When Tax Law Needs to Know What Is a Slot Machine

Pennsylvania imposes a tax on slot machines equal to 34 percent of gross terminal revenue and a local share assessment. Businesses operating so-called skill devices have not been paying the tax because they claim that the devices are not gambling devices. The dispute between the Commonwealth of Pennsylvania and the operators reached the Supreme Court of Pennsylvania, in In Re: Three Pennsylvania Skill Amusement Devices et al; Appeal of Commonwealth of Pennsylvania.

The Court concluded that the skill devices are slot machines, subject to the tax (and also subject to criminal law provisions applicable to slot machines). It reasoned that the device meets the general definition of a slot machine in the Gaming Act. It pointed out that in 2017 the legislature added "skill slot machine" and "hybrid slot machine" to the definition of slot machine, and that the devices in question are "plainly either a 'skill slot machine' or a 'hybrid slot machine.'" The Court explained that, even setting aside the statutory language and "resorting instead to a judicial gloss," the device meets the "ordinary English definition, a 'coin-operated gambling machine that pays off according to the matching of symbols on wheels spun by a handle,' or an electronic version of such a device." Finally, even though some degree of skill is, or hypothetically can be, a component of playing the device, the 2017 legislation provides that no amount of skill removes the device form the ambit of a slot machine.

As I have pointed out in previous commentaries, the practice of tax law extends beyond reading, understanding, and interpreting tax statutes. It extends beyond computations. It very often involves defining terms that exist outside of the tax law. What is a gift? What is a scholarship? Who is a brother-in-law? What is a household? What is candy? The list is long. And that list includes, what is a slot machine?

I could easily wander into the world in which people debate whether something is gambling or the exercise of skill. It is easy to identify pure gambling: the roll of dice, the pushing of a button on a slot machine, the placing of a bet on how many points an NBA player will have with 22 minutes remaining in a game. These are instances in which the outcome is beyond the person's control. On the other hand, it is easy to identify pure skill: making a dress from a bolt of fabric, solving a sudoku or crossword puzzle, fixing a flat tire. Yet there are so many situations that are a blend of both: playing poker, where the drawn cards are beyond the player's control but the decision to draw more cards or to fold manifests the player's skill, placing a bet on the kicking a field goal in windy conditions with the wind beyond the kicker's control but the approach and leg swing within the player's control, placing a bet on whether a baseball will be hit well enough to be a homerun but facing the risk that the wind keeps it from leaving the park. The manufacturers of the devices in question tried to shift them out of the gambling category by adding a skill element. The Court described how this worked:

The legally relevant skill element comes into play whenever a spin in the base game produces a loss, or the player “wins” an amount less than the wager, specifically less than 105% of the amount wagered on a given spin. The player then is given the opportunity to use an additional feature called “Follow Me.” “Follow Me” is a memory test reminiscent of the game “Simon.” The player is presented with a three-by-three grid of colored dots, which flash in a random sequence that the player must recall and reproduce. The entire exercise consists of twenty-five rounds, with each round adding another step that the player must remember. By the end of “Follow Me,” the player must correctly reproduce a sequence of twenty-five steps. Upon successful completion of this task, the player receives 105% of the amount wagered in the base game. Thus, using the “Follow Me” feature, a successful player can avoid realizing a loss on any given play of the base game.

The Court pointed out that the "Follow Me" feature is "not mentioned or explained in the device’s general instructions, and the feature can be accessed only by clicking a cryptic and unexplained prompt—“Touch Here to Follow Me”—which appears for only a few seconds after a losing spin, and only after the option to play the base game returns." The Commonwealth argued that the device "discourages the use of the feature because 'Follow Me' is tedious and unreasonably difficult; deliberately slows gameplay by imposing multiple 'intermissions' between rounds where nothing happens for approximately fourteen seconds; takes approximately twelve minutes to complete in total, compared to mere seconds to play the base game; and awards only a few cents in excess of the player’s lost wager (at most twenty cents, on a maximum bet of four dollars). The Commonwealth also argued that "'Follow Me' is 'an obvious fig leaf, included to cloak the game’s primary purpose as a gambling device,'” and "that 'Follow Me' isn’t there for the players; it’s there for the lawyers.” The Court's conclusion that the devices are slot machines did not require it to evaluate whether the skill required to play "Follow Me" was genuine or a "fig leaf" because its conclusion would be the same no matter the degree or genuineness of the skill inherent in playing the device.

The Court suggested that if the operators of the devices did not like the outcome, they need to understand that the legislature created the definitions and only the legislature could change the definition so that the devices would not be taxed as slot machines or treated as slot machines for criminal law purposes. I'm willing to bet that the manufacturers and operators of these devices, along with the businesses who have them on their premises, will approach the legislature for some sort of relief. For them, it's a gamble worth taking.

Every Once in a While They Get the Wrongdoers: Tax Debt Relief Scammers Caught and Punished

In a press release issued the other day, the Federal Trade Commission announced that it and the State of Nevada have settled charges it brought against the operators of a tax debt relief scheme. Under the proposed order, the defenders will not only surrender more than $8 million in cash and surrender other assets but will also be banned from debt relief services, tax preparation services, telemarketing, and impersonation of individuals, governments or businesses.

According to an earlier press release, the defendants operated multiple companies through which they falsely claimed the could settle taxpayers' back taxes for "pennies on the dollar" or only a "fraction" of what the taxpayers owed. These claims often were made before the defendants and their companies analyzed a taxpayer's financial and tax situation. The FTC and the State of Nevada alleged that the defendants mailed deceptive and threating letters that impersonated federal, state, and local governments to solicit calls from the targets of the letters. When taxpayers called, operators answering the call on behalf of the defendants and their companies also made false claims about tax debt relief. Taxpayers were also reached by telemarketing calls made by the defendants or their companies. Taxpayers were told that they were being investigated by tax authorities such as the IRS or that their accounts had been "red flagged" by those authorities or marked as "high risk." When taxpayers agreed to pay for the services offered by the defendants and their companies, the defendants and their companies did little, if any, of what they promised, and rarely, if ever, obtained the promised results. When taxpayers dissatisfied with what was done (or not done) asked for refunds of what they paid they were ignored.

The FTC charged the defendants and their companies with impersonating the government including local, state, or federal tax authorities, making false promises that they could reduce consumers’ tax debt, and violating the FTC’s Telemarketing Sales Rule requirements by making misrepresentations in telemarketing calls. The FTC alleged that the conduct in question violated the FTC Act, Gramm-Leach-Bliley Act, the Telemarketing Sales Rule, and the Impersonation Rule. The State of Nevada alleged that ATS’s conduct also violated Nevada law. The FTC filed a complaint against the individual defendants and nine affiliated companies.

Under the proposed settlement, the individual defendants will be required to pay $77.7 million, the amount they took from taxpayers from February 2022 to 2025. Except for the approximately $8 million cash and other surrendered assets, the full judgment is suspended based on the defendants’ inability to pay. The full judgment will become due immediately if the defendants are found to have misrepresented their financial condition. The settlement becomes binding once approved by the court.

Tax debt relief scams are just one tiny portion of the many scams that afflict people every day. Scams ultimately are designed to move money and assets from gullible, careless, or inattentive victims to those who want to make a "quick buck" the easy way. If it's not a call by someone pretending to be the IRS or a state revenue department claiming that the person owes taxes and needs to pay, it's someone pretending to be a grandchild looking for a payment from a grandparent, or someone pretending to represent a health care provider trying to get a Medicare number in order to siphon funds from the federal government, or someone offering some service in an attempt to get identifying information in order to drain a bank account or open credit in the victim's name. For every wrongdoer identified and stopped by law enforcement, there are dozens who go uninvestigated, or unidentified, or unpunished. Would these scammers not be better targets for the use of law enforcement resources rather than somw of what is currently being targeted?

