MauledAgain

We’re back to the “tax” versus “fee” discussion, one that has captured my attention more than a few times. I have written about these issues in Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, Sometimes It Doesn’t Matter If It Is a Fee or a Tax, It’s Not Necessarily a “Tax” Just Because It’s an Economic Charge You Don’t Like, and Court of Appeals for the First Circuit: Tolls Are Fees, Not Taxes.

Reader Morris is keenly aware of my efforts to encourage people to use the two terms, tax and fee, correctly, so when he spotted this article he sent me a link with a question. As soon as I looked at the headline, “Myrtle Beach rejects near-deal with Horry Co. on tax fees over attorney costs,” and read the article, I understood why reader Morris had posed his inquiry to me. In addition to “tax fee” in the headline, the term appeared in the article three times, along with two uses of “hospitality tax.”

Reader Morris had asked, “Is 'tax fees' a proper description in this article?” My answer is, “No.”

To answer the question presented to me by reader Morris, I did a bit of research. According to the City of Myrtle Beach web site, the city imposes a “hospitality tax” of 2 percent on food and beverages prepared or modified before consumption, a “hospitality tax” of 3 percent on accommodations for transients, and a “hospitality fee” of 1 percent on paid admissions to amusements. The website refers to these three exactions as “The Hospitality Tax/Fee” and describes it as “a city tax or fee that everyone who eats in a restaurant, rents a room for a week or two, goes to a show or plays golf in North Myrtle Beach will pay.”

It's not a “tax or fee.” It’s not a “tax fee.” It’s not a tax/fee.” It consists of three separate exactions, two of which are taxes and one of which is a fee. Understandably, when wanting to mention all three in as few words as possible, the temptation is to use tax/fee, which is somewhat acceptable, or “tax fee,” which is beyond oxymoronic. A better term would be “hospitality exaction.”

Of course, another question quickly pops up. Why are the exactions on food and lodging called a “tax” but the exaction on amusements called a “fee”? As best as I can figure out, it reflects what the state of South Carolina permits localities to tax and what they are permitted to subject to a fee. Why the state makes that distinction and how it has decided which items or activities localities are permitted to subject to one or the other is something I haven’t been able to determine. My guess is that it involves politics and public relations.

One of the topics on which I have written extensively is the mileage-based road fee. That’s because there are many issues to consider, many arguments from opponents to refute, and my sense that it is inevitably going to be the foundation for future highway infrastructure funding. I have written about the mileage-based road fee in posts such as Tax Meets Technology on the Road, Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, Is the Mileage-Based Road Fee So Terrible?, Defending the Mileage-Based Road Fee, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, Mileage-Based Road Fees: Privatization and Privacy, Is the Mileage-Based Road Fee a Threat to Privacy?, So Who Should Pay for Roads?, Between Theory and Reality is the (Tax) Test, Mileage-Based Road Fee Inching Ahead, Rebutting Arguments Against Mileage-Based Road Fees, On the Mileage-Based Road Fee Highway: Young at (Tax) Heart?, To Test The Mileage-Based Road Fee, There Needs to Be a Test, What Sort of Tax or Fee Will Hawaii Use to Fix Its Highways?, And Now It’s California Facing the Road Funding Tax Issues, If Users Don’t Pay, Who Should?, Taking Responsibility for Funding Highways, Should Tax Increases Reflect Populist Sentiment?, When It Comes to the Mileage-Based Road Fee, Try It, You’ll Like It, Mileage-Based Road Fees: A Positive Trend?, Understanding the Mileage-Based Road Fee, Tax Opposition: A Costly Road to Follow, Progress on the Mileage-Based Road Fee Front?, Mileage-Based Road Fee Enters Illinois Gubernatorial Campaign, Is a User-Fee-Based System Incompatible With Progressive Income Taxation?. Will Private Ownership of Public Necessities Work?, Revenue Problems With A User Fee Solution Crying for Attention, Plans for Mileage-Based Road Fees Continue to Grow, Getting Technical With the Mileage-Based Road Fee, How Not to Raise Money to Fix Roads, and The Scope of a Mileage-Based Road Fee.

Recently, a reader pointed out to me that during 2019, more states enacted special fees for vehicles that do not use liquid fuels, in an attempt to make up for the revenue loss caused by the fact that owners of these vehicles do not pay gasoline or diesel fuel taxes. Even though I consider these fees to be stop-gap measures that buy time for legislators to buckle down and deal with the entire infrastructure funding problem, I do have concerns about these fees despite their temporary nature. At least, I hope that these fees are temporary.

The fees vary widely, and in some instances take into account the attributes of the vehicle and in other instances don’t. A list of the fees in the states that have enacted them has been provided by the National Conference of State Legislatures. Fees range from as low as $10 to as high as $300, though most of the fees are under $100. Some states assess different fees depending on whether the vehicle is a plug-in, a hybrid, or battery-only, and at least one state differentiates between commercial and non-commercial vehicles. Only one state adjusts the fee to reflect weight differences, but only in terms of vehicles over or under one set weight.

One concern I have about these fees is the lack of differentiation in terms of weight. At least theoretically, when dealing with liquid fuel taxes, heavier vehicles that do more damage to roads also use more fuel and thus their owners pay more in fuel taxes. That outcome is missing with these zero-emission vehicle fees, and even the state that separates vehicles into two weight classes for purposes of the fee doesn’t come close to the sort of granularity that is justifiable. The easy solution is to set the fee equal to a specified dollar (or cent) amount multiplied by the vehicle’s weight, which the state knows because it is included as part of the general vehicle registration process.

