MauledAgain

My post Monday a week ago on the difficulties clients have understanding their lawyers, Clients to Lawyers: We Don't Understand You, brought a very interesting response from a reader who wishes to remain anonymous. Not surprisingly, lawyers are not the only highly educated professionals who struggle to communicate with those who do not share their vocabulary or thinking style. The response contains two anecdotes that would be amusing but for the seriousness of the matter. It also contains some interesting insights into legal education.

I was entertained by your post on the difficulties clients have understanding lawyers because it reminded me of an argument I had with my husband's physician about 12 years ago.

At the time, we lived in Kentucky. The doctor had explained to my husband that he had high cholesterol and sent him home with a one-page diet sheet and a cookbook recommendation. The diet sheet's copyright date was a decade in the past, and the cookbook by the American Heart Association was surprisingly unhelpful. I made a list of the issues I had with the diet sheet and cookbook, and my husband allowed me to come to his next doctor's appointment. The physician was not amused by my criticisms (and in fact he later wrote me a nasty letter about my attitude and put a copy in my file, which was sent along to my new physician when we moved to Pennsylvania).

One of my major complaints about the cookbook was that the introductory text about the medical conditions associated with heart attack were written in complex language most people could not understand easily. I did a couple of readability calculations and came up with a graduate-school reading level. I asked the doctor if he had thought of having video presentations or about getting other written materials that would be more useful.

He complained to me that he didn't see why he should bother, since many patients just threw the papers away in the parking lot. At the time, I was a substitute teacher in the local school district, and I asked him how many of those patients could actually read the materials he provided. I got a blank stare in return, then a rant about how people who had health problems ought to want to read the advice they were given.

He never saw that his style of communication was not appropriate for all his patients, and he didn't like being told some of his patients might be healthier if he found different ways to communicate with them.

My favorite story about the over-educated versus the under-educated comes from a friend who was a speech therapist at a school district in New York State. The principal (in his first year at the school) was complaining to the school secretary and the speech therapist about a couple who had not responded to a letter asking them to authorize summer school for their special-education child. The exchange went something like this:

"I don't think either of them can read," the school secretary told the principal.

"But we sent them a letter," the principal said. "They have to respond to the letter. Send them another copy."

"I don't think they can read," the secretary repeated. "They don't have a phone, either, so you'll need to go out there to talk to them."

"Usually someone from the staff goes out and talks to the parents," the speech therapist said.

"Send them another copy of the letter," the principal said. "They're supposed to read to the letter."

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When I worked at Cornell, there were a lot of editors on campus handling various publications. If your college has some, maybe one would be willing to edit or critique papers so your students receive some practical, direct feedback. I would offer my services, but currently the newspaper where I work is down an editor, so none of us have much extra time.

I find your writing fairly clear, so bringing in an editor might not be required. I think some students will respect the comments more if a law professor makes them; others may respond better if an editor -- a specialist in language, not law -- puts them through their paces. Then there are the students who won't listen unless you show them the video or put it on YouTube. Such are the unpredictable ways of education.

As always, I am enjoying all your posts.

If law students are not going to respect the comments of a professionally trained editor because the person is not a law professor, they are in for a challenging career. Lawyers encounter many people who are not lawyers or law professors, and to treat them as inferior because they lack a legal education is short-sighted. Failure to respect the person for whom services are being provided and who is paying for those services disrespects not only the client but the profession and the lawyers in the profession who do treat clients and others with due respect. One of the many reasons I value law school clinics, and advocate that every law student should enroll in one provided the resources are available to make that possible, is that it gives the law student an opportunity to interact professionally with people who are not lawyers and who are unlikely to understand someone who jabbers in legalese. It can be, as one of my colleagues who teaches a clinic has said, "a humbling experience."

Several weeks ago, in Congress and Tax Audits: Criticizing Others for Its Own Mess, I explored the ramifications of the news that the IRS had commenced its latest compliance audit program. Elaborating on comments by others that taxpayers selected for such audits faced "the nightmare of all audits" and an experience in which no one wants to take part, I pointed out some characteristics of these audits that make them different from the typical IRS audit.

Not long after, I received an email suggesting I look more closely at the IRS current system of compliance audits, called the National Research Program (NRP). I was told it was "not anything like the old system." Specifically, the practice of requiring a taxpayer to prove every entry on a return is, I am told, "absolutely untrue." The NRP, I am told, produced a "much more palatable system for taxpayers" and that many would not even be aware their returns had been selected for a tax compliance audit. It was suggested that I take a look at the NRP.

And so I looked more closely at the NRP. According to the IRS Announcement describing the NRP,

To gain an estimate of taxpayer compliance, the IRS launched the NRP, a three-year study of tax year 2001 returns of individuals. The study involved the review and examination of about 46,000 randomly selected returns. These audits were completed by the fall of 2005. To gather statistically valid data, the return selection process for the NRP included an over-sampling of high income returns. This enabled IRS researchers to draw valid conclusions about important sub-categories of taxpayers.
* * * * *
The updated NRP estimates also include estimates of the Net Misreporting Percentage (NMP) for each major line item on individual income tax returns. The NMP is the net amount that was misreported on a given line item expressed as a percentage of the total amount that should have been reported on that line item...

Unfortunately, the announcement doesn't tell us much about the specifics of the NRP.

So I turned back to the IRS Announcement issued earlier this year that informed taxpayers that a new round of compliance audits would be commencing in late 2007. According to the IRS,

Internal Revenue Service officials today announced plans to launch a new National Research Program (NRP) reporting compliance study for individual taxpayers that will provide updated and more accurate audit selection tools and support efforts to reduce the nation’s tax gap.

The latest NRP study will be the first of an ongoing series of annual individual studies using an innovative multi-year rolling methodology. The study will start in October 2007 and examine about 13,000 randomly selected tax year 2006 individual returns. Similar sample sizes will be used in subsequent tax years.

An advantage of using this method, which combines results over rolling three-year periods, is the IRS will be able to make annual updates to compliance estimates and develop more efficient workload plans on an annual basis, after the initial three annual studies. Previous studies started from scratch, drew tax returns from a single tax year and involved examinations of more than 45,000 taxpayers.

“The new program will be a big step forward for tax research,” said Acting IRS Commissioner Kevin M. Brown. “Our approach will reduce burden on taxpayers, improve our audit selection techniques and give us more timely information to help reduce the tax gap.”

* * * * *

The initial group of taxpayers whose returns are selected for audit under the new NRP study will start receiving official letters in October informing them that they are part of the research study. The majority of individuals will have specific lines of their returns confirmed through in-person audits with an IRS examiner. Some of the individuals whose returns are selected for inclusion will not be contacted if the IRS can obtain matching and third-party data that confirms the accuracy of their return. The targeted research design of the new individual NRP avoids the need for IRS agents to routinely check all the lines of a taxpayer’s return.

So it does appear that the practice of requiring taxpayers to confirm every entry on the tax return has been modified, and that only some of the selected taxpayers will face that challenge. I'm not ready to agree that no taxpayer will be required to prove every item on a return, because nothing in the IRS Announcement indicates that proving every entry no longer will be a routine practice. To me, this explanation means that there will be times IRS will require taxpayers to do so. I can imagine two types of situations. One is the return with several dozen entries, all of which need to be checked under the "targeted research design" of the NRP. Another is a situation in which many, most, or all of the entries turn out to be wrong, and the auditor continues until it can be determined if the tax return is totally in error. On this point, my assertion that the selected taxpayers are required to prove every item on the return must be modified to an assertion that the IRS requires most of the taxpayers to prove many of the items on the return.

As best I can tell, the compliance audits designed using NRP results are modifications of the old system. It isn't totally unlike that system, because it has the same goal, namely, ascertaining compliance rates on each type of item, produces a noncompliance percentage for each major line item, and gives the IRS information from which it can determine which returns to select for regular audits. The differences are a matter of scale. For example, fewer taxpayers are selected, and some are not required to show up in person for the audit. As to the latter point, my assertion that the process takes time needs to be modified to an assertion that for many of the taxpayers the process takes time whereas for some of the selected taxpayers their time is not impinged.

Is the new arrangement more palatable for taxpayers? For taxpayers who don't even know their returns have been selected and audited, sure. But for the others, it's still no walk in the park. As I pointed out in Congress and Tax Audits: Criticizing Others for Its Own Mess, tax lawyer Ian Comisky was quoted in a Philadelphia Inquirer story, when referring to the 13,000 taxpayers selected for the process, as saying "You don't want to be one of those 13,000." There's a reason for that observation, one based on experience and on listening to the reactions of clients to the compliance audit.

The principal point of Congress and Tax Audits: Criticizing Others for Its Own Mess remains unchanged. The IRS would have far less need for compliance audits, would find fewer taxpayer errors, would be far less concerned about taxpayers gaming the system, and would be cast as the villain far less often if the Congress would demonstrate some civic responsibility and fix the tax law so that compliance was easier and more likely to occur. Anyone who does not think that the tax law has grown into an out-of-control mess needs only to sit in a basic tax course, or better, to try to teach basic tax in 42 50-minute sessions, to discover that the simplest of concepts has become a morass of exceptions, exceptions to exceptions, definitional components, special rules, coordination clauses, effective date complexities, and other details that display not only ineffective micromanagement of citizen lives but also the influence of the rich and powerful who use their assets other than for the betterment of the nation and its people. That the IRS has found a way to temper the aggravation of the compliance audit is noble, but doesn't make the underlying problem any less of a threat to the nation.

