MauledAgain

The Republican Party continues in its efforts to reduce taxes paid by wealthy individuals and large corporations. One tactic is marketing tax cuts for the wealthy as tax cuts for people of low and moderate income. Another tactic is to restrict the ability of the IRS to audit wealthy individuals and large corporations.

According to many sources, including this report, the most recent maneuver in this attempt to put more money in the pockets of the wealthy is legislation that would cut the IRS budget by 18 percent. Most of the cut would affect IRS enforcement spending. At the moment, the legislation has no chance of being enacted, but that will change in 2025 if Republicans manage to take control of Congress and the White House.

This is far from the first time I have written about the efforts of wealthy individuals to escape taxation. In Cutting Off the Tax Revenue Nose to Spite a Political Face, I explained how similar legislation was introduced last year was defended on the false claim that the IRS focuses its enforcement efforts on taxpayers with less than $400,000 of annual income. This claim is intended to rally support among those who, if they understood what is happening, would vote overwhelmingly to remove from office these friends of the wealthy. In a previous commentary, Fear Mongering, Tax Style, I explained why that claim, and the claim that the IRS would hire nearly 100,000 new auditors, were lies, and why they find “fertile ground in the hearts and minds of those who react quickly to emotions and fail for one reason or another to think critically and dissect the absurdity of the claims.”

I’ve previously pointed out how Republicans plan to offset some of the revenue loss created by their intended shrinkage of the IRS and gifting of more tax breaks to the wealthy. They plan to go after Social Security and Medicare. In January the same crew that is trying to cut the IRS enforcement budget pushed through another doomed effort, that is, doomed until and unless Republicans take control in 2025, to cut Social Security, Medicare, and Medicaid, in the enticingly but deceptively named Fiscal Commission Act.

It continues to amaze me how so many people will vote for candidates who plan to support legislation that works to the detriment of most of their supporters. Will they ever learn?

When I looked back at my blog posts I realized that I have not written a Memorial Day essay every year since MauledAgain came into existence. Considering that I have posted something for (almost) every Thanksgiving and Halloween, I let myself ponder why the difference. I concluded that my posting for various events and holidays are episodic and that every year something has happened for Halloween and Thanksgiving, but that it hasn’t happened for other holidays. Perhaps it’s simply a matter of what catches my attention.

Three years ago, in The Price of Freedom Is Much More Than Taxes. I addressed the connection between the payment of taxes and the things people take for granted as part of their “freedom.” More than a decade ago, 2011, I had written, in Free, Freedom, Fees, and Taxes, that “In order for a person to have something for free, someone else must pay.”

Last year, in Indeed, Freedom Is Not Free, I explained why freedom is not the same thing as unregulated behavior, pointing out that people who think they are free to drive 90 miles per hour on a 55-mile-per-hour highway, free to run red lights, free to shoplift, free to do whatever they want no matter what have a warped sense of the meaning of freedom. I wrote this about unregulated freedom:

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? Today the nation is being tormented by “freedom lovers” who are trying to prevent Americans from learning the truth about the hypocritical Puritans whom they not only worship but whose hypocrisy they emulate and imitate.

I then asked a question, specifically, “What sort of ‘freedom’ will this nation embrace?” I contrasted two models. One is the “freedom” to escape torment and persecution only to torment and persecute others. The other is the “freedom” to welcome those with different perspectives while refusing to adopt the methods of those from whom freedom was sought.

It is the first model that I want to consider. It requires a contrast between “freedom to do” and “freedom from.” In some respects those two phrases express the same concept. “Freedom to do” is, after all, simply “freedom from” regulation and “freedom from” authority. Yet there is a conflict, because one person’s “freedom to do” whatever they want conflicts with another person’s “freedom from” whatever it is the first person is doing. In realistic terms, “freedom to do” 90 miles per hour on the highway conflicts with another person’s “freedom from” injury and death while driving.

What makes the analysis particularly difficult on Memorial Day is a troubling tension between “freedom from” and “freedom to do.” On Memorial Day we remember and honor those who died to give this nation “freedom from” authoritarianism, dictatorship, repression, and ethnocentrism. Yet we also seem increasingly complacent when those who benefitted from the sacrifice of those we honor claim to have the “freedom to do” the very same behaviors the suppression of which was the purpose for which those we honor fought and died. It is particularly disturbing when people who profess a deep admiration for those who gave their lives to protect the nation from those enumerated evils are at the same time supporting people and policies that nurture and enlarge those same evils in this nation. What was the point of so many sacrifices to eliminate authoritarianism, dictatorship, repression, and ethnocentrism when there are people who want those same attributes to become the linchpin of this nation’s existence?

So there is both a freedom to do and a freedom from, but both freedoms are, as I pointed out, two sides to the same coin. And whether considered as one or two, freedom not only is not free, but it also is not unlimited. One person’s freedom exists within the boundary created by the freedoms of other persons. Removing that boundary invites and fuels chaos, catastrophe, and ultimately freedom for no one because no one will be left. This time around the end of civilization is the end of the species. All the parades, picnics, hot dogs, beach trips, ceremonies, and social meme posting will mean nothing if the meaning and scope of freedom is misunderstood by increasing numbers of people. It’s time to remember that rights only exist if responsibilities thrive.

As readers of this blog know, I am not a fan of these public-private partnerships. I have explained my objections to public-private partnerships and privatization of public functions in posts such as Are Private Tolls More Efficient Than Public Tolls?, When Privatization Fails: Yet Another Example, How Privatization Works: It Fails the Taxpayers and Benefits the Private Sector, Privatization is Not the Answer to Toll Bridge Problems, When Potholes Meet Privatization, Will Private Ownership of Public Necessities Work?, and So Who Decides If Tolls Can Be Imposed on Pennsylvania Bridges?. These public-private partnerships don’t work out well. They are the product of legislative attempts to find funding without raising taxes, tolls, or other fees while generating revenue for their private sector donors, with hopes that the outcry against tolls and similar charges will be directed against the private entity involved in the project. Of course, voters can’t control, vote out, or do much of anything with respect to the private entity, whereas legislators see themselves at risk of losing the next election, something on which they focus too much. As I pointed out in So Who Decides If Tolls Can Be Imposed on Pennsylvania Bridges?, legislatures rush into these arrangements only to figure out that they made a big mistake.

Today, reader Morris directed my attention to yet another very big mistake made by the legislature in Texas. In a story about an increase in the number of toll roads in Texas,** a former Texas state representative admitted that “Texas made a mistake.” According to the story, in 2007 Cintra, a private toll company, won its bid to build part of a new toll road in Collin County. The road would cost $500 million to build. The company, based in Spain, offered $2.7 million to take over the project, in exchange for its right to receive the next 52 years of tolls. Eventually someone figured out that the expected revenue stream from only the first 40 years of tolls flowing to the Spanish company would amount to $34 billion. In other words, Texas would be giving up $34 billion of revenue in exchange for $2.7 billion up front. Even taking into account the costs of operating, maintaining, and repairing the road would cut into the net revenue from the project, this clearly was a “private sector wins, state of Texas and its residents lose” deal. Worse, the contract prohibited Texas from increasing the capacity of free roads that connected to the toll road, and also prohibited the state from buying back toll roads from the private companies. Fortunately, these problems were caught in time by the administrative agency that handles transportation in Texas and it rescinded the contract.

