MauledAgain

A long-time reader pointed me in the direction of a report about the impact of music on performing a task. A study by a team from Imperial College London and the Royal College of Music invited 352 visitors to play the game Operation, which involves removing body parts from a model. I haven’t played that game, but I suppose it is derived from the “Invisible Man” toy that was around the house when I was a child. The researchers compared the outcomes when three different background sounds were played while the volunteers undertook their tasks. One was Mozart’s Andante from Sonata for Two Pianos, the second was AC/DC’s Thunderstruck, and the third was the sound of an operating theatre. It turned out that men who listed to AC/DC were slower and made more mistakes compared to those listening to the other two background tracks. On the other hand, it made no difference for women which of the three tracks were playing. Though there is no explanation for the difference, researchers are guessing that rock music causes more auditory stress in men. It also turned out that hearing Mozart reduced mistakes only if they acknowledged deep appreciation for the Sonata.

According to the Centre for Performance Science, a joint project between the two colleges, nusic is played in operating rooms 72 percent of the time. Some research shows that Jamaican music and hip-hop increases operating speed and surgical instrument manipulation, whereas one in four anesthesiologists reported that it reduced their vigilance. One bit of advice from the research is to avoid rock music when operating or playing a board game.

So my long-time reader then pointed out how he selects music when preparing for the tax season and while doing tax returns:

In the weeks leading up to a new tax season, I do the opposite in which the article recommends to increase my concentration. I play loud music from Billy Joel concerts and albums of Maynard Ferguson a phenomenal trumpet musician while I am studying the tax laws. I do this for the following reasons: the tax offices I work in are far from quiet, the kids are running around and yelling, the clients sometimes argue , the multiple phones are ringing, the copiers and printers are working, the television is blaring, and other tax associates are working with their clients and asking me questions about their returns, while I am concentrating on completely my client's tax return while other clients are waiting to prepare their tax returns. Listening to Mozart just won't cut it.

I have colleagues who play music, of various genres, while they are in their offices preparing for class or working on their research and writing. There are tasks that I can do while music is playing, but there are other activities which I do not perform well if music is in the background. However, because I am often performing multiple tasks, it could be that my brain cannot handle music when I am undertaking two or more tasks. Perhaps it is time to experiment.

I do know that the reverse is true, at least for me. I have sung several Mozart compositions as part of my church choir, and it required my complete concentration during rehearsal and during the service for me to even have a chance of getting it right. On the other hand, singing “Happy Birthday,” which I do fairly often – as we sing to each choir member on his or her birthday – is something I can do while multitasking.

All of this leaves me wondering. How many tax return preparers have music playing in the background while preparing returns, or interviewing clients? How many tax practitioners put on music while studying changes in the law, researching an issue, or writing a letter or memorandum? Perhaps some foundation or other organization would be willing to underwrite a study. I’m confident it would be easy to find participants and to experiment with all sorts of music.

A recent Tax Court decision, Chaganti v. Comr., T.C. Memo 2016-222, following up on an earlier opinion, Chaganti v. Comr., T.C. Memo 2013-285, rejected an attorney’s claim that he was entitled to deduct fines imposed on him by a court for the way in which he conducted litigation. The outcome is not surprising, but serves as a lesson for other attorneys.

The dispute between the taxpayer and the IRS reaches more than a decade, and involves a long list of issues, only one of which is the focus of this post. The taxpayer is a licensed attorney practicing since 1998. In 2004, the taxpayer began performing legal services for a client who was the plaintiff litigating in a case filed in the U.S. District Court for the Eastern District of Missouri. On November 14, 2005, the district court order the taxpayer to pay a $262 fine for opposing counsel attorney’s fees and court reporter charges as a result of the taxpayer’s role in his client’s failure to appear at a deposition. The taxpayer did not pay the fine, and accordingly was held in contempt at a hearing on December 29, 2005. He was ordered to pay the $262 on or before January 2, 2006, and if it was not paid by that date, a daily fine of $100 would be imposed until the fine was paid. The taxpayer paid the fine on January 26, 2006. During the remainder of the litigation, petitioner engaged in behavior that the district court deemed unnecessarily protracting and contentious. The district court ruled against the taxpayer’s client and for the defendant on a motion for summary judgment in March 2006. The taxpayer, as plaintiff’s counsel, filed a motion to reconsider, vacate, and set aside the judgment, which was denied on April 12, 2006. The taxpayer appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit, which affirmed the District Court’s decision on April 26, 2007.

After judgment was entered, the defendant filed a motion for attorney’s fees and bill of costs. The defendant’s motion requested that the taxpayer, as opposed to the plaintiff himself, pay the excess attorney’s fees incurred as a result of the taxpayer’s “bad faith, unreasonable, and vexatious multiplication of the proceedings”. On August 22, 2007, the district court granted this motion in part, allowing the award of excess attorney’s fees of $18,125 which it specifically attributed to the taxpayer’s misconduct. The district court ordered the taxpayer to pay $18,125 to opposing counsel and also ordered the taxpayer to pay to the clerk of the court a $2,300 fee for late payment of the original $262 fine, representing $100 for each of the 23 days that the payment was overdue. The taxpayer paid these amounts on December 28, 2007.

The taxpayer did not timely file federal income tax returns for 2006 and 2007. After the IRS prepared substitutes for returns on March 22, 2010, and June 15, 2009, respectively, the taxpayer eventually filed delinquent returns for 2006 and 2007 on May 26, 2010. On the 2007 return, the taxpayer petitioner claimed a business expense deduction of $20,425 for the court-ordered payments. This amount was the sum of the $2,300 fee for late payment of the $262 deposition fine, plus the $18,125 the taxpayer was ordered to pay for opposing counsel attorney’s fees. On January 6, 2012, the IRS mailed to the taxpayer a notice of deficiency for tax years 2006 and 2007. The determination of deficiencies was based on, among other things, a denial of the deduction for the court-ordered payments. On March 19, 2012, petitioner timely filed a petition in the Tax Court for review of the IRS determination.

