

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.