MauledAgain

A few days ago, reader Morris pointed me to this story about the use of “Friends Of” organizations to circumvent the denial of charitable contribution deductions for donations to foreign entities. What caught the eye of reader Morris was the article’s background explanation of the charitable contribution deduction: “The value of donations to qualified U.S. charities can be deducted from your gross taxable income.” What, asked reader Morris, is “gross taxable income”? He noted that he had never seen that term in the Internal Revenue Code. Nor had I. But perhaps I missed something.

So I did a bit of research. I looked at the text of the Internal Revenue Code to see if the term “gross taxable income” was in it. It turns out that the search function returned results from the entire law.cornell.edu site, so I narrowed the search to the U.S. Code, and the outcome was, as expected, zero.

Curious, I then widened the search to include state statutes and eight results popped up. So if the term is used, surely it must be defined? I poked around a bit. I could not find anything from the law.cornell.edu search so I turned to google. What an eye opener.

When I entered the term “gross taxable income” into google, it returned 53,800 results. Not having the time or the desire to look at all of them, I did some spot-checking and learned that the term is used in the tax systems of some foreign countries, including the Philippines, Finland, India, and Australia. For purposes of understanding why someone would use the term “gross taxable income” when explaining the United States federal income tax system, I did not need to examine the use of the term in the tax systems of other countries.

I then looked more closely and noticed that several American states use the term “gross taxable income” in various instructions to their tax forms. Pennsylvania even used the term “federal gross taxable income” in its 2017 Instructions to its Form PA-40 in describing how to handle amounts on a Form 1099-R. More on that in a few paragraphs.

That gave me an idea. I googled the term “federal gross taxable income” and got 63 results. The first result was a link to the text of proposed legislation in Montana. Proposed section 28 refers to “federal gross taxable income as defined in section 1” but when I examined section 1 I discovered there was no definition of that term. My first thought? Sloppy drafting. I looked at more of the proposed legislation Section 34 refers to “federal adjusted gross taxable income” but doesn’t even give a cross-reference let alone a definition. Leave out the word “taxable” and it makes sense, but that’s not the case.

Further research showed that the term “federal gross taxable income” was used in some state judicial opinions. Did the courts get that term from the briefs submitted by the parties? I didn’t see any references to statutes. So perhaps they were borrowing the term from revenue department instructions or commentaries written by those who are confused about federal tax terminology.

Then I got another idea. I went back to the law.cornell.edu web site and searched the Code of Federal Regulations. I wasn’t expecting anything but to my surprise there was one result. In an example in section 1.6041-1(f) of the regulations the term appears:

(f) Amount to be reported when fees, expenses or commissions are deducted -

(1) In general. The amount to be reported as paid to a payee is the amount includible in the gross income of the payee (which in many cases will be the gross amount of the payment or payments before fees, commissions, expenses, or other amounts owed by the payee to another person have been deducted), whether the payment is made jointly or separately to the payee and another person. The Commissioner may, by guidance published in the Internal Revenue Bulletin, illustrate the circumstances under which the gross amount or less than the gross amount may be reported.

(2) Examples. The provisions of this paragraph (f) are illustrated by the following examples:

EXAMPLE 1.

Attorney P represents client Q in a breach of contract action for lost profits against defendant R. R settles the case for $100,000 damages and $40,000 for attorney fees. Under applicable law, the full $140,000 is includible in Q's gross taxable income. R issues a check payable to P and Q in the amount of $140,000. R is required to make an information return reporting a payment to Q in the amount of $140,000. For the rules with respect to R's obligation to report the payment to P, see section 6045(f) and the regulations thereunder. (emphasis added by me)

How could this be? My guess: The drafter made an error and used the phrase “includible in Q’s taxable income.” A reviewer marked up the draft by inserting “gross” and using strike-through for “taxable” but something in the formatting went haywire, a not unusual event when multiple people work on one document. And no one caught the result, which was the addition of “gross” and the non-removal of “taxable.” Nowhere else in the Code of Federal Regulations did the term appear. Nor was any definition provided. The example was picked up verbatim in Chief Counsel Memo 20133501F.

I shared my findings with reader Morris. He, too, is curious, and he soon replied to tell me that he searched google scholar federal courts and found 163 results. Like me, he didn’t have time to read all of the cases but selected a few to examine. Though he found the term “gross taxable income” being used, he did not find a definition. In some instances the court was simply repeating the use of the term as appearing in arguments made by the parties, and in at least some instances the courts used the term “gross income” when reacting to the parties’ arguments. In other instances it appears courts were paraphrasing stipulations without correcting the language of the parties.

He did share an observation, that many of the cases dealt with transactions before the enactment of the Internal Revenue Code of 1954. He asked if it was possible that the term was used before being abandoned in the 1954 statute. Good question. I tried to answer the question, and I failed to discover any use of the term “gross taxable income” in earlier statutes.

After I shared that with reader Morris, he then referred me to an article that offers a sort of definition of “gross taxable income.” The article, titled “Gross vs. Net Income in the United States” explains:

Understanding Taxable Income

It’s vital to understand these differences between gross vs net income when it comes to doing your taxes.

While you start off calculating the taxes you owe or are owed by the IRS with your gross income minus your deductibles, it’s important to remember your gross income is not the same as your taxable income.

Not all income streams that make up your gross income are taxable, for example. Things like inheritance, gifts, and life insurance payments aren’t taxable.

Gross taxable income is instead called adjusted gross income (AGI) after you’ve subtracted tax deductibles like Child, Education or Earned Income Tax Credits.

When you are working out your AGI, the IRS gives you the option of taking the standard deduction based on your family status (single, married, or head of household) or you can itemize your tax-deductibles. Itemizing your tax-deductibles might reduce your tax bill more.

In the end, your gross income might be far less than your taxable income or AGI.

My goodness! If this were an exam answer in a basic federal income tax course it might earn a D because a few concepts seem to come through the misuse of terminology, for example, the warning that “it’s important to remember your gross income is not the same as your taxable income.” But it’s “deductions” not “deductibles.” But to claim that not all income that make up gross income are taxable is to assume that income goes into gross income. The point of an exclusion is that the excluded item is not included in gross income. Then comes the whopper. “Gross taxable income is instead called adjusted gross income.” What? Where does the author get this nugget of misinformation? Worse, the author claims that adjusted gross income is “after you’ve subtracted deductibles like Child, Education or Earned Income Tax Credits.” That is so wrong. Credits are NOT deducted in computing adjusted gross income or in computing taxable income. Credits are not “deductibles” nor are they deductions. And if that’s not sufficiently erroneous, try the mathematically impossible “your gross income might be far less than your taxable income or AGI.” How? How can one go from a particular amount of gross income to a larger amount of adjusted gross income or taxable income? What would be added? So, no, this article does not provide any insight into the origin of the term “gross taxable income.”

And it gets worse. Reader Morris directed me to a case study in its VITA program materials. In that case study, which is simply an example, the material states that “The formula for calculating the allowable portion of a deduction is: (Gross taxable income subject to U.S. tax / Gross income from all sources) x Deduction = Allowable portion of deduction.” Curious, I used google to see if the term “gross taxable income” appeared elsewhere in the VITA program material. It appears one other time, in the summary of the lesson preceding the case study:

Summary
This lesson showed how to:
Identify the correct standard deduction
Determine when to allocate the standard deduction
Calculate the allowable portion of a taxpayer's standard deduction
For Puerto Rican taxpayers who do not itemize, the standard deduction must be allocated based on total gross income from all sources (including Puerto Rico source income).
To calculate the allowable portion of a taxpayer's standard deduction, use:
The Worksheet for Puerto Rico Filers with Exempt Income under Section 933 Who Do Not Itemize Deductions, or
(Gross taxable income /gross income from all sources) x standard deduction = Allowable portion of the standard deduction

Aside from the fact that the term “gross taxable income” is not used in the lesson until it reaches the summary, the term is used in the formula even though the formula does not reflect the prefatory language. That language states that the standard deduction is allocated using gross income. Yet the formula uses the term “gross taxable income” though that term is nowhere else defined or used except in the case study example that follows.

