Tuesday, August 31, 2004

So What Are You?, They Ask. 

What are you politically, that is. I've always maintained that I don't fit any label. Now there's a place where one can go and get plotted onto a graph that measures left/right and idealistic/pragmatic.

Well, no surprise. I'm just a wee bit right of center and barely on the pragmatic side of the pragmatic/idealistic divide.

SEE? I keep telling people I'm (a) moderate and they don't believe me. Well, here's the proof.

Go and get yourself plotted at Chris Lightfoot's Political Survey, which takes about 4 minutes to answer 75 questions of the "Agree/AgreeStrongly/Disagree/DisagreeStrongly/NoOpinion" variety.

Thanks to Paul Caron who runs the TaxProf Blog. Curious as to where tax professors are on the graph? Visit Paul's summary.

Monday, August 30, 2004

Equitable Taxation 

My comment, in a previous blog post, that "Scholars, most economists, many lawyers, and others agree that a progressive income tax is the most equitable." brought this reaction from a reader:
I dare say that no classic Austrian economist (Mises, Hayek, Friedman, etc.) would agree with that. In my eyes, they are the only school with a constitent understanding of the negative effects of taxation on wealth creation and freedom, and they would say that any form of taxation that imposes a heavier pro rata burden on the persons that are actually creating wealth (i.e., most effectively employing capital) has a similar disproportionate effect of economic dislocation (again, by taking more capital proportionately out of the hands of the people that are best using it). Progressive taxation is wealth transfer, pure and simple. If you believe in compelled wealth transfer, then yes, I suppose you believe it is equitable - but to me (and those of a libertarian ilk) there is nothing equitable about compulsion. Don't get me wrong, relief of the poor is noble - but only when it is voluntary - again of course, in my opinion.

Indeed, a progressive income tax is not proportionate. It imposes a higher rate of taxation on those with higher incomes. Of course there is a school of thought that taxation should be proportionate. And Hence the use of the adjective "most" when describing economists. More importantly, what are the justifications for a progressive income tax? And, how can a progressive income tax be designed?

Some proponents of a progressive income tax simply advocate wealth transfer. That is, the income tax is considered to be a good measure of wealth, and higher rates are imposed on those with higher incomes so that the revenue flow to the government can be used to provide goods and services to those with less income. Other proponents of a progressive income tax, without necessarily rejecting the first approach, argue that an income tax reflects a payment for the societal costs imposed by those generating income, and that those with higher incomes impose higher societal costs.

I will set to one side the question of whether TAXABLE INCOME, which is used to compute the federal income tax, or ALTERNATIVE MINIMUM TAXABLE INCOME, which is used to compute the supplemental federal alternative minimum tax, are good measures of wealth, or even of wealth increment. I do not think that they are, because they are riddled with all sorts of exclusions and deductions that cause wealthy individuals to report low taxable income and not-so-wealthy individuals to report high taxable income. Toss in credits, most of which are variant manifestations of the same "social policy" engineering reflected in exclusions and deductions, and the computation of federal income tax liability has far less to do with wealth increment than progressive tax adherents claim. Nonetheless, let's consider an income tax that taxes income, period.

Taxation as a mere wealth transfer device seems to fly in the face of libertarian principles. It is the government's business to protect the opportunities that people make for themselves or acquire through effort. It is not the government's business to guarantee outcome. Yet that libertarian perspective must yield, as do other libertarian perspectives, to the reality that "pure" libertarianism cannot exist unless people treat each other appropriately. People, however, don't. Hence, my "right" to drive a car must be tempered by government regulation of traffic signals, speed, and licensing. Most libertarian thinkers, though not all, accept such restraints. The justification is that these restraints are a price that needs to be paid to protect the opportunity to drive (else we'd all be dead very quickly). The justification, though, rests on the notion of protection, or, in other words, safety. Returning to taxation, does not the need to protect the society that provides the opportunities to earn income warrant elimination or amelioration of abject poverty that if left unchecked would cause society to disintegrate? True, it WOULD be nice if voluntary giving and charitable works eliminated poverty, but that hasn't happened. So wealth transfer can be seen more as an investment than a mere transfer. Taxation to support education increases the pool of qualified workers available to those who have the opportunity to employ people in order to earn income. Taxation that shifts wealth can maintain or improve the health of workers so that sick day inefficiencies don't plague the enterprise. There are other examples. True, there are individuals who succumb to the temptation to "live on the dole" which is why efforts, complicated as they end up becoming, are needed to transfer the wealth in ways that benefit society and not just a free-loading individual. Defining and applying the line is a challenge.

