MauledAgain

Although not every instance of debt cancellation is a serendipity, many are, and thus I deal with this issue as the last of those in the “Serendipities” batch. As the years have passed, the amount of time I set aside for this topic has dwindled. If it gets 10 minutes, it’s getting a lot. I direct the students to read material and do some more focused self-learning. In class, I make certain that they have the big picture and understand how the issues relate to materials already studied. For example, I ask them to identify the tax provision that applies when a relative forgives a debt in honor of the debtor’s birthday.

It’s not that I consider the topic unimportant. If it were, I’d omit it entirely. It’s simply a matter of insufficient time. There are 42 50-minute classes available, and there are dozens of topics. Something must be omitted or curtailed. Why is cancellation of indebtedness among those so treated? Every teaching lesson that the topic provides is encountered elsewhere. Technical definitions and cross-references are explored in the prize exception. The significance and insignificance of labels popped up in bequests, devises, and inheritances. The question, “What is it, really?” permeated gifts, scholarships, and several other topics.

So long as the students pick up the overview of the applicable principles, and acquire an understanding of what insolvency means, I’m satisfied that they have enough on which to build additional learning in the area if they take themselves in that direction. By this point in the semester, it is time that they begin sharpening their self-study skills, because that is something they’ll need to be doing throughout their legal careers.

Next: Got a Job?

There are a variety of interesting tax issues implicit in the tax treatment of scholarships. I include them in the “Serendipities” batch even though scholarships are not wholly serendipitous, because there is a serendipitous flavor to many of them. I begin by asking the class how many of them have been scholarship recipients. The response usually ranges from 40 to 70 percent. I see a few apprehensive faces, because by now some students have started becoming accustomed to the “it’s not what you would have thought” aspect of tax law principles.

The rules themselves aren’t particularly complicated. There are two reasons for including the topic, aside from student interest in something that rings close to home for most of them.

One reason involves Congressional omission and IRS response to it. The statute excludes qualified scholarships from gross income, and defines qualified scholarships by reference to candidates for degrees. So what happens to scholarships received by elementary and secondary school students? The IRS, in regulations, makes elementary and secondary school students eligible for the exclusion. It’s a good opportunity to show the students why regulations are so important, and to let them see how sloppy legislative drafting can be.

Another reason is a juxtaposition of statutory language with tax policy. Specifically, I ask students to consider the tax treatment of athletic and similar scholarships. The black letter law states that any portion of a scholarship received for performing services is not excluded, but is included in gross income as compensation. Are college athletes being paid for services? If they quit the team, and lose the scholarship, what does that tell us? Sometimes there are one or several former college athletes in the class. Once there was a student who was still playing for the undergraduate soccer team because she had a year of eligibility remaining. Is it any surprise that the level of participation picks up and some intensity is detected?

Next: You’re off the hook for money you owe

Continuing with serendipitous transactions, I devote about half of a 50-minute class to the tax consequences of receiving a prize or award. Almost every time I teach the course I can look to mainstream media for one or more stories in the national spotlight involving people who received gifts and then encountered unhappy tax news. In recent years, Oprah Winfrey seems to have taken the lead in these sorts of stories. So it’s easy to get the students’ attention, especially when they have formed emotional reactions to the tax consequences.

The general rule is simple. The value of prizes and awards received by a taxpayer is included in gross income. Is this fair? That question often pops up during class. The opportunity to explore the cost of exclusion, namely, higher taxes for others, and to examine tax policy issues such as base broadening, complexity due to special rules, and the concept of ability to pay, surfaces here.

There are two major exceptions to the general rule, and I choose to focus on one of them. I do so because it is a very complex definition-based arrangement that provides the first chance to show students how a flow chart is infinitely better for review and assimilation purposes than is the traditional “Harvard” outline that tries to impose on the material a hierarchical structure based on I, A, 1, a, etc.

The exception is, of course, nonsense, considering that at best a taxpayer can exclude no more than $400, and in some instances, $1,600, from gross income. The tax savings is probably less than what a professional would charge to research and explain the issue. The provision is a marvelous example of the power of lobbies, for there is no other explanation for the existence of this exception.

The analysis of the exception is highly technical, and requires a good grasp of simple logic in order to parse the parenthetical phrases and the either/or constructs. The applicable subsection cross-references a subsection in another Code section, which itself is modified by paragraphs not cross-referenced by the latter subsection. This is the first time students see a complex cros-reference array, which is another reason I include this provision in course coverage.

Next: What about that scholarship?

After using the gross income exclusion applicable to gifts to introduce the students to the notion that a simple rule doesn’t necessarily answer a simple question, I turn their attention to things similar to gifts, namely, bequests, devises, and inheritances. Again, the principle is simple. Bequests, devises, and inheritances are excluded from gross income. This time, the challenge is identifying things labeled as bequests or devises that are in fact something else. Students learn that putting a label on something doesn’t make it so.

For example, we explore the tax treatment of bequests made to a person who has performed services in anticipation of being included in the decedent’s will. Is it truly a bequest? Or is it disguised compensation? The students meet the substance over form doctrine in a transactional setting that they can understand. They also reinforce the sense that they should have acquired during their first year of the importance of procedure, after examining a case in which the outcome turned on the basis for a lawsuit against a decedent who failed to fulfill a promise to leave property to the plaintiff.

Somewhere in this topic students should be learning the lesson that precision matters. Students who enjoy theory and concepts more than critical analysis often begin to simmer with annoyance as they focus on this topic.

Next: You win! Now what?

Surely there’s no one right way to sequence the various income exclusion and inclusion provisions in the Code, or those that one selects to cover in a course. There’s no one correct group of such provisions to cover. At best, there is one wrong sequence. It is pedagogically silly to cover the provisions in the order they appear in the Code. The other caveat is that no one tries to cover all of the inclusion and exclusion provisions, not only because there is insufficient time, but also because some of the provisions are obscure and, yes, even boring.

I begin with the income tax treatment of gifts, and I mix in some basic principles relevant to the federal gift tax. Why gifts? There are three reasons. First, students are familiar with gifts. Second, the black letter law is fairly simple. Third, there is a fine line between the serendipity of finding property and the serendipity of some gifts. In fact, the first group of specific gross income provisions that I cover fit together into a cluster that I call “Serendipities.”

If students were not yet having fun and being disabused of the notion that tax is “just some mechanical rules” when they met grab bags, some of the holdouts come aboard when they meet gifts. The rule is simple. The value of a gift received by a person is excluded from gross income. The obvious question? “What’s a gift?” It’s not that easy of a question to answer, is it? I pepper the students with questions that make them lift their eyebrows. “Someone takes you to dinner. Gift?” When most of them, as expected, reply affirmatively, I add, “What if they were trying to warm you up to buying their product?” and then I ask, “What if the person takes you to dinner as part of an effort to persuade you to be very friendly later in the evening?” If they’ve read the Harris case as they should have, they know where this line of questioning will go. Sorry, readers, but the full discussion is a class experience and I’ll leave it there. If nothing else, whatever latent cynicism is lurking within the students is fed by the realization that most gifts are not strings-free, though some are, but in numbers far fewer than the students originally thought.

Next: ever inherit something?

When it is time to turn to analysis of substantive federal income tax law, almost every teacher, if not all of us, begins with gross income. It’s a logical choice. It makes little or no sense to discuss deductions or credits, particularly because many deductions and credits are “tied” to specific items of gross income.

