Wednesday, March 20, 2019
I posed the following question to one of the persons who had shared the meme: “So what's your solution to the need to repair and maintain roads and highways? Tolls? (Also regressive) Privatization with even higher tolls (every such attempt in the USA failed, with governments having to take back responsibility for the roads, especially as those private companies are based in Europe)? Higher income taxes on wealthier people so that the "poor people" don't pay additional gasoline taxes? My idea, supported by a number of advocacy groups, is a road use fee based on miles driven and weight of vehicle (heavier vehicles do more damage), and though several states are experimenting with it, it meets much opposition. Note that I am a supporter of use taxes.”
I also noted that, “As for the proposed increase, the governor cannot triple or double or do anything with the tax. It's up to the legislature of Michigan. And the proposal isn't hers, it comes from a bipartisan group: https://www.bridgemi.com/.../bipartisan-ex-legislators...”
Finally, dishing out some logic, I explained, “And for a 50 cent per gallon increase to generate another $600 of annual taxes, the person must purchase 1,200 gallons of gasoline. A 25 mpg vehicle needs to go 30,000 miles to use 1,200 gallons. Most people don't drive that much. And as for the $1,200 claim, that's 60,000 miles per year of driving. Very few people do that. It's unfortunate that exaggeration about numbers and claims about non-existing gubernatorial powers befogs the issues. I've been dealing with this for decades as I watch and participate in tax issues.”
And as for proposed increase, I added, “It is 45 cents. But even 50 cents is not a tripling.” As noted in the State Tax Handbook, Michigan’s current gasoline tax is 19 cents per gallon, plus, per the same source, a 6 percent sales tax, which at present adds roughly 10 cents to the tax imposed on gasoline (whereas most states have higher gasoline taxes but don’t impose the sales tax) . Triple 29 cents is 87 cents. An increase of 45 cents doesn’t bring the tax to 87 cents.
What is most disturbing about this meme is that it shifts what should be debate over the appropriate means to fund highway maintenance and repairs to what has become an increasingly frequent and increasingly disruptive focus on political identity, coupled with a pitiful lack of knowledge about how laws are enacted and inability to do simple arithmetic. The combination of ignorance and partisanship is lethal. If left unchecked, it will culminate in global ruin. Not only is education about civics required to stem the ignorance, lessons in civility and logic are necessary to push people away from the “us and them” mentality being marketed throughout the planet by those who benefit from fracturing the human family.
What is almost as disturbing is the reluctance of the meme’s author to include his or her name for attribution. Why publish the nonsense anonymously? The reasons include fear of retribution and criticism, knowledge that the meme is false and dangerously misleading, awareness that linking this propaganda with an identified person would enhance the fear of retribution and criticism to include public shaming or worse, and avoidance of identifying who might be behind the anonymous author.
What also is almost as disturbing is the willingness of people to knee-jerk republication of the nonsense, without stopping to consider whether it is true, accurate, or sensible. Devoid of critical thinking skills, a significant subset of people function as limbic automatons, blindly following the emotional appeals of the manipulators. Considering that this meme was limited to a tax issue and a slightly broader civics issue, one can only imagine the disruption and danger posed by these sorts of rabble-rousing claims being made with respect to all of the other issues getting attention these days. Until and unless the vast majority of people get their critical thinking abilities re-energized, the spiral into authoritarianism and socio-economic collapse will accelerate.
Monday, March 18, 2019
The details are disappointing for a nation that claims to offer opportunity for all and to have disdained the rule of George III and his wealthy aristocrats. Wealthy parents, concerned or keenly aware that their children would not or could not obtain admission to top colleges, paid William Rick Singer to help them create fake admission examination scores, and to provide fake student-athlete identities for their children, few of whom were close to having college-level athletic skills. Unsatisfied with this con game, these folks with money to spare for financing unwarranted college admissions decided to create, or to accept Singer’s offer to create, fraudulent tax deductions for the amounts they shelled out. Singer created an organization, made it appear to be a qualified charity, and had the organization issue receipts that included, among other lies, the statement that the payments were not in exchange for goods or services.
The list of those charged provides a glimpse into the membership lists of the wealthy as well as a peek at those not so economically well off who succumbed to money temptation. The latter group includes coaches and athletic directors at various universities and officials of testing agencies. The wealthy parents include CEOs and other top corporate executives, entrepreneurs, a lawyer at a top New York City law firm, Hollywood celebrities, private equity firm owners and executives, Wall Street financial tycoons, and a dental school professor. These people paid as much as $75,000 for a fake test result, and amounts exceeding $1 million to portray their child as someone the child wasn’t. When Singer got wind of the investigation into the scheme, he alerted some of the parents and encouraged them to “take steps to thwart its progress.”
Though some might want to toss this aside as an aberration, I think it is the tip of the iceberg. Not only is it possible that this particular investigation will cast an even wider net, it is not unlikely that there are other advantages that people rolling in money have purchased for themselves, their families, and their friends that should not be the subject of purchase. How many wealthy have bought their way out of criminal charges? How many wealthy have purchased votes in Congress? How many wealthy have bought favorable rulings from government agencies?
Over the years, as I listened to the wealthy scream for more and more tax breaks, tossing out unfulfilled promises of job creation, I wondered why someone drowning in money needed more. Even eating high priced food, how much can a person eat? What does one need with another 100,000 square feet of residence other than to show off? How many $10,000 suits can a person wear? It dawned on me that some sort of addiction probably is at work. So I concluded that perhaps the wealthy simply want more money for the sake of having more money. And of course I knew that some wealthy individuals were, in fact, buying “favors” and votes from politicians. But now it appears that having money to spare to pay for unmerited advantages is something that drowning in money permits someone to do. These aren’t the actions of the poor and the struggling middle class. No wonder the wealthy want more tax cuts.
