MauledAgain

There’s something not quite right in the collective psyche of the anti-government-spending crowd. Enraged by high taxes, they manage to put into office, and keep in office, people who dish out tax revenues as though there were no limits on taxation. Of course, the tax breaks go to those who are in least need of economic assistance. Their excuse, that they will use the tax breaks to help those in need, is hilarious, because the best way to help those in need is to direct assistance directly to them so that they can infuse those dollars into the economy. That makes the economy grow. Handing tax dollars to those who don’t need financial assistance is nothing more than helping some people grow their Swiss bank stash.

An excellent example of this flawed approach to taxation and governance exists in New Jersey. In When the Poor Need Help, Give Tax Dollars to the Rich, I criticized the decision by New Jersey’s Governor Christie to dish out tax credits to the Philadelphia 76ers in return for the team moving its practice facility to Camden. The state claimed that by giving away $82 million over 10 years it would get back $77 million over 35 years. That doesn’t add up, except for the private sector corporations and wealthy individuals who pocket the difference, which surely is much more than it appears to be. Why? Although these sorts of giveaways to the wealthy are defended by claims of job creation, the fact of the matter is that they simply move jobs from one state to another. In some cases, such as the 76ers, employees simply go to a new work location. In other cases, for every unemployed person who ends up with a job, someone, somewhere, finds himself or herself on the unemployment line.

Then, a few months later, in Fighting Over Pie or Baking Pie?, I criticized Christie’s decision to hand over more than $100 million in tax breaks to Lockheed Martin, which would transfer some employees from their current location to Camden, and to fork over $260 million to Holtec International. Again, the claim that somehow this money will find its way to those truly in need is seen for what it really is once it is understood that from the perspective of the taxpayer, this is a zero-sum game. In the end, whatever new jobs are created in Camden are offset by jobs lost elsewhere, either in New Jersey or in another state. For the nation, it amounts to a fight over pie rather than the baking of additional pies. The only folks who can play this game are those with enough spare cash to hand over huge campaign contributions to the “anti-spending” politicians who say one thing and do another.

And now comes news that yet another huge corporation is jumping on the tax break giveaway bandwagon. Subaru will get $118 million in tax breaks for moving its headquarters from Cherry Hill, New Jersey, to Camden, New Jersey. So how many Camden residents, almost all of whom are poor or destitute, will get jobs at that headquarters? I daresay none. I disagree with the false hope of the Camden city councilman who said, “There’s more jobs, hopefully, for our city residents.” What new jobs? Subaru employees are moving from one building to another. Some Subaru employees might have a slightly longer, or perhaps slightly shorter, commute. The employees working at the headquarters will stop at the same convenience store in the morning to get their coffee, and go to the same restaurants in the evening for dinner. Even their favorite lunchtime spots, if they dine out-of-office, will continue to get their patronage.

In the meantime, the residents of Camden continue to struggle. They continue to listen to proposals to cut their benefits, cut education spending, and cut job training spending. They hear themselves being called takers, selfish people claiming entitlements. They are criticized because they are deemed to be responsible for what is considered by some to be excessive government spending. And now they get to watch the state government toss tax revenue at an increasingly profitable private corporation so that it can build a building that none of them stand much of a chance of entering, let alone finding a job in it.

In recent years, in part because of economic conditions, an increasing number of people have turned to do-it-yourself projects. If the do-it-yourselfer has the skills and the time, there is much to be said in favor of taking this approach. Aside from money issues, there is, at least for some people, the satisfaction of having accomplished something, whether it is cleaning the gutters, building a garage, fixing a leaking toilet, or replacing windows. But sometimes, doing it yourself can be dangerous.

When I teach the basic tax course and the basic wills and trusts course, I warn students that there will be clients who bring them difficult issues because someone else decided to write their own will or do their own tax planning and created a mess. It is, I explain, more difficult to clean up a mess than it is to prevent the mess in the first place. But, I caution, they won’t always have the chance to help the client prevent the mess.

The example I use, half in jest and half seriously, is the idea of doing what I call a “self appendectomy.” Students usually react in horror. Then I tell them, “Self surgery happened.” I tell them about the boater who, with help from a physician via email, operated on himself. In looking for that link, I discovered that auto-surgery, though not a common event, has happened over the centuries. If you are curious, check out this list. I’ll leave the medical expense deduction questions to those looking for examination questions to pose to their students.

Now comes news, in the 2014 Office of Professional Responsibility Report, that suggests do-it-yourself tax preparation might not be that bad of an idea. According to the report:

The Government Accountability Office (GAO) addressed tax preparer competency in a recent report, GAO-14-467T, to the Senate Finance Committee. In its report, the GAO noted that 45 percent of preparers were subject to regulation by the IRS because they were attorneys, certified public accountants or enrolled agents, while 55 percent were subject to no regulation. It conducted site visits to 19 preparers and found that only two calculated the correct tax refund for its sample return. Although this is a small sample, GAO also found that some preparers did not even prepare the correct type of return.

The GAO concluded that its findings in this study are consistent with the results of GAO’s analysis of IRS’ National Research Program (NRP) database from tax years 2006 through 2009, which showed that both individuals and preparers make errors on tax returns. Most surprising, even startling, is that tax returns prepared by preparers had a higher estimated percent of errors—60 percent—than self-prepared returns—50 percent.

I confess that I would not have guessed that individuals doing their own tax returns make fewer errors than do tax return preparers. That’s just not what I would have expected.

More study would be helpful. Are the error rates among tax return preparers the same across the board, or do they vary depending on the preparer’s training and affiliation? How many individuals do their own taxes because they had a previous unfavorable experience with a tax return preparer? Are the types of errors the same? Do they involve the same issues or different issues? How many of the errors reflect fraud? Question, questions, questions. These present research projects for tax students looking for something to study as they prepare their theses or dissertations, and for tax faculty who need something about which to write. No, not me. I have other things to do. Yes, I have a list of do-it-yourself projects, including tax tasks.

