MauledAgain

The first-time homebuyer credit has again been litigated. Three weeks ago, in When the IRC Defines a Term, It Trumps Other Definitions, I explored a case in which the Tax Court rejected the taxpayer’s argument that the definition of a term found in the Internal Revenue Code should be set aside in favor of a definition from another federal agency. Proving that taxpayers will do almost anything to grab a social-policy tax credit, the taxpayers in the most recent first-time homebuyer credit case, Morales v. Comr. T.C. Memo. 2012-341, raised a rather bewildering argument.

On April 27, 2006, the taxpayers sold their principal residence. The title company filed a Form 1099-S, Proceeds from Real Estate Transactions, with the IRS. On March 17, 2009, the taxpayers purchased a property on which there were two separate houses. Each of the taxpayers moved into one of the houses and used it as his or her separate personal residence. Each taxpayer filed a 2008 income tax return, and each claimed an $8,000 first-time homebuyer credit.

The Tax Court easily determined that the taxpayers were not entitled to the credit. One of the requirements for a taxpayer to claim the credit is that the taxpayer must not have had a present ownership interest in a principal residence during the 3-year period ending on the date of the principal residence for which the credit is sought. The petitioners purchased the new principal residences on March 17, 2009, which meant that if they owned a present interest in a principal residence at any time between March 18, 2006 and March 17, 2009, they did not qualify for the credit. The taxpayers owned a principal residence from March 18, 2006 through April 27, 2006, and thus they were not entitled to the credit.

The taxpayers argued, however, that the IRS was estopped from asserting that they were not entitled to the credit because “an ordinary examination of the relevant tax documents,” presumably the Form 1099-S, would have indicated that the taxpayers did not qualify for the credit. The Court rejected the argument for two reasons. First, it would place an undue burden on the IRS. Second, it would undermine the effective administration of the tax laws. I would add a third reason. The argument is total nonsense. Examination of the Form 1099-S, together with the 2008 return, would indicate to the IRS that the taxpayers were not entitled to the credit. It is quite probable that the IRS did examine that form, and that’s how the taxpayers’ return was pulled for an audit. The taxpayers’ idea that if the IRS can determine there is an error on a return from looking at the relevant tax documents it is estopped form doing anything about it is absurd. Using the taxpayers’ argument, if a person failed to report wages that showed up on a W-2 filed with the IRS, the IRS would not be permitted to require that person to report the wages. Though it may have been a matter of judicial tact to state the reasons for rejecting the argument in the manner that the court did, there are times, I think, when calling nonsense what it is, nonsense, is valuable. Otherwise, the producers of the nonsense will generate even more nonsense. If one thing is clear, it is that the world doesn’t need more of this sort of nonsense.

High on my list of unacceptable revenue policies and practices is the diversion of revenue from the purpose for which it is collected to some other project or activity. Whether it is a designated tax, a user fee, or a toll, those who pay deserve to get what they are paying for and to be charged no more than is required for the designated purpose. 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.” I have examined this growing trend of revenue diversion 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, Limiting User Fee Use: Beach Tag Fees, and Using Tolls to Fund Other Projects.

Now there is good news from Ohio. Technically, the news is old, and what is new is a recent case from the Supreme Court of Ohio that brought to my attention a provision in the Ohio Constitution, adopted in 1947, that specifically prohibits the use of motor fuels taxes for anything other than fixing roads, bridges, and other transportation infrastructure. In Beaver Excavating Co. v. Testa, (Dec. 7, 2012), the Court held that diversion of commercial-activity-tax (CAT) revenues derived from the gross receipts of motor vehicle fuel sales to non-highway purposes violates Article XII, Section 5a, of the Ohio Constitution. One of the interesting aspects of the case is that the plaintiffs included not only businesses paying the tax in question but also county engineers complaining that the diversion was impairing their budgets for transportation infrastructure projects.

The Court pointed out that the Constitutional provision in question was enacted specifically to limit the use of motor vehicle fuels taxes to transportation purposes. The provision was enacted to put an end to the then-existing practice of using motor vehicle fuels taxes for other purposes. The description of the Amendment is more proof that some things just don’t change: “This Amendment simply says you want your automobile license and gas tax money to go for better roads and streets. * * * Ohio originally promised that automobile license and gas tax funds would go for roads, streets, and related purposes. But
temptation was too great and millions of these special tax dollars have been and are being spent for other purposes.” One must wonder why, with the Amendment having been adopted by the voters, there was need for litigation in 2012.

In 2005, the Ohio General Assembly enacted the CAT to replace the corporate franchise and personal property taxes. The CAT is imposed on business gross receipts. Gross receipts do not include amounts paid by licensed motor-fuel dealers, licensed retail dealers, or licensed permissive motor-fuel dealers in state and federal motor fuel excise taxes with respect to motor-fuel receipts. CAT revenues are deposited in the state’s general fund. The Court concluded that the CAT is a tax that relates to motor vehicle fuel sales, and that to the extent that it does so, the revenue it generates from those sales must not be used for non-highway purposes.

The Court concluded that it was not improper for the state to collect the tax, but that it was a violation of the Ohio Constitution to spend it other than in accordance with the transportation-purposes-only requirement. The plaintiffs did not seek a refund, but an order requiring compliance with the expenditure limitation. Nor did they ask that revenues already improperly spent be restored to the transportation fund. Accordingly, the Court applied its decision prospectively.

The Ohio Constitution provides a model for provisions that protect those who pay taxes, user fees, and tolls from seeing their payments diverted to improper uses. Similar provisions might exist in other states; I haven’t looked because whether or not they do, they ought to exist in every state. I wonder how many state legislators and state employees making spending decisions have read the provision. If they haven’t, it’s time to do so and, while they’re at it, to look at this recent Ohio Supreme Court decision.

A recent poll has reinforced the inescapable conclusion that Americans, as a group, are illogical when it comes to tax and spending policies. When asked whether budget deficits should be reduced by raising taxes or by cutting government spending, 46 percent chose spending cuts and 30 percent chose tax increases. As described in this summary of the poll, in February 2012 the spending cut option found favor with 56 percent, and in March 2011, 62 percent preferred spending cuts.

But when asked to choose which programs should be cut, poll respondents did a collective about face. Raising the eligibility age for Medicare found favor with only 40 percent, in contrast to 48 percent who opposed the idea. Slowing the growth of Social Security benefits was rejected by 70 percent of respondents. Military and defense budget cuts were opposed by the majority of those polled. Spending on those three programs constitutes a little more than one-half of total federal expenditures, although Social Security, standing alone as a separate trust fund, actually generates a surplus at the moment which is used to fund deficits in other areas of federal spending.

These poll results do not surprise me. More than three years ago, in Poll on Tax and Spending Illustrates Voter Inconsistency, I described the outcome of a similar poll in New Jersey:

According to the poll, 68% of the respondents favor cutting programs and services, whereas only 23% advocate increased taxes. Of those answering the poll questions, 75% support a wage freeze for state workers, and 61% advocate laying off state workers. Not one of several state programs nominated for reduced state funding gathered the support of a majority of the poll's respondents. Only 41% wanted to cut economic development spending, 30% would vote for reduced social services funding, a mere 11% favored cuts in education spending, and a scant 7% stood up for reduced health care expenditures.