On top of this criminal activity, these wrongdoers claimed tax deductions. Disguising a bribe as a charitable contribution deduction is flat out fraudulent. Misuse of wealth is far more likely when there is excess wealth than when what little money a person has must be used for food, shelter, clothing, and medical care. Wealth and income inequality not only fuels wealth misuse, it strengthens the temptation for those much lower on the economic scale to accept bribes from the wealthy. Most of those coaches and test officials surely were nowhere near the bribe makers when it comes to income and wealth. This is not how wealth should trickle down. The solution, of course, is to restore the progressive income tax system the dismantling of which initiated the downward economic spiral into which the nation has tumbled.
When U.S. Attorney Andrew Lelling declared, “There will not be a separate admissions system for the wealthy, and there will not be a separate criminal justice system either,” one needs to hope that the convictions will be followed by sentences that are no less severe than those imposed on poor people who are sent to prison for offering a police officer a few bucks in an attempt to avoid a traffic ticket. This nation does have a separate criminal justice system for the wealthy, as the Paul Manafort sentences demonstrate. For whatever damage is being done by petty criminals, street killers, and bank robbers, the damage being done by the oligarchy poses much more of a risk to this nation’s survival as a democratic republic.
Friday, March 15, 2019
The tax in question is an accommodations tax. When enacted pursuant to a ballot initiative in 1986, the revenue from the tax was to be used for "improvements and amenities in Steamboat Springs, which will promote tourism and enhance the vitality of Steamboat Springs." After using the revenue for several projects, including a music tent, a tennis center, and improvements to a golf course, a committee was formed to advise the city on how to use future revenues. Two projects, one to make improvements to one street’s neighborhood in the city and the other to improve and expand trails, were put on a ballot initiative and were approved by voters, with a ten-year expiration date. Under the initiative, $660,000 of tax revenue was allocated to the two projects. That amount on the ballot reflected the lowest amount of revenue that had been collected annually over the years, a year during which the economy was in recession. Now the city is collecting more than $1 million in revenue from the tax.
So the City Council needs to decide what to do with the more than $500,000 that exceeds the $660,000 of revenue designated for trails (the neighborhood project having been completed). In the meantime, some of the excess funds have been used for projects that were not on the voter-approved ballot initiative. Accumulated remaining funds are close to $1.2 million. Council is considering allocating the funds beyond tourist-related projects, letting voters add tourist-related projects to the list of approved expenditures, making their own decision about that list, setting up a committee, or finding some other way to decide how to spend the money.
I have a suggestion. Reduce the accommodations tax rate so that the amount of revenue is reduced to what is needed. Set a variable rate so that no less than $660,000 is raised each year. There is no reason to feel bound to spend every dollar of revenue that is collected.
Wednesday, March 13, 2019
So it was more than interesting to read a Philadelphia Inquirer article by Joel Naroff, in which he commented on a study by the Institute on Taxation and Economic Policy (ITEP). Setting up his observations, Naroff shared some background, which those familiar with taxation already know but which is important for those just getting started with tax analysis to understand. He explained that there are all sorts of state and local taxes, including income, property, and sales. He explained the different between progressive taxation, in which rates increase as income increases, and regressive taxation, in which rates decrease as income increases. He observed that creating a “fair” tax system is difficult because different families, or individuals, are affected differently and thus view their tax burdens differently depending on their own particular circumstances.
Naroff put his commentary in the context of the phrases “high tax state” and “low tax state.” The ITEP study focused on state and local taxes. Looking at the nation as a whole, the lowest 20 percent income group faced an 11.4 percent state and local effective tax rate. The top one percent’s state and local effective tax rate was only 7.4 percent. To anyone familiar with state and local taxation, the study’s conclusion that state and local taxes are regressive is not a surprise.
Because he was writing for a Philadelphia area newspaper, Naroff looked more closely at the situation in the three states parts of which are in the Philadelphia metropolitan area. Pennsylvania, considered to be a “low tax” state by many, has its lowest 20 percent income group facing a state and local effective tax rate of 13.8 percent, above the national average, and its top one percent facing a state and local effective tax rate of 6 percent, below the national average. Delaware has its lowest 20 percent income group facing a state and local effective tax rate of 5.5 percent, and its top one percent facing a state and local effective tax rate of 6.5 percent. New Jersey, considered to be a “high tax” state by many, has its lowest 20 percent income group facing a state and local effective tax rate of 8.7 percent, below the national average, and its top one percent facing a state and local effective tax rate of 9.8 percent.
It turns out that most of the states considered to be “high tax” states have “modestly regressive state and local taxes” whereas two of the states considered to be “low tax” states, Florida and Texas, are among the states with the most regressive taxes. The lowest 20 percent income group in Texas faces a state and local effective tax rate of 13 percent, and in Florida, it’s 12.7 percent. So, in other words, the top one percent have a very different sense of which states are “high tax” and “low tax,” and unfortunately, not only does the perception of the very wealthy end up as the perceived characteristic generally, it also causes people taxed at low rates in what the wealthy consider to be a “high tax” state to conclude that their tax burden is high, while people in lower income brackets who think they would face lower taxes if they move to a “low tax” state end up, if they do move, being taxed more steeply than they were in the state they departed.
But what caught my eye, and should worry any American concerned about their own economic future, was this point. As Naroff puts it, “Finally, there is one result that should open the eyes of all middle-income households. In all but four states, the middle 60 percent pay higher effective tax rates than upper-income households.” Of course, those who have been paying attention know that for all the hype about the top federal income rate, when it comes to federal income tax effective rates, the secretaries are facing a higher rate than are the oligarchs.
Naroff concludes, “I suspect if that result were known, there just might be a national movement to change the way services are funded and taxes are collected at state and local levels.” Indeed. And it also would address the way services are funded and taxes are collected at the federal level.