Memorial Day: Honoring Those Who Died for Freedom While Rejecting Those Who Fight for Anti-Freedom -- A Revisit

Sometimes I decide that what I have written doesn't need to be modified. So it is with what I wrote on Memorial Day last year. The cicumstances that influenced what I wrote have continued. If anything, they have become worse and more alarming. What did I write a year ago? This:

Freedom, it seems to me, is an oft-misunderstood concept. In 2023, in Indeed, Freedom Is Not Free, I explained why freedom is not the same thing as unregulated behavior. Last year, in Freedom To Do or Freedom From or Both?, I concluded that there are two sides to freedom, "freedom to do"and "freedom from."These concepts are mutual, because "freedom to do" is simply "freedom from" regulation, authority, and social constraint, and "freedom from" is simply "freedom to do" whatever is being escaped.

So many of the articles, commentaries, broadcasts, social media postings, cartoons, and memes that address Memorial Day proclaim respect, appreciation, and gratitude for those who fought and died to protect "our freedoms." In other words, they fought FOR freedom. They fought to DEFEND freedom. But against whom or what have they fought? Freedom needs protection and defense only if there is something that opposes freedom. There are all sorts of names for what opposes freedom, ranging from repression through authoritarianism to totalitarianism, and many hours and words have been devoted to debates over which of these words properly describe what stands in the way of freedom. But does it matter? All of these movements, ideologies, and worldviews can be lumped together under the term "anti-freedom." Memorial Day is a day to honor those who fought against and died fighting anti-freedom.

Does it not make sense that the best way to honor those who fought and died defending freedom against anti-freedom is to follow a path that does not lead to, and does not wander through, the anti-freedom desert? Does it not make sense that following a freedom path requires those who are alive and benefitting from freedom do their part in standing up to anti-freedom when its ugly head reappears, as it has over the millennia during which humans have lived? Does it make sense to behave in the same manner as those against whom the defenders of freedom fought and sacrificed their lives in doing so? Of course not. It makes no sense to throw away all that was saved, protected, and cherished by those who fought and died, because to do so means that their lives were sacrificed in vain. Do we want them observing this nation and asking themselves, and asking us, "Why did we bother?"

Yet there are those who claim to be "freedom lovers," many of whom join in Memorial Day tributes of one sort of another to our fallen heroes, whose behavior is frighteningly similar to that of those who posed the threats against freedom that sparked the battles and wars in which the heroes fell. How does one explain this incongruity? The answer rests in that tension between "freedom to do" and "freedom from" that I described in Freedom To Do or Freedom From or Both?. A simple example of this tension is the conflict between "freedom to do" 90 miles per hour on the highway and another person's "freedom from" injury and death while driving. As I wrote in that post,

What makes the analysis particularly difficult on Memorial Day is a troubling tension between "freedom from" and "freedom to do." On Memorial Day we remember and honor those who died to give this nation "freedom from" authoritarianism, dictatorship, repression, and ethnocentrism. Yet we also seem increasingly complacent when those who benefitted from the sacrifice of those we honor claim to have the "freedom to do" the very same behaviors the suppression of which was the purpose for which those we honor fought and died. It is particularly disturbing when people who profess a deep admiration for those who gave their lives to protect the nation from those enumerated evils are at the same time supporting people and policies that nurture and enlarge those same evils in this nation. What was the point of so many sacrifices to eliminate authoritarianism, dictatorship, repression, and ethnocentrism when there are people who want those same attributes to become the linchpin of this nation's existence?

And now, a year later, it isn't just a matter of those who are "increasingly complacent" but those who are "supportive" of those whose behavior, policies, and decisions are less aligned with the freedom for which many died and more aligned with the ideologies and goals of those who wear the hat of "anti-freedom."

I've written several times that freedom has its limitations, and that it comes at a price. The price is not only the sacrifice of those who fought and died protecting it, but the recognition of those who benefit from freedom that there are limits to what freedom permits someone to do. Freedom does not provide permission to be, or support, anti-freedom. By definition, freedom cannot be, cannot support, and cannot abide, anti-freedom.

Yet though I did not change those words, I will add a sequel. In college I took a course called "American Civilization" by the late, esteemed Professor Anthony N. B. Garvan. At the end of a semester in which he took that class on a journey through the many phases of American culture as manifested in behavior, belief, art, and other expressions, he closed on the last day of class, back in the 1970s, by predicting that America's culture was changing yet again, shifting into what he called the "me generation." And yes, that came to pass. A shift from valuing the benefits of living in an interconnected, mutually supportive society to an emphasis on the rights and privileges of individuals that weakened the emphasis on the responsibilities of individuals. Empathy lost space to selfishness. Accountability and transparency were surmounted by lies and cover-ups. Generosity became disfavored as greed took center stage. "How can I help" was heard less often than "What's in it for me?" The delicate balance between rights and responsibility, between empathy and self-care, between generosity and greed toppled. Those heroes who sacrificed their lives to protect freedom were able to do so, not because they were consumed by greed, by selfishness, by "what's in it for me?" but because they understood the value of empathy, of resposibility, of accountability. Those heroes were part of a military that could not have succeeded, let alone survived as a cohesive force, had it been lacking in resposibility, cooperation, and empathy. And that military was supported by a civilian population that shared those same values, and there were heroes among them, also. They shared the same values.

What remains is to understand how and why the culture shifted to too many afflicted by self-centeredness, greed, and prevarication. What remains is to figure out what, if anything, can be done to rebalance the culture. I leave that to others who are learned and expertised in sociology and political science. But I leave those questions to those who read this short essay, to ponder, to reflect, to observe, to think.

May it be that those heroes we honor did not die in vain. May they never need to ask "Why did we bother?"

What Solves the Affordability Challenge? Eliminating Taxes or Raising Wages?

According to this report from yesterday, Jeff Bezos, one of the world's wealthiest individuals, has proposed eliminating federal income taxes for low-income individuals. My guess is that his reasoning ultimately rests on the notion that if federal income taxes are eliminated for low-income individuals it will reduce the number of people interested in and supporting the movement to "tax the rich." Of course, Bezos framed his proposal by suggesting that eliminating federal income taxes on low-income individuals will increase the chances of "bringing themselves up" during "hard times."

Bezos gave an example of what he claims to be federal income taxes getting in the way of people improving their financial situation. "A nurse in Queens who makes $75,000 a year pays more than $12,000 a year in taxes. Does that really make sense? How about we start by having the nurse in Queens not pay taxes? That's $1,000 a month that could help with rent or groceries or anything." It is not clear where Bezos gets the $12,000 figure. In 2026, a single individual with $75,000 in wages and no other income, who claims the standard deduction and is not entitled to any credits, has a federal income tax liability of $7,670. What is the other $4,330? State and local income tax? Sales tax? Gasoline tax? Is Bezos advocating that anyone with $75,000 or less in gross income pay no taxes and not simply no federal income tax?

If Bezos is focusing on the federal income tax, he appears to be ignoring the fact that roughly 76 million households paid no federal income tax in 2025. Thirty percent of these households had income exceeding $75,000. Unlike the person earning $75,000 with no deductions or credits, many households paying no federal income tax take advantage of deductions and credits, including, for example, the earned income credit. Though it makes sense for the truly impoverished to be spared paying federal income tax, it enhances the sense of civic duty and societal responsibility to require individuals who are not truly impoverished to contribute something to the cost of belonging to a civilization. Perhaps the challenge for the nurse in Queens is the inadequate salary, which if raised, even though generating more tax liability, would also generate more take-home pay.

Bezos explained that, " The bottom half of income earners in this country pay only 3% of the taxes." His percentage is close. It's actually 3.3 percent. He continued, " It's only 3%. We can find 3%." So let's guess where that 3 percent would be found. Would it be an increase in the taxes paid by the top one percent? I doubt it. The top 2 through 10 percent? Perhaps. The top 11 through 30 percent? Possibly. But the best bet would be it comes in the form of more cuts in federal spending. More cuts to Medicaid. More cuts to Affordability Care Act financing. More cuts to other programs that help the truly impoverished who, even after taking home 100 percent of their pay spared from federal income taxes, do not have enough financial resources to afford the necessities of life.

The issue isn't so much taxation as it is the failure of wages to keep pace with inflation and productivity. The federal minimum wage has stagnated for many years. The economic benefit of productivity increases, generated as much by labor as by capital investment in machinery and technology, has flowed to the owners of capital and not to the workers. A tax rate of zero means nothing when the income is zero or extremely low.