This lack of unified focus shows up in how New Jersey residents dealt with specific questions. With respect to state spending for local government and schools, 60% want it to remain the same, 20% want an increase, and only 16% favor a reduction. Though 54% oppose school vouchers and 55% do not want to expand charter schools, 51% want increases in state spending on early childhood education.

These results prompted me to write:

The poll reinforces my contention that the underlying problem is the continued demand for government spending on programs that benefit state residents coupled with a continued resistance to the idea of paying taxes in order to fund those programs. The results of the poll suggest the extent to which various programs benefit residents. That explains the support for maintaining or increasing tax rebates even though it requires higher taxes on someone in order to do that. It also explains why so few favor cuts in health care, education, and social services funding, why gasoline tax increases aren't preferred, and why so many were quick to target state employees for pay freezes and furloughs.

This sort of entitlement mentality, a vision that grows out of the "I want, I got, I will continue to get" experience of too many people, suggests that finding a common ground to resolve the tax and spend debate in New Jersey, and elsewhere, will be difficult if not impossible. It's amusing to see that almost everyone understands there is a problem, almost half think it will get fixed, but fewer than half can rally around any specific solution to the fiscal mess.

A year later, in A Grander Delusion: Cut Taxes, Don’t Cut Spending, Cut the Deficit, I examined a poll taken in California:

When asked about ways to cut the state’s budget deficit, respondents preferred spending cuts to tax increases, but they also rejected spending cuts for programs constituting 85% of the state’s spending. The notion that “trimming waste,” as some suggested, can balance the budget when deficits are gargantuan is, as has often been demonstrated, nonsense.

This discrepancy between the desire to pay little or no taxes but yet to benefit from government programs is at the core of the current fiscal crisis in Washington. Things were working well until some geniuses decided, early in the last decade, to cut taxes and to increase federal spending at the same time. Is not the solution to un-do the behavior that caused the problem? What would be the status of the federal budget and the deficit if taxes had not been cut in 2001 and in 2003? What would be the status of the federal budget and the deficit if the increased spending during the past decade had been financed with taxes rather than debt? What would be the status of the federal budget and the deficit if the taxes had not been cut and the spending had been financed with taxes? The answer is obvious, but discussion tip-toes around it, because too many of those responsible for solving the problem had their hands in creating it, and lack the courage to admit their mistakes and to make amends. Political reputation and re-election appear to be more important to these folks than is the overall welfare of the nation.

According to this story, calls for increases in gasoline and other liquid fuels taxes are being put forth by those who understand the need for transportation infrastructure repair funding and who appreciate the declining value of existing fixed-amount taxes that do not reflect the impact of inflation since the taxes were last established. Support for, or at least willingness to consider, the increases is coming not only from the expected people and organizations but even from some who subscribe to anti-tax-increase philosophies. For example, Pennsylvania’s Governor Corbett, no fan of taxation, has admitted to “mulling an increase in one component of Pennsylvania’s gas tax.” New Jersey’s Governor Christie, another critic of taxation, is being pressured to increase gasoline taxes to fund restoration of highways and bridges damaged by Superstorm Sandy. The Republican chair of the House Transportation Committee expressed a “need to explore” the possibility of increasing the federal gasoline tax.

The gasoline tax is an inefficient way of funding the transportation infrastructure. Because it is set as a fixed number of pennies per gallon, decreases in sales – due to fewer miles being driven, more efficient vehicles, increases in the use of alternative fuels, or other causes – translates to a decrease in funding, even though there is not a concomitant decrease in the deterioration of roads and bridges. Add to that the impact of inflation, which increases the cost of repairs, but which is not reflected in adjustments to the fixed per-gallon tax amount. The federal gasoline tax was last adjusted 19 years ago. New Jersey adjusted its gasoline tax 24 years ago, and Pennsylvania’s last reset was 15 years ago.

Last year, in the Philadelphia area, only $1.4 billion was spent on a system that needs $2.5 billion a year to remain safe and functional. Which anti-tax advocate wants to be on the bridge that collapses because there was no money for repairs? One of the proposals being examined by Governor Corbett would increase the gasoline tax by 22 cents per gallon, though phased in over five years. At present, this tax is capped at a per-gallon price that is roughly half the current market price. In New Jersey, advocates of an increase are trying to sell a 10 cent increase, which would still leave New Jersey with one of the lowest gasoline taxes in the country.

Leaving gasoline taxes at their current levels guarantees more bridge collapses, and pothole-caused front-end alignment repair costs that will take more out of motorists’ pockets than the proposed tax increases. The best approach, of course, is to implement the mileage-based road fee, which I have discussed over an eight-year period, in Tax Meets Technology on the Road, 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, Is the Mileage-Based Road Fee So Terrible?, and Defending the Mileage-Based Road Fee. If governors and legislators cannot bring themselves to step into the twenty-first century when it comes to maintaining the common weal, then they at least need to summon the courage required to raise the gasoline tax and prevent an ever-increasing parade of catastrophes.

The other day, a reader alerted me to a New York Times story that resonated with some positions I’ve taken with respect to federal, state, and local tax breaks for private companies, and Paul Caron picked it up in his Monday TaxProf blog items.

The point made by the story in its extensive analysis of private company tax breaks is a simple one. Governments give tax breaks to companies because the companies promise economic advantages to the government and the people within its jurisdiction, but far more often than not the companies renege on their part of the deal and the governments end up in a worse economic position than they be absent the tax breaks. A similar conclusion was reached in a Oregon Public Interest Research Group report on Oregon tax credits. The conclusion reached in these and similar reports is not a surprise, as it is something that I’ve been suggesting for quite some time. In posts such as Tax Breaks, Politician Takes, Using Taxes to Rescue a Non-Drowning Film Industry?, Do Profitable Companies Need Tax Breaks?, You’ve Gotta Give ‘Em (a Tax) Credit?, When Spending Exceeds Revenue, Hand Out Tax Credits? Really?, and Are State Tax Incentives Worth It?, I criticized special tax breaks because they are unwarranted government spending that benefits private companies and that provide an insufficient economic return on the expenditure. I argued that profitable companies do not need tax breaks, and unprofitable companies ought not be kept afloat with tax dollars because those companies either are engaging in activities rejected by the market or are engaging in de facto unprofitable but necessary activities that belong within the scope of government activity subject to public ownership rather than private inurement.