There is a meme that has been floating around for some years now in various forms. The gist of the message is simple. The rich have convinced the middle class that the poor are the reason that the middle class is suffering. It ought to be clear from the ITEP study that it’s not the poor, saddled with the highest effective tax rates, who are putting the burden on the middle class, because it’s not the middle class that benefits from the lowest effective tax rates. Put another way, those “low tax” states that seem so appealing are low tax states for the wealthy, an outcome financed with reduced services, weaker education, and higher effective tax rates on the poor and middle class.
Monday, March 11, 2019
Some states have already raised fuel taxes to fund highway repairs and maintenance. Proposals are pending in most other states. And, not surprisingly, proposals to raise the federal fuel taxes are again being introduced in Congress. Some are simply designed to make up the deficits caused by failure to adjust the existing tax for inflation. Others would increase the tax even more.
It also is not surprising that the anti-tax movement is rising up yet again to oppose any tax increases. The latest condemnation comes from Americans for Prosperity in this statement. This group makes four points.
First, raising the gasoline tax would offset roughly one-fourth of the benefits of the 2017 tax legislation. Whether this is true isn’t the issue. What matters is that a gasoline tax would affect lower-income Americans more severely than it would affect the oligarchy, noting that the former “already pay a larger portion of their income to cover basic needs like food and fuel.” The Americans for Prosperity statement uses this fact as a justification for opposing the tax increase. The solution, of course, is to make certain that lower-income individuals have sufficient after-tax income to pay for basic needs. Income inequality comes at a price.
Second, “The better way to modernize and repair our nation’s roads and bridges is to target federal gas tax dollars toward the construction and maintenance of critical national priorities.” What Americans for Prosperity is saying is that it thinks federal gasoline tax funds “are being diverted to projects that have nothing to do with roads and bridges, or which are inherently local in nature.” If the funds are being used, for example, to fund public transportation in order to reduce stress on roads and bridges and reduce the cost of maintenance and repairs, there isn’t anything wrong with that use of the funds. On the other hand, if the gasoline tax revenues are being used to finance sports arenas, libraries, or ski resorts, the diversion is very wrong. As for funds being used for “inherently local” roads and bridges, in a twenty-first-century world it is important to understand that those local roads and bridges are part of a national network.
Third, “The better way to modernize and repair our nation’s roads and bridges is to . . . allow state’s greater flexibility to address their needs.” In its statement, Americans for Tax Prosperity argues for the elimination of laws and regulations that it claims increase the cost of projects. It argues that costs can be reduced if wages of those working on infrastructure are reduced. Those workers, of course, need income to pay for “basic needs,” something that would be more difficult when bringing home reduced income.
Fourth, “The better way to modernize and repair our nation’s roads and bridges is to . . . unleash private investment.” When I read the headline of the statement, “Better Ways to Address Roads and Bridges than Punishing Tax Hikes,” I knew this was the point of the statement. Of course, the anti-tax movement wants privatization of everything. Why? It permits private equity companies, hedge funds, and other enterprises, insulated from the ballot box, to take over basic and other needs, to set whatever prices they wish – as evidenced by their continued opposition to antitrust laws – and eventually to charge tolls for every road that will make the proposed gasoline tax increases look like petty cash. That is why I am not persuaded by the “higher gasoline taxes hurt lower-income people” argument if the alternative is privatization, because privatization means even higher tolls that hurt lower-income people even more severely.
Readers of this blog know that I am no fan of privatization, because privatization does not work, and these private enterprises have a goal, maximization of the bottom line at all costs, that is inconsistent with the goal of maintaining and improving the public welfare. Why privatization does not work is something I discussed in Are Private Tolls More Efficient Than Public Tolls?, When Privatization Fails: Yet Another Example, How Privatization Works: It Fails the Taxpayers and Benefits the Private Sector, Privatization is Not the Answer to Toll Bridge Problems, and When Potholes Meet Privatization. As I noted in So Guess Who Pays for the Senate’s Tax Cuts for Corporations and Wealthy Americans?, the anti-tax/privatization movement is part of a “plan to eliminate or privatize Medicare, Social Security, national defense, and everything else so that eventually the oligarchy owns everything.”
As for the highway, bridge, and tunnel funding challenge, there is a twenty-first century solution. I have explained, defended, and advocated for the mileage-based road fees for many years, in posts such as Tax Meets Technology on the Road, Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, Is the Mileage-Based Road Fee So Terrible?, Defending the Mileage-Based Road Fee, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, Mileage-Based Road Fees: Privatization and Privacy, Is the Mileage-Based Road Fee a Threat to Privacy?, So Who Should Pay for Roads?, Between Theory and Reality is the (Tax) Test, Mileage-Based Road Fee Inching Ahead, Rebutting Arguments Against Mileage-Based Road Fees, On the Mileage-Based Road Fee Highway: Young at (Tax) Heart?, To Test The Mileage-Based Road Fee, There Needs to Be a Test, What Sort of Tax or Fee Will Hawaii Use to Fix Its Highways?, And Now It’s California Facing the Road Funding Tax Issues, If Users Don’t Pay, Who Should?, Taking Responsibility for Funding Highways, Should Tax Increases Reflect Populist Sentiment?, When It Comes to the Mileage-Based Road Fee, Try It, You’ll Like It, Mileage-Based Road Fees: A Positive Trend?, Understanding the Mileage-Based Road Fee, Tax Opposition: A Costly Road to Follow, Progress on the Mileage-Based Road Fee Front?, and Mileage-Based Road Fee Enters Illinois Gubernatorial Campaign. When a reader asked how my support for the mileage-based road fee fit with my preference for a progressive income tax, I answered that question in Is a User-Fee-Based System Incompatible With Progressive Income Taxation?.
As companies merge, as hedge funds and private equity funds purchase companies, strip them of assets, and toss them aside, as local businesses are overwhelmed by national and global chains that give little regard to local concerns, as consumer choices are reduced because the number of providers from which to select decreases every year, and as private industry that cannot be held responsible at the voting booth becomes the replacement for government, the foundations of democracy will erode and the republic eventually will collapse. Given the choice of paying taxes for services that can be shaped by people elected in voting booths or paying tolls, fees, and other charges to a faceless private oligarchy operating in a market free for the wealthy, those who can look into the future unfettered by limbic systems surely would understand and accept the need for liquid fuel taxes or even better, mileage-based road fees, that keep pace with reality.