On March 4, 2013, the taxpayer filed a motion for partial summary judgment, requesting the Court find in his favor in regard to several issues, including the deduction of the court-ordered payments, believed to be questions of law about which there existed no genuine issues of material fact. On March 12, 2013, the IRS filed a cross-motion for partial summary judgment on the same issues. Also on March 12, 2013, both the taxpayer and the IRS filed objections to each other’s respective motions for partial summary judgment.

Because section 162(f) bars the deduction of fines or penalties paid to a government or government agency for the violation of any law, and is not limited to criminal fines and penalties, the Tax Court held that the $2,300 was not deductible. It was a sanction for the violation of the taxpayer’s duties as an officer of the court in being held in contempt and failing to pay in a timely manner the $262 sanction, and it was paid to the clerk of the court for the district court, a governmental agency responsible for collecting these types of fines and penalties.

In contrast, the other two sanctions were not paid to a government or governmental agency but to opposing counsel. The Tax Court held that a genuine dispute of material fact existed with respect to the $262 amount, because the taxpayer argued that it was ordinary and necessary to keep his client from appearing at the scheduled deposition due to a unidentified unforeseen circumstance, because it was not known under which statute the taxpayer was ordered to pay the $262, what criteria were applied, and whether the imposition in and of itself indicated that the expense was not ordinary and necessary to the practice of law. Accordingly, the motions of the taxpayer and the IRS for summary judgment on this question were denied. The Tax Court held that the taxpayer was not entitled to deduct the $18,125 amount paid to opposing counsel because it was imposed under 28 U.S.C. section 1927 on account of the taxpayer’s improper conduct. The Tax Court concluded that the mere fact the taxpayer was ordered to pay that amount under the statute demonstrated that it was not ordinary and necessary to the practice of law, noting that the district court separately identified an additional amount paid to opposing counsel in the ordinary and necessary conduct of the practice of law.

But things did not end there. The parties continued to deal with the unresolved issues in the case, and went to trial on some of them. The IRS conceded the deductibility of the $262 payment. Ten days short of three years after issuing its earlier opinion, the Tax Court decided the remaining issues, including the deductibility of the $18,125 sanction. Though the court had decided it was not deductible as an ordinary and necessary business expense, it left open for the taxpayer the opportunity to justify the deduction on another theory. In this round, the taxpayer argued that the payment was deductible as a loss under section 165. The Tax Court held that because the sanction was penal in nature it could not fit within section 165(a)(1) as a loss incurred in a trade or business or within section 165(a)(2) as a loss incurred in a transaction entered into for profit. Nor, by its very nature, did it fit within section 165(a)(3) as a loss incurred because of a casualty or from theft. Prior case law established that loss deductions are denied if allowing the deduction would frustrate sharply defined national or state policies proscribing particular types of conduct. Allowing the deduction would, to paraphrase the Supreme Court, substantially dilute the actual punishment.

The taxpayer’s experience was a cascade of problems. It began with behavior sanctioned by a federal district court. It was compounded by failing to pay the sanction and being held in contempt. It was worsened by failing to pay the sanction by a deadline set after being held in contempt. It was made even worse by the consequences of imposing additional costs on opposing counsel, which were ordered to be paid along with an additional sanction. It was intensified by failing to file tax returns. It was exacerbated by claiming a deduction for amounts clearly not deductible.

Sometimes attorneys, particularly those who haven’t practiced for a long time, are disadvantaged by having absorbed bad lessons from the behavior of attorneys in movies and television shows and by the failure to grasp, or perhaps to have the opportunity to grasp, words of caution as they travel their educational path. It is important to understand that the consequences of inappropriate behavior include not only the direct response of a court but also the unwelcome tax consequences.

People have long complained about the amount of time it takes to do a tax return. Not only is there the time required for entering numbers on a return, there is the time required to dig up receipts and other information, and the time to learn what to do, particularly when the law has changed from the previous year. Tax preparation software has reduced the time somewhat, but, still, it takes time to file one’s taxes. And if a person is audited, that’s more time, even if a tax professional is paid to do the heavy lifting. And if the dispute goes to court, even more time is required.

Overlaying this concern is another aspect of time. Most people prefer certainty, so most people prefer that once they file their returns, they are done with it. A few people, who understand the statute of limitations, let themselves relax once enough years have passed by. But what if a return is audited and litigation ensues? Tax attorneys know that these things can drag out. It’s not unusual for a Tax Court opinion released in 2016 to involve taxable year 2009 or 2010.

Yes, that’s right, it can take six or seven or more years from the time a return is filed until a dispute with the IRS, or a state revenue department, is resolved. But it can take even longer. According to this report, Comcast has been embroiled in a tax dispute for 17 years, and it’s still not resolved.

How can it take that long? In 1999, Comcast was paid $1.5 billion by Media One after Media One backed down from an agreement to sell itself to Comcast and instead sold itself to AT&T. Comcast assigned the payment to a Delaware subsidiary. Delaware does not subject income from intangible sources, such as this payment, to its income tax. It took ten years for the IRS and Comcast to reach agreement that the payment constituted income for federal income tax purposes. Once that happened, it triggered review by California. California claimed that Comcast owes California income tax on the payment because the agreement and eventual termination of the agreement took place in California between Comcast and a California-based business. So another few years go by, and in 2014 a California court ordered Comcast to pay income taxes on the payment, which Comcast has done. Comcast now has filed an appeal. California argues that Comcast assigned the payment to its Delaware subsidiary in order to avoid Pennsylvania tax on the payment. Pennsylvania is now waiting to see what the California court decides. So the saga very well may continue, in Pennsylvania, after the California chapter of the story plays out. And apparently several other states in which Comcast does business are eyeing the possibility of taxing an apportioned amount of the payment.

It shouldn’t take 17 years to resolve a dispute, tax or otherwise. Ten of those years are attributable to working out a question that can be answered in a few minutes. The payment is gross income for federal income tax purposes. There’s no record of what arguments were made or why it took so long for that issue to be resolved, but until it was resolved, the state tax issues where in abeyance. When a case takes a long time to be resolved, it usually isn’t the complexity of the facts or the murkiness of the law. It’s often a matter of delays for other reasons.