Readers of this blog know that I am not a fan of permitting states to impose on out-of-state retailers the burden of collecting use taxes that are owed by residents. As this issue has resurfaced and taken center stage, I again tried to focus attention on what the issues actually are. Several weeks ago in How Difficult Is It to Understand Use Taxes?, and last week, in Apparently, It’s Rather Difficult to Understand Use Taxes, I explained that the issue does not involve sales taxes, does not involve new taxes, and exists beyond the confines of the internet. The solution, I propose, is for states to compensate out-of-state retailers for acting as tax collectors if those retailers choose to do so.

Thus, it was annoying to read the headline on the latest missive from the Institute for Policy Innovation. The commentary is headlined To Grow The Economy, Reject New Internet Taxes. Surely this is designed to strike an emotional chord in the vast majority of people who don’t like taxes. But the taxes are not new. Not by a long shot, as I have explained.

The disappointment is that the IPI makes good arguments. It points out the Constitutional impediments to requiring an out-of-state retailer with no contacts with a state to collect taxes for that state. It describes the administrative burdens of trying to comply with the use tax requirements of thousands of taxing jurisdictions. It draws attention to the fact that individual out-of-state retailers cannot vote in those other states. But those arguments are overshadowed by the reality of the issue.

What the commentary misses is that states willing to make an effort to collect use taxes can do so now no matter what the Congress does. Some states have been increasing their attempts, but generally enforcement of the existing tax is lax. Thus, painting this issue as a “new tax” issue distracts from a stronger argument that is more likely to bring support to the position that IPI advocates.

Imagine the reaction if the headline was Congress Ready to Let States Force Non-Resident Business Do Their Tax Collection Work. Would this spotlight on forced labor not bring the same sort of reaction that would be generated if a state tried to get nonresidents to shovel its sidewalks or collect its residents’ trash? That’s what this issue involves, and putting the spotlight on it would make it easier to squash this “do our work for us” mentality.

A recent Tax Court decision illustrates how tax law intrudes on what otherwise would appear to be the simplest of things. Imagine owning a rental vacation home. Imagine renting the vacation home to your brother or sister use the home for seven days. That’s a nice thing to do. For the family. But it’s not a nice thing to do for one’s tax situation.

The outcome in Van Malssen v. Comr. provides a road map for a journey taxpayers ought not to take. The taxpayers owned a vacation condominium, which needed some work. Focusing on 2008, the year in which the taxpayers permitted the husband’s brother to use the unit, the husband spent 81 days at the condominium, using 67 of those days to do repairs and maintenance, and the other 14 for personal purposes. The taxpayers rented the unit for 10 days to unrelated parties. The taxpayers claimed losses on their income tax return, reflecting the excess of rental deductions over gross rental income. The IRS disallowed the deductions to the extent they exceeded the gross income, taking the position that section 280A applied because the taxpayers used the residence for more than 14 days.

There is no question that days used by the taxpayer to do repairs and maintenance do not count as personal use days in determining whether the taxpayer used the dwelling unit as a residence. But there also is no question that personal use by members of the taxpayers family, which for this purposes includes siblings, is treated as personal use by the taxpayer, unless the family member pays fair rental and uses the dwelling unit as a principal residence. In this case, the dwelling unit was not the brother’s principal residence. Thus, the seven days of use by the brother are counted as personal use. This, along with the recharacterization of several of the travel days as personal use days, bringing the total to 24, which in turn triggers the limitation of section 280A(c)(5), essentially disallowing the rental deductions that exceed the rental gross income.

The lesson is simple. Taxpayers who are trying to avoid the rental deduction limitations must make certain that the days of personal use do not exceed the greater of 14 days or ten percent of fair rental days. The example I used when teaching the basic federal income tax class was the family that rented out the vacation home for 120 days during the summer, used it for 14 days, and then discovers that one of the older teenagers in the family used the property for a party during the fall, pushing the personal use total over the limit. The idea of thinking “What will this do to my tax situation?” when deciding whether to let a family member use the property, even if charged rent, surely strikes most people as silly, considering that most people would not even think of thinking about the tax aspect. As I told my students, after taking the Torts course, law students find themselves thinking differently as they work their way through the normal activities of life. The same can be said for other areas of the law, and those versed in taxation often let that “What will this do to my tax situation?” question run through their minds. But imagine the reaction when you say, “I can’t rent the vacation home to you because of tax constraints.” Most people will think you are making up an excuse for not being nice.

One thing that I do not understand about this case is the lack of any reference to section 280A(g). That provision requires excluding all rental income from gross income and disallowing all rental deductions other than those allowable in any event such as mortgage interest and real estate taxes if the “dwelling unit is used during the taxable year by the taxpayer as a residence and such dwelling unit is actually rented for less than 15 days during the taxable year.” In this case, for 2008, the taxpayer used the unit as a residence because the 24 days of personal use exceeded the limits. It was rented for 10 days. The brother’s days of use were treated as personal use days. The opinion does not mention this issue. My guess is that the parties did not raise it. Would it have made a difference? At first glance, it might appear that it would not. The bottom line of zero rental gross income and zero rental deductions is the same as the bottom line of rental deductions limited to, and thus equal to, rental gross income. But at second glance, the disallowed deductions are carried over to the following year, whereas there is nothing to carry over if section 280A(g) applies.

A little more than a week ago, in How Difficult Is It to Understand Use Taxes?, I reflected on recent Philadelphia Inquirer commentary supporting the extension of the moratorium of the collection of sales taxes by out-of-state retailers. Though I agreed with the author that it makes no sense to require an online retailer to collect sales taxes for a state with which the retailer has no connection, because brick-and-mortar retailers are not required to do so, I did take exception to some misstatements that confuse the discussion.

It is important to understand that when a purchase is made by a consumer in a state other than the consumer’s state of residence, the consumer owes a USE TAX, and not a SALES TAX. The reason this distinction is important is that retailers are responsible to collect sales taxes if they are present in, or have a sufficient connection with, the purchaser’s state of residence. Otherwise, it is the consumer who is responsible for paying the use tax. Too few consumers do so, unless forced to do so by practical circumstances, such as the titling of a vehicle or boat.