Friday, March 08, 2019
A bit of history helps. Before 2011, Michigan had a business tax, the effect of which was to tax both S corporations and LLCs and their owners on the entities’ incomes. It was a double taxation that some thought was hurting Michigan’s economy. In 2011 the business tax was repealed, but for some exceptions not relevant to the current debate. At the same time, pensions, which had been exempt from the income tax, were made subject to it. So while business owners were gleeful, pensioners fumed.
Depending on one’s point of view, reaction to Whitmer’s proposal was surprising or not surprising. Groups representing small businesses objected, claiming that the proposal would reintroduce double taxation of small business income. That’s not how I read the proposal.
A former Lieutenant Governor noted that the tax on the income of S corporations and LLCs would increase by 41 percent. That’s about right, as a 6 percent tax is 1.75 percentage points higher than a 4.25 percent tax, and 1.75 percentage points is roughly 41 percent of 4.25 percent. He also noted that these entities would need to file an additional tax return. That makes no sense to me, as these entities need to file a return in order to disclose the amount of income and other items being passed through to their owners. So his claim that these entities would face increased tax return preparation expenses runs very shallow.
Others claim that the proposal amounts to a tax on small businesses. Yet with the exclusion of the first $50,000 of income from the proposal, roughly 40 percent of small business S corporations and LLCs would not face additional tax. Truly small business operations would be unaffected.
Still others claim the proposal is a job killer, but that assumes the businesses would cut employees and does not take into account the impact of pensioners who, as customers with more after-tax dollars, could boost the revenue of those businesses. Similarly, those who claim the proposed increase would “divert money away from economy” fail to take into account that the money flowing out of the economy into the Treasury would be offset by the money no longer sent to the Treasury by pensioners. In other words, it’s at least a wash. It very well could be more than a wash, because it is, in effect, a form of demand-side economics, which is much more favorable to genuine businesses than is the failed supply-side economics nonsense.
But the best twist is an interesting one. The Michigan Treasury Department explained that most businesses would be able to deduct the proposed corporate income tax on their federal income taxes. Is that so? Many individual owners of S corporations and LLCs who are paying Michigan income taxes on the incomes of those entities are no longer getting the benefit of the federal income tax deduction for those state taxes because of the $10,000 cap on the federal deduction. Shifting the tax back to the entities as a corporate income tax makes the tax deductible for federal income tax purposes if the entity chooses to file as a corporation for federal income tax purposes. Otherwise, if the entity continues to be taxed as a pass-through for federal income tax purposes, the Michigan income tax that it pays continues to flow through to the tax return of the owners, where it probably, though not necessarily, is rendered useless by the $10,000 cap.
For any individual owner of a Michigan S corporation or LLC, the impact is best described by running the numbers and by making good guesses on future revenues and expenses. The idea that the proposed change would impact all S corporations, LLCs, and their owners in the same way is fallacious.
Wednesday, March 06, 2019
The article begins with the claim that “It's hard to not get excited about receiving a tax refund.” That’s true, I suppose, in most instances. But those who try to minimize the amount of money they lend to a government interest-free might not be too excited if they compute the lost interest.
The article notes that “On average, taxpayers expect to receive $3,030 back from the IRS.” Expectations are one thing, reality is another. Yet in this instance, it appears that the average refund, now at $3,143, is within the statistical ballpark of the expectation. The problem is that these are averages. Though averages matter, they can be misleading. An average refund of $3,143 could be one taxpayer getting a $2,000,000 refund and 999 taxpayers each getting a $1,144 refund. Of course, the expectations could have been in line with those outcomes, or they could have been one taxpayer expecting a $50,000 refund and 999 taxpayers expecting a $2,983 refund. Perhaps at some point there will be a survey that maps out individual expectations against individual realities. If the expectations are measured by what the taxpayers are seeing on their already-filed tax returns, of course actual refunds will be close to expected refunds. Yet with tens of millions of taxpayers being surprised by refunds much lower than expected, or even facing amounts due when expecting a refund, it is safe to assume that many taxpayers are encountering unexpected outcomes, most of them unpleasant.
The article explains that of people expecting refunds 43 percent plan to pay off some of their debt. Considering that consumer debt is at an all-time high, financial advisors tend to think these plans are good ones. Another 43 percent planned to invest the refund, put it in a non-retirement savings account, or make a major purchase of a necessary item. Only eleven percent, though, planned to set the refund aside for retirement. As for luxury purchases, only five percent admitted to having such a plan, perhaps the person getting a huge refund that brings up the average. Of the people surveyed, the largest group of respondents, coming in at 38 percent of those polled, did not expect to receive a refund.
The article concludes by suggestion that “getting nothing back from the IRS might be a good thing” because “Neither owing a balance nor receiving a refund is an indication that you paid exactly the amount of tax liability you owed.” That’s true, but it is extremely unlikely to hit the nail on the head in this regard. The odds are stacked against it. And in a year when the tax laws are significantly changed, calculating withholding and estimated taxes to equal exactly one’s tax liability is like trying to play archery on a field in New York looking for a bull’s eye on a target in Las Vegas.
Note: for those who read the article and wonder why I am giving different percentages, look at the chart accompanying the article. For example, three percent of those surveyed plan to spend their refund on luxury items. That three percent constitutes five percent of the 62 percent who expect a refund.
Monday, March 04, 2019
Yes, as bad as that was, it can be, and did get, worse. According to this story from several days ago, a family in Germany allegedly failed to pay amounts it owned to the town in which it lived. Among the overdue payments was a dog tax. Town officials, claiming that they had seized the family’s nonessential household goods, and presumably whatever financial assets the family had, decided to, and did, seize the family’s pet dog. The town then sold the dog online for the equivalent of $854.