These tax breaks are nothing more than welfare payments to private enterprise. Opponents of social welfare spending defend these outlays with as much passion as they bring to their attempts to end government assistance for individuals in need of help. One of their favorite arguments is that these tax breaks do not constitute spending because they simply permit a taxpayer to keep the money that belongs to it. This argument is raised in commentary such as Education Tax Credits Are Not Government Subsidies. The reason the argument is wrong can be illustrated by an example. Assume that a government imposes an income tax equal to 20 percent of income, however defined. Taxpayers have income of $100,000,000 and pay $20,000,000 in income taxes. Along comes a special interest group that lobbies for an income tax credit equal to 10 percent of the cost of filming a movie within the jurisdiction of the government, and that the credit will bring $10,000,000 of movie making business into the jurisdiction. The group claims that the $1,000,000 credit will generate more than $1,000,000 of additional tax revenue for the government because of the economic activity triggered by the movie making activity. What the reports are telling us is that these predictions, not unlike those about trickle-down economics and job-creating tax cuts for the rich, are bogus. What the credit requires is one of three things, or some combination thereof. First, all taxpayers other than the movie company must collectively fork over $1,000,000 to make up for the lost revenue. Second, the government must borrow $1,000,000 and incur a deficit. Third, the government must cuts vital services to prevent a deficit from being incurred, thus depriving other taxpayers of $1,000,000 of services for which they have paid. As I explained in Using Taxes to Rescue a Non-Drowning Film Industry?:

In order for the tax burden of the film industry, for example, to be reduced, the tax burden of other taxpayers must be increased. Or, state tax expenditures on health, safety, education, and other essential and legitimate government services need to be cut, shifting the cost to the population generally, particularly through increases in local taxes. This puts upward pressure on the wage demands of workers in the state, it puts upward pressure on prices charged by other entrepreneurs in the state, and it puts upward pressure on interest rates as localities increase borrowing to cope with the impact of the state income tax incentive. Though the arrival of a production in the state brings a temporary boost to that state's economy, particularly that of the area in which the production exists, it isn't necessarily sufficient to offset the negative impact of the true cost of the specialized tax incentive. After all, the decision to bless one industry, thus shifting costs to another industry, may encourage those other industries to leave the state.

Even if one accepts the idea that this sort of government spending isn’t spending but a mere tax reduction, providing tax breaks to one group of taxpayers but not to another means that taxpayers not getting a special tax break are paying taxes at a higher rate that are those feeding at the tax break trough. One would expect the anti-tax crowd to express deep indignation about this sort of hidden tax burden, and although some who subscribe to the anti-tax philosophy do criticize this inequality, many, too many, say nothing. Why? Perhaps because a transparent direct subsidy to the special interest group would be seen for what it is, would be less defensible in terms of the deceptive “keeping their own money” nonsense, and would be more easily understood as an outlay that harms society both in the short-term and in the long-term when it comes to the promised, but unfulfilled, economic payback. For those who want to cut government spending, try starting with the hidden expenditures deceitfully tagged as tax breaks and providing an advantage to particular private sector entities while putting other taxpayers at an economic disadvantage.

At the end of October, news stories, including this one, reported that hackers had managed to obtain millions of social security numbers, bank account data, credit card numbers, and business records by breaking in to South Carolina Department of Revenue computers. It isn’t difficult to imagine the far-reaching scope of the potential damage that has been done. A report released by investigators explained that the hacking was made possible by a Department of Revenue employee falling for a phishing email and providing username and password information.

Last week, the governor of South Carolina, according to this story, blamed the Internal Revenue Service. The governor’s reasoning is appalling. According to the governor, the IRS does not require South Carolina to encrypt social security numbers. So what? Is the South Carolina Department of Revenue incapable of figuring out on its own that sensitive taxpayer information should be encrypted? It’s not rocket science. Of course, South Carolina has now decided to encrypt social security numbers, but closing the barn door after the horses escape is too little, too late. According to another report, the Department had explored encryption on at least two previous occasions but for unknown reasons did not pursue the proposal.

According to this report, the intrusion would have been prevented had the South Carolina Department of Revenue installed a $25,000 dual password system. The IRS, on which the South Carolina governor is trying to put the blame, uses the dual password system. It’s interesting that the governor wants to blame the IRS for not requiring encryption, but does not explain why South Carolina did not imitate the IRS when it comes to dual password systems.

The Director of the Department resigned. There is no news as to the fate of the employee who responded to the phishing message.

It is a good guess that the failure to adopt the encryption proposals in the past was an attempt to save money. The same explanation probably accounts for the failure to purchase the dual password system. And to the extent that the Department’s use of forty-year-old equipment was a contributing cause of the problem, as mentioned in the official report, it’s also a good guess that failure to update the equipment was an attempt to save money. Just as Congress underfunds the IRS while heaping additional responsibilities on it while it tries to keep up with technological change, one must wonder whether the South Carolina legislature was adequately funding the Department of Revenue. So now the state is spending at least $14 million to fix the damage, including $12 million to purchase credit bureau protection for the affected taxpayers, is taking $5 million from other purposes to install encryption, and probably will spend much more before the entire mess is resolved. I wonder if the folks running the show, including those in other states and in Washington, D.C., ever heard the expression penny-wise, pound-foolish.

In the flurry of news reports about some members of Congress who made the Norquist anti-tax pledge backing away from that promise, such as this story, the discussion of how that may come to pass has received far less attention than it should, though it has received some attention in articles such as this report and this analysis. One avenue of escape from the pledge is the notion that the pledge requires opposition to rate increases but does not require opposition to revenue increases. The reason this distinction exists is because revenues can be increased without raising rates. One way of doing so is to eliminate or reduce exclusions from gross income. Another is to eliminate or reduce deductions. One way of reducing deductions is to subject them to a cap. As Senator Lindsey Graham explained, “I will not raise tax rates to do it. I will cap deductions.” Of course, imposing deduction caps to raise revenue constitutes a tax increase.

The idea of increasing revenue without raising rates is not new. It was implemented years ago when Congress placed a phase-out, which is a type of cap, on the personal and dependency exemption deduction and on select itemized deductions. The reason was an amazing bit of political manipulation. In Objections Raised to Elimination of Legislative Tax Deceit, I explained the background of this maneuver:

These two phaseouts [on itemized deductions and the deduction for personal and dependency exemptions] were enacted in 1990 as part of a Congressional subterfuge, or deceit, foisted upon the American citizenry. When public officials deceive citizens, problems arise. In this particular instance, Congress wanted to raise taxes without raising tax rates, because it concluded that it could tell Americans that it did not raise taxes by pointing to unchanged tax rates. However, "clever" minds figured out that if deductions, in this case itemized deductions and the deduction for personal and dependency exemptions, were reduced, the effect would be an increase in tax revenues. In other words, Congress "discovered" that it could raise taxes without raising tax rates and thus trumpet a self-serving proclamation that it had not raised taxes. The simple word for this is lying.

I revisited the issue in When is a 15% Tax Rate Not a 15% Tax Rate?, in which I noted:

I wrote about this problem 16 years ago, in Getting Hamr'd: Highest Applicable Marginal Rates That Nail Unsuspecting Taxpayers, 53 Tax Notes 1423 (1991). It has been cited and quoted almost a dozen times. I doubt, though, that anyone in Congress has read it. That's too bad, because repairs could be made if members of Congress understood the wool that was pulled over their eyes and the eyes of the citizenry by the folks who shoved phaseouts into the tax law as a way of raising taxes without raising rates.

When comparing the two approaches, I see only one advantage to the use of phase-outs, including deduction caps. Deduction caps permit legislators to claim that they have not raised tax rates, hoping that people interpret this claim as equivalent to not raising taxes. It is a misleading approach.

In contrast, I can identify more than a few disadvantages to using deduction caps. Each one by itself outweighs the seeming advantage. Because deduction caps are like phase-outs, the disadvantages of phase-outs that I examined in detail in Objections Raised to Elimination of Legislative Tax Deceit are no less applicable to deduction caps. I highlight these disadvantages, and others, in the following list.