It has now become clear, from reports such as this one, that brick-and-mortar retailers are pushing for legislation that would bury the moratorium and require online retailers to collect use taxes under circumstances not applicable to brick-and-mortar retailers. Though arguing that the present situation is “unfair,” lobbyists for the brick-and-mortar retailers make no mention of the fact that a brick-and-mortar retailer in, for example, Delaware, has no obligation to collect use tax from a Pennsylvania customer. So why should the online retailer located in Delaware have such an obligation? Is that fair? Reading their arguments persuades me that they either don’t understand how the sales and use tax system works, or that they do but are “overlooking” salient features in order to reset the competitive balance. For example, when a Massachusetts retailer complains about the Delaware online retailer who isn’t required to collect the use tax, he makes no mention of the Delaware brick-and-mortar retailer who also is not required to collect the use tax, and would still not be required to do so even if the legislation being pushed by the brick-and-mortar stores is enacted.

The answer is so simple I ought to be surprised that no one has presented it in a formal proposal. But I’m not, because the Congress has taught me that it understands and can accomplish little, if anything, about taxes, or for that matter, most other things. States wanting out-of-state retailers, of any type, to collect use taxes need to pay them to do so. Isn’t that how the free market is supposed to work?

And that is why I answered my question from Friday a week ago as I have. As simple as it is, somehow it becomes extremely difficult when the politicians sit down to learn. Scary.

If, as John Godfrey Saxe said in a quote often misattributed to Otto von Bismarck, “Laws, like sausages, cease to inspire respect in proportion as we know how they are made,” then understanding how tax law is made resembles learning how much mold, maggots, and rodent filth enters into the nation’s food supply. In a ritual that unfortunately has become the norm, tax provisions are enacted for periods of one or two years, so that their renewal provides leverage for members of Congress to extract campaign contributions from those who benefit from the provisions. The flaw in this perverted method of caring for the nation through legislation is that it takes money for this to function, and we know who has the money and who doesn’t.

The latest development in this mockery of democracy has taken center stage, as the year nears its end and there is one final chance to renew tax provisions that expired at the end of last year. As is often the case, word leaked out from negotiations taking place in the back rooms of Capitol Hill, where lobbyists interested only in the well-being of their interest groups engage in a battle detrimental to the national economy. This time around, according to various news reports, including this one, the tax provisions that will live another day are those that benefit businesses, mostly large ones, and wealthy individuals. Tax breaks for the poor and lower middle-class are on legislative death row.

For example, among the tax breaks to be renewed are those for owners of race horses, owners of NASCAR facilities, and producers of coal. It doesn’t take the mind of Einstein to make the connections, does it? And lest anyone think this is a partisan issue, both Democrats and Republicans engage in this nonsense, because politicians of both parties live for the next campaign contribution dollar. The outrageousness of what they are doing becomes clear once one realizes that the cost of this legislative gaming could reach half a trillion dollars, to be financed by increasing the national debt. That’s the same national debt that members of Congress decry as being too large. Of course it’s too large, except when it comes to giving payback to the campaign contribution donors.

It’s no wonder that the poor, working families, and politically disempowered are being sacrificed for the benefit of the one percent. Of course, with 70 percent of the 99 percent sitting back, understandably disgusted but unacceptably disengaged, the outcome is inevitable. Though criticized by those who had the chance, but failed, to step up and end the foul Congressional legislative process, the proposal’s enactment would add to the Congressional ineffectiveness that so disenchants working families and the poor.

The current draft, which may or may not emerge from those closed-door meetings, faces the threat of an Obama veto. Supposedly, the administration is annoyed not only with Republicans but also with Democrats who, for example, support a tax break that benefits residents of a handful of states, including Nevada, home of the current Senate majority leader. Whether a veto, or the threat of one, would generate a more equitable arrangement is unclear. What it would not do is put an end to the vote-selling that the tax legislative process aids and abets. It’s an unpatriotic approach to legislation. Unfortunately, it’s not an impeachable offense. The best way to clean up a stinking mess is to wipe out the source of the smell. America, for all of its griping about the foul odor, doesn’t seem to understand how to clean house. Until it does so, the nation will wallow in tax legislative filth.

Over the past few years I have pointed to the existence of bad roads as a lesson in the foolishness of alleged short-term tax cut benefits being swamped by short-term and long-term costs triggered by failing infrastructure. I made this point in posts such as Liquid Fuels Tax Increases on the Table, You Get What You Vote For, Zap the Tax Zappers, Potholes: Poster Children for Why Tax Increases Save Money, When Tax and User Fee Increases are Cheaper, Yet Another Reason Taxes and User Fee Increases Are Cheaper, When Potholes Meet Privatization, and When Tax Cuts Matter More Than Pothole Repair. On Sunday evening, the dangers of infrastructure deterioration was highlighted on 60 Minutes.

On Sunday, the Philadelphia Inquirer published a letter from Jim Grealy of Cherry Hill, New Jersey, who complained that in the winter of 2013-2014, he “had to replace a tire and two wheels due to road damage, at a total cost of $1,400.” His insurance refused coverage and the township, responsible for maintain roads, also refused compensation. Grealy points out that wherever he travels, there are potholes and rough roads. He suggests that tire companies are paying to have pothole repairs cancelled. It’s not just him, as he reports his tire dealer has been struggling to keep up with the repairs that its customers need.

Most of what Grealy shares is not news to me, or to anyone who reads this blog, or looks closely at the news. One thing that he did share that adjusts my thinking is the cost of fixing two wheels and a tire. I had been thinking in the three-digit range. It’s worse than I thought, and that strengthens my basic point. In the long run, it is cheaper to pay an increased highway use tax than it is to parade behind the pied pipers of tax reduction and elimination of government.

Grealy writes, “I pay a lot in taxes to get things like this fixed, so where is that money going?” The answer is simple. The amount of money being paid in highway use taxes, including the gasoline and other liquid fuels taxes, is nowhere near enough to pay for the cost of widespread infrastructure deterioration. A very small portion of the taxes that anyone, including Grealy, pays is devoted to highway repair for the simple reason that dedicated highway repair taxes are miniscule in the grand scheme of things. But that doesn’t keep politicians from accumulating votes with the promise of tax cuts.