I thank the person who clued me into the fact that not every line on every selected return is scrutinized during a compliance audit and the fact that not every taxpayer must appear at an IRS office. Perhaps that news brings comfort to a few of the 13,000 taxpayers receiving those IRS letters during the past few weeks. Anyone who does end up sitting in an IRS audit for a compliance audit is invited to share their experience.

Someone sent me an email last week, on the topic "Social Security." I'm not going to republish the entire message, particularly because I would be contributing to the dissemination of yet more nonsense. I do, however, want to focus on several of the claims made in this email because they simply are unfounded.

For example, the email claims that "Franklin Roosevelt, a Democrat, introduced the Social Security (FICA) Program. He promised: * * * * 3.) That the money the participants elected to put Into the Program would be deductible from Their income for tax purposes each year,"

Nonsense. There is nothing in the proposal for the social security plan that suggested allowing a deduction. In fact, the legislation enacting social security stated "For the purposes of the income tax imposed by Title I of the Revenue Act of 1934 or by any Act of Congress in substitution therefor, the tax imposed by section 801 shall not be allowed as a deduction to the taxpayer in computing his net income for the year in which such tax is deducted from his wages." Nor could it be deducted in another year because it isn't paid in any other year.

There does exist a deduction for one-half of social security taxes paid by self-employed individuals. This deduction is designed to provide a deduction for the "employer portion" of the payment equivalent to the deduction allowable to employers who pay the employer portion with respect to their employees.

As another example, the email claims that Roosevelt also promised: "5.) That the annuity payments to the retirees Would never be taxed as income." Again, there is no evidence that Roosevelt made that suggestion. Social security payments were not included in gross income as a matter of administrative practice. Subsequently, legislation was enacted to include a portion of social security benefits in gross income. Even if Roosevelt had made such a suggestion and persuaded the Congress to adopt it, no Congress can prevent a subsequent Congress from taking action to the contrary. A promise made by a Congress is at best valuable until the expiration of that Congress, and sometimes it doesn't even last that long.

The email then presents some questions and answers. Here's one: "Q: Which Political Party eliminated the income tax Deduction for Social Security (FICA) withholding? A: The Democratic Party." As noted above, there never was such a deduction, so it could not have been eliminated. The deduction for one-half of self-employment taxes continues to exist, so no one can be blamed for eliminating it.

Another question and answer wins the prize for misinformation: "Q: Which Political Party started taxing Social Security annuities? A: The Democratic Party, with Al Gore casting the "tie-breaking" deciding vote as President of the Senate, while he was Vice President of the US." Whoa! The provision that requires a portion of social security to be included in gross income is section 86 of the Internal Revenue Code. Section 86 was enacted by section 121(a) of Public Law 98-21, known as the Social Security Amendments of 1983. Public Law 98-21 passed the house by a vote of 243-102, with Republicans voting 80-48 in favor and Democrats voting 163-54 in favor. It passed the Senate 58-14, with Republicans voting 32-8 in favor and Democrats voting 26-6 in favor. In 1983, Al Gore was not Vice-President and thus not President of the Senate. Public Law 98-21 was signed into law by Ronald Reagan, who by that time no longer was a Democrat.

For all of my law school teaching career, I have emphasized to my students that what they think is the "fun" part of lawyering, namely analysis and theoretical policy discussion, cannot begin until the facts are known. Good lawyers know what facts need to be ascertained, and good lawyers know how to find facts, how to interview clients, how to do empirical research, how to find information. There's more to research than finding the law. In many respects, it is easier to find the law than it is to determine the facts.

Many people, including lawyers, are woefully remiss when it comes to checking facts. Baseless rumors are started by the evil, the manipulative, the power-obsessed, the revenge seekers, and the deranged, and they acquire lives of their own. Politicians and their operatives pepper the airwaves and the internet with what must be called by its true name, propaganda. People too lazy, too uneducated, too busy, too disinterested to check the authenticity of what's being said don't simply ignore it, but believe it, and then replicate it, contributing to the spread of nonsense throughout the world.

There's much wrong with the social security system. The things that are wrong should be noted and criticized. Proposals for improvement should be made. There's no need for an overkill that rests on deliberately crafted erroneous information. In this instance, it seems to me that those who are cooking up worst case scenarios lack the self-confidence to rest their arguments on reality. Rather than being content to argue truthfully and prevail by a narrow margin, they seek to win by a crushing margin, one that can be attained only through lies and propaganda. They might think they are serving the nation well, and contributing to the well-being of the world, but they are accomplishing nothing more than the fertilization of the sick minds in which this sort of nonsense is reproduced and spread throughout society. Shame on them, and shame on the inability of the nation to teach its citizens the critical importance of ascertaining facts, confirming facts, and arguing from facts rather than from lies.

The story of a recent federal income tax case begins as one expects a federal income tax case to begin. A taxpayer files a return, the IRS audits the return, the IRS asserts that the taxpayer owes more income tax than is shown on the return, the taxpayer either pays and sues for a refund or contests the IRS assertion by filing a petition in the Tax Court. In the Tax Court, the taxpayer presents evidence and makes arguments against the IRS position, though sometimes taxpayers don't bring forth useful evidence. Taxpayers who don't introduce the right evidence might not have evidence to support their position, or might not quite understand what must be done, procedurally and strategically, to persuade the Court of their position.

There are instances, though, when an income tax case begins differently. Taxpayers fail to file the required returns, the IRS identifies the taxpayers, attempts to contact the taxpayers and persuade the taxpayer to file returns, and when the taxpayer fails to respond or fails to file, the IRS files returns on the taxpayer's behalf. Sometimes the taxpayer continues to ignore the IRS and the matter proceeds to collection. In other instances, the taxpayer finally responds, and contests the IRS tax computation, usually because the IRS does not allow the taxpayer deductions other than the standard deduction and one personal exemption deduction.

A case decided by the Tax Court last Tuesday, Creed J. Pearson v. Commissioner, T.C. Memo. 2007-341, began when the IRS identified the taxpayer as having failed to file returns for a five-year period. The IRS contacted the taxpayer, the taxpayer was unresponsive, and the IRS then filed returns on the taxpayer's behalf. The taxpayer disagreed with the computed tax liability, and filed a petition in the Tax Court. The taxpayer argued that the IRS, in filing returns on his behalf, did not take into account deductions to which the taxpayer claimed he was entitled for business expenses, qualified residence interest, property taxes, and charitable contributions. However, the taxpayer did not provide dollar amounts for these deductions nor did the taxpayer explain how much of each item shown on a list of payments made by the taxpayer were connected with a particular deduction. The IRS, in turn, conceded that the taxpayer was allowed to deduct certain expenses, and adjusted the tax liability accordingly. For example, based on information returns from third parties, the IRS determined that the taxpayer was entitled to deductions for qualified residence interest. The Tax Court held that the taxpayer had not done anything to persuade it that he was entitled to deductions other than those allowed by the IRS. The taxpayer has not filed tax returns for any year following the five years at issue in the Tax Court.

At this point, a case that could be described as routine and uninteresting became unusual and thought provoking. The taxpayer, according to the Tax Court, "strongly opposes the beliefs and actions of a particular organization (the Organization), and he asks that we allow him to audit the Organization and pay the taxes he owes out of the proceeds of that audit, even though petitioner’s tax liability is not related to the Organization." The taxpayer explained that the reason he had not filed tax returns, and planned to continue not filing, was the failure of the IRS to "take** some action against the Organization."

The Tax Court pointed out that "There is no provision in the Code that gives us the authority to allow one taxpayer to audit another taxpayer in order to reduce his tax deficiency." The Tax Court denied the taxpayer's request.

I have a mixed reaction to this outcome. It's not that I think the Tax Court was wrong. It reached the only permissible outcome. It's that the idea of taxpayers auditing each other might bring a new and helpful dimension to tax law enforcement. However, I do share Joe Kristan's concern, nicely explained in Tax Court Averts Anarchy, that if taxpayers began auditing each other, the social fabric would be unlikely to survive. Yet Joe, too, had a "fleeting moment" of thinking that perhaps there was something here that could be woven into a productive idea. My moment hasn't been so fleeting. There is something about Pearson's request that makes me wonder if there isn't something that Congress could adopt that would increase tax compliance.

In analyzing the notion of taxpayer audits, I start with the proposition that there is in place a system that permits taxpayers to give information to the IRS that leads to increased tax collection. The IRS has discretion to pay taxpayers for these leads, if they turn out to be fruitful. So it's not as though the social fabric presently lacks some sort of peer pressure legitimization. True, the actual audit is undertaken by the IRS. Consider, though, that in some instances a taxpayer is in a better position to conduct an audit than is the IRS, because the taxpayer, for example, knows more about the other taxpayer's activities, or has a better understanding of the industry. Could the IRS be given authority to "deputize" citizens to perform audits when the opportunity presents itself and promises to generate tax revenue that is unpaid because of evasion?