First, deduction caps, like phase-outs, distort the progressivity of the income tax by creating higher average marginal tax rates for taxpayers not at the top of the income pyramid than apply to those at the top of the income pyramid. If nominal marginal tax rates have as much impact on economic decision making as tax-rate reduction advocates claim, average marginal tax rates have at least as much impact, and the skewing of those rates by the use of deduction caps is not beneficial.

Second, deduction caps, like phase-outs, complicate the tax law. The complication is unwarranted, detrimental, and cost-ineffective. The complication increases the chances of errors on tax returns.

Third, deduction caps, like phase-outs, do not increase tax revenue from all high-income taxpayers. Caps only affect those high-income taxpayers who claim the deductions that are subject to a cap.

Fourth, deduction caps, like phase-outs, do nothing to close the many loopholes used by high-income taxpayers to reduced their effective income tax rates, because most of those loopholes do not involve deductions.

Fifth, a deduction cap on the charitable contribution deduction probably will cause a reduction in charitable contributions by high-income taxpayers. In the long run, this outcome is much more harmful to the economy than raising tax rates.

Sixth, deduction caps, like phase-outs, exacerbate the marriage penalty. There are enough challenges with trying to eliminate that penalty without creating a penalty on unmarried individuals without making the task even more daunting.

Seventh, a deduction cap does absolutely nothing to stop the revenue losses arising from absurdly low tax rates on capital gains and qualified dividends. The current capital gains rates are much lower than they need to be to offset the inflation impact that serves as the justification for the lower rates.

About a year and a half ago, in A Foolish Tax Idea Resurfaces, I criticized the President for including a deduction phase-out in his fiscal year 2012 budget proposal. Apparently the President has seen the light, and according to this story, is rejecting deduction caps in favor of the much more transparent tax rate cut expiration. Two years earlier, in a Tax Change Ought Not Be Tax Redux, I criticized the President’s fiscal year 2010 budget proposal for suggesting that the itemized deduction and personal and dependency exemption phase-outs ought to be restored.

As explained in Objections Raised to Elimination of Legislative Tax Deceit, I successfully campaigned against the phase-outs and they were recently phased out of the tax law. It would be a step backwards to reinstate them, to let them be reinstated through inaction, or to adopt their deduction cap surrogates.

There are better solutions. Replacing deductions with credits is one. Repealing the special capital gains rates and indexing adjusted basis for inflation is another. Restoring progressivity to the tax law to undo a decade’s worth of economic damage caused by the discredited “trickle down” theory is yet another. Repealing special interest deductions is still another. It is time to start talking about genuine cures rather than playing around with attempts to hide the problems and mask the solutions. As I wrote in Tax Change Ought Not Be Tax Redux, “Let's face it. The days of using Pease and PEP to hide tax increases are long gone. Everyone knows the score. Aside from the impropriety of raising taxes using clandestine gimmicks, there's no need to do so. There's no genuine impediment to doing what needs to be done in the way it needs to be done. The bleating from the privileged few that taking away their capital gains break or their special dividend rate will destroy the economy should fall on deaf ears. The special interest groups have cried wolf too many times.”

Students in basic federal income tax courses throughout the country encounter the questions, what is income and what is gross income, early in those courses. By the time that topic has been explored, students have learned that the answer to the first question isn’t easy to define, and that the answer to the second question is complicated and not something that a computer program can resolve. This point is one that seems to sail by those who offer the flat tax or one of its many variants as a solution to income tax complexity.

Recently, Robert Smith of NPR, in a report brought to my attention by a faithful reader, explored how the Mormons define income for purposes of their church’s teaching that each member should tithe 10 percent of income. Though the 10 percent tithing principle is rock-solid, the church does not define income. It leaves that to individual members.

Two economists surveyed 1,200 Mormons. They learned that most would tithe on the amount of a cash gift. But few would tithe on the value of a gift of property. Most would tithe on money taken out of a retirement fund even though they had given 10 percent of the income from which the money was taken to put into the fund. In the tax world, this would be considered double taxation. Yet when asked about proceeds from a garage sale, it appears that no tithe is computed because the items sold “has already been tithed.” Most Mormons who find money would transfer 10 percent to the church. Though Mormons tithed on gain from the sale of stock, most did not offset gains with losses from stock sales. Most Mormons do not reduce income by deductions. Smith tells of a married couple who used different rules before they were married. The husband tithed on gross income, and the wife tithed on income net of taxes. Eventually the husband persuaded his wife to his definition of income.

It appears that Mormons react to cash. It does not appear they tithe on employer fringe benefits such as contributions to health care plans or the use of a company vehicle. One reason may be the lack of information sufficient to permit computation of a tithe. But the difference between the reactions to cash gifts and gifts in kind goes deeper than simply the availability of information.

When asked about the lack of an income definition, a Mormon bishop noted that “all this soul-searching about what you owe God is kind of the point.” Would this approach work with income taxes? I think the answer is no. The relationship between a faithful member of a church – and Mormons are not the only ones who require or recommend tithing – is very different from the relationship between a citizen and a government. People don’t soul-search what they owe to society. Churches can function even if members are not using the same definition of income, and even if members are not giving at uniform rates of contribution. Rarely, if ever, do members of a church get into a dispute with each other because someone contributes at 9.5 percent rather than 10 percent, or someone treats something as income that someone else does not. Surely they seek to enlighten each other, as the two spouses in the anecdote managed to do. In contrast, when it comes to financing society, people bring a very different agenda into the discussion. Unhappiness prevails when someone seeks to gain an advantage with respect to taxation.

Not only is soul-searching absent from tax law discussions, the seeming absence of complexity in a tithing system becomes an avenue for game playing in the tax world. Taxation of cash gifts but not in-kind gifts would trigger a rush to substitute property for cash in the gift-giving world. Would a gift card be treated as cash? Do Mormons tithe on the value of a gift card? I don’t know. What seems clear, though I may be wrong, is that Mormons generally do not rearrange their dealings in order to gain a tithing advantage. I can’t imagine someone saying, “Give me property and not cash so I can avoid tithing.” In the world of taxation, requests and planning along those lines is rampant.

The lack of a definition of income for tithing purposes does not appear to be an impediment. The lack of a definition of income for tax purposes would be fatal to any income tax system. The world of tithing and the world of taxation are two different places, as they ought to be. Though it would be nice if the generosity of tithing and the reluctance to, as one person put it, to get “petty with God,” spilled over into the world of government and taxation, it isn’t going to happen.

Readers of MauledAgain know that I am not a fan of Grover Norquist’s anti-tax-increase pledge tactics nor of the influence this unelected, self-appointed anti-tax activist wields over federal and state legislators. In posts such as Food for Tax Thought?, Tax Semantics, Debunking Tax Myths, Tax Policy, Elections, and Money, If the Government Collects It, Is It Necessarily a Tax?, and When Privatization Fails: Yet Another Example, I have, as noted in Debunking Tax Myths, “explored the unwarranted and excessive influence that the unelected Grover Norquist holds over federal, state, and local tax policy and decision making,” and, “[b]ased on Norquist’s own words, . . . concluded that his anti-tax stance is simply part of his strategy to destroy government.”

Several days ago, in this Huffington Post opinion piece, Norquist offered two “protections available to the American people” to avoid previous experiences of watching legislators rush into adoption of economic or tax programs designed in private and put up for a vote without sufficient time for examination. Norquist suggests that negotiations on dealing with the impending fiscal cliff be aired on C-SPAN and not conducted in back rooms. He also proposes that once an agreement has been reached, it should be reduced to legislative language and then put online for 7 days for all Americans to read.