Why are these deals bad? The reason is simple. The public-private deal creates profits for the private sector, and to fund those profits taxpayers and toll payers are required to pay more than they would if the public function remained public. Why do legislatures fall for these deals? Because they want to be re-elected and that requires support from the private sector, specifically the segment of the private sector that controls the huge amounts of money involved in these deals.

There’s another lesson lurking in this story. It was the administrative agency, not the legislature, that listened to people who understand the complexity of these deals and saved Texas residents. It’s no surprise, therefore, that certain legislators across the country, including some in the nation’s capital, are trying to eliminate, disempower, and curtail administrative agencies. Those agencies are where the expertise resides. It doesn’t reside in legislatures, in part because legislators need to allocate time among thousands of issues which leaves them no time to get into details, and in part because far too many legislators invest increasing amounts of time to re-election attempts and distracting political theater.

** The entire article (and its scheduled follow-up) is worth reading for an examination of what happens when the refusal to impose or increase taxes coupled with handing over government functions to private domestic and foreign companies causes a variety of problems extending beyond the question of who pockets toll revenues. Highway fatalities, erroneous loss of vehicle registrations, criminal prosecutions controlled by toll companies, and a long list of other problems plague the state.

Most people, when they hear the word “tax,” think not only of their distaste for paying taxes but also think of “numbers.” Sadly, many people dislike and even fear working with numbers. Anyone who has worked with taxes knows that taxes involve much more than numbers. They also know that although computers can handle the computational side of tax numbers, the non-numerical aspects of taxation require the sort of policy, judgment, wisdom, and subjective evaluation that have yet to show up successfully in software. I have written about this misunderstanding of taxation in Why Tax Practitioners Must Be Good With Words, and Not Just Numbers. I offered examples of tax issues in which words were in play mattered and numbers were on the sideline in posts such as Medical Expense Deductions for Embryo and Cord Blood Storage, Pets and the Section 119 Meals Exclusion, The Things Tax Lawyers Must Ponder, and Not That More Proof Is Needed, But Here’s Another Example That Taxes Aren’t “Just Numbers”.

Reader Morris has directed my attention to a decision by the Commonwealth Court of Pennsylvania that addressed the question of whether Perrier carbonated natural mineral water is water exempt from the sales tax or a soft drink subject to the sales tax. The court explained that the product is a soft drink because it is carbonated using the same process used to carbonate soft drinks. The court relied on the definition of “soft drink” in the statute, which includes “carbonated water.”

As I’ve also pointed out, those who practice tax law learn, and must learn, all sorts of things that are beyond the statutes, regulations, and other authorities that set forth the law of taxation. In this instance I learned that Perrier carbonated natural mineral water isn’t simply natural carbonated mineral water extracted from underground. Instead, the mineral water and the carbonic gas are extracted separately from the same geological formation and then are combined through a process that involves removing impurities, chilling the water, and removing air from the water. Surprisingly, any carbonation in the harvested water is removed before the carbonic gas extracted from a different area in the geological formation is added.

This case is an interesting illustration of why legislatures need to do what attorneys need to do. Before drafting legislation, and while reviewing legislation as it moves through the legislature, legislators should acquire as much information as possible so that they can craft statutes that answer questions. In this situation, because of the arguable ambiguity in the statute concerning the differences between water and soft drink, the legislature could have simply inserted the word “noncarbonated” before the word “water” in the section of the statute exempting water from the sales tax or the phrase “artificially” before the phrase “carbonated water” in the definition of “soft drink.” Either of these tweaks, or any other that would align with what the legislature intended once it made itself aware of the uncertain status of Perrier water would have spared the litigants the cost and time invested in the litigation, and would have reduced the court’s docket by at least one case. On the other hand, if the statute had been so drafted, I and others might have continued with our ignorance with respect to how Perrier carbonated natural mineral water is produced unless some other reason caused us to research the question.

I close by tipping my hat to the court for its clever work with the English language. No, I’m not talking about the word “water” and the phrase “soft drink.” I’m referring to this sentence from the court’s opinion: “The issues raised before this Court bubble down to one question.” With the court’s decision, barring a reversal on appeal, the ongoing dispute between the taxpayers and the Department of Revenue over this issue has fizzled out.

From time to time I have shared my thought about tax return preparers, particularly those who get into trouble. Sometime my focus is on the clients who end up being shortchanged by tax return preparers whose actions cause the clients to undergo audits that they would not have experienced had their returns been properly filed. I don’t write about every tax return preparer who is convicted, because in recent years that has been happening with increasing frequency. Most of the press releases don’t add new wrinkles but fall into the “here’s another one who did the same thing as the last several who were convicted” category. Those who are interested can take a look at my previous posts focusing on tax return preparers, in posts such as 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, It’s Not Just Law Enforcement That Confronts Misbehaving Tax Return Preparers, When An Injunction Doesn’t Stop a Tax Return Preparer from Filing False Returns, Filing a Fraudulent Tax Return Is Bad, Filing More Than 3,000 Is Outrageously Bad, When It Comes to Fraudulent Tax Returns, It's Not Always the Preparers, A Procedural Twist on Dealing with Fraudulent Tax Return Preparers, Can Tax Return Preparers Learn from the Misdeeds of Other Preparers?, Should Tax Return Preparers Use Their Full Legal Names?, Is There Ever a Free Lunch, Even in the Tax Return Preparation Business?, and Is the Tax Return Preparer or the Client Responsible For Unjustified Deductions?.

Today, the Department of Justice issued a press release describing the sentencing of a woman who had prepared more than 900 false tax returns. According to the press release, these fraudulent returns were prepared from at least January 2017 through June 2023. By claiming unjustified deductions, the preparer obtained for her clients larger refunds than they otherwise would have received. The IRS paid roughly $1.3 million in these fraudulent refunds.

The preparer charged at least $300 for each return that was prepared. That means that over seven tax preparation seasons the preparer collected at least $270,000. That’s only $38,571 annually. It is unclear if this was the total income collected by the preparer over those years from preparing returns, or if other returns also were prepared for which the preparer charged but did not subject to false deductions and credits. It also is unclear if the preparer had other income. I mention this because trying to live on $38,000 annually is difficult.

The preparer was sentence to one year and one day in prison, and to serve one year of supervised release. The preparer also was ordered to pay $1,349,314 in restitution to the IRS. The sentence leaves me with two questions.