Although there are a variety of specific gross income inclusion and exclusion provisions, learning about gross income requires a student to understand what gross income is. The specific inclusion provisions are elaborations of a general rule, just as the specific exclusion provisions are exceptions to that general rule. The general rule is simple enough: gross income includes income from whatever source derived.

So the door is open to fans of the quasi-socratic teaching method. One turns to the class and asks, “What is income?” Students working with old outlines, commercial study guides, or similar materials might come back with something like this: “Income is any clearly realized accession to economic wealth.” In a bar review course, it’s not unusual for the instructor to recite that rule and then proceed to the next topic. In a law school classroom, however, the point is not to learn the rule but to understand what it means. So I begin with a series of hypotheticals that lead up to the fact pattern in the first gross income case that I have them read. Included among the fact patterns: finding property, paying $1 for a grab-bag and finding a $20 bill in it, paying $1 for a grab-bag and finding a jewel in it, buying something on sale, buying an old painting and finding an original copy of the Declaration of Independence behind the backing (a real life situation proving we don’t invent these questions, and adding a bit more fun to the course), buying a piano and finding cash in it (that’s the case), and buying a piano and discovering that it’s worth far more than what was paid (that’s a question presented by the authors of the book assigned for the course).

The answers to all of these hypotheticals differ. To understand a phrase such as “clearly realized,” students try to find rules that define every situation. I try to get them to think through the rationale for each of the answers so that they could resolve the next situation, one that has not yet been encountered. In many respects this is not unlike the first-year experience of examining some appellate opinions and then trying to resolve a situation that would be factually between two groups of cases. The difference is that for many of the gross income questions, there is no authority. In law practice, it is not unusual for there to be no authority, or no definitive authority. Perhaps there is a split among the courts. Resolving these sorts of situations is one of the things lawyers are paid to do, and it’s no less a challenge in tax than in other areas of the law. Thus, by this point I have demonstrated to the students the fallacy of the assertion that tax is simply a bunch of mechanically-applied rules and thus “really isn’t law,” a belief shared not only by some la students but also by a few law faculty.

I budget one 50-minute class session for this topic. Often it consumes more time. Why? Students ask all sorts of questions. For some of them, their insistence on receiving rules is beginning to weaken. The rule is nowhere as much fun as is arguing about whether it makes sense to tax grab-bag purchasers under the different circumstances. Yes, there is a method to the madness. But it’s now time to examine selected specific gross income exclusion and inclusion provisions.

Next: Ever get a gift?

It is difficult for students to appreciate the context in which cases, rulings, and other tax law sources are developed without understanding the process by which tax disputes arise and are resolved. Very early in my teaching of the course, a student raised his hand and asked, “So how does the IRS know what someone’s income and deductions are?” In addition to responding at that moment to the question, I also reacted by inserting a very compressed overview of tax procedure at this point in the course.

It usually requires about one and a half 50-minute class sessions to describe the self-compliance nature of the federal income tax, return filing, information reporting, audits, appeals, and tax litigation. The material on audits includes the various ways audits are triggered. It is at this point some students begin to think of tax as having at least some element of fun. Looking at audits triggered by informants, or perhaps busybodies, gets the students’ attention. Sometimes I wonder if they’re thinking of people they know who might be under-reporting or worse, but I don’t ask.

Not asking is one of the disadvantages of how the first week of the course is structured. The students are asked very few “clicker” questions. The ones I ask are for my benefit, though the results are of much interest to the students when the summaries appear on the projection screen. For example, I ask how many have prepared their own return, and how many have looked at a return prepared for them by someone else. The latter question sparks a discussion that fits well with analysis of the self-compliance concept.

But the slow transition into the substantive portion of the course now ends. Sporadic clicker questions are about to evolve into a blizzard of them.

Next: So what is gross income?

One of the important questions faced by someone teaching the basic tax course is how to introduce students to the many sources of tax law. Most students, especially second-year students, arrive in the course with an extensive familiarity with appellate opinions. Some third-year students arrive with an understanding of statutes, and most third-year students have dealt with the Constitution. A few students may have been introduced to administrative materials.

In an ideal world, students arriving in the basic tax course would be familiar not only with the Constitution and appellate opinions, but also statutes, committee reports, other legislative history, regulations, administrative rulings, other administrative materials, trial court opinions, and secondary materials. That is not, however, how first-year law school classes are conducted in most instances. Some years ago, Villanova experimented with a “sources of law” course in which the emphasis was on where the law was sourced rather than what the law was. In part because the course differed from the other first-year courses and in part because students have such a “tell me what the rules are so I can recite them back” mentality, students rebelled, and the faculty caved.

Thus, those of us teaching the basic tax course need to orient our students in some way so that they can read and understand the many materials that the meet in the course and that are not appellate opinions. In fact, appellate opinions constitute a small part of the course.

There are two general approaches to the problem. One is to stop each time a new type of material or source of law is encountered and to explain its significance, how it fits into the overall source of law picture, and how it is to be interpreted. The other is to present a “nutshell” source of law explanation at the beginning of the course.

I opt for the second approach. I have several reasons. I find it distracting to interrupt substantive analysis in order to bring students up-to-speed on a source of law point. They, too, find it distracting, and it interferes with their focus on the substantive point. Worse, the sequence in which new types of legal sources are encountered in the course isn’t a sequence best suited to picturing how the various sources of law fit together. This sort of haphazard introduction to sources of law is counter-productive.

So I invest about a 50-minute class, sometimes more, taking the students through the significance to tax law of the Constitution, the Internal Revenue Code of 1986, earlier Codes, Revenue Acts, amending acts, committee reports, Joint Committee Explanations, legislative regulations, interpretative regulations, temporary regulations, proposed regulations, revenue rulings, revenue procedures, PLRs, TAMs, the existence of other administrative issuances, Tax Court regular opinions, memorandum opinions, and summary opinions, appellate opinions, and secondary sources. Once upon a time I spent time on a “primer on tax research,” but because Congress added provisions and made others more complicated, I removed the tax research primer from class-time coverage and left it to the students to read for themselves. Sometimes I have one very short exam question designed to see if the student read the material. Missing the question does not preclude a high grade, but when a student who earned less than an A questions his or her grade and becomes argumentative, demanding, or entreating, I look to that student’s performance on this question, and several others, to help me analyze why the student did not earn an A, and to assist me in explaining why sympathy is not forthcoming from me.

Next: how does the tax process work?

Today I begin a series describing how and why I have structured the basic tax course that I teach in the way that I do. This is Part I because I intend for there to be more. If something dramatic happens in the tax world, or if there is something else on which I need to opine that strikes me as more important, I will interrupt this series and then resume. The usual Monday-Wednesday-Friday academic year blogging schedule to which I usually adhere will change, by dint of circumstances, into an irregular one. More on that later.

Early in my teaching of the basic tax course, the name of which has changed several times, I realized that much grief for students and aggravation for myself could be prevented if I presented to the class, at the outset, a definitive description of what the course involved, what I expected of them, why their anxieties about the material reflected the common misunderstanding that tax law is all about math and numbers, and the general information applicable to the course. I try to do this in half of a 50-minute class, but sometimes it takes 30 or 35 minutes.

Then I turn my attention to an overview of the course. Just as it is important for an attorney making an oral argument to present a “road map” to the court at the outset, as stressed by those teaching appellate advocacy courses, so, too, it is important for a teacher to outline the direction in which the course will go. Appellate advocates need to teach judges, and so it makes sense that they pattern their approach on solid educational principles. Teachers who adhere to this principle let students know where the course is going. It is a rare instance when it makes sense to have no plan or to hide the plan.

