MauledAgain

Reader Morris alerted me to a report of a Chester Co., Pa., Orphans Court decision. My attempts to find an online publication of the court’s opinion have been unsuccessful. So I am relying on the report’s description of the decision.

The facts are simple. Lesley G. King’s will established a trust for her many animals, including horses, dogs, cats, and chickens, for the duration of their lives. All of her property was transferred to the trust. Trust income and principal is to be used for the care of the animals. When the last of the animals dies, any remaining funds would be distributed to King’s brothers and sisters and their children.

Pennsylvania imposes an inheritance tax on the value of assets transferred to any person who is an heir or beneficiary. The rate varies; it is zero percent, for transfers to surviving spouses and to parents from children 21 or younger, 4.5 percent for transfers to descendants, 12 percent for transfers to brothers and sisters, and 15 percent on transfers to others. The tax does not apply to transfers to charities and other tax-exempt organization.

The Pennsylvania Department of Revenue assessed a 15 percent inheritance tax on the entire estate. The Department’s position is that because the trust in question is not a tax-exempt entity, the inheritance tax applies to the transfer from the estate to the trust. It applied the 15 percent rate because the trust is not a surviving spouse, a parent of a child 21 or younger, a descendant, a brother, or a sister.

The executors of King’s estate argued that transfers for the benefit of animals are not subject to the tax because animals are not persons. They relied on an earlier case from Westmoreland County, in which the court held that a trust for the benefit of horses was not subject to the tax because there was no “person” to whom the property was transferred. The Chester County Orphans Court, however, concluded that although the animals are not persons, transfers to the trust for their benefit are taxable because there is no statutory provision exempting the transfer from the tax.

Though I agree with the conclusion, I disagree with the reasoning. Logically, the question of whether an exemption applies is not relevant unless there is a transfer to a person. The animals are not persons, and thus the tax does not apply, and thus the applicability of an exemption does not matter. The flaw, however, is the conclusion that the transfer was made to the animals. The transfer was made to a trust, the beneficiaries of which included not only animals but also the brothers, sisters, nephews, and nieces of the decedent. Those individuals are persons. Another approach is to treat the trust as a person, though doing so would simply move the analysis back a step, because determining the applicable rate would require identifying the beneficiaries of the trust. In this instance, the trust has human beneficiaries.

It probably is distressing to some to learn that under the law animals are not persons. Outside of the legal world, there are many instances in which people consider animals to be persons, whether pets who are considered to be children or chimpanzees and dolphins who can reason and communicate using human language. The debate about the status of animals, both inside and beyond the legal world, has been intense and ongoing. It is not one I address today.

What matters is how, if at all, a different outcome could have been reached with different planning. As the author of the report points out, the decedent could have avoided this outcome by setting up a similar irrevocable trust more than a year before death, because the tax does not apply to lifetime transfers not within one year of death. Another consideration would have been to determine more carefully the amount of money that would be needed for those animals, and to transfer that amount, rather than the entire estate, into that trust. King’s estate exceeded $400,000, and unless that amount, plus income on that amount, is required for the care of two horses, two dogs, two cats, and some chickens, putting all of that money into the trust exposed too much to the highest rate of inheritance tax.

So, technically, the answer to the question is, no, animals do not pay taxes but trusts set up for their benefit do end up paying taxes. The next question is whether robots pay taxes. I discussed that issue in Taxation of Androids and Robots, and Similar Pressing Issues. It’s only a matter of time before someone sets up a trust for a sentient robot. Who said tax is boring?

It is not unusual for students about to embark on a semester’s journey in a basic tax course to worry that their perceived inability to “do math” will get in the way of successfully completing the course. Much to their surprise, a substantial portion of what they encounter in the course does not involve math, and when math does show up it’s pretty much simple arithmetic.

Two months ago, the Pennsylvania Commonwealth Court delivered its opinion in a tax case. Neither math nor arithmetic were part of the analysis.

The core question faced by the court in East Coast Vapor, LLC, v. Penna. Dept. of Revenue, was whether e-cigarettes that do not deliver tobacco, and e-liquids that do not contain nicotine or contain nicotine from non-tobacco sources, are “tobacco products” under the Tobacco Products Tax Act. Specifically, the court was asked to decide if the legislature, by including these items within the definition of “tobacco products,” violated the due process clauses of the United States and Pennsylvania Constitutions. After disposing of procedural issues, the court turned to the basic question facing it.

The taxpayer argued that items not used to deliver tobacco nor manufactured from tobacco “are both logically and scientifically not a tobacco product.” I have told my students that by studying tax, one can learn quite a bit about many other things, and this case provides another example. I had not known that nicotine can be extracted not only from tobacco, but also from eggplants, potatoes, and tomatoes.

The Department of Revenue argued that there is a rational basis for treating e-cigarettes and e-liquids as tobacco products because they contain nicotine, nicotine is addictive, and the use of e-cigarettes opens the door to smoking tobacco cigarettes. The tax paid on e-cigarettes and e-liquids, according to the Department, helps bear the costs of harm caused by tobacco products, including e-cigarettes.

The Court concluded that there is a rational basis for including an “electronic oral device,” or e-cigarette, in the definition of “tobacco product” because, even as the taxpayer admitted, it can be used to vape e-liquid that contains nicotine derived from tobacco. The court also concluded that there were “legitimate state objectives” for including in the definition of “tobacco product” any e-liquid containing nicotine not derived from tobacco. The court explained that because the plaintiff did not argue that the nicotine derived from products other than tobacco is any different from nicotine derived from tobacco, it is not “unreasonable, unduly oppressive or patently beyond the necessities of the case” to tax something that is similar to tobacco, contains nicotine, and is addictive, as a tobacco product. The court noted that the tax is designed to increase the cost of e-liquid in an effort to discourage consumption of e-liquid.

The court also concluded that the Department of Revenue’s attempt to tax separately packaged component parts of e-cigarettes went beyond the statute. The court explained that the Department’s concern about sellers disassembling e-cigarettes and selling the components separately for consumer reassembly raised a problem that only the legislature could solve.

Because the case can be appealed, it is likely that the Commonwealth Court’s decision is not the end of the story. How will the Supreme Court of Pennsylvania react to the conclusion that something not containing nor derived from tobacco is a “tobacco product” simply because it resembles tobacco? Is a goose a duck because geese resemble ducks? Why isn’t the definitional problem also one for the legislature, which, I think, could impose a nicotine tax rather than, or in addition to, a tobacco tax? Candy cigarettes resemble real cigarettes and can encourage children to shift from sugar-based to tobacco-based cigarettes, so does that justify including candy cigarettes within the definition of “tobacco products”?

There are two related analyses required to deal with this situation. One is the policy analysis, namely, what should or should not the legislature encourage or discourage people from doing. The other is whether the legislature, after making that determination, has properly drafted the language of a statute to implement what it has decided to do.

Reader Morris directed my attention to a web site that contained the following statement:

Taxable income is the amount of money you owe the government in taxes, calculated on an annual basis.

Also known as gross income or adjusted gross income (minus tax deductions and exemptions) taxable income is any income, including workplace income, investment earnings and any income earned on the side (for things like part-time jobs, hobbies and gambling), and for income the IRS deems as "unearned."

Of course, anyone who understands even the most basic of federal tax principles knows that taxable income is NOT the amount of money owed in taxes. The distinction between taxable income and tax liability is one of the core principles of tax law, and I tell students that if they learn these core principles they will not fail the basic tax course even if they are unable to work their way through the taxation of social security benefits or the niceties of section 280A.

When I returned to the web site, the language in question had been removed, though it remains on other web sites that have re-published all or the first portion of the original posting. See, e.g., News Like This, Gtubo.

When I visited the web site, there still remained this language:

Taxable income is your federal tax liability. Fortunately, there are good ways to lower that number.

By the time this blog post is published, perhaps that language also will disappear or be amended.

This episode reinforces my request that basic tax principles be taught to every student at some point in the K-12 educational experience, as I discussed in posts such as Getting It Right: Questions and a Proposal, Promising Progress on the K-12 Tax Education Front , and Another Reason We Need Better Tax Education.

When the Congress, in its 2017 tax legislation, chose to limit state and local income tax deductions, states with relatively higher state and local income taxes decided to find ways to circumvent the limitation. One plan involves letting state and local taxpayers make charitable contributions to funds established by the state in exchange for state income tax credits that, in effect, offset the tax increase imposed on these taxpayers by the 2017 federal tax legislation.