Grealy doesn’t tell us whether he votes for or against increased highway funding. He doesn’t tell us whether he votes for or against politicians who want to gut the public sector so that their private sector friends can suck even more money out of the pockets of citizens who have no voting recourse against the private sector. He doesn’t tell us whether he is someone who understands the point I’ve been making and has become yet another victim of the pied pipers, or is a worshipper of the pied piper who has discovered the true consequences of a bad philosophy. If it’s the former, I feel sorry that he has been economically disadvantaged by the very thing against which he has cautioned. If it’s the latter, I feel sorry that he has to learn the lesson the expensive way, and I’m not sure yet that he has learned the lesson.

He left no email address in his signature as many letter writers do. Perhaps he will see this and send a response. Either way, it could be a productive conversation. In the meantime, it makes sense for every other driver to think about these things. Your $1,400 invoice, a result of saving $50 in gasoline tax hikes, is just around the corner. And as I pointed out in When Tax Cuts Matter More Than Pothole Repair. in which I discussed an accident triggered by a pothole and causing injuries, “It is far better to pay taxes and user fees to fix potholes than to be saddled with the much higher cost of lost lives, crippling injuries, and property damage caused by potholes.”

I close with the conclusion from that same post: “A nation with crumbling infrastructure, unrepaired because of strange fixations on the tax hatred, cannot defend itself or its people. The failure of so-called leaders to protect those to whom fiduciary duties are owed is at the root of the problem, and until those leaders are replaced by people willing to shut down the bribery and disassemble the gerrymandering, the potholes will continue to injure and kill people, destroy property, and make people miserable. The nation gets what the nation votes for.”

A few years ago, in a sermon, the then pastor of my church, a former English teacher, pointed out that he was bothered by the increasing use of “No, thank YOU!” as a response to saying “Thank you” to someone. Somehow, a phrase which most of us have been conditioned to use as a way of declining an offer has become part of a struggle to determine which person is expressing the superior level of gratitude. The risk in this strange cultural twist is that the expression gets lost in the distraction of competing givings of thanks. That’s not what Thanksgiving is intended to celebrate.

With the exception of 2008, for reasons I no longer remember, I have taken the opportunity to use this blog to express my thanks for a variety of gifts, gestures, words of encouragement, and unexpected good news. I started in 2004, with Giving Thanks, and continued in 2005 with A Tax Thanksgiving, in 2006 with Giving Thanks, Again, in 2007 with Actio Gratiarum, in 2009 with Gratias Vectigalibus, in 2010 with Being Thankful for User Fees and Taxes, in 2011 with Two Short Words, Thank You, in 2012 with A Thanksgiving Litany, and in 2013 with “Don’t Forget to Say Thank-You”. As I stated last year, “I have presented litanies, bursts of Latin, descriptions of events and experiences for which I have been thankful, names of people and groups for whom I have appreciation, and situations for which I have offered gratitude. Together, these separate lists become a long catalog, and as I have done in previous years, I will do a lawyerly thing and incorporate them by reference. Why? Because I continue to be thankful for past blessings, and because some of those appreciated things continue even to this day.”

This year brings another list, because this year brought me more reasons to be thankful:

• I am thankful that my grandson arrived healthy, happy, and loved.
  
• I am thankful that the records of my maternal grandmother’s home town had not been destroyed, as I had been told years ago.
  
• I am thankful for the professional genealogist who told me about the preservation of those records.
  
• I am thankful to have the time to work with those records and for the assistance of the professional genealogists and for the suggestions made by others who belong to a facebook group focusing on these types of records.
  
• I am thankful that the arborist discovered that the tulip poplars had become at risk for falling, and that I had the chance to have them removed before they fell on someone or someone’s house or car.
  
• I am thankful that once again, I was able to travel, to see new and familiar places, and to have new and repeated experiences from which I have learned much.
  
• I am thankful for my friends, who must put up with my eccentricities, my chattering, and my long emails.
  
• I am thankful for music and for how it is enriching at so many levels.
  
• I am thankful that I can still remember at least some of the people and things for which I am thankful.

Eight years ago, in Giving Thanks, Again, I shared my Thanksgiving advice. I liked it so much that I repeated it again, in 2009 in Gratias Vectigalibus and yet again in “Don’t Forget to Say Thank-You”. For me, it does not lose its impact:

Have a Happy Thanksgiving. Set aside the hustle and bustle of life. Meet up with people who matter to you. Share your stories. Enjoy a good meal. Tell jokes. Sing. Laugh. Watch a parade or a football game, or both, or many. Pitch in. Carve the turkey. Wash some dishes. Help a little kid cut a piece of pie. Go outside and take a deep breath. Stare at the sky for a minute. Listen for the birds. Count the stars. Then go back inside and have seconds or thirds. Record the day in memory, so that you can retrieve it in several months when you need some strength.

I am thankful to have the opportunity to share those words yet again.

Circulating on facebook, and probably on other social media, is a photograph with this legend:

Up until 1913 Americans kept all of their earnings. Despite this, we still had: schools, colleges, roads, vast railroads, streets, subways, the Army, Navy and the Marine Corps, (who managed to win 8 wars. Tell me again why We The People need to be extorted ???

Though I could write for hours about the deficiencies of praising the roads and educational institutions of the nineteenth century, I prefer to focus on the first sentence.

Taken at face value, the first sentence makes no sense. Americans did not keep their earnings. They transferred their earnings to shopkeepers, physicians, and other providers of goods and services in order to have a place in which to live, to feed and clothe themselves and their families, and to tend to medical concerns. What the author of this sentence probably meant to say was “Americans did not pay taxes.” But that, too, is ignorance manifested. Americans have been paying taxes since the beginning. Before 1913, and since 1913, they have been paying federal excise taxes, state property taxes, local property taxes, state sales taxes, occupation taxes, head taxes, and a variety of other taxes.