Another concern I have about these fees is that they pretty much fail to make up for the lost fuel tax revenue. According to the latest Department of Transportation information I can find, the average American driver drives roughly 13,500 miles per year. As of 2016, according to Department of Transportation information, the average passenger vehicle had a fuel efficiency of 16 kmpl, or 37 miles per gallon. The average driver, therefore, driving the average passenger vehicle, purchases 365 gallons of fuel each year. According to the latest information I could find, fuel taxes average 29 cents per gallon, with a wide variation among states and some variation between gasoline and diesel. Thus, on average, a driver who drives the average 13,500 miles annually while getting 37 miles per gallon would pay, on average, $106 in fuel taxes. Are states making up the lost revenue? It depends on the numbers. Colorado, for example, with a 22 cents per gallon gasoline tax, loses $80 when that average driver switches to a zero-emission vehicle, but its fee for that vehicle is only $50. On the other hand, Georgia, with a 31.59 cents per gallon gasoline tax, loses $115 when that average driver switches to a zero-emission vehicle, yet is fee for that vehicle is $200. Perhaps drivers of these vehicles in Georgia aren’t too happy with this situation, though I suppose those who drive more miles than average are less unhappy than those who drive far fewer miles.

One of the blessings of the mileage-based road fee is that it does not try to impose a “one size fits all” fee, but adjusts the fee based on actual mileage and weight of the vehicle, both of which are factors in determining the extent to which the vehicle puts a burden on highway infrastructure. Perhaps as more people shift to vehicles that do not use liquid fuels, they will become increasingly dissatisfied with these “one size fits all” fees, and press for something far more rational. One reason I write so extensively about the mileage-based road fee is to help people understand why it makes more sense than the alternatives, and to help them dispel the doubts nurtured by the opponents of the mileage-based road fee.

Reader Morris posed an interesting question about a transaction described in a racer.com article. The article is about desert racer Peter Lang of California, who also is an animal conservation expert. Two years ago he became famous beyond racing and conservation circles by fighting a wildfire with 6 garden hoses, saving all 1,000 of his animals though losing his house and race shop.

Now, Lang has decided to retire from racing and has put up for sale a completely restored Mini Mac Chevy. His asking price is what raises the tax question. Someone who wants to acquire the Chevy can do so by paying $1.00 to Lang and making a $49,999 donation to Lang’s Safari West Foundation. The Foundation is a qualified section 501(c)(3) organization. If someone does this, what are the tax consequences?

When a person sells property, gain or loss is computed by comparing the person’s adjusted basis in the property with the amount realized. The amount realized is the selling price, with adjustments not relevant to this transaction. What is the selling price? It’s not just what the person receives, it is also what is paid on behalf of the person. Suppose X sells an item to Y, asking not that Y pay $100 to X but that Y pay $100 to X’s child C. X is treated as having received $100, and X’s gain or loss realized is computed using $100. X also is treated as having transferred $100 to C, which probably would be a gift. Had X directed Y to pay the $100 to B, a bank to which X owed money, the X’s amount realized still would be $100, and X would be treated as having paid $100 to the bank to repay the loan.

So in this instance, Lang would be treated as having sold the Chevy for $50,000, and using the $50,000 amount realized would compute gain or loss realized. I cannot compute that because I do not know Lang’s adjusted basis in the Chevy. Lang also would be treated as having made a $49,999 contribution to the Safari West Foundation, and whether it would be deductible would depend on other information, such as Lang’s adjusted gross income and other charitable contributions, that I do not have.

This process of taking what appears to be a direct transfer from the purchaser to the Foundation, or from Y to C, and splitting it into two transfers, purchaser to Lang to Foundation, or Y to X to C, is an example of substance over form. It is a basic federal income tax law doctrine. When I taught the basic federal income tax course, I brought this to the attention of the students early in the course, using an example in the textbook where an employer transfers a car to an employee’s spouse, along with other transfers direct to the employee, to persuade the employee not to leave for another employer. The value of the car is included in the employee’s compensation gross income, and the employee is treated as having made a gift of the car to the spouse.

This principle of substance over form is important. People unfamiliar with tax law think that if they “leave themselves out of the picture” they can avoid tax consequences. It doesn’t work that way, and sometimes hindsight would demonstrate that it would have been better to make the two transfers in actuality than to bypass the taxpayer. When planning, forgetting about the substance over form doctrine can be a big mistake.

A recent story about a Missouri Supreme Court decision interpreting the state’s constitution caught my eye because it involved taxes. The facts are fairly simple, the analysis a bit more complicated.

The town of Chesterfield, in Saint Louis County, enacted a local sales tax. It did so because it is home to very large retail complexes. People shopping in Chesterfield include town residents, but most of the shoppers live elsewhere. In 1977, the Missouri legislature enacted a law requiring Chesterfield to share its local sales tax revenues with other municipalities and townships in St. Louis County. The formula for sharing the revenues is based on population. Chesterfield was incorporated as a town in 1988 and almost immediately challenged the law.