After looking at the plans, I concluded, in Will My Reaction to Their Tax Plan Break Their Hearts? that these plans would not work. I explained as follows:

The plan won’t work. Here’s why.

To be deductible as a charitable contribution, a payment must satisfy several requirements. One of those requirements is that the payment be voluntary. Another is that the payment not be a quid pro quo.

If New Jersey enacts legislation that reduces some portion of state and local taxes and replaces that payment obligation with a requirement that taxpayers make payments to a charitable fund, then there is no charitable contribution deduction because the payment is not voluntary. If the payment is made voluntary, state and local revenues will decrease because surely there will be many taxpayers who choose not to make a voluntary payment.

If New Jersey enacts legislation that reduces some portion of state and local taxes and replaces that payment obligation with a requirement that taxpayers make payments to a charitable fund, then there is no charitable contribution deduction because the payment is a quid pro quo. First, the payment can be viewed as a transfer of money in exchange for lower tax bills. Second, the payment can be viewed as a transfer of money in exchange for state and local government services.

Three months later, when the IRS issued Notice 2018-54, I provided my prediction, in How Not to React to a Bad Tax Law, with these words: “Reading between the lines, I am convinced that Treasury and the IRS will characterize the payments to the state-controlled charities that are made in lieu of state or local taxes as failing to qualify for the charitable contribution deduction.” Last week, the Treasury issued proposed regulations that deny the federal charitable contribution deduction for contributions made in exchange for state tax credits. The Treasury concluded that receipt of the state tax credit or other tax benefit constitutes a quid pro quo that precludes a charitable contribution deduction. The federal charitable contribution deduction, assuming the other requirements of the deduction are satisfied, equals the amount of the contribution reduced by the value of the state tax credit or other benefit. The Treasury also proposes to permit taxpayers to ignore the subtraction of the state tax credit if the credit does not exceed 15 percent of the contribution to the charitable fund.

Officials in at least one state have promised to bring a lawsuit to challenge the proposed regulations. Technically, until the regulations are adopted, litigation is premature. But even after the regulations are adopted, it is difficult to identify any arguments that would prevail.

Surely there are people who are unhappy with these proposed regulations, and surely even more will be unhappy when they finally realize what the 2017 tax legislation has done to their finances. Unfortunately, for too many people, it won’t be until next tax filing season when they are enlightened. Tax filing season does not begin until several months after November. I repeat what I wrote in How Not t React to a Bad Tax Law:

I wonder how many taxpayers adversely affected by this “cut deductions for the middle class to finance tax cuts for corporations and the wealthy” had been supporting those who promised tax “reform” thinking that those promises would be helpful to them. Surely the wealthy don’t care, because their tax cuts more than make up for the lost deductions, but for those getting little or nothing in the way of tax cuts face tax increases. Trying to falsely claim mandatory taxes are voluntary charitable contributions isn’t an effective, or morally upstanding, way to deal with the problem. People who understand what is happening in Congress, and how income and wealth inequality are incremented by this deduction limitation, should know what needs to be done in the voting booth to fix the problem. Are there enough of those people? Will they act? Or will they throw their hands up in surrender and pave the way for even more wealth and income shifting in the wrong direction?

Those questions are still on the table.

Reader Morris directed my attention to an article describing a proposal by Hu Jiye, a finance professor at China University of Political Science and Law. Reacting to reports of falling birth rates in China, Jiye explained that the solution is a “no child tax” on two-income couples who have no children. The revenue would be placed in a “fertility fund” proposed by two other academics, which would be used to pay families with one child to have a second child. The two academics who proposed the “fertility fund” went further than did Jiye, suggesting that all citizens, not just two-income couples with no children, under the age of 40 pay a percentage of salary into the fund. Not surprisingly, the proposal has met with negative public reaction.

Jiye’s rationale is that couples with no children “have no offspring to take care of them once they grow old and therefore will consume social resources.” Does it not seem to him, as it does to me, that two-income couples with no children are in a much better position to save for retirement because they do not face the expenses of raising children. Why the assumption that they will be as needy, if not more needy, in old age than the couple who expended all their resources on raising children and did not save for retirement?

It wasn’t that long ago when China ordered families to limit their offspring to one child. Now that the practical implications of that foolish policy have become clear, China now faces what it considers to be a demographic crisis. It’s one thing for government to educate citizens with respect to the advantages and disadvantages of having families of different sizes, the wisdom or foolishness of having children when younger than 18, and the need for good family and financial planning. It’s totally another to dictate the number of children a couple has, whether directly or through taxation.

Though I have not been able to find details of the proposals in English, I wonder whether exceptions are made for couples who are physically unable to have children. I wonder if couples who have a child who dies would be required to have another child in order to avoid the proposed tax. Would a couple avoid the tax by adopting a child whose parents die? What happens if a couple has a child, divorce, and remarry to others? What happens if the divorcing couple has two children, and one of the former spouses marries someone who has no children? Must that spouse with two children have children with the new spouse in order to avoid being part of a childless couple?

Some of the public’s kinder reactions to these proposals used the words “unreasonable” and “absurd.” As one commentator declared, “Taxation is not the answer to everything.” Yet some provinces in China already have put in place policies that encourage having children, including subsidies, tax breaks, free school tuition for second children, housing benefits, and extended maternity leaves.

China’s concern is that as its population ages and dies the decline in births will translate to fewer taxpayers to support the aged, fewer workers, and a reduced pool for the military. There are other nations with the same concern. Yet at the same time there are nations with exploding populations, job shortages, and very high proportions of youngsters. Surely there is some way to remediate these global population imbalances without pushing the world’s population to even more unsustainable levels.

What makes this academic theory even more questionable in light of practical reality is its assumption that the existence of a “fertility fund” will boost births. What happens if childless couples choose to pay the tax rather than having children? Is the next theory to emerge from the academy a proposal to mandate having children? If so, will the couples ordered to have children be selected on the basis of more than simply their childlessness?

Considering that the reluctance of many Chinese couples to have children, or to have more than one child, is the high cost of raising children, and the recognition of those offering the proposals that financial challenges are a significant part of the problem, would not the solution be a realignment of the economy so that the average person is in a better financial position, one that makes it easier to have children? Could it be that income and wealth inequality – which is very severe in China -- presents even more threats to civilization than previously understood? If so, if the solution is to be found in the form of a tax, might it not be a tax on economic inequality?

Reader Morris alerted me to a story that is showing up in multiple reports, including this one from Fortune At least three large corporations, Apple, Genentech, and Walgreens, are disputing local property tax assessments. It’s not the dispute in and of itself that is alarming. After all, it’s not unusual for a tax assessor to overvalue a property. Nor is it necessarily alarming for a company as large and widespread as Apple to have appealed assessments 489 times during the past 14 years.

What is alarming is the position that Apple has taken with respect to at least two properties. In one instance, a property owned by Apple was assessed at $384 million. In another instance, a cluster of buildings around its headquarters was assessed at $1 billion. In its appeal for each of those assessments, Apple has asserted that each property is worth $200. That’s two hundred dollars, not two hundred thousand or two hundred million. Two hundred.

Why would Apple take such an extreme position? Perhaps it is playing the “meet you halfway game,” a game that many people think that courts and other decision makers play when resolving financial or other numerical disputes between parties. Yet, not surprisingly to those who understand how valuation, unreasonable compensation, and similar arbitration and judicial decisions are made, the “meet you halfway” outcome occurs fairly infrequently.

The explanation, it seems, rests on the greed underlying the drive to push shareholder returns to infinity. No matter how much of a tax cut or tax break is handed to large corporations and wealthy individuals, they come back for more. To claim that its properties are worth $200 is beyond absurd. It is a symptom of the extent to which greed has poisoned this nation, its economy, its tax policy, and its democratic principles.

It’s no secret that the tax legislation rushed through the Congress late last year is infected with errors. These are not simple mistakes that can be easily resolved. For example, if the word taxpayer appears as txpaer, almost everyone can figure out what is intended, and it’s not a big deal. But the mistakes in question are far more serious. They are so serious that the Republican members of the Senate Finance Committee have written a letter to the Secretary of the Treasury, and to the Assistant Secretary of the Treasury for Tax Policy who is also Acting Commissioner of the IRS, describing three of the errors and asking for help. Errors include failure to include items within definitions, cross-reference errors, the use of the word “ending” when the word “beginning” was intended, and badly drafted deduction limitations. These are but a few of the mistakes.