First, was the preparer prohibited from resuming the tax return preparation business when released from prison? If not, why not?

Second, did the IRS recover from the preparer’s clients the $1.3 million in fraudulent refunds, and if so, then will the Treasury receive those amounts along with the restitution that the preparer has been ordered to pay? If so, does this constitute a sort of “double dipping” that ought not be permitted? Or should the $1.3 million that the preparer has been ordered to repay as restitution be more properly characterized as a fine or penalty, which would remove the specter of “double dipping” from the situation?

Other questions are not prompted by the sentence. Would the preparer have charged less than $300 for a return if the return did not include false deductions? Did the clients know about the false deductions? If the answers to those questions are “no,” then why not simply prepare false-free returns? I ask, because being required to pay more than $1.3 million and to sit in prison for a year is quite the price to pay in order to collect $270,000 in income, especially if that income could have been collected by preparing false-free returns. Something doesn’t add up.

Those who read MauledAgain are familiar with my opposition to public funding of, and tax breaks for, businesses owned by multimillionaires and billionaires, as explained in 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, Grabbing Tax Breaks, Sports Franchises, Casinos, and Now, a Water Park, and Tax Breaks For Starving Team Owners.

Almost all of the time, until recently, owners of professional sports teams have succeeded in obtaining the public funding and tax breaks that they seek. It’s not as though they cannot make their enterprises profitable without public funding and tax breaks. It’s that they can make their enterprises even more profitable by increasing revenue through public funding and decreasing expenses through tax breaks. They often use the threat of moving to another location in an attempt to persuade public officials and, when the question is put to a referendum, voters. That works because there are locations eager to have a professional sports team even though many of those locations lack a population sufficient to support a professional team.

Now comes what might be good news, though in a complicated situation it may turn out to be short-term rather than long-term. According to this report, voters in Jackson County, Missouri, voted by a margin of 58 percent to 42 percent to reject a proposal to extend a sales tax to benefit the Kansas City Chiefs and the Kansas City Royals. What makes the situation complicated? The proposal was a combination of renovations to the Chiefs’ stadium and construction of a brand new stadium for the Royals. The former is much less expensive than the latter. Some predict that the Chiefs will now move forward by supporting a new proposal focused solely on renovations and thus requiring less public financing than demanded by the defeated proposal, freeing their issue from the more confusing situation enveloping the ever-shifting plans advanced by the Royals. If the separate sought the same amount as the Chiefs sought in the defeated proposal, it would seek $400 million from the taxpayers. Others suggest that if the Chiefs don’t get the requested $400 million, they should or could move across the border to Kansas City, Kansas and seek public financing and tax breaks from that state’s taxpayers though surely in amounts far exceeding $400 million.

Rodney Fort, professor emeritus of sport management at the University of Michigan, notes that owners of professional sports teams are increasingly failing to obtain the public financing and tax breaks that they have been seeking. He cites “the principle of taxpayers supporting venues where billionaire owners rake in profits seemingly one of the damning blows.” That characterization of the issue is in tune with what I have been writing for years.

David Carter, a sports consultant and business professor at the University of Southern California, asks, “Why not go after public subsidies?” He answers his own question: “Teams in (smaller markets) like the Chiefs, they’re delivering huge value for the residents in the community at large…You can argue that the taxpayers should pay for the benefit in their own backyard. That brand is so big and so important that there is some public value. And the owners try to gain that value through tax measures.” That answer resembles the defense offered by the governor of New York after agreeing to funnel $850 million of public money into the coffers of the Buffalo Bills, a few days before proposing a state budget that cut $800 million from the funding of the Office of Children and Family Services, as I explained in Tax Breaks For Starving Team Owners. New York’s governor praised and justified what was done with what I called “the typical ’doing good for the public’ and ‘creating lots of jobs’ claims. I reply to Carter the way I reacted to the governor of New York: “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.’”

In an era when so many people vote against their own interests, it is refreshing to learn that some voters understood that billionaires don’t need tax breaks and public funding. It seems likely that the voters in Jackson County, Missouri, will have another opportunity to think critically about the impact of diverting taxpayer dollars to oligarchs who can survive, and do quite well, without those dollars. Time will tell.

The concept of a mileage-based road fee continues to get my support and continues to be attacked by people who, in my opinion, either do not understand how it works or who haven’t bothered to dig into the details rather than offering coined phrases invented by the anti-tax lobbyists. I have been following and commenting on this issue for many years in posts such as Tax Meets Technology on the Road, Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, Is the Mileage-Based Road Fee So Terrible?, Defending the Mileage-Based Road Fee, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, Mileage-Based Road Fees: Privatization and Privacy, Is the Mileage-Based Road Fee a Threat to Privacy?, So Who Should Pay for Roads?, Between Theory and Reality is the (Tax) Test, Mileage-Based Road Fee Inching Ahead, Rebutting Arguments Against Mileage-Based Road Fees, On the Mileage-Based Road Fee Highway: Young at (Tax) Heart?, To Test The Mileage-Based Road Fee, There Needs to Be a Test, What Sort of Tax or Fee Will Hawaii Use to Fix Its Highways?, And Now It’s California Facing the Road Funding Tax Issues, If Users Don’t Pay, Who Should?, Taking Responsibility for Funding Highways, Should Tax Increases Reflect Populist Sentiment?, When It Comes to the Mileage-Based Road Fee, Try It, You’ll Like It, Mileage-Based Road Fees: A Positive Trend?, Understanding the Mileage-Based Road Fee, Tax Opposition: A Costly Road to Follow, Progress on the Mileage-Based Road Fee Front?, Mileage-Based Road Fee Enters Illinois Gubernatorial Campaign, Is a User-Fee-Based System Incompatible With Progressive Income Taxation?. Will Private Ownership of Public Necessities Work?, Revenue Problems With A User Fee Solution Crying for Attention, Plans for Mileage-Based Road Fees Continue to Grow, Getting Technical With the Mileage-Based Road Fee, Once Again, Rebutting Arguments Against Mileage-Based Road Fees, Getting to the Mileage-Based Road Fee in Tiny Steps, Proposal for a Tyre Tax to Replace Fuel Taxes Needs to be Deflated, A Much Bigger Forward-Moving Step for the Mileage-Based Road Fee, Another Example of a Problem That the Mileage-Based Road Fee Can Solve, Some Observations on Recent Articles Addressing the Mileage-Based Road Fee, Mileage-Based Road Fee Meets Interstate Travel, If Not a Gasoline Tax, and Not a Mileage-Based Road Fee, Then What?>, Try It, You Might Like It (The Mileage-Based Road Fee, That Is) , The Mileage-Based Road Fee Is Superior to This Proposed “Commercial Activity Surcharge”, The Mileage-Based Road Fee Is Also Superior to This Proposed “Package Tax” or “Package Fee”, Why Delay A Mileage-Based Road Fee Until Existing Fuel Tax Amounts Are Posted at Fuel Pumps?, Using General Funds to Finance Transportation Infrastructure Not a Viable Solution, In Praise of the Mileage-Base Road Fee, What Appears to Be Criticism of the Mileage-Based Road Fee Isn’t, Though It Is a Criticism of How Congress Functions, Ignorance and Propaganda, A New Twist to the Mileage-Based Road Fee, The Mileage-Based Road Fee: Simpler, Fairer, and More Efficient Than the Alternatives, Some Updates on the Mileage-Based Road Fee, How to Pay for Street Reconstruction, Stop the "Stop EV Freeloading Act" Because The Mileage-Based Road Fee Is a Much Better Way to Go, Why Is Road Repair and Maintenance Funding So Difficult for Public Officials to Figure Out?, and Should (Will) Implementing the Mileage-Based Road Fee Cause Privatization of Highway Infrastructure?