Turning to the second approach, it is not difficult to identify the societal costs imposed by those generating income, and to show that when the income is proportionately higher, the societal costs increase disproportionately. This isn't a new idea, and I won't repeat all of the commentary. Consider, for example, the real estate developer who builds a shopping mall or commercial strip. There are societal advantages: jobs are created (though in reality jobs are shifted from other areas as stores close because of the competition from the mall), markets are expanded. But there are costs: traffic becomes congested, increasing pollution and gasoline consumption. The locality's infrastructure, from fire and police protection through emergency medical services to street cleaning, is burdened. Taxes are increased. Some are imposed on merchants, and some on the population of the locality. The developer, having pocketed the profits, is long gone. If the developer doubles profits by building a mall that is twice as large, or by building a second one "down the road," the congestion increases disproportionately. So, too, do the burdens.

The user fees that I have long advocated would solve these problems. However, they would be resisted vehemently by developers. The true cost of most development, and of many other enterprises, causes many to be far less profitable than they appear to be. Consider Microsoft. It is very profitable. But most of its profits reflect the shifting to end users and corporate IS staffs the burden of fixing the mistakes in products rushed to market that aren't ready for prime time. The societal cost in the millions of hours wasted while Service Pack 2 downloads, verifies, unpacks, prepares to install, install, reconfigures, reboots, and then crashes, or while some other fix is installed or bug researched, almost outweighs so-called productivity gains generated by the software. Again, a user fee as I have proposed, such as a $n fee for each time Windows crashes, would obviate the need for an income tax. But it won't happen, will it?

One can also argue that the user fees for some government services, unlike a bridge toll user fee, would be more heavily imposed on those with higher income (assuming income was measured properly as a wealth increment). For example, from an economic perspective military defense is of disproportionately greater value to those with more to lose. Consider that even the provision of human capital to the military is a disproportionate tax on the not-so-wealthy.

So one can see why "most" economists (and others) conclude that a progressive income tax is the most equitable. It is not, however, the most efficient. In its current form, the income tax is horrendously inefficient. And inequitable. Because it is not an income tax but a "tax on the income of those who lack the resources to prevent themselves from being taxed." The earned income tax which I was condemning is the federal income tax taken to its logical extreme: only wages are taxed, because interest, dividends, capital gains, and pensions escape taxation (or are taxed at token levels) because their recipients have the political power and resources to wiggle free of a genuine income tax base. And it was in that posture that I described the earned income tax as violating, in effect, the principles of everyone, whether advocating progressive taxation or proportionate taxation. There simply is no justification for taxing earned income and not other forms of income. None. Period.

I don't like the federal income tax as it now exists. Or has existed. I don't like state and local income taxes. Or earned income taxes. I prefer user fees. I understand that user fees are "regressive" because they claim a higher share of a lower-income person's income than they do of a higher-income person's income. But so, too, are the fees for food, clothing, and other necessities. User fees, after all, are simply the prices charged by a supplier who happens to be a government. (Yes, I know that privitization of many government functions makes sense, and would shift charges from a "user fee" to a mere "private sector price" but I don't want to stray into that discussion at this time.)

There is, however, one sort of income tax that I could support. It is on its face not progressive but it is when it is carefully analyzed. To the advocates of wealth transfer I argue: If income is being used to measure wealth increment as a basis for taxation, then let's accept what it means to be "wealthy." A person is "wealthy" if they have something left after paying for food, clothing, medical care, shelter, and the like. So what's left over (assuming income is measured properly) is what should be taxed. To the advocates of "income tax as paying for societal costs" I argue: "Those who pay for what they eat or wear, etc., are paying societal costs as built into the price. So let's deal with what's left over."

With a goal of minimizing the current paperwork and compliance nightmare that stalks the income tax, the notion of requring each person to keep track of what they spend would be contrary to simplification goals. A poverty level income is calculated annually by the government. Take a percentage of it, say 125%. Each person computes income, subtracts this amount, and pays a tax of, say, 30% of the excess.

Is it progressive? Of course. Let's say the 125% level amount is $20,000. A person with $18,000 of income has no tax. A person with $25,000 of income has a tax of $1,500 (30 percent of $5,000). That's 6% of income. A person with $40,000 of income has a tax of $6,000 (30 percent of $20,000). That's 15% of income. A person with $500,000 of income has a tax of $144,000 (30% of $480,000). That's 28.8% of income. Looks awfully progressive to me.

As for revenue, with exclusions eliminated and deductions limited to the cost of generating income, a lot more goes into the initial computational base. I used numbers that were easy for computation. It would not be too difficult to determine a number that is revenue neutral.