Oh, if 17 years and counting seems high, consider the case that has been open since 1972. More than 72 percent of the people alive today weren’t alive when that case began. Wow.

The wealthy continue to line up for financial assistance. A profitable business conjures up arguments for why the public should contribute to an increase in its profits. The sales pitch is a claim that the business benefits the public at large. Omitted from the discussion is the admission that if and when the public benefits the public will patronize the business and generate revenue for the business through cumulative individual decisions rather than through political shenanigans that force all taxpayers to underwrite a business than a majority do not want to support. I wrote about this scheme twelve years ago in Tax Revenues and D.C. Baseball, four years ago in Putting Tax Money Where the Tax Mouth Is, Taking Tax Money Without Giving Back: Another Reality, and Public Financing of Private Sports Enterprises: Good for the Private, Bad for the Public, and a little more than a year ago in Taking and Giving Back.

My commentary last year focused on the attempt by the very profitable NFL to persuade taxpayers in St. Louis, Missouri, to fund a new stadium for the Rams. That didn’t work, and the Rams are now in Los Angeles. Apparently the message, that the taxpayers do not want to finance profitable private sector enterprises, did not get through to everyone. A recent report explains that a major league soccer ownership group is doing its best to get the city of St. Louis to provide $80 million of funding, and to get the state of Missouri to dish out $40 million in state tax credits, to finance the construction of a soccer stadium. The group is parading forth the usual arguments about job creation and economic benefits to the community, but no one has demonstrated that using the $120 million in other ways would not provide even more jobs and economic benefits. One of the would-be owners claims that “the stadium needs public investment for the deal to be a good private investment.” My translation is that the project is a bad investment unless the investors can make money by grabbing public revenues. The claim that the project will generate $44.8 million in tax revenues over the next 33 years is laughable, because only a fool would invest $120 million to earn back $44.8 million over 33 years.

The cost of acquiring a team and building a stadium comes in at $405, but the folks who want to join the ranks of the elite professional sports franchise ownership group are willing to put up only $280 million of the $405 million. If they want to be major league owners that badly, why can’t they put in all $405 million? The people on the list surely have more than enough assets to buy what they want. The answer is simply, why spend your own money when you can find a way to get other people to pay for your wishes? Of course, when others do this sort of thing, they are called takers even if they have little or no money. When the oligarchy does this, they are called clever, brilliant, resourceful, and admirable. The same would-be owner admits, “I don’t think other people are going to come up with $400 million of private money and believe that’s a reasonable investment.” My translation is that the idea of a $405 million major league soccer team in St. Louis isn’t economically worthwhile, for if it were, investors would be knocking on the door trying to get in on the deal, but it is a wonderful investment if it becomes a pathway for private sector investors to grab public funds.

The public financing of this private enterprise must be approved by the taxpayers in a referendum. It remains to be seen how the taxpayers react. Careful analysis might cause them to realize that the woes of which they complain are endemic to a system that is reinforced and enabled if the methods used to perpetuate the system are supported. It would make much more sense for this group of would-be owners to do some fund-raising among soccer fans in St. Louis, giving them partial ownership of the team and stadium. If that raises the $120 million that the would-be owners are unwilling to put in, fine. If it doesn’t raise the required funds, then the message that St. Louis doesn’t want a professional soccer team and stadium should be easy to understand.

For some reason, the fact that professional athletes must pay income tax to a state in which they play a game seems to disturb some people. Though I understand the disagreements over how an athlete’s income should be apportioned to a state in which an athlete plays one or more games, I don’t understand why the idea of paying income tax to a state in which a person does work or sells items in order to generate income is disturbing. Tens of millions of Americans, who aren’t headliners or stars, work in states other than the ones in which they live, either through cross-border daily commutes or through extensive or occasional out-of-state business travel, and yet little attention is paid to their state income tax situations compared to the angst demonstrated over what athletes face.

A few days ago, John Breech of CBS Sports published an article, “The Panthers have stayed the week in California during their West Coast trip, and that gets pricey, in which he points out that the team’s decision to remain in the state between their two regular-season games, along with its presence in the state for the Super Bowl, will cost Cam Newton $220,000 in California income taxes. Though the prospect of paying that sort of tax bill might overwhelm most Americans, it’s petty cash to a person earning, as Newton does, $20,000,000 in 2016, and $103.8 million over five years.

But what caught my eye and left me shaking my head was the first sentence of the article: “Panthers quarterback Cam Newton doesn't live in California, but he's going to be playing a lot of taxes there when Uncle Sam comes calling in April.” Uncle Sam is short-hand for the federal government. The federal government, through the Treasury Department, and more specifically, the Internal Revenue Service, collects federal income taxes. California state income taxes are collected by the California Franchise Tax Board. I’m unaware of any nickname for the California FTB, but perhaps a reader in that state can enlighten us. It is important to distinguish the federal government from state governments, and to distinguish the IRS from the FTB.

The advocates of tax cuts claim that cutting taxes puts more money in taxpayers’ pockets. Not only do tax cuts not benefit the economy if they are not appropriately distributed, as we saw fifteen years ago and are going to see again, tax cuts that require spending cuts shift the burden of those expenditures to other governmental units, requiring those governments to raise taxes. Until and unless legislators measure the true cost of what taxpayers want and then spread that cost in a manner that benefits the economy, the downward economic spiral will continue no matter what false promises or well-intended futilities are tossed about.

An example of this whack-a-mole tax shift was described in a recent report about the inability of the Pennsylvania legislature to enact a budget on time. One of the snags that caused the nine-month delay in setting out the state’s finances is the insistence by some legislators that taxes not be increased under any circumstances whatsoever. One of the effects of this approach to governance was the need for the state’s counties to raise taxes in order to make up the shortfall in revenue and the cutbacks in services provided to the citizens. Because the state relies on a variety of taxes, but counties and school boards rely primarily on real property taxes, the effect of this tax shift is to move overall revenue collection in the state in the direction of a less equitable and less efficient revenue-generating system.