Thanks to Reader Morris, I have now learned that Freedom Caucus members in Arizona are trying to prohibit mileage-based road fees. For the moment, the good news is that their efforts have been, at least temporarily, blocked. The bad news is that they intend to reintroduce the bill, and I suspect they will continue pounding this agenda item until the populace acquires sufficient understand of mileage-based road fees and makes it clear that the prohibition attempt is pointless.

Interestingly, it was a Republican whose opposition to the Freedom Caucus effort that caused the legislation containing the prohibition to stall. The Republican who refused to go along with the Freedom Caucus proposition explained that he tried to get the text of the legislation changed to preclude what he saw as “multiple unintended consequences,” but was “met with flat-out refusal.” That’s no surprise, is it?

The proposed legislation “would ban government entities from tracking vehicle miles traveled by its citizens, bar taxes based on miles traveled and would stop government bodies from attempting to limit vehicle miles traveled in any way.” Supporters “described the freedom to travel by motor vehicle as fundamentally American.” One Republican explained, “Getting behind the driving wheels of our cars and driving without the burden of calculating a mile cost truly feels like freedom, because it is freedom,” and that there is a “looming threat to limit how much people drive.”

What these Freedom Caucus zealots fail to understand are the facts underlying the need for mileage-based road fees and how those fees fit into existing conditions. Arizona drivers already pay for the miles they travel, through an 18-cent-per-gallon fuel tax, which is, in effect, a tax on miles driven though it varies from driver to driver based on the fuel efficiency of the vehicle. Opponents of the mileage-based road fee don’t understand this, mostly because they are peppered with misinformation. Arizona, like other states and the federal government, faces decreased collections from fuel taxes because of fuel efficiency gains and increasing numbers of electric vehicles on the roads. The mileage-based road fee rebalances the burden of paying for necessary highway, bridge, and tunnel maintenance and repairs.

The Freedom Caucus either ignores or is unaware of Arizona Administrative Code section 18-2-1011, which provides

Ariz. Admin. Code § 18-2-1011
A. The Department shall provide a vehicle inspected at a state station with a uniquely numbered vehicle inspection report of a design approved by the Director that contains, at a minimum, the following information, as applicable to the tests required for the vehicle under R18-2-1006:
            * * * * *             7. Odometer reading ;

Though I don’t know if every state has this requirement, I do know that Pennsylvania has the same requirement. So much for boo-hooing about the state knowing how many miles a vehicle has been driven. It is also important to note that the mileage-based road fee, like the state vehicle inspection requirement, reflects how many miles a vehicle is driven and not how many miles any specific driver has driven, a distinction that seems to have eluded the thinking process of the Freedom Caucus.

When I hear these claims about “freedom” being tossed about whenever any proposal that is designed for the betterment of society and the people generally is put forth, I cannot help but think of what many parents hear from their adolescent children, what most middle and high school teachers hear from their students, and what police, prosecutors, and judges hear from law-breakers: “It’s a free country, I can do what I want,” “You are taking away my freedom,” and similar exaggerated uses of the word “freedom” and the concept it represents. To see this same abuse of the word and concept by people entrusted with doing what is best for society is beyond disappointing.

Nothing in the mileage-based road fee imposes a limit on how many miles a vehicle can be driven. Nothing in the mileage-based road fee imposes a limit on how many miles a person can drive in a year. The mileage-based road fee is not, as one of the supporters of prohibiting the fees claims, “anti-freedom.” If anything, it is “pro freedom,” because by rebalancing the burdens of paying for highway, bridge, and tunnel maintenance and repairs, it ensures that drivers will be free to travel without the fear of tire blowouts, broken suspensions, interrupted trips, injuries, and deaths that would become even more common in the absence of appropriate progression into the twenty-first century.

It indeed is worrisome that misinformation has infected society. Worse, the ability to critically analyze information is headed into extinction. A recent example is the claim that because corporations are closing stores the economy is in shambles.

Let’s first look at retail store closings. Why do stores close? They close for a variety of reasons.

One significant cause is the transfer of shopping from retail store browsing and purchasing to online browsing and purchasing. That doesn’t mean the economy is slowing down or speeding up. It simply means that the marketplace has been moving. As older generations accustomed to in-person shopping depart this life and younger generations who are growing up in an online world turn to online shopping, the trend will continue.

Another significant cause is relocation of retail outlets. When people move from one area to another, retailers will follow. For example, when I saw a commentary claiming that Outback’s decision to close stores was due to “Bidenomics,” I did what too many people don’t do. Perhaps it is curiosity, but perhaps it also involves verification preferences. According to a spokesperson for Outback, as reported in this this report, while Outback is closing 41 stores it is opening 40 to 45 replacements. The spokesperson explained, “a variety of factors resulted in the decision, including sales and traffic-trade areas, which means how close customers live to a business location and how far they might travel to patronize it.” Similar closings and new openings also are happening with other retailers. Those who try to score debate points by taking information out of context or omitting all of the facts are, unfortunately, adept at swaying the opinions of those who don’t make any effort to thing through the information being highlighted.

Another cause, perhaps not as significant, is the closing of a store so that it can be renovated or upgraded to keep pace with societal expectation and demands in the in-person shopping environment. When the renovation is a gut-and-rebuild event, the closing appears to be permanent because of the length of time the project requires. I’ve yet to see a meme claiming that the opening or re-opening of a store is a manifestation of a healthy economy. It’s so much easier to criticize than to praise.

Another cause is the cyclical nature of certain sectors of the economy. For decades restaurants have closed and new ones have opened. Why? Sometimes the restaurant is dependent on a particular ownership. But often, people simply get bored or dissatisfied and, as is the case with fashion, music, art, and other cultural manifestations, eagerly turn to whatever is or appears to be new. That pattern doesn’t mean the economy is good, bad, or indifferent.