Defenders of the law point out that the municipalities getting a piece of the Chesterfield tax revenue generally lack space for large shopping centers, but “supply more shoppers” to Chesterfield. Opponents of the law argued that it violates the Missouri Constitution ban on “special laws.” The revenue sharing law, when first enacted, applied only to first class counties with populations of 400,000 or more. At the time, St. Louis County was the only county that fell within that definition. In 1991, as the population of St. Charles County approached 400,000, the legislature amended the law so that it applies to first class counties with populations of 900,000 or more. Supporters of the law argued that Chesterfield should have made that argument when it first challenged the law in the late 1980s.

The Missouri Supreme Court, upholding the decision of a Cole County judge, held that the law was not an impermissible special law. The court explained that the law was presumptively constitutional and was not a special law because its classification was supported by a rational basis. The court wrote, “Under rational basis review, this Court will uphold a statute if it finds a reasonably conceivable state of facts that provide a rational basis for the classifications.” The court determined that the “classification was supported by a rational basis because St. Louis County, unlike other counties in the state, has a large population, lacks a central city, has 90 separate municipalities within its borders, and has a large, unincorporated area.”

The mayor of one town supporting the law, because it receives a portion of Chesterfield’s tax revenues, explained that she was “delighted” by the decision, because “It’s support for sharing and regionalism. It just means that the cities that have more can share with the cities that don’t. We all shop regionally.”

I chose the title for this commentary after reading the story. I then decided to browse the comments. It is interesting to see how people, especially those not proficient in legal analysis, react to legal decisions. Most approach the issue from an economic or political perspective. Yes, the word “socialism” popped up. So did the words “greed” and “envy.”

What if, instead of permitting municipalities within the county impose sales taxes, the country enacted a sales tax and used the revenue to fund services within the country presently funded by the municipalities? Would that be just as offensive to those who oppose the revenue sharing law? Probably. It seems that the concept of sharing has become equated with the concept of socialism if the sharing is done at any level other than by an individual.

Interestingly, most taxes collected on a wide basis, such as federal and state income taxes, are shared disproportionally to the collection, in a manner similar to how the Chesterfield local sales tax revenue is shared. Yet the loudest complaints about this sort of tax revenue sharing seem to come from states and counties that end up receiving more than their populations contribute.

Ultimately, a non-sharing society ceases to be cohesive and degenerates into a free-for-all. There’s a reason the words society and socialism share the same etymological roots. They are derived from the Latin word societas, which means community, alliance, fellowship. Interestingly, the word society came into the English lexicon at about the time the oligarchic feudal system faded away under the illumination of the Enlightenment. People learned that cooperation in pursuit of the common good was more beneficial in the long run for individuals that was the free-for-all that too often characterized the Dark Ages. Sometimes lessons need to be relearned. Perhaps enough of that will happen before the end of this new year. That would make for a Happy New Year.

Roughly four and a half years ago, in Does It Make Tax Cents?, I commented on a story about a Pennsylvania taxpayer who paid a tax by dumping 50,000 pennies and some dollar bills and higher denomination coins. Sixteen months later, in It Still Doesn’t Make Tax Cents, I commented on someone’s attempt to pay a parking ticket with loose coins. Two days later, in Trying to Make Cents of Two More Coin Payment Stories, I shared my thoughts on someone’s attempt to pay a $4,000 fine with coins, a tale told in two stories. Almost two years later, in When Paying Taxes in Cash is Prohibited, I wrote about legislative efforts in Philadelphia to prohibit stores from adopting “no cash payment” policies. A few days later, in California’s No-Cash-Payment-of-Taxes Policy: Is It Getting Away With Something?, I concluded that the California Franchise Tax Board’s “no cash payment” policy wasn’t quite what it appeared to be.

Knowing my interest in government reactions to people’s attempts to pay taxes with coins, when reader Morris spotted this story, he forwarded the link to me. He knows I’m going to write something about this one.

The story begins when Cynthia Lockett, who lives in Jackson Country, Missouri, received her 2019 real property tax assessment. The value of her land was increased by 135 percent, her house by somewhat less, so that her overall assessment rose 45 percent. It’s not clear whether that is a one-year change, though I think not, or an adjustment to reflect years of unadjusted assessments. It’s probably the latter, and probably similar to what is happening in many counties in Pennsylvania.

Lockett, though, considered the increase to be “unfair and illegal” as well as “egregious and ridiculous,” and made “multiple phone calls to multiple people at the country.” She filed an appeal. As of the time the story was written, her appeal had not yet been processed. Locket was frustrated at being ignored.

So Lockett decided to pay her real property taxes with nickels. She chose to submit nickels rolled in coin wrappers rather than merely in piles, because she wasn’t “trying to be a complete jerk.” To pay her bill she needed 1,419 rolls of nickels. How much do 1,419 rolls of nickels weigh? According to the article, 625 pounds. Wow.

Lockett’s plans made the news and came to the attention of the county’s Collections Department. Its director sent Lockett a letter. The director explained that country policy, as authorized by state law, is to refuse “large payments made using coins.” The reason? “Payments of this type would require a significant amount of staff time to process, which would result in substantial increases to wait times for other taxpayers. Accepting payments of this type would prevent us from providing adequate customer service to the many other taxpayers seeking assistance in making their payments.”

Lockett’s response to reporters was simple. She said, “I think it's interesting that they can find the time to respond to this, but they can't respond to the egregious bills and ridiculous assessments that they are sending us.”