In some respects, the social fabric about which Joe is concerned rests, and should rest, on a collective sense of right and wrong and not on the imposition of order by some nameless, faceless, and disconnected government or governmental bureaucracy. The current system creates a good deal of "us versus them" in the shape of "taxpayers versus the IRS." Yet IRS employees are taxpayers, the IRS is merely an extension of all citizens, including taxpayers, and so "taxpayers versus the IRS" becomes the classic "we have met the enemy and it is us." Even if taxpayers are not auditing their neighbors and employers, and even if taxpayers aren't informing the IRS about other taxpayers, ought there not be some sort of "pay your taxes" message when people discuss taxation? Is not the social fabric strengthened when citizens work together for the common good, rather than engaging in the "I am special and use my own rules" mantra of the "me generation" and its successors?

Compare tax law enforcement to other law enforcement. Citizens are urged to prevent others from driving vehicles while intoxicated. Not only are citizens requested to call the police if they see a drunk driver or know an inebriated person has put themselves behind the wheel, they are encouraged to take away car keys. The latter approach poses the risk of being "brutally murdered" in somewhat the same way that Joe Kristan suggests auditing our in-laws might bring about.

Perhaps something akin to how traffic cameras can best be used would make some sense. As more and more traffic cameras are installed, traffic authorities have the time and resources to view a shrinking percentage of what I'll call "film." It is more efficient to have that film available when a citizen calls with a report of drunk driving, illegal turns on red, ignoring stop signs, going through red lights, and other violations. The responsible driver is "auditing" other drivers, and can pass information on to authorities who then can use the "film" to determine if the report is correct, and if it is, to corroborate the evidence offered when proceedings are initiated. In other words, auditing is separated from enforcement. Anecdotally, it seems that the notion of drivers "auditing" drivers is already here, and so it isn't all that bizarre to wonder if taxpayers auditing taxpayers could be an effective and efficient tool to increase tax compliance and dampen tax fraud.

We live in a world that ridicules the tattle-tale, kills the snitch, and disrespects the peace maker. Children are being murdered every week in Philadelphia by out-of-control gun slingers, and people are so scared they don't step forward with information. Whistle blowers routinely are fired, to the extent that an overwhelming segment of the work force chooses to turn a blind eye to corruption and fraud. The nation has lost the sense of common purpose, communal effort, and sacrifice for the good of the whole that once permeated the social fabric and made this country a role model for the international community. If our tax law and our tax system ever was a role model for the world, it surely isn't one now. At least it ought not to be one. It's not something of which we can be proud. It is OUR tax system, not THEIR tax system. It ought to be a tax system of the people, by the people, and for the people. We are, whether or not we like it, our neighbor's keeper.

Tomorrow is Thanksgiving. I don't plan to post tomorrow, and I have a feeling many regular readers won't be checking in. So though it's a day early, here's my annual Thanksgiving litany. Consider incorporated by reference those from 2006, 2005, and 2004.

For the past three years I've shared my gratitude for the people whose encouragement and guidance shaped my professional career, for the people who contribute to my tax knowledge and understanding, for the existence of technology that makes it possible for me to share my tax thoughts with the world, and for other gifts that enhance what I do as a tax law professor and tax writer.

This year, I want to express my appreciation for life beyond tax. Though tax intrudes on almost everything, there is much to life that isn't just tax.

So thinking back through the past year, there are abundant reasons to be thankful:

• I am thankful for my family, steadfast and tolerant, amused and amusing, loved and loving.
  
  
• I am thankful for the arrival of a daughter-in-law who is a delightful, charming, diligent, bright, and fine companion for my son Charles Edward Maule.
  
  
• I am thankful that despite the rain, it was a great day in Lake Forest when Karen joined the family.
  
  
• I am thankful for my friends, who tolerate both my requested advice and my freely-given opinions, who listen, and who teach.
  
  
• I am thankful that I had the opportunity to travel throughout western Europe for two months, visiting grand cathedrals and village churches, exploring museums and stores, touring medieval cities and modern metropolises, traveling on roads and canals, climbing mountains and ambling along beaches, eating find food and learning so much.
  
  
• I am thankful that I met some of my cousins who live in and near Caserta, Italy, and that I could visit again my friends in Maule, France and my friends and cousins in England.
  
  
• I am thankful for www.ancestry.com and www.familysearch.org and for all the people who have published on the Internet information that is helpful to me in my genealogical endeavors.
  
  
• I am thankful for Toyota having designed and manufactured a hybrid vehicle that a friend has named the Stealthmobile, for now I consume even less gasoline.
  
  
• I am thankful for the time and effort contributed by the people who made it possible for me to sing at the Kimmel Center in Philadelphia, along with more than 450 other voices, in the largest choir ever to assemble in that outstanding facility.
  
  
• I am thankful for the people whose patience, encouragement, and teaching helped me reach the point where I could be one of those voices without making a fool of myself.
  
  
• Habeo gratias quandoquidem est quaedam sapiens, dimidium alium cerebri, dea indicii, inflatus pro exercitationis praecipui, socia percuriosa, origo aeternam subridendam et bonae risioni, conscia fanatica.

Happy Thanksgiving to all, no matter where you may be or with whom you may be. May the next year bring more reasons for thankfulness and may it be filled with joy.

A member of the ABA-TAX listserve passed along a chart that reflects the outcome of a 2006 survey of lawyers' affluent clients taken by a Prince and Associates, Inc., a group that advises professional organizations and other businesses on "strategic, profitability, and structural business issues."

The survey was a repeat of one done three years earlier, in 2003. In every instance, attorneys did worse. The percentage of respondents agreeing that "My attorney talked down to me" rose from 31.6% to 46.2%. The percentage concluding that their "Attorney didn't speak English" rose from 70.1% to 81.7%. The clients who were surveyed are described as affluent, and it would not be a wild guess to conclude that most of them are educated or highly educated, successful in their fields, and savvy about many things in life. Yet they struggle to understand what their attorneys are saying.

Although law schools do relatively good jobs teaching their students some things, it is no surprise to discover that they are not teaching their students to communicate effectively with clients. Aside from clinical programs, where the effectiveness of communication with clients ranges from barely acceptable to outstanding, law schools generally do not give their students much, if any, instruction in how to "translate" legal-ese into language that the client can understand.

It is not all that difficult to focus student attention on decongesting legal language. I try, by making it clear to the students at the beginning of the semester that one of the goals of the course is to learn how to take statutory or regulatory language, or the messages in a judicial opinion, and to express the meaning in a way that can be understood by the typical client. It is not unusual to hear me or a student begin a statement or question with the phrase, "so in other words," as we try to speak in language one is more likely to hear outside of the legal world. Yes, there are limitations, particularly when a technical word or phrase cannot be replaced with some less complicated expression. Frequently, I ask students what they would say to a client, and I expect the response to be presented in language that would be effective under the circumstances.

There are several factors that contribute to this communication gap between lawyers and clients. It ought not be difficult to make adjustments that diminish the effect of these factors.

For one thing, many students arrive in law school thinking that being a lawyer means speaking and writing in long, complex sentences using fancy words that make for good sound bites. Years ago, in assisting a student learn to read judicial opinions, I noticed that the student was highlighting in yellow the sentences in the opinion that "sounded elegant," rather than those that addressed the core issues. Students think that if they pepper their writing with "heretofore," "whomsoever," "party of the first part," and similar words and phrases, they will be considered excellent legal writers. Some effort is made to break students of this habit, but it isn't done often enough, or strongly enough.

For another thing, the people who evaluate law student writing are lawyers or other law students. Student writing is evaluated by law professors, almost all of whom at one point in their professional lives were members of a bar and many of whom dealt with clients. Student writing also is evaluated by practitioners who volunteer to judge moot court arguments and the related briefs, or, in some instances, writing competitions. Student writing is evaluated by other students charged with selected members of law journals, and by students serving in editorial positions on those journals or in reviewer positions in organizations administering moot court and other competitions. When students write client letters or memos, rarely, aside from clinics, are those documents given to a non-lawyer who is asked, "Does this make sense to you?"

Yet another challenge is the experience that students bring to law school. Many law students have spent their lives communicating with people who share, to a greater or lesser extent, their culture, language, intelligence, and experiences. Unless a law student has devoted several or more years to being a teacher, a social worker, or someone who interacts with people not accustomed to using long words, speaking in complex sentences, or juggling three or more thoughts simultaneously, the law student very likely does not understand why it is necessary to adjust one's word choice, sentence structure, and message organization to fit the comprehension and vocabulary levels of a client.

Yet another problem is the tendency of law students to think that lawyers simply regurgitate black letter law when communicating with someone else, whether client, partner, or judge. Many law school courses and examinations reinforce this counterproductive perspective. The goal of a law student is to become a teacher. As I point out in Learning to Teach and Teaching to Learn:

The lawyer who as an associate writes a memo to a partner on a particular point of law is TEACHING the partner.

The lawyer who argues a case in front of a judge or panel of judges TEACHING the judges.