Another cause, the significance of which is debatable, is the closing of stores because of shoplifting and crime. Yes, this is happening, but only in certain places and not as a widespread national economic collapse. Is this a problem? Yes, of course. Can it be fixed? Yes. Are those responsible for curtailing shoplifting and crime doing their job? No. Is it their fault? In some instances, yes, but in many instances, they have been handcuffed by a variety of well-intended theoretical but pragmatically unworkable attempts to deal with crime in ways that don’t work.

Let’s put aside the “sky is falling” panic fueled by misinformation and incomplete or out-of-context reports and look at the economy. Is the economy a mess? That question masks two questions, namely, how is the economy now, and how is it expected to be in the future. Much like the same two questions concerning a person’s health, the first question can be answered by looking at existing conditions, whereas the second question involves the dangerous exercise of predicting the future and generates answers that are clouded by risks, probabilities, and generalities. I’m not about to join the seers and prophets who think they know what the economy will do, for the simple reason that I don’t know what the economy will do and have no desire to pile onto the growing mass of hedged and conditional forecasts.

What is the current state of the economy? What measure should be used? One can look at gross domestic product, employment, inflation, and consumer confidence, to mention four that get a lot of attention.

Fourth quarter 2023 GDP, the latest for which there is data, increased at an annual rate of 3.3 percent. The forecasts had been for a lower increase. By this measure, the economy is doing well.

When it comes to employment, again the economy performed better than what was predicted. In January, more than 350,000 jobs were added. During 2023, about three million jobs were created. The unemployment rate was 3.7 percent, below 4 percent for 25 months in a row. When was the last time that happened? In the 1960s. An unemployment rate between 3 and 5 percent indicates that the economy is at or near capacity. In other words, it is doing very well. Another employment measure is wages. Average hourly earnings increased from December to January, and increased 4.5 percent over the past year.

Inflation, which was terrible a few years ago, has cooled to 3.4 percent for 2023. It increased 0.3 percent in January, equivalent to an annual rate a bit higher than the 2023 rate, but still within the range of what is acceptable for a strong economy.

Consumer confidence for 2023, as measured by retail sales, increased by almost 5 percent. Disposable income increased more than 4 percent. Those are not signs of a sick economy.

So why do so many people think that the economy is a mess? In a few instances it’s a person’s reaction to their own experience, though too often a person’s economic situation isn’t entirely the fault of everyone but the person, and the person’s own choices surely affect their economic experience. The primary reason so many people are perceiving the economy as in a condition inconsistent with reality is the effectiveness of propaganda. Propaganda works best when it isn’t analyzed and challenged. It works best when it is gobbled up because it resonates with emotional predisposition, thus bypassing the prefrontal cortex. Add to this the woeful state of education in this country and a large segment of the population is a ready market for those who want to hide reality and create an environment of falsity. Where is this propaganda sourced? Much of it arrives from overseas, from countries that include admitted enemies and some countries that pretend to be friendly, because it benefits these nations if the United States is fragmented by creating a population segment that believes in the falsity. There also is a domestic source that puts political gain above national economic health, some of whom are fearful of the nation learning that supply-side, trickle-down economic nonsense shows its falsity when compared to a more sensible management of the economy.

Resisting the siren call of propaganda, misinformation, and misrepresentation is difficult. If it doesn’t happen, the false reality will become true, and the unpleasantness of that sort of environment will generate an understanding that comes too late to do anything about it.

Readers of MauledAgain know that one of my “hobbies,” surely overshadowing all the others, is genealogy. Specifically, genealogy of people and their families. There also are house and property genealogies. Though I’ve known about them, I have never tried to research the genealogy of a house.

Until now.

On Friday, the weekly Delaware County (Pennsylvania) Council Public Relations newsletter arrived with an item explaining that it had upgraded its online property records search engine. The website permits a person to deeds, mortgages, and other documents online rather than making a trip to the courthouse in Media.

I knew I purchased my house from John and Elise Tucci. John was a Villanova Law student a year or two ahead of me. He also was a graduate of the University of Pennsylvania.

I knew the Tuccis bought the house from Ronald E and Iris D Frank, because shortly after moving in a postcard arrived from Japan from a young woman seeking to reconnect with a childhood pen pal who was one of the Franks’ daughters. Ron Frank was on the faculty at the University of Pennsylvania Wharton School when I was a student there, and by the time I spoke with him about the postcard he had taken a faculty position at Emory University.

Until Friday I had not tried to identify the person or persons who sold the house to the Franks? Once I accessed the deed that conveyed the property to them, I learned that the house was sold to them in 1965 by William Laurens Van Alen III and his wife Sydney Purviance Van Alen. So much for the realtor websites that state that the house was built in 1968.

Of course, I was curious about the Van Alens, so I did a bit of research. I discovered that William Laurens Van Alen III also was a Villanova Law graduate, in the class of 1962. In the yearbook (also online) his address was the same as mine now is: 219 Comrie Drive. I learned that like me, John Tucci, and others, he attended the University of Pennsylvania before entering Villanova Law. He then clerked for Chief Justice Bell of the Pennsylvania Supreme Court, practice law, and was a sportsman with championships in lawn tennis, court tennis, and golf. I became curious, sidetracked myself into exploring the Van Alen family, and learned he died in 2010 at his residence in Newtown Square, the nearby town where I grew up. His mother was the daughter of Atwater Kent, pioneer radio manufacturer, and a descendant of the Brinton family of Chester County, some members of which married into the Maule family (or is it the other way around?). His father was a well-known Philadelphia architect, attended the University of Pennsylvania, served on the boards of many Philadelphia institutions, and was appointed to the National Council of the Arts.

One last point before getting back to the house. William Laurens Van Alen III, who sold the house to the Franks, married twice. His second wife’s family name is the same as the family name of the husband of one of my nieces. So there’s another side track to explore.

So who sold the house to the Van Alens? They purchased it from the builder, Villanova Construction Company, owned at the time of the deed by William McCue, the surviving owner of the company. The house was built after the subdivision of a larger parcel of land purchased by the Villanova Construction Company from Howard F. and Charlotte Comrie.

And that answered a question that had been batted around for many years. Why Comrie Drive? I knew there was a town in Scotland with the name Comrie. What was the connection? There was the answer. It was named after Howard and Charlotte. Did they require that as a condition of the sale? I don’t know. So, off I went to see if my hunch was correct. It was. Howard Comrie’s great great grandfather was born in Comrie, Perthshire, Scotland and carried the surname Comrie. No, I didn’t try to trace back his ancestry to see if it connected with the Maule family of Panmure, Scotland.

How did Howard and Charlotte Comrie acquire the larger parcel of property? They purchased it from a trust company who held the property on behalf of Alice Rawle Geyerlin, who, if I am properly reading the deed handwriting acquired part of it from Cornelia L. Ewing and part from Charles Quigley.