There are other advantages to such a system. I wrote about those advantages in Section VI of TAX AND MARRIAGE: UNHITCHING THE HORSE AND THE CARRIAGE, 67 Tax Notes 539 (1995) and I'll let you go read it. That was almost ten years ago. Of course nothing has happened to move us closer to a sensible tax system.

Friday, August 27, 2004

The Troubles of Social Security 

In remarks (here, here, and here)unlikely to rise as far above the distant horizon as they ought, Alan Greenspan has dangled the prospect of cutting or delaying social security benefits to the 77,000,000 baby boomers born between 1945 and 1964. Noting the impact of longer life spans on the cash flow of the social security system, Greenspan suggested that if benefits are to be cut or the retirement age extended, it ought to be done now rather than later so that people have a chance to plan alternative sources of retirement income.

Greenspan's comments criticized promising more than can be delivered. But, Mr. Greenspan, isn't that what happens every day in every walk of life? Isn't every new TV show, computer program, automobile feature, airport check-in system, newly signed free agent, or $9.95 cleaning solution touted as far more than what it turns out to be? Oh, you're right, of course, Mr. Greenspan, but we live in a culture that likes the hype, and doesn't understand why enabling the hype produces the very disappointment of which the hype-lovers complain.

What Greenspan sees is the shadow that forms over every Ponzi scheme beginning to darken the distant horizons of social security. By 2035 the over-65 population will have doubled (if I'm around, I'll be one of them, so I can't make any jokes about highways and cruise ships, can I?). If social security benefits remain unchanged and the retirement age remains unchanged, there are three choices: (a) the system goes bankrupt, (b) higher taxes are imposed on workers and employers, (c) the government borrows a lot of money.

Without going into detail, each of those choices is bad. Very bad. So bad that the very security of the nation could be threatened. When 10 people are trying to bake 1,000 pies for 10,000 people but have only 4 hours and 2 ovens, it isn't going to happen. That's why Greenspan proposes that people stay in the kitchen a little longer, reducing the population in the dining room.

Will it happen? I doubt it. It will be studied. It will be debated. It will be discussed at conferences. It will be the subject of articles and press releases. But can the Congress figure this out and come up with a solution that works? I doubt it. No matter the solution, someone is going to be unhappy. And Congress doesn't want to make anyone unhappy. After all, we live in a culture that dictates happiness as some sort of condition the lack of which is the end of the world.

Notice that I didn't mention returning social security to the "I" part of Federal INSURANCE Contributions Act (FICA). As I wrote on a related topic a few months ago:
None of this would have happened had Social Security been left as an insurance program designed to assist those whose pensions and other income were insufficient to support them after retirement. Social Security was enacted, after all, as the Federal INSURANCE Contributions Act. Yep, the I in FICA means INSURANCE, not entitlement.
It's amazing how much a mess is created when the grabbing outpaces the growing, when the reaping outpaces the planting, and when the using outpaces the production.

I will do my part. I will never retire. I will put students through the paces until they cart me away. I will grind out MauledAgain blogbits for as long as my fingers can move (even if my brain quits, so beware!).

Relax, I was joking. After all, they can cart me away while I'm still breathing. And they probably will try.

Taxes and Trash 

Imagine living in a city, paying taxes, watching your neighbors' trash get collected by the city without charge, and having to pay a private hauler to remove your trash.

That's what life has been like for people living in condominium and cooperative units in the city of Philadelphia. At least it was until City Council enacted a bill providing no-fee trash collections not only for the neighbors living in single family homes, duplexes, and row homes, but also for the people living in the condos and cooperatives.

Fair? Of course. The tax collections are paid from general revenues, which are funded by taxes imposed on all property owners. So of course people living in condo units ought not be required to pay private haulers to remove their trash.

If that doesn't make sense, consider the user fee approach, which is the system used in some other municipalities. Would it be difficult to see as unfair a system that imposed a trash collection fee on people living in condos and cooperatives but that required them to pay private haulers to collect their trash?

So what's the big deal?

The big deal is that the mayor of Philadelphia refuses to comply with the legislation and refuses to allow the city trash collectors to pick up trash from condos and cooperatives. So, this is great, City Council sued the Mayor.

When the bill was enacted and sent to the mayor for signature, he returned it unsigned but without having exercised a veto. He informed Council he would not enforce the bill, claiming that City Council has no authority to dictate that revenue be spent on a specific activity.