My guess, based on the reference to 1913, is that the author meant to say that “until 1913 Americans did not pay a federal income tax.” That statement is mostly true. The first federal income tax was enacted to fund the costs of the Civil War, but it didn’t last long. But when the federal income tax appeared is not the author’s point. The author seems to be questioning the need for an income tax. The answer is simple. The so-called modern income tax, the one enacted in 1913, was designed to provide revenue to offset the revenue losses from reducing import duties. Import duties are an indirect tax, ultimately paid by the consumer as part of the price of the item being purchased. The income tax, as originally enacted, applied only to individuals with income exceeding $3,000 and married couples with income exceeding $4,000. Very few people had that sort of income. In other words, the income tax would put the brakes on the growing income inequality that had time and again rocked the American economy with recessions, panics, and volatile economic performance. It was not, and still is not, used to fund roads. Roads are funded by state and local revenues and by fuel taxes paid into the Highway Trust Fund. It did fund, and continues to fund, the military, which now demands far more investment than it did in 1913, a consequence of changes in world politics, and interestingly not the prime target, and in some cases not even a target, of the “cut spending eliminate taxes” crowd.

The problem with slogans, sound bites, and quips is that they omit the important details and mislead people. Someone with a genuine interest in the history, impact, administration, and rationale of the federal income tax, or any other tax for that matter, ought to dig into something more analytical, such as the articles provided by The Tax History Project. In particular, this article provides the information thoroughly lacking in the “Up until 1913” bunk.

A recent commentary in the Philadelphia Inquirer advocates extension of the moratorium on collection of sales taxes by out-of-state retailers. It rejects the claim that online merchants have an advantage over brick-and-mortar retailers, a claim made by those who want out-of-state retailers to collect sales taxes even if they have no nexus with the state.

The commentary makes good points and not so good points. It is true, as it points out, that some online sellers bear the cost of shipping. They cannot use promotions such as free, hot coffee to their shoppers. Their customers cannot easily try on clothing and shoes.

On the other hand, the author refers to the taxes in question as “internet sales taxes” when in fact, as I have explained in posts such as Collecting an Existing Tax is Not a Tax Increase, the tax in question is a use tax. That tax has been on the books for decades. Thus, when the author claims that “state lawmakers do not need another $23 billion in sales-tax revenue,” the author fails to explain that this revenue is revenue currently owed under existing law and that states are simply engaging in an attempt to collect unpaid but owed revenue.

Yet, I agree with the author of the commentary that requiring out-of-state online retailers to do the use tax collection for the state is wrong. As I explained in Collecting the Use Tax: An Ever-Present Issue, states ought not be trying to compel proprietors and entities over which they have no jurisdiction to their collection work. I did suggest that states consider entering into voluntary arrangements with out-of-state retailers willing to act as collection agents in return for compensation paid by the state.

The flaw in the argument that out-of-state online retailers ought to be collecting the use tax on behalf of states with which they lack nexus can be illustrated by examining what happens to an out-of-state bricks-and-mortar retailer. If a person living in Pennsylvania, which has a sales tax and a compensating backup use tax, travels to Delaware, which has no sales tax, to purchase an item, the retailer is not obligated to collect Pennsylvania use tax. Nor could Pennsylvania compel the retailer to do so. So why should Pennsylvania, or any other state with a use tax, be permitted to compel a Delaware online retailer to collect the use tax. Would that not put the Delaware online merchant at a disadvantage compared to the Delaware bricks-and-mortar merchant? Isn’t it questionable that those who claim to be seeking a level playing field between online and bricks-and-mortar merchants would end up un-leveling that playing field if their proposed legislation was enacted?

One wonders why the alleged collective wisdom of state legislators cannot fix this problem, especially when the solution has been provide to them, free of charge, by yours truly. And one wonders why the arguments being made on both sides of the debate are so consistently imprecise, confusing, and incomplete.

Few people understand satire. It’s such a dangerous practice that one wonders whether in the long run it does more harm than good. Recently, a website specializing in satire, but carrying a name that doesn’t hint at its character as nicely as, for example, the Onion, published a fake report claiming that the IRS would delay until October 2015 payment of income tax refunds normally received in the early months of the year. The best guess, taking up on a story such as this one, is that the authors were trying to spoof the delay in the filing season announced in early 2014 because Congress could not get its act together with respect to 2013 tax laws until very late in 2013.

Unfortunately, many people who read these sorts of satirical compositions take them at face value, and do not bother to cross-check the information. Then, instead of simply saying something to a handful of colleagues at the office or friends at the corner bar, as was the practice several decades ago, they take to social media, and within minutes the entire planet has been informed of a news development that isn’t news but that is circulated as though it were. Is it any wonder people are making more and more bad choices? The information pool is becoming increasingly polluted.

If spoofs re necessary, a better one would have been to satirize the Congress, the source of the delay in the start of the last filing season. But, unfortunately, that would be rather difficult, because the Congress has become a self-perpetuating spoof, a satire on the political condition of this nation. If satire is intended to get people to laugh, there’s no point in doing Congressional spoofs. That legislative body is no laughing matter. It’s something over which the Founders would cry.

In last Wednesday’s post, Escaping Tax and User Fee Revenue Diversion, my analysis of a Philadelphia cigarette tax included an exploration of city residents making purchases outside the city in order to escape the tax. That point was just one piece of my criticism of a tax that puts an education expenditure burden on a narrow group of taxpayers and not on all of those who benefit from the expenditures.

Another tax that doesn’t impress me is the so-called “soda tax,” designed to change people’s beverage drinking habits. In a series of posts, beginning with What Sort of Tax?, and continuing in The Return of the Soda Tax Proposal, Tax As a Hate Crime?, Yes for The Proposed User Fee, No for the Proposed Tax, Philadelphia Soda Tax Proposal Shelved, But Will It Return?, Taxing Symptoms Rather Than Problems, It’s Back! The Philadelphia Soda Tax Proposal Returns, The Broccoli and Brussel Sprouts of Taxation, and The Realities of the Soda Tax Policy Debate, I have criticized singling out soda when there are all other sorts of beverages and food items that contribute to excessive sugar intake. I have also criticized the disconnect between the tax and public health improvement.