These Senators present their plea as an attempt to “clarify the congressional intent,” which they point out is “reflected in the conference report, revenue estimates, and other legislative history.” They admit that they are continuing to examine the legislation to “identify other instances in which the language as enacted may require regulatory guidance or technical corrections to reflect the intent of the Congress.” They explain that they intend to introduce technical corrections legislation.

If the Senators intend to fix these mistakes through legislation, why did they write to the Treasury and the IRS? Their letter provides the answer. “We send this letter to provide sufficient clarification so that any guidance that is issued related to [the described errors] and the Internal Revenue Service’s enforcement of them reflects the Congress’ intent.” In other words, these Senators want the IRS to ignore certain language in the statute and to act as though the language in the statute is the language that the Congress intended to, but failed to, insert. In recent years, the Treasury and the IRS have come under increasing criticism and attack for “legislating” beyond the scope of the statute, a charge also brought against other federal agencies. Suddenly Senators who subscribe to the “textualism” approach to statutory interpretation are trying to bring about legislative change by influencing an executive branch administrative agency. All of this could be avoided if the Congress had acted carefully last year, or if it enacted technical corrections legislation quickly. It has been, unfortunately, unable to do either. It rushed through the legislative process last fall, cobbling together bits of language that had been sitting on the shelf, waiting for a change in Administration, mixing in text drafted by lobbyists who have a narrow perspective of just those Code sections in which they are interested and lack an overall view of the Code, and making last-minute changes to satisfy one or another of their handlers. The result is a mess, even aside from the policy disasters reflected in the legislation. And because they are caught up in their own troubles, despite controlling both houses of the Congress, they are unable to get a technical corrections bill enacted with any degree of alacrity.

It is not the job of the executive branch to fix the errors of the Congress. The claim that “laws should be enforced as written,” so often hailed by adherents to the philosophy that has conquered the political party to which these Senators subscribe, should be followed in this instance. Of course that will hurt some taxpayers. Perhaps that hurt, like the hurt suffered by so many others who are getting the opposite of what they voted to receive, will inspire people to sit back, think about the dysfunction, and move forward in a way that cleans up the mess that has made the tax law, and other laws, such morass of absurdity during the past several decades.

The bottom line is simple. Caught up in partisanship, putting party and donors over country, putting spite ahead of graciousness, and handing too much of the job to the lobbyists, the Congress has failed. It has failed in its duties, it has failed the voters, and it has failed the nation. Though technical corrections legislation has been with us for a long time, the need for fixes has continued to increase, and now has reached the point where the original legislation is such a mess that it ought to be recalled. If they can’t get it right, they ought to step aside and make room for those who can. And that’s not an invitation for the legislative branch to defer to the executive branch. It’s an invitation to repopulate the Congress, on both sides of the aisle.

It amuses me when someone who disagrees with a point that I make tries to classify me as an adherent of one or the other of the two competing ideologies that dominate American politics. Yet, as I pointed out in Tax Code Overuse, “When it comes to politics, I dine at the buffet. My focus is on the nation, principles, and policies, rather than on policies, caucuses, or individuals. It is not unusual for me both to praise and criticize the same organization or person.” I then provided an example, and today I provide another example of how I adhere to the principle that conclusions should be reached based on analysis and not on adherence to a particular person, party, or organization. On more than a dozen occasions I have shared a reaction to commentaries published by The Institute for Policy Innovation, and today I offer another. How will I react? The futility of trying to classify me is demonstrated by how I have reacted in the past. On three occasions (Let’s Not Extend The Practice of Tax Extenders, Yes, Tax Uncertainty Hurts, When Congress Dilly-Dallies on Tax Issues) I have agreed, on six occasions I have disagreed (When Double Taxation Doesn’t Exist, How Best to Describe the Use Tax Collection Issue? , The New Five-Year Plan? , So Why Are Workers Struggling? , Does Repealing the Corporate Income Tax Equal More Jobs? , Arguing About Tax Crumbs), and on six occasions I agreed in part and disagreed in part (Tax Code Overuse, Tax Collection Obligation is Not a Taxing Power Issue, It’s Not Just Taxes, Collecting An Existing Tax is Not a Tax Increase, Who’s to Blame for Tax Fraud? , Deducting Taxes: It’s Not the Subsidy). In some instances the disagreement was more a matter of articulation or finding the appropriate remedy to an agreed-upon problem than a rejection of the underlying concern.

A few days ago, in Who Pays Tariffs?, Tom Giovanetti offers an important analysis of how tariffs work and what the recently imposed tariffs will do to Americans and the American economy. Giovanetti points out that in the past, tariffs were a major source of federal tax revenue, that tariffs have been in place for decades, and that until recently, U.S. tariffs were significantly lower than those of the nations with which the U.S. trades. He points out that tariffs on goods imported from a particular country are not paid by citizens or residents of that country but by the Americans who purchase those goods, because the importer passes the tariff along as part of the price charged to consumers. On all of these points, he is correct.

Giovanetti argues that the tariffs imposed by the current Administration aren’t designed to raise revenue, but to increase the cost of imported products so that American consumers will shift their purchasing decisions from those items to their equivalents manufactured in the United States. He notes that this shift also has the effect of raising the prices charged by domestic manufacturers. Tariffs, he concludes, hurt American businesses and American consumers. On all of these points, he is correct. He doesn’t mention that in some limited instances the tariffs might be helpful to a particular American company or its workers to the extent the shift in purchasing decisions increases that company’s sales and profits, though those increases might be offset by the increased costs the company faces when it purchases components and supplies and that its workers face when making their consumer purchases. In sum, this omission isn’t a flaw in his explanation, but a detail that probably has no meaningful impact on the analysis.

Giovanetti describes the “national security” justification presented by the current Administration for its tariff decisions as “an embarrassing fiction.” Of course it is. And when he argues that “any discussion about tariffs should at least be informed by an accurate understanding of who actually pays,” he is spot on.

Giovanetti characterizes the tariff as a tax, specifically, a border tax. It is. In some ways, the word “tariff” is less offensive to some than the word “tax.” It is not unlike a sales tax or a value added tax. And it falls on the person purchasing the item subject to the tariff, just as a sales tax or value added tax falls on the consumer.

Tariffs are not the path to improving the American economy. There is a place for tariffs, but those instances are limited and often should be of short duration. Giovanetti is correct. The current flood of new and increased tariffs is helping no one who needs help.

Almost two weeks ago, in The Realities of Income Tax Withholding, I discussed the extent to which the revised withholding tables will cause taxpayers to owe tax, or receive smaller refunds, in early 2019. I explained:

My guess is that the number of taxpayers who need to pay more in April will be more than 21 percent. There have been claims that the Administration and certain members of Congress want ordinary taxpayers to think that the 2017 tax legislation significantly benefits them, even though more than 80 percent of the tax breaks in the legislation accrue to large corporations and wealthy individuals. What better way to do this than to increase take-home pay through reductions in tax withholding? Happy wage earners will react in November, and then, in March and April, discover that some, perhaps all, of that extra take-home pay was nothing but a temporary boost in cash while they scramble to come up with money to pay the tax due on their returns. When this claim was raised in December, the Secretary of the Treasury called it ”another ridiculous charge." Tell that to the people who will be writing checks in March and April. But tell them now, or in September, or in October, when this information will be more valuable to them. Learning this in early 2019 will be too late.

I suggested. “Check your withholding and your estimated tax payments. Or have a tax professional do that for you. Figure out what will happen next March and April if you do nothing. Then make adjustments to minimize the pain of early 2019.”

A week after my commentary and suggestion appeared, the IRS offered its opinion. In a news release issued on August 13, the IRS offered this advice:

The IRS urges taxpayers to complete their “paycheck checkup” now so that if a withholding amount adjustment is necessary, there’s more time for withholding to take place evenly throughout the year. Waiting means there are fewer pay periods to withhold the necessary federal tax – so more tax will have to be withheld from each remaining paycheck.

Adjusting withholding can prevent taxpayers from having too little tax or too much withheld. Too little withheld could result in an unexpected tax bill or penalty at tax time in 2019.

In another news release, issued the next day, the IRS elaborated, pointing out that taxpayers with income primarily from sources other than wages, taxpayers with complex returns, and taxpayers with higher incomes also should check their withholding.