Then I encountered a problem. The deed books changed from numbers to a combination of letters and numbers. But the website refused to accept letters as part of the book number. There is another path I can follow when I get the time. In her wonderful book, “Radnor: A Rare and Pleasing Thing,” the late Katharine Hewitt Cummin, a member of the Radnor Historical Society, traced the property history of each parcel in the township as defined for purposes of the 1798 federal window tax (that eventually did not get collected). I should be able to trace the property ownership back through the deeds that she researched.

Property genealogies have been done for numerous properties. What interested me was not the fact that the property ownership can be traced, as that is true of all the properties in this part of the country. It’s the connections between the owners of the house and myself. What are the odds that three of the four owners would be Villanova Law graduates? What are the odds that all four would either be graduates of or on the faculty of the University of Pennsylvania? And then there are the court tennis connections but I’ll leave that for another time. And somehow the word tax found its way into this post. Not quite a big surprise.

In a time that history will record as having been flooded with division and divisiveness, it’s nice to find yet another example of connections.

Reader Morris contacted me with this message, “Maybe the IRS reads your blog posts.” He reminded me of a commentary on this blog from March of 2020, Fortune Cookies and Taxes and pointed me in the direction of a story on Bloomberg Tax from December of last year.

My March 2020 commentary addressed an experience reader Morris had when he went to his “regular Chinese restaurant,” and found in his fortune cookie a message, “Tax tip # 8 Travel could be considered a business expense. Even that island vacay. TaxAct Surprisingly legal. Start for Free: TaxAct.com” Doing some research, I discovered that marketing firms are purchasing space on the flip side of fortune cookie slips to print their messages.

The story that reader Morris shared with me explained that the IRS Director of Stakeholder Liaison announced at a conference that the IRS would be using space on the flip side of fortune cookie slips for messages to taxpayers. Fortune companies are making the space available to the IRS without charge. The IRS plans to provide tax advice, including reminders about deadlines. I suppose the last thing someone wants to put into their brain at mealtime is taxation, though I am confident that some people are thinking about deductions when they pay for a meal.

As for the suggestion from reader Morris that perhaps the IRS reads my blog posts, maybe that happens. But I doubt that my post in March of 2020 generated the IRS fortune cookie plan. My guess is that a professional marketing/PR type of company approached the IRS or was approached by the IRS Tax Outreach, Partnership, and Education Team, and someone suggested making use of the fortune cookie messaging approach.

Now if links to this blog or posts on this blog begin to show up on fortune cookie slips carrying the IRS logo, I will want to know. Then I can revisit the question that I asked in the title to this post.

Sometimes I write about tax (and now and then, other) issues popping up in television court shows, in posts such as Judge Judy and Tax Law, Judge Judy and Tax Law Part II, TV Judge Gets Tax Observation Correct, The (Tax) Fraud Epidemic, Tax Re-Visits Judge Judy, Foolish Tax Filing Decisions Disclosed to Judge Judy, So Does Anyone Pay Taxes?, Learning About Tax from the Judge. Judy, That Is, Tax Fraud in the People’s Court, More Tax Fraud, This Time in Judge Judy’s Court, You Mean That Tax Refund Isn’t for Me? Really?, Law and Genealogy Meeting In An Interesting Way, How Is This Not Tax Fraud?, A Court Case in Which All of Them Miss The Tax Point, Judge Judy Almost Eliminates the National Debt, Judge Judy Tells Litigant to Contact the IRS, People’s Court: So Who Did the Tax Cheating?, “I’ll Pay You (Back) When I Get My Tax Refund”, Be Careful When Paying Another Person’s Tax Preparation Fee, Gross Income from Dating?, Preparing Someone’s Tax Return Without Permission, When Someone Else Claims You as a Dependent on Their Tax Return and You Disagree, Does Refusal to Provide a Receipt Suggest Tax Fraud Underway?, When Tax Scammers Sue Each Other, One of the Reasons Tax Law Is Complicated, An Easy Tax Issue for Judge Judy, Another Easy Tax Issue for Judge Judy, Yet Another Easy Tax Issue for Judge Judy, Be Careful When Selecting and Dealing with a Tax Return Preparer, Fighting Over a Tax Refund, Another Tax Return Preparer Meets Judge Judy, Judge Judy Identifies Breach of a Tax Return Contract, When Tax Return Preparation Just Isn’t Enough, Fighting Over Tax Dependents When There Is No Evidence, If It’s Not Your Tax Refund, You Cannot Keep the Money, Contracts With Respect to Tax Refunds Should Be In Writing, Admitting to Tax Fraud When Litigating Something Else, When the Tax Software Goes Awry. How Not to Handle a Tax Refund, Car Purchase Case Delivers Surprise Tax Stunt, Wider Consequences of a Cash Only Tax Technique, Was Tax Avoidance the Reason for This Bizarre Transaction?, Was It Tax Fraud?, Need Money to Pay Taxes? How Not To Get It, When Needing Tax Advice, Don’t Just “Google It”, Re-examining Damages When Tax Software Goes Awry, How Is Tax Relevant in This Contract Case?, Does Failure to Pay Real Property Taxes Make the Owner a Squatter?, Beware of the Partner’s Tax Lien, Trying to Make Sense of a “Conspiracy to Commit Tax Fraud”, Tax Payment Failure Exposes Auto Registration and Identity Fraud, A Taxing WhatAboutIsm Attempt, When Establishing A Business Relationship, Be Consistent, as the Alternative Can Be Unpleasant Litigation, Sadness on Multiple Levels: Financial Literacy, Factual Understanding, Legal Comprehension, and When the Lack of Facts Produces “Rough Justice” in a Tax-Related Case.

From time to time, the two topics meet. Thanks to reader Morris, I’ve learned of this sort of situation in a People’s Court case from several years ago. The facts are simple. The plaintiffs returned to the tax return preparer they had used the preceding year with no issues. The preparer told the plaintiffs to save all their receipts, though it was not clear that the plaintiffs understood that the preparer would go through the receipts to identify those that were relevant for income tax purposes. Though there had been no deductions on the previous year’s return prepared by the preparer, deductions were claimed on the return in question that amounted to 50 percent of the husband-plaintiff’s W-2 income. The deductions in question consisted of employee business expenses. The husband-plaintiff worked for a railroad and so deductions were taken for meals, lodging, uniforms, and similar expenses. The IRS determined that there was a deficiency, which with interest, amounted to about $5,000. The plaintiffs sued the preparer, asserting that the preparer should pay the taxes and interest, in effect blaming the preparer for the problem. When the IRS audited the return, it asked for a letter from the husband-plaintiff’s employer stating the employer’s reimbursement policy and details about its reimbursement plan, a letter that in theory could substantiate some or all of the deductions. The plaintiffs failed to request the letter because by the time the IRS asked for it the husband-plaintiff no longer worked for the railroad. The judge found that response to be questionable, and proposed that the husband-plaintiff did not ask for the letter because he knew that the return was claiming excessive amounts of deductions.