But the catch is that the county’s Collections Department is separate from its Assessment Department. The employees of the Collections Department are powerless to deal with Lockett’s objections to the increased assessment, and they have no authority to deal with her assessment appeal.

According to the story, there may be a reason Lockett did not get responses from the Assessment Department. The county – though it is unclear what is meant by “the county” – requested access to the email account of the Board of Equalization staff, which does the assessments. The Assessment Department, in complying with that request, discovered 8,600 unread emails. Whether Lockett’s email was in that batch is unclear.

So what happened? Was the account password known to only one employee who died or became seriously ill? Were the employees newly hired and unaware of the email account? Who was in charge? What was happening in the office? These sorts of situations do nothing but supply fuel to the anti-tax and anti-government movements. It’s counterproductive.

As for Lockett, she has backed off her plans to pay with nickels, pans to pay the property tax by the deadline, but has no intention of paying by check. Will she use quarters? Half-dollars? Bitcoin? Gold bars? Time will tell.

Readers of MauledAgain know that I am a stickler for details. Details matter. They matter in taxation, just as they matter in engineering, health care, driving, and just about everything else people do. Granted, mistakes get made. I know, because I make them. Sometimes they’re minor and inconsequential, such as misspelling the word happiness with three p’s, but other times the mistakes can be catastrophic, such as using the wrong size bolts in bridge construction, or adding too many digits to a number. Reader Morris, who is aware of my focus on details, pointed me in the direction of a whopper of a tax mistake.

According to this Deseret News article, somehow the valuation of a property for real estate tax purposes was entered incorrectly. The value of a property worth roughly $300,000 was entered into the valuation roles in excess of $1 billion. Yes, that’s $1,000,000,000. Not $300,000. They’re calling it a clerical error.

Once that amount was entered, the county, school district, and other taxing entities in the county computed estimated revenues and set real property tax rates. The error increased county property values by 21 percent over the previous year. That change did not raise eyebrows because the county is in a period of rapid growth, coming in as the third-fastest-growing county in the state.

Months later, the county assessor, Maureen Griffiths, noticed the error. Apparently she doesn’t know how the error happened, and suggested that it could be “something like they dropped their phone on the keyboard and it kicked out all these numbers without verifying.” She called the mistake “horrific,” “bizarre,” and “crazy.” She caught the error when looking at a list of “top 25” real estate tax taxpayers and saw a number totally out of line with the usual amounts.

Oddly, the property owner, who lives in another state, was unaware of the error. They learned of the error after the assessor contacted them, and told them about the error and that it had been fixed.

But, as the article mentions, by then it was too late for the correction to make a difference for the county. Budgets had already been adopted, and real estate tax bills had already been sent. Because of the correction, the school district cannot collect $4.4 million in revenues that it expected to be collected from the property owner. When adding in amounts that the other taxing entities cannot collect, the revenue shortfall is more than $6 million. The director of Utah’s State Tax Commission Property Tax Division says that the scope of this error has no precedent in the state.

County officials “ ‘deeply regret’ the error, and are reviewing policies and procedures to ensure it never happens again.” They also are warning that rates almost certainly will increase in future years to make up the revenue that was budgeted but uncollectible yet already committed to expenditures. The county manager, though, stated, “An abnormality of almost $1 billion is a big deal, and it should have been caught. There are checks in place that it should have been looked at. We will modify those in the future and do a better job.” So is the issue a matter of policies and procedures or a matter of noncompliance, carelessness, or inattentiveness?

If nothing else, perhaps this story will encourage property owners to check valuation notices when they arrive in the mail. If I received a valuation notice pegging my property at $1 billion, I’d be on the phone within seconds. And I’d be following up until it was corrected.

Today is Christmas, which for many people is an important religious feast, and for even more, a day of giving and receiving. Sometimes, though, what someone expects to receive often turns out to be nothing more than a wish. Though dashed expectations at this time are more common among children and youngsters, they also can afflict adults. I’ve heard enough stories about people being promised a Christmas gift – a toy, a bicycle, an engagement ring – only to discover that for some reason no such gift appears.

This year, it is the Congress of the United States that is playing the Christmas gift tease game. The House of Representatives, as reported in many stories, including this one from the Philadelphia Inquirer has voted to repeal the $10,000 cap on the deduction of state and local taxes.

The $10,000 cap, of course, was marketed as a token offset to the massive tax cuts enacted two years ago in favor of large corporations and the wealthy. Yet because large corporations don’t itemize deductions, and because the wealthy find ways of shifting their expenditures into a variety of tax-saving structures, the $10,000 cap has fallen mostly on the middle-class, particularly the middle and upper middle class. In many instances the loss of tax benefits from the state and local tax deduction was not offset by the miniscule tax cuts afforded to the same groups, particularly when other middle class tax deprivations enacted in 2017 are taken into account.

But the other half of the Congress, the Senate, has no intention whatsoever of letting the House bill become law. Hopefully no one who reads the news about the House action gets too excited about Christmas-time tax relief. Unlike what happened in A Christmas Carol, no ghosts of tax law past or tax law future will show up in the dreams of those who are indebted to, enamored of, or subservient to, the tax policy nonsense that has given us repeated enactments of tax cut gifts for a few while everyone else is expected to believe that those drowning in gifts will share their largesse. Put another way, Tax Santa Claus isn’t bringing a state and local tax deduction cap repeal down anyone’s chimney this year. Despite that, if today is a special day that matters to you, Merry Christmas!