The lawyer who counsels or advises client with respect to particular course of action is TEACHING the client.

The lawyer who negotiates a deal with counsel for the other party is TEACHING the other lawyer.

The lawyer who represents a client at a hearing or administrative proceeding is TEACHING the administrative law judge or other hearing officer.

When a lawyer becomes managing partner, the lawyer will be TEACHING the law firm's staff.

When a lawyer becomes a judge, the judge will be TEACHING the jury, the litigants, the attorneys representing them, and society in the opinion she writes.
When a lawyer becomes in-house counsel, the lawyer will be TEACHING the officers and directors of the corporation.

With memoranda, oral arguments, briefs, petitions and other tools of the profession, lawyers seek to explain, to convince, to demonstrate and to unravel things. Those are some of the things that teachers do. It isn't difficult to see that a good lawyer must be a good teacher.

Good teachers know how to communicate not only knowledge but also comprehension, and good teachers know how to adjust their delivery and approach to match the education and experience of their students. Whether law schools are doing enough to teach their students to be teachers is a volatile question, particularly when one considers the extent to which law school faculty are, or are not, educated to be educators.

By the time lawyers realize that their inability to communicate well with clients can cost them money, either on account of losing clients or because additional time must be invested to explain things again but in a less confusing way, it is too late for them to redo their law school education experience. Instead, they must seek continuing education of some sort, whether in a program direct towards lawyers or in communication courses at a local college or university. Few lawyers do this, in part because they don't have the time, in part because they don't see the connection between such courses and the success of their practice, in part because few such courses are offered in CLE programs, and in part because CLE credits aren't approved for taking such courses in a college or university setting. Yet this is no reason not to adjust law school curriculum so that attention is given to how law students learn to communicate with clients and not merely other professionals with law degrees.

I close with a footnote. Last week, in You Are A Genius!, TaxProf blog reported that according to the Blog Readibility Test, "the level of education necessary to understand" MauledAgain was "High School." I ran the test later that day, and it reported that the requisite level was "College (Undergrad)." In his comment to the TaxProf blog post, Martin B. Tittle explained that he, too, had run MauledAgain through the Blog Readibility Test and "to "College (Undergrad)" after today's TaxProf Blog post." Of course, I wonder if that's an upgrade, if the goal is to write in a manner that maximizes the number of people who can read and understand what I'm saying.

Tittle also ran MauledAgain through a variety of readability tests accessed through Readability.Info, a URL he acquired from Dan Solove's Concurring Opinions blog, which was the source of Paul Caron's TaxProf blog post. Here are the results obtained by Tittle:

Kincaid: 9.9
ARI: 11.1
Coleman-Liau: 11.6
Flesch Index: 62.0
Fog Index: 12.8
Lix: 44.7 = school year 8
SMOG-Grading: 11.3

I ran the same test a week later. The results?

readability grades:
Kincaid: 9.6
ARI: 10.7
Coleman-Liau: 11.3
Flesch Index: 63.6
Fog Index: 12.6
Lix: 43.5 = school year 7
SMOG-Grading: 11.1
sentence info:
37605 characters
8177 words, average length 4.60 characters = 1.44 syllables
392 sentences, average length 20.9 words
51% (201) short sentences (at most 16 words)
18% (74) long sentences (at least 31 words)
5 paragraphs, average length 78.4 sentences
11% (44) questions
45% (178) passive sentences
longest sent 146 wds at sent 384; shortest sent 1 wds at sent 33
word usage:
verb types:
to be (261) auxiliary (141)
types as % of total: conjunctions 5(419) pronouns 7(590) prepositions 11(906) nominalizations 2(167)
sentence beginnings:
pronoun (77) interrogative pronoun (18) article (57)
subordinating conjunction (19) conjunction (12) preposition (36)

According to the info page on the site, the Flesch Index uses a 1-100 scale, with "standard English documents" averaging 60-70. SMOG-Grading and Fog Index scores are school grades.

Isn't there something bizarre about the results, though? Does MauledAgain have, on average, 78-sentence paragraphs? Nonsense. Something's wrong with the measurement algorithm.

Yes, I'm proud of these results. Why? It is a challenge for me to keep my sentences short, my paragraphs brief, and my word count manageable. It is a challenge to keep all the thoughts in my brain from tumbling out in one huge and complex bundle of verbosity. My experience writing Tax Management Portfolios, which I often describe as "translating tax-ese into English that professionals can understand," has made me a better writer and has sharpened my ability to communicate.

Now, if someone wants to have fun, they can test the articles and other documents I have written in Latin, French, and Italian. There, we might have something of a communication challenge.

On Monday I received a letter from the folks at U.S. News and World Reports, asking me why I had not returned the rankings survey they had sent several weeks ago. The answer to that question is simple. I had not received a survey during the past year. I did receive one last year, and the year before that, and I'm beginning to think about changing my response strategy.

The survey is intended to provide information on U.S. News rankings for law school tax programs. One of the categories for which the magazine ranks law schools is "Law Specialties: Tax Law". The survey refers to tax programs.

Here's one of my peeves with the survey, aside from the general futility of trying to rank tax law programs the way people try to rank major league pitchers, college football teams, or "beautiful people" for other magazines. The survey includes every law school in the country. It does not limit the choices to law schools with tax programs. Why does that matter? It matters because many law schools do not have tax programs. They simply offer one, two, or perhaps three or four, tax courses to their J.D. students. In a few instances the courses are taught by adjunct faculty rather than members of the full-time faculty. Yet because the school's name is famous, the school ends up getting votes for a program that does not exist. The appearance of a few tax courses in a J.D. curriculum does not make a tax program.

What I have been doing is eliminating from contention any law school without an LL.M. (Taxation) Program. Then I select 6, rather than the requested 15, schools. Why 6? Because there are 6 that I consider to be top-notch, though admittedly with some differences among them. The U.S. News survey does not ask me to rank my choices. That, too, is a deficiency in its survey process, and contributes to my decision to limit my selections.

I wrote a note to U.S. News when I returned the survey. I wrote it on the letter that I received. I pointed out that I had not received a previous request and thus ought not to be presumed a laggard in responding. I also pointed out, in fewer words, what I'm sharing in this post. Fewer words? Yes. As thorough an explanation? No.

But now I'm beginning to think that I will no longer fill out the survey. I will return it, so that the folks at U.S. News understand that I'm not being an ignorant, unresponsive fool. I will probably send along a copy of this post. If I am asked to do a survey for the general law school rankings, which has happened once in my teaching career, I'm thinking I will do the same thing, though I'd send along copies of other posts that deal more directly with law school rankings generally.

It reminds me of an old joke that includes this line, "So, who do you think is going to win the World Series this year, the Yankees, the Dodgers, or the Celtics?" Something like that. I can't remember the punch line. But I think U.S. News has come up with an even better joke. Hey, any chance of me being on the NFL Pro Bowl ballot?

It's the time of the year when I begin preparing my spring semester courses. That's a long story in and of itself, which someday I will tell so that those who think it's a matter of assigning readings from a book can understand that there is much, much more to the process. My checklist for one of the spring 2008 semester tax courses has 26 major steps to process.

One of the things that must be done is to download relevant tax forms so that they can be made available to students. I provide the forms not for the purpose of teaching students how to fill them out, but to give them a sense of how complex tax provisions are reflected in complex forms. I want them to see what happens when conceptual and theoretical ideas enter the tax law and then need to be translated into something useful to taxpayers and tax administrators.

The spring 2008 tax course materials should include the 2007 forms. When I went to the IRS web site, I discovered that the 2007 forms are not ready. I didn't expect that they would be, but I figured I'd check just in case they were. No matter, I'll check again in a few weeks. My guess is that the forms will appear just as the school is closing for the semester break. The finalization of the course materials will wait until mere days before classes begin.

Or perhaps the forms won't be ready in time for the beginning of classes. This year, as has happened more than occasionally in the past, the IRS is in a conundrum. To have forms ready for mailing and other distribution at the start of tax season, the design process must begin in the fall, and the form proofs must be ready for the printer by mid-November. The IRS must crank out hundreds of different forms, thanks to the many complexities that Congress has jammed into the tax law. So it's not as though all of the forms can go to the printer on the same day. In a well-managed system, forms are generated and sent to the production side of things in a steady sequence of incremental steps.

According to a letter from the Treasury to several Senators, if forms are not finalized by November 16, whatever forms have been printed must be "pulped, pulped, re-printed, and re-mailed at a substantial cost to the taxpayers." One might ask why any forms are printed until the Congress finishes its legislative tinkering, and the answer is that under such an approach the printing of forms could not begin until January, assuming Congress does not return for a special session. It is totally inefficient for the Congress to wait until the last minute to deal with tax changes that affect form design and printing, but in its defense, Congress is acting as do most Americans and most students, namely, adhering to the principle that things should be done at the last minute. As one might guess, I'm not that sort of person. I learned early in life that if one plans to prepare for a Tuesday class on Monday, something will happen on Monday to prevent the preparation. That doesn't bode well for the Tuesday class, and because I owe it to my students to be prepared, I think ahead and give myself some "cushion" time.