The judge concluded that the preparer was not responsible for the taxes owed by the plaintiffs. She also concluded that the preparer was not responsible for the interest, stating that the plaintiffs would otherwise have obtained an interest-free loan for several years.

The judge then admonished the defendant, telling the preparer that she was aggressive. The judge also told her that she had an obligation to manage her clients’ expectations. The judge told the preparer that she knew what she was doing. I interpret that as a warning to the preparer to do something more than simply prepare a return with deductions so high that it would be, in the judge’s words, a “red flag” for the IRS.

When a preparer prepares a return that shows “red flags,” which may or may not turn out to be an indication that something is wrong, the preparer should asked clients for evidence. In this case, the preparer, after seeing the amount of the deductions, should have asked the plaintiffs for the letter from the employer at that point. Then, if the IRS did audit, which in fact it did, the supporting evidence would be at hand. Of course, in this case, it is highly unlikely that the letter from the employer, if obtained, would have supported the deductions in question. And, as the judge told the plaintiffs, when a client looks at a return and sees something extraordinary, such as deductions amounting to 50 percent of income, the clients should know something isn’t quite right.

Almost always, when I write about tax return preparers who have crossed the line, it involves businesses operated by one or a few individuals. Occasionally it involves a franchise of a much larger entity. I have written about the woes of tax return preparers in posts such as 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, It’s Not Just Law Enforcement That Confronts Misbehaving Tax Return Preparers, When An Injunction Doesn’t Stop a Tax Return Preparer from Filing False Returns, Filing a Fraudulent Tax Return Is Bad, Filing More Than 3,000 Is Outrageously Bad, When It Comes to Fraudulent Tax Returns, It's Not Always the Preparers, A Procedural Twist on Dealing with Fraudulent Tax Return Preparers, Can Tax Return Preparers Learn from the Misdeeds of Other Preparers?, and Should Tax Return Preparers Use Their Full Legal Names?

Recently, reader Morris directed my attention to a case involving the third-largest tax return preparation business, Liberty Tax. According to the Attorney General of the District of Columbia, an action was brought against Liberty Tax, alleging that it “misled and overcharged” at least 7,300 residents of the District of Columbia who obtained tax return preparation services from Liberty tax. The case rested on a Liberty Tax “cash in a flash” marketing angle. According to the Attorney General, Liberty Tax offered $50 in cash to anyone who filed their returns through Liberty Tax, and described the cash as coming with “no catch.” The Attorney General alleged that Liberty Tax charged customers who accepted the $50 an average of $200 more than what it charged customers who did not accept the $50.

The case did not go to trial because the parties settled. Under the settlement, Liberty Tax must pay $550,000 to the District of Columbia residents who accepted the $50 and then were overcharged. It must also pay $200,000 to the District of Columbia. The settlement requires Liberty Tax to stop using the “cash in a flash” program throughout the nation, and prohibits it “from creating new incentive programs that impact the prices the company charges for tax prep for those consumers who receive the incentive.” To ensure that these settlement provisions are followed, Liberty Tax must report to the Attorney General’s office “any incentive programs implemented to attract consumers, including submitting all of their marketing and training materials,” along with information that enables the office to determine whether incentive programs are affecting the fees charged to customers who accept the incentives.

Lest anyone think that this sort of “cash up front, we’ll get it back and more on the back end” arrangement was invented by, or used solely by Liberty Tax, or that it is specific to the tax return preparation business, rest assured that it is a marketing technique used for decades or longer and used across all sorts of industries and economies. If anyone enticed by this sort of promotion stops to think about it, they would realize that the cash incentive must come from somewhere. Putting aside the possibility of a business printing counterfeit money, there are four possibilities. First, the business does what Liberty Tax did, simply increase the price charged to recipients of the incentive. Second, increase the price charged to customers who don’t receive the incentive. Third, let profits decrease by the amounts paid out in incentives. Fourth, reduce salary and benefits paid to some or all employees. Perhaps there is a fifth, which is to somehow get one or more governments to subsidize the incentive, which shifts the economic burden onto those who pay taxes to those governments, those who receive other benefits from those governments, or a combination of both.

The bottom line is that oft-repeated axiom, “there is no such thing as a free lunch.” The enticement of quick cash or some other benefit, coupled with a lack of understanding of how economics works, makes it easy for marketing ploys such as the one used by Liberty tax to succeed. How can this be stopped? One approach is what happened in the District of Columbia. Government, acting under laws enacted to protect consumers, step in to stop the practice and in some instances provide a remedy. The disadvantages of this approach are that not every deceptive practice is identified, some legislatures are anti-consumer and refused to enact such laws or fund enough oversight, and the chorus of “we don’t need no regulation” from the anti-government, pro-I-have-freedom-to-do-what-I-want crowd continues to grow in volume and intensity, making it increasingly difficult to protect people from deception. Another approach is to educate people, starting from an early age, so that they indeed understand that there is no such thing as a free lunch, learn to spot these come-ons, and develop skills to make economic and financial decisions rationally rather than impulsively or emotionally. The challenges with this approach are the lack of time and resources dedicated to enlightening people and the ever-increasing trend of prohibiting schools from teaching skills and materials that enable people to learn how to think for themselves.

I have written many times about tax return preparers who have been investigated, indicted, convicted, sentenced, or subjected to an injunction or restraining order. I have discussed these sorts of events in commentaries such as 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, It’s Not Just Law Enforcement That Confronts Misbehaving Tax Return Preparers, When An Injunction Doesn’t Stop a Tax Return Preparer from Filing False Returns, Filing a Fraudulent Tax Return Is Bad, Filing More Than 3,000 Is Outrageously Bad, When It Comes to Fraudulent Tax Returns, It's Not Always the Preparers, A Procedural Twist on Dealing with Fraudulent Tax Return Preparers, and Can Tax Return Preparers Learn from the Misdeeds of Other Preparers?.

I don’t write every time I read an article or press release announcing the arrest, indictment, or conviction of a tax return preparer. In many instances there’s nothing particularly instructive because the preparer in question has repeated what another preparer has done. Other than differences in the number of returns and the dollar amount of lost revenue, there usually isn’t anything that grabs my attention. But a press release issued yesterday by the Department of Justice caused me to think about an aspect of tax return preparation I had not previously considered.

According to the press release, a tax return preparer pleaded guilty to inflating her clients’ tax refunds by preparing and filing “false tax returns that claimed fraudulent deductions and fictitious business profits and losses.” These filings caused a revenue loss of at least $400,000. The preparer also obtained more than $83,000 in Paycheck Protection Program loans by submitting false IRS forms with fake business income from “bogus businesses.” She also filed a false claim for unemployment insurance with the Maryland Department of Labor based in false federal income tax forms, and as a result, receiving more than $55,000.