My first reaction to Norquist’s proposals was a positive one, which is rather surprising considering how adamantly I object to his dogma and tactics. Long before Norquist was pondering taxes, I was bemoaning the back-room approach to politics generally and to tax specifically. And long before Norquist turned his attention to legislative matters, I was also bemoaning the “last minute rush” process that generated legislation with flaws, omissions, and inconsistencies, and that raised more unanswered questions than good legislation ought to present. My students have been listening to these criticisms for all the years that I have guided them through the tax law that has emerged from this inefficient legislative process.

But the more I thought about Norquist’s proposals, I came to see two major concerns. Neither one causes me to object to Norquist’s proposals, but both cause me to look at them more closely.

The first is that the idea of requiring a 7-day period for examination of the legislation presumes that the legislation would be ready in time to permit that examination to take place, and enactment to occur, before the December 31, 2012, fiscal cliff event. The reason for the rush to enactment is that legislatures leave things go until the last minute. Though many people, including students, tend to do this is no excuse for public leaders to emulate bad practice. Instead, they need to learn and apply time management principles. Norquist does not address this underlying cause for the “rush to enact” problem that he seeks to remedy. Perhaps legislatures should be required to begin work on an issue a certain number of days before the deadline and should be prohibited from taking a break or doing anything else until the job has been completed. How that sort of solution can be implemented is not as easy to design as might first appear.

The second is that the idea of moving policy decisions out of the back rooms is not one I would have expected Norquist to make. Six years ago, in Food for Tax Thought?, I commented on a story, about the relationship between lobbyist Jack Abramoff and White House Political Director Ken Mehlman, who by 2006 was serving as chair of the Republican National Committee. One of the conversations in which Abramoff and Karl Rove addressed Abramoff’s efforts to obtain benefits for his clients took place at a "Tax Policy Dinner" hosted at Grover Norquist's home. To this, I reacted by writing, “So, wrapped up in this morass of favors, endorsements, deals, and other shadowy transactions is a thing called a ‘Tax Policy Dinner.’ Hosted, no less, by one of the staunchest opponents of taxation to come along in a long time.” I then added, “It is simply wrong for tax policy to be worked out at a private dinner to which only a select few are invited. When the deal is done before the vote is tabulated, what's the value of the vote?” I am confident that if I had requested this dinner to be broadcast on C-SPAN, Norquist and his cronies would have refused. Now, Norquist criticizes back-room dealing. Does this mean he would open his dinners to public view? Or stop doing public business in private? How does he reconcile his past practices with his most recent proposal? What he says, and how he says it, will be important, if he says anything at all. What he does, and how he does it, will be much more instructive.

On Monday, the Tax Court released an opinion, Cheung v. Comr., T. C. Summary Op. 2012-114, in which it rejected a taxpayer’s argument that the definition of a term found in the Internal Revenue Code should be set aside in favor of a definition from another federal agency. Though it is readily apparent why the taxpayer wanted to take this approach, the Tax Court emphasized that when a term used in the Code is defined in the Code, it is improper to look elsewhere for the definition.

The taxpayer purchased property #1 on October 31, 2003, moved into the house on that property, and lived there until March 31, 2009. On July 26, 2004, the taxpayer married, and on January 18, 2006, his wife moved into the house on property #1, and lived there until March 31, 2009. On March 31, 2009, the taxpayer purchased property #2, and he and his wife moved into the house on that property.

The taxpayer and his wife filed a joint return for 2008, on which they claimed a first-time homebuyer credit. The IRS audited the return and asked for additional information to substantiate the credit. The taxpayer provided the IRS with a U.S. Department of Housing and Urban Development settlement statement showing the taxpayer as the purchaser of the house on property #2 with a settlement date of March 31, 2009. The IRS issued a notice of deficiency that, among other things, disallowed the credit.

The first-time homebuyer credit is not available unless, among other things, the taxpayer is a first-time homebuyer. Section 36(c)(1) defines a first-time homebuyer as “any individual if such individual (and if married, such individual’s spouse) had no present ownership interest in a principal residence during the 3-year period ending on the date of the purchase of the principal residence to which this section applies.” The taxpayer argued that he qualified under that definition, under the definition of first-time homebuyer appearing in statements on the HUD web site for HUD and FHA purposes, and under the definition of first-time homebuyer appearing in an article published in the Home Guides section of the San Francisco Chronicle. The definition appearing in the Chronicle matched the definition appearing on the HUD web site.

The taxpayer argued that section 36(c)(1) requires that only “one of the spouses has no present ownership interest in a principal residence during the three-year period ending on the date of the purchase of the principal residence for which the credit is claimed. Thus, if one spouse is eligible under I.R.C. § 36(c)(1), then both the spouses (the couple) are eligible.” Petitioners claimed that this interpretation was consistent with the definition found on the HUD web site. That definition provides that a first-time homebuyer is [a]n individual who has had no ownership in a principal residence during the 3-year period ending on the date of the purchase of the property. This includes a spouse (if either meets the above test, they are considered first-time homebuyers).”

The IRS argued that because the taxpayer, during the three-year period ending on March 31, 2009, owned property #1, he was not a first-time homebuyer within the meaning of section 36(c)(1). It did not matter, according to the IRS, that the taxpayer’s wife was a first-time homebuyer because she did not have an interest in a principal residence during that three-year period.

The Court held that the definition of first-time homebuyer appearing on the HUD web site is “not controlling for purposes of section 36.” The definition that is controlling is the one found in section 36(c)(1). The Court also held that the taxpayer’s interpretation of the section 36(c)(1) definition as requiring only one spouse to have lacked an ownership interest in a principal residence during the three-year period was incorrect. The Court pointed to the parenthetical language in the definition, which makes it clear that if a married couple purchases a principal residence and files a joint return, both spouses must meet the requirement that no interest in a principal residence be owned during the three-year period. This point had previously been made by the Court in Packard v. Comr., 139 T.C. No. 15 (Nov. 5, 2012).

It is a canon of statutory construction that when a statute uses a term and defines that term, the definition in that statute trumps definitions of that term found elsewhere. Looking to a definition not in the statute is an approach that makes sense only if the term is not defined in the statute. Though that happens more often that it should, it is not the case with the section 36 first-time homebuyer definition. As I tell my students, it’s not enough to read a newspaper description of a law, or to read a summary on a web site. The analysis should begin with the statute.

Like turkey, cranberry, and football, sharing a moment of thanks on the fourth Thursday of November has become a tradition on the MauledAgain blog. With the exception of 2008, an omission for which I don’t have or remember an explanation, I have consistently addressed the underlying purpose of Thanksgiving since 2004: In that year there was Giving Thanks, in 2005, A Tax Thanksgiving, in 2006, Giving Thanks, Again, in 2007, Actio Gratiarum, in 2009, Gratias Vectigalibus, in 2010, Being Thankful for User Fees and Taxes, and in 2011, Two Short Words, Thank You.

Last year, taking a lawyerly approach, I incorporated by reference all the people, events, and things for which I am grateful. I do that again, and I will make that list even longer:

I am thankful the sun comes up every morning and that I’m still around to notice. I am thankful that people rallied to help others during and after the hurricane superstorm. I am thankful that there is a chance intelligent discourse about the nation’s problems might trump the shrill voices of the disaffected extremists on both sides.