The situation will worsen. The anti-tax crowd that will have unfettered freedom in the nation’s capital to curtail spending on things other than their pet projects while cutting taxes for the wealthy is proposing to shift responsibility for citizen services to the states. And states, in turn, either will raise taxes, or, where anti-tax crowds are in control, require localities to raise taxes. All that will trickle down from Washington through the states and into counties and localities are tax cuts for the wealthy and tax increases for everyone else. The nation went down this path fifteen years ago, and about seven years into the journey it all came crashing down. When that happens again, about seven years from now, the damage will be even worse, because what will be enacted dwarfs what was done in 2001.

One of the emails that bring me daily tax updates included, among its more than a dozen headlines, this one: Trump Has a Family Foundation. Why Don’t You? Though I didn’t think the question was aimed at me personally, I did stop for a moment and think about it. It would be nice, I suppose, to have a family foundation, if for nothing more than to preserve the genealogical and family history materials, books, pamphlets, maps, photographs, charts, and other data, in both physical and digital form, that I have accumulated. Surely it would be a benefit to the several hundred thousand individuals who have or will have a direct interest in the collection. But before I began seriously considering whether such a foundation would or could qualify for tax-exempt status, I answered the question. The answer is simple. I don’t have the financial resources.

According to the full article, as of 2014 there were about 40,000 tax-exempt family foundations making grants. That’s a lot, until it is contrasted with the number of people in the country, which is in the hundreds of millions. In other words, almost everyone does NOT have a family foundation. But perhaps that is because most of us aren’t anyone, as the article starts off, “Everyone who is anyone, it seems, has a family foundation.” Apparently there aren’t very many anyones in this country. But then the article notes that, “The vast majority of family foundations are headed by people you’ve never heard of.” But those people are still someones, because they have the clout that money brings, even if they are content to work in the shadows and don’t seek the publicity of tweets and political campaigns.

According to the article’s lead, most of these foundations have less than a million dollars in assets. What does that mean? Specifically, the median asset amount in 2014 was $735,000, and the average was $9.6 million. Three out of five family foundations held less than a million dollars in assets. Years ago, the benchmark for setting up a family foundation was a $5 million investment. In recent years, it has become possible to set up a foundation with $250,000. The reality is that most Americans, who struggle to make ends meet, who are in debt, and who find it difficult if not impossible to set aside savings, aren’t in a position to put $250,000 into a family foundation.

Operating a family foundation is complicated. There are a variety of restrictions, and anyone who pays attention to the news knows that the president-elect’s foundation recently confessed that it had engaged in self-dealing, which is a prohibited activity. The reason for these restrictions is to prevent someone from using tax-exempt status to avoid income and other taxes. To ensure compliance, it is necessary to retain experts who can assist the foundation and its trustees in avoiding missteps. That costs money. Foundations with millions of dollars in assets generate enough income to afford the cost of the experts. It’s a different story with a foundation holding $250,000 in assets.

So that’s why don’t I have a family foundation. Do I fret about this? No. But there’s the answer, in case the question had been aimed at me.

In a series of posts, I have criticized the New Jersey tax policy of dishing out tax breaks to companies that it entices to move to New Jersey, or to move to Camden from within New Jersey. Though the claim that handing out tax reductions ultimately raises tax revenue is offered as justification for these deals, the reality is that these sorts of tax breaks are as effective as trickle-down tax cuts, that is, they’re not. I have written about these giveaways many times, most recently in The Tax Break Parade Continues and We’re Not Invited, and previously in When the Poor Need Help, Give Tax Dollars to the Rich, Fighting Over Pie or Baking Pie?, Why Do Those Who Dislike Government Spending Continue to Support Government Spenders?, When Those Who Hate Takers Take Tax Revenue, and Where Do the Poor and Middle Class Line Up for This Tax Break Parade?

A recent article about a company denied a giveaway revealed, at least to me, another flaw in the tax break giveaway. It’s bad enough that taxpayer dollars are handed out to companies that are far from struggling economically, but now it turns out that if your company is too small, it’s barred from the tax buffet table.

After meeting with the Economic Development Authority, which guards the door to the tax breaks, the owners of the company were left with the impression that all was going well with the application. By merging, they had created a company with 42 employees, which was more than enough to meet the “number of employees” requirement for obtaining the tax break. But then the owners were told that their application was rejected. Why?

The Economic Development Authority rejected the application because it did not want to set a precedent that would encourage small companies to merge “for the sole purpose of securing tax incentives.” The company explained that it understood the decision because they guessed that the Authority was concerned that the merging firms would operate as four individual companies. Though one of the companies ended up dropping out of the merger, the others continued and moved into Camden despite the lack of the tax giveaway.

So the tax break is designed for large companies that already exist as large companies. Small fry need not apply. That makes no sense. First, it is an inappropriate and senseless distinction. If the goal is the creation of jobs, who cares whether a company with 15 employees creates 2 jobs for a $100 tax break or a company with 5,000 employees creates 20 jobs for a $1,000 tax break? Well, it doesn’t quite work that way, as the tax break isn’t measured by the number of jobs created, particularly considering few jobs have been created and even fewer for residents of economically distressed Camden. Second, most job creation is generated by small businesses. So if there is going to be selectivity, it ought to be in favor of the small business.

It would not surprise me that in the end, this newly created small business creates more jobs, at least proportionately, than the big companies have generated. The firm denied access to what the big companies get has already announced plans to engage in a variety of activities designed to help the neighborhood and city in which they are locating. If this is what happens without the tax breaks, why have the tax breaks?

As soda taxes gained voter approval in four cities earlier this month, Philadelphia continues to encounter challenges in its attempt to implement its version of the tax. Unlike those four cities, Philadelphia faces questions of state constitutional authority that have yet to be resolved because they are the subject of pending litigation.