Now comes news that soda tax proposals in two neighboring California cities have met different fates. According to this report, the soda tax proposal in Berkeley passed. On the other hand, according to this report, a soda tax proposal in San Francisco failed. So now what happens? Will people in Berkeley drive to San Francisco or some other nearby locality to make soda purchases, including bulk purchases? For a serious soda drinker, the tax is high enough to make the costs of the drive bearable if sufficient quantities are purchased during one shopping venture. On the other hand, for the casual drinker, the option of going out of town to make the purchase is not practical.

Does anyone seriously think that the soda tax will reduce the number of obese people in Berkeley, or raise enough revenue to make the cost of administering and complying with the tax worthwhile? Is it nothing more than symbolism? I will be watching for follow-up reports.

From time to time, tax issues pop up on television court shows. I have described these episodes on five previous occasions, starting with Judge Judy and Tax Law, and continuing through Judge Judy and Tax Law Part II, TV Judge Gets Tax Observation Correct, The (Tax) Fraud Epidemic, and Tax Re-Visits Judge Judy. That there have been only five, until now, reflects not only the infrequency of tax issues showing up on these shows but also the reality of my inability to view all of the shows. Surely I have missed some.

This time, once again a Judge Judy episode, the tax issue that came to light had no direct bearing on the outcome of the case, and drew no comment from the judge that I recall. The plaintiff had met a man, who when asked by her about his marital status, claimed to be single. So the plaintiff and the man started into a relationship. Eventually the man’s wife found out. She made the plaintiff aware of the fact that he was married. The plaintiff confronted the man, and he maintained his claim that he was single. He even showed the plaintiff a copy of his W-4 form, on which he claimed single status. The judge asked the defendant, the man’s wife, if that was true, and the defendant replied that yes, it was, that they both filed as single individuals. How can that be? They are married and lived together, so the only appropriate choices for filing are married filing jointly, and married filing separately. Filing as single individuals is not permitted.

But Judge Judy wasn’t interested in this issue. It wasn’t a tax case. The case involved the plaintiff’s claim against the man’s wife. The wife had assaulted the plaintiff, essentially because the plaintiff was in a relationship with the defendant’s husband. It’s not difficult to guess how this turned out. Why the defendant could not understand that the bad guy in this story was her husband and not the plaintiff remained unanswered.

I wonder if someone from the IRS caught this episode, and tracked down the tax returns filed by these two individuals. If that happens, the damages sought by the plaintiff will pale in comparison to what the IRS seeks.

Tax law often is complicated. But sometimes it’s simple. Married people cannot use the unmarried filing status.

Perhaps there should be a television court show dealing with tax issues. I’d have so much fun with that. As the judge, I mean.

Several months ago, in Delaying a Questionable Tax, I explained one of my objections to the then pending, and subsequently approved, new Philadelphia cigarette tax designed to raise money to fund the city’s public schools. Expecting cigarette smokers to carry an additional burden for a public good that benefits everyone, including the students, the employers who will hire them, and society that benefits from the contributions made by educated students, creates an imbalance in funding. I compared the tax with the diversion of toll revenue by the Delaware River Port Authority to fund projects having nothing to do with the repair and maintenance of the bridges on which the tolls are collected.

According to a Philadelphia Inquirer story several days ago, it appears that smokers are escaping the new cigarette tax by taking their business to stores outside the city. City merchants report not only that cigarette sales have dropped by as much as 80 percent, but also that the impact on total revenue has been so strong that they have had to let employees go. A wholesaler who supplies corner stores throughout the city described a 50-percent downturn in the amount of tobacco products, candy, and other goods being purchased by those stores for resale.

To combat the practice by city residents of purchasing cigarettes outside the city, the state Department of Revenue plans to hire enforcement agents. Exactly how they will combat city residents purchasing cigarettes while out of town has not been explained. Unlike agents watching license plates on vehicles as they try to enforce a sales tax avoidable by shopping out of state, these agents will need to find some other way of determining the residences of shoppers inside a Wawa or 7-11 outside the city limits.

When I compared using a cigarette tax to fund public education to the use of bridge tolls to fund unrelated projects, I did not mention an important difference. The cigarette tax is easily avoided, as the recent story describes. The bridge toll is not easily avoided if it is essential, for business or other reasons, to cross the Delaware River. There are no practical alternatives, unlike those available to circumvent the cigarette tax. In some respects, this makes the bridge toll revenue diversion more pernicious. Nonetheless, with projections indicating that the cigarette tax will raise much less revenue than predicted, it becomes a “lose-lose” situation, as the schools don’t get the expected funding and neighborhood stores go out of business. The city official who called the tax “win-win” because it will raise money for schools and reduce smoking is banking on theory and not practical reality. The smokers are still smoking, buying their nicotine at stores outside the city, and the school funding will fall short. In the end, all that will change is that some small business owners will close up shop. That’s a rather deplorable long-term result.

A recent Tax Court case, Singhal v. Comr., T.C. Summ. Op. 2014-102, presents an important lesson for taxpayers. The taxpayers were married, and were the only members of a limited liability company which went by the name of Man Machine Interface Technologies (MMIT), and which was treated as a partnership for federal income tax purposes. A third party accountant prepared the partnership tax return for MMIT, and sent Schedules K-1 to the two taxpayers, along with a letter. The letter explained that the Schedule K-1 “reflects the amounts you need to complete your income tax return. The amounts shown are your distributive share of partnership tax items to be reported on your tax return, and may not correspond to actual distributions you have received during the year.” The husband taxpayer prepared the taxpayers’ joint federal income tax return. Instead of including all the distributive share amounts on the Schedules K-1, he reported the distributions received from the partnership. The IRS sent a notice of deficiency indicating that the amount reported was incorrect because the amount reported to the IRS was different from what was on the return.