I present the overview not by rattling through a set of condensed rules, but by showing the students a sample tax return of a first-year law firm associate. I do this for three reasons. First, it illustrates the overall structure of the income tax, namely, determine gross income, determine deductions, compute adjusted gross income and taxable income, look up the tax, and apply credits to generate a tax due or a refund. Second, it is something to which the students can relate. It’s not some abstract conceptual person engaged in a transaction that the students probably have never encountered. Third, it awakens in the students an appreciation for the impact of taxation. Believe it or not, there are some students who are shocked that a person earning a salary of $90,000 doesn’t take home $90,000 to spend as they wish. Speaking of shock, when I hear the audible gasps of surprise I know I have identified the students who did not do some or all of the assigned reading, because I make the illustration available as part of the class materials and direct them to read it before class.

Although most of the emphasis in the course is on federal income taxation, I take the opportunity presented by the illustration to toss in state income taxation, using Pennsylvania because that’s where we are, and federal insurance contributions act taxation (social security, to use the common terminology), to get across to students that there’s much more to taxation than the federal income tax. At one time I also tossed in the Philadelphia wage tax, but dropped that a few years ago because it was getting too complicated, and thus distracting. That decision fit well with the decreasing number of students taking their first job in Philadelphia.

Next:: where do we find tax law?

A recent Law School Survey of Student Engagement turned up some interesting data.

When asked if they had participated in a clinical or pro bono project as part of a course or for academic credit, 72% responded that they had not. That means barely more than one-quarter of law students have experienced law in settings most similar to law practice. It's no surprise that I would like to see clincal experiences mandatory and law schools enlarge their clinical programs so that all students can be given the opportunity to discover what law practice involves. Aside from preparing students intellectually and practically, it would dispel the media-based perception of law practice that falls apart when law school graduates enter law firms and discover that law practice isn't what television and movies portray it to be.

It's not that the students don't want the experiences. The survey indicates that almost all first-year students plan on spending time in pro bono work and clinical experiences, but that by the second and third year many have not. That suggests lack of opportunity rather than lack of desire. Although I'm no fan of the "law student as consumer" approach to legal education, this is one instance where the students have the right intention, and law schools need to accommodate student demand for these practice world experiences. If it means hiring faculty other than philosophers and "scholars," so be it. There's nothing wrong with a healthy balance and mixture of strengths among a law faculty.

Another result troubles me. According to the survey, "The typical student spends 15-16 hours per week reading assigned material for class. Six hours per week are devoted to unassigned preparation (e.g. studying, writing, other academic preparation)." I tell my students, as I was told, that for each hour of class they need to invest 2 to 4 hours outside of class, preparing and assimilating. If the typical student is investing 21 to 22 hours per week in out-of-class effort, and if the typical student is enrolled in 14 to 15 credit hours in order to meet the typical 85-90 credit hour graduation requirement, the typical student is falling short by 7 to 39 hours per week when it comes to out-of-class effort. The best students can invest an hour of preparation for an hour of class, but many students need one and half to twice that. The survey's typical student does not appear to be doing what is required. Where the effort appears to fall way short is in the assimilation process. Too many students yield to the temptation to use a prior year outline (perhaps gambling that's it's not out-of-date), a nutshell, a commercial product, or some other "short cut" to learning "what the law is." Too many students don't seem to get the message that reading and knowing the "rules" applicable to bicycle riding do not prepare a person to ride a bicycle, that watching a person ride a bicycle is not enough, and that there is no substitute for getting on the bicycle and pedaling. In other words, the process of creating the outline, chart, or other work product is what exercises the brain; the resulting product has far less value. Well-designed examinations can distinguish between students who memorize and students who analyze, but poorly designed examinations reward memorization skills and not much else, thus encouraging the insufficient assimilation investment that the survey suggests and that my observations confirm.

Here's something of a surprise. Despite all the griping and complaining, the survey reports that "Eighty-two percent of all students rated their law school experience 'good' or 'excellent.'" and that "Only 3% said their experience was 'poor.'" Buttressing these conclusions, "Four in five students said they would 'probably' or 'definitely' attend the same school if they were starting over." Could it be that the unhappy twenty percent account for ninety percent of the complaints that reach faculty and administration ears? Could it be that those who are satisfied rarely say so?

Where student dissatisfaction was reported at substantial levels, the target was the placement and advising function. According to the survey, "Students were most dissatisfied ('unsatisfied' or 'very unsatisfied') with job search help (45%), career counseling (44%), personal counseling (40%) and academic advising (37%)." My guess is that student expectations for these law school services are higher than they should be. There are students who think that law schools should simply present them with a job, rather than facilitate student contact with employers. There are students who think that advisors should be giving them some sort of magic formula that will generate excellent grades and numerous offers of employment. On the other hand, there are student concerns about the employment search process that need attention, particularly with respect to the conflict between interviewing schedules and class attendance. And to some extent, academic advising would be under far less pressure if certain messages were hammered home in the classroom rather than left to students to decipher for themselves.

Anyone interested in law school education should take the few minutes required to read the survey analysis. I can't see any reason why law students, law faculty, and practitioners, including judges, should not read about themselves, those whom they are teaching, and those whom they are about to hire.

The headline, County Judge Rules Pa. Assessment Law Unconstitutional is enough to get any tax practitioner's or tax law professor's interest. It isn't very often that a tax law provision is adjudged violative of a constitution. So when it happens, it's news. Of course, this particular decision surely will be appealed, so it's not unlike watching a lead-gaining homerun in the bottom of the seventh inning. It's too soon to call it a game winner.

At the root of the problem is the manner in which real property is assessed a value for purposes of the real property tax. In theory, the tax applies to the value of the property. The computation is simple. Multiply a value by a rate. The difficulty, as I often tell my students about law generally, is when a simple legal rule is subjected to the challenge of factual determinations. The value of the property is a fact. Someone must determine that fact. In theory, the valuation assessment would be done on the day that the tax is assessed. But in practice, that would require the localities to hire, collectively, tens of thousands of assessors. Instead, the valuation that is used depends on which of six separate state laws applies to the particular county in question. In some counties, the assessors simply revalue property when it is sold. So some properties were last assessed a short time ago, and others haven't been assessed for years, meaning that two properties of substantially identical value, next door to each other, could be assessed at very different amounts because one property was sold during the past year or two and the other has been owned by the same person for several decades. In some counties, assessments of real property must be conducted every three years. There are counties that last did assessments in the 1950s. In some counties, the legislature permits counties to use a base year for valuation rather than valuing at current value.

In Allegheny County, the county council decided to set assessments based on values in the year 2002. That created another problem. People living in areas with skyrocketing prices pay taxes that are a lower percentage of the property's actual value than do people who live in areas with declining or stagnating values. What the county was doing, according to the plaintiffs, amounted to an impermissible assessment freeze. The county's justification for selecting 2002 was that assessing properties using a later year as the base year would generate tax increases for people who had purchased properties since 2002.

Pennsylvania's Constitution has a uniformity clause. It requires taxes to be imposed in a uniform manner. That is why it would be unconstitutional to make people whose names begin with vowels to pay sales tax at a higher rate than do other people. And that is why there is a problem if properties are assessed at values that do not reflect the same timing, manner, and process of valuation. So a judge in Allegheny county, in Clifton v. Allegheny Co., held that the base year law violates the uniformity clause. The judge determined that using a base year generates "arbitrary, unjust, and unreasonably discriminatory results." He also decided that in most instances, it "produced substantial levels of inequality in the ratio of assessed values to market values that could be significantly reduced through periodic reassessments." The judge ordered the county to do full reassessments in 2008 and 2009, and that part of his decision has stirred up even more controversy, because the county claims the judge lacks jurisdiction to issue such an order.