In early 2003 (before the MauledAgain blog existed so I didn't get to write about it back then), City Council sued the Mayor in an action for mandamus, seeking a court order directing the Mayor to have the trash collected. Council moved for preemptory judgment and the Mayor moved for summary judgment. The Common Pleas judge held for Council on its motion and denied the Mayor's motion.

The Mayor appealed to Commonwealth Court. On Wednesday that court affirmed the Common Pleas Court, in The Council of the City of Philadelphia v. Honorable John F. Street. Read the opinion if you like, but the upshot is that the court distinguished between legislation directing that the trash collection services provided to some residence owners be extended to others, which Council can direct, and legislation directing HOW the trash is to be collected, which Council cannot direct.

Supposedly there will be problems. One report notes that the city collects trash once or twice a week, and that means the condo and cooperative owners with limited trash storage space accustomed to daily pick-ups would have a storage problem. The incoming president of the Philadelphia Condominium Managers' Association suggested that the city reimburse condo and cooperative owners for their trash pickup costs. He noted that such a plan would "anger" city unions. To that I add a concern that the reimbursement could not be for more than what other residents get (once or twice a week), else taxpayers would be subsidizing condos for their trash storage space shortage.

Though the Mayor rests his legal arguments on City Council's alleged lack of authority, the bottom line is that the Mayor claims that there isn't enough money to provide trash collection service to the condos and cooperatives. OK, let's charge cars arriving at the toll booth $4 but then refuse to let some cross because there isn't enough money to pave the bridge (while spending the money on some other project). Supporters of the trash collection legislation speculate that without it there will be more incentive for people to leave the city of Philadelphia and live elsewhere. Perhaps. But wherever there is a locality with a nice tax system in place, it will become as has the quiet beach resort suddenly discovered by thousands: not what it used to be. People will flock to the place, demand for services will increase, taxes will increase, and someone's trash won't get picked up. The rest, as they say, is history in the making.

Oh, the Mayor of Philadelphia plans to appeal the Commonwealth Court decision. Warning to the Pennsylvania Supreme Court: trash headed your way.

Wednesday, August 25, 2004

Good News, Bad News 

I'm still catching up on the tax news that arrived while I was away and shortly thereafter. When I read this news from two weeks ago, I thought, "There's good news and bad news in this report."

The news came from a Department of Justice press release. The United States Court of Appeals for the Ninth Circuit affirmed a federal district court preliminary injunction barring Irwin Schiff and two associates from selling their tax evasion scheme. This is the ploy that rests on a very mistaken notion that a person need pay federal income tax only if he or she wants to do so. Not only were Schiff and his comrades prohibited from advertising or selling the “zero-income tax return” plan, they were barred from preparing tax returns for others and from assisting others to violate the tax law, whether by providing instructions on how to file fraudulent returns or otherwise. To top it off, the injunction requires Schiff et al to provide a copy of the injuntion to each of their customers, to post it on their websites, and to provide the government with a list of their customers.

As of the time the district court issued the prliminary injunction in March of this year, more than 3,000 persons had use the plan, and $56 million in taxes had been evaded. The ACLU came to Schiff's defense with respect to his book ("The Federal Mafia"), arguing that the First Amendment protects its sale. The court explained that the First Amendment does not protect fraudulent commercial speech. Nor, according to the Ninth Circuit, did it violate the First Amendment to require Schiff to post the injunction on his website.

The bad news? The bad news is that there are people willing to pay for this nonsense, and who think that the impossible is fact. All citizens have an obligation to know their civic obligations, and it isn't difficult to find an educated tax practitioner who can explain the dangers of following Schiff's advice. Perhaps pointing out that some of the individuals who used Schiff's plan were themselves convicted of criminal tax fraud would make an impression on these folks who follow the pied piper of tax protest. I wonder if this injunction will put an end to use of this plan, and I wonder how many more plans will pop up because there is a market of customers who so desperately want to ride for free.

The good news? The good news is that the tax protest movement, which some considered to be a harmless expression of discontent, is finally finding itself under the hammer because it has moved from mere protest to violation of law. Every dollar that goes unpaid because someone doesn't want to satisfy their legal obligation is a dollar that gets added to another person's tax bill, that gets subtracted from another person's benefit, or that gets added to the federal deficit.

If all taxes that should be paid each year were paid, the federal deficit would shrink, and for most years, disappear. If all taxes that should have been paid during the past 30 years, and that have not been paid, were collected (even without interest and penalties), the government would be awash in money and could cut taxes significantly while reducing the federal debt substantially.

Yes, pulling that much money out of the economy would have a shock effect, but that shock would be mitigated by the money being put back into the economy. What would happen is that the money would be taken from people who ought not have it and get transferred to those who have been financing the deadbeats for all these decades.