Reader Morris then directed me to a recent article that uses the term (once). The sentence reads, “The term "gross income" has been interpreted for this purpose to mean ‘gross taxable income,’ specifically excluding tax-exempt income, which separates this from the legal concept of fiduciary accounting income.” Interpreted by whom? Curious, I looked to see if perhaps I had missed something in the trust tax area. So I looked for “trust’s gross taxable income.” In this commentary, the following sentence appears: ”When calculating the income distribution deduction, DNI is computed only with items of income and allowable deductions included in the trust's gross taxable income (Secs. 651(b) and 661(c)).” Aha, a clue. Perhaps the term is in the cited Code sections. No, it is not. The text of section 651(b): “(b)Limitation on deduction. If the amount of income required to be distributed currently exceeds the distributable net income of the trust for the taxable year, the deduction shall be limited to the amount of the distributable net income. For this purpose, the computation of distributable net income shall not include items of income which are not included in the gross income of the trust and the deductions allocable thereto.” No mention of “gross taxable income.” How about section 661(c)? Here’s the text: “(c)Limitation on deduction. No deduction shall be allowed under subsection (a) in respect of any portion of the amount allowed as a deduction under that subsection (without regard to this subsection) which is treated under subsection (b) as consisting of any item of distributable net income which is not included in the gross income of the estate or trust.” Again, no mention of “gross taxable income.” The same sentence with the citations to sections 651(b) and 661(c) also appears in this article.

Reader Morris then directed me to this web site, which in two places stated that “The 1099 Form will reflect gross taxable income. . .” So off I went to see if I could find the term “gross taxable income” on a Form 1099. I found a variety of commentaries that used the term in connection with a Form 1099, but in most instances claiming that a particular amount on the Form must be reported in gross taxable income even though that term was not on the form. For example, this commentary, in describing a Form 1099-SA, states in several places that the taxpayer would need to “include [an amount] in gross taxable income.” Yet the Form 1099-SA does not include the term “gross taxable income.” Perhaps the confusion arises because the Form 1099-R has an entry for “Gross distribution” and a separate entry for “Taxable amount.”

Perhaps the confusion arises from the sort of sentence found on this web site. It states, “Section 61(a) of the Internal Revenue Code provides that gross (taxable) income includes ‘all income from whatever source derived.’” Actually, section 61(a) defines gross income. It does not define something called “gross (taxable) income.”

Precision matters. When drafting legal documents, whether statutes, regulations, judicial opinions, contracts, wills, or any other writing, and a word or phrase is used that does not exist in the language or that is being used other than in its common meaning, definitions are required. Otherwise, confusion abounds, mistakes are made, litigation ensues, and unhappiness and frustration afflict people. Has anyone using the term “gross taxable income” in the federal income tax context provided a citation to its statutory or regulatory definition?

I sat down planning to write another Memorial Day essay. I had some ideas in my head, but before putting finger to keyboard – pen to paper having become more of an historical concept though I still do that from time to time – I looked at what I wrote last year (The Price of Freedom Is Much More Than Taxes). I realized that what was in my head now was pretty much what had been in my head last year when I sat down to write (or should I say, sat down to type, even though that, too, has become a reference to an old technology).

During the past 48 hours or so, I have seen on social media and news outlets the claim that those we honor today paid the ultimate price for freedom. That is true. What matters, though, is what is meant by that freedom. What does it mean to be free? And that takes me to what I wrote last year, which in turn incorporated some of what I had written in even earlier Memorial Day essays. Here is what I wrote:

On Memorial Day ten years ago, in Free, Freedom, Fees, and Taxes, I examined the extent to which Americans understand the meaning of the oft-heard and oft-written sentiment that those we are honoring today served to protect the freedom of the nation. I wrote:

Americans surely understand the word “free,” for it shows up frequently in the phrase “free market” and in the slogan “free to do what I want.” Yet when asked to pay for freedom, too many Americans balk, even when the cost facing them is far less than their time, their physical well-being, and their life. The notion that freedom is free is becoming ever more omnipresent in the culture.

I focused on a New Jersey Sea Grant Consortium contest in which beaches that did not charge a user fee emerged as the winner, even as other reports explained that even beach communities charging a fee were struggling to provide the services demanded by visitors, perhaps in part because the fees were nominal. The towns with free beaches were facing even steeper financial challenges. I suggested that these towns charge fees, even though officials worry about the risk of visitors not returning if fees are imposed but also threatening to stay away if services are diminished in quantity or quality. These same officials are aware that most visitors don’t care about the fiscal woes of the town they are visiting, and that their only interest is in having fun. The notion of “let’s have fun but let someone else pay for the things we get for free” is pernicious. I then shared these observations:

In order for a person to have something for free, someone else must pay. * * *

The question of who pays the bills to use a free beach would be irrelevant but for the fact that this nation exists, has beaches, and has a citizenry that is free to go to the beach. In some countries, people aren’t free even to travel outside their home village, let alone jump in a car, train, or plane to head for some resort. There are people who paid for that freedom with something far more than suitcases full of cash, namely, with their lives, and they deserve recognition and thanks on this Memorial Day. Paying taxes or beach fees pales in comparison to paying the price that has been paid by the veterans whom we cannot thank in person. The best we can do is to honor their memory. And the best way to do that is to respect freedom and to acknowledge that freedom is not free.

Though in that essay I centered my attention on the fiscal aspect of freedom, it is important to understand that the cost of freedom is not only the lives of those who have fought to defend it and the taxes and fees paid by those who enjoy it, but also other costs, costs too often ignored or at least noted without any reference to the impact on freedom.

Consider those who think that freedom means “free to do what I want.” This is the perception often heard from those making the transition from childhood to maturity, a transition that unfortunately does not happen for everyone. When someone making that proclamation is asked to describe what happens when encountering someone who makes the same proclamation but who wants to do something that interferes with the first person’s desires, the back-and-forth eventually results in what can best be described as a philosophy of “I am free to do what I want, and that means I am free to prevent others from doing what they want.” It is the essence of selfishness, self-centeredness, and immaturity. And it has been increasingly going viral.

Consider two examples. The person who claims that they are free to drive at whatever speed they select, regardless of speed limits, can end up imposing the cost of that “freedom” on the people they kill and injure when they learn, too late, that there are reasons a person should not, and cannot, drive at whatever speed they select at any time, in any place, and under any conditions. The person who claims that they are free to go maskless and unvaccinated can end up imposing the cost of that “freedom” on the people they sicken and even kill who are unable to be vaccinated or wear masks. It is no comfort that the person claiming the right to be free might also end up paying the price of injury, sickness, or death.

Too often, those who claim that this unregulated “freedom” is sacrosanct point to the arrival of Puritans in what is now Massachusetts. They are idolized as seekers of freedom, trying to escape religious and political persecution. Yet when they arrived in the Massachusetts Bay Colony, they immediately started acting in the same manner as had their tormenters, in turn suppressing those whose religious beliefs or political positions conflicted with those set down by the Puritans. The contrast with Pennsylvania, also settled by victims of religious persecution, but where those of diverse origins and religions were welcomed, is startling. I didn’t learn this in school because it isn’t taught in this manner, nor is this lesson noted. I learned this when I did the research to write the biography of Thomas Maule of Salem, reading not only his works and those of others, both in his day and thereafter, but also studying the social and cultural environment in which his fellow citizens, of a different religious persuasion, acquitted him of the seditious libel charges brought by Puritan authorities who resented being tagged as hypocrites. And they truly were. Seem familiar?

The question at the moment is what sort of “freedom” will this nation embrace? To ignore this question is to dishonor those who fought and died for freedom, because answering the question incorrectly makes the price they paid a price paid in vain. Will the model be the “freedom” to escape torment and persecution only to torment and persecute others? Or will the model be the “freedom” to welcome those with different perspectives while refusing to adopt the methods of those from whom freedom was sought?

Indeed, freedom is not free. It comes with a cost. The cost is more than monetary. The cost can be the reduction of speed, the stopping at a red light or stop sign, the obedience to the yield sign, the wearing of a mask, the ceasing of the 1 a.m. fireworks, the toning down of the party noise at 2 a.m., the picking up of the pet’s poop, the use of a trash or recycling container rather than the gutter when disposing of trash, the extinguishing of the cigarette when in a closed space or close to others, the use of words rather than weapons when in a disagreement, telling the truth, and learning to think critically.

Freedom is not free. It disappears when the cost, whether in lives, taxes, or proper behavior, no longer is paid. Memorial Day means little if the freedom for which the fallen fought is disregarded, abused, or limited to fewer than everyone. The cost of freedom is much more than taxes.