The IRS urged taxpayers to run the computations “soon,” advice which makes good sense. The longer taxpayers wait to adjust withholding, the fewer paychecks remain to absorb the changes. To this I will repeat my recommendation that the computation be done before November so that taxpayers can get a much better understanding of what tax “reform” and tax “reduction” is doing for them. In too many instances, it will be much less than expected. In some instances it won't even be a reduction, but an increase.

It’s no secret that I support education. Education is the antidote to ignorance, and ignorance is the fertilizer of undesired and unpleasant consequences. Education comes in many forms, ranging from the informal activity of watching and learning as someone works on a project to attendance at lectures in large auditoriums. If a person studiously focuses on the educational process, the person learns at least something and often learns quite a lot.

There is a risk, of course, in supporting education. Without a qualifier, the word education also includes learning how to do things that ought not be done. It’s no secret that one of the flaws of the prison system is that first-time offenders learn from experienced criminals how to polish and perfect their lawbreaking skills. The internet abounds with instructions for creating evil devices and pursuing wicked activities.

So even though it ought not have come as a surprise to me when I read what was revealed in this news story, I indeed did stop and shake my head when I came to one particular aspect of the report.

Put briefly, a woman in North Carolina entered a guilty plea to a charge that, along with others, she prepared 519 false tax returns, generating $1.3 million in unjustified tax refunds. The woman was a co-owner of a tax return preparation business. She also was affiliated with another tax return preparation business. She and the other individuals created false information for their clients about a variety of items affecting tax liability computation, running the gamut from income and deductions to credits. They told their clients to write false information on tax forms and other documents to generate fake records that were used in preparing the returns.

Now comes the kicker. The woman held training sessions for employees of the tax return preparation businesses to teach them how to, according to court documents, “manipulate the information on clients’ tax returns to maximize the clients’ tax returns.” It’s one thing for education to be flawed because the instructor is inadequately trained, or doesn’t understand the material sufficiently, or lacks communication skills, or demonstrates a lack of interest in one or more of the topics. That’s lamentable, but it’s not intentionally evil. The only good news is that she was caught, and will go to jail. The bad news is that she may end up teaching the other inmates how to file false tax returns. That is why it is so important to maximize the number of Americans provided with quality tax education.

A week and a half ago, in Tax Hogs at The Tax Trough, I criticized the proposal that Treasury, independent of Congressional action, index adjusted basis for purposes of computing taxable gains. Of course, I was not alone in lambasting the proposal. Similar, and additional, reasons to reject the proposal were raised by the Tax Policy Center, other law professors, the New York Times, New York Magazine, and numerous other commentators who understand the realities of tax policy.

Of course, it wasn’t long before the defenders of increased wealth and income inequality stepped up to defend the indefensible. Consider the arguments made by Ryan Ellis of the Center for a Free Economy. He argues that because one-fourth of capital gains reflects inflation, that increasing adjusted basis to reflect inflation is justified. Of course it would be, but for the fact that special low tax rates on capital gains reflect intent to offset the inflation element of the gains. When income, in the form of capital gains, is taxed at zero, 15, or 20 percent, and ordinary income is taxed at rates as high as 37 percent, it is obvious that those special low capital gains tax rates offset inflation by much more than inflation. Ellis, unhappy with the portrayal of this proposal as a handout to the wealthy, which, of course, it is, tries to demonstrate that the proposal would assist “normal, middle-class Americans.” His examples include sales of long-held residences by married couples that generate more than half a million dollars in gains, farmers who sell land held for decades, retired individuals selling stocks, and collectors of various memorabilia. As I pointed out in my earlier commentator, I’m all for indexing adjusted basis, provided that, in turn, the special low capital gains tax rates are abolished. When someone argues that because inflation exists they ought to get both special low rates and basis indexation, I return to the vision of tax hogs at the tax trough. And, of course, for every dollar of capital gains that a middle-class taxpayer would escape with indexation of basis, the wealthy escape hundreds, if not thousands, of dollars of gains. Once again, advocates of making the wealthy wealthier think that throwing crumbs to the peasants justifies serving rich pastries to the engorged.

Ellis asks, “If a child buys a toy in 1980 for $5 and can sell it today for $100, why can’t they use the $5 number in today’s inflation-adjusted terms ($16) instead when figuring gain on the sale?” The answer is simple. The $95 of gain is taxed, if at all, at no more than 20 percent, rather than at 37 percent. A fair tax system would required the toy seller to compute gain of $84, using indexed basis, and then pay tax at regular rates on the $84. It’s obvious why the special low capital gains rate structure, rather than basis indexation, was selected by investors when the tax policy debate was framed decades ago. But now, having made their choice, they’re back to grab both. Oink, oink.

And consider the thoughts expressed in the anonymous Washington Examiner editorial. The writer argues, “It’s a bit of a stretch to describe indexing of capital gains to inflation as a tax cut.” There is no question, at least among those who understand taxation, that indexing basis will reduce the tax liabilities of those who sell assets with indexed adjusted basis. A reduction in tax liabilities is a tax cut. Tax cuts exist not only when tax rates are reduced, but when exclusions, deductions, or credits are increased, and when gains, or other inclusions, are reduced. The anonymous writer tries to defend the absurd claim that a tax reduction is not a tax cut with this gem: “True, people will owe less in capital gains taxes as a result, but that's because the federal government will no longer use fake gains to take real money away from them.” I’m all for removing fake gain from the tax base provided the advocates of inflation-indexed basis agree to remove fake tax rates from the Code. Why do I call those special low capital gains rates fake? Because once fake gains are removed from the definition of income, then income is income from whatever source derived, and ought to be taxed at the same rate whether it arises from the sweat of labor or the winnings from playing the lottery or the stock market. The anonymous writer gives a silly example, writing, “ If you buy a stock at $20 and it grows to $30, but $8 of that gain is because of inflation, 80 percent of your gain is notional, not real. Why should you be taxed on $10 when you only made $2?” The answer is simple. First, rarely, if ever, would 80 percent of the increase in stock growing by 50 percent be on account of inflation. Second, under present law, the practical effect of the special low capital gains rate is to tax only a small portion of the $10 overall gain. Of course, using realistic numbers would demonstrate that special low capital gains rates removes the inflation portion of gain from taxation. The anonymous writer claims that “Envy never looks good once it's stripped of its camouflage of concern for fairness.” Somehow this writer wants people to think that grabbing both special low rates and indexed basis is fair. I wonder if this writer thinks it is fair when someone takes a second helping from the buffet table before others even get their first go at the buffet.

These supporters of double dipping by the wealthy are either ignorant of the history of how gains are taxed or are deliberately failing to provide a complete explanation in the hope that keeping people ignorant of reality will increase support for a foolish, dangerous, and unjustifiable idea. The fact that this idea is getting traction among the acolytes of the wealthy proves, once again, that education is valuable because education dispels ignorance. Too few people have been educated with respect to tax policy. It’s time for that to change.

My criticism of the 2017 tax legislation as a sloppily-drafted, terrible-for-most-Americans giveaway to the oligarchs is no secret. I have written about the flaws of that legislation in posts such as Taxmas?, Those Tax-Cut Inspired Bonus Payments? Just Another Ruse, Getting Tax Cut Benefits to Those Who Need Economic Relief: A Drop in the Bucket But Never a Flood, Oh, Those Bonus Payments! Much Ado About Almost Nothing, More Proof Supply-Side Economic Theory is Bad Tax Policy, Arguing About Tax Crumbs, Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans, Yet Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans , Is Holding On To Tax Cut Failures Admirable Perseverance or Foolish Stubbornness?, and What’s Not Good Tax-Wise for Most Americans Is Just as Not Good for Small Businesses.

Now there is more evidence that the tax breaks created by the 2017 tax legislation are doing much more for the oligarchy than they do for the vast majority of Americans. According to this newly released Bloomberg report, banks which received an average of almost $400 million in tax cuts for the first half of 2018 eliminated 3,200 jobs. The tax legislation was sold on the promise that tax cuts for big corporations would create jobs, and presumably good jobs. So what was done by the 23 banks classified by the Federal Reserve as “most important” do? They didn’t create jobs. They didn’t leave their workforces intact. They eliminated 3,200 jobs. Several of the banks defend their actions by pointing out that employees fortunate enough to retain their jobs received pay increases, though for most of the banks the portion of revenue going to employee compensation declined from the previous year.