Although the taxpayers did not contest the change to their return that added what had not been reported, they contested the accuracy-related penalty imposed by the IRS. In rejecting the taxpayers’ argument that the underreporting was because they “made a mistake of law in good faith” that was “reasonable,” the Court noted that the third-party accountant had sent a letter advising them to use the amounts from the Schedule K-1 and warning them that those amounts “may not correspond to actual distributions.” The Court explained that at trial, the petitioner was asked, “what does it mean to you when a letter to you and your wife says, this information reflects the amounts you need to complete your income tax return?” and answered “To be truthful, I never read it.” The Court asked again, “You never read it?” and the taxpayer replied, “Yes.” The Court then reasoned that if the taxpayer had read the letter, it would not have been reasonable to ignore the information provided by the accountant, and if he had not read the letter, it was not reasonable to have done so.

When tax professionals put advice and information in writing, it is because they have determined that advice and information to be important. They usually don’t waste time and resources writing letters or memoranda about unimportant matters. The taxpayer to whom the letter has been sent almost always has paid for the advice and information contained in it. That, too, should be an incentive to read the letter.

True, we are so bombarded with so many types of information that it is difficult to separate the music from the noise. Yet when the letter is from someone to whom payment has been made, is expected, and refers to something as important as tax matters, it should be much easier to pull it out of the pile and examine it. In the case of these taxpayers, the price paid for not reading the letter exceeded $12,000. Ouch.

A recent case, Puentes v. Comr., T.C. Memo 2014-224, illustrates the principle that a taxpayer who is neither legal nor equitable owner of a residence is not permitted to deduct interest paid on the mortgage loan secured by the property. Instead, for tax purposes, the taxpayer who makes those payments is making a gift to the owner, who is deemed to pay the interest. Of course, if the owner does not need the deduction, or stands to acquire less of a tax benefit than would the non-owner, the non-owner has every incentive to try to claim the deduction. Unfortunately, the outcome of the principle is harsh.

The facts of the case are fairly simple. The taxpayer’s brother purchased a residence, made the downpayment, financed the balance of the purchase price with a mortgage loan on his name, and took title to the property in his name. The taxpayer did not contribute to the downpayment, was not obligated on the mortgage loan, and was not on the deed. In 2003, the taxpayer moved into her brother’s house. Their father moved into the house in 2005. The taxpayer’s brother made all mortgage loan payments until 2009, when he became unemployed. During the taxable year in issue, 2010, all three lived in the house, the father paid for repairs and supplies, and the taxpayer paid property taxes, homeowner insurance, and mortgage loan payments. The mortgage company issued a Form 1098 in the name of the taxpayer’s brother. When the taxpayer claimed the interest deduction, the IRS disallowed it. The taxpayer petitioned the Tax Court for a redetermination.

Although the taxpayer conceded she was not a legal owner of the residence, she argued that she was an equitable owner and thus entitled to the deduction despite having made that argument and lost in an earlier Tax Court case involving 2009. She tried to distinguish the facts of the earlier case by pointing out that she also paid the property taxes and the homeowner insurance, and shared in the maintenance expenses. Under California law, the legal owner is the equitable owner unless clear and convincing proof is presented that someone else is an equitable owner. The taxpayer failed to show that any agreement or understanding existed by which her brother held title on her behalf or to present any other evidence supporting her claim of being an equitable owner. The Court noted that the taxpayer had not contributed to the downpayment, was not obligated on the mortgage loan, and did not have her name on the deed.

If the taxpayer wanted the interest deduction, she needed to do something to shift ownership. One possibility would be entering into an agreement by which she became part legal owner of the property, and assumed an obligation to make mortgage loan payments. There probably would be countervailing considerations that could lead to a decision not to shift ownership. The availability of the interest deduction ends up as one of several factors that need to be considered. However, no matter what ultimately is decided, it makes sense in these sorts of situations to obtain advice about the best approach to take.

With mortgage loan modifications rather commonplace, particularly during times of economic downturns, taxpayers need to be careful when re-arranging their loan terms, particularly with home mortgages. There are lessons to be learned from what happened to the taxpayers in a recent Tax Court case, Copeland v. Comr., T.C. Memo 2014-226.

The taxpayers, who use the cash method, applied for and were granted a loan modification by their mortgage lender. Under the modification, the interest rate was reduced, payment terms were changed, and the loan balance was increased. The increase in the loan balance included past due interest that the taxpayers had been unable to pay. The taxpayers claimed a deduction for the unpaid interest that was added to the loan balance. The IRS disallowed that deduction, and the Tax Court sustained the IRS determination.

Interest is deductible by a cash method taxpayer when the interest is paid. The taxpayers in Copeland did not pay the interest, because adding the interest to the loan balance is not payment but simply a promise to make the payment in the future. This principle is well settled in the tax law. To get around this principle, the taxpayers asked the Tax Court to treat the loan modification as if they had borrowed money from another lender and then paid the outstanding principal and past due interest on the existing loan. The court declined to do so, pointing out that what the taxpayers actually did was not the same in economic substance as what they were trying to persuade the court to pretend that they did. The court explained that the taxpayers did not establish that they could have obtained a loan from a third party, and that even if they had been able to do so, the fact that they did not do so confined them to the tax consequences of what they actually did.

If these taxpayers did have the opportunity to borrow from a third party and use the loan proceeds to pay off the existing principal and interest obligations, doing so would have provided them with a tax benefit. Whether non-tax factors would have outweighed the tax advantage is something that cannot be determined from the facts presented by the court’s opinion. But for taxpayers and their tax advisors, it is something worth examining when a taxpayer sets out to restructure a debt obligation.

Last week, on my 10-hour round-trip drive to meet my first grandchild, a thought crossed my mind. It was triggered by the experience of needing to move back and forth between the right lane and the left lane on those inadequate four-lane limited access highways. The need to leave the right lane was triggered by the drivers who dilly-dally, driving at 10 to 20 miles per hour below the speed limit. But getting into the left lane, and staying in it while passing a slowpoke, was a dangerous adventure, because of the drivers who think they are NASCAR heroes and roar down the road at 20, 30, 40 and even more miles per hour than the speed limit. So, it struck me, those who are driving within 5 or 10 miles per hour of the speed limit are squeezed between the two extremes.