As I re-read last year’s commentary, I developed a deeper appreciation for those who chose to enact laws and regulations that require stopping at red lights and stop signs, limiting noise in the wee hours of the morning, using trash and recycle containers rather than the neighbor’s law to dispose of unwanted material, prohibiting smoking in certain areas. Surely there was opposition to those sorts of rules, most likely from the handful of people who wanted to be “free to do whatever they wanted wherever they wanted.” Their howls of protest gave way to the common sense of the populace. It took rational, critical thinking to figure out how to balance freedom to breathe clean air with the freedom to smoke, the freedom to drive without stopping with the freedom to drive without being killed, the freedom to party with the freedom to sleep. It took courage to act despite the objections of the selfish few. Now, however, the selfish few have grown in number, emboldened and empowered by funding from shadowy people and places, common sense is far less common, and critical thinking continues to take a pounding from the emotional manifestations of greed, insecurity, and trauma. And now, the price for the "freedom" to behave in greedy, selfish, and immature ways is being paid by people who ought not be paying a price for that sort of "freedom." Worse, the decision to make people pay that price is being made by self-centered individuals rather than by those who hold have been charged with the resposibility of enacting and enforcing rules that balance and protect everyone's freedom, including the freedom to be free from the actions of greedy, selfish, and immature individuals who have no respect for anyone else's freedom. So what is the freedom for which those we honor today paid the ultimate price?

The headline to this story caught my eye. It read, “Some PS Plus Players Are Seemingly Getting Hit With A Giant Upgrade Tax. Perhaps there was some sort of unexpected tax increase, or the reclassification of something from exempt to taxable, or the enactment of a new tax.

So I read the article. It describes the roll-out of a PlayStation upgrade, for which players are required to pay a fee. The fee equals the fee for the upgraded service minus the amount paid by a player for existing service. Many players obtained their existing service at a discount, so the upgrade fee is the difference between the new fee, which is not discounted, and what the player paid, rather than the difference between the new fee and the pre-discount fee for the existing service. The article quotes a social media post in which someone explained, “For example, If you purchased 1 year plus for 25% off, which is $45,[t[o update to extra plan, you need to pay 100 - 45 = 55$, not 100-60=40$” To clarify this explanation, a player who paid $45 rather than $60 for existing service because of a discount must now pay $55 to get the upgrade. For some reason, there are players who think the upgrade should only cost them $40 to get them from $60 to $100. Though I can see merit in that position, because paying $55 amounts to a de facto revocation of the original discount, I will leave that discussion to others.

What puzzles me is why the headline writer refers to the $55 amount or the $40 amount or the increased $15 amount as a “tax.” Nowhere in the article does the word “tax” appear. So it is unclear if someone called one of those amounts a “tax” or if someone simply put the word “tax” in the headline. Perhaps there is some sort of sales or transaction tax on the payment required to acquire the upgrade but that is not mentioned in the article. A tax is an amount imposed by a governmental authority, even though the word gets misused as it is, for example, in Major League Baseball’s collective bargaining agreement, which imposes a “competitive balance tax” on teams paying more in salary than a specified amount. Why the word “tax” rather than a more appropriate term such as “fee” or “charge” was used is a question for which I do not have the answer. It probably has something to with the fact that the word “tax” generates more fear and resentment than do the words “fee” or “charge.”

I have previously written about the use and misuse of the terms “tax” and “fee,” in commentaries such as Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, Sometimes It Doesn’t Matter If It Is a Fee or a Tax, It’s Not Necessarily a “Tax” Just Because It’s an Economic Charge You Don’t Like, Court of Appeals for the First Circuit: Tolls Are Fees, Not Taxes, The “Tax or Fee” Discussion Gets a New Twist, Is It a Tax? Is It a Fee? Does It Make Sense?, Can the Proper Use of the Terms “Tax” and “Fee” Be Compelled?, and It’s Not a Tax, It’s Not a Fee, It’s a . . . Yeah, OK.. And it cuts both ways. Often, the word “tax” is used for things that are not taxes. But words such as “fee” and “surcharge” have been used to describe what actually is a tax, by people who are trying to raise taxes while giving the appearance of complying with a claimed opposition to tax increases.

There are instances in which precision matters. Whether it’s a matter of words, measurements, or movement, using the wrong word, measurement, or movement, no matter how closely it appears to resemble the correct version can cause all sorts of damage. The damage can range from the adverse consequences of misinformation to injury and death. Though some might dismiss adherence to precision as “nit picking” or some similar term, when precision matters, it matters. It is possible to debate whether in a particular instance precision matters, but clearly using the word “tax” to describe what is essentially a price charged by a seller for upgrading a service can mislead people into thinking they are being hit with a tax. That isn’t what’s happening.

There are all sorts of reasons that taxes are increased. A taxing authority encounters increased costs for the services it provides. A taxing authority, at the direction of its citizens or a court, increases or expands the services that it provides. A natural disaster causes losses to taxing authority property that aren’t reimbursed by insurance. These and similar reasons are situations in which the taxpayers get something, directly or indirectly, for the taxes that are paid.

That’s not what happened when the small town of Corsica, in Jefferson County, Pennsylvania, was compelled to double its property tax rate. According to this story, the town did so because the town secretary embezzled so much money over a eight-year period that the town was unable to maintain a children’s playground or fix its deteriorating roads. The town went so far as t borrow money from its mayor so that its government did not shut down. The scale of the embezzlement is evident from two facts. The town secretary stole $306,000. There are 319 people living in the town. After being caught and indicted, the embezzler repaid about $41.000 of the embezzled funds.

The secretary’s modus operandi wasn’t all that unusual. She issued checks from the town’s bank account and from the state’s Local Government investment Trust to herself, her husband, and her father. To do this, she forged the name of the vice-president of the town’s council. She also made electronic transfer payments from town accounts. She used that money to pay bills. She used the town’s account at a store to purchase a camera, an iPad, and other things for herself. To hide this activity, she prepared and submitted false bank records to the town council and to state auditors.

Rejecting a request for probation, the judge sentenced her to 21 months of prison and also ordered her to repay the other $265,000 that she had embezzled. Though the secretary, her lawyer, family members, and friends cited health problems in asking for probation, the judge concluded that the secretary’s actions were motivated by greed and that a prison sentence was consistent with the sentences handed down to other embezzlers. Perhaps the judge was also influenced by the fact that after being indicted and released on bond, the secretary was arrested on multiple counts of retail theft for five separate incidents at another retail store.

It is difficult to imagine the impact on the taxpayers of this small town when they are told that their property taxes will double in order to make up the losses incurred by the town on account of one person’s inappropriate behavior. Perhaps if she makes full restitution, an outcome that is far from certain, the town will be able to reduce its tax rate and provide credits to its taxpayers. That, of course, could get complicated as some of the residents hit with the tax increase die, move away, or sell their properties, and new property owners arrive. I wonder if some sort of conditional adjustment will be made at settlement when properties are transferred.

Update: This isn't the first time this has happened! Thanks to reader Morris who dug up this gem from a long time ago, though the impact wasn't quite as bad as a doubling of taxes, it was bad enough.

When the email from the Institute for Policy Innovation arrived, the headline caused me to think that I had missed a Supreme Court tax opinion. The headline to the commentary stated, “Supreme Court Correctly Rules on . . . SALT Deduction.” Upon closer examination, the headline was referring to an event that I had already noticed, that is, the Supreme Court’s denial of certiorari in a case challenging the $10,000 limitation on the deduction for state and local taxes. A denial of certiorari is not a ruling. It is not an affirmance of the decision from which the petition for certiorari is taken. It simply means that the Court does not want to decide the issue, perhaps at the moment, perhaps forever.

Despite the headline, I read the commentary. It turned out that the headline was the least of my concerns.

In the commentary, Tom Giovanetti praised the Supreme Court’s decision not to hear the challenge. He pointed out that the four states bringing the challenge – Connecticut, Maryland, New Jersey, and New York – are “four solid ‘blue,’ high-tax states.” He explained that before the limitation was enacted, “the federal tax code essentially subsidized high-tax blue states.” He asked, “Why care about your state’s high taxes if you can just deduct them all from your federal taxes?” The answer to his question is easy. If a person in facing a marginal 35 percent federal income tax rate is hit with a $1,000 increase in state taxes, it’s not as though the person’s federal income tax liability is reduced by $1,000. If it were, then it would be true that the person would not care about the increase. Rather, the $1,000 increase means that the person would be $650 out of pocket. Most people would care about that.