The Federal Fuel Tax Suspension Reverse Lottery

Everyone knows how a lottery works. A bunch of people each pay a small amount of money for a chance to be one of the few winners of much larger amount of money.

Considering the low chances of winning, many people pass on the chance to win a lottery. Other people jump at the chance, convinced they have some sort of edge especially when it involves picking numbers.

What's a reverse lottery. A bunch of people each receive a small amount of money (in escrow to make it work) for a chance to be one of the few losers of a much larger amount of money.

Considering the low chances of losing, some people would readily accept the small amount of money. Others would refrain from participating, unwilling to incur even that small risk of being required to pay back much more than they were given.

How is all of this relevant to a federal fuel tax suspension?

First, a federal fuel tax suspension is a reverse lottery. By not paying the federal fuel tax, purchasers of gasoline and diesel are in effect being given a small amount of money each time they fill their tank. How much? It depends on the amount of fuel a person uses. Someone who uses 30 gallons of gasoline a month would be given, in effect, $5.52 per month.

Second, a federal fuel tax suspension would decrease federal fuel tax revenues by roughly $3.5 billion each month. This means the Highway Trust Fund would stop receiving income. This means the Highway Trust Fund would be required to stop making payments for highway construction and maintenance and for public transit.

Third, when the Highway Trust Fund stops making payments for highway construction and maintenance, the number of unrepaired potholes will increase and other deterioration will go unfixed. Construction will come to a halt. Some workers will lose jobs. Some drivers will hit potholes, incurring significant expenses. Not all workers will lose their jobs. Not all drivers will hit potholes. Those who do lose jobs or hit potholes have "won" the reverse lottery. They received $5.52 per month. They lose their income. They pay for expensive repairs to their vehicles.

But there also is a big difference between a reverse lottery and a federal fuel tax suspension. A reverse lottery, like a typical lottery, is voluntary. Participate if you wish, step away if you're not interested. But a federal fuel tax suspension is a mandatory, involuntary reverse lottery. Every driver, every worker participates. There's no opt out, permitting someone to pay the federal fuel tax in exchange for retention of a job, immunity from hitting a pothole, or reimbursement for the cost of repairing the damage to a vehicle caused by a pothole.

A similar analysis applies to suspension of state fuel taxes. About two months ago I addressed a similar fuel tax suspension proposal in Pennsylvania, in Does a Temporary Tax Suspension Solve the Underlying Problem?, pointing out other adverse consequences of a fuel tax suspension and explaining that the suspension does not solve the underlying problem. I concluded with this advice:

Yes, increased gasoline and diesel prices are frustrating, harmful to most drivers' wallets, and detrimental to the economy. [The proponent of the fuel tax suspension] is trying to solve a problem caused by someone else. Perhaps it would be better if we insisted that those who cause a problem or break something be the ones who fix the problem or make the repairs. If someone else solves the problem, those afflicted by the problem are less likely to identify those who caused the problems and less likely to take steps to ensure that those same people don't cause yet another problem.

Hopefully people are not conned into thinking, "Oh, you politicians suspended the fuel tax and lowered what I'm paying and that is wonderful so I will continue supporting all of you" but rather realize, "Oh, this is a short-term benefit and in the long run it's going to cost me more, perhaps much, much more, so let's stop with the band-aids, fix what all of you broke, and stop all of you from breaking anything else."

What Sort of Tax or Fee Should Fund Local Street and Sidewalk Maintenance?

Portland, Oregon, has a problem. Its streets, sidewalks, street lights, and related infrastructure is deteriorating at a rapid rate. The reason is insufficient revenue from the local gasoline tax an decreases in federal and state funding. So, according to this story, shared with me by reader Morris, the town council is proposing a fee that would be imposed on property owners. The monthly fee would be $12 for a home, $8.40 for an apartment unit, and $61 for commercial properties. A similar proposal failed ten years ago. Other cities in Oregon have imposed similar fees.

The city estimates it needs $6 billion to bring its street and sidewalk infrastructure to fair condition. The proposed fee would raise about $47 million annually. It takes many years of $47 million to raise $6 billion. More than 127 years.

The town explains that "The fee is meant to charge people based on their street usage," and that the lower rate for apartment units is because, "according to the city, apartment residents take fewer trips." That conclusion is highly questionable.

Several of the people who oppose the proposal claim that it is a tax that needs voter approval to be put into place. It is structured as a fee, though the greater the disconnect between the person paying the fee and the person's use of the roads and sidewalks, the more the charge resembles a tax. Landlords explain that the fee would force an increase in rents, an outcome not wanted by landlords or tenants. Business owners in Portland, already facing high taxes, see the fee as yet another hurdle for them to keep operating. Others want the local gasoline tax to be allowed to expire before any other fees or taxes are enacted.

So who should pay for maintaining streets and sidewalks? Though I support the mileage-based road fee, it is difficult to implement at the local level. One reason is that annual or semi-annual odometer readings are recorded by states and not localities. Another is that odometer readings are much more correlated with in-state driving than they are with in-town driving.

So who should pay? Maintenance of streets should be financed by those who use the streets. Someone who lives in a home or apartment in a city does not necessarily own a vehicle and thus does not use the streets. It is true that they receive services, such as postal and other deliveries, from individuals and businesses that use the street, though those service providers can take their street use costs into account when charging for deliveries. What's the best way to measure the street use by those who use the street, especially if a mileage-based road fee cannot be implemented locally? A gasoline tax is flawed, because city residents can purchase gasoline outside the city limits. Would toll gantrys work? They are expensive to install and would be needed everywhere. What about making use of the many traffic and traffic light cameras that read license plates? That's certain to raise all sorts of objections. Perhaps the answer is to consider that Portland streets are used not only by Portland residents but also by non-residents, and that the state should assume responsibility for the maintenance and repair. And the state can fund the costs through, no surprise, the mileage-based road fee.

Sidewalks (or as some call them, pavements) are a different matter. They are not used, or at least are not supposed to be used, by vehicles. They are used by pedestrians, who may or may not even own a vehicle. In the places where I have lived that have sidewalks, it was the responsibility of the property owner to keep the sidewalks in proper maintenance. Ordinances require that the sidewalk be cleared of snow and ice within a specified number of hours after the storm ends. Surely there is no reason that this approach cannot be adopted by Portland.

The challenge facing Portland demonstrates the difficulty of deciding who bears the burden of funding things that benefit society generally when trying to measure each individual's or business's benefit is difficult if not impossible. Balancing what is fair with what is necessary surely requires some degree of compromise. Compromise, though, has been increasingly difficult to attain in current social, political, and economic climates.

Finding the Connection Between Philadelphia's Proposed Rideshare Tax and the Funding of Public Schools

As reported in numerous stories, including this one, the Mayor of Philadelphia has proposed raising an earlier proposed 20-cent tax on a rideshare to a $1 tax. The revenue would be used to fund Philadelphia's public schools. When I tried to learn the justification for using a tax on rideshares to fund the schools, all I could find is that it would raise millions of dollars for a school system in desperate need of funding.

Debate seems to focus on whether the rideshare companies would pay the tax or whether it would be passed along to passengers. When a city council member pointed out that the legislation required the rideshare companies to collect the tax from passengers, the city's Finance Director argued that the companies "can then decide how they want to pass that on... increased their fee or hold riders harmless."

What I haven't discovered is any discussion about the justification for charging rideshare companies or rideshare passengers a tax to fund public schools. Do rideshare companies and their passengers obtain a greater benefit from the public schools than do other companies and other individuals? Do rideshare companies and their passengers impose a greater burden on the public schools than do other companies and other individuals? I cannot find anyone advocating this proposed tax addressing these questions.

Readers of MauledAgain know that I had similar objections to the city's soda tax. As I wrote in Will a Revisit of Philadelphia’s Soda Tax Bring Me an Invitation?, " As I pointed out in some of my commentaries, if the soda tax was truly about improving health, the tax should and would be a tax on sugar and similar substances and not just beverages. Instead, the tax is about revenue, and the large amount of sugary beverages sold in Philadelphia was, and to some extent still is, low-hanging tax revenue fruit."