The soda tax is deeply flawed. As I have pointed out in What Sort of Tax?, The Return of the Soda Tax Proposal, Tax As a Hate Crime?, Yes for The Proposed User Fee, No for the Proposed Tax, Philadelphia Soda Tax Proposal Shelved, But Will It Return?, Taxing Symptoms Rather Than Problems, It’s Back! The Philadelphia Soda Tax Proposal Returns, The Broccoli and Brussel Sprouts of Taxation, The Realities of the Soda Tax Policy Debate, Soda Sales Shifting?, Taxes, Consumption, Soda, and Obesity, Is the Soda Tax a Revenue Grab or a Worthwhile Health Benefit?, Philadelphia’s Latest Soda Tax Proposal: Health or Revenue?, What Gets Taxed If the Goal Is Health Improvement?, The Russian Sugar and Fat Tax Proposal: Smarter, More Sensible, or Just a Need for More Revenue, Soda Tax Debate Bubbles Up, Can Mischaracterizing an Undesired Tax Backfire?, The Soda Tax Flaw in Automotive Terms, Taxing the Container Instead of the Sugary Beverage: Looking for Revenue in All the Wrong Places, Bait-and-Switch “Sugary Beverage Tax” Tactics, How Unsweet a Tax, and When Tax Is Bizarre: Milk Becomes Soda, the tax is both too narrow and too broad. Though touted as a health improvement incentive, despite being attractive to politicians because of its revenue possibilities, it reaches items that are healthy and fails to reach all sorts of items that contribute to poor health. Taxing almond milk but not doughnuts belies the claim that the soda tax is designed to, and will improve, health.

Now comes news that despite the pending court challenges claiming that Philadelphia lacks the authority to enact the tax, the city is spending the revenue that it anticipates collecting. Reports are that Philadelphia has spent almost $12 million on a pre-K program, and $1.5 million on expansion of a community schools plan. The pre-K program is planned to begin on January 1, the same day that the tax goes into effect. The judge hearing the case has promised a decision by January 1. What happens if the judge rules that the city exceeded its authority? What happens if the judge holds in favor of the city but appeals are taken? What happens if eventually there is no soda tax revenue? Which existing programs are cut by $13.5 million to make up for the money that has been spent despite the uncertainties surrounding collection of the tax? The $13.5 million probably grow to a larger amount, because there is no reason to think that spending on the program will stop during December. And what happens to the children who have been enrolled in the program, and their families? Will they have time to make alternate plans?

To these questions, the answers are not forthcoming from Philadelphia officials, who refuse to comment on their contingency plans, assuming they have any, to deal with an adverse judicial decision. The only comment is that “As of today, the city has no existing streams of revenue to replace the anticipated funding.” No kidding.

The city signed a contract with an academy that operates pre-K programs, and the contract includes a clause making additional funding contingent on the soda tax revenue. The academy is renovating one of its classrooms and has hired four teachers to handle the expected enrollment increase. What happens if the revenue doesn’t materialize? The academy’s CEO explains, “If some sort of repeal was to occur, I think it would be devastating.” No kidding.

It is one thing to enact a tax and spend anticipated revenues before the tax goes into effect. It’s another thing to enact a tax that everyone knows will be challenged and that is, in fact, challenged and to spend anticipated revenues before the authority for enacting the tax has been confirmed. It’s reckless. If the tax is struck down, someone is going to pay. As usual, it won’t be the officials who made the gamble. It will be the people whose jobs are terminated, whose programs are cut, whose services are diminished, whose lives are disrupted.

It would have made more sense to delay the pre-K program until the beginning of the next academic year, in September. By then, the status of the tax would be known, and if it were upheld, eight months of revenue would have been collected and available for starting up the program. But it’s so easy to gamble with other people’s money.

Five months ago, in A Not So Hidden Tax Increase?, I commented on the decision by New Jersey’s Governor Chris Christie to explore the termination of the income tax reciprocity agreement between New Jersey and Pennsylvania. I explained how the repeal of the agreement would increase income tax burdens on higher-salaried Pennsylvanians working in New Jersey and lower-salaried New Jersey residents working in Pennsylvania. Shortly thereafter, New Jersey’s governor terminated the agreement. Why? New Jersey needs revenue.

A little more than a month ago, in Tax Reciprocity Meets Tax Break Giveaways, I described the strong negative reaction to Christie’s decision articulated by executives of at least three of the companies that are beneficiaries of the tax breaks New Jersey hands out in attempts to generate economic development in the state. At least one corporate official explained that had the company known that the income tax reciprocity agreement was going to be terminated, it probably would not have agreed to the relocation required by the tax breaks.

Several days ago, New Jersey’s governor changed his mind. According to this report, he decided not to terminate the agreement, mere months after announcing that he would. At least he isn’t reneging on a campaign promise, because he said nothing about the agreement when he ran for the governor’s office. But, still, he created a good deal of angst among New Jersey residents who work in Pennsylvania and Pennsylvania residents who work in New Jersey. I wonder how many of those folks started job searches or took other steps to put in motion a relocation of their employment to their state of residence. Definitely corporate tax administrators in Pennsylvania have invested resources redesigning their systems to comply with the changes that termination of the agreement would require. Perhaps they should be reimbursed by New Jersey for being put in this disadvantageous position?

Christie’s explanation is that the revenue he projected would be raised for New Jersey by terminating the agreement no longer is required. He claims that recently enacted legislation would reduce health care costs for public employees, and thus eliminate a predicted state budget deficit that would have been offset by the projected revenue from the termination of the agreement.