Worse, though, is the jab at high-tax “blue” states getting federal subsidization of state and local taxes and the implicit praise for the $10,000 limitation. Yet that is only a small piece of federal subsidization of states. A careful analysis of the relationship between federal and state taxes and subsidies tells a different story. As recently disclosed by various reports, including Wallet Hub, Money Geek, and Forbes, the overall picture is different. It’s a pattern that reaches back many years, as indicated, for example, in 2004 by the Tax Foundation as summarized in this TaxProf blog post. The most recent analyses disclose that eight of the ten states most dependent on federal government funding are red states. Of the nine states that sent more to the federal government in taxes than they received from the federal governent, seven were blue states, which also had higher per-capita GDPs than many of the red states near the top of the federal subsidy list. The eight states receiving the highest child tax credit per capita are red states. Attempts to dismiss these findings, such as this Hill commentary by an ALEC member muddies the analysis by pointing out that the top ten federally dependent states are not all red, that two red states are actually blue states, and that it makes sense for red states to be subsidized by blue states because blue states have higher per-capita GDPs and red states are most in need. The latter observation is, to me, an indictment of how the classic red-state low-tax, low-service (and less pervasive education) approach shortchanges its citizens.

Giovannetti does make an important point. He notes that the $10,000 limitation should be indexed for inflation. He is correct. He then proposes that both the limitation and “capital gains taxes” be indexed for inflation. I’m not sure whether he means that the tax liability on capital gains should be indexed or if capital gains should be indexed, but perhaps he means that taxpayers’ adjusted bases in capital assets should be indexed. If that is what he means, I agree. However, if capital asset adjusted basis is indexed then the justification for low rates on capital gains (and the limitation on the deduction of capital losses) disappears. The latter were enacted as admittedly rough solutions to the capital asset inflation problem. Pick one. Keeping both is excessive.

One of the articles I haven’t yet written, and perhaps never will, is one that rests on a list of dollar amounts in the Internal Revenue Code that are indexed for inflation and those that are not. Both lists are long, both keep growing, and I’ve not yet found or made the time to once again read the entire Internal Revenue Code to identify each provision in the two lists. Perhaps someone has done this sort of comprehensive survey with respect to the Internal Revenue Code as it exists for 2022; J.K. Lasser has a long list of some of the limitations not adjusted for inflation. Of course, some limitations not indexed for inflation immediately jump to mind even without looking at the list, such as the $250,000 and $500,000 limitations on the exclusion for gains from the sale of a personal residence, the base amounts and adjusted base amounts used in computing the portion of social security benefits included in gross income, the $25 deduction for business gifts, and the $5,250 exclusion for employer-provided education assistance. If the $10,000 limitation on the deduction for state and local taxes and the adjusted bases of capital assets are to be indexed, then so, too, should all of the other fixed dollar amounts in the Internal Revenue Code. That would advance the notion of tax fairness by helping not only the well-to-do who pay higher state and local income taxes and enjoy the ownership and sale of capital assets, but also the social security recipients with lower income and home sellers facing very high amounts of gain because of a housing market bubble but who otherwise have modest amounts of income.

When Giovannetti proposed increasing those two limitations, he asked, “Any takers?” If he included all fixed dollar amounts and not just those two, and agreed to dispose of the low capital gains rate and capital loss limitation band-aids, then I’m on board. For that idea, there isn’t any red or blue.

About a week ago, reader Morris directed me to story about a proposed tax. Thanks to being busy with other things, it’s just now that I can elaborate on my reply to reader Morris. My response to him was brief, and included this sentence: “It is a stupid idea.” Now I have time for the longer response.

The proposal, made by a member of Pittsburgh’s city council, would impose a one percent tax on college and technical school tuitions and medical bills in the city. Would the proceeds be used to help pay tuition for students from economically deprived backgrounds? No. Would the proceeds be used to help defray medical costs incurred by low-income individuals? No. The proceeds would be used to fund infrastructure. The tax would apply to the amount of medical bills before reduction by insurance payments.

Now, funding infrastructure is not a stupid idea. It’s necessary, and as readers of this blog know, I support increased in infrastructure funding because if infrastructure fails, people die, people are injured, the economy suffers, and the nations spirals even faster into disaster.

The question is who should pay for infrastructure? The answer is simple. It should be funded by those who use it and those who benefit from it. Of course, everyone benefits from infrastructure, so the challenge is figuring out how to apportion the cost of infrastructure among the population. Singling out two groups of people, many of whom are not in a position to handle a one percent increase in their living costs, is the stupid part of the idea. The outrageous part of the idea is imposing a one percent tax on someone’s $100,000 cancer treatment invoice even though insurance covers the entire $100,000.

One critic of the bill, Pittsburgh’s city controller, suggests that the proposal should be ditched and replaced with some sort of tax or user fee on non-profit medical facilities and higher-education institutions. If infrastructure in the city is funded with a tax from which those institutions are exempt, the controller’s idea has validity. But what about other non-profit institutions in the city? Why not include them? Why focus on institutions providing two of the most essential services required by people, that is, education and health? Why exempt non-profit institutions that are providing other essential services such as environmental protection? And why exempt non-profit institutions providing services that aren’t as essential as health?

Another critic suggested that the proposal was unworthy of support but at least served as a conversation starter. In all fairness, perhaps that was the goal of the council member who introduced the bill, though there are better ways to start conversations. At least now that council member has a way to ease out of the predicament in which he finds himself.

On top of the policy and fairness question, there is the not-so-slight legal obstacle. The tax is in the form of a sales tax, and a second-class city in Pennsylvania, which is how Pittsburgh is characterized by the legislature, has not been given authority to enact a sales tax.

Back to the drawing board they must go. It will be interesting to see what the next proposal turns out to be.

In previous commentaries, I have explained that suspending liquid fuel taxes in an effort to compensate for market fluctuations is a bad idea. I have explained why it is dangerous and foolish to reduce or suspend fuel taxes when gasoline or diesel prices rise in posts such as Potholes: Poster Children for Why Tax Increases Save Money, When Tax Cuts Matter More Than Pothole Repair, Funding Pothole Repairs With Spending Cuts? Really?, Battle Over Highway Infrastructure Taxation Heats Up in Alabama, When Tax and User Fee Increases Cost Less Than Tax Cuts and Tax Freezes, Road Taxes and User Fees as a Form of Pothole Insurance , and Death as a Price for Taxes and User Fees, Suspending the Federal Gasoline Tax Won’t Blunt Inflation And Will Harm Some People, Suspending a State Gasoline Tax Sticks It to the Dealers, and Fuel Tax Reductions and Suspensions: Negative Impacts Even Wider Than Previously Discussed. Though the focus generally was on the federal gasoline tax, the same arguments apply to state taxes on gasoline and diesel fuel.

Now a candidate for governor of Pennsylvania, Bill McSwain, has promised to permanently cut the state’s gasoline tax by 50 percent. Two of the first questions that popped into my head, and that hopefully pop into the heads of every Pennsylvanian past the age of ten, is this: Does this mean cutting in half funding for the repair and maintenance of state highways, bridges, and tunnels? Does it mean eliminating the payment of state fuel tax revenue to the state police to fund police protection for towns whose residents are unwilling to pay for those services and prefer that the state’s motorists do so?

Cutting funding for road repair and maintenance in half is foolish, for all the reasons I have explained in previous commentaries. If you think there are too may potholes in Pennsylvania now, wait until funds for fixing them get axed. Perhaps McSwain has some plan to cut funding for some other important state service, because he claims he would be cutting, not raising, taxes. Nothing in his has press release explains how he would deal with the issue. According to this report, he did hint that he would make up the revenue shortfall by using American Rescue Plan money. Whether that is possible is debatable, and even if it were possible, what happens when the finite amount of ARP money is exhausted? Would kicking the can down the road simply create substantially higher taxes in the future that causes no concern for a present-day politician who thinks only in the moment?