I am thankful for family, immediate and extended, of every imaginable degree of relationship. I am thankful for the help I receive as I dabble with family history research.

I am thankful for my friends, near and far, long-time and new. I am thankful for their stories, their attention, their advice, their jokes, and their laughter.

I am thankful for the readers of MauledAgain, including those who send me possible stories. I am thankful for my friends at the gym who also supply me with tax stories. I am thankful for the students who energize the classroom, the readers who take time to look at what I have written, the taxpayers and judges who give me things to discuss.

I am thankful that so many of my eighth grade graduating class found a way to get together in the spring at a “first time in 47 years” reunion. I am thankful that we have continued to gather informally during the intervening months. I am thankful for all that my classmates have accomplished, and for the memories that they safeguarded and then shared.

I am thankful that the members of the church to which I belong stepped up to support in many ways a renovation of the chancel that was much needed and that is now complete. I am thankful for the talents of my friend, the organ builder, who is producing a musical instrument which I am sure I will mention next Thanksgiving.

I am thankful people are reading this. Happy Thanksgiving.

A recent news report highlights the confusion faced by Greenleaf Compassion Center when it has tried to determine whether the New Jersey sales tax applies to the legal medical marijuana it will be selling as the operator of New Jersey’s first legal marijuana dispensary. The Center has delayed opening its store until it gets an answer. The State Health Department wants the group to open even though the tax issue has not been decided. Hello? Should they collect the tax or not? The legislator who sponsored the legislation explains that he intended the sales tax to apply. But his legislation has no provision with respect to the issue. Hello? If you intend something, write it down.

A look at the New Jersey sales tax law is instructive. Under section 54:32B-3(a), a sales tax is imposed on “receipts from every retail sale of tangible personal property or a specified digital product for permanent use or less than permanent use, and regardless of whether continued payment is required, except as otherwise provided in this act.” I think marijuana is tangible personal property. That means it is time to continue reading. Section 54:32B-3(b) adds additional transactions to the list of taxable items, but none are relevant to the Center’s question. Section 54:32B-3(c) addresses the sale of prepared food and the sale of food and beverages from vending machines. Section 54:32B-3(d) imposes the sales tax on hotel rent, section 54:32B-3(e) addresses admission charges, and section 54:32B-3(f) focuses on telecommunication services. Sections 54:32B-3(f) and (g) have been deleted, section 54:32B-3(h) applies to dues, and section 54:32B-3(i) subjects parking and vehicle storage fees to the tax.

With the general provision appearing to make sales of medical marijuana subject to the New Jersey sales tax, the next step is to ascertain if there are any other provisions that set forth exceptions. Of those that exist, one appears relevant. Section 54:32B-8.1(a) provided exceptions for medical items, including “drugs sold pursuant to a doctor's prescription” and “over-the-counter drugs.” Section 54:32B-8.1(b) defines a drug as “a compound, substance or preparation, and any component of a compound, substance or preparation, other than food and food ingredients, dietary supplements or alcoholic beverages: (1) recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, and supplement to any of them; or (2) intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease; or (3) intended to affect the structure or any function of the body.” An over-the-counter drug is defined as “a drug that contains a label which identifies the product as a drug, required by 21 CFR 201.66. The label includes: (1) a "Drug Facts" panel or (2) a statement of the "active ingredient" or "active ingredients" with a list of those ingredients contained in the compound, substance or preparation.”

It appears from this explanation from the New Jersey Department of Health that a doctor’s prescription is required, and can be provided by having the physician register with the Department and then creating a patient record for the patient. Though the word “prescription” is not used, the process is the same, namely, an authorization by a licensed and registered physician for a patient to use a regulated product for health purposes.

Does medical marijuana fit within the definition of a drug? It appears so. It is a substance. It is not food, nor is it a legal food ingredient. It is not a dietary supplement. It is not an alcoholic beverage. It is intended for use in the mitigation of disease.

Unless there is some provision tucked away in some obscure place – and there could be, as I am not an expert in New Jersey sales tax law – the conclusion appears to be that medical marijuana is not subject to the New Jersey sales tax. So if the legislator who sponsored the legislation wanted the sales tax to apply, an amendment to the sales tax law would have been in order.

This question is going to pop up in an increasing number of states. Absent the insertion of specific language into a state’s legislation, tax practitioners across the nation will need to analyze existing provisions to construct advice for their clients. As I tell my students, you are in law school not so much to learn what the law is but to learn how to learn what the law is, because both law and the circumstances to which it applies keep changing.

A recent Tax Court case, O’Connor v. Comr.,, T.C. Memo 2012-317, makes it clear that amounts received by a taxpayer for participating in a medical study must be included in gross income. O’Connor was paid $5,550 by Covance Clinical Research Unit, Inc., for participating in a medical study examining gout. O’Connor had suffered from gout for many years before participating in the study. In addition to the $5,550 cash payment, for 10 days and 9 nights, Covance provided O’Connor with meals and lodging, and subjected him to a variety of medical tests. O’Connor did not report the $5,550 on his return. While the IRS was auditing the return, O’Connor filed an amended return reporting the payment but the IRS did not process it. The IRS issued a notice of deficiency, and one of the items listed as a reason for the deficiency was the failure to report the $5,550 payment.

In holding that the payment must be included in gross income, the Tax Court rejected O’Connor’s argument that the payment was excluded under section 104 as a payment received on account of physical illness or physical sickness, and his argument that the payment was excluded under section 102 as a gift. The section 104 argument was rejected because O’Connor did not allege that he suffered physical injury or sickness on account of the gout study, and did not prove a causal link between the payment from Covance and the gout. Because O’Connor did not produce his contract with Covance, the Court was unable to conclude that the payment was for anything other than O’Connor’s participation in the study. The section 102 argument was rejected because O’Connor did not introduce any evidence demonstrating that Covance paid him out of detached and disinterested generosity. That Covance did not consider the payment to be a gift was reinforced by the fact it issued a Form 1099-MISC to O’Connor for the payment.

The result in the case is not surprising. The fact that a taxpayer sought to exclude such a payment is not surprising. What also is not surprising is that cases dealing with the determination of what constitutes gross income will continue to be with us no matter what is done with tax rates, no matter what sort of flat tax or similar arrangement is adopted, no matter the level of simplification applied to tax deductions and credits. Until and unless income taxes are repealed, the question “what is gross income?” will persist, in tax law courses and in tax practice. And if income taxes disappear, the inquiry will shift to questions such as “what is consumption?” or “what is value added?”

One of the many things I try to get across to my students is that the demands of practice are many times the demands of law study. I don’t know how many believe me, and how many think I’m just trying to make excuses for why my courses are, in the words of students and faculty, rigorous and demanding. I point out to students that one of the challenges that too often trips up lawyers is the need to meet deadlines. Students are not well-served when they are granted extensions in the absence of extenuating circumstances. Another point I make is that when dealing with areas of the law in which they are not experts they need to do exceptionally well-designed research and, especially if they are unable to do the research, call in a colleague who has the requisite expertise. Though it sounds like a joke, I tell the students who plan to practice in areas other than tax law to make friends with their tax-focused classmates, and I tell those interested in tax to make friends with their classmates generally, because they will need help from those practicing in the areas of bankruptcy, domestic relations, business organizations, labor law, securities law, real estate, and banking law, to name but a few.