I wonder if Christie changed his mind because he no longer saw a use for the revenue. I wonder if, perhaps, his decision was heavily influenced by the reaction of those corporate executives who considered themselves blindsided by the governor’s announcement of his intention to terminate the agreement. As I pointed out in Tax Reciprocity Meets Tax Break Giveaways, I have no access to the negotiations that preceded the individual tax break handouts to those executives’ corporations. I wrote, “I do not know if these companies even tried to negotiate promises that the overall tax and economic landscape would not be altered. I doubt that they tried, and I am confident that even if they did, no such promises were forthcoming. Otherwise they would be preparing to sue the state for breach of contract.” But perhaps they did negotiate for those things, and perhaps they were preparing to sue, and perhaps that triggered the abrupt U-turn by the governor. In the murky world of back-room politics and bargaining hidden from the public’s view, a practice that promises to go viral two months from now, it is difficult to know precisely who is getting what from whom. As I also wrote, “The entire situation demonstrates the dangers of trying to work out private deals to obtain tax and economic benefits superior to those available to the average citizen. When Americans who are angry about the tax and economic condition of the nation take the time to examine who is responsible, and to look beyond the headline-grabbing federal tax system to the state and local tax scene, they might discover who really is responsible for the mess, and vote accordingly.” For the moment, what is clear is that the 250,000 taxpayers caught in the confusion had no say in what happened. I doubt they have enjoyed being jerked around.

Several days ago I received an email containing a press release from a publicity specialist on behalf of DeVere Group, which describes itself as “one of the world’s largest independent advisors of specialist global financial solutions to international, local mass affluent, and high-net-worth clients.” The press release, which also can be found online, including at this site, is headlined “Trump must ‘show backbone’ and repeal Obama’s imperialistic global tax law.”

According to the press release, “Nigel Green, founder and CEO of deVere Group, is demanding that the president-elect addresses the issue of abandoning the Foreign Account Tax Compliance Act (FATCA), which adversely affects FFIs and millions of Americans around the world as ‘a priority.’” Green relies on the president-elect’s promise to “revoke some of Obama’s executive orders” and proposes, “I would urge him to make repealing FATCA one of those he revokes.”

No matter what one thinks of FATCA – its goals are laudable but its implementation is a morass of complexities and unintended consequences – no President can revoke it. FATCA is a law enacted by the Congress. Specifically, it is Public Law 111-147, introduced as H.R. 2847 and signed into law on March 18, 2010. Only Congress can repeal or change FATCA. FATCA is not an executive order. It cannot be revoked by executive order.

In Nigel Green’s defense, he presumably is a citizen of the United Kingdom and received his schooling there, though, like Bloomberg, I have been unable to ascertain any specifics. So it is highly unlikely that a United Kingdom individual, in the normal course of schooling, would learn much of anything about the legislative, executive, and judicial processes in the United States.

But Nigel Green focuses on international clients and international transactions. It is not too much to expect someone who is involved in global finance to hire or retain experts who are familiar with the laws applicable to those clients and transactions. There are plenty of professionals throughout the world, from dozens of countries, who understand how FATCA came into existence and who has the power to repeal it.

Surely a multi-billion-dollar entity can find someone who would have advised Nigel Green so that he would have said something along the lines of “I urge the president-elect to work with the United States Congress to repeal FATCA” or, because he agrees that, “Tackling tax evasion is a noble and worthwhile objective,” “I urge the president-elect to work with the United States Congress to modify FATCA so that it achieves its goals without subjecting people to undue complexity and unintended consequences.”

It is difficult for me to pay heed to pronouncements that are wrapped in error, and bereft of fact checking. It is particularly difficult when the pronouncements come from multi-billion-dollar entities and extremely wealthy individuals who can afford to pay someone to spare them from ignorance and its effects.

It has been said that love is something that can be shared without diminishing what remains to be shared again. The same can be said about expressions of gratitude. Saying “Thank you!” to someone doesn’t reduce the number of people to which that response can subsequently be presented. And so, as we celebrate Thanksgiving, the stream of “Thanks!” continues on MauledAgain.

For as long as I’ve been writing this blog, I’ve been sharing a Thanksgiving post to express my gratitude for a variety of people, events, and things. Aside from 2008, when I did not post and I don’t have any recollection of why or how that happened, I’ve dedicated a post on or around Thanksgiving. I started in 2004, with Giving Thanks, and continued in 2005 with A Tax Thanksgiving, in 2006 with Giving Thanks, Again, in 2007 with Actio Gratiarum, in 2009 with Gratias Vectigalibus, in 2010 with Being Thankful for User Fees and Taxes, in 2011 with Two Short Words, Thank You, in 2012 with A Thanksgiving Litany, in 2013 with “Don’t Forget to Say Thank-You”, in 2014 with Giving Thanks: “No, Thank YOU!” , and in 2015 with Thanks Again!.

As I stated the past three years, “I have presented litanies, bursts of Latin, descriptions of events and experiences for which I have been thankful, names of people and groups for whom I have appreciation, and situations for which I have offered gratitude. Together, these separate lists become a long catalog, and as I have done in previous years, I will do a lawyerly thing and incorporate them by reference. Why? Because I continue to be thankful for past blessings, and because some of those appreciated things continue even to this day.” When I re-read those lists, I realized that the people, events, and things for which I am appreciative are far from obsolete.

So when I look back on the past year, here are a handful of people, events, and things added to the list, even though some of these can be tagged as repetitive in some ways:

• I am thankful for my grandson, who continues to grow, to learn, and to amuse me in ways no one else does.
  
• I am thankful for my children and my daughter-in-law, and the ways they enrich my life.
  
• I am thankful for my congregation’s inspirational new pastor/head of staff, who also happens to appreciate attention to detail.
  
• I am thankful for the chancel choir, which permits me to be its president without requiring re-election campaigns.
  
• I am thankful that I figured out the refrigerator needed replacement without losing most of the food in it.
  
• I am thankful that my law faculty colleagues recommended that I be appointed Professor of Law Emeritus.
  
• I am thankful that I have the opportunity to continue teaching law courses.
  
• I am thankful for the chance to continue compiling genealogical databases, and for the people who have helped that to happen.
  
• I am thankful that my immigrant ancestors weren’t required to sign registries and wear badges.