Perhaps these banks increased the loans they make to individuals and small businesses so that consumer demand would increase and small business hiring would increase. Both of those things would stimulate the economy and contribute to genuine job growth. Though they increased loans, by 0.9 percent, they did so at one-half the rate of lending growth a year earlier, before the 2017 tax legislation was enacted. Put another way, those tax breaks handed out by the 2017 tax legislation to these banks caused lending growth to decline. Banks are offering the excuse that their customers don’t need to borrow because they have received their own tax cuts. Tell that to the people who continue to struggle with debt, who continue to delay home purchasing, or who cannot afford the basic necessities of life, but who are either turned down when they apply for a loan from these banks.

What did these banks do with their tax breaks? They have indicated they will increase dividends and payouts by more than $28 billion between now and the middle of next year. I wonder how many of those 3,200 individuals who lost their jobs are looking forward to getting some part of those dividend payout increases.

Oddly, a significant minority of Americans continue to praise the 2017 tax legislation. Though a tiny percent are happy because the are reaping most of the benefits, the vast majority of those worshipping the 2017 tax legislation are unaware of what looms ahead for them when the bubble breaks. By the time they realize they’ve been conned, by the time they realize even more wealth and income has shifted away from them, by the time they realize that blame for their economic and other woes has been misdirected, it will be too late. Even if, by then, their eyes are opened and their minds change, it will be too late.

I have been writing about the collection of use taxes on internet transactions for more than fourteen years. I started with Taxing the Internet, and continued with Taxing the Internet: Reprise, Back to the Internet Taxation Future, A Lesson in Use Tax Collection, Collecting the Use Tax: An Ever-Present Issue, A Peek at the Production of Tax Ignorance, Tax Collection Obligation is Not a Taxing Power Issue, Collecting An Existing Tax is Not a Tax Increase, How Difficult Is It to Understand Use Taxes?, Apparently, It’s Rather Difficult to Understand Use Taxes, and Counting Tax Chickens Before They Hatch, A Tax Fray Between the Bricks and Mortar Stores and the Online Merchant Community, Using the Free Market to Collect The Use Tax, and A Better Understanding of Sales and Use Taxes Can Enrich the Discussion.

My last post on the topic brought a response from a reader who shared his experience

:The small companies I have audited would prefer if the sales taxes were charged on the items they get from out of state. It would save them time and wages, from not having to go through the invoices to pay the use tax owed.

After considering this observation, two thoughts found space in my brain. The first made me wonder whether two different sales/use tax systems would be better, one for small companies that make online purchases and one for individuals. It is much more difficult for small companies to avoid use taxes than it is for individuals. So, yes, in terms of having the vendor figure out the use tax liability and collect it does spare the small company the cost of compliance. On the other hand, most individuals find it easier to escape paying their use tax obligations, because states lack the resources to go after individuals other than those making out-of-state purchases of registered items such as vehicles and boats and because putting a use tax line on state income tax returns isn’t very effective. Given the choice, most individuals would prefer that the vendors not collect the use tax, because that translates into escaping the use tax. The second thought made me think that support by small companies for having out of state vendors do the computation, collection, and payment work that spares the small companies from the effort and resources they would need to expend in order to file use tax returns strengthens the argument I continue to make that states ought to be compensating out of state vendors for doing that work. Some states do compensate in-state vendors for collecting sales taxes, though I doubt that the amount of compensation covers the cost of computing, collecting, and remitting the sales tax.

It’s unfortunate that states and non-resident vendors did not deal with this issue through negotiations as I have suggested but let the issue end up in the Supreme Court. Vendors have lost much of the position of strength that they would have had in negotiating the issue. All is not lost, however. Considering how desperate some states have been to bring business into their domain through tax breaks and other incentives, might it not make sense for some vendors to write off low population states, or states where their products and services are in low demand, by refusing to sell to consumers whose zip codes are within those boundaries? Put another way, should vendors tell states, “If you want your residents to have the opportunity to purchase what we sell, pay us to do your use tax collection work.” Those who disagree might theorize that competitors would jump in to fill the void, but the overhead of installing use tax collection processes which deters the existing vendor is an even steeper obstacle for the newcomer. As much as small companies making purchases from out-of-state vendors might be happy paying the use tax to the vendors, those vendors might not be very happy, and individuals with neglected use tax obligations will continue to ignore use tax filing unless and until the vendors from whom they purchase collect the use tax. Smart governors and state legislators know that it makes more sense to work out deals with out-of-state vendors than to try to club them over the head with a Wayfair hammer. What better way to induce out-of-state vendors to do the state’s use tax collection work rather than refraining from selling to residents of that state than to pay the vendors for doing the work?

For decades, taxpayers whose income comes from wages have paid their income taxes not by waiting until filing their returns but through withholding by their employers. How does an employer know how much to withhold? The employee tells the employer his or her expected filing status and how many withholding allowances the employee is claiming. Those allowances were based on the number of personal and dependency exemptions the employee expected to claim and the amount of itemized deductions the employee expected to claim. The employer then used tables, more recently incorporated into software, provided by the Department of the Treasury.

That changed in December when the 2017 Tax Cuts and Jobs Act was enacted. One of its changes was to set the personal and dependency deduction amount to zero. Because the withholding tables provided by Treasury used the personal and dependency deduction amount, which was adjusted each year for inflation, the existing withholding tables would not work for 2018 withholding. So the legislation gave the Treasury discretion to compute a withholding allowance based on other factors. There was concern that changes in withholding based on new allowance amounts would not generate the proper amount of withholding. Several members of Congress requested the Government Accountability Office to examine what Treasury did with respect to withholding. The GAO did so and issued a report.

In its report, the GAO explained that Treasury officials described Treasury’s goal in adjusting the withholding allowance amount as increasing the accuracy of withholding. Treasury set the withholding allowance at $4,150, which is what it would have been had the 2017 legislation not been enacted. Treasury claimed that no other amount that it tested was better at reaching Treasury’s goal of increasing the accuracy of withholding. Though Treasury officials described the process of determining the amount, they did not provide to the GAO any documentation of the process, claiming that it was “routine and straightforward,” even though federal internal control standards require agencies to document their processes. The GAO reported that the Treasury’s description of simulations that it performed included a conclusion that the new withholding tables would increase to 21 percent the percentage of taxpayers with insufficient withholding. In other words, taxpayers who will discover, during the 2019 tax filing season, that they owe more taxes. How many taxpayers are included in the 21 percent? Thirty million.

My guess is that the number of taxpayers who need to pay more in April will be more than 21 percent. There have been claims that the Administration and certain members of Congress want ordinary taxpayers to think that the 2017 tax legislation significantly benefits them, even though more than 80 percent of the tax breaks in the legislation accrue to large corporations and wealthy individuals. What better way to do this than to increase take-home pay through reductions in tax withholding? Happy wage earners will react in November, and then, in March and April, discover that some, perhaps all, of that extra take-home pay was nothing but a temporary boost in cash while they scramble to come up with money to pay the tax due on their returns. When this claim was raised in December, the Secretary of the Treasury called it ”another ridiculous charge." Tell that to the people who will be writing checks in March and April. But tell them now, or in September, or in October, when this information will be more valuable to them. Learning this in early 2019 will be too late.

Yes, there always have been taxpayers whose withholding is insufficient. The point is, there now will be more. There also are taxpayers who will discover that although they do not owe more taxes, their expected refunds will be less than what they were hoping or planning to receive. Of course, taxpayers can do pro forma 2018 tax returns now, figure out their tax liability, divide it by the number of pay periods, and then reverse engineer the withholding tables to figure out how many withholding allowances to claim, as I described ten years ago in It’s Time to Adjust Withholding, But Can You Do the Calculations?, and Getting More Specific with That Withholding Question. Most people are unwilling or unable to do that. Nor should people be required or expected to put themselves through that laborious process. Of course, I have, year after year. But I’m not most people.

But, people, be forewarned. Check your withholding and your estimated tax payments. Or have a tax professional do that for you. Figure out what will happen next March and April if you do nothing. Then make adjustments to minimize the pain of early 2019. But remember, in November, where you would have been and who put you there.

Americans have been warned. Are they listening? Will they pay the price?