When Congress delays tax legislation until very late in the year to which it applies, or even until early in the following year, it does more than just wreak havoc for the IRS forms designers and producers. It makes tax planning impossible. It causes the risk of noncompliance to grow. It increases the odds that a taxpayer will pay more tax than the taxpayer ought to pay. In short, it causes chaos.

Defenders of the status quo claim that this is how the system works, that people have learned to cope with it, that members of Congress have so much to do that it is unrealistic to think that they could do any better than they are. This is nonsense. Nothing in the law requires this sort of bad planning and retroactive tinkering. Unfortunately, nothing in the law requires competent planning, thoughtful consideration of late legislative actions on citizens and federal agencies, or efficient time management and project planning.

It is tempting to propose a Constitutional amendment that restricts legislation to prospective application. There are two flaws in such an approach. One is that it shuts the door to genuine emergencies when, for example, an increase or decrease in revenue needs to take effect for the current or preceding year in response to an economic or military crisis. The other is that a change to a flawed provision ought not be limited to future years simply because it took time for the flaw to be discovered, for the remedy drafted, and for the advocates for repair to find sufficient votes. It is frustrating, of course, that almost every lobbyist-generated tax law change is marketed to the Congress as a response to a genuine emergency when, in fact, it's nothing of the sort.

The latest uncertainty arises from the inability of the Congress to fix the alternative minimum tax. Or, more precisely, it arises from the inability of the Congress to turn its attention in a timely way to the question. The problems with the AMT are not new and did not surface yesterday. The problems have been growing during the past few years, and they were predicted by tax experts even earlier. The need to repair the AMT is not an emergency like the devastation of a hurricane. It is not sudden and unexpected. It is not the product of uncontrollable nature but the result of bad planning and design by the very institution, the Congress, that now stumbles to clean up its own failures.

Could a "prospective only" rule be crafted that allowed for retroactive legislation under specified circumstances? Probably, though the lobbyists again would try to define those circumstances so as to preserve their opportunities to push through retroactive legislation.

Would such a rule work? I doubt it. Such a rule doesn't address the underlying problem. Unless there were some provision prohibiting the election to Congress of procrastinators, people lacking in time management skills, folks who are inconsiderate of others, and individuals who put the interests of specialized groups above the interests of the nation, the problem facing the IRS and taxpayers as the 2007 tax return filing season approaches will continue to trouble the country for a long time.

A prospective only rule would make the AMT problem worse. It would prevent the Congress from fixing the problem in time for the 2007 tax year. So perhaps a different sort of rule is required. Perhaps the Constitution ought to provide that until the Congress finishes its work, no member is permitted to return home to campaign or to engage in campaign fund-raising. Members of Congress need to learn that they were elected to serve, not to devote substantial amounts of energy to preparing for, and seeking, another term. If they want another term, then they can earn it by doing their job in a timely and competent way, for which a reward can be re-election. Voters, though, need to stop re-electing members of Congress because of yet more promises likely to go unfulfilled or because of favors granted. Perhaps a practice used in many other organizations would make sense, namely, after serving a term (or perhaps two in the House), a member must stand down for one or two terms before being again eligible to return. That sort of rule might encourage members of Congress to focus on their legislative work.

It's not just the tax law that is affected, though that is the area with which I am most familiar. It's a problem that affects every area of federal law, and that has manifested itself on several occasions in the partial shut-down of the federal government. It's a problem that makes one wonder where Congress has its scheduling priorities.

So don't panic when you cannot find tax forms later this year or even in January. Do, however, be certain that you have the most recent version. And then hope that the forms aren't changed yet again after you file your 2007 return. Yes, that has happened. Yes, it can happen again.

When legislators start tinkering with tax laws to provide special breaks to a few individuals or businesses that fit narrow definitions, they introduce or exacerbate the fundamental unfairness inherent in these sorts of provisions. On Thursday, Governor Corzine of New Jersey vetoed legislation that would have tripled the tax credit available to companies based in New Jersey for creating digital content. According to this story, the tax savings would have benefitted, and was the subject of lobbying by, outfits such as Cisco Systems, NBC Universal, and the Walt Disney Co.

The governor's rationale for the veto is that the state's huge budget deficit ought not be increased by this sort of tax break. In New Jersey, a governor's veto can be conditional, so the legislature can accept the governor's proposed change to the credit without doing anything to the other provisions in the legislation. Whether the veto is overridden by the legislature remains to be seen.

The sponsor of the bill expressed disappointment and argued for a veto override. He characterized the provision as a "strong case" for rejecting the governor's objections. If this is the best "strong case" that the legislator can identify, something is terribly amiss in how the New Jersey legislature crafts tax laws. But, in all fairness, if it's using the federal Congress as a role model, it's no surprise.

Technically, the vetoed bill would make a tax credit currently available to film production companies available to businesses that create digital media. I have two questions. First, why are the film companies getting this tax break? Second, why should the tax break be extended to companies that create digital media?

This isn't the first time that I've questioned the wisdom, fairness, and appropriateness of tossing tax breaks at individual companies or industries. In Tax Breaks, Politician Takes, I pointed out that legislators often cave in to threats by businesses to go elsewhere, even when those threats aren't much more than negotiating bluffs. My objections to the insertion into the tax law (or any other law) of tax breaks targeted at one or a few taxpayers are well known. The reasons for my objections are magnified when one considers that at least most of these provisions are drafted by lobbyists paid by these taxpayers to "persuade" a legislature to enact them.

Tax breaks targeted to large groups of taxpayers whose need for the tax break arises from situations beyond their control can be defended. The casualty loss deduction, extensions for disaster victims of the due date for tax returns and other items that must be filed with a revenue agency, and similar breaks are wise, fair, and appropriate. In contrast, reducing the tax bills of large corporations that are making significant amounts of money makes sense only if one thinks that the rich should get richer while public revenues are reduced, causing cutbacks in services, larger deficits to be paid by upcoming generations, some combination thereof, or foreclosure by other nations and investors in other nations who are supplying the dollars used to finance the deficits generated in part by the awarding of tax breaks to profitable companies. A disaster victim might starve without a casualty loss deduction, but the Walt Disney company isn't going to go bankrupt because it doesn't get a tax break from New Jersey. My guess is that the tax departments of corporations, called to generate net income as are the operating departments, have adopted a money-seeking plan that involves getting each state and the federal government to reduce its taxes. Because corporations do their profit computations annually, they will come back, year in and year out, seeking yet more in the way of public handouts.

If the New Jersey legislature overrides the governor's conditional veto, perhaps he will have the good sense to veto the bill straight up. In doing so, he ought to make it clear to the citizens of New Jersey why he has done so, and what the legislature is doing. I can't imagine that more than a few New Jerseyians are in favor of higher taxes on themselves, reduced services, increased deficits, or financial surrender so that a few digital media companies can enlarge their post-tax bottom lines.

According to a Philadelphia Inquirer story on Tuesday, the Philadelphia Board of Revision of Taxes has reacted to the fuss about the $250,000 assessment on state senator Vincent Fumo's mansion listed for sale at $7,000,000 by deciding it "would more quickly reassess Fumo's house and other similar properties." The acceleration means that the assessors would begin their work in January rather than in the spring.

The disarray afflicting the Philadelphia real property tax assessment process has been the subject of four previous posts: An Unconstitutional Tax Assessment System; Property Tax Assessments: Really That Difficult?; Real Property Tax Assessment System: Broken and Begging for Repair; and Philadelphia Real Property Taxes: Pay Up or Lose It. Perhaps five is the magic number.

The Board has identified about 100 properties that have not been reassessed because its computer program cannot find comparable properties to use for valuation purposes. Its assessors will do the valuation manually. Ought that not have been done some time ago? A spokesperson for the Board indicated that no decision had yet been made on disclosure of the addresses of the roughly 100 properties, because that might violate the owners' privacy. How? The existence of the properties, their addresses, the names of the owners, the assessed value, the history of previous sale prices, and the amount of debt secured by mortgages on the properties are a matter of public record. I don't see an invasion of privacy if these properties are identified. If nothing else, it will assist those trying to fix the assessment system by revealing patterns of inadequate assessment practices.

The spokesperson for the Board admitted that the acceleration "would have little practical effect." With or without the acceleration, the earliest that a reassessment on Fumo's property can go into effect is 2009. In Real Property Tax Assessment System: Broken and Begging for Repair, I pointed out why Fumo's property ought not be reassessed on the basis of an asking price, because asking prices are just that, namely, indications of desire and not necessarily of value. So my question is this: How does speeding up the process, broken as it is, solve the underlying problem? If an automobile has a broken part, does it make sense to drive it faster? If a person sprains an ankle while running, is the solution to run faster?

It makes sense to accelerate the process of fixing the broken tax assessment process. It makes little sense to accelerate use of the broken process. At best, the latter course of action makes it appear to the uninitiated and uninformed that "something is being done." If the something that is being done doesn't solve the problem, those doing it ought not get credit as problem solvers. If anything, the acceleration of the use of the broken process makes it even more difficult to get people to focus on what needs to be done, which is a repair or replacement of the ineffective and inefficient tax assessment process in Philadelphia.