An example of the absurd results caused by the system being used in many Pennsylvania counties is mapped out nicely in The Great Pennsylvania Property Tax Calamity. How can a home with 8 rooms, 4 of them bedrooms and 3 of them baths, having 3,427 square feet of living space, sitting on 1.02 acres of land, and purchased in 1986 for $315,000, be assessed at $347,300, while another property, with 10 rooms, 5 of them bedrooms and 4 of them baths, having 5,594 square feet of living space, sitting on 9.6 acres of land, and purchased in 1940 for $1,350,000 be assessed at $293,400?

One of the attorneys representing plaintiffs in the Allegheny County litigation, stated, "By all objective measuring points, this is an unfair system." A legislator chimed in, describing the system as "s unfair and difficult to manage." The county objects to annual assessments because the cost of making the assessments and the cost of handling the inevitable appeals would be prohibitive.

The issue is one that must be tackled by the legislature. If the situation is a mess now, imagine what happens when judges in 67 different counties come to grips with the challenges certain to arise in the wake of the Allegheny County decision. The problem is a statewide question, and needs to be addressed in a sensible, methodical manner. Perhaps the difficulty of determining the current value of properties will be the straw that breaks the real property tax back, although it might make more sense to perceive it as a sledgehammer.

Anyone interested in this issue must read the Clifton opinion. It's long. Ninety-four pages long. But it's as good an education as one will get on the question. Hopefully every member of the Pennsylvania legislature will read it.

Paul Caron's highlighting of Scott Jaschik's article in Inside Higher Ed, "Could RateMyProfessors.com Be Right?" enticed me to visit Rate My Professors. Jaschik commented on a study by Theodore Coladarci and Irv Kornfield of the University of Maine,"RateMyProfessors.com versus formal in-class student evaluations of teaching" in Practical Research, Assessment and Evaluation.

Wow, there are all of four ratings for me at RateMyProfessors.com. Here's what I find totally amusing. It's one of the reasons I put high value on an individual evaluation's quality comments and so little value on the overall results. Consider two of the four comments. One persons claims that I am "sarcastic, lacks clarity of thought, wholly ineffective" while another assets that I am "One of the clearest professors I have ever had. I wish more professors would adopt his homework and testing style."

This "night and day" reaction to my teaching is not uncommon. Does one set of opinions have more value than another? I think so.

Far more of the evaluations on the school's "official" evaluations (numbering far more than a statistically insignificant four) reflect, if not happiness and enthusiasm, at least grudging acceptance of what's going on, than do the folks whose frustrations with law study erupt in a demanding tax course. On the school's official Graduate Tax Program evaluations we ask students to disclose how many hours each week they invested in preparation for the course and assimilation of the course work. Most replies, I think, are honest, but they are disappointing. Few students devote the suggested 6 to 8 hours per week that a course like Partnership Taxation demands. Isn't there some reason to put a higher value on the opinions of students who were involved in the course at the depth required by it?

Another indicator of an evaluation's quality can be found in the content of the comments. Currently in first place is a recent evaluation comment by a student highly critical of my teaching because my teaching did not accommodate students who came to class unprepared. Sorry, but there's no reason to bore prepared students with some sort of CLE-type lecture for the benefit of someone who did not prepare. Yes, I understand that there are times when client problems or other difficulties prevent preparation the night before class, but isn't it wise to prepare a few days ahead of time so that if something happens the night before class it isn't as catastrophic?

Ultimately, evaluations come down to opinions that reflect all sorts of reactions and not simply precise analytical evaluation of a course and the professor's teaching. I've had students criticize me for not having a syllabus. Yes, there is one, and I don't know why evaluations ask that question because it can be answered without disturbing every student with the question. How much value should be placed on the "opinion" of someone who sat through a course with a very detailed syllabus and who claims there is no syllabus? RateMyProfessors.com has a "hotness" index. Sorry, but of what relevance is that factor? Considering that RateMyProfessors.com is focused primarily on undergraduate teaching, it's not surprising that it enables such characterizations. To their credit, Coladarci and Kornfield have little regard for the chili peppers of RateMyProfessors.com.

Fortunately, there are students who take evaluations seriously, who don't worry about the professor's wardrobe or tie selection, and who make useful comments. Some of the things I do in class or in preparing for class came about because a student made a comment that made sense and that opened the door to an improvement in my teaching.

I'm not surprised Coladarci and Kornfield found a positive correlation between student comments on school-administered evaluations and RateMyProfessor.com evaluations. They are the same students and are likely to say the same thing each time they are asked to provide their reaction to a course or a professor. If Coladarci and Kornfield are looking for a correlation study, I'd suggest an examination of the seeming correlation I notice between the students who make helpful suggestions and those who take their educational responsibilities seriously; both require the investment of time, critical analysis, and deep thinking. Unfortunately, the evaluation processes at most schools and the one at RateMyProfessors.com give equal weight to the careful analyses of serious students and the emotion-laden reactions of students who aren't as dedicated to their academic endeavors.

The proposal by Coladarci and Kornfield that universities put the results of their evaluations on-line is troubling. Many universities make evaluation results, if not the comments, available to their students. That makes sense. Students at University A can benefit from knowing what other students at University A have said about a course or a professor, assuming that what has been said reflects careful thinking and that the students looking at the results have the ability to separate useful from groundless comments. But what's the point of making the information available to students at University B or people living in country Z? Years ago, several of my colleagues posted some evaluation comments outside their office door, principally because the comments were downright funny or frighteningly indicative of student intellectual nondevelopment. The administration reacted by suggesting very strongly that the practice be stopped. Why? There was a concern that students would be writing comments in an effort to "make the wall posting" rather than to provide genuine reactions. Whether that would have happened is a question to which I have no answer. But it was possible, and that was enough.

Personally, I prefer peer evaluation of teaching, even though several of my colleagues think my course problems, class hypotheticals, and semester exercises are "too hard." Perhaps I should prefer evaluation by practitioners and judges, because most of them tell me I'm being too easy on my students. Considering they're the ones that the students ultimately need to impress, it may be worth looking more closely at their reactions. Their opinions are opinions I value.

When I teach the depreciation and asset expensing deductions in the basic federal income tax course, I purposefully do more than discuss the concept and theory of depreciation. I show the students some fairly simple computations, for several reasons. One is that by seeing the actual numbers students can see the actual impact of the acceleration feature of MACRS, the front-loading effect of section 179, and the difference in results when the straight-line method is used. Another reason is to give students an appreciation for how legal rules reflecting theoretical principles are applied to real-life practice-world facts. Yet another reason is to show students the dynamic nature of the tax law so that they grasp more fully the notion that law, and tax law in particular, is not a static set of rules but an ever-changing array of principles that present more than enough opportunities for mistakes to be made.

When I turn to section 179, I have yet another goal in mind. I want students to see the application of inflation-based adjustments. Doing planning and compliance work without an understanding of how changes in dollar amounts, or the lack of changes in dollar amounts, matters can doom a practitioner to an unpleasant malpractice experience. Waiting until the turn of the year to execute a transaction may or may not make sense, and determining whether it does requires a sense of how the “playing field” can change.

I don’t play games with the students when I teach depreciation and asset expensing deductions. A fair-sized chunk of the topic consists of presentation rather than demands that the students solve problems and answer questions.