On the other hand, cutting funding for police protection provided to an ever-growing list of towns whose residents want others to pay for their protection makes sense. Of course, a candidate for governor would risk losing tens of thousands, or more, votes if this plan were to be revealed before an election. And, of course, it would mean that these localities would need to raise taxes, which would leave people in those towns paying as much, if not more, taxes than they were paying before the reduction in state liquid fuel taxes. Not that such an outcome is a bad thing, because the residents of these towns ought not be getting free police protection at the expense of motorists throughout the state, but surely these folks ought to know the price they would be paying if they latch onto a promise of reduced fuel taxes.

Promises to cut taxes should be accompanied by explanations of collateral consequences. What spending will be cut? What other taxes or fees will be imposed? Of course, the “cutting taxes raises revenues through economic growth,” the classic and failed supply-side “trickle down” nonsense has failed time and again, and doesn’t even mesh well with the cutting of a tax such as the liquid fuel tax. Pothole-filled roads, collapsing bridges, and defective traffic lights are the exact opposite of what a growing economy needs.

When something is too good to be true, such as the joy of gasoline taxes being halved, there always is a catch. Whether it’s the free weekend at a resort, the free installation of some home improvement, or some other free item, there is some offsetting disadvantage. Sometimes it’s hidden in the fine print. Some times it isn’t even disclosed. Will Bill McSwain share the catch in his promise?

I’ve yet to read or see or hear anything that causes me to change my position that suspending liquid fuel taxes in an effort to compensate for market fluctuations is a bad idea. I have explained why it is dangerous and foolish to reduce or suspend fuel taxes when gasoline or diesel prices rise in posts such as Potholes: Poster Children for Why Tax Increases Save Money, When Tax Cuts Matter More Than Pothole Repair, Funding Pothole Repairs With Spending Cuts? Really?, Battle Over Highway Infrastructure Taxation Heats Up in Alabama, When Tax and User Fee Increases Cost Less Than Tax Cuts and Tax Freezes, Road Taxes and User Fees as a Form of Pothole Insurance , and Death as a Price for Taxes and User Fees, Suspending the Federal Gasoline Tax Won’t Blunt Inflation And Will Harm Some People, and Suspending a State Gasoline Tax Sticks It to the Dealers. Though the focus generally was on the federal gasoline tax, the same arguments apply to state taxes on gasoline and diesel fuel.

Reader Morris has again happened upon another story offering yet another reason why suspending or reducing gasoline taxes has consequences that are overlooked even though they perhaps should be anticipated. This time, he alerted me to this story, that explains how suspending New York State’s fuel taxes would cost the New York City Metropolitan Transportation Authority as much as $400 million in funding if the taxes were suspended for a year. Perhaps I, too, failed to consider this sort of impact from reducing or suspending fuel taxes, because part of Pennsylvania’s fuel taxes is used to fund the state police. I addressed that issue in So Who Should Pay Taxes for Police Protection?, but did not consider what happens to state police funding if fuel tax revenue shrinks or dries up.

When asked about alternative sources of funding if the New York State gasoline tax is suspended, the chairperson of the MTA acknowledged that there were no other sources of which he was aware. I don’t think anyone has asked the Pennsylvania State Police what that department would do if Pennsylvania fuel taxes were suspended or reduced, but I suspect that the outcome very well would be continuation of its funding while the cuts would be made in the other activity supported by the tax, namely, repair and maintenance of roads and bridges. Of course, if that happens, the same people complaining about increases in the cost of gasoline and diesel, which are not caused by increases in the tax, most likely will be the same people complaining about increased deterioration in the state’s highways and bridges.

Dealing with the impact of significantly increased fuel taxes requires complex analysis. Most legislators do not have the sort of education and experience in economics, tax policy, engineering, corporate finance, and similar disciplines to craft solutions that work both long-term and without disadvantageous collateral consequences. Instead, they rely on lobbyists from various sectors, each of whom is advocating for a solution beneficial to their interests rather than the best interests of the general community. Similarly, lobbyists and campaign contributors steer legislators away from examining particular ingredients of inflation, such as business profits rising at rates far exceeding the rate at which the cost of products and services sold by businesses. To that disarray is added the misinformation spread by those who want the complaint spotlight to shine elsewhere, misinformation that causes substantial numbers of Americans to think that the President somehow caused gasoline prices to increase, and who do not give any attention to the fact gasoline prices have increase worldwide. That, of course, brings us back to the world of ignorance, and provides even yet another example of how ignorance is the most dangerous affliction for a species that calls itself sapiens sapiens.

When considering a decision, decision makers need to ask, “What happens if we do this?” The immediate impact is almost always easy to see. It’s the secondary effects, the collateral consequences, and the unintended and often harmful outcomes that get overlooked. The price paid for failing to “think it through,” a technique I continuously encourage law students to make part of their analytical toolbox, can be much more than a few dollars at a fuel pump. One way of doing this is to bounce ideas off other people, which is why I appreciate reader Morris having pointed out to me a collateral consequence, namely, the impact on other activities funded by fuel taxes, that I had previously analyzed but had not put into my list of reasons why reducing or suspending fuel taxes in reaction to market price fluctuations is a dangerous and foolish idea.

Over the years I have explained why suspending liquid fuel taxes in an effort to compensate for market fluctuations is a bad idea. I have done so in posts such as Potholes: Poster Children for Why Tax Increases Save Money, When Tax Cuts Matter More Than Pothole Repair, Funding Pothole Repairs With Spending Cuts? Really?, Battle Over Highway Infrastructure Taxation Heats Up in Alabama, When Tax and User Fee Increases Cost Less Than Tax Cuts and Tax Freezes, Road Taxes and User Fees as a Form of Pothole Insurance , and Death as a Price for Taxes and User Fees, and Suspending the Federal Gasoline Tax Won’t Blunt Inflation And Will Harm Some People. Though the focus generally was on the federal gasoline tax, the same arguments apply to state taxes on gasoline and diesel fuel.

Thanks to reader Morris, who directed me to this story, it turns out that suspending the gasoline tax can have unintended disadvantageous consequences for fuel dealers. Understanding the problem requires a bit of background. Though in some instances fuel taxes are paid by customers at the pump and then remitted by the dealer to the appropriate jurisdiction, in Connecticut the fuel tax is paid by the dealer when they get a delivery of fuel from the wholesaler, who then remits the tax to Connecticut. So when the state announced a tax “holiday” the customers expected prices to drop immediately by the amount of the tax. If dealers do that, they are selling the gasoline for less than what they paid because they are unable to recoup the tax that they have already paid to Connecticut through the wholesaler. Dealers who delay reducing the price of gasoline until they have sold the gasoline on which they have already paid the tax are then accused of price gouging. The Attorney General of Connecticut is threatening to fine the dealers for not immediately reducing prices by the amount of the tax. It’s not a small matter, as estimates suggest about $3.5 million in taxes have been paid by dealers on fuel sitting in their storage tanks waiting to be sold to customers. In the meantime, the governor announced that people probably will need to wait for “days” before seeing the benefit of the tax holiday.

Statements from the Connecticut Attorney General suggest to me that he does not understand cost accounting. He claimed, “You cannot in any way shape or form levy the 25 cent-per-gallon tax. You can’t back-date it, you can’t forward-date it and you can’t hedge your inventory.” In other words, he is telling the dealers, “You paid the tax, we are giving a tax holiday to your customers, so you can’t collect the tax from them.” What does this do? It causes the dealers to lose money when they sell the gasoline in their storage tanks. The Attorney General also claimed that “gas stations retailers were trying to make money from the gas tax holiday,” and asked the public to report any dealer who did not drop prices by the 25-cent-per-gallon tax. He doesn’t seem to understand that attempting to avoid losing money because of a sunk cost is not price gouging. Considering that gasoline dealers make a profit of a few pennies per gallon, not being able to recoup a 25-cent-per-gallon tax already paid will put dealers into dire financial straits, perhaps put some into bankruptcy, and possibly lead to enough station closures to create panic buying and shortages.

Dealers are asking the state to refund the roughly $3.5 million paid on gasoline sitting in storage tanks waiting to be sold. That would eliminate the losses faced by the dealers if they sell the gasoline after reducing the per-gallon price by 25 cents. Though some legislators agreed, the proposal was not enacted. According to the dealers, when a similar situation arose in Maryland, the state issued credits as a way of offsetting the already-paid tax.