The proposed rideshare tax strikes me as another way to collect revenue from an easy target despite the lack of a link between those paying the tax and what it funds. It will negatively impact rideshare passengers, either directly or indirectly, especially those who use rideshare services because they cannot afford to own their own vehicle. It will tempt the city to raise the tax until it begins encouraging rideshare companies or their drivers to pull out of the city.

When "Death and Taxes" Meet AI

Ten days ago, in Using AI When Preparing Tax Returns: Avoid the Trap, I explained why I am not a fan of AI. I consider AI not ready for prime time when it comes to analysis that requires wisdom, judgment, real-life experience, critical thinking, or common sense. Perhaps it will never be ready for prime time. I based my reticence not only on my personal interactions with AI but also on careful consideration of how AI accumulates the data it uses in its processing. AI engines use data scraped from the internet. It fails miserably when it comes to distinguishing between factually correct and factually incorrect data. It doesn't do a good job deciding whether a word in one clump of data should be matched with the same word in another clump of data.

In my commentary ten days ago, I wrote in the context of taxation. I pointed out that AI doesn't do a good job distinguishing between, for example, the text of a Code section published on the internet in 2015 that is still good law and the text of a Code section published on the internet in 2015 that is no longer good law because it has been repealed, amended, or otherwise set aside.

I did not close the door on the possibility that someday AI will function with the critical thinking skills, wisdom, judgment, experience, and perspective that expert humans bring to the table. Unquestionably, that day isn't today. That day may never arrive. Though "AI" is probably useful with simple tasks that computers do well, such as computation or mere data compilation without analysis or judgment, it isn't ready to answer questions that can be answered properly only with the skills that "AI" does not possess.

This evening I was made aware of the threat that AI poses to situations far closer to life and death than taxes. According to a Nature.com article, a team at the University of Gothenburg led by a medical researcher invented a skin condition that they called bixonimania. They described it as eyelids turning slightly pink when they are rubbed when eyes become sore and itchy from staring at screens and being bombarded by blue light. The team uploaded two fake studies to a preprint server. The team did this to see how AI would handle false information. Very quickly AI platforms treated the invented diseases as real. This caused the fake studies to be cited in other literature, demonstrating that researchers are using AI results without checking the cited studies.

Worse, the team filled its publications with obvious hints and clues that they were posting fake studies. The lead author was a fake person with the name of Lazljiv Izgubljenovic, identified as working at a university called Asteria Horizon University in Nova City, California. Both the university and the city do not exist. One of the published studies tanked "Professor Maria Bohm at the Starfleet Academy." Both papers attributed funding to “the Professor Sideshow Bob Foundation for its work in advanced trickery, . . . part of a larger funding initiative from the University of Fellowship of the Ring and the Galactic Triad.” The papers included statements that "this entire paper is made up” and “Fifty made-up individuals aged between 20 and 50 years were recruited for the exposure group.”

Anyone who doubts "AI" simply grabs, mixes, and regurgitates what it finds without subjecting its accumulated data to scrutiny characterized by wisdom, judgment, experience, critical thinking, and common sense now has all the proof necessary to indicate the danger posed by "AI," even setting aside the explosion in environmentally risky data centers needed to process this massive too-often-reckless movement of data.

The Nature.com article gives examples of how various AI platforms are handling this fake disease bixonimania. Take a look. It's frightening. One platform's spokesperson replied to an inquiry about the platform's treatment of the fake desease as "an emerging term," with this statement: We don’t claim to be 100% accurate, but we do claim to be the AI company most focused on accuracy.” Is that a phrase tax return preparers should post on their web sites and add to their sign on the storefront window?

As risky as it is for taxpayers and tax return preparers to ask AI to prepare or help prepare tax returns, it is even riskier for individuals and medical professionals to rely on AI platforms when diagnosing symptoms. Though the University of Gothenburg research team generated misinformation for purposes of testing AI platforms, there are millions of individuals carelessly or deliberately publishing false information. If it gets published, it gets scraped by AI engines. So beware. Beware of fake tax law, fake medical illnesses, fake weather reports, fake this, that, and the next thing. Death gets lumped with taxes in that "death and taxes" idiom, but the damage done by AI when it comes t taxes pales in comparison to the danger it poses when life and death are in play. Research. Think. Question. Analyze. Verify. Review. Beware. It's not just your tax return that is at risk.

Using AI When Preparing Tax Returns: Avoid the Trap

The headline I asked ChatGPT for tax help—experts say I fell into a classic trap almost says it all. The story elaborates on what happened to the author of the story.

The author is one of many taxpayers who prepare their own returns. For years he had a rather simple return, because his income was reflected on a W-2, and he had nothing else happening in his life that would have created any complexity on the return. But in 2025 he purchases some employer stock through an employee stock purchase plan, and then sold most of the stock to generate cash for his wedding expenses.

Knowing that the tax rules for the sale of employer stock aren't very simple, he turned to ChatGPT. He reports that his first question brought an answer as to how the sales are treated for tax purposes, broken down into "digestible bullet points." He uploaded his Form 1099 from the brokerage firm that processed his stock sales. ChatGPT then told him that he needed to use a number different from what the brokerage reported, though it isn't clear from the article whether that number was gross sales, net sales, basis, or something else. He was instructed to examine his "last few W-2s to see that they included a certain line item." He was also told by ChatGPT, "“This is a very simple return with one stock plan wrinkle. You do NOT need a CPA.”

Fortunately, at that point he contacted a CPA that he knew. The CPA, after being brought up to speed, concluded that the author "had gotten possibly correct but also incomplete information." The analysis of the W-2 forms was "quite important" in determining if the brokerage indeed was using the correct numbers. It turned out that, according to the CPA, some of the numbers in the Form 1099 seemed to indicate that the author had engaged in transactions that he "may not have made." The CPA suggested that ChatGPT has not provided any information about this issue probably because the author had not asked. A high quality tax professional would know to provide information that is relevant even if the client fails to ask, because most clients don't know that they need to ask or what to ask.

The author concludes that the advice he obtained from ChatGPT "seemed so sound and was so breezily delivered that [he] was ready to file and risk having made a mistake." The author spoke with an accounting professor who shared, "AI will convince you that the sky is green. It is so convincing. The professor cited a time when a chatbot incorrectly answered one of the tax questions he gives his students. He continued, “It gave me this response that the mechanics were perfect, but I had to take a step back and say, ‘Well, you’re wrong.’”

An AI strategy company founder informed the author, “But by default, large language models are trained to be helpful assistants. Oftentimes you’re going to run into hallucinations.” Hallucinations is a fancy word for wrong answers.

The author's conclusion? He sums up advice from experts: "[Y]ou’d be wise to tread very carefully before using AI to help with your taxes." He quotes the AI strategy company founder, “If you make a mistake while using AI to do your taxes, it could get you in trouble with the IRS. And a valid excuse isn’t, ‘The AI made me do it.’” So true.

The author then shares what "pros say to keep in mind" when using AI as a tool to prepare tax returns. I'll let you read the article because my advice would simply be, "Don't." My experience with "AI" is that it's not ready for prime time. I asked one AI site "who is James Edward Maule?" and the answer was so amazingly incorrect I wondered if the "I" in "AI" should be changed from intelligence to ignorance. Why is AI still insufficient? AI engines use data scraped from the internet. It doesn't do a good job distinguishing between factually correct and factually incorrect data. It doesn't do a good job distinguishing between, for example, the text of a Code section published on the internet in 2015 that is still good law and the text of a Code section published on the internet in 2015 that is no longer good law because it has been repealed, amended, or otherwise set aside. It doesn't do a good job deciding whether a word in one clump of data should be matched with the same word in another clump of data. It reminds me of first-year law students who focus on the words of a case at face value rather than considering the context in which those words are being used.