When people try to avoid or evade taxes, they often become creative. Tax creativity is good if it works, and is a nightmare when it fails. A recent case, Grainger v. Comr., T.C. Memo 2018-117, demonstrates how not to design a tax shelter. The taxpayer, a retired grandmother fond of shopping, developed what she called her “personal tax shelter.” When she learned that taxpayers generally may claim a charitable contribution deduction equal to the fair market value of donated property, she concluded that the fair market value of a retail item is the price at which the retailer first offers it for sale. So the taxpayer decided to purchase items that were “heavily discounted” from the original price on the sales tag and to donate those items. Her reasoning caused her to conclude that if a $100 item went on sale for $10, she could pay $10, donate the item, claim a $100 deduction, and save more than $10 in taxes.

The taxpayer started using her self-designed tax shelter in 2010. She reported non-cash charitable contributions of $18,288. In 2011, she claimed $32,672, and in 2012, the year in issue, she claimed $34,401. In the two following years, which were not in issue, her claimed deductions rose to $40,351 and $46,978. That’s a lot of shopping.

The items that she donated in 2012, for which she claimed a non-cash charitable contribution deduction of $34,401, cost her $6,047, consisting of $2,520 in cash, and $3,527 in store “loyalty points.” The items were described by her on Forms 8283 as dresses, jackets, and other clothing.

The IRS denied all but $2,520 of the claimed deduction, concluding that the taxpayer’s method of determining fair market value was not a qualified method. On appeal, the IRS increased the deduction to $6,117, mostly by including the loyalty points. It’s unclear why the $6,117 exceeded the $6,047 outlay. Thereafter, the IRS issued a notice of deficiency and the taxpayer filed a petition with the Tax Court. The IRS moved to reduce the allowed deduction by $3,527, arguing that it had erred when it included the loyalty points in the allowed deduction, but the court denied the motion because it was untimely and would prejudice the taxpayer.

The Tax Court denied the taxpayer’s claimed deductions in excess of what the IRS had allowed. It did so because the taxpayer had failed to obtain a qualified appraisal, required because the clothing items, when grouped together as required, exceeded $5,000 in claimed value. The Forms 8283 that the taxpayer had attached to her return were not executed by an official of the donee organizations. In addition, the court held that the taxpayer had not obtained the contemporaneous written acknowledgments. The court then explained that even if the taxpayer had provided the required substantiation, her claimed deduction would be disallowed because she did not use a qualified method for determining fair market value. The court pointed out that fair market value of an item is not the price at which a retailer initially offers the item for sale. The fair market value is the price for which the item was transferred from the retailer to the purchaser, which was the amount the taxpayer had paid. And, the court added, even if the taxpayer could establish that the fair market value of the items exceeded what she paid for them, because she donated them shortly after purchasing them, she would be required to reduce the deduction by the amount of gain that would not be long-term capital gain had the taxpayer sold the items for the claimed fair market value.

One of the many symptoms of the current tax law’s sickness is the ease with which the wealthy can enter into tax shelter arrangements that are unavailable to taxpayers of much lesser means. Tax shelter promoters, whether hawking legitimate or not-so-legitimate deals, turn their attention to the wealthy, in part because it doesn’t pay to offer $10 tax shelters, in part because investment regulations block people of modest means from most private offerings, and in part because the wealthy are in a better position to cause the enactment of legitimate tax shelters in the tax law that are feasible only for those with sufficient funds. It is not surprising that a retired grandmother, whose income from the facts appears to have been quite modest, would engage in a creative but misguided scheme to reduce her tax liability.

It ought not be shocking that the folk who pay lower federal income tax rates on their incomes than typical middle-class Americans do are back asking for even more tax reduction. Yet there is some degree of shock, and most certainly disgust, at the extent to which the greed of the oligarchs and their acolytes permeates their every thought, word, and deed.

What are they up to this time around? It’s the Capital Gains Inflation Relief Act of 2018. Not unexpectedly, its advocates claim that passage would fire up the economy and bring all sorts of economic benefits to those most in need of economic assistance. Nonsense. That sort of trickle-down policy does not work, has never worked, and yet continues to bamboozle enough Americans that they line up to vote for the very people who are making their lives miserable.

The legislation would index the adjusted basis of some capital assets for inflation. What’s wrong with that? In and of itself, nothing. The problem is that the special low rates paid by investors on their investment income, rates lower than what wage earners pay on their salaries, have been justified by the lack of inflation adjustments to offset the portion of capital gains that reflect inflation rather than real income. Indexing adjusted basis for inflation makes sense, but only if the special low rates are repealed.

Many years ago, in Capital Gains, Dividends, and Taxes, I explained how this would work:

The advocates of low (or no) capital gains taxation claim that they are being taxed on "phantom" income because some of the gain represents adjustments in price that reflect inflation. They point out that adjustments for inflation exist in the tax law for a wide variety of items (for example, the personal and dependency exemption amount, the standard deduction, the cut-offs for the phase-out of various deductions and exclusions, etc.) But they overlook the fact that the tax rate schedules themselves are adjusted for inflation. Not good enough, they reply.

The answer, therefore, is simple. Make an inflation adjustment to the basis in the asset being sold. Capital gain reflects the difference between the net selling price and the amount invested ("basis") in the asset. So if T buys stock for $100 and ten years later sells it for $400, T has capital gain of $300. If T is in the 30% marginal bracket, T pays tax of $90 on the gain. But T argues some of the gain reflects inflation. How that justifies taxing T at a rate of 5% or even (as the advocates admit is their goal, zero percent) is impossible to understand, let alone accept. Why should T's tax on the gain be $15 or $0? Let's assume that during the 10-year period in question inflation was 35% (that's roughly 3% a year compounded). What makes sense is to let T adjust the basis from $100 to $135. Then T's gain would be $265 ($400 minus $135). Taxed at 30%, T would have a tax liability on the capital gain of $79.50. That's lower than $90 but not near the unfathomable $15 or $0 that T thinks is "fair."

But as I pointed out several years ago, in Special Low Tax Rates Hurt the Economy and Thus the Nation, the goal of the oligarchs is not fairness, but tax oppression:

Advocates of special low tax rates for capital gains have one sensible argument, an argument that is inapplicable to dividends. To the extent that the gain reflects increases in value of property that mirror inflation, taxing the gain would be taxing non-real income. The solution, of course, is to index adjusted basis for inflation. There are dozens of places in the tax law where amounts are indexed for inflation. It’s not a new concept, it’s something easily done, and it solves the problem cited by the advocates of special low tax rates for capital gains. So why do they push that solution aside? The answer is that it would not permit real gains to escape taxation at the same rate that wages are taxed, and the advocates of special low tax rates for capital gains and dividends are intent on taxing labor at higher rates. Why? It’s not difficult to figure out that taxing labor at high rates and investment income at low rates speeds up the growth of income inequality and shuts down the upward mobility that tax-cut and tax-elimination advocates claim is their goal.

So now the advocates of wealth and income inequality have decided, considering the current political atmosphere and the accelerating pace of middle-class destruction, that it’s time to stop pushing aside the indexed-adjusted-basis approach, and to adopt it, not in substitution for unwarranted low and zero tax rates on the oligarchy, but in addition to those tax breaks. Apparently, the grab-all-the-plates-you-can-and-stuff-yourself-at-the-tax-break-giveaway-buffet-while-shouldering-the-small-fry-out-of-the-way bonanza has reached fever pitch. It’s too bad there are so many Americans who do not understand how the tax system works, who do not give themselves the opportunity to look at tax forms and tax returns to observe the discrepancies in how people are treated, and who do not understand the extent to which they are being snookered by a group of self-centered greedy money addicts, who in the process of feeding their addiction are destroying the nation.

My criticism of the 2017 tax legislation as a sloppily-drafted, terrible-for-most-Americans giveaway to the oligarchs is no secret. I have written about the flaws of that legislation in posts such as Taxmas?, Those Tax-Cut Inspired Bonus Payments? Just Another Ruse, Getting Tax Cut Benefits to Those Who Need Economic Relief: A Drop in the Bucket But Never a Flood, Oh, Those Bonus Payments! Much Ado About Almost Nothing, More Proof Supply-Side Economic Theory is Bad Tax Policy, Arguing About Tax Crumbs, Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans, Yet Another Reason the 2017 Tax Cut Legislation Isn’t Good for Most Americans , and Is Holding On To Tax Cut Failures Admirable Perseverance or Foolish Stubbornness?

Several days ago, K. Davis Senseman, a member of the Main Street Alliance, a national network of small business owners, and a member of the Executive Committee of Main Street Alliance of Minnesota, a statewide network of small business owners, testified in front of the House of Representatives Committee on Small Business and provided a more detailed statement on the subject of the committee’s hearing. What was the committee investigating? The title of the hearing says it all: “The Tax Law’s Impact on Main Street.”