The Philadelphia Inquirer story that broke the news about the Board's decision to accelerate the process comes with this headline: Fumo home tax leads to change. I'm guessing that there were space restraints, because the headline should read: Fumo home tax leads to meaningless change.

It has taken a few months, but the IRS announcement in June that it was restarting its compliance audit program is now getting attention, as taxpayers begin to receive letters telling them that they have the honor of being selected for what I tell my students is the nightmare of all audits. According to tax lawyer Ian Comisky, quoted in this Philadelphia Inquirer story, and referring to the 13,000 taxpayers selected for the process, "You don't want to be one of those 13,000." Indeed. It is gratifying to learn that a practitioner has the same perspective that I have and that I share with my students.

Most IRS audits are reactive. The IRS computer system or a human reacts to a discrepancy between two items on a return or between the return and external information such as a W-2 or Form 1099. One need not be a tax expert to wonder about a return that shows $30,000 in gross income, $15,000 in charitable contribution deductions, $10,000 in mortgage interest deductions, and $10,000 in state and local income and property taxes. It could turn out to be fine, because the taxpayer might have $300,000 of tax-exempt interest income. Or it could turn out not to be fine. The point is that returns selected in this manner usually do have problems, at a rate high enough to make it worthwhile for the IRS computer or a human to flag them for audit.

In a compliance audit, the IRS isn't reacting to a possible problem on a return. Instead, the IRS is trying to get a picture of how well the return filing process is working, and, to a lesser extent, how well its own audit process is faring in identifying the markers for flagging returns. Thus, the IRS does not restrict its attention to returns with possible problems, but to a representative cross-section of tax returns, including those that are in perfectly good shape. What the IRS is trying to determine is what percentage of returns have errors with respect to each of the many thousands of different items that can show up on an income tax return. As the results from compliance returns filter in, the IRS adjusts its flagging process so that more attention is paid to returns that report items with high error rates and less attention is paid to returns that report items with low error rates.

What is so different about a compliance audit? First, the odds of being selected don't depend on the extent a return flouts the tax law, shows obvious errors, or is likely to generate additional revenue after examination. Second, the IRS requires the taxpayer to provide documentary proof of every item on the return, starting with the taxpayer's name and social security number, through the names and taxpayer identification numbers of dependents, all the way to each item of income or deduction reported on the return. Third, according to tax professionals who have handled compliance audits, they are far more stressful and intimidating than regular audits. Fourth, the process takes time. A lot of time. Unlike an audit that zooms in on one or two items and that can be finished in 30 minutes, an hour or even half a day, a compliance audit can take a week or even two weeks, or as many as six months if the return shows many items. Fifth, the compliance audit, being an event to which a taxpayer ought not go alone unless he or she is a tax master, requires the expenditure of several thousand dollars or more to retain a tax advisor to assist during the process.

In short, compliance audits are a royal pain. But they are necessary, because there is no other practical and more efficient way to gather the information that the IRS needs to select returns for regular audits. Next year, even more taxpayers will be chosen for this ordeal.

It has been a long time since the IRS conducted full-scale compliance audits. Responding to taxpayer complaints, the Congress suspended the audits. Experts predicted that IRS regular audits would become less effective, because the IRS would be designing audits with outdated information. Years of increasing audit inefficiency and bloated federal budget deficits persuaded the Congress to let the IRS resume the compliance audit program.

The chief reason that the compliance audit is a time-consuming, aggravating, expensive, pervasive, and totally annoying experience is that the IRS has thousands of different items to sample and analyze. Each time the geniuses in the Congress add another credit or deduction to appease some special interest group or to reward some constituency, it adds another opportunity for tax cheats, con artists, and tax shelter designers, who are not the intended beneficiaries of this legislative largesse, to siphon tax revenue from the system. Since the IRS last conducted full-fledged compliance audits, Congress has added dozens, if not hundreds, of new deductions, new credits, modified deductions and credits, limitations on deductions and credits, gross income exclusions, and other "goodies" to the tax law. As bad as compliance audits once were, these will be worse. And yet the Congress, which created the things that make compliance audits necessary, continues to make them worse while all the while pointing fingers at the IRS and asking why the IRS can't make things better. Advice for the Congress: borrow some mirrors and look into them.

To all who are selected for a compliance audit, I extend my sympathy. And I invite all who are selected for a compliance audit to join in the effort to simplify the tax law, and to subscribe to the notion that the tax law mess is primarily the responsibility of the Congress and not the IRS. For whatever blunders the IRS has committed, they pale in comparison to the atrocious legislation spewing from the Congress during the past 20 years.

Real estate property taxes have grabbed the spotlight in Philadelphia and it doesn't appear as though they are willing to exit anytime soon. I tackled the issue in An Unconstitutional Tax Assessment System, again in Property Tax Assessments: Really That Difficult?, and yet again in Real Property Tax Assessment System: Broken and Begging for Repair. Now, according to this Philadelphia Inquirer story, the City of Philadelphia has commenced litigation against property owners who are in arrears on their real property tax bills. The total amount claimed to be owed exceeds $3,600,000.

The list of people being sued by the City of Philadelphia includes some familiar names. One, former heavyweight champion Joe Frazier, is known throughout the world. The gym he runs, according to the Board of Revision of Taxes, owes almost $130,000. Even more is said to be owed by The Wynnefield Community Resource Center, which is being sued for more than $300,000.

There are attorneys on the city's list of delinquent taxpayers. One is accused of owing more than $80,000 and another, who ten years ago confessed to embezzling more than $100,000 in federal funds, reportedly owes more than $75,000.

The city plans to bring more lawsuits. There are more than 23,000 taxpayers on the delinquency rolls. More than $235,000,000 in unpaid taxes await collection, possibly by foreclosure if the funds don't show up in the city's bank accounts soon enough. Of that amount, $126,000,000 would go to the School District, which has struggled financially for a long time.

Why do taxes go unpaid? In some instances, taxpayers encounter financial difficulties. In other instances, it could be mismanagement, which is what spokespersons for Frazier and his gym offer as the explanation. In some situations, taxpayers play the "wait until and if they find me" game, hoping that the city's record keeping system loses track of them. There are situations in which properties decline in value to so small an amount that it makes sense to some owners to walk away and let the city take the property.

The situation in Philadelphia makes it so obvious why society suffers when taxes are unpaid. Public school education in Philadelphia has more problems than it can handle, and surely the spending cuts that the district is compelled to make each year are attributable to some extent to the unpaid taxes. The same can be said of the services cuts that the city has had to implement because its revenue stream is constricted by the failure of taxpayers to pay the taxes. Making matters worse, time and resources that could be directed to fixing the broken system are instead diverted to chasing down tax delinquents. It's a cycle that must be broken, for if more and more taxpayers decide not to pay because they resent nonpayment by others or think they, too, can win at the "let them find me" game, it won't be long before the city's revenues dwindle so much that it cannot operate in any meaningful way. Why it took so long for the city to crack down is yet another question that needs to be answered, lest it happen yet again.

In two earlier posts, An Unconstitutional Tax Assessment System and Property Tax Assessments: Really That Difficult?, I noted that "[a]t the root of the [real property tax] problem is the manner in which real property is assessed a value for purposes of the real property tax," that "[t]he system needs to be fixed," and that "I have a sense things will become more complicated and frenetic before they are resolved."

Proof that the real property assessment system is a mess, that things have become more complicated, and that the entire system needs to be fixed popped up last week when it was revealed that the Philadelphia Board of Revision of Taxes voted, by a 4 to 3 margin, not to reassess state senator Vincent Fumo's 27-room mansion. According to this Philadelphia Inquirer story, Fumo put his home on the market for an asking price of $7,000,000. The home currently is assessed for real property taxes as though it was worth $250,000. Fumo might not get $7,000,000 for his house, but he surely will get far more than $250,000. Fumo paid $175,000 for the property in 1994, and has invested substantial sums fixing it up. Perhaps the basement shooting range contributes to the perceived value reflected in the asking price. Clouding the picture is an accusation by prosecutors in Fumo's corruption case that the improvements were supervised by a taxpayer-paid member of Fumo's staff.

To ask how his property has such a low assessment is to ask an easily-answered question. The assessment process is broken. Assessments are not changed as market values increase. A closer look at the problem can be found in An Unconstitutional Tax Assessment System and Property Tax Assessments: Really That Difficult?. There are homeowners in Philadelphia whose homes are assessed at the equivalent of $250,000 who would probably get no more than 10 percent of $7,000,000 if they were to sell their homes.

The decision not to change the assessment on Fumo's home might appear wrong, and it might bother some people, but, unfortunately, it is the correct result under current law. First, the assessment law prohibits assessors from doing reassessments on a random, sporadic, or ad hoc bass. These so-called "spot assessments" provide too many opportunities for dishing out rewards and punishments in unjustifiable ways. Second, the fact that an asking price is put on a property is scant evidence of its value. Granted, this second reason is temporary, because when the property does sell, the selling price cannot be dismissed in the same manner. Third, the asking price includes furnishings, the value of which are not part of the value that can be taxed under a real property tax.