The headline caught my eye. It simply stated, ”How to Avoid a Tax Audit in 2020.” Curious, I took a look at the Lifehacker article. It explains that because the IRS is getting additional funds in 2020, it will be able to hire more employees to answer taxpayer questions and upgrade its technology. The article then points out that the risk of getting audited will increase, citing a Motley Fool article claiming that the IRS “may get more aggressive in its audit practices.” After sharing some statistics about IRS audits, including the fact that only one-half of one percent of returns were audited in 2017, the article points out that “it’s highly unlikely you will get picked to be audited unless your income is very high.” The article then provides advice “to prevent being audited,” such as checking returns for “typos or extremely large or small amounts that may signal a sudden change.”

I had several reactions. First, it is doubtful that the increased IRS funding will make much of a change in the audit statistics, and surely those funds will not cause the audit rate, for example, to double. Second, the benchmarks for selecting returns for audit include a long list of things in addition to high income and typos. Certain types of transactions, such as vacation home deductions, are of more interest to the IRS. Third, the notion that an audit can be avoided or prevented makes no sense. The best that taxpayers can do is to reduce the chances of an audit. True, those chances can be reduced to almost zero, but they cannot be reduced to zero.

So the answer to my question is clear and easy. No, IRS audits cannot be avoided, and the best that a taxpayer can do is to follow advice to reduce the risk of an audit to as low as possible.

Reader Morris pointed me to an June Investopedia article and asked, “Are they miscalculating the amount of the deduction by using the effective tax rate instead of the marginal tax rate?” To put his question in context, I read the article.

The basic point of the article is that sometimes, perhaps often, it makes more sense to donate unwanted household and other items to a qualified charity rather than trying to sell these things at a garage or yard sale. The tax savings from the deduction for donating property to charity can, in many instances, exceed the amount of cash one receives from a buyer at the garage or yard sale. Another advantage from donating the items to a charity is that it is easier to box up the items and deliver them, or have them picked up, rather than advertising, setting out items on tables, pricing them, tagging them, dealing with potential customers, making change, safeguarding cash, and then cleaning up when the sale is finished, with unsold items still needing to be handled.

The article claims that to determine the reduction in tax liability attributable to the charitable contribution, a taxpayer should multiply the amount of the deduction by the taxpayers’ “effective tax rate.” This is wrong, as reader Morris suggested. The value of the charitable contribution deduction is determined by multiplying it by the marginal rate, keeping in mind that the marginal rate can be a split rate if the deduction causes the taxpayer’s taxable income to slip out of one bracket into a lower one. Technically, because of other interactions in computing taxes (such as the charitable contribution deduction making itemized deductions a better choice than the standard deduction), the best way to calculate the tax savings is to compute tax liability without the deduction and then to compute tax liability with the deduction. The difference is the tax savings attributable to the deduction.

When I read the article, I also spotted another claim. The article asserts that, “On the plus side, the proceeds from a garage sale are not taxable,” and quotes a CPA as saying, “Garage sales are considered the sale of personal property, and you do not have to claim the money you received from the sale.” That is so not true. Though most items sold at a garage or yard sale generate a loss, because they bring in less, and often much less, than what the seller paid for the item, there are times when an item fetches a price greater than what the seller paid. Though the losses are usually not deductible because the item is not a business or investment property, the gains are included in gross income. The notion that sales of personal property are not taxed is not one for which there is statutory authority in the Internal Revenue Code.

From scanning more than a few websites that make similar claims, though with different articulations, it appears that the true statement, “You generally are not required to report sales of items at garage or yard sales” gets smooshed into the misleading statement, “You are not required to report sales of items at garage or yard sales.” The loss of the word “generally” is critical. Why does it disappear? Twitter-type character limits? Preferences for short sound bites? Unwillingness to follow through with questions prompted by the word “generally”? Misunderstanding? Whatever the cause, it creates a misleading claim that can be dangerous when it causes someone to fail to report gain from selling an item at a garage or yard sale.

Once again, a television court show slipped past me but reader Morris came to the rescue. There’s now a Judge Jerry court show, and so a few of his opinions will show up, if they involve tax, in that long list of television court show episodes on which I have commented in the past, including Judge Judy and Tax Law, Judge Judy and Tax Law Part II, TV Judge Gets Tax Observation Correct, The (Tax) Fraud Epidemic, Tax Re-Visits Judge Judy, Foolish Tax Filing Decisions Disclosed to Judge Judy, So Does Anyone Pay Taxes?, Learning About Tax from the Judge. Judy, That Is, Tax Fraud in the People’s Court, More Tax Fraud, This Time in Judge Judy’s Court, You Mean That Tax Refund Isn’t for Me? Really?, Law and Genealogy Meeting In An Interesting Way, How Is This Not Tax Fraud?, A Court Case in Which All of Them Miss The Tax Point, Judge Judy Almost Eliminates the National Debt, Judge Judy Tells Litigant to Contact the IRS, People’s Court: So Who Did the Tax Cheating?, “I’ll Pay You (Back) When I Get My Tax Refund”, Be Careful When Paying Another Person’s Tax Preparation Fee, Gross Income from Dating?, Preparing Someone’s Tax Return Without Permission, When Someone Else Claims You as a Dependent on Their Tax Return and You Disagree, Does Refusal to Provide a Receipt Suggest Tax Fraud Underway?, When Tax Scammers Sue Each Other, One of the Reasons Tax Law Is Complicated, An Easy Tax Issue for Judge Judy, Another Easy Tax Issue for Judge Judy, Yet Another Easy Tax Issue for Judge Judy, Be Careful When Selecting and Dealing with a Tax Return Preparer, Fighting Over a Tax Refund, Another Tax Return Preparer Meets Judge Judy, Judge Judy Identifies Breach of a Tax Return Contract, When Tax Return Preparation Just Isn’t Enough, Fighting Over Tax Dependents When There Is No Evidence, If It’s Not Your Tax Refund, You Cannot Keep the Money, Contracts With Respect to Tax Refunds Should Be In Writing, Admitting to Tax Fraud When Litigating Something Else, and When the Tax Software Goes Awry.