A recent Tax Court case, Bond v. Comr., T.C. Memo 2012-313, illustrates the reality of the dangers to which I try to draw my students’ attention. The taxpayer is an attorney, and although according to the court’s opinion he is admitted to practice before the Tax Court, his biography indicates that he does not specialize in tax law. The taxpayer also was president and sole shareholder of two corporations, and served as an adjunct law professor at Albany Law School.

On September 10, 2010, the IRS sent a notice of deficiency to the taxpayer, with six adjustments to the taxpayer’s 2005 and 2006 tax returns. On August 31, 2011, the Tax Court set the case for trial on February 6, 2012. The Court ordered the parties to file pretrial memoranda by January 23, 2012. The IRS did so on January 20, 2012, but the taxpayer did not. In the meantime, on December 23, 2011, the IRS filed a motion to compel the taxpayer to respond to the IRS’s interrogatories and a motion to compel production of documents. Those motions were granted on December 28, 2011, with a requirement that the taxpayer respond by January 13, 2012, and a requirement that if the taxpayer did not respond, he must file a response by January 13, 2012, stating adequate reasons for the failure to respond. The taxpayer did nothing. The IRS, on January 20, 2012, filed a motion to impose sanctions. When the case was called for trial on February 6, 2012, the taxpayer had still not complied. At trial, the taxpayer moved for a continuance, which was denied. The case was set for trial on February 8, 2012, and the taxpayer promised to file the pretrial memorandum “in the next day or two” and to exchange documents with the IRS. When the case was recalled for trial on February 8, 2012, the taxpayer informed the court that he was “not ready for trial,” had not provided the IRS with the documents on which he intended to rely, and had no complied with the IRS’s request for information. The taxpayer explained that he “had obligations in my law practice and with clients,” and admitted he had not reviewed his own exhibits. The taxpayer again moved for a continuance, claiming that he “really have not had an opportunity to discuss . . .” at which point the Court interrupted him and said, “Well, that’s not true. You had the opportunity. You just didn’t take advantage of it.” Despite that reaction, the court continued the case, and rescheduled trial for April 23, 2012. During the trial, the taxpayer’s “testimony was in large part a criticism of the Internal Revenue Service” and on cross-examination his testimony “indicated that many of his claimed deductions appeared to be founded on frivolous legal reasoning.” At the end of the trial, the court ordered the filing of simultaneous opening briefs by July 9, 2012. On July 9, 2012, the IRS filed its brief. The taxpayer did not file a brief. On August 17, 2012, the court ordered that the record in the case be closed. On August 31, 2012, the taxpayer moved to reopen proceedings so that he could file a reply brief, which the court denied on September 4, 2012.

The taxpayer claimed that he did not file a brief because he had not received the IRS’s brief. The court rejected the excuse as making “no sense.” In light of the taxpayer’s previous failures to comply with deadlines, the court applied Rule 123(b) and held that the petitioner failed to properly prosecute his case and was in default. Accordingly, the court sustained the IRS’s determinations.

When the court then turned to the IRS’s determination that the taxpayer was liable for the accuracy-related penalty, it held that the IRS met its burden of proof. The court explained that the taxpayer had not adequately substantiated the deductions disallowed by the IRS, failed to present any legal authority for the deductions disallowed disallowed by the IRS, and had claimed deductions obviously disallowed by the statute. As an example of an unsubstantiated deduction, the court noted that although the taxpayer claimed deductions for self-employed health insurance expenses, he did not prove that he had health insurance coverage or that he paid for health insurance. As an example of deductions contrary to law, the court noted that the taxpayer claimed as deductions domestic relations litigation expenses paid in previous years, improperly characterized by the taxpayer as ordinary and necessary business expenses. As another example, the court noted that the taxpayer had claimed contributions to political campaigns as charitable contribution deductions, in violation of section 162(e)(1)(B).

Law students and lawyers can learn several things from examining this case, rather than going through the experience themselves. As unfortunate the outcome for Mr. Bond, the consequences provide lessons for others who perhaps can be spared a similar fate by paying attention.

First, missing deadlines, particularly those set by a court, and especially those set by a court that out of mercy or kindness provided continuances that it was not required to provide, is self-destructive. Sometimes a missed deadline cannot be avoided, such as the proverbial attorney hit by a truck while crossing the street on her way to the courthouse. Usually, though, some avenue exists to deal with deadlines. There are times when it makes sense to get help, especially if an attorney’s success generates so much work that the attorney is swamped with tasks and deadlines.

Second, claiming deductions for expenses clearly not allowable as deductions can bring nothing but aggravation in the long run. The opinion does not disclose who prepared the returns. If it was someone other than the taxpayer, the preparer did not do him any favors. If the taxpayer prepared the returns, the question is whether the taxpayer did so in knowing violation of the tax law, or in mistaken understanding of the tax law. The former is beyond unfortunate, and the latter is another lesson in why it sometimes makes sense to get help with a task.

Third, there are times when it is counter-productive for a person to serve as his or her own attorney, even if the person is an attorney. This is particularly true when venturing into areas of law with which the person has insufficient familiarity or expertise. The demands of handling a case in the Tax Court are easy for experienced tax practitioners to satisfy, but can be daunting for those who do not spend much of their professional time dealing with tax law.

Fourth, no attorney is immune from the pressures of tending to clients and getting work done in a timely fashion. Having a good track record of meeting deadlines and racking up worthwhile accomplishments does not guarantee immunity from life and career unraveling. The key to avoiding this sort of mess is keeping an eye out for the small slippages that can turn suddenly into avalanches.

In a recent commentary, Sheldon Richman explains why FEMA should be abolished and governments should abandon disaster relief. According to Richman, the best approach to disaster relief is to leave it to the free market. He argues that by providing a free service, namely, disaster relief, government precludes what would happen in the absence of FEMA and its state analogues. Specifically, he contends that “entrepreneurs in a free market would provide” disaster relief, through insurance, related services, and mutual-aid associations. There would be, Richman argues, “elaborate networks of for-profit and nonprofit entities” that “would have planned ahead of disaster, mitigated damage, and provided post-disaster assistance.” According to Richman, “This approach would have been superior to what the government does, because freed markets have entrepreneurs risking their own resources to serve people; gauging success and failure, while governments have grasping bureaucrats and politicians, who get their money by force.” Richman claims that governments pushed private entrepreneurs out of the market through force. To those that would point out there was a reason the former way of dealing with disasters was abandoned, namely, it did not work, Richman responds that government was not “pressed into service because of the inadequacies of civil society.” Instead, he claims that “ambitious politicians and bureaucrats crowded out private solutions in quest of votes and power.”

History has demonstrated that there are crises of such magnitude that only an entire society, through government, can respond. Although it is possible for private enterprises to fight wars, respond to natural disasters, and put humans on the moon, government can do these things much more efficiently and effectively because of the government’s power to organize and regiment activities. People dealing with an invasion or the wreckage generated by a storm or earthquake don’t need private enterprise with its advertising, bait-and-switch, non-transparent ownership, shoddy services and products, and addiction to the bottom line. People struggling with the consequences of a catastrophe don’t need to be treated according to the size of their bank accounts, the amount of money in their wallets, or the number of “loyal shopper” cards that they carry.