What makes the story juicy is that two members of the Board who voted against increasing the assessment included, according to the Philadelphia Inquirer story, both the president of a charity involved in a corruption investigation of Fumo, and a real estate broker who has a business relationship with Fumo and who has contributed to Fumo's campaign fund-raising. One of the Board members voting for an increase was once a political ally of Fumo but has since parted ways.

The Board intends to reassess the property when it does a general reassessment for 2009. Fumo's house wasn't reassessed for 2007 because the city's computer system did not find comparable properties to match Fumo's house. Isn't that further proof that the system is so broken that, as I have argued, the legislature needs to put aside the tinkering and bickering and overhaul it?

Please, CNN, let this story be a Halloween gag, you know, an October's Fool joke. Please?

The revenue folks in Iowa, a state I've always considered in the forefront of good education, to say nothing of sensible people, have come out with Nightmare in Des Moines, a ruling that pumpkins are not food and thus are subject to the sales tax. Pumpkins, according to the revenue officials, are not food because they are used primarily for Halloween decorations. According to those making this decision, "We made the change because we wanted the sales tax law to match what we thought the predominant use was. We thought the predominant use was for decorations or jack-o'-lanterns." The sales tax applies if the pumpkins are advertised for use as jack-o-lanterns or decorations.

Yes, I have relatives in Iowa. There's a very capable and witty fellow tax blogger there. So it seems so uncharacteristic of Iowa and Iowans, at least from my perspective, to conjure up this mischief. The questions race through my brain:

1. Is there empirical evidence that pumpkins are used "primarily" for decorations or that the predominant use is for jack-o-lanterns? In a few weeks, there will be pumpkin pie every which way I turn, and when I turn back, someone will put some pumpkin bread into my hands.

2. Does the phrase "We thought" suggest that the process did not involve something that would generate the phrase "From our empirical studies, we concluded...."?

3. Considering that every sensible retailer in the state, namely all of them, will simply remove any reference to decorations from their advertising, what's the point? Since when does the hype of an advertisement determine the substance of the product?

It gets better. Way better.

People who purchase pumpkins in Iowa and intend to eat them can get a tax exemption if they fill out a form.

Are you kidding me? This is a joke, yes? Please?

I suppose the form would be known as the Pumpking My Stomach and Not My Porch form?

What happens if someone fills out the form but fails to eat the pumpkin because their son or daughter takes a knife to it and shoves a candle down its throat (or through its dismembered skull)? AHA, a recapture tax, yes? How would they know? Easy. They will hire pumpkin consumption auditors. How does one prove that he or she ate the pumpkin (or at least its innards, as the skin isn't very tasty and don't ask me how I know that)? Cell phone photos? Perhaps auditors will drive through neighborhoods counting the number of pumpkins used as decorations?

What's next, a sales tax on candy and other ingredients used to build inedible gingerbread houses? A sales tax on rice thrown at weddings? Wait, perhaps a sales tax on eggs tossed onto houses and cars on mischief night? OK, ladies, if you're bathing in milk, go back to the store and pay a sales tax.

Sorry, Iowa Department of Revenue, this ruling is a puking Pumpkin portent. Put it in its grave now.

Well, at least I found another "tax and Halloween" story. It's no wonder. Two frightening things meet and we had best stop there, yes?

It's Halloween. Somehow, without intending it, I have developed a MauledAgain tradition of focusing on this holiday each year that it rolls around. So I'm going to treat my readers yet again to some spooky thoughts. I might not have a ghost of a chance to amuse anyone or to make them laugh, but perhaps I can trick people into reading til the end.

In 2004, I looked at the idea of Taxing "Snack" or "Junk" Food. Those proposals seem to have melted away into the shadows of outright bans enacted by local governments on the use of trans-fats and other injurious food ingredients. But not seeing a ban on candy, I will let this issue settle in for a vampire's sleep. Please, someone, insert a stake through the heart of the dormant candy tax project. Let us not forget, chocolate is medicinal, and most state sales tax statutes exempt medicines from taxation.

In 2005, I had some fun with Halloween and Tax: Scared Yet?. Between trying to use every word associated with Halloween, and trying to find connections between various taxes and the tradition of dishing out candy, I managed not so much to scare people but to make them sick to their stomach, as if they had ingested 15 or 20 non-chocolate candy items.

In 2006, I simply lamented my inability to find four-pack versions of Reese's Peanut Butter Cups. In Happy Halloween: Chocolate Math and Tax Arithmetic, I noted that 2 double-packs isn't quite the same thing. It was a very short post. Imagine that! Perhaps the disappointment in my search for the ideal Halloween hand-out left me at a loss for words.

The recurring theme of chocolate, candy, and taxes has become the underlying skeleton on which different flesh is arranged each year in my Halloween post. Rather gory to picture, but each of us gets to build our monsters in our own peculiar way.

This year brings a double whammy. Once again, I failed to find four-pack versions of Reese's Peanut Butter Cups. I wonder if this is a shortage not unlike the ones in steel and cement, somehow triggered by consumption in developing nations. Is there some magic ingredient that is difficult to find? Was there a complaint filed by the manufacturers of those woefully small plastic Halloween pumpkin buckets carted by the smaller trick-or-treaters that noted the impossibility of fitting a Reese's four-pack into the child's candy accumulation device?

This year, for the first time since 2001, Halloween falls on a Wednesday. I won't be home when the first wave of treat-seekers arrives, because I will be teaching a tax course in the Graduate Tax Program. By the time I get home, most of the costumed characters will have passed through the neighborhood. Only a few sugar-starved college students from the university and some high school students holding on to one of the better experiences of childhood will show up after 8:15. But have no fear, ouch. I've left Reese's Peanut Butter two-packs with my neighbors, who will once again act as surrogate candy distributors for me. I simply need to remember to put up the signs that tell the masqueraders that a double treat awaits them across the street. In an almost unprecedented feat of memory, I not only remembered that I had signs from 2001, had saved them, and had put them in a particular spot but I also found them in that spot. I know I impressed at least one person with that eerie mental performance, and I even received free advice on how to affix one sign to the lamp post (something I'm sure I did 6 years ago but could not remember precisely how I had done so).

So now I wait to see if I purchased a sufficient number of two-packs. I live in fear that a youngster would be turned away by me because the inventory ran out. Horrors! Blessed with my mother's belief that no one should ever leave hungry, I purchase in bulk, adding 20 percent to the previous year's visitor count to determine how many to buy. I'd rather have some left over than to run out. Next year, I will try to remember to explain the demographics and the candy hunting styles of the groups that arrive at my door on Halloween. Perhaps by then I'll figure out what the tax issue is.

Drivers in Philadelphia, like those in other American cities, cope with increasingly slower traffic, growing congestion, longer travel times, more frequent back-ups due to accidents and break-downs, and a headlong rush into a looming permanent state of gridlock. The cause is simple. It's a combination of increased vehicle volume and inadequate highways. The conceptual solution is just as simple. Design some combination of decreased vehicle volume and increased highway capacity.

Decreasing vehicle volume requires a focus on one of the two causes of the increase. One cause, population increases, isn't very easy to change. It might be well nigh impossible. The other cause, an increase in vehicle miles, can be reversed through a careful mix of more attractive alternatives and stronger impediments to vehicle use. All elements of that mix would cost money to design and implement.

Increasing highway capacity also costs money to design and implement. Whether it involves building new highways, widening existing highways, fixing traffic signal timing, restructuring intersections, or changing traffic flow patterns through one-way street designations, elimination of on-street parking, or repaving, nothing much can be done without an infusion of cash.

So the congestion problem, no matter how it is alleviated or even solved, presents yet another instance in the long list of social problems that require us to answer the question, "So where do we get the money?"

Thus, it is not a surprise to read a story in Friday's Philadelphia Inquirer, one whose headline says it all: One Solution to Congestion: Local Taxes. The story explains that the Delaware Valley Regional Planning Commission released a study in which in concluded that a viable way to ease congestion would be to impose local taxes or fees. The Commission looked at 23 different taxes and fees, including a sales tax on fuel, cigarette taxes, liquor taxes, earned income taxes, general sales taxes, vehicle sales taxes, property taxes, tire taxes, hotel taxes, parking taxes, real estate transfer taxes, rental car taxes, leased vehicle taxes, vehicle property taxes, vehicle registration fees, vehicle title fees, access fees on commercial buildings near transit stops or highway exits, fees on all impervious surfaces, fees on rising property assessments in specific local districts, mass transit fare increases, tolls on local interstates and limited access highways, increases in existing turnpike and bridge tolls, and a vehicle-mile fee. The last one appears to be not unlike the mileage fee on which I most recently commented in Mileage-Based Road Fees, Again.

As a practical matter, the local governments in the Delaware Valley have little power to enact fees and taxes. The state legislature imposes all sorts of limitations on what the localities can do.

As an advocate of user fees, and as a supporter of the mileage-based road fee, I consider most of the fund-raising taxes and fees studied by the Commission to be inappropriate. There are all sorts of reasons for society to tax cigarettes, but financing travel is not one. The same can be said of earned income taxes, real estate taxes, hotel taxes, and general sales taxes. Some of the taxes and fees that appear more closely connected with highway use, such as vehicle title fees, vehicle sales taxes, tire taxes, and parking taxes, are unlikely to reach all highway users and would generate distortions in the financing of road use. Arguments can be made for new tolls and increases in existing tolls, but if a better alternative exists, why not use it? It makes far more sense to make the cost proportional to each vehicle's use of the road, and that is something the mileage-based road fee does.