What caught my eye was that the preparer did business as “The Tax Lady” and as “5 Starr Business Solutions.” Starr is the preparer’s surname. Should individual preparers be required to do business using their full name, or at least display their full name underneath any business name? Without such a requirement, a prospective client who is doing due diligence vetting needs to do research to learn the legal name of the preparer in order to see if that preparer operates other businesses under different names for which there are records of inappropriate or worse business practices. Most people do not know how to learn the legal name behind a business. Sometimes it’s easy. Too often it’s difficult and occasionally almost impossible.

But what of the corporate tax return preparation companies that employ hundreds or thousands of tax return preparers? Those companies are much easier to find. They are accountable for misdeeds by any of their employees. They are big enough that they cannot hide the way some individual preparers do and have done.

And what of individual tax return preparers who operate through a corporation using an invented corporate name? Again, it isn’t all that easy to identify the preparer who is behind that corporation. Should tax return preparers be prohibited from operating through an invented name?

When certain professionals, such as physicians and attorneys, operate a business that isn’t their actual name, whether or not in partnership, LLC, or corporate form, they are required to display their name or names in the appropriate place. Their names are on the firm’s or practice’s website, on emails, on letterheads, on court filings, on prescriptions, on medical reports, and on any other relevant document. If they can do that, so, too, can tax return preparers. Note that some states permit the use of fictitious names by physicians but from what I can figure out, the physicians need approval and it’s granted when a physician wants to omit a middle name, use their original name after changing their legal name due to marriage, or shortening their name if it is long and difficult to pronounce. That is a totally different issue than practicing medicine or law using an invented name that disguises the person’s identity.

People want to know who is giving them legal advice, representing them in negotiations or litigation, giving them a medical examination, or prescribing their medications. Do not people want to know who is preparing their tax return?

Many people, including law students who approach enrollment in a basic federal income tax course, think and often fear that tax is nothing more than manipulating numbers. Of course, that’s not the case. Though numbers are used in tax, just as they are used in other areas of law and life, numbers are just a tiny part of what tax practitioners do. I wrote about this in Why Tax Practitioners Must Be Good With Words, and Not Just Numbers. I offered examples of tax issues in which words were in play mattered and numbers were on the sideline in posts such as Medical Expense Deductions for Embryo and Cord Blood Storage, Pets and the Section 119 Meals Exclusion, and Not That More Proof Is Needed, But Here’s Another Example That Taxes Aren’t “Just Numbers”.

Today one of my tax-related email alerts drew my attention to another example of why tax is much more than just numbers. In Philadelphia Energy Solutions Refining and Marketing, LLC v. U.S., 2022-1834 (Fed. Cir. 3 Jan. 2024), the U.S. Court of Appeals for the Federal Circuit affirmed the decision of the Claims Court that a mixture of butane and gasoline did not qualify for the alternative fuel mixture credit. That credit is designed to offset the excise tax on alternative fuels. There also is an excise tax on taxable fuels, which by definition are not alternative fuels. An example of a taxable fuel is gasoline. Examples of an alternative fuels include benzol, benzene, and liquefied petroleum gases. The petroleum industry treats butane generally as a liquefied petroleum gas.

About ten years after Congress enacted the credit, the taxpayer filed refund claims for each taxable quarter in the years 2014 through 2017, claiming that it paid excise taxes on a mixture of butane and gasoline, and that it was entitled to an alternative fuel mixture credit to offset those taxes. It argued that the mixture in question was an alternative fuel. The IRS did not respond to the taxpayer’s filing so the taxpayer sued for a refund in the Claims Court. The Claims Court denied the taxpayer’s claim, holding that butane is not an alternative fuel and that a mixture of butane with gasoline is not an alternative fuel.

The Court of Appeals pointed out that although this was the first time it had faced the question, two other Courts of Appeal had done so and had held as did the Claims Court. Somehow I did not notice those other two Court of Appeals decisions.

The Court of Appeals explained that under the statutory definition, an alternative fuel mixture is “a mixture of alternative fuel and taxable fuel (as defined in subparagraph (A), (B), or (C) of section 4083(a)(1)) which— (A) is sold by the taxpayer producing such mixture to any person for use as fuel, or (B) is used as a fuel by the taxpayer producing such mixture.” The Court explained that there was no dispute between the parties that gasoline is a taxable fuel. Under the statute, taxable fuel “means—(A) gasoline . . . .” The parties also did not dispute that under the same definition, butane is a taxable fuel, because the statute provides that the term gasoline includes “any gasoline blend stock.” The regulations under the statute state that gasoline blend stocks “means (A) Alkylate; (B) Butane; (C) Butene; . . . .” Accordingly, because both gasoline and butane are not alternative fuels, a mixture of the two is not an alternative fuel because an alternative fuel requires a mixture of a taxable fuel and an alternative fuel.

Nonetheless, the taxpayer argued that the credit should apply to the mixture because liquified petroleum gas is included in the definition of alternative fuel, and under industry understandings, butane is a liquified petroleum gas. The taxpayer argued that because the Congress did not provide a cross-reference in the credit statute to the definition of alternative fuel even though it provided a cross-reference to the definition of taxable fuel, it must have intended that the definition of alternative fuel for purposes of the credit was not the same as the definition of alternative fuel for purposes of the excise tax on alternative fuels. The taxpayer pointed out that the definition of alternative fuel in the credit statute states that alternative fuel “means—(A) liquefied petroleum gas, (B) P Series Fuels . . . .” Accordingly, argued the taxpayer, because the statute did not define liquified petroleum gas for purposes of the credit, the definition should reflect the industry understanding that it includes butane. The Court rejected the argument because even though looking at the credit statute in isolation it might appear that the taxpayer had a point, the analysis required looking at the “statutes as a whole,” which makes it clear that butane is not an alternative fuel. This conclusion was buttressed by the fact that a taxable fuel, such as butane, was by definition excluded from the definition of alternative fuel.

There are several lessons to be learned from this case. First, as pointed out at the beginning of this post, tax practice is more than dealing with numbers. Second, as I’ve pointed out many times, those who practice tax end up dealing with everything in life, not just meal exclusions, medical expense deductions, and similar transactions, but also the definition of fuels. Third, though law students think accounting majors “have the edge for grades” in the basic federal income tax course, they don’t, but perhaps when it comes to the alternative fuel credit chemistry majors would have an advantage but for the fact that no basic federal income tax course of which I’m aware covers these taxes (not only because it is a complex and specialized area but also because it involves an excise tax). Fourth, to no one’s surprise, once again we are blessed with an example of inadequate statutory drafting by the Congress, reinforced by the fact that after the years in issue in the case Congress amended the statute to provide that a mixture of gasoline and butane is not an alternative fuel.