So, for example, when I reach section 179, there comes a time to explain the two limitations. One is the absolute dollar amount limitation, in contrast to the other, which is the taxable income limitation. The slide, as it exists at the moment, says this (without the color, font change, and other visual attributes):

The first is an absolute dollar limitation.
1. For 2003 through 2009, that limit is $100,000. §179(b)(1).
It has increased in stages: $20,000 for 2000, $24,000 for
2001, $24,000 for 2002. Don’t get tricked by references
to the 1999 $19,000 limit or to earlier limits.
1996, 2003, 2004, and 2006 legislation amended §179.
2. This amount is REDUCED by the excess of the cost of
§179 property placed in service for the year over
$400,000. §179(b)(2). (For years before 2003 and years
after 2009, $200,000 is used instead of $400,000.)
3. For 2004 -- 2009 these amounts adjusted for inflation.
For 2006, $100,000 is $108,000, $400,000 is $430,000.

Now I must change the slide. I also need to change my class notes, the examples, and the problem solutions. I also need to change the problems because I try to keep the computations and examples limited to round numbers.

Why do I need to change the slide, the examples, my class notes, the problem solutions, and probably some other things I’m not recalling at the moment?

The reason is Public Law 110-28. It’s called the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, though people are calling it the Iraq Appropriations Act. Buried in it is the Small Business and Work Opportunity Tax Act of 2007. Isn’t it absurd how Congress puts Acts within Acts? I suppose it’s some sort of Russian doll syndrome.

The text of the act can be obtained by going to the Library of Congress Thomas web site and selecting 110-28 under Public Law. The site’s search mechanism works in such a way that the URL showing up when I searched won’t work.

Of particular interest is section 8212 of the Act:

SEC. 8212. EXTENSION AND INCREASE OF EXPENSING FOR SMALL BUSINESS.
(a) EXTENSION- Subsections (b)(1), (b)(2), (b)(5), (c)(2), and (d)(1)(A)(ii) of section 179 (relating to election to expense certain depreciable business assets) are each amended by striking `2010' and inserting `2011'.
(b) INCREASE IN LIMITATIONS- Subsection (b) of section 179 is amended--
(1) by striking `$100,000 in the case of taxable years beginning after 2002' in paragraph (1) and inserting `$125,000 in the case of taxable years beginning after 2006', and
(2) by striking `$400,000 in the case of taxable years beginning after 2002' in paragraph (2) and inserting `$500,000 in the case of taxable years beginning after 2006'.
(c) INFLATION ADJUSTMENT- Subparagraph (A) of section 179(b)(5) is amended--
(1) by striking `2003' and inserting `2007',
(2) by striking `$100,000 and $400,000' and inserting `$125,000 and $500,000', and
(3) by striking `2002' in clause (ii) and inserting `2006'.
(d) EFFECTIVE DATE- The amendments made by this section shall apply to taxable years beginning after December 31, 2006.

In other words, the numbers have changed yet again.

What disturbs me isn’t so much the additional work that the Congress has created for me, or even the additional aggravation for students and practitioners. It’s my inability to understand the point of making the change. There standard justification for the long parade of increases in the section 179 limitation is that the increase will encourage businesses to make equipment purchases that they otherwise would not make, thus boosting the economy. That explanation seems plausible, at least on its face, but I cannot imagine that more than a few people will run out and spend an additional $25,000 on equipment because they’ll save $8,000 in taxes. Where will they get the net cost of $17,000? My guess is that they would cut back spending in some other area, thus causing a negligible impact on the economy generally, though perhaps boosting one segment at the expense of another.

Here’s what I think happens. Businesses that have already spent, or plan to spend more than $100,000 but less than $400,000 on new equipment, get a windfall. Suddenly, they benefit from as much as an $8,000 tax decrease. Yes, this stimulates the economy because it gives them $8,000 to spend. But at the same time, others will be paying additional taxes because this most recent bill allegedly is revenue neutral.

Here’s one of the revenue offset provisions:

SEC. 8241. INCREASE IN AGE OF CHILDREN WHOSE UNEARNED INCOME IS TAXED AS IF PARENT'S INCOME.
(a) IN GENERAL- Subparagraph (A) of section 1(g)(2) (relating to child to whom subsection applies) is amended to read as follows:
`(A) such child--
`(i) has not attained age 18 before the close of the taxable year, or
`(ii)(I) has attained age 18 before the close of the taxable year and meets the age requirements of section 152(c)(3) (determined without regard to subparagraph (B) thereof), and
`(II) whose earned income (as defined in section 911(d)(2)) for such taxable year does not exceed one-half of the amount of the individual's support (within the meaning of section 152(c)(1)(D) after the application of section 152(f)(5) (without regard to subparagraph (A) thereof)) for such taxable year,'.
(b) CONFORMING AMENDMENT- Subsection (g) of section 1 is amended by striking `MINOR' in the heading thereof.
(c) EFFECTIVE DATE- The amendment made by this section shall apply to taxable years beginning after the date of the enactment of this Act.

Fun, isn’t it? The upshot is that more children will have their taxable income taxed at their parents’ rates. Added to that group are children between the ages of 18 and 19, and children between the ages of 19 and 24 who are students, provided that their earned income does not generate more than one-half of their support.

So, put simply, the tax burden on some taxpayers, age 18 through 24, will be increased so that some businesses can get tax reduction windfalls from equipment purchases they would have made in any event. Interesting, isn’t it? Yet more is being put on the backs of teenagers and those barely out of their teens.

Anyone want to guess how much of the $8,000 windfall sustained by a business will be used to create a job for a student trying to work his or her way through college?

I thought so.

OK, I confess. It's nice to get attention. More particularly, it's nice to see my work getting attention.

So here's an incomplete list of articles and commentary that comment about what I'm doing on MauledAgain:

Scott McLeod, "Professors Who Blog"

Blawg Review, "Best Law Professor Blog"

Warren Rojas, "Tax Bloggers Use Internet To Widen Tax Policy Appeal"

Lubna Kably, "Piercing the Glass Ceiling"

Andrew Blackman, "Blog Watch"

Getting To Know You Tuesday: James Maule from Tax Girl

Last evening I googled MauledAgain. Up pops "Results 1 - 100 of about 22,000 for "mauledagain". (0.14 seconds)." That's encouraging. However, I just don't have the time to visit all 22,000 web pages that link to MauledAgain. Several entries on the google results list caught my eye. What were they saying at Biker Law Blog? Turns out that my most recent Memorial Day post was quoted and drew this comment: "This is a good read that puts Memorial Day 2007 into prospective." That's what I was trying to do. Over at Kaedrin Weblog I found this fascinating comment: "One wouldn't think in-depth discussions of tax law would be that interesting, but James Edward Maule manages to do so about as well as one could expect. I honestly don't remember how I found this one, but I'm glad I did." It reminds me of all the students who enter the basic tax course saddled with anxiety and expectations of boredom and who emerge with the same sense of wonder that tax is far from boring and, with due effort, can be understood to some extent.

The "Right on, JEM" comment at Wandering Tax Pro in response to my commentary on How Political Blackmail Enhances Tax Law Complexity took me back several decades to a time when I heard that phrase far more often than I do today. The accompanying notes alerted me that I need to google Mauled Again as two words, though that search phrase also will generate all sorts of material not connected with the blog. A google search for "mauled again" brought 67,200 hits, but when I added "maule or blog" to the search, it dropped to 55! Adding "villanova or law or maule or blog" brought it up to 86. But not all were related to my blog. One, for example, involved someone named Jim who was "mauled again." Not guilty.