Perhaps someday "AI" will function with the critical thinking skills, wisdom, judgment, experience, and perspective that expert humans bring to the table. But that day isn't today. That day may never arrive. In the meantime, "AI" is probably useful with simple tasks that computers do well, such as computation or mere data compilation without analysis or judgment. But "AI" surely isn't ready to answer questions that can be answered properly only with the skills that "AI" does not possess.

"Pot [Tax] for Potholes" Is Just Another Cute Slogan with Ugly Results

Back in October, in An Unfair and Unwise Tax to Fund Roads, I commented on the Michigan wholesale tax on the sale of marijuana from growers and processors to retailers. This tax surely is passed on to the retail purchasers. The proceeds of the tax are used to fund part of the cost of improving Michigan's roads. Reader Morris, who alerted me to the enactment of this tax, asked, “Is the Michigan Marijuana tax to fund the roads a better tax policy than a vehicle mileage fee?” My answer was a resounding no. As I wrote to Reader Morris, “Some marijuana users use roads, others don’t. A lot of road users don’t use marijuana. What’s next? Taxing people who buy peanut butter to fund schools?”

The other day Reader Morris alerted me to a proposal in Tennessee to tax marijuana, a proposal resting on the assumption that the state will legalize the use of marijuana. Two Tennessee legislators have suggested using the revenue to fund road maintenance and repairs. The author of the cited article analyzes how much revenue would be raised and points out that it would be insufficient to fund all road costs. That's not the problem with the proposal.

Reader Morris asked me, " Is the Tennessee pot tax for potholes any fairer or wiser to fund state roads?" Again, my answer is no. He also pointed out, "Obviously the Tennessee lawmakers did not read your blog post below," referring to the October post mentioned above. Well, perhaps they did read it, though I doubt it. Or, as Reader Morris suggests, they didn't read it. Had they, or their staff, done adequate research, they would have found the post and shared with their constituents and the anticipated marijuana purchasers in Tennessee their justification for requiring those users to fund highway repairs and maintenance. The author of the cited article notes that "The phrase 'pot for potholes' may capture attention." This sort of slogan, which the author of the article points out flies in the face of numbers that suggest a more limited reality, is a sad continuation of sound bites and tweets that spare human brains the sort of exercise that keeps them in shape for necessary critical thinking. Sounds cute, produces ugly results.

I repeat the challenge I raised in the October post,

Anyone who can show me a rational link between the sale of marijuana and the deterioration of roads is invited to educate me. Perhaps there are government expenses that can be rationally linked to the sale, or perhaps use, of marijuana. Perhaps something involving government funding of specified health care services. But why should people who may not be using roads bear the burden of financing those roads while far greater numbers of people who do use the roads aren’t subject to the marijuana wholesale tax? And anticipating reactions, for those who think I am defending, advocating, or involved in the sale, distribution, and use of marijuana, or am working on behalf of marijuana lobbies, I am not. I am simply pointing out the disconnect between the tax and the intended use of the revenues it produces, just as I would react the same way to a tax on candy, shoes, computers, clothing, or pet supplies to fund roads.

As I have repeatedly explained, the answer, when it comes to financing the maintenance and repair of roads, bridges, and tunnels is the mileage-based road fee, which I has been the subject of my commentaries for almost 17 years, and which also is supported by a growing number of individuals and organizations. For those interested in the mileage-based road fee, including how it works and refutations of arguments offered against it, take a look at my commentaries, including 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, Once Again, Rebutting Arguments Against Mileage-Based Road Fees, Getting to the Mileage-Based Road Fee in Tiny Steps, Proposal for a Tyre Tax to Replace Fuel Taxes Needs to be Deflated, A Much Bigger Forward-Moving Step for the Mileage-Based Road Fee, Another Example of a Problem That the Mileage-Based Road Fee Can Solve, Some Observations on Recent Articles Addressing the Mileage-Based Road Fee, Mileage-Based Road Fee Meets Interstate Travel, If Not a Gasoline Tax, and Not a Mileage-Based Road Fee, Then What?>, Try It, You Might Like It (The Mileage-Based Road Fee, That Is) , The Mileage-Based Road Fee Is Superior to This Proposed “Commercial Activity Surcharge”, The Mileage-Based Road Fee Is Also Superior to This Proposed “Package Tax” or “Package Fee”, Why Delay A Mileage-Based Road Fee Until Existing Fuel Tax Amounts Are Posted at Fuel Pumps?, Using General Funds to Finance Transportation Infrastructure Not a Viable Solution, In Praise of the Mileage-Base Road Fee, What Appears to Be Criticism of the Mileage-Based Road Fee Isn’t, Though It Is a Criticism of How Congress Functions, Ignorance and Propaganda, A New Twist to the Mileage-Based Road Fee, The Mileage-Based Road Fee: Simpler, Fairer, and More Efficient Than the Alternatives, Some Updates on the Mileage-Based Road Fee, How to Pay for Street Reconstruction, Stop the "Stop EV Freeloading Act" Because The Mileage-Based Road Fee Is a Much Better Way to Go, Why Is Road Repair and Maintenance Funding So Difficult for Public Officials to Figure Out?, Should (Will) Implementing the Mileage-Based Road Fee Cause Privatization of Highway Infrastructure?, The Freedom Caucus Doesn’t Understand that the Mileage-Based Road Fee is “PRO-Freedom,” Not the Opposite, A Mileage-Based Road Fee by Any Other Name?, Does the Mileage-Based Road Fee Work for Local Road Maintenance?, Washington State Mileage-Based Road Fee Proposal Changes: Is It Better?, The Mileage-Based Road Fee Is Much Better Than a Federal Fuel Tax Increase, Ride-Share Drivers and the Mileage-Based Road Fee, and International Aspects of the Mileage-Based Road Fee.

Does a Temporary Tax Suspension Solve the Underlying Problem?

About a week ago, Pennsylvania State Senatore Lisa M. Boscola described her plan to suspend the state's liquid fuel taxes for 60 days. The proposal is intended to help reduce the cost of fuel, which has been rising rapidly during the past three weeks.

Aware of the impact this cutoff in revenue for the maintenance of highways, bridges, and tunnels, Boscola's plan includes the issuance of bonds to replace the lost revenue. What she did not describe was how revenue would be raised to pay interest on the bonds and to pay for bond redemption. That money either comes from increased taxes or from reduced spending. So while taxpayers might rejoice at lower prices at the pump, they will not be so happy when they face increased income, sales, or other taxes, or when spending is cut for programs that are their favorites. So in the long run the tax suspension is nothing more than kicking the can down the road. Ultimately taxpayers, not only motorists, will pay the price.

Yes, increased gasoline and diesel prices are frustrating, harmful to most drivers' wallets, and detrimental to the economy. Boscola is trying to solve a problem caused by someone else. Perhaps it would be better if we insisted that those who cause a problem or break something be the ones who fix the problem or make the repairs. If someone else solves the problem, those afflicted by the problem are less likely to identify those who caused the problems and less likely to take steps to ensure that those same people don't cause yet another problem.

Tax Return Preparer Not Satisfied With Just Tax Fraud

I have written so many times about tax return preparers who disregard the law that I refrain from commenting every time a tax return preparer is accused of, convicted of, or sentenced for tax fraud. Examples of my commentaries include posts such as Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for theblo IRS and DOJ to Find Them, Tax Return Preparers Putting Red Flags on Clients’ Returns, When Language Describing the Impact of Tax Fraud Matters, Injunctions Against Fraudulent Tax Return Preparers Help, But Taxpayers Still Need to Be Vigilant, Will the Re-Introduced Legislation Permitting Tax Return Preparer Regulation Be Enacted, and If So, Would It Make a Difference?, Can Fraudulent Tax Return Preparation Become An Addiction?, Tax Return Preparers Who Fail to File Their Own Returns Beg For IRS Attention, Using a Tax Return Preparer? Take Steps to Verify What Is Filed on Your Behalf, When Dishonest Tax Return Preparers Are Married, There Was Nothing Magical About This Tax Return Preparation Business, Don’t Get Burned By a Tax Return Preparer, Tax Fraud School: When It’s Not Enough to Be a Fraudulent Tax Return Preparer, It’s Not Just Tax Return Preparers Assisting in the Preparation of Fraudulent Tax Returns, Overused Fraudulent Tax Return Preparation Ploys, It’s Not Just Law Enforcement That Confronts Misbehaving Tax Return Preparers, When An Injunction Doesn’t Stop a Tax Return Preparer from Filing False Returns, Filing a Fraudulent Tax Return Is Bad, Filing More Than 3,000 Is Outrageously Bad, When It Comes to Fraudulent Tax Returns, It's Not Always the Preparers, A Procedural Twist on Dealing with Fraudulent Tax Return Preparers, Can Tax Return Preparers Learn from the Misdeeds of Other Preparers?, Should Tax Return Preparers Use Their Full Legal Names?, Is There Ever a Free Lunch, Even in the Tax Return Preparation Business?, Is the Tax Return Preparer or the Client Responsible For Unjustified Deductions?, When Preparing False Tax Returns Seems to Lack a Financial Motive, Was This Convicted Tax Return Preparer Courageous or Foolish?, One-Stop Shopping for Tax Return Preparation and Unrelated Merchandise?, and How Much Prison Time Should Be Imposed on a Tax Return Preparer Convicted of Preparing and Filing Fraudulent Returns?