So in this Judge Jerry episode, the plaintiff and defendant were in a relationship but broke up. The plaintiff arranged to have her tax refund deposited into the defendant’s bank account because the plaintiff did not have a bank account. The plaintiff was no longer in touch with the defendant except when she contacted the defendant after getting a notice, presumably from the IRS, that her tax refund had been deposited into the defendant’s bank account.

In response, the defendant paid the plaintiff an amount equal to a portion of the refund. The defendant explained that she used the rest of the refund to buy clothing for her daughter, arguing that the daughter is the daughter of both the plaintiff and the defendant. Putting that issues aside, Judge Jerry stated, “It is the plaintiff’s money.” The defendant replied to the judge, “I don’t care.” Judge Jerry held that the defendant owed the balance of the refund to the plaintiff.

It is unclear how the plaintiff managed to have the tax refund deposited into the defendant’s bank account. The instructions to Form 1040 have, since 2015, made it clear that the name on the bank account must match the name of the taxpayer. Perhaps the plaintiff or defendant did something to circumvent that rule. The exception, that the refund is from a joint tax return and is being deposited into a joint account had no relevance in the case because the plaintiff and defendant had never been married to each other.

The instructions to Form 1040 also refer to refunds deposited to prepaid debit cards. She also could have received a paper check, though perhaps cashing it would have presented a challenge because she did not have a bank account. But as difficult as that might have been, surely it would have been less inconvenient that having to sue the defendant. There is a lesson here, namely, don’t try to deposit a tax refund in someone else’s account, though in theory an attempt to do so should be rejected by the IRS. I suspect there was more happening between the plaintiff and defendant than was revealed in Judge Jerry’s courtroom.

Whether a charge is a tax or a fee, and the misuse of those terms, has been the subject of more than a few MauledAgain commentaries. I have written about these issues in Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, Sometimes It Doesn’t Matter If It Is a Fee or a Tax, and It’s Not Necessarily a “Tax” Just Because It’s an Economic Charge You Don’t Like.

Though most people would consider a toll to be a fee, some people call it a tax. Though sometimes whether it is a fee or a tax doesn’t matter, such as when a business is adding up expenses, in other instances it matters very much. An example is the recent case of American Trucking Associations, Inc. v. Alviti, decided by the United States Court of Appeals for the First Circuit on December 5, 2019. The court put it succinctly: “This appeal poses the question whether bridge and highway tolls authorized by a Rhode Island statute are taxes within the meaning of the Tax Injunction Act ("TIA").” Rhode Island enacted a bridge toll, and the plaintiffs, mostly trucking companies and trucking associations, sued to enjoin implementation of the toll, arguing that it violated the Commerce Clause of the United States Constitution.

Under the Tax Injunction Act, “district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." Thus, if the toll is not a tax, the Tax Injunction Act does not prevent the district court from hearing and deciding the plaintiffs’ challenge.

The Court of Appeals relied on a definition provided in Thomas Cooley’s treatise, The Law of Taxation, which has been cited multiple times by courts as authoritative on the question of whether a toll is a tax. The Court of Appeals quoted from the edition of the treatise extant in 1937 when the Tax Injunction Act was enacted:

A toll is a sum of money for the use of something, generally applied to the consideration which is paid for the use of a road, bridge or the like, of a public nature. The term toll, in its application to the law of taxation, is nearly obsolete. It was formerly applied to duties on imports and exports; but tolls, as now understood, are applied most exclusively to charges for permission to pass over a bridge, road or ferry owned by the person imposing them. Tolls are not taxes. A tax is a demand of sovereignty; a toll is a demand of proprietorship.

Thus, the Court concluded that the Rhode Island toll is not a tax. Relying principally on an early Supreme Court decision involving tolls on river locks owned by Illinois, it also rejected Rhode Island’s argument that a toll is a tax if the infrastructure for which the toll is charged is owned by the state rather than by a private enterprise on whose behalf the state collects the toll.

Based on its conclusion, the Court of Appeals reversed the district court’s decision that it lacked jurisdiction to hear and decide the case. It remanded the case for further proceedings. Those proceedings will focus on the Commerce Clause issue and not on whether the toll is a tax. The lesson from this decision is that calling something a tax that is not a tax is not a pathway to success, a point I have repeatedly made in my commentaries about fees and taxes.