Social media exploded with criticism of what happened. The officials claim that they had no other choice because there was nothing else to seize. I wonder, if the family did not own a dog but still owed other amounts, including taxes, to the town aside from the dog tax, would the officials have seized one or more of the children? Where is the line to be drawn?
Friday, March 01, 2019
The Oxford comma is used to separate the next-to-list item in a list. For example, one could write, “I gave the instructions to Bob, Mary, Rachel and Tony.” Proponents of the Oxford comma argue that the sentence should be, “I gave instructions to Bob, Mary, Rachel, and Tony.” In this instance, with or without the Oxford comma, a reader can easily determine that the instructions were given to four people. But sometimes the absence of the Oxford comma can make a difference in meaning.I then pointed out that the dispute between supporters of the Oxford comma and those who do not agree will continue. Though I did not know at the time, the dispute between the dairy and the drivers continued. Apparently the dairy was ready to try to take the case to the Supreme Court, but instead, according to this report, brought to my attention by a reader, the dairy settled the case and paid $5,000,000 to the drivers.
* * * The [O’Connor] case involved a dispute between a diary company and its drivers over the drivers’ rights to overtime pay. Under Maine law, which governed the employment relationship, overtime pay generally is required if the employee works more than 40 hours in a week. Among the exceptions to this requirement is Exemption F, which states that overtime pay protection does not apply to “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.”
The drivers argued that these words refer to the single activity of “packing,” whether the “packing” is for “shipment” or for “distribution.” The drivers explained that though they handle perishable foods, they do not engage in “packing” them. Thus, the drivers contended that they were not within the Exemption F exception.
The dairy argued that the statute refers to two distinct exempt activities, one being “packing for shipment” and the other being “distribution.” Under this interpretation the drivers are within the Exemption F exception because they unquestionably distribute perishable foods.
When the case was filed in the district court, it was referred to a Magistrate Judge, who decided that the dairy’s argument was the better one, and recommended granting the dairy’s motion for partial summary judgment. The district court agreed, and granted summary judgment for the dairy on the ground that “distribution” was a stand-alone exempt activity. The drivers appealed.
The Court of Appeals began by setting aside an unpublished opinion of the Maine Superior Court cited by the dairy. The Maine Superior Court had ruled that Exemption F provides an exemption “for the distribution of the three categories of foods.” The federal Court of Appeals pointed out that it is not bound by a Maine Superior Court decision because a Maine Superior Court decision does not bind the Maine Law Court. The Court of Appeals also noted that the cited case had been appealed to the Maine Law Court, which did not follow the Superior Court’s approach but decided the case on other grounds.
The Court of Appeals concluded that Exemption F was ambiguous, even after taking account of interpretive aids, the law’s purpose, and the law’s legislative history. The dairy argued that the words “distribution” and “shipment” are synonyms, that accordingly “distribution” is not a type of “packing,” and that “shipment” describes the exempt activity of “packing” whereas “distribution” is a separate exempt activity. The dairy also relied on the linguistic convention of using a conjunction to mark the last item on a list, and thus argued the lack of a conjunction before “packing” made “distribution” a separate item. The dairy conceded that if a comma had been placed after the word “shipment,” its interpretation would be unquestionable, but tried to block the conclusion that the lack of the comma required the opposite outcome by pointing out a rule in the Maine Legislative Drafting Manual that stated, “when drafting Maine law or rules, don’t use a comma between the penultimate and the last item in a series.”
The drivers argued that “shipment” and “distribution” are separate activities. They explained that “shipment” refers to outsourcing delivery to third-party carriers, and “distribution” refers to a seller’s in-house transportation of products to recipients, relying on dictionary definitions. The Court of Appeals noted that if the dairy was correct in treating “shipment” and “distribution” as synonyms, it would be odd for the legislature to use both terms. Additionally, the court noted that in other statutes, the Maine legislature treated “shipment” and “distribution” as different activities. Thus, using both terms was consistent with an exemption for “packing for shipment” and “packing for distribution.” The drivers also argued that because each exempt activity was described by using a gerund – a word ending in “ing” – the use of “shipment” and “distribution” should be treated as having the same grammatical role under the parallel usage convention. Thus, the drivers concluded, those two words are objects of the preposition “for” that follows the gerund “packing.” The drivers responded to the dairy’s reliance on the Maine drafting manual by highlighting a caution in the manual that drafters should “be careful if an item in the series is modified.”
After explaining why the arguments based on grammar did not resolve the matter, the Court of Appeals proceeded to explain why the arguments based on legislative history did not provide an answer. The court turned to the principle of interpreting a statute in favor of those whom the statute is intended to protect. In this instance, it was intended to protect employees. Accordingly, the Court of Appeals held that the drivers were not within the overtime requirement exception, and reversed the district court.
In the meantime, while the parties argued about the meaning of the statute, the Maine legislature amended the statute. Perhaps they had noted my advice at the end of Commas and (Tax) Statutes, specifically, “Those who draft statutes, regulations, rulings, contracts, or any other document need to pay very careful attention to each word and each punctuation mark, including the comma.” But though the legislature sought to fix the statute so that in the future a case like this would come out the other way, it avoided the comma. Instead, it replaced all of the commas with semicolons! It also changed the word “distribution” to the phrase “distributing,” a change perhaps reflecting my observation that “distribution” was not a gerund as were the other words used to describe activities. The statute in question when the case arose had denied overtime pay protection to “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.” Now the statute denies overtime pay protection to “The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.”
Why the semicolons? Had the commas been left in place and a comma added after “shipment,” the dispute would have disappeared. Is it possible that the legislature wanted to avoid being perceived as taking sides in the Oxford comma debate? I hope not. For the reasons that I have shared, the Oxford comma is essential in many instances, and in the instances in which it is not essential, it does no harm. The use of the semicolon in the statute violate the grammar rule that semicolons are used in a list only if one of more of the items in the list themselves contain commas. So now the semicolon debate will heat up.