J.D. Hull of What About Clients tossed some praise my way that would have been unheard of several decades ago: "Blawg Review #53: Jim Maule, Tax Day and Taxation as Pervasive. Blawg Review #53 by Villanova Professor James Edward Maule at MauledAgain is further support for my relatively new but ever-strengthening theory that tax lawyers after all really are creative--and have both depth and breadth, big personalities and writing ability as well." There's no surprise in the big personality and writing ability, I suppose, but creative? That was never a strong point back in my K-12 days. I guess we do change. I've surely had enough time! If "creative" is heartening, the folks at the Wills, Trusts & Estates Prof Blog called MauledAgain "wonderful." That's a word I don't hear very often. Thanks.

The web-like nature of the Internet became even more evident when I looked at the web pages that linked to MauledAgain with or without commentary. There's a reason it's called World Wide Web. For example, over at Musings - You and Yours Blawg, Deirdre R. Wheatley-Liss, Esq. credits MauledAgain with making her aware of A Taxonomy of Legal Blogs.

Sometimes, though, it gets a bit strange. Over at Alexa, the site information for MauledAgain declares that I rank 5,708,484. Had I done that well in Law School perhaps I would have won an award. But the fun part is this note: "People who visit this page also visit: The Tax Guru, ADG Productions, Accordion Links." No suprise with Tax Guru, considering I link to Kerry Kerstetter's blog. But second and third place toADG Productions and Accordion Links. Accordion Links? The former describes itself as "Music Education Into The New Millennium" and the Latter as "A Huge List of Accordion Websites." Yes, I'm into music, though I've rarely blogged much about music, and, no, I don't play the accordion and have discussed accordions on MauledAgain. But, well, if all the musicians and accordion players in the world visit MauledAgain, perhaps the blog will move up to position 5,708,483.

Senator Clinton gave a speech today. It's a long one, but surely I am not one to criticize on that score. She covered a wide swath of problems and policies, but it's her tax commentary that interests me. Thanks to Paul Caron of TaxProf Blog for the heads up.

Senator Clinton: "I'm going to work to level the playing field and reduce the special breaks for big corporations."

Me: Which special breaks, Senator? Tax-free reorganizations? Exceptions to the $1,000,000 limitation on deductions for executive compensation?

Senator Clinton: "Second, let's once and for all get rid of the incentives for American companies to ship jobs and profits overseas. It is one thing for the marketplace to encourage overseas investment. It's another for our own tax code to do so....We will consider eliminating the deduction for the actual costs of moving jobs."

Me: How would this work? Deny deductions for the portion of a corporation's expenses that are somehow attributable to relocation of jobs? And, incidentally, why single out corporations? What about partnerships and sole proprietorships that outsource work? And what about the entities subject to special tax rules, such as banks and insurance companies? Do you intend to include them within the scope of "corporations"?

Senator Clinton: "Today, American companies that ship jobs overseas don't have to pay a penny in American taxes on the profits they make abroad unless they bring those profits back to the United States. And, of course, they don't bring them back because they don't want to pay taxes on them."

Me: There are those who claim that American enterprise can compete in a global marketplace only if the United States leaves foreign profits untaxed. I prefer the basic principle that income is income, and if a person or organization has income, it is taxed. If there is some reason that a special allowance ought to be made, it should be done in an up-front, transparent, nationally publicized government grant to the person or company. I wonder how many such grants would be approved, in contrast to all the hidden breaks put into the Code by stealth.

Senator Clinton: "And when the president's irresponsible tax breaks for high-income Americans expire, we will return to the income tax rates for upper- income Americans that we had in the 1990s, rates that were consistent with a balanced budget and economic growth."

Me: What do you want to do with those special low rates for capital gains? Far more tax imbalance exists with respect to the capital gains preference than with the ordinary income rate differences.

Senator Clinton: "For middle-class Americans, who haven't seen their paychecks increase, let's keep the middle-class tax cuts and reform the alternative minimum tax in order to give middle-class Americans the tax relief they deserve to have."

Me: Why not fix the regular tax so that there is no need for an AMT? Keeping the AMT means that the preferences would be retained. Why?

Senator Clinton: "let's expand and simplify the Earned Income Tax Credit so no one working full time lives in poverty."

Me: Do you have a blueprint for doing this in a manner that doesn't increase EITC fraud?

Big on theory, big on concept, big on ideas, but way, way short on details. Of course, every detail that Senator Clinton adds to her proposals probably costs her 100 votes.

And they wonder why I don't become a politician.

The other day as I was reading an article about the Ardennes Offensive, or as it is also known, the Battle of the Bulge, my attention turned to several facts to which I had not previously given much notice. In a period of slightly more than one month, U.S. military forces alone suffered more than eighty thousand casualties. On reflection, that’s not terribly surprising, considering the scale and suddenness of the German attack. What did surprise me was the shortage of replacements, a lack of sufficient personnel to replace those who had been killed, wounded, captured or who had gone missing.

As a child, when my parents, particularly my mother, would tell me about the Second World War, an experience very fresh in their memories, they spoke with a particular sense of awe when they described the Battle of the Bulge. From my conversations with them at that time and later, and from what I’ve since read, the impact on the home front was significant, because people had come to believe that the war in Europe would be over by Christmas. It was shortly before Christmas when the Ardennes Offensive triggered a serious reality check among Americans and citizens of other Allied nations. Sometimes things take longer than expected.

This summer I plan to visit the area in southern Belgium and northern Luxembourg where the battle raged. I also plan to visit Waterloo, but that wasn’t an American story. Suddenly a question popped into my mind, one of those questions I can imagine my librarian friend asking me, “So how many American battlefields have you visited?”

Good question, even if asked of myself. I suppose Valley Forge, the first American military site that I visited, doesn’t count, because it was not a place of battle. The local ones, the ones near the place where I grew up, have found me wandering about more than once. Brandywine, White Marsh, Germantown, Matson’s Ford, and Paoli are close to my hometown. I’ve been to Lexington, Concord, and Bunker Hill. I’ve been to Gettysburg and Manasses.

I have visited the Normandy Beaches, from Pointe d’Hoc to Pegasus Bridge. I have walked through the American Cemetery at Colleville Sur Mer. The number of graves is staggering. There are markers that seem to fill the space to the horizon.

The numbers, of course, represent much more than just an arithmetic figure. Whether numbers are used to compute taxes or tally casualties, they tell us only so much. One thing is obvious: without a nation the question of taxes is irrelevant, and without taxes there is no nation. Yet all the taxes in the world cannot repurchase the lives that have been lost or shattered in war.

Today, Memorial Day, is an appropriate moment to stop and reflect on the sacrifices made by many so that the life we live today, including picnics and trips to the beach, can be what it is. Close to 1,225,000 Americans have died in war, either in combat, on account of disease, in accidents, or under other circumstances. More than 1,500,000 Americans have been wounded. Almost all of them, though surely not all, were young. Many were in their late teens or barely out of their teens. Their lives were cut short, to something much shorter than the lives with which the rest of us have been blessed, whether or not we have made the most of what we have been given. Yet in those short lives these heroes and heroines have done far, far more, of much greater importance and worth, than what most of us have done with two, three, or four times as many years of life, and with 10, 20, or 50 times as much adult life. It truly is sobering. To all of those who served and serve, thank you.