There now is another reason to add to the list of reasons gasoline tax reductions, suspensions, and “holidays” are unwise ideas. These grandstanding gimmicks cause delays in road, bridge, and tunnel maintenance and repair, in turn generating more accidents, property damage, personal injuries, and deaths when vehicles hit potholes or other unrepaired structural elements. They encourage increased demand, which in turn increases prices. And they put dealers in Connecticut, and perhaps other states, into financial distress.

Too often, legislators fail to “think it all the way through” when they rush to enact attention-grabbing, vote-collecting gimmicks. The short-term benefits end up being wiped out, and then some, by the long-term damage.

Let’s put one and one and one together:

1. New York’s governor, as reported in many sources, including this one, has agreed to take steps to have the state contribute $600 million and Erie County contribute $250 million to the cost of building a new stadium for the Buffalo Bills.

2. The owner of the Buffalo Bills, Terry Pergula, is worth, according to the Forbes 400, $5.7 billion. A year ago he was worth $5.4 billion, and in 2016, $4.1 billion.

Interlude: Those who are unfamiliar with my opposition to public funding of, and tax breaks for, businesses owned by multimillionaires and billionaires can peruse my previous commentaries, including Tax Revenues and D.C. Baseball, four years ago in Putting Tax Money Where the Tax Mouth Is, Taking Tax Money Without Giving Back: Another Reality, and Public Financing of Private Sports Enterprises: Good for the Private, Bad for the Public, Taking and Giving Back, If You Want a Professional Sports Team, Pay For It Yourselves; Don’t Grab Tax Dollars, Is Tax and Spend Acceptable When It’s “Tax the Poor and Spend on the Wealthy”?, Tax Breaks for Broken Promises: Not A Good Exchange, Tax Breaks for Wealthy People Who Pretend to Be Poor, When One Tax Break Giveaway Isn’t Enough, It’s Not Just Sports Franchise Owners Grasping at Tax Breaks, and Grabbing Tax Breaks, Sports Franchises, Casinos, and Now, a Water Park. Of course, New York’s governor is praising the proposal as justified by the typical “doing good for the public” and “creating lots of jobs” claims, but as I explained in Grabbing Tax Breaks, Sports Franchises, Casinos, and Now, a Water Park. “but this reasoning would support tax breaks for almost everyone, thus destroying government and civilization.”

3. A few days before reaching the agreement with the owner of the Buffalo Bills, New York’s governor proposed a budget that, as reported in various sources, including this one, reduces the funding of the Office of Children and Family Services by $800 million.

Now do the math.

About a month ago, in Suspending the Federal Gasoline Tax Won’t Blunt Inflation And Will Harm Some People, I explained why reducing or suspending gasoline and other fuel taxes is an unwise idea. I explained that doing so would cause delays in road, bridge, and tunnel maintenance and repair, in turn generating more accidents, property damage, personal injuries, and deaths when vehicles hit potholes or other unrepaired structural elements.

I described fuel tax reductions and suspensions as “a reverse lottery. Instead of paying $1 for a chance to win $10,000, motorists would be getting a few dollars for a chance to avoid hitting a pothole or being on a bridge as it collapses. Instead of a lucky few or a lucky one, there will be an unlucky few.” I noted that suspending a tax that would save people less than $100 in a full year “is like using a garden hose to fight a forest fire.” And I characterized these fuel tax suspensions as “window dressing,” simply “a maneuver designed to help as elections approach,” with a “ ‘look what I did for you’ boast rest[ing] on a $97 savings, offset of course by the bills for new tires, repaired suspensions, refurbished wheels, medical care, and funeral expenses.”

I have made these arguments in other commentaries during the past decade in posts such as Potholes: Poster Children for Why Tax Increases Save Money, When Tax Cuts Matter More Than Pothole Repair, Funding Pothole Repairs With Spending Cuts? Really?, Battle Over Highway Infrastructure Taxation Heats Up in Alabama, When Tax and User Fee Increases Cost Less Than Tax Cuts and Tax Freezes, Road Taxes and User Fees as a Form of Pothole Insurance , and Death as a Price for Taxes and User Fees. I have noted that, “As bad as refusal to keep highway user fees and taxes in line with increases in the cost of living, it is even more foolish to cut those taxes and user fees.”

Today I became aware of yet another reason to avoid reducing or suspending gasoline and other fuel taxes. In Costly Gasoline Spurs Tax Cuts That May Delay Demand Destruction, Saket Sundria points out that these tax reductions and suspensions will discourage people from taking steps to reduce demand for gasoline. Why is that important? Demand is an element in the cost of anything. As demand increases, prices increase, and as demand drops, prices drop. Reducing demand for gasoline reduces its price, at least in a genuinely free market which, of course, does not exist, and thus discouraging reduced demand is inconsistent with the goal of reducing price. Thus, reducing or suspending fuel taxes may very well cause less reduction in demand, and even increases in demand, thus causing prices to increase, which is contrary to what drivers seeking tax suspensions are trying to achieve. Sundria makes an excellent point, and I welcome it as another argument against foolish fuel tax reductions and suspensions. Thinking things through to their logical end, as Sundria has done and as I try to do, is a challenge from which too many people flee. Unfortunately, Sundria’s analysis, like my commentaries on the issue, falls on the deaf ears of officials anxious to appeal to voter emotion in order to get re-elected.

According to this Philadelphia Inquirer report, gubernatorial candidate Josh Shapiro has proposed using “surplus * * * federal pandemic aid” to “send payments to car-owning households.” The proposal is a reaction to increases in gasoline prices, though those prices have edged downward in recent days. Shapiro also has proposed eliminating state sales and gross receipts taxes on cell phone bills. Unlike his proposal to expand the property tax and rebate program, which provides monetary assistance to low-income individuals, the proposal to pay $250 per vehicle to households regardless of the economic status of the householders makes no sense. Though increased gasoline taxes, which incidentally are not as high in real terms as they have been in the past, are a financial burden for low-income and some middle-income families, it is difficult if not impossible to visualize a person with $500,000 or more of annual income agonizing over how to meet expenses when the cost of gasoline goes up by $97 annually for the average motorist (as I explained in Suspending the Federal Gasoline Tax Won’t Blunt Inflation And Will Harm Some People). Worse, though excluding corporate and government vehicles from the payout, the proposal does not appear to limit what is paid to the multi-millionaire who collects vehicles and has several dozen sitting in the 30-car garage of a multi-million-dollar palatial residence. Don’t think these exist? Imagine this abode being located in Pennsylvania with its garage filled to capacity. How badly in need of $250 per vehicle would the owners be?

Understandably, a refined proposal that takes into account income levels and includes limitations on the number and type of qualifying vehicles per household requires more words and more detail. Understandably, trying to convey a refined proposal in the context of a political campaign, in a sound bite, or on a political placard is difficult, especially in this age of character-limited tweets and abbreviated attention spans. That, however, is no excuse for not giving due deference to wise policy and the precision it requires.

WalletHub has released its 2022 tax survey. It’s worth a look. A variety of questions were posed to respondents, and six tax law professors were asked to offer their thoughts on why some of the questions generated the results that were obtained.

Of all the questions, one that got my special attention this time around was one that was not posed to the six tax law professors. Specifically, when asked “Do you think any of your neighbors cheat on their taxes?,” 52 percent answered “no,” and 48 percent answered “yes.” So through extrapolation, half of Americans think their neighbors are cheating on their taxes. Note that the other questions and answers were just as interesting, but they were similar or identical to questions asked in previous WalletHub tax surveys that I mentioned in earlier commentaries, such as If Not Tax Return Preparation, What Else?, and So What Would YOU Do to Avoid Taxes?.

Does the perception that half of American taxpayers are cheating match reality? Without some sort of comprehensive audit, the best that can be done is to rely on other measurement methods. For example, in a 2020 CreditKarma survey, “only about 6% of survey respondents said they have knowingly cheated on their income taxes. Which means that the majority, roughly 94%, said they’ve never knowingly cheated.” I see two problems with this survey. Surely there were respondents who had cheated but lied, perhaps because they worried that somehow the IRS would track them down through the survey response database. And is it possible to unknowingly cheat? I think not. Carelessness and mistakes do not rise to the level of cheating without intention, and by definition there is no intention when the error is unknowing. Negligence, yes, but negligence is not intentional.