Wednesday, February 27, 2019
One point to note is that California’s Franchise Tax Board permits taxpayers to file an application to pay taxes in cash. The primary reason for this exemption application appears to be the fact that growers and sellers of legal marijuana in the state find it difficult or impossible to open bank accounts, because financial institutions are concerned with compliance with federal law. There is a bit more information in this commentary from a law firm in California.
The Franchise Tax Board claims that it is legal for it to refuse cash payments. According to the California Taxpayers Association, the Board relies on a California statute and two cases. It points to section 19005 of the California Revenue and Taxation Code, which provides that payment in the form of check, electronic funds transfer, credit card, or other payment device is acceptable. The Board claims that under the Coinage Act of 1965, 31 U.S.C. section 5103, it is not required to accept currency as a form of payment, and to this point the Board cites Tenn. Scrap Recyclers Ass’s v. Bredesen, 556 F.3d 442 (6th Cir.2009), and Genesse Scrap & Tin Baling Co. v. City of Rochester, 558 F. Supp. 2d (W.D.N.Y 2008).
There are multiple flaws in the Board’s position. First, section 19005 does not prohibit payment with cash; it merely permits payment by check, electronic funds transfers, credit cards, and other payment devices. Second, its claim that the Coinage Act of 1965 does not require it to accept payment in currency flies in the face of what the United States Treasury has promulgated with respect to that federal statute. In response to someone who asked, “I thought that United States currency was legal tender for all debts. Some businesses or governmental agencies say that they will only accept checks, money orders or credit cards as payment, and others will only accept currency notes in denominations of $20 or smaller. Isn't this illegal?” the Treasury provided this explanation:
The pertinent portion of law that applies to your question is the Coinage Act of 1965, specifically Section 31 U.S.C. 5103, entitled "Legal tender," which states: "United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues."In other words, there is a difference between payment for goods and services and payment of taxes and debts. Third, decision in Tenn. Scrap Recyclers Ass’s v. Bredesen, 556 F.3d 442 (6th Cir.2009), and the cases it cites, including Genesse Scrap & Tin Baling Co. v. City of Rochester, 558 F. Supp. 2d (W.D.N.Y 2008), deal with payment for scrap metal in transactions that include payments for goods, not payment of taxes or debts. Those courts explained that a requirement to pay for goods or services by check or money order and not cash, whether imposed by a government or as terms of a privately negotiated contract, does not change the status of cash as legal tender nor make checks or money orders legal tender. The court provided that explanation because the parties in those cases objecting to the “no cash” rule argued that the rule ignored cash as legal tender and treated checks and money orders as legal tender. Because they were not dealing with payment of taxes, the question of whether the use of cash to pay taxes can be prohibited was not in issue, and thus citing those cases as relevant to the question is inappropriate.
This statute means that all United States money as identified above are a valid and legal offer of payment for debts when tendered to a creditor. There is, however, no Federal statute mandating that a private business, a person or an organization must accept currency or coins as for payment for goods and/or services. Private businesses are free to develop their own policies on whether or not to accept cash unless there is a State law which says otherwise. For example, a bus line may prohibit payment of fares in pennies or dollar bills. In addition, movie theaters, convenience stores and gas stations may refuse to accept large denomination currency (usually notes above $20) as a matter of policy.
As the California Taxpayers Association pointed out, the federal Coinage Act of 1965 takes priority over section 19005 of the California Revenue and Taxation Code even if section 19005 is interpreted as barring the use of cash, which it arguably does not do, rather than simply permitting the use of checks and other devices to pay taxes. At some point, someone who is prevented from paying taxes with cash, in California or any other place with a statute prohibiting cash payment of taxes, is going to litigate this issue. It might even end up in the Supreme Court. My guess is that one reason California made the exception for cash payments, which might make a case coming out of California not appropriate for reaching that issue – because the taxpayer was given the exemption as a means of escaping the prohibition – is that California did not want its marijuana growers and sellers to litigate the issue in a federal court.
So my answer to reader Morris is as follows. By providing the exemption, California is not, strictly speaking, prohibiting the use of cash to pay taxes, though at some point someone will be denied the exemption and want to pay in cash. The reason that California continues to “get away” with its policy is that no one has yet challenged it in a manner that would bring judicial evaluation. The issue remains unsettled.
Monday, February 25, 2019
Recently, reader Morris asked me, “What is your opinion on the 5 new bills in California to reduce soda intake?” He pointed me to an article describing those five proposals. One, of course, involved taxes, and it simply is a replication of the “sugary beverage” taxes enacted in Philadelphia and some other localities that pose more problems than they provide solutions. The other four proposals also pose more problems than solutions. Those four other proposals are to reduce unsealed soda container sizes, print warning labels on sugary beverages, remove sugary beverages from checkout lanes, and stop soda companies from offering promotions to retailers.
Rationales for these ideas, though appearing to be sensible, distract attention from a wider problem. The problem is the inability or unwillingness of many Americans to eat and drink and live in a healthy manner. Though sugary beverages presumably are the primary source of sugar consumption, and though excessive sugar consumption can trigger a variety of health problems, focusing on sugar while ignoring all the other unhealthy foods and beverages, to say nothing of unhealthy lifestyles, is not unlike enacting restrictions on drone use by people of a certain age while ignoring misuse of drones by those in other age groups simply because there is somewhat more abuse of drones by people in that certain age group.
When a problem exists, focusing on one cause while ignoring all others is foolish and ineffective. If a house is insufficiently insulated, does it make sense to put in energy-efficient windows while ignoring the lack of attic insulation? If the nation is to become healthier, it will take much more than restrictions on the consumption of sugary beverages. Advocates will claim that restrictions on soda are “a start,” but that’s like locking one door while leaving the others open. As I’ve asked in the past, where are the restrictions on food and beverages that are no less damaging in the long run that soda consumption? What about the excess consumption of donuts, pies, and cakes? Or fast food? Or food tainted with pesticides or that are genetically modified? Perhaps in light of the adverse health effects of red meat and fatty foods, when will there be a focus on sales of bacon?