It is probably true, as Richman contends, that without FEMA or state disaster relief agencies, people would not “just sit around in the rubble for the rest of their lives.” The problem is that some people would be confined to such an existence because they lack the resources to dig out from under the impact of disaster. But when Richman claims that people, and giving him the benefit of the doubt, even some people, would “do something, learn from their experience, and take precautions to minimize damage in the future,” I disagree. There is a long list of things that “people” and the free market private sector could do to minimize damage in the future, but that they have not done. They scoff at warnings. They belittle science, or anything that would nick the bottom line. In recent years, government, too, has failed to use its power to prevent future damage, such as prohibiting development on barrier islands or initiating a sea wall height increase project in Manhattan, because the same private sector worshipped by Richman uses its lackeys in the Congress to block just about any government action that gets in the way of its profit-maximization-at-any-cost agenda.

The track record of private enterprise, and the so-called free market in which it has operated and wants to operate, is spotty. Though there have been outstanding examples of private sector organizations that have done well not only by their customers and employees but also by their communities, there are too many embarrassing examples of free market behavior gone badly wrong. That there is a correlation between the size of the business and its beneficial or adverse impact on society is no surprise, as small business owners tend to have a personal, face-to-face connection with the people in their communities who are their customers, employees, and neighbors, whereas the big outfits tend to view customers and employees as fungible, replaceable commodities. Though most small community-focused businesses are willing to step up and help when disaster strikes, the same attribute that makes them so valuable – small size – becomes a liability. Something bigger is needed, and it isn’t Enron, Adelphia, Worldcom, or any of the other disconnected, non-transparent, bottom-line-addicted, opportunistic, and failed behemoths that have demonstrated why the public at large needs something bigger than the largest private sector entity to protect the interest of society. One only need read reports about the non-responsiveness of the private sector to understand the false premises on which Richman builds his case. The recent episode in New York, where government officials have had to step up to protect the interests of residents who find the private sector utilities non-responsive, as described in this report, among others, is a brutal indictment of how private sector enterprise remains impervious to society generally. Perhaps in a free market consumers would have some individual power, but because the giants of the private sector have monopolized segments of the free market, violated laws designed to keep the market free, manipulated market forces, and misled customers and employees, the market is not free. The only antidote is the coming together of people to unite their small individual forces into a huge force. That’s called government, that’s why it has the power Richman doesn’t like, and that’s why it needs to exist and to exercise that power. Otherwise, the megaliths of the private sector run amok, claiming that any steps taken against them will hurt the better-behaved small businesses that the behemoths are trying to absorb or destroy.

Given the choice between relying on taxpayer-funded FEMA or consumer-financed private sector enterprises behaving as described in this report, I think most Americans who give it any serious thought would vote for FEMA. The people on Long Island made that very clear last week. What they have shared of their experiences counts much more than laments over well-deserved societal regulation of the private sector administered by society’s agent, government.

In a recent commentary, Jeffrey Frankel explores the correlations between the voting patterns of individual states and the social, cultural, educational, and financial behavior and views of individuals living in those states. His point is that these sorts of generalizations are dangerous, and he supports his point by showing what happens when doing so is extended beyond the common stereotypes tossed about in the press and through social media.

What disturbs Frankel is the notion that people in rural areas and in the exurbs reflect self-sufficiency and personal responsibility, whereas people in urban areas wallow in decadence and are dependent on government. Using data drawn from various sources, he concludes that statistically, people living in so-called red states “are, on average, less prone to pay income taxes, more prone to receive subsidies from the federal government, less physically fit, less responsible in their sexual behaviour, more prone to inflict harm on themselves and on others through smoking, drunk driving and misuse of firearms, and more prone to freeride on the healthcare system, compared to blue-staters.” He adds that “it is the states with high percentages of people who pay no income tax that tend to vote Republican.” Put another way, blue states are makers and red states are takers. He shares similar observations with respect to rates of obesity, exercise, healthy nutrition, smoking, fatal accidents due to drunk driving, firearms assaults, safe sex, pregnancy, sexually-transmitted disease, sexual activity, and contraception use.

To me, and I could be wrong, the problem with analyzing this sort of data by state is that it treats everyone in the states as a homogenous group. Yet in so-called red states, with one or two exceptions, 40 to 45 percent of the vote goes blue, and in so-called blue states, with several exceptions, 40 to 47 percent of the vote goes red. On the other hand, if red voters outnumber blue voters in states with higher rates of zero tax payments, smoking, lack of exercise, firearms assaults, etc., and if they were not responsible for these higher rates, is it possible for the smaller number of blue voters to jack up a state’s rates to levels higher than those in states whose residents are predominantly blue voters? Charles Murray, a noted conservative-libertarian, took a look at this in his book, Coming Apart. He did his analysis by zip code, not state. He determined that in areas with high levels of income and education, traditional values of diligence and family were strongest. He concludes that those who practice desirable values fail to encourage others to follow along, being too attached to what he calls non-judgmentalism, whereas those who preach these values tend to fall short in living up to them.

Again, the problem I have with Murray’s conclusion is that the people in the red states who are preaching something may not be the people who are behaving in a contrary manner. But once again, the numbers are such that I wonder how, if a majority of residents are preaching and practicing hard work and personal responsibility, the state ends up on the low end in the rates of contrary behavior. Yet in looking at positions with respect to government spending, the same pattern emerges. Opposition to government spending is paramount in red states, or, more specifically, among red voters who make up the majority of voters in red states. Yet opposition to cutting social security benefits is very strong in Arizona, opposition to cutting agricultural price supports is very strong in Oklahoma, Kansas, Nebraska, and similar prairie states, cutting water subsidies encounters opposition in states like Utah, and so on. To be fair, opposition to cutting other programs is no less strident in blue states and among blue voters. The disconnect between political philosophy and political practice looms large.

How does this square up? Frankel offers this analysis:

Do these statistical relationships between personal responsibility and voting behaviour have analytical implications? How can one explain such counter-intuitive results? I have pondered this puzzling question. I am still not sure of the answer. But here is what I have to offer.

* * * * *

It stands to reason that some people are less self-aware than others, and less knowledgeable on how the budget adds up, for whatever other reason. We hear repeatedly of seniors who tell politicians to keep the federal government away from their medicare, of ranchers who support the Tea Party or right-wing militia while collecting farm subsidies.

The people who suffer the biggest gap between their perceived and actual share of the federal pie are likely to be getting a disproportionate share and yet to believe the opposite. If they believe that others are getting more than they themselves are, they are more likely to buy into the angry belief that other social groups are freeriding on society, and the ideology that government spending is wasteful and needs to be cut back, without realising that this includes the benefits they themselves receive. Perhaps these people are more likely to vote for Republican politicians, who tell them what they want to hear. It’s a theory, anyway.

Yes, it’s a theory, and it’s one that I explored last month in Dependency, Government Spending, Tax Breaks, and Middle School, concluding, “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.” Perhaps it is time for voters who dominate the outcomes in the red states to reconsider their antipathy toward government spending, now that it is apparent that most red states send to the U.S. Treasury less than they take back from it. Perhaps it is time to practice what is preached.

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.