Senseman made four points. “First, the majority of small businesses in Minnesota and across the country are not seeing consequential gains from the [2017 tax legislation]. * * * Second, * * * the Act’s small business provisions were quite confusing for all but the most sophisticated small business owner, [and m]any business owners * * * will see nearly all of the savings the [legislation] may have provided eaten up by attorney and accounting fees, as they paid experts * * * to parse through the [legislation] and advise them on their best next move. Third, to build an equitable economy that works for small business owners * * *, large corporations and wealthy individuals must pay their fair share of taxes. * * * [F]ourth[,] * * * no matter what you believe in the theories of trickle-down or up economics, the system of American corporate law * * * simply forbids corporations from doing anything that doesn’t provide the greatest economic benefit to their shareholders, and that this is why a corporate tax cut, no matter what size business it is aimed at, can never bring about the greatest economic stimulus for Americans."

It is most encouraging to see and hear small business owners and their representatives explain why the 2017 tax legislation does little or nothing for small business owners, and in some respects, hurts them, just as I, and others, have explained why that legislation does little or nothing for most Americans, and in some respects, hurts them. It is not a coincidence that the legislation, particularly when coupled with the impact of unwise tariffs and other decisions, causes even more wealth and income to shift from the many to the few. The oligarchs who are seeking a transnational system of global indentured servitude are counting on laziness and ignorance to implement their agenda under cover of false promises, fake news, and convoluted explanations that bewilder all but those sufficiently determined to cut through the propaganda.

If, indeed, the goal of the Congress and the Administration is to assist all Americans, including small business owners, then it would have proceeded, and would proceed, in a manner consistent with the platitudes too many of its members tweet, bark, and spew. Instead of handing out tax breaks to large corporations and wealthy individuals while driving up the deficit that will wreck the economy, Congress and the Administration should have, and could have, made tax breaks available only after the tax break recipient performs what has been promised. This is what I suggested in How To Use Tax Breaks to Properly Stimulate an Economy, How To Use the Tax Law to Create Jobs and Raise Wages, Yet Another Reason For “First the Jobs, Then the Tax Break”, and When Will “First the Jobs, Then the Tax Break” Supersede the Empty Promises? Of course, my suggestions fall on deaf ears in the nation’s capital, because it is no secret that adopting this approach would expose what is really happening behind the curtain of deflections, misstatements, and fabricated claims. What is happening is not good for the vast majority of Americans, nor is it good for small business.

When I last wrote about the collection of use taxes on internet sales, in Getting Past Nexus and Into Voluntary Use Tax Collection Compensation Plans, I pointed out that no one had made what I consider the best argument against permitting states to shift use tax collection duties onto out-of-state businesses. In that early June commentary I repeated what I had written in Tax Collection Obligation is Not a Taxing Power Issue:

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. * * * 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 * * * force[s] 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. * * *

* * * 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.

This commentary was the culmination of a long string of posts on the issue, starting with Taxing the Internet, and continuing through Taxing the Internet: Reprise, Back to the Internet Taxation Future, A Lesson in Use Tax Collection, Collecting the Use Tax: An Ever-Present Issue, A Peek at the Production of Tax Ignorance, Tax Collection Obligation is Not a Taxing Power Issue, Collecting An Existing Tax is Not a Tax Increase, How Difficult Is It to Understand Use Taxes?, Apparently, It’s Rather Difficult to Understand Use Taxes, and Counting Tax Chickens Before They Hatch, A Tax Fray Between the Bricks and Mortar Stores and the Online Merchant Community, and Using the Free Market to Collect The Use Tax.

A few weeks after I wrote the June commentary, the Supreme Court, in its Wayfair decision, overruled its earlier decisions requiring physical presence by a retailer in a state for there to be sufficient nexus justifying the state’s imposition of use tax collection burdens on the retailer, stated that clearly sufficient nexus exists if the out-of-state retailer engages in a significant quantity of business in the state, and remanded the case for further proceedings.

The Wayfair decision, a 5-4 outcome, has been praised and criticized. Even without reading the news, it’s not difficult to guess who likes and who dislikes the decision. State revenue departments are delighted, in-state retailers are happy, out-of-state retailers aren’t thrilled, and consumers will be annoyed when their online shopping price tags are increased by the taxes they thought they were avoiding.

One of those individuals not pleased with the decision is John Tamny, who explains his disagreement in Let's Be Blunt, Internet Sales Taxes Are Economy-Sapping Domestic Tariffs. As was the case with my analysis, in in Getting Past Nexus and Into Voluntary Use Tax Collection Compensation Plans, of George Pieler’s Washington Examiner commentary, I agree with Tamny’s ultimate goal, relieving out-of-state retailers from doing a state’s use tax collection work, but I disagree with some of his reasoning.

Tamny begins with an example of a Washington, D.C. resident purchasing cigarettes in Arlington, Virginia. He asks if this person should pay a sales tax to the District of Columbia. Because the District of Columbia does not impose a use tax on items that its residents purchase that are subject to sales tax where purchased, the answer is no. But consider the Pennsylvania resident, living in a state with a sales tax and a use tax, who travels to Delaware, which does not have a sales tax or a use tax, to buy items to bring back into Pennsylvania. In this instance, the answer to Tamny’s question is, “No, the Pennsylvania resident does not pay a sales tax to Pennsylvania but is required to pay a use tax. Of course, compliance is terrible, just as it is with Pennsylvania’s alcohol tax which, because it is so much higher, brings tales of Pennsylvania revenue agents sitting in vehicles outside liquor stores in the District of Columbia, and looking for heavily loaded vehicles crossing into Pennsylvania on one of the New Jersey bridges or on one of the interstate highways. So, although Tamny appears to be arguing against the imposition of a use tax, the use tax already exists. Technically, it’s the use tax that was at issue in Wayfair.

Tamny argues that tax competition arising from differences in tax rates, including a tax rate of zero where there is no sales or use tax, “serves a very real purpose.” He explains that “local taxing authorities” should consider the existence of lower or zero rates elsewhere when “helping themselves to more of what we earn.” He considers the ability of state residents to make out-of-state purchases in places with lower or zero sales or use taxes to provide an incentive for state and local legislators to keep their taxes low. Yet legislators in every state with a sales tax have responded to that argument, decades ago, by enacting use taxes to back up their sales taxes.

Thus, when Tamny claims, “it’s a good bet that most – regardless of ideology – would blanch at the notion of reporting all purchases completed outside the city and state they live in so that they could be taxed on those purchases,” he seems to suggest that use taxes are a “notion” that has not yet been implemented. Of course most people find the idea of reporting out-of-state purchases to be annoying, but that’s a different question from whether they are presently legally required to do so. Recent attempts by states to increase compliance, for example, by including a reporting line on state individual income tax returns, illustrates the extent to which people confuse what the law actually is with what they think the law is or should be.

Tamny argues that if a D.C. resident isn’t subject to D.C. sales taxes when buying cigarettes in Virginia by going there in person, that resident ought not be taxed when making the purchase by staying in D.C. and making the purchase online from the Virginia. As I understand state sales and use taxes, the obligation to pay use taxes does not depend on whether the resident goes to another state to purchase something brought back into the state or stays home and orders online. The instructions to the District of Columbia Consumer Use Tax form make no distinction between purchases made out-of-state and those made online, referring simply to items on which no sales tax was paid to any state. Under current law, a D.C. resident who goes to Delaware, purchases an item and brings it back to D.C. must pay use tax, and also must pay use tax if making the purchase from the Delaware retailer through the retailer’s web site (ignoring the de minimis exception in the law).

Tamny supports his argument by claiming that sales taxes are designed to provide local government services, and that because out-of-state businesses do not benefit from those services they ought not pay sales taxes. This argument suggests to me that Tamny, like many Americans, does not understand the difference between sales taxes and use taxes or the difference between tax incidence and tax collection. The flaw in Tamny’s reasoning is illustrated by his claim that “when judges and politicians talk about the importance of levying sales taxes on outside vendors, what they’re really saying is that they want government to dip its hands into our pockets twice.” The flaw is that sales taxes are NOT levied on out-of-state businesses. Nor are they levied on in-state businesses. Sales taxes are not imposed on or paid by retailers. They are imposed on and paid by the consumer but collected and remitted by the business. Businesses, of course, pay business taxes, and those are not imposed on out-of-state retailers with no physical presence or business activity in the state. Use taxes also are imposed on consumers, but because many consumers are not paying the use tax, states are trying to put the collection burden on out-of-state businesses. When and if those out-of-state businesses are required to collect a use tax, they add the tax to what the consumer pays, and thus are not paying the tax. What’s at issue is the administrative burden and cost of collecting and remitting the tax, which requires the business to modify its software, bookkeeping, and similar processes.