And then a second thought hit me. Being squeezed between the laggards and the speedsters is not unlike being squeezed between extremists on the right and extremists on the left. When it comes to tax policy, there are those advocate returning to 90 percent marginal rates, an idea that is absurd, and there are those who advocate eliminating taxes, another idea that is no less absurd. Neither side has the ability to fit their idea into the reality of the overwhelming majority who do not sit on the extreme edge.

What causes this behavior? The answer is simple. Addiction. When passing someone who is lumbering along in the right lane, I will increase my speed in order to minimize the time spent passing, remembering the lesson that the longer two vehicles are running parallel, the greater the chances of a collision. Along comes the speedster who, even though I am now driving 10 miles per hour above the speed limit, hangs on my rear bumper. I’ve experimented. Speeding up does nothing. Though I’ve not tried hitting 80 or 90 miles per hour, it’s never enough for these speed-addicted fools. And the same is true of wealth generation. Most individuals would be happy with salaries in the high six-digit range, and with wealth in the low seven-digit range. But the nation’s multi-millionaires, billionaires, and multi-billionaires aren’t happy. They can double their income and wealth time and time again, and even if they could reach an infinity of dollars, would still be unsatisfied. Something’s missing in their psyche, and like the speedster who does not understand and cannot accept the reality of limits, they, too, cannot stop, for there is no limit on their insatiability.

But what the extremists tend to forget is that if you squeeze too hard, something is going to pop. And the longer it takes for the pressure to build, the stronger the eruption. Some speedsters never learn until that last micro-second before they and their vehicle become on lump of fused human and metal material. I wonder what will be the limit-teaching event for the tax policy extremists.

From the outset, I have made it a point to work Halloween into MauledAgain, usually looking for the silly or goofy but occasionally taking a more serious approach. The posts began with Taxing "Snack" or "Junk" Food (2004), and have continued through 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), The Scary Part of Halloween Costume Sales Taxation (2011), Halloween Takes on a New Meaning and It Isn’t Happy, and Some Scary Halloween Thoughts.

This time, I explore how the national dissension over wealth and income inequality has intruded on children’s Halloween activities. An unidentified reader recentlywrote to a Slate.com columnist, asking whether Halloween should be restricted to neighborhoods. The reader lives in what the reader describes as a very wealthy neighborhood, though a few blocks away from the billionaires and celebrities. According to the reader, most of the children knocking on the doors “arrive in overflowing cars from less fortunate areas,” something the reader thinks is “inappropriate.” The reader claims that “Halloween isn’t a social service or a charity . . . for less fortunate children,” and notes that “”we already pay more than enough taxes toward actual social services.”

The columnist’s response deserves a salute. She pointed out that she lived in an urban neighborhood that welcomed families not from the immediate area, and that it was a delight to see the children dressed up in costumes. She explained that her family shelled out an additional $20 to have enough candy to give out. She then described the reader’s letter as a “whine” that caused her to wish that “people from the actual poor side of town come this year not with scary costumes but with real pitchforks.” She advised the reader, “Stop being callous and miserly,” and advised the reader to get some candy to give to children who get one day a year to “marvel at how the 1 percent live.”

Personally, although distributing sugar might be feeding or creating a sugar addiction, I enjoy handing out candy to children on Halloween. When one of them runs down the driveway yelling to friends, “He’s giving out Reese’s Peanut Butter cups,” I get to smile and sometimes laugh. As a child, I canvassed not just my neighborhood but also the adjacent ones, though all of the neighborhoods were of the same socio-economic condition. I paid attention to my older brother and quickly argued for permission to head out with a pillowcase and not a small paper bag. The few people in other neighborhoods who did not know who I was simply asked. The idea that we should stay within our own neighborhood just didn’t exist, at least not by the time we were eleven or twelve. Nowadays, the children who arrive at my door not only come from my neighborhood, but from adjacent ones where the housing prices are meaningfully higher and from the university’s dorms at the northern edge of an adjacent neighborhood. I don’t ask for ID. I suppose that is what the Slate.com reader would be suggesting. I wonder if it would need to be a photo ID.

A recent case, Sanchez v. Comr., T.C. Memo 2014-223, demonstrates how a taxpayer should not file a Tax Court petition. The taxpayer received a notice of deficiency that was mailed on December 2, 2013, making the petition due by March 3, 2014. The taxpayer used an unidentified third party to prepare the petition. That person was “given documents to mail,” printed postage from Stamps.com, added extra postage for making the mailing certified, took the petition to the post office, noticed there were long lines, and dropped the envelope in the outgoing mail slot without getting a postal service employee to stamp certified on, and postmark, the envelope. The petition arrived at the Tax Court on March 10, 2014, bearing a postmark of March 4, 2014.

Not surprisingly, the Tax Court granted the IRS motion to dismiss for failure to file the petition in a timely manner. The court pointed out that the postal service postmark trumped the March 3, 2014, date on the postage generated by Stamps.com, that the postal service postmark could not be trumped by other marks unless it was missing or illegible, and that testimony of delivery to the post office of the petition on a day earlier than the postmark must be disregarded.

There are two major lessons to be learned from this case. First, stand in line and get that hand-stamped postmark. Second, avoid the need to learn the first lesson by treating the petition as due EIGHTY days after it is mailed. That provides a cushion of time, an allowance for unforeseen circumstances, and contingency insurance. The inability of most people to deceive themselves in this manner has its roots in childhood, when too many missed deadlines are tolerated, and lessons in timeliness aren’t taught and when taught, aren’t absorbed. More than a few law students have encountered serious academic difficulties because a variety of circumstances, some unpredicted and some to be expected, caused them to miss deadlines. People complain that law schools should be teaching time management, but, seriously, why are people arriving at law school lacking time management skills? The answer is, for the same reason people not going to law school have the same issues. Better to learn the consequences when what’s at stake is something minor and not a taxpayer’s Tax Court petition.