Three years ago, in Taxing the Internet, I reacted to a series of proposals to "tax the Internet." Explaining that taxing the Internet is like taxing a highway, I explained that the proposals actually consisted of two ideas: "One is taxation of transactions and activities conducted on or through the internet. The other is taxation of access to the internet. Continuing with the "information superhighway" metaphor, the first is similar to taxing gasoline used by vehicles to drive on a toll road, and the second is similar to the toll charged for access to the toll road."

It's time to revisit the question. Why? Senator Enzi has introduced a bill allowing states to impose sales tax collection responsibilities on internet sellers that have no other connection with the state. Lobbying for the proposal, deceptively named the Streamlined Sales Tax Agreement, has been intensifying, orchestrated and led by state governments that somehow seem incapable of enforcing their own use taxes on their citizens. Of course, it's understandable that state politicians would prefer to put tax collection duties on merchants, considering that the alternative -- collecting the use tax -- would be too obvious to state citizens. It's also cheaper to have merchants in other states -- who have no voting rights in the state imposing the sales tax -- bear the collection burden. But is it right?

On top of this renewed effort galvanized by a perception that the new Congress is more tax friendly, state and local governments are seeking power to impose taxes on Internet access. According to this story yesterday by Declan McCullagh, one senator even predicts taxes on email. Now there's an idea that should earn someone a nomination to the high intelligence hall of fame.

The justification is amazing. Enzi claims that states are losing sales tax revenue, and thus will be compelled to raise income and property taxes. The problem with this claim is that states have no right to collect sales tax on transactions taking place outside the state. What's hurting the states is their unwillingness to do what must be done to collect use taxes. These ancient bureaucracies, some of which have only recently become familiar with the Internet and still have miles to go before their web sites are as good as they can and should be, struggle to make adjustments as the world around them changes. How easy to pass the work off to distant merchants.

The director of federal relations at the National Governors Association claimed, "The independent and sovereign authority of states to develop their own revenue systems is a basic tenet of self government and our federal system." Really? There does happen to be something called the federal Constitution, and the last time I looked at the case law state 1 has no "independent and sovereign authority" to impose a sales tax on a transaction that takes place in state 2. Whether the state 1 resident travels to state 2, phones a merchant in state 2, or contacts the merchant in state 2 through the internet, state 1 is powerless to impose any tax until the state 1 resident returns to state 1 with the item. If state 1's legislature and tax bureaucracy cannot figure out how to do that, perhaps they can resign and make room for those who do. If the fear is that state 1's residents don't want a use tax, or don't want to pay one, then state 1 needs to repeal its use tax, and even its sales tax, and enact whatever tax its residents wish to have.

The so-called Streamlined Sales Tax Agreement supposedly deals with the existence of more than 7,500 taxing jurisdictions, each with its own definitions and rules with respect to sales taxes. That prediction is nothing more than a promise. It's another of those "trust us and we will spare you the details" arrangements of which politicians are so fond.

Three years ago I set forth the principle that should apply when dealing with this issue:

when it comes to taxing transactions and activities conducted on or through the internet, or taxing access to the internet, those transactions, activities and access should be taxed no differently from the way in which transactions and activities conducted through means other than the internet are taxed.

I pointed out that "This principle, though, is ignored by those who take either extreme position with respect to taxation and the internet." Goodness, no one has proven me wrong. Those entrusted with the care of the nation continue to behave as though they never sat through a tax class. Oh, wait, most of them haven't and most of the ones who did were there reluctantly. Tax? Boring. Too difficult. Of course. It's extremely important and it requires serious diligence. Not willing to pay the price? Don't meddle with something about which not enough is known by the meddler.

As I re-read my three-year old Taxing the Internet, I see descriptions of the same arguments being advanced today by the "tax the Internet" crowd and by the "no taxes at all" group. The flaws in the rationales for taxing email continue to exist. I urge all those involved with, or interested in, this latest round of "tax the Internet" to read Taxing the Internet. Then it will be fairly easy to understand my proposal: "(1) tax access as is taxed telephone and cable access, (2) tax retail transactions as catalog sales are taxed, imposing use tax collection responsibilities on those with sufficient nexus to the taxing state, (3) eliminate and prohibit "Internet only" taxes, and (4) find another way to deal with spammers, casinos, and other social behavior that is considered unacceptable or inappropriate."

Now what are the odds that politicians will follow this sensible approach?

About three months ago, in Selling Off Government Revenue Streams: Good Idea or Bad?, I explored the wisdom of proposals to have Pennsylvania and New Jersey sell their toll roads to private enterprises in exchange for lump sums that presumably would be used to reduce taxes. Though I approached the issue with a list of questions, there's no hiding my disfavor for the idea. There are too many risks, and insufficient benefits, to embark on this quick money grab.

Yesterday brought news, more fully reported in this story, that the governor of Pennsylvania has submitted his "turnpike lease plan" to the legislature. The carrot that he dangles is a suggestion that the proceeds of the deal would pay for repairs to the state's damaged roads and bridges and might even generate funds for public transit. There are no guarantees, are there? Yes, there is one. Analysts and the governor's deputy chief of staff point out that under the plan, tolls will increase. No kidding.

The Philadelphia Inquirer story explains that the current $19.75 toll for the main eastbound section could climb to $287.20 in 50 years. Wow. The governor's response? No problem, people's salaries will increase. Sure. If the past few years are any indication, most people will far less of an increase than the projected toll increase, which might explain who would see the increase in income. The folks with enough spare cash to buy, oh, sorry, lease, the turnpike.

Why charge turnpike users to fix other highways? Why not impose tolls on I-76 east of Valley Forge, I-95, I-80, I-468 south of Plymouth meeting, and on other, highly traveled routes? Those whose driving contributes to the deterioration of roads and bridges should be the ones who pay. It's called a user fee, and in this instance they make sense, particularly with the sorts of technology now available that eliminates the need to build toll booths.

The plan can be classified under the "trust us" category. The governor seeks legislative authority to solicit bids and to select a lessee, without any additional involvement by the legislature. It is difficult to imagine any legislature, let alone Pennsylvania's, abdicating its authority and handing the golden goose to the governor. Of course, everyone knows that the proposal transmitted yesterday is nothing more than a first offer.

Not surprisingly, more than a few legislators oppose the idea. Letters to editors and other expressions of public opinion confirm that there is no groundswell of support among Pennsylvania residents. Considering Harrisburg's track record, it's a wonder anyone in the state is comfortable with anything that happens in the capital.

The administration, taking cues from the private sector, is using the term "monetize" to describe its goal. Sadly, some people can be persuaded that an idea is worthwhile because a fancy, glittering, snazzy word is invented to describe it. It's one of those qualities of post-modern culture that doesn't endear itself to me. Neither does the term "post-modern," but I'm not ready to campaign for a more descriptive and sensible term to describe our current culture. Finding one that will get past the censors is part of the challenge.

The icing on the cake is that the administration continues to hold back information on all but one of the 48 proposals that have been received. The one that has been made public? The information received from the Turnpike Commission. In other words, the governor wants the ok to make a deal without telling any of us anything other than his final decision. How would anyone know if that deal was the best possible, and in the best interests of the Commonwealth and its citizens? Remember that third great lie? "Hi, I'm from the government and I'm here to help you."

Somehow, it has been learned that proposals have been submitted by New York investment banks, the governor's former employers, previous employers of New Jersey's governor, law firms, construction companies, a think tank, and international developers. A think tank? Theory this and theory that? Perhaps we will pay theoretical tolls to ride on theoretical roads? Law firms? Running a toll road? What's next, attorneys doing heart surgery?