When Tamny refers to the “internet sales tax” in his claim that “the internet sales tax isn’t about leveling the tax playing field as much as it’s yet another grab of the economy by politicians,” he reinforces my conclusion that he doesn’t understand sales and use taxes. The tax in question is the use tax, a tax that already exists and that should be paid by consumers making certain out-of-state purchases but that isn’t being paid by many of those consumers.

At one point, to his credit, Tamny gets to the point I made in June. He argues, “No reasonable person would support a byzantine system whereby a retailer in Virginia would collect taxes for Washington D.C.’s Office of Tax and Revenue.” Indeed. If, using my example, Pennsylvania wants Delaware retailers to collect use taxes on its behalf, it needs to offer Delaware retailers an incentive, namely, giving them some or all of the administrative costs avoided by Pennsylvania when it refrains from hiring thousands of additional revenue agents to patrol borders and monitor online sales transactions by Pennsylvania residents. Unfortunately, that is not how the situation has played out.

What is wrong with the Wayfair decision is that it focuses on the out-of-state business and its position vis-à-vis the in-state business rather than focusing on the consumer, the consumer’s use tax obligation, the state’s refusal to deal with its noncompliant residents directly, and the state’s shifting of that burden onto out-of-state businesses. Of course, it’s not so much the Court’s fault as it is the arguments made, and not made, by those arguing the case. Similarly, had the issue of whether retailers in low or zero sales tax states are encouraging tax evasion when, in advertisements, they invite out-of-state residents to come into the state to escape the tax, as I discussed in What Is a Retailer’s Obligation Not to Provide Misleading Tax Information?, been presented to the Court, the analysis would have been more richly informed and perhaps would have led to a different outcome or at least a different set of principles to be applied on remand.

Better understanding of sales and use taxes, by commentators, advocates, judges, and justices, would contribute to workable solutions, such as the one I offered in Tax Collection Obligation is Not a Taxing Power Issue:

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.

It was not without good reason that I argued in Getting Past Nexus and Into Voluntary Use Tax Collection Compensation Plans, “If state governments and out-of-state merchants found a way to communicate productively, the problem could be resolved rather easily.” What happens during the next few months will be interesting to watch.

A recent case, Jusino v. Comr., T.C. Memo 2018-112, provides an example of when a tax issue can be resolved by following the simpler path rather than traversing a maze of definitional requirements. The taxpayers are the biological parents of two children, who were nine years and four years old as of the end of the taxable year in question. On January 15 of that year, the taxpayers’ parental rights with respect to the children were terminated by state court order. In September of that same year, the sister of the children’s biological mother adopted the children. The children had lived with their aunt since before the taxable year and during the taxable year. They visited with the taxpayers on some weekends and during the summer. Though the taxpayers occasionally purchased gifts for the children, their financial support was provided by their aunt who adopted them. The taxpayers claimed the children as dependents and the IRS disagreed, issuing a notice of deficiency denying the deductions. The taxpayers filed a petition with the Tax Court.

The Tax Court concluded that because the children did not have the same principal place of abode as the taxpayers for more than one-half of the taxable year, there was no need to determine whether they were qualifying children or qualifying relatives. The failure to share a principal place of abode was enough to disallow the taxpayers’ claimed deductions based on claiming the children as dependents.

I have seen summaries of this case describing the outcome as reflecting the impact of adoption, as though a person who has been adopted cannot be the qualifying child or qualifying relative of the biological parents. Yet, at least in some cases, such as this one, the adoption caused the children to become the nephew and niece of the biological parents. If, for example, the children and their aunt had lived in the same abode as did the taxpayers, then the Court would have needed to explore the other elements of the definition of qualifying child. Because the children met the age requirement and did not provide more than one-half of their own support, the question would have been whether they met the relationship test. After the adoption, both children were descendants of a sister of the biological mother and thus satisfied that test. But because they also were children of the adopting parent, the aunt, the rules applicable when two or more taxpayers can claim the same qualifying child would have needed to be examined.

Two things matter. First, if there are multiple paths to an answer to a tax question, take the simpler path. Second, don’t extrapolate a general rule from a case that is limited to a specific situation and rests on specific grounds. As pointed out in the preceding paragraph, the fact of an adoption, or, to mention another characterization I’ve observed, an award of custody, does not in and of itself foreclose or mandate a conclusion with respect to the child’s status as a qualifying child or qualifying relative. Extrapolating general rules from one anecdotal instance is a template for trouble.

For almost a decade I have been criticizing the so-called soda tax. It fails to get my support because it is both too narrow and too broad. It applies to items that ought not be subjected to this sort of “health improvement” tax, and yet fails to apply to most of the food and beverage items that contribute to health problems. I have written about the soda tax for several months short of ten years, in posts such as What Sort of Tax?, 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, The Realities of the Soda Tax Policy Debate, Soda Sales Shifting?, Taxes, Consumption, Soda, and Obesity, Is the Soda Tax a Revenue Grab or a Worthwhile Health Benefit?, Philadelphia’s Latest Soda Tax Proposal: Health or Revenue?, What Gets Taxed If the Goal Is Health Improvement?, The Russian Sugar and Fat Tax Proposal: Smarter, More Sensible, or Just a Need for More Revenue, Soda Tax Debate Bubbles Up, Can Mischaracterizing an Undesired Tax Backfire?, The Soda Tax Flaw in Automotive Terms, Taxing the Container Instead of the Sugary Beverage: Looking for Revenue in All the Wrong Places, Bait-and-Switch “Sugary Beverage Tax” Tactics, How Unsweet a Tax, When Tax Is Bizarre: Milk Becomes Soda, Gambling With Tax Revenue, Updating Two Tax Cases, When Tax Revenues Are Better Than Expected But Less Than Required, The Imperfections of the Philadelphia Soda Tax, When Tax Revenues Continue to Be Less Than Required, How Much of a Victory for Philadelphia is Its Soda Tax Win in Commonwealth Court?, Is the Soda Tax and Ice Tax?, Putting Funding Burdens on Those Who Pay the Soda Tax, and What Is a Successful Tax?. And now, when it comes to Philadelphia’s soda tax, it turns out that my criticism failed to make a difference. As reported in numerous places, including this report, the Pennsylvania Supreme Court upheld Philadelphia’s right to impose the tax, rejecting the argument that the tax is a second sales tax on the items subject to it. A double sales tax is prohibited by Pennsylvania law, and by concluding that the Philadelphia soda tax is not a double sales tax, the court removed the last obstacle to its continued imposition and the spending of the revenue it raises.

In upholding the soda tax, four of the six Pennsylvania Supreme Court justices concluded that the soda tax was not a second sales tax because it is imposed on the distributors of the taxed items and not on the consumers, even though the distributors pass the tax onto the consumer. This is the sort of distinction drawn by lawyers that aggravates many non-lawyers. Technically, the court is correct. The court noted the tax is imposed even if the item on which the distributor paid the tax is not sold to a consumer.

The door is now open for Philadelphia to enact a “store exit” tax on stores for the privilege of allowing customers who entered the store to leave the store, based on the amount of money spent in the store by the customer. The tax would not violate Pennsylvania law because it would not be a double tax. Why? Because it would be imposed on the store and not on the consumer. To those who suggest that no one would ever propose or enact such a tax, I say, don’t be so confident. There even has been a to tax the air that people breathe. And I suppose at some point a tax on inhaling air will be treated as different from a tax on exhaling air, perhaps justified as not a double tax because the chemical content of inhaled air differs from the chemical content of exhaled air.

It’s outcomes and suggestions like these that inspire the anti-tax crowd. That’s sad, because opposition to all taxes because of one or two bad taxes is like disliking all people of a particular background because a few people of that background have behaved badly. If more people informed themselves about taxes and participated eagerly in the tax enactment and amendment process, the nation could end up with a much more rational tax system than now exists. But that requires giving reasoning skills priority over emotional reactions. Will that happen?