Ten years ago, in Giving Thanks, Again, I shared my Thanksgiving advice. I liked it so much that I repeated it again, in 2009 in Gratias Vectigalibus, yet again in 2013 in “Don’t Forget to Say Thank-You”, still again in 2014 in Giving Thanks: “No, Thank YOU!” , and even yet again in 2015 in Thanks Again!. For me, it does not lose its impact:

Have a Happy Thanksgiving. Set aside the hustle and bustle of life. Meet up with people who matter to you. Share your stories. Enjoy a good meal. Tell jokes. Sing. Laugh. Watch a parade or a football game, or both, or many. Pitch in. Carve the turkey. Wash some dishes. Help a little kid cut a piece of pie. Go outside and take a deep breath. Stare at the sky for a minute. Listen for the birds. Count the stars. Then go back inside and have seconds or thirds. Record the day in memory, so that you can retrieve it in several months when you need some strength.

I am thankful to have the opportunity to share those words yet again.

A few days ago, someone posted a question to the Reddit Tax Forum.It’s the sort of question that can find its way onto an income tax exam but it’s also a question that surely has been faced by more than a few taxpayers. To quote the question, “Is an indirect donation (such as paying an expense on behalf of a charity) tax deductible to the donor and/or recognizable as revenue by the charity?” In other words, what are the tax consequences when a person pays a charity’s invoice due to an unrelated third party?

In substance, the person is paying the charity so that the charity can pay its bill. The practical problem is that if and when the IRS audits the person and asks for proof, the person will have a check made out to a business or other payee that is not the charity and likely is not itself a charity. Then the person must prove that it was paying on behalf of the charity. Does the person have a copy of the invoice sent to the charity by the third party? Does the person have an acknowledgement from the charity that the charity’s invoice was marked “paid in full” by the third party because of the person’s payment to the third party on behalf of the charity? Without the appropriate evidence, the person can end up without any deduction, as happened in Bell v. Comr., T.C. Summ. Op. 2013-20, though denial of the taxpayer’s deduction in that case also involved additional factors.

In the long run, it’s much easier simply to write a check payable to the charity, submit it to the charity, and obtain a receipt. The charity then has the funds to pay its invoices. As technology changes, perhaps the person, instead of writing the check, can make an electronic funds transfer. But it should be made to the charity. Why make things more complicated than they need to be?

Law students, not unlike people generally, think that tax “is all about numbers,” or, worse, “involves lots of math.” As I try to explain to anyone with those concerns, a substantial portion of tax law does not involve numbers or arithmetic. Whether someone is engaged in tax compliance, such as filing a return, or tax planning, that person’s brain will focus less on numbers than it will on words. A recent case illustrates this point.

On November 15, the United States Court of Appeals handed down its opinion in Moneygram International, Inc. v. Comr., No. 15-60527, on appeal from the United States Tax Court. The issue is one that can be stated simply: Is Moneygram International a bank?

Why does it matter if MoneyGram is a bank? The answer is simple. Banks are subject to special federal income tax rules, most of them beneficial to the bank. For example, although generally corporate taxpayers are permitted to deduct capital losses only to the extent of capital gains, banks are permitted to offset ordinary income with capital losses. The taxation of banks is not an area of tax law in which I have any particular expertise, and I have not taught the special rules in any of my courses, though I alert students that a set of special rules exist for banks, and insurance companies. Federal income taxation of banks is a narrow sub-specialty of tax law practice, and there are a handful of tax practitioners who are experts in that area. I’m not one of them.

Section 581 defines a bank as “a bank or trust company incorporated and doing business under the laws of the United States (including laws relating to the District of Columbia) or of any State, a substantial part of the business of which consists of receiving deposits and making loans and discounts, . . . and which is subject by law to supervision and examination by State, Territorial, or Federal authority having supervision over banking institutions.” The Tax Court held that MoneyGram was not a bank for two reasons. First, it did not meet the common meaning of the term “bank,” which the Tax Court defined to include “(1) the receipt of deposits from the general public, repayable to the depositors on demand or at a fixed time, (2) the use of deposit funds for secured loans, and (3) the relationship of debtor and creditor between the bank and the depositor.” Second, the Tax Court held that MoneyGram did not satisfy section 581 because “receiving deposits and making loans do not constitute any meaningful part of MoneyGram’s business, much less ‘a substantial part.’”

Section 581 does not define “deposits” or “loans.” The Tax Court defined “deposits,” in the context of § 581, as “funds that customers place in a bank for the purpose of safekeeping,” that are “repayable to the depositor on demand or at a fixed time,” and which are held “for extended periods of time.” The Tax Court held that money received by MoneyGram as part of its money order and financial services segments did not meet this definition because MoneyGram does not hold these funds for safekeeping or for an extended period of time. The Tax Court defined “loans” as an agreement, “memorialized by a loan instrument” that “is repayable with interest,” and that “generally has a fixed (and often lengthy) repayment period.” The Tax Court held that the Master Trust Agreements entered into between MoneyGram and its agents do not meet this definition and are therefore not loans, particularly because the agreement is facially a trust agreement and not a loan agreement, and does not charge interest.

On appeal, MoneyGram challenged both the Tax Court’s interpretation of section 581 as imposing the requirement that an entity be a bank within the common meaning of that term and its articulation of that common meaning. MoneyGram argued that the Tax Court’s interpretation impermissibly imposes an “ill-defined extra-statutory requirement that is inconsistent with the language and purpose of Section 581.” Rather, MoneyGram argued that the beginning of section 581 only requires that the entity be “incorporated and operating legally.”

The Fifth Circuit noted that section 581 “is not a model of statutory clarity,” pointing out that its construction and circular use of the term “bank” are inherently ambiguous. Yet it concluded that “the most consistent and harmonious reading of” section 581 “supports the Tax Court’s conclusion that being a ‘bank’ within the commonly understood meaning of that term is an independent requirement.