A 2019 article from Vox, carrying the headline “More people are cheating on their taxes, but fewer are going to jail,” offers some additional insights into the question. The article suggests several questions. When it mentions the millions of Americans who fail to file tax returns, should those individuals be considered cheaters? Technically, they are not committing tax fraud because they are not making any representations or misrepresentations about their income, deductions, credits, or other tax factors because they aren’t making any representation at all. But I suspect many people would consider someone who fails to file, even if not taking affirmative steps to hide income, as cheaters. The article shares IRS information that as of 2017 about 6.9 million employers failed to pay their payroll taxes, and that the number of employers not paying those taxes in at least five years tripled from about 5,000 in 1998 to about 17,000 in 2015. We don’t know, when people are responding to the question asking them if they think any of their neighbors are cheating on their taxes, if they are thinking only about income taxes or also taking into account payroll and other taxes, and whether they are thinking of federal or federal, state, and local taxes.

Last year, according to many reports, including this Reuters article, the IRS Commissioner measured the tax gap, the difference between what taxpayers paid and what they should have paid, as one trillion dollars, more than double what it was estimated to be ten years ago. He attributed the gap not simply to mistakes but also to affirmative evasion through cryptocurrencies, overseas transactions, and deliberate misclassification of business income. What remained unmentioned was what percentage of taxpayers are contributing to the portion of the tax gap that reflects cheating. Is it a growth in the number of cheaters? Is it an increase in the amount of evaded tax liabilities by the same small handful of mostly wealthy individuals whose incomes have soared and therefore whose opportunities to cheat, in terms of tax dollars, have also increased?

On its website, EPCaine & Associates reproduces a graphic from a Tax Foundation report that I cannot find, in part because there is no link on the website to the report. It is a 2013 report that estimates the number of people who cheat on their taxes as 1.6 million. Without seeing the report, it is difficult if not impossible to determine if that is an estimate with respect to income taxes or with respect to income, payroll, excise, and other taxes, and it also is unclear whether it refers to federal or federal, state and local taxes though the graphic appears to refer to federal taxes because it focuses on the IRS.

So the answer to the question, “Does the perception that half of American taxpayers are cheating match reality?” is a simple, “I don’t know.” I don’t think anyone knows. We could come close to knowing, if every tax return at every level of government were audited. Even that would not necessarily reveal cheating with respect to taxes for which returns are not filed and that can be evaded through other sorts of activities. Of course, neither the resources of time and money for, nor the tolerance of, such wholesale audits exist. It’s not unlike a question, “Do you think any of your neighbors cheat on their spouses, committed partners, significant others, etc.?” and the issue of whether the response matches reality, the answer to which requires an answer to the question, “How many people cheat on their spouses, committed partners, significant others, etc.?” I will leave those discussions to others.

Inflation is running rampant, though not quite as outrageous as it was in the 1970s. Almost everyone – more on that in a few paragraphs – is unhappy and distressed. That’s understandable. People forced to choose between food and medicine, or between diapers for an infant and school supplies for the first grader, are struggling. Solutions are demanded. Solutions are needed. Solutions to problems require thinking. Careful thinking.

So into this challenge step some members of Congress, led by Representative Tom O’Halleran and Senator Mark Kelly, have introduced legislation to suspend the federal gasoline tax. Under the proposal the tax would not be collected during 2022. According to the sponsors, “The bill would help lower high gas costs for Arizona families by temporarily suspending the 18.4 cent federal gas tax until January 1, 2023.” Both lead sponsors are from Arizona, though presumably they intend to claim that it would help families across the country. But it wouldn’t.

During the past decade, I have explained why it is cheaper, in the long run, to increase taxes and user fees dedicated to highway, bridge, and tunnel maintenance and repairs than to wait until the invoices for new tires, repaired suspensions, refurbished wheels, medical care, and funeral expenses arrive. I have written about the challenges posed by this particular American short-sightedness in posts such as Potholes: Poster Children for Why Tax Increases Save Money, When Tax Cuts Matter More Than Pothole Repair, Funding Pothole Repairs With Spending Cuts? Really?, Battle Over Highway Infrastructure Taxation Heats Up in Alabama, When Tax and User Fee Increases Cost Less Than Tax Cuts and Tax Freezes, Road Taxes and User Fees as a Form of Pothole Insurance , and Death as a Price for Taxes and User Fees. As bad as refusal to keep highway user fees and taxes in line with increases in the cost of living, it is even more foolish to cut those taxes and user fees.

I pointed out the problem in Paying the Price for Anti-Tax Damage, in which I reacted to some anti-tax legislators realizing the long-term danger in their position when I wrote:

Some Republican legislators and politicians are beginning to realize that their promises in earlier years that tax cuts would not cause reductions in services were ill-founded. Hit a pothole, incur hundreds of dollars or more of repair costs, and those tax cuts or avoided tax increases pale in comparison. Decades of disinvestment in the arteries that supply the nation’s economy are now coming home to roost. The foolishness of the anti-tax pledge is being revealed for the menace that it is. Of course, people were warned – by me and others – but too many did not listen, and now everyone is paying the price.

Note that the current proposal is being advanced by Democrats and the chatter is that Republicans won’t go along. Politics indeed makes for strange alliances.

What’s being proposed is a reverse lottery. Instead of paying $1 for a chance to win $10,000, motorists would be getting a few dollars for a chance to avoid hitting a pothole or being on a bridge as it collapses. Instead of a lucky few or a lucky one, there will be an unlucky few. In this time of so much self-centeredness, and the absurd optimism held by some who think – or perhaps feel – that they will encounter only good fortune and never be touched by bad luck, it is not surprising that a proposal putting the chance of tiny economic benefits for an individual is considered worth the price to be paid by a community which will suffer when the unlucky crash after hitting a pothole or go tumbling into a ravine when a bridge collapses.

Worse, relieving people of an 18 cent per gallon gasoline tax is like using a garden hose to fight a forest fire. The average American drives about 13,000 miles a year, plus or minus a bit. The average car gets about 25 miles per gallon. So the average gasoline purchase is about 540 gallons per year. Suspending the gasoline tax would save the average motorist about $97 in a year. Granted, for some folks, $97 is a welcome amount but the folks for whom $97 is a significant amount are unlikely to be driving 13,000 miles a year let alone even owning a vehicle.

Offering a federal gasoline tax cut as a “remedy” for inflation is nothing more than window dressing. It is a maneuver designed to help as elections approach and the “look what I did for you” boast rests on a $97 savings, offset of course by the bills for new tires, repaired suspensions, refurbished wheels, medical care, and funeral expenses.

High inflation hurts. I doubt that it hurts the wealthy very much given that the stock market provides an offset. But high inflation is walloping the poor and much of the middle class. They need help. But a suspension of a puny gasoline tax is a drop in the bucket, and for those who suffer the consequences of transportation funding being shut-off, in the form of property damage, personal injury, and death, it will be devastating.

I have been writing about the soda tax for about 14 years, though I haven’t written very much in recent years, perhaps because I have said all that I think needs to be said. My thoughts can be found 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, Imagine a Soda Tax Turned into a Health Tax, Another Weak Defense of the Soda Tax, Unintended Consequences in the Soda Tax World, The Soda Tax “War” and a Pathway to Tax Peace, and The Primary Goal of the Philadelphia Soda Tax: Not a Reduction in Soda Consumption.

But occasionally a story or an email comes along that re-awakens the part of my brain that focuses on the soda tax. Several days ago a reader alerted me to this story, with the eye-catching headline, “Seattle's Soda Tax Goes Horribly Wrong.” The report described a study comparing Seattle, which enacted a soda tax, and Portland, which did not, and determined that in Seattle sales of beer, though not wine, increased as sales of soda decreased. Though beer, and wine, are taxed in Seattle, they are taxed at what amounts to a lower per-ounce rate. The article points out that 16 ounces of regular soda has roughly 140 calories whereas beer has roughly 200 calories for the same amount.

The reader who sent the email wrote, “I believe you predicted this result several years ago.” I replied that I did not think I had addressed this consequence of a soda tax, instead focusing on other issues. Those included the silliness of taxing sugary beverages but not other products containing sugar, of language that brought beverages within the scope of the tax that are healthy rather than unhealthy, shortfalls in predicted revenues, discrepancies between planned and actual uses of the revenue, and litigation over the tax.