One objection to user fees is the assumed inability of low-income and no-income individuals to pay them. The relief of poverty, though, ought not come through the disregard of user fees or the exemption of certain individuals from paying them, but through general assistance to persons who are unable to pay all sorts of expenses, not just user fees, and through increasing the employment marketability of the poor by providing qualified skills training and encouragement to enroll in that training.

In its report, the Commission asks, "Do local residents or local politicians have any appetite for new taxes and fees?" The Commission calls this a big question. Yes, indeed. A prevalent feature of postmodern culture is the notion that things can be had for free, that there is no cost, that if there are costs they should be shifted to others, and that taxes are per se evil. Some politicians have made careers out of those philosophies, and it appears not to bother them that the nation is deep in debt to other countries because of opposition to raising the revenue required to provide all of the things that voters tell their representatives they want society to provide.

The executive director of the Commission summed it up nicely. "I don't know whether people are feeling enough pain yet from traffic congestion . . . to feel that they are willing to support or fund [new transportation taxes.... In order for a larger audience to get behind it, they need to really feel the need and see that the funds are spent on local projects." In other words, taxes get public support when the public understands that the true, long-term cost of no tax or a smaller tax exceeds the cost of a new or increased tax. Sometimes, unfortunately, the realization comes too late. Hopefully that will not be the case when, one morning in the future, people find themselves stopped in traffic for eternity.

Yes, folks, chocolate has so many good qualities. It is medicinal. It tastes good. It has many culinary uses. And now comes news that chocolate can enhance the ratings received by a teacher on student course evaluations. According to Sweetening the Deal, an article that appeared in last week's Inside Higher Ed, a study demonstrated that higher scores on student course evaluations were attained when the students doing the evaluations were given chocolate. The title of the study, to be published in "Teaching of Psychology," is worth noting: "Fudging the Numbers: Distributing Chocolate Influences Student Evaluations of an Undergraduate Course." There's no doubt the same outcome would ensue if the study had focused on law students.

The study's authors became interested in the impact of externalities on evaluations when they were graduate students. They noticed that it was a fairly common practice for faculty to distribute candy to students when evaluation time rolled around. In the study, however, the candy was distributed by someone not otherwise connected with the course. In all three test groups, the half of the students getting the chocolate gave higher ratings on the evaluations.

The results do not surprise me. Nor am I surprised by the practice of some faculty of handing out treats. It happens. I've seen faculty have wine and cheese parties at the end of the semester, I've seen faculty bring in brownies, I've seen faculty bring in chocolate candy, and even, I, myself, once, a long time ago, when I was inexperienced and younger, brought in chocolate chip cookies that I had baked. I should not have admitted to being the baker, because students refused to eat them. It was near the beginning of the semester and I simply had made too many cookies. Perhaps they thought I was going to poison or sicken them. A tax guy making cookies? Impossible. Well, my friends and family know better even if my students don't. It's not as though students here don't like treats or object to chocolate. When, some years later, I noticed that the trays of brownies left over from the class preceding mine had been pretty much scarfed clean, I thought to myself, "Is it a gender thing? Somehow, men ought not bake, or admit to baking, chocolate chip cookies?"

It appears that in some instances the distribution of treats by law faculty is yet another attempt to soften the harsh realities of legal education, in part by persuading students that their teachers are not the ogres portrayed in Paper Chase. There is a good bit of "I want my students to like me" in all of this. Perhaps the desire to be liked is connected with a notion that the more a teacher is liked, the higher the evaluation scores. It's important, though, that a teacher be liked for the right reason, namely, that he or she is doing what needs to be done to educate the student and prepare the student for law practice. Unfortunately, much of what needs to be done to accomplish those goals doesn't create a fun-time, let's party, teacher-is-cool atmosphere in the classroom.

And that brings me back to evaluations. If, as I believe and some others do not, the task of the law professor is to prepare students for law practice, the best way of measuring the professor's teaching proficiency through student reactions is to canvass the students after they have graduated and practiced for a few years. It's amazing how much light the realities of the practice world can shed on a student's perception of a law school course. The ideal question, "Rate this professor in terms of his or her ability to prepare you for law practice," isn't one that a law student can answer, simply because a law student, even if enrolled in a clinic or externship for a few months, hasn't been immersed in law practice as a lawyer. Thus, the suggestion by one of the study's authors that evaluations be done several weeks before the end of the semester is unwise. The more of a course that a student experiences, including the final examination difficult though that may be, the more the student can appreciate what the course has or has not done for the student's learning development.

Yes, there are questions that ought to be asked of students. These are the questions designed to identify faculty who make racist comments, who throw things at students, who come to class late, who don't respond to student emails, and who otherwise are violating the terms of their contracts. It doesn't make sense to ask all the students whether there was a syllabus in the course, because the administration can figure that out for itself. The only possible reason to ask the question is to identify evaluations on which a student responds that there is no course syllabus when, in fact, there is one. Such an evaluation should be thrown out, and its responses ignored, because the answer calls into question the mental competence of the responding student. To the best of my knowledge, these evaluations are treated just as are the others. Scary, isn't it? The worst question is the "compare this professor to your other professors." Aside from turning the evaluation into a popularity contest --- does one get points for bringing in goodies?--- this question does nothing to determine the teaching competence of the faculty member as measured against a standard. The numbers available for answering that question have no meaning. Is someone getting a "2" twice as good a teacher as someone getting a "1" and does getting a "5" mean that the person is perfect? It matters because some faculty and administrators put all sorts of value on the responses. Fortunately, other administrators and faculty give these things the weight they deserve.

Speaking of weight, I wonder how many pounds of chocolate are sufficient to increase evaluation scores. And should it be packaged in brownies, cookies, candy bars, or as coffee flavoring? Should alternative treats be available for the unfortunate few who dislike chocolate or who are allergic to it? Perhaps someone will conduct follow-up studies. In the meantime, another suggestion from one of the study's authors makes sense. Treats should not be handed out with evaluations. I'd go further. They ought not be handed out during the evaluation period, and ideally, ought not be handed out at all.

Yes, it's another story of corruption and institutional mismanagement. In Seaport's Carter Asks for Leniency two Philadelphia Inquirer staff writers explain how John Carter, former head of the Independence Seaport Museum in Philadelphia, has reacted to his conviction on two counts of mail fraud and one count of tax evasion. Carter pled guilty in June.

According to theCriminal Information filed by the federal government, Carter was charged with defrauding the museum of more than $1,500,000. He caused the museum to pay for a root canal, calling it "boat supplies," to pay for a new roof, describing it as "caulking" for one of the museum's boats, to pay for jewelry and clothing, describing them as "supplies" for the boat, to pay for other clothing, describing it as "uniforms" for the crew of a museum boat, to pay for gym fees, classified as a "meetings" expense, and to pay for all sorts of other things described as connected with museum activities and property. He allegedly used museum funds to pay for a $210,000 house, a $275,000 boat, another $100,000 boat, a $6,900 bed, a $1,700 expresso machine, a $50,000 work of art, $50,000 of electronic equipment, and all other sorts of things. Apparently, the museum's oversight of its top executive was "inadequate," and Carter allegedly knew it. During the period in question, Carter received a $301,000 salary and lived in a townhouse owned by the museum, for which he paid no rent.

Recently, Carter sent a letter to the judge responsible for the sentencing, attempting to persuade the judge to go easy on him. He claims he wasn't the only museum employee doing what he did. He claims that members of the board and donors were part of what Carter's lawyer called a "culture of corruption and self-dealing." According to Carter, these people "exploited the museum for questionable tax breaks and stuck it with the bill for lucrative no-bid contracts, expensive parties and pricey boats." The chairman of the board denies Carter's allegations.

Carter justified his actions by claiming that after seeing others do the same thing, he imitated them to get "my fair share." He points out that his parents were alcoholic and abusive. He notes that his health is bad and his wife has filed for divorce. He asks why the board didn't fire him, and then answers his own question by claiming the board inadequately supervised him.

Carter filed letters written by his daughter, other relatives, friends, and business associates. They claimed to be "confounded" by what Carter did. Carter says he "can hardly believe it himself."

Carter is arguing for a sentence of no more than four years. The prosecutors take the position the sentence should be 19 years.

So a fellow defrauds a non-profit organization he was hired to protect. He does not report the illegal income on his tax return as the law requires. He is caught. He pleads guilty. He expresses bewilderment at what he did. He justifies his actions on the grounds others were doing it, cites the challenges of his childhood, health, and marriage, and then suggests that somehow had the board fired him as it should have done the problem would not be so severe.

The most telling part of the entire story is this. Carter made a deliberate decision to defraud the organization in order to get "my fair share." The scheme, though not brilliant, was carefully designed to hide personal expenditures as costs properly chargeable to the non-profit organization. What I would like to know is how Carter computed his "fair share." That would help the rest of us compute ours.