Yet sometimes the preparation of fraudulent tax returns involves a twist that is somewhat different. According to this Department of Justice press release, a former IRS employee took things several steps further. This individual had been employed as an IRS contact representative from 1998 to 2009. She prepared and filed income tax returns for other people between July 2020 and April 2023. She did not list herself as the tax return preparer, making the returns appear as though these taxpayers prepared the returns on their own. She listed ineligible depends on the returns, generating higher refund amounts. She did not inform these taxpayers that she was doing this. Worse, she filed forms with the IRS directing portions of these excess refunds be deposited into her personal bank accounts. She used these funds for her own personal benefit.

She didn't stop there. Between April and October of 2020, she applied by telephone for Social Security retirement and spouse and widow benefits with the Social Security Administration. But she didn't apply for herself. She applied on behalf of other individuals who had no knowledge that she was doing this. She directed the Social Security Administration to send the benefits to her personal bank accounts. She used these funds for her own personal benefit.

Eventually, she was identified and charged. She pled guilty to four counts of aiding and assisting in the preparation and filing of a false tax return and one count of theft of government money.

According to this follow-up Department of Justice news release, which is what caught my attention, a few days ago she was sentenced to 18 months in prison, followed by three years of supervised release.

According to the first press release, "the charge of aiding and assisting the preparation and filing of a false tax return provides for a sentence of up to three years in prison, one year of supervised release and a fine of up to $250,000. The charge of theft of government money provides for a sentence of up to 10 years in prison, three years of supervised release and a fine of $250,000." There is no mention in the sentencing of any fines. She could have faced as much as 13 years in prison, four years of supervised release, and $500,000 in fines. Nor is there any mention of restitution, that is, the Social Security Administration recovering the amounts paid to her.

And this makes a mess for the individuals for whom she prepared returns and in whose names she acquired social security benefits. The taxpayers for whom she prepared returns face the aggravation of figuring out how much of their refund that they should have received went to the preparer, and how what she did affects their accounts with the IRS. The individuals in whose name she acquired social security benefits face the aggravation of clearing their accounts so that when they become eligible and do apply for benefits the computations are distorted by what this person did.

The damage done by people who behave fraudulently, whether with taxes, social security, false texts from police departments or the Pennsylvania Turnpike Commission, online sales scams, phone calls designed to extract social security, Medicare, bank account, and credit card numbers, and whatever else goes in this list, reaches wide and deep. It is unfortunate that not enough is being done to identify and deal with these scammers and to prevent additional instances. They are far more of a threat than some of the people currently getting attention.

Estimated Tax Payment Challenges

So this situation was posed to me. A brokerage provides financial information to its clients during the calendar year. However, it does not provide information that shows how much from each transaction, if any, will be reported as dividends, capital gains distributions, short-term capital gain/loss, or long-term capital gain/loss. Nor does it provide information that permits a client, or a client's advisor, to calculate even an estimate of how much will be reported, if any, in each of those categories.

When the Forms 1099 are received, they show amounts significantly in excess of what was expected based on the previous year's transactions. So it turns out that the estimated tax payments are insufficient. By the time the Forms 1099 arrive, it is too late to adjust the final federal and state estimated tax payments for the calendar year. The Forms 1099 usually arrive in late January or during February, whereas the final estimated tax payments are due on or before January 15. And even increasing the final estimate payment isn't sufficient to avoid estimated tax underpayment penalties because one-fourth of the increased amount of estimated tax that should have been paid would have been due on each of the four estimated tax payment due dates.

What are the possible solutions other than paying the estimated tax underpayment penalties?

One is to make wildly high estimated tax payments on the assumption that the year's brokerage income will increase significantly, to the order of doubling or tripling. I knew someone who did this, mostly because of an unwillingness to have an amount due when filing and an aversion to incurring the estimated tax underpayment penalty.

Another is to ask the brokerage to provide tax relevant information throughout the year. Good luck with that.

Yet another is to ask the brokerage to withhold federal and state taxes on amounts falling into those categories even if not distributed to the client. Though some brokerages may be willing to do something along those lines, many don't or won't or can't.

Fun. Not.

The Things People Do To Avoid Paying Taxes

No one enjoys paying taxes. But without taxes civilization is impossible. So just as people who need root canals pull themselves together and undergo the procedure because they know the alternative is even more unpleasant, people who understand why taxes are necessary pull themselves together, file their returns, and pay their taxes. Many, perhaps most, people do so while truthfully reporting their income, deductions, and credits.

In a recent press release, the Department of Justice announced that a pizza shop owner pleaded guilty to one count of tax evasion. What did the pizza shop owner do? He deposited some of the business receipts into a bank account and took the rest in cash. He used the cash to pay himself and to pay most of his employees "off the books."

When it came time to file tax returns, the pizza shop owner gave his accountant access to the shop's bank account records, knowing that those records did not reveal the cash receipts that had been funneled to the owner and the employees without passing through the bank account. The owner lied to the accountant, claiming that the business employed the owner and three other individuals when in fact there were about 25 employees. As a result, the income tax returns for the business and for the owner that were prepared by the accountant were false. In addition, the employment tax returns were false. Both income and employment taxes were underpaid. Note that this is an instance where a tax return preparer was not the creator of the tax fraud.

According to the Department of Justice, the owner faces a maximum possible term of five years in prison. Nothing was mentioned about restitution to the government, or doing something so that the employees are given appropriate credit for purposes of qualifying for Social Security and Medicare. If that situation is not fixed, on whom falls the burden when those employees eventually end up with fewer retirement and health benefits than what they otherwise would have received?

It's one thing to lie about something that is private and difficult, if not impossible, for others to ascertain. It's another thing to lie about the number of employees at a pizza shop when it isn't that difficult for anyone to notice or figure out that there are more than the owner and three employees working there.

The lies brought about a short-term financial benefit. They also will cause a long-term price that is much higher than the short-term benefit.

So Is Tax Fraud Less Reprehensible Than FEMA Fraud?

This morning I saw an article in the Philadelphia Inquirer about a woman being sentenced for committing FEMA fraud. After a bit of research, I found the Department of Justice news release, which explained the situation. After a major disaster declaration was declared for eastern Pennsylvania on account of the damage from Hurricane Ida, the woman used social media to advertise that she could help people apply for FEMA benefits. She prepared fraudulent documents and sent them to FEMA on behalf of almost 200 people. The documents included false leases, letters from landlords, utility bills, earning records, and home repair estimates. She used photos of damaged homes that she scraped from the internet. Among the almost 200 people were owners, renters, and homeless individuals. The woman kept half of the FEMA payout for herself. Her actions caused FEMA to pay $1,744,982.64 on the false claims.

The woman was indicted on one count of fraud related to a major disaster declaration, 24 counts of wire fraud, and seven counts of mail fraud. She pled guilty to all 32 charges. She was sentenced to five years in prison.