The flaw in focusing on a “soda tax” is demonstrated by the reach of the Philadelphia soda tax. It doesn’t reach a variety of foods containing high amounts of sugar. Yet it applies to beverages that contain relatively small amounts of sugar and that are in other respects much healthier than cakes and pies. There are plenty of people who drink soda but who are in great shape, and there are too many people who don’t drink soda but who suffer from serious health problems caused by the ingestion of foods and beverages that the soda tax advocates ignore.
So what do I think makes more sense? Being a fan of education, I certainly support putting warnings on dangerous things, including dangerous foods and beverages, though realistically I realize that warnings don’t deter everyone. But health education needs to be more than warning labels. It needs to be emphasized in the K-12 schools. It needs to be powerful. When supporters of warning labels attribute the decrease in tobacco smoking to those labels, they overlook two things. That decrease has been accompanied by an increase in vaping, despite warnings. And what I think worked are those television public service announcements showing the impact of smoking on individuals, who describe life using an electrolarynx or dealing with a throat stoma. Surely similar public service announcements can be crafted to show the dangers not only of excessive intake of soda but of ingesting unhealthy foods, failing to exercise, and omitting healthy life routines. Forcing people to live healthily doesn’t work, has never worked, and will not work. Encouraging people, through education in schools, intense public service announcements, and warning labels, can work, if it is honest and sensible.
Friday, February 22, 2019
Though attempts to pay taxes and fines with coins, particularly pennies, get attention, there hadn’t seemed to be any attention given to the payment of taxes and coins with cash. Presumably, being handed 1,000 one-dollar bills isn’t quite the horror of being handed 1,000 or 100,000 pennies. But things are changing.
Recently, businesses in Philadelphia, and elsewhere, are adopting “no cash payment” policies. They claim that customers can be served more quickly, and lines move faster, when credit cards, debit cards, and iPhone apps are used to make payments. Of course, this presents a problem for people who, for whatever reason, do not possess those types of cards and apps.
According to this report, these “no cash payment” policies brought a reaction from a member of Philadelphia City Council. Bill Greenlee sponsored a bill banning stores that adopt such a policy. Along with other members of Council, he is concerned that as the practice grows, people without the ability to pay with other than cash will find themselves unable to acquire necessary goods and services. Greenlee noted that other jurisdictions either have enacted bans on “no cash payment” policies or are contemplating doing so.
Proponents of the “no cash payment” policies claim that a prohibition will stifle innovation. Another criticism seems more striking. The City of Philadelphia does not accept cash payments for a variety of transactions.
There is a Pennsylvania statute already in place, and in place since 1984, that provides:
It shall be unlawful for any person to refuse to rent or sell property or services to any individual for the reason that the individual does not possess a credit card. Nothing in this section requires the acceptance of any particular form of payment.The statute does not prohibit governments from adopting a “no cash payment” policy for transactions not involving rent or sales of property and services.
What caused me to think and write about this was the reaction of Upper Darby Township to a situation in its Tax Office. As reported in this story, after an employee of the Tax Office was caught, and admitted to, stealing cash tax payments, the township adopted new policies to prevent the problem from resurfacing. It changed the tax payment system, and adopted a provision prohibiting taxpayers from paying taxes with cash.
As I wrote in It Still Doesn’t Make Tax Cents,
For the curious, it is permissible to pay taxes, debts, dues, and other charges with coins. According to 31 U.S.C. section 5103, “United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues.” It also is permissible for private businesses and organizations to refuse to take currency or coins as payment for services or the sale of goods. The difficult question, which continues to be debated, is whether a person, business, organization, or government agency can refuse to accept currency or coins as payment for a debt, a public charge, a tax, or dues. Though debates continue to flourish over this question, the answer is no.The deeper question is why a government can have a “no cash payment” policy for tax payments. Although the Pennsylvania statute applies to rent, goods, and services, and not taxes, debts, and dues, there is a federal statute that treats coins and currency as legal tender for taxes, debts, and dues. And as I also pointed out, a well-written statute would clear up this issue, though it would need to be a coherent statute that treated people without credit cards, debit cards, and iPhone apps in the same way no matter what it is they are trying to pay.
Wednesday, February 20, 2019
The IRS reports that total refunds and the average tax refund have both decreased. People are discovering that their refund is not as large as expected, and, of course, many people expect their refunds to be in line with previous year refunds. Not a few are discovering that they owe tax and must transfer funds or write a check to the Department of the Treasury.
Arguments about the impact of the legislation focus on whether people are paying less tax than last year or more tax than last year. The flaw in that approach is that the only time it works is when a taxpayer’s income remains unchanged. A person who experiences a significant increase in income will almost certainly face a higher tax liability, even if rates are reduced. Likewise, if income drops significantly, tax liability will go down even if there were no tax cuts.
The only fair measure of the impact of the tax law changes on an individual is to compare total tax liability to total income. It makes no sense to compare to taxable income, because the tax law changes cause many taxpayers’ taxable incomes to change even if their income doesn’t change. In other words, what percentage of income must be paid as federal income tax?
Estimates of how many people are seeing a reduction in the percentage of income that must be paid as federal income tax are not available. Instead, we get statements such as the one issued by the Department of the Treasury claiming that most people are “seeing the benefits of the tax cut in larger paychecks throughout the year, instead of tax refunds.” But there is no benefit unless that percentage goes down. Does it? That percentage is not computed on the federal income tax return. It must be computed separately. I wonder how many people, and how many tax return preparers, are doing this calculation.
One Senator claimed that because the average refund is down $170 that people experiencing a reduced refund are encountering a tax hike. Some are, and some aren’t. The reduction in a refund does not answer the question. The Department of the Treasury could provide the information, considering it knows each filer’s income and tax liability, but I doubt it has the inclination, the time, or the financial resources to do the computation and publish summaries.