But as I sat down to write this post, I searched my blog and discovered that two years ago, in Unintended Consequences in the Soda Tax World, I had described reports and studies showing that the same thing happened in Philadelphia, though as soda consumption decreased, there was an increase not only in the consumption of beer, but also wine and certain liquors. Though I did not predict this result, I did write about it, which means that the part of my brain that focuses on the soda tax did not fully awaken when I read the email.

In my reply I also shared a question that popped into my brain after reading the email. Are children, who also consume significant amounts of soda, also shifting to beer? Hopefully not. And now I add more questions. So is soda consumption among Seattle children not declining? Is it declining and being replaced with some other beverage? If so, is it a beverage that does not appeal to former soda-drinking adults as much as beer? And, I suppose, in the meantime, people of all ages continue to consume donuts, cookies, pies, cakes, and candy, so what is happening to sugar consumption?

From time to time I write about the antics of tax return preparers who commit fraud, though I don’t write about every indictment, conviction, and sentencing because those number in the thousands. Instead, I select those that I think are of greater interest. Those commentaries include Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for theblo IRS and DOJ to Find Them, Tax Return Preparers Putting Red Flags on Clients’ Returns, When Language Describing the Impact of Tax Fraud Matters, Injunctions Against Fraudulent Tax Return Preparers Help, But Taxpayers Still Need to Be Vigilant, Will the Re-Introduced Legislation Permitting Tax Return Preparer Regulation Be Enacted, and If So, Would It Make a Difference?, Can Fraudulent Tax Return Preparation Become An Addiction?, Tax Return Preparers Who Fail to File Their Own Returns Beg For IRS Attention, Using a Tax Return Preparer? Take Steps to Verify What Is Filed on Your Behalf, When Dishonest Tax Return Preparers Are Married, There Was Nothing Magical About This Tax Return Preparation Business, Don’t Get Burned By a Tax Return Preparer, Tax Fraud School: When It’s Not Enough to Be a Fraudulent Tax Return Preparer, It’s Not Just Tax Return Preparers Assisting in the Preparation of Fraudulent Tax Returns, Overused Fraudulent Tax Return Preparation Ploys, and The Slippery Slope of Tax Return Preparation Fraud.

This time, the press release from the Department of Justice looked like many of the other announcements describing the sentencing of a tax return preparer convicted of preparing false tax returns. According to the press release, a Maryland woman was sentenced to three years in prison for preparing 13 false income tax returns that collectively sought more than $6.6 million in fake refunds. But unlike many situations in which a tax return preparer sets up shop in a particular locality and commits fraud when clients walk in the door or otherwise contact the preparer, this woman was part of a scheme in which she and others held seminars throughout the country in which they promoted the use of fraudulent schemes.

The details of those schemes had been set out in an earlier press release, in which the Department of Justice announced it had filed a complaint seeking a permanent injunction against the preparer and her tax preparation business. The complaint alleged that her scheme used a so-called “redemption theory,” in which individuals claim that the federal government keeps secret accounts for citizens that can be accessed by filing certain forms with the IRS. In this instance the preparer filed fraudulent IRS Forms 1099-A (Acquisition or Abandonment of Secured Property) and 8281 (Information Return for Publicly Offered Original Issue Discount Instruments) for her clients, with information that set up huge but false refunds totaling in the million. The “redemption theory” has been rejected multiple times by the IRS and by the courts. An excellent description of the theory, its creation and spread, the damage it causes, and its repeated rejection can be found in this Hartford Current article from ten years ago.

In a subsequent press release, the Department of Justice announced that it had obtained an indictment charging the preparer and two others with conspiracy to defraud the United States by aiding and assisting in preparing false trust tax returns and by filing their own false amended personal income tax returns. The preparer was also charged with helping the other two prepare their false amended returns. The three who were charged, working with a fourth individual, prepared tax returns claiming false withholding and false credits. When the IRS tried to recoup a $500,000 false refund issued to one of the trusts, the preparer conspired with the others to obstruct the IRS.

In yet another press release, the Department of Justice announced that the preparer was convicted of preparing three false income tax returns that claimed more than $1.1 million in fraudulent refunds. These chargers related to the indictment announced in the press release described in the preceding paragraph. It was on these and other charges that the preparer was sentenced as described in the second paragraph of this blog post.

Though it is not unusual for tax return preparers who engage in fraudulent practices to learn from one another, probably through networks and communications that extend nationwide, it was news to me that they actively campaign across the country seeking victims to use in their fraudulent schemes. If fraudulent tax return preparation isn’t just a matter of local preparers engaging in copycat techniques, but part of a national scheme, the danger posed by fraudulent tax return preparation is much more serious than it already has been perceived to be.

Perhaps more developments await this particular preparer and the others involved in this latest episode, but it seems to me that three years in prison is far too short a sentence. A mortgage underwriter who engaged in the same fraudulent technique, as described in It’s Not Just Tax Return Preparers Assisting in the Preparation of Fraudulent Tax Returns and who procured $4 million in false refunds was sentenced not only to restitution but also 12 years in prison. How is it, then, that someone who procures $6.6 million in false refunds and engages in a national campaign to market the scheme receives a sentence of only three years? Fifty percent more false refunds but only 25 percent of the sentence? Perhaps this preparer is cooperating in some manner with authorities. Or perhaps she had a better lawyer.

While doing some background research after reading an article that Reader Morris invited me to read, the subject of which is not the focus of this commentary, I came upon a tweet that reacted to the news that the federal government had seized $3.6 billion in Bitcoin. The details have been reported in a variety of sources, including this article.

The tweet that popped up, because in its thread there were comments related to the separate and different issue discussed in the article from reader Morris, caught my eye. According to this tweet, reacting to someone else’s earlier tweet referencing the seizure, “This is enough money to give each person in the world a half a billion dollars but guessing the government will just keep it for themselves.”

Because I enjoy numbers, I did two quick computations. First, using 7.9 billion as the population of the world, clearly a rough number because even as I write and as readers read this the population keeps changing, I figured that it would take $3,950,000,000,000,000,000 to provide each of the 7.9 people in the world 500 million dollars. That’s three quintillion nine hundred fifty quadrillion dollars. That’s much, much more than $3.6 billion dollars. My second computation was to figure out how much money each person in the world would get if the $3.6 billion were to be distributed equally to each person. The answer? Slightly more than 45.5 cents.

So before anyone joins a “distribute the seized bitcoin to each person in the world equally” campaign, they should consider whether it’s worth it. It’s not. But I wonder, would anyone jump on to such a campaign? The answer is “probably.”

Curious, I did a bit more research and discovered that, according to Politifact.com someone in 2021 had posted on Instragram this question: “If Bezos has 200 billion dollas, and there’s 7 billion people on earth, why can’t we each get a billion and (he’d) be left with 193 billion dollas.” The Instagram post received, as of the time the Politifact commentator, Krishnan Anantharaman was writing, more than 128,000 likes. That’s frightening. As Anantharaman explained, the answer to the question is, “There’s a reason we can’t, and it’s not selfishness or the gift tax. It’s arithmetic.” Indeed.

Anantharaman did the same two computations that I did and, yes, I did mine before finding his commentary on the seized Bitcoin redistribution comment. According to Anantharaman, using world population estimates at the time he was writing, it would require 7.8 quintillion dollars to give every person in the world $1 billion. Or, put another way, rounding up Bezos’ actual wealth of $197 billion to an even $200 and then distributing it equally among every person in the world would generate roughly $25 for each person.

What’s frightening isn’t just the math-deficient tweet and the math-deficient Instagram post. What’s even more frightening is the number of people who react(ed) emotionally, with a “sounds good to me so let me click the ‘like’ button” approach to what in reality demands critical thinking. Perhaps someone looked at the numbers, did the math, and agreed with the conclusions put forth in the tweet and the post. I doubt it. I am very confident that the “looks good, like it” mentality that is eroding respect for science is what generated all of those ‘like’ reactions. Arithmetic can be challenging when first encountered, but the existence of calculators makes it accessible for almost everyone. But it takes time to stop and investigate, to pause and compute, to take a deep breath and think. It’s no wonder that the skills requiring deep, intense, and time-consuming efforts are falling out of favor among a growing segment of the population. These sorts of no-think reactions characterized by the lack of investigation, research, thinking, and computation threaten the very pillars on which advanced civilization rests.