Reader Morris directed my attention to a BCRNews article describing the unhappiness of a restaurant-owning couple caused by the enactment of a parking tax that applies to the monies they collect when they charge people to park in their parking lot. According to Scott Reeder, John and Sandy Fulgenzi close their restaurant in Springfield, Illinois, for part of each August because the traffic generated by the state fair discourages people from patronizing their restaurant. To make up for some of the revenue loss, they charge fair visitors $5 per day to use a space in the parking lot. The Fulgenzis have learned that beginning in 2020 they will be liable for a state parking tax on the parking lot revenue that they collect. The tax also will apply to homeowners who rent out driveways or yards for parking during the state fair.

John Fulgenzi asks why they are being subjected to a parking tax even though they pay an income tax and a property tax. That, I think, is not a question that focuses on the problem. As Reeder puts it, “The state is taxing parking to pay for non-transportation related infrastructure.” To me, the question should be, “Why are the revenues from a parking tax being used for expenditures that have nothing to do with parking?” If the parking tax revenues were used to inspect parking spaces for safety, to maintain parking spaces, or otherwise to benefit parking, or even related transportation infrastructure such as curbs and streets, John Fulgenzi’s question could easily be answered. But the answer to the actual question, “Why are the revenues from a parking tax being used for expenditures that have nothing to do with parking?” is, according to Reeder is simple. “The reason is straightforward. They are counting on your ignorance. Their sincere hope is that you will blame the parking lot owners for your higher rates, rather than the lawmakers who imposed the tax on them.” Indeed.

Tim Butler, one of the state legislators who supported enactment of the tax, and who represents the Fulgenzi’s town, claims that “it never was the intent of lawmakers to tax people like the Fulgenzis.” He adds, “The idea behind this was to tax those big parking garages in downtown Chicago. I wanted to make sure it didn’t tax municipal parking garages in Springfield, but it never occurred to anyone that it might affect parking near the state fair.” Sorry, Tim Butler, if that’s what the legislature intended, then it should have drafted language to that effect. But it didn’t.

There are two problems with this tax. One, as just noted, is the inconsistency between the alleged legislative intent and the language of the statute. That problem is widespread among legislatures. The other is the enactment of a tax on an activity that is not used to benefit that activity.

It is difficult to defend this tax. What is worse is that the enactment of this sort of tax encourages a backlash against taxes in general, including taxes that are easily defended. Legislatures need to do better. Much better.

Reader Morris directed my attention to an opinion piece by Curt Schroder, and asked, “Is this another misuse of the word ‘tax’?” Clearly reader Morris has been reading my posts dealing with the difference between a tax and some other charge, such as Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, and Sometimes It Doesn’t Matter If It Is a Fee or a Tax. To answer his question, I needed to read Schroder’s commentary, and I did.

The gist of Schroder’s position is that non-residents of Philadelphia, whether living elsewhere in Pennsylvania or in another state, bring their lawsuits in Philadelphia because Philadelphia juries, he explains, provide higher awards than juries do elsewhere. Whether this is true doesn’t matter for purposes of the question raised by reader Morris. Schroder relies on findings by the U.S. Chamber Institute for Legal Reform, which concluded, as Schroder tells it, “the total cost of the ‘tort’ or personal injury side of the court systems in the U.S. is $429 billion, representing 2.3% of the gross national product,” and “Pennsylvania’s tort system equates to $18.374 billion or 2.5% of Pennsylvania’s gross domestic product.” For the average Pennsylvanian, Schroder states, the “cost of Pennsylvania’s tort system amounts to $3,721 per household in the state.” Again, whether this is true doesn’t matter for purposes of the question raised by reader Morris. It simply sets the stage for Schroder’s next claim.

Schroder claims that the burden imposed on Pennsylvania households by its tort systems “is essentially an extra ‘tort tax’ paid by every household in the state to prop up an inefficient system of civil justice.” No, it is not a tax.

So why does Schroder use the word “tax” in making his argument? He does so for the same reason many other people use the word “tax” to describe something that is not a tax. Schroder’s target is the civil justice system, specifically, tort cases and high jury awards for plaintiffs. Some will agree and some will disagree with his position, reflecting a debate that is decades old. But in order to win over the uncommitted, Schroder adopts a tactic that has become increasingly used by others who advocate against a particular policy, system, charge, or plan. Find a way to call something a “tax.” Knowing that many people will immediately join in the opposition, because the word ignites their limbic systems, opponents of a charge are becoming ever more eager to call it a tax. Telling people they are being overtaxed generates a much more significant and intense reaction than telling them they are being overcharged.

The problem with dividing tort judgments by households and calling the result a tax is that the same approach could be taken with respect to any charge. This is why so many “fees” get tagged as “taxes” by their opponents, and I suppose there are people who would pin the word “tax” on alimony, doctors’ bills, and invoices for computer software.

Perhaps some of those who toss the word “tax” around indiscriminately would argue that they use the term, not for every charge, but for every involuntary charge. Yet that argument omits the critical aspect of what constitutes a “tax.” An involuntary charge imposed by a government is a tax or fee, but an involuntary charge imposed by a private sector actor is not a tax. It might be a fee, or a charge, or a cost, or a price, or an expense, but it’s not a tax.