One of the thoughts that crossed my mind was that I had recently questioned the sentence in a tax fraud case. In How Much Prison Time Should Be Imposed on a Tax Return Preparer Convicted of Preparing and Filing Fraudulent Returns? I reacted to the imposition of an 18-month prison sentence on a tax return preparer who prepared and filed about 463 fraudulent returns, causing a tax loss to the U.S. Treasury of $1,575,250. So 463 false filings causing a $1,575,250 loss to the U.S. Treasury brings an 18-month prison sentence, but almost 200 false filings causing a $1,744,982.64 loss to the U.S. Treasury brings a five-year prison sentence. Does that make sense to you?

There appears to be an additional factor. The tax return preparer was ordered to pay $1,954,673.30 in restitution, reflecting the taxes not paid by the clients plus interest and penalties. There is no mention of restitution being ordered for the woman committing the FEMA fraud. Though she retained half of the $1,744, 982 for herself, there is no indication of her assets. Yet there also is no indication of the tax return preparer's assets. Is it a matter of the judge deciding whether restitution is possible? If the tax return preparer had not been ordered to pay restitution, would a longer prison sentence have been imposed? Perhaps someone more familiar with federal sentencing practices has insights. Yet prison is a totally different experience than paying restitution, and it would be disturbing if someone with the resources to pay restitution was ordered or agreed to do so in exchange for a reduced prison sentence. What strikes me is the discrepancy in the sentencing. Does it mean that somehow FEMA fraud is more reprehensible than tax fraud? If so, why?

International Aspects of the Mileage-Based Road Fee

As readers of MauledAgain know, I am an advocate of the mileage-based road fee, as a replacement for and not an addition to, liquid fuel taxes. I have written about this approach to funding highways, bridges, and tunnels since 2004, 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, Once Again, Rebutting Arguments Against Mileage-Based Road Fees, Getting to the Mileage-Based Road Fee in Tiny Steps, Proposal for a Tyre Tax to Replace Fuel Taxes Needs to be Deflated, A Much Bigger Forward-Moving Step for the Mileage-Based Road Fee, Another Example of a Problem That the Mileage-Based Road Fee Can Solve, Some Observations on Recent Articles Addressing the Mileage-Based Road Fee, Mileage-Based Road Fee Meets Interstate Travel, If Not a Gasoline Tax, and Not a Mileage-Based Road Fee, Then What?>, Try It, You Might Like It (The Mileage-Based Road Fee, That Is) , The Mileage-Based Road Fee Is Superior to This Proposed “Commercial Activity Surcharge”, The Mileage-Based Road Fee Is Also Superior to This Proposed “Package Tax” or “Package Fee”, Why Delay A Mileage-Based Road Fee Until Existing Fuel Tax Amounts Are Posted at Fuel Pumps?, Using General Funds to Finance Transportation Infrastructure Not a Viable Solution, In Praise of the Mileage-Base Road Fee, What Appears to Be Criticism of the Mileage-Based Road Fee Isn’t, Though It Is a Criticism of How Congress Functions, Ignorance and Propaganda, A New Twist to the Mileage-Based Road Fee, The Mileage-Based Road Fee: Simpler, Fairer, and More Efficient Than the Alternatives, Some Updates on the Mileage-Based Road Fee, How to Pay for Street Reconstruction, Stop the "Stop EV Freeloading Act" Because The Mileage-Based Road Fee Is a Much Better Way to Go, Why Is Road Repair and Maintenance Funding So Difficult for Public Officials to Figure Out?, Should (Will) Implementing the Mileage-Based Road Fee Cause Privatization of Highway Infrastructure?, The Freedom Caucus Doesn’t Understand that the Mileage-Based Road Fee is “PRO-Freedom,” Not the Opposite, A Mileage-Based Road Fee by Any Other Name?, Does the Mileage-Based Road Fee Work for Local Road Maintenance?, Washington State Mileage-Based Road Fee Proposal Changes: Is It Better?, The Mileage-Based Road Fee Is Much Better Than a Federal Fuel Tax Increase, Ride-Share Drivers and the Mileage-Based Road Fee, and An Unfair and Unwise Tax to Fund Roads.

Now comes news, brought to my attention by reader Morris, that Iceland has enacted a kilometer-based road fee. Using today’s exchange rate, the 6.95 Icelandic krona fee is approximately five and a half cents in U.S. dollars for passenger vehicles and SUVs up to three and half tons. Higher fees apply to heavier vehicles.

Iceland is not the first country to impose a vehicle fee based on distance travelled that applies to all vehicles in the entire country. There are almost a dozen countries in Europe that have enacted or are in the process of enacting distance-based fees on heavy trucks and other vehicles. New Zealand imposes a similar fee on heavy vehicles and vehicles using diesel fuel. Certain areas in Norway and several states in the United States impose similar fees. Singapore’s road pricing fee functions as both a distance-based and congestion-reducing fee.

So assuming there aren’t other countries with distance-based fees, Iceland appears to be the first country to impose such a fee on all vehicles that use public roads regardless of power source, or weight. It is likely that it won’t remain the only country to do so.

The international scope of this method of funding highways, bridges, and tunnels suggests that the term “mileage-based road fee” should be changed to “distance-travelled road fee” because Iceland does not measure distance in miles. It uses, as does most of the world, kilometers. Interestingly, Iceland’s law has a provision for vehicles driven in Iceland that measure distance in miles. Of course, it’s an easy to do the arithmetic conversion, so it’s no big deal.

How U.S. Individual Taxpayers Prepare Their Income Tax Returns

As another tax filing season will soon begin, it’s instructive to see how individual taxpayers in this country prepare their federal income tax returns. According to the Treasury Department’s Report on the Replacement of Direct File, the breakdown is as follows:

51 percent – paid preparers
42 percent – commercial software
3 percent – filed on paper
2 percent – Free File
1 percent – VITA (Volunteer Income Tax Assistance Program)
1 percent – TCE (Tax Counseling for the Elderly)
0.2 percent – FFFF (Free File Fillable Forms)
0.2 percent – Direct File

When I was a child observing my father sitting at the kitchen table filling out tax returns, I was unaware that there were people who paid other people to do what clearly was, at least from my father’s commentary, an unpleasant task. He filed my tax returns for me when I was very young – I started working at age 8, story for another time – but I insisted on doing my own returns as I entered my teen years. Unlike my father, I found the process interesting and intellectually challenging. I hesitate to conclude it was because I liked puzzles, because my father also liked puzzles but apparently did not consider tax return preparation to be anywhere near the delightful experience of doing crossword puzzles which he did every day.

Of course, in those days everything was done on paper and generally delivered through the U.S. Postal Service. By the time I started working at an accounting firm when I was in college, and given the task of preparing and reviewing tax returns, I learned that some of the returns were prepared by filling out forms that were delivered to a company called Computax, which then sent back returns that had been printed out on one of those early printers that created characters clearly identifiable as computer generated. That was a long time ago.

To this day there still are people who sit down, do their tax returns using paper and pencil, and file their tax returns on paper. The IRS is attempting to encourage those individuals to shift to electronic filing. That does not necessarily mean these folks would stop using pencil and paper to figure out what to put on the return. I knew someone who would use commercial preparation software to prepare their returns but who insisted on printing out the return and mailing it to the IRS. The reason? Distrust of digital technology when it came to sending information. I tried to explain that when the paper return reached the IRS, someone then keyboarded (and eventually scanned) the information on the return into IRS computers, and that sending the return electronically would bypass that process and eliminate the chance of any keyboarding or scanning errors. My efforts were futile.

So when did the use of paid preparers become much more common? Back in the 1950s and 1960s, perhaps 20 percent of taxpayers, at most, used paid preparers. The tax law was not as complicated back then. According to the Tax Policy Center, by 1981 41 percent of individual taxpayers were using paid preparers, and that percentage increased to almost 56 percent by 2002. The Tax Policy Center reports that the percentage of taxpayers using paid preparers fell from about 60 percent in 2008 to just under 52 percent in 2018. Surely that is a consequence of the rapid growth in the use of commercial tax preparation software.