Moneygram, relying on the canon of interpretation against surplusage, which supports interpreting a statute “so that no part will be inoperative or superfluous, void or insignificant,” argued that the Tax Court’s interpretation rendered superfluous the requirement in section 581 that a substantial part of the taxpayer’s business consist of “receiving deposits and making loans and discounts” because the Tax Court’s definition of the common meaning of bank also includes the receipt of deposits and the making of loans. The IRS, also relying on the canon of interpretation against surplusage, argued that MoneyGram’s interpretation read “bank or trust company” out of section 581.

The Fifth Circult explained that MoneyGram’s interpretation, essentially translated the statute so that it read: “For purposes of sections 582 and 584, the term ‘bank’ means a . . . company incorporated and doing business under the laws of the United States (including laws relating to the District of Columbia) or of any State.” It rejected Moneygram’s interpretation. It also rejected MoneyGram’s argument that incorporating the common meaning of bank into the statute would render other portions of section 581superfluous. It concluded that although the Tax Court’s definition of the common meaning of bank overlapped with the deposit, loan, and discount requirements of section 581, the definition was not completely duplicative. The Fifth Circuit gave as an example an entity that is a bank under the common meaning of the term but that does not engage in receiving deposits and making loans as a substantial part of its business.

Though the Fifth Circuit agreed with the Tax Court that the term “bank” in section 581 is an independent component that must be given its common meaning, it disagreed with its definition of “deposits” and “loans.” The Tax Court defined “deposits” as “funds that customers place in a bank for the purpose of safekeeping” that are “repayable to the depositor on demand or at a fixed time” and which are held “for extended periods of time.” The Fifth Circuit, though accepting the first two aspects, disagreed with the third, because the only case on which the Tax Court relied involved valuation of a bank’s depositor relationships and not the definition of a deposit. The Tax Court defined “loan” as a memorialized instrument that is repayable with interest, and that “generally has a fixed (and often lengthy) repayment period.” The Fifth Circuit disagreed, looking to previous cases in which the term was defined, in the section 581 context, as “an agreement, either expressed or implied, whereby one person advances money to the other and the other agrees to repay it upon such terms as to time and rate of interest, or without interest, as the parties may agree.” Finally, the Fifth Circuit concluded that the Tax Court did not address, nor did the parties argue, the meaning of the term “discounts,” which the Fifth Circuit held was a separate and required element of the definition.

For these reasons, the Fifth Circuit vacated the Tax Court order and remanded the case for reconsideration consistent with the Fifth Circuit’s analysis. Unless the parties settle, there will be, at some point, another Tax Court decision in this case.

The question of whether an entity is a bank is but just one example of the numerous instances in which a tax practitioner must analyze facts without being immersed in arithmetic. Sometimes numbers do enter into a definitional requirement, such as the support test that must be considered when determining if someone fits the definition of dependent. On the other hand, whether transfers are alimony or separate maintenance payments, whether an LLC is a partnership, whether a scholarship recipient is in fact receiving payment for compensation, whether a transfer is a gift, and whether work clothing is suitable for everyday use are questions that do not require numerical gymnastics to resolve.

Because the courses I have taught did not require students to explore the taxation of banks, I have never posed to them the question, “What is a bank?” I have made the “tax is not all about numbers and in fact is not all that much about numbers” point by asking, early in the basic income tax course, “What is a gift?” It’s a short question, most people, including law students, think they know the answer, and then the fun begins. Is it an eye-opener? Indeed. You can bank on that.

In Four Post-Election Tax Moves To Make Today, Phil DeMuth offers three unsurprising suggestions, though the deferral of income and acceleration of deductions makes sense in most cases. The exception is an expectation of future year tax increases more than sufficient to offset the impact of the time value of money.

It is DeMuth’s fourth suggestion that gave me pause. He wrote:

I heard some disgruntled Hillary supporters saying, “Kill me now!” in the wake of the election. This is not smart. Trump has promised to eliminate the death tax. If your expiration date is getting near, your heirs will thank you if you can possibly hold off until Jan. 1, 2017.

One might expect that in most instances, deferring death is not an option available to the decedent. Yet some studies, such as several described in this report, suggest that deaths are deferred when there are tax advantages to doing so. As one study put it, “The results show a significant ‘death elasticity,’ meaning that the reported date of death responds significantly to changes in the estate tax.” Aside from deferred suicides and the implementation of extraordinary measures to keep alive a person who is on his or her deathbed, how can death be postponed? The authors of one of the studies admit that “We cannot rule out that what we have uncovered is not a real death elasticity, but instead ex post doctoring of the reported date of death to save on taxes.” If that is happening, I would not be surprised. On more than a few occasions, while gathering information for various genealogical databases, I have discovered all sorts of instances in which birth dates are misreported, particularly among those making themselves younger for purposes of the World War One Draft Registration and those making themselves older when applying for Social Security benefits. Understand, though, that in both of these situations, these sorts of events occurred decades ago. Changing a birth date nowadays would be much more challenging than it was when people simply were taken for their word when providing information.

Does the opposite happen? Would the prospect of an estate tax increase encourage people to accelerate death, which is much easier to accomplish than death deferral? In Fixing Everything: Government Spending, Taxes, Entitlements, Healthcare, Pensions, Immigration, Tort Reform, Crime...(2010), Nedland P. Williams, in discussing the transition from 2010, for which the federal estate tax did not apply, to 2011, when it would, asks, “Should the person in failing health or their relatives be forced into a decision to accelerate death before the January 1, 2011 deadline?” That question addressed an option facing far more people than does the possibility of deferring death.

Congress and state legislatures too often use tax law to encourage or discourage behavior. Though economic incentives can be powerful, and in some instances more influential than simple mandates for, or prohibitions on, specific behavior, using the tax law as to control behavior creates far more problems than it solves. But certainly messing around with the timing of death because of future tax law changes is unfortunate. In this instance, when the future changes are, unlike the revival of the estate tax already enacted and ready for implementation in 2011, mere guesses as to what a final package of tax changes might constitute, trying to cheat the Angel of Death for a few days or a few weeks could backfire. Is it worth paying hundreds of thousands of dollars in medical bills to keep someone artificially alive in order to save a few hundred thousand dollars of taxes?