At least Schroder put the term “tort tax” inside quotation marks, but nonetheless using the word “tax” in this manner will go viral, particularly among the unschooled, who will conclude, probably beyond persuasion to the contrary, that their taxes have been raised, and government needs to be dismantled. Unfortunately, as we edge closer to the dismantling of government, a process well underway in certain capitals, we move closer to rule by oligarchy, which does not impose taxes but fees, charges, costs, prices, and expenses, at least as involuntary as those dreaded taxes. Whereas the ballot box, though also under attack by those preferring rule by oligarchs, provides an arena to push back against taxes, there is no avenue to push back against fees and other impositions charged by the private sector. That is why misuse of the word “tax” helps batter down the protections government offers against rapacious privateers.

Reader Morris directed my attention to a story about a life coach who took an unwise approach to dealing with her desire to help others. According to the story, the life coach, retired from running one business, set up a life coaching business. She decided she did no want to invest time “keeping books, filing tax forms and otherwise preoccupying herself with the details of running a business.” Her solution was to have her clients pay the class fee directly to a charity.

Unfortunately for the life coach, this approach does not spare her the obligation of filing tax forms. Reader Morris commented, “I believe the life coach would need to report the course fees as gross income on her tax return and report the donations to the organization as charitable deductions. She would still need to spend time keeping the books, filing tax forms and the details of running a business.” Reader Morris is correct. The life coach has constructive receipt of the fees. There are many tax cases involving taxpayers who directed someone to pay a third party rather than the taxpayer. The courts consistently conclude that a transfer from A to C directed by B, who wants to benefit C in some way or who owes money to C is treated as a transfer from A to B, and then from B to C. In this instance, B is the life coach, A is her client, and C is the charity.

The difference between a “fee” and a “tax” matters for different reasons. One, of course, are the prohibitions against raising taxes that don’t apply to fees. Another is the attempt to call something a fee so that it makes things more difficult for the anti-tax crowd to claim that taxes are being enacted or raised. I have written about the difference between a fee and a tax in posts such as Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, and When is a “Tax” Not a Tax?.

In Tax versus Fee: The Difference Can Matter, I wrote about Oklahoma legislators who were arguing about a “fee” on cigarettes. Opponents claimed it was invalid because it originated in the Senate. This is what I wrote:

Oklahoma has enacted a new $1.50 per-pack “fee” on cigarettes. This action comes on the heels of four previous failures to increase the state per-pack cigarette tax by $1.50. Opponents have sued, asking the Oklahoma Supreme Court to invalidate the legislation. They argue that the fee originated in the state Senate, thus violating the requirement in the state Constitution that revenue-raising legislation originate in the state House. The opponents also argue that enactment of the legislation during the last week of the legislative session violated the state Constitution’s requirement that revenue-raising legislation not be enacted during the last five days of a legislative session. The opponents also argue that proponents of the $1.50 charge were trying to characterize the legislation as not revenue-raising by labeling it a fee. The opponents explain that the fee “simply reincarnated the earlier cigarette tax bills under a new name.”

Though I’m no expert in Oklahoma constitutional law, it seems to me that the fee raises revenue, and thus has been enacted in revenue-raising legislation. Accordingly, the process by which it was enacted appears to have violated the Oklahoma Constitution. If, for some reason, the Oklahoma Supreme Court determines that the provisions in the constitution applies to taxes but not fees, then deciding whether the $1.50 charge is a tax or fee would be determinative. The label alone should not resolve the question. The state is not selling cigarettes to people, nor is it selling licenses to use tobacco, and thus it is difficult to characterize the charge as a fee. It would not be surprising if the Oklahoma Supreme Court, if it were to limit the requirements in the state Constitution to taxes, decided that this particular charge was a tax. It will be interesting to see what the court decides, probably sometime later this year.

That court decision did appear later that year. According to this article, the Oklahoma Supreme Court struck down the fee for the reasons put forth by the opponents of the fee.

Now the issue has arisen again, this time in Massachusetts. In this editorial column, Howie Carr objects to a “transportation climate initiative fee,” also called a “carbon fee,” for a variety of reasons. He asserts that the fee is, in fact, a tax. He dislikes the idea of a tax being disguised as a fee. He claims that the supporters of the fee are trying to avoid a requirement in the Massachusetts Constitution that new state taxes must originate in the House of Representatives. Though he has other objections to the proposal, I think that on this point he can relax. Under the Massachusetts Constitution, “All money bills shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills.” In 1878, in Opinion of the Justices to the Senate and House of Representatives, the Massachusetts Supreme Court, addressing whether bills proposing the spending of money must originate in the House of Representatives, stated, “[W]e are of opinion that the exclusive constitutional privilege of the House of Representatives to originate money bills is limited to bills that transfer money or property from the people to the State, and does not include bills that appropriate money from the Treasury of the Commonwealth to particular uses of the government, or bestow it upon individuals or corporations.” So it seems to me, even though I’m not and expert in Massachusetts constitutional law, that whether the amount charged by the state is called a tax, a fee, or something else, if it causes money or property to be transferred from people to the state, it must originate in the House of Representatives. In other words, calling it a fee does not eliminate that requirement, and if that is what the proponents of the fee think they would accomplish, as Howie Carr suggests they are thinking, they are wrong, and Howie can relax on this point. He might want to take a look at what happened in Oklahoma with respect to the cigarette fee. He should find it encouraging.