If one considers commercial tax return preparation software to be a type of paid preparer, perhaps evolving into some sort of digital robot preparer, then the percentage of taxpayers using paid assistance rises to more than 90 percent. That, of course, is an indictment of the complexity of the federal (and most state) income tax systems.

It won’t be long before artificial “intelligence” provides systems that completely take over the tax return filing process. These systems will want access to a person’s entire financial situation, including bank accounts, credit card transactions, digital payment accounts, medical expense payments, etc. What will these systems do with this information aside from filing tax returns? There is no question there are people and corporations who want to get their hands on this data even though many corporations already have much of this information. Will the returns filed by these systems be correct? My guess is many returns will be correct but some will not, not dissimilar to what we see when humans use paid preparers or commercial preparation software to file returns, and not dissimilar to how artificial “intelligence” generally performs. I’ll leave to another day the experiences I’ve had “testing” various AI platforms. Suffice it to say the outcomes were far from encouraging and frankly, frightening. There’s a word many taxpayers use when discussing taxation, and it surely was a word used by students about to enter the basic income tax law course when I was teaching.

So as we enter another tax filing season, one that promises to be, shall we say, interesting, taxpayers need to decide how they will get their returns filed. Most, I think, will stay the course and do what they did last year. Some may find it easier and cheaper to shift from using paid preparers to using commercial software. A few may finally say goodbye to sending their returns to the IRS on paper. What will you be doing?

Taxes on Condoms and Contraceptives

Reader Morris directed me to a recent article about China’s attempts to raise its birth rate. He then asked a question and answered it.

First, the article. According to this article, one of the ways China is trying to encourage people to have more children is to impose its 13 percent value-added tax (VAT) on condoms and other contraceptives. For those unfamiliar with a VAT, it is similar to a sales tax, computed not on the total sales price but on the portion of the sales price that represents the value added by the seller (whose seller paid a VAT on what that seller added, and whose customer, if selling the item, would be pay a VAT on what the customer-turned-seller added in value). The article notes that China has raised the “limit on the number of children permitted per couple to three.” It also offers a variety of subsidies, leave days, and other incentives such as tax breaks for childcare.

Second, the question posed by reader Morris, and his answer. He asks, “Will China's new tax increase raise birth rates?” He suggests, “No. If you cannot afford a condom tax then you sure cannot afford the cost of a new child.” The article suggests that the tax is “largely a symbolic move,” pointing out that the equivalent US dollar cost of condom packets and contraceptive pills run in the average of $6 to $17. The 13 percent VAT would run from the US equivalent of 78 cents to $2.21. So though it’s true that someone who cannot afford to pay another 78 cents to $2.21 is almost certainly lacking the finances to support a child. To the extent that two people pass up purchasing a contraceptive because of that slight increased cost, there is a chance, perhaps small, perhaps greater, that those two people will become the parents of a child they cannot afford to raise.

A demographer in China opined, “However, this measure is unlikely to have a significant effect on increasing the fertility rate.” Concomitantly, the VAT in question is highly unlikely to raise much revenue, and thus unlikely to make a dent in the revenue shortages that are making it difficult for childcare subsidies to be paid. Some are suggesting that the “primary motivation” behind the tax is not revenue generation.

The question of whether, and if so, how, tax rates, exemptions, and credits should be used to encourage or discourage births has been around for a long time, has been debated during that long time, and has been the subject of arguments supporting and opposing the use of tax systems to affect decisions made by individuals who are considering having or not having children.

This larger question is not one I am ready to discuss. I am not a demographer. I am not a sociologist. I do wonder, though, if China was higher birth rates, why limit people to three children? Why not permit someone who can afford to have six children do so? Surely there are underlying reasons but I leave that discussion to others who are more qualified to explain and critique birth limits.

How Much Prison Time Should Be Imposed on a Tax Return Preparer Convicted of Preparing and Filing Fraudulent Returns?

I have written many times about the non-ending stream of tax return preparers who disregard the law and end up being caught. I’ve done so in posts such as Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for theblo IRS and DOJ to Find Them, Tax Return Preparers Putting Red Flags on Clients’ Returns, When Language Describing the Impact of Tax Fraud Matters, Injunctions Against Fraudulent Tax Return Preparers Help, But Taxpayers Still Need to Be Vigilant, Will the Re-Introduced Legislation Permitting Tax Return Preparer Regulation Be Enacted, and If So, Would It Make a Difference?, Can Fraudulent Tax Return Preparation Become An Addiction?, Tax Return Preparers Who Fail to File Their Own Returns Beg For IRS Attention, Using a Tax Return Preparer? Take Steps to Verify What Is Filed on Your Behalf, When Dishonest Tax Return Preparers Are Married, There Was Nothing Magical About This Tax Return Preparation Business, Don’t Get Burned By a Tax Return Preparer, Tax Fraud School: When It’s Not Enough to Be a Fraudulent Tax Return Preparer, It’s Not Just Tax Return Preparers Assisting in the Preparation of Fraudulent Tax Returns, Overused Fraudulent Tax Return Preparation Ploys, It’s Not Just Law Enforcement That Confronts Misbehaving Tax Return Preparers, When An Injunction Doesn’t Stop a Tax Return Preparer from Filing False Returns, Filing a Fraudulent Tax Return Is Bad, Filing More Than 3,000 Is Outrageously Bad, When It Comes to Fraudulent Tax Returns, It's Not Always the Preparers, A Procedural Twist on Dealing with Fraudulent Tax Return Preparers, Can Tax Return Preparers Learn from the Misdeeds of Other Preparers?, Should Tax Return Preparers Use Their Full Legal Names?, Is There Ever a Free Lunch, Even in the Tax Return Preparation Business?, Is the Tax Return Preparer or the Client Responsible For Unjustified Deductions?, When Preparing False Tax Returns Seems to Lack a Financial Motive, Was This Convicted Tax Return Preparer Courageous or Foolish?, and One-Stop Shopping for Tax Return Preparation and Unrelated Merchandise?

Only in a some instances have I mentioned the sentences handed down by judges on tax return preparers who plead guilty to, or are convicted of, tax fraud. In most of those instances the sentences were peripheral to the issues I addressed. In only a few instances did I comment on the adequacy of the sentence. That includes one commentary in which I discussed how plea bargaining can reduce what otherwise might be a tougher sentence, and in another I considered how injunctions should be added to the usual sentences of fines, restitution, prison, or some combination of those penalties.

Recently, the IRS issued a news release describing the sentencing of a tax return preparer who pleaded guilty to five counts and aiding and assisting in the preparation and presentation of false and fraudulent tax returns. Over a period of three years (“between 2021 and 2023,” which I interpret as three years and not the one year (2002) that is between 2001 and 2003), the preparer prepared and filed approximately 463 fraudulent returns, causing a tax loss to the U.S. Treasury of $1,575,250. One of the preparer’s schemes was to fabricate Schedules C (Profit or Loss from Business), showing “significant net losses” for taxpayers who had not operated a business. The preparer also put inflated itemized deductions on clients’ returns, particularly for the medical expense deduction.

The preparer was ordered to pay $1,954,673.30 in restitution, which appears to be the amount of taxes not paid by the clients increased by interest and penalties. The preparer was also sentenced to 18 months in prison, to be followed by two years of supervised release. 18 months is roughly 540 days. That’s roughly 1.17 of a day (or 30 hours) for each fraudulent return. It’s one day for each $2,917 in federal taxes unpaid by clients.

Is 30 hours in prison for a fraudulent return sufficient? I suppose it depends on the magnitude of the fraud. So the better question is whether one day in prison is sufficient for a monetary crime of $2,917. For purposes of comparison, consider someone who embezzles $1,575,250. In New York, as summarized in this explanation, embezzlement of more than $1,000,000 is a Class B felony, which carries a prison sentence of 5 to 25 years. A quick look suggests that in other states the sentences are at least as long, perhaps higher. So 18 months is quite the bargain.

A better question is whether 18 months is enough time to persuade this preparer to give up trying to make money through fraudulent means and to seek income in some other, legal manner. It depends on what happens during those 18 months in prison. Are attempts at reformation serious and effective? Only time will tell in the case of this particular preparer.