Ought not this entire scheme be put in front of voters through a referendum? I wonder if the outcome in last week's referendum has generated some distaste for a repeat with respect to the turnpike shuffle?

A recent case highlights the inconsistent boundaries that the tax laws draw between different types of illegal activity. It's no wonder that students and practitioners alike struggle to reconcile the differences.

First, some general background. The IRS, in regulations, has concluded that an otherwise deductible trade or business expense is not disallowed merely because allowing the deduction would frustrate a sharply defined public policy. Despite that position, some courts had held, under some circumstances, that otherwise deductible expenses should not be allowed if the allowance would frustrate a sharply defined public policy. In 1958, in Commissioner v. Sullivan, 356 U.S. 27 (1958), the Supreme Court held that business expenses paid by a taxpayer operating an illegal bookmaking business were deductible because they were ordinary and necessary expenses of the business, noting in dictum that if the expenses were paid to avoid the consequences of violating the law or otherwise contravened federal policy. Seemingly, this overruled an earlier Tax Court decision in which a taxpayer illegally selling whiskey was prohibited from treating the cost of confiscated liquor either as part of cost of goods sold or as a loss, based on public policy grounds.

Yet even though the Supreme Court seemed to have limited the denial of deductions on public policy grounds, lower courts proceeded to render decision that were inconsistent. In some instances, deductions were not disallowed solely due to the illegality of the business. For example, taxpayers running illegal numbers games, illegal lotteries, and illegal gambling operations were allowed to deduct the expenses of their businesses. Nonetheless, the Tax Court held that no deduction was permitted for illegal gambling proceeds forfeited to the government, and other courts held that no deductions were permitted for the value of illegal gambling devices seized by authorities.

On the other hand, taxpayers have been permitted to include in cost of goods sold the amounts paid for extra bottles of liquor purchased illegally at posted prices. Yet life insurance agents were not permitted to deduct rebates illegally paid to persons buying policies, even though in once instance the deduction was allowed because the insurance commission knew that rebates were being paid. A taxpayer convicted of price fixing was permitted to deduct rebates granted by the taxpayer in order to meet the competitors' prices.

Despite the position taken in the regulations, the IRS has concluded the compensation paid to someone to burn down a building is not deductible. The Tax Court has treated blackmail payments as nondeductible, but on the ground that blackmail payments are not ordinary expenses.

Second, some specific background. In a series of cases in the late 1970s and early 1980s, the Tax Court held that persons engaged in selling or transporting illegal drugs were permitted to deduct the expenses paid or incurred in connection with their business activities. In response, Congress enacted section 280E, denying deductions for "any amount paid or incurred during the taxable year in carrying on any illegal drug sale trade or business." Congress explained that it so acted because there is a "sharply defined public policy against drug dealing."

Third, the case. In Californians Helping to Alleviate Medical Problems, Inc. v. Commissioner, 128 T.C. No. 14 (2007), the Tax Court was presented with the deductibility of expenses incurred by an organization that provided its members with medical marijuana pursuant to the California Compassionate Use Act of 1996 and instructed those individuals on how to use medical marijuana to benefit their health. CHAMP (what an acronym!) required each member to have a doctor’s letter recommending marijuana as part of his or her therapy and an unexpired photo identification card from the California Department of Public Health verifying the authenticity of the doctor’s letter. CHAMP prohibited its members from reselling or redistributing the medical marijuana they received.

The Tax Court determined that section 280E applied to CHAMP's drug distribution expenses. The court held that CHAMP's activities constituted trafficking in illegal drugs. It also held that section 280E does not disallow all of CHAMP's deductions, but only those connected with the drug distribution activities. Finally, the court decided that CHAMP had two businesses, providing care to its members and providing medical marijuana.

Fourth, my two cents. The court's decision was inevitable. Section 280E says what it says. It's tough to see how the court could have reasoned to any other conclusion.

The case, though, presents several questions:

1. Why should the deductibility of an expense turn on the nature of the business? Persons engaged in illegal activities don't pay higher bridge tolls, sales taxes, or real property taxes, so increasing their income tax liabilities seems inconsistent.

2. Why should the tax law be used to enforce other laws? Is the IRS really that much more efficient than the agencies primarily responsible for enforcing non-revenue law?

3. Does anyone think that the denial of the deduction actually deters people from engaging in illegal activities?

4. Why dedicate a Code provision to the denial of deductions for the expenses incurred by dealers in illegal drugs, without dedicating Code provisions to the denial of deductions for the expenses incurred by dealers in illegal guns, illegal fireworks, illegal counterfeit products, and stolen goods?

I guess each of my rhetorical questions is worth half a cent. Surely tax practitioners asked for advice about the deductibility of expenses incurred by clients who are operating near the boundary between legal and illegal activities will cost more.

Last Friday, in A Perplexing Tax Vote Decision, I looked at the local school district income tax proposal and noted, "It will be interesting to see what happens on Tuesday." I concluded that "I don't have any clue as to the fate of the proposals."

Now, I do, after reading this story. The proposal was overwhelmingly rejected. Not only did it fail in all but 4 school districts in the entire state reject it, including 63 of the 64 school districts in the Philadelphia area, the margins of disapproval were significant. The voters have spoken.

What's next?

Three ideas are getting attention. The first is an increase in the state sales tax, dedicated to school funding. The second is an increase in the state income tax. The third is an increased emphasis on cutting school spending.

The sales tax is pretty much as regressive a tax as is the local property tax. It's difficult to imagine the folks on fixed incomes trying to deal with real property tax increases being any more thrilled with a sales tax increase than they have been with property tax increases. The difference is that the legislature can vote to increase the sales tax without holding a referendum. Considering the voter backlash last November against Pennsylvania legislators whose antics did not earn much admiration, one must wonder if the state legislature would be agreeable to a sales tax increase.

Increases in the state income tax are certain to face all sorts of challenges. Some legislators already are setting up their position by noting that "people don't want taxes increased, period." If voters nixed local income taxes, why would they support increases in state income taxes?

Cutting school spending is a soundbite phrase almost as old as the hills. The challenge in cutting school spending is finding the expenditures to cut. If we value our children and their education, it makes no sense to cut teacher salaries, already too low for all the things they are called to do and the roles they must fulfill. One local school cut its foreign language programs. How short-sighted. The school board did so under the pressure of "cut school funding" from taxpayers, who I suppose must think that the residents of the planet will speak English to accommodate their children. Anyone who proposes a cut in athletic programs must be ready for a barrage of bitter invective.

Let's face it. Good things don't come cheap. We get what we pay for. There may be some waste and bad decision making in school spending, but surely it doesn't count for so much that elimination would generate any sort of noticeable tax decrease. There are inefficiencies, but it is unlikely that proposals to eliminate them would fall on happy ears. Some state legislators are knocking on this door, suggesting that the state reduce the number of mandates it imposes on local schools. The twist to this issue is that the federal government has been adding to the list of mandates for many decades, with little regard for the funding challenges presented to local taxpayers.

The tax question is not the problem but a symptom. The discussion needs to focus on the tension between what people want schools to do and what people are willing to pay for whatever it is that schools do. The more people demand that schools provide everything for everybody, the more expensive it will be to operate the schools. For the discussion to make sense, the schools need to disclose their expenditures in ways that educate the taxpayers. The true cost of each program, each mandate, and each activity needs to be publicized. Some school districts do this, some come close, and others don't. Many taxpayers don't look at the details, even though we live in a world where details matter and in a world where many people don't like details. Fix that and the door might open to a meaningful examination of the underlying problem.