Another Senator cautioned that relying on early season refund statistics is misleading because the refund statistics change from week to week. That’s true, but again, that’s an argument about which set of useless information should be used. Worse, early filers are usually those expecting a refund. What is going to happen when the later filers, many more of whom expect to owe taxes, join the filing parade?
Another Senator claimed, “That big refund they've gotten used to — that's a goner now that Trump's tax changes are the law of the land, and many might owe the government money. It sure looks like the Trump administration decided to put politics first, lowball the estimates of how much tax should be withheld from everybody's paychecks, and lure people into the false sense of security that they'd gotten a big tax cut, courtesy of Donald Trump." Of course, that’s exactly what happened. It’s a technique often used in private sector business deals, with the front end looking fantastic for the consumer and the back end turning out to be an ocean of interest charges.
Those of us who understand these things saw what was happening. People were warned. The IRS repeatedly told people to check their withholding. Not everyone listened. And now, some are paying the price. When the fine print isn’t examined, when projected computations are not done, when careful analysis is omitted, when limbic impulses overwhelm reason, prices get paid. And those who think that a reduced refund or the need to write a check or transfer funds to the Department of the Treasury is the only price they will be paying need to think again, and again. These refund decreases and tax payment increases are just the first installment in the total price that will be paid.
Monday, February 18, 2019
The New Jersey legislature has passed a bill that would permit local governments to set up stormwater entities to collect fees on property owners and occupants who contribute to stormwater runoff. And, not surprisingly, it has opponents. Last Thursday, in a letter to the editor of the Philadelphia Inquirer that does not appear to be online, David F. Lipton of Toms River, N.J., called it a “rain tax,” described it as a “lawyer’s dream,” and a “constitutional nightmare.” Lipton put the phrase “rain tax” in quotes, and it probably was an editor who used the phrase in the caption for the letter. So considering I’ve explained why this sort of fee is not a “rain tax,” I’ll set that aside.
Why is it a lawyer’s dream? Lipton explains that the provision in the bill permitting a “fee based on a ‘fair and equitable approximation’ of how much runoff is generated from their property.” Yes, that sort of language will invite in the lawyers. But as I wrote in The “Rain Tax”?, those computing the fee “can look to localities in a state such as Pennsylvania, which impose storm water management requirements on construction projects, to learn how to identify impervious surfaces, which actually isn’t rocket science. They can then calculate the total square footage of impervious surfaces in the county, which administers the fee.” It’s not rocket science. Yes, lawyers will jump on the words “fair” and “equitable” to develop arguments for why their clients should not pay the fee, or should pay a lower fee. Some of those arguments will be valid, which is why lawyers exist. Imagine being a property owner from whose property water runs off into the public street, though the water is coming from an adjacent property whose owner has not mitigated that runoff. Of course there will be litigation. There always is litigation when dealing with taxes. If a prerequisite for a tax would be a guarantee of no controversy, there would be no taxes. Though that would delight many, it also means there would be no government, no viable society, no safety, no freedom, and no justice.
Lipton also mentions what happened when the New Jersey legislature enacted a bill that permitted each local government to have its own entity to compute and impose connection fees for new users of the sewage system. The New Jersey Supreme Court held that this approach would allow unequal treatment, violating the New Jersey Constitution. Thus, a statewide system had to be used. Lipton predicts that allowing each of more than 550 local governments to set their own standards will be struck down for the same reason. He’s almost certainly correct. I say “almost” because predicting what a court will do is risky.
But does this mean that the stormwater management fee is unfair? Aside from the constitutional issue Lipton mentions, no, it’s not unfair. In fact, it is a good example of how a user fee should work. It’s a fee that can be avoided by engaging in water runoff mitigation. And that is fair to the environment, and those who use it now and will use it in the future.
Friday, February 15, 2019
The last post in that series examined the claims that union leader John Dougherty and City Council member Bobby Henon pushed for the soda tax in an effort to punish the Teamsters Union. Dougherty allegedly was angry with the Teamsters union for a television ad it had run that put Dougherty “in a negative light.” The ad suggested that Dougherty and Jim Kenney, running at that time for the mayor’s office, which he won, “supported police brutality.” Now, according to this Philadelphia Inquirer report, it turns out that the Teamsters did not arrange or pay for the attack ad. It was the Carpenters union that sponsored the ad, funded by an outfit called Leadership Matters, Inc., which “registered in Pennsylvania a week before the ad aired, just before the May 2015 primary.”
Why would Dougherty make a mistake in identifying who was behind the ad? Both the Teamsters union and the Carpenters union were supporting a different candidate in the mayoral primary, opposing Jim Kenney who was supported by Dougherty. It is understandable that someone would be confused about who is behind a political campaign ad, because national and state election laws, and judicial opinions, have created an environment in which the actual force behind the ad can hide behind a screen of multiply-layered organizations that pop up just before and disappear just after and ad or series of ads. On the other hand, without solid evidence of who is behind an attack ad, reacting to the ad needs to be delayed until that evidence can be ascertained. And, even if the actual identity is known, taking revenge by pushing for a tax that harms individuals not connected with the attack ad controversy isn’t a good long-term strategy. That the tax generates revenue that is put to good use does not in and of itself justify the tax nor the process, or particular elements of the process, that leads to its enactment.
Now, with the soda tax continuing to be the focus of intense political debate, the upcoming election season in Philadelphia is certain to be even more heated than elections in Philadelphia usually are. For those not familiar with Philadelphia politics, election season is always very heated. Though sometimes tax issues get a good bit of attention during a Philadelphia campaign, this time a tax issue might be taking center stage. Charges and denials about the origin of the soda tax are going to be flying in every direction. So guessing an answer to whether this is my last commentary on the Philadelphia soda tax should be easy, barring something taking me out of the blogging circuit.