Of course, as a practical matter, most of the people who "protested" by not paying have little or nothing in the way of assets. I'm certain they were advised not to stash the cash where it could be found when the piper stopped piping.

Several years ago, after receiving email from strangers who sought my imprimatur on tax evasion schemes, and after dealing with their unhappiness after I declined to do so and explained why the schemes were wrong, I posted a page on my Law School web site explaining why it is, in the long-run, wrong and futile to follow the pipe dreams of someone like Schiff. (Go to the web page, select professional projects from the left-side menu, and then click on "FOR WOULD BE TRAVELLERS ON THE NONCOMPLIANT FEDERAL INCOME TAX PROTESTER PATH:" to read my exposition on the matter.

I think this posting will make me as many new friends as did that web page. Sorry about the sarcasm. And thanks in advance to the several people I know will be emailing me with words of thanks and encouragement.

Monday, August 23, 2004

Sales Taxes, Again 

My previous posts on the proposal to restore the sales tax deduction (here and here) generated some interesting responses.

A colleague at another law school recommended David Brunori's new book "Local Tax Policy: A Federalist Perspective" (Urban Institute Press). David is the editor of State Tax Notes, and has been the recipient (and publisher) of several missives from me. In his book, according to my colleague, David, who supports use of the property tax, explains that some states have accommodated people on fixed incomes by letting them postpone payment, with interest, until death, with a lien in place to protect the government's economic interest. That reminds me of a reverse mortgage. It's not as forgiving as something along the lines of a low-income tax relief provision, but it works.

This same colleague reports he suggested this idea recently at a dinner party, and the group "largely was repulsed by the idea of not being able to pass along their house to their children at death, though they likewise did not support property tax increases." Three questions that I'd like to ask. One, would this group cut school and other government spending or use some other revenue source? Two, why would the existence of a lien necessarily prevent passing the house to the children, and would it be any less of an obstacle than a mortgage or reverse mortgage? Three, how many children really want the parents' house? I'm guessing very few. Children live elsewhere. Children have their own homes. Children, and their families, probably don't want to move. I'm guessing what children want is the economic value of the house. Had the parent paid the property taxes (and sold the house) the net asset value passing to the child would be the same, aside from the interest on the tax payment postponement.

A practitioner in Texas pointed out that utnil the alternative minimum tax is fixed, allowing a deduction for sales taxes would be about as useful as the education credits enacted during the Clinton Administration. He's right, assuming that the sales tax deduction is treated for AMT purposes as is the income tax deduction. The proposed legislation as it now stands does just that.

If a defender of the proposal replies that taxpayers not subject to the AMT would benefit, I would counter with something along the same lines as the comment from the practitioner in Texas: Most of the taxpayers not subject to the AMT are claiming the standard deduction. So, they, too, get no benefit.

So what's the proposal about? It's about politicians crowing that they "did something to help their constituents, to lower taxes, to foster fairness,...." In fact, they've done nothing, with little revenue cost. Nice ploy. Here's hoping the citizens pick up on this gambit and see it for what it is.

I told my students this morning that "tax policy" gets considered in the course because all of us react to a piece of tax law with the one-word question, "Why?" The tax policy answer, I continued, necessarily involves tax politics. I trust that by the end of the semester my students will understand the smoke and mirrors that masks so much of what REALLY is happening with the tax law. Give me another 1,000 years of teaching and 200,000 students (each with 30 clients) and I just might get this message across to enough people.

They're Back 

Who's back? The students, that's who. Classes started today, and so it was time to roll out the latest addition to the teaching toolbox: student response pads ("clickers") from E-Instruction. After all sorts of discussion on this blog, beginning here, and continuing here, it's time to see what sort of impact their use has on the students' learning experience.

Of the 80 students, 63 had obtained and registered their clickers by the time class started. I had intended to ask four introductory questions but only got to the first one (the other three, dealing with student experience doing tax returns, will debut on Wednesday). I had this feeling that some of the students had used clickers while in college. So I asked if they had used clickers while in college. Of the 63 students, 60 replied. I will await your guess as to how many had used clickers.

Other than a few glitches, the mechanics of the process worked well. I must remember to set the receiving unit with its infrared detector facing the class. I had made the same goof while a few of us were "playing" with the clickers over the summer. The students, I think, have learned not to point at the projection screen but at the receiver unit. And I will remember to put the focus back on Powerpoint when in slide show mode before pressing "N" for next, else if the focus has shifted to the stay-on-top clicker toolbar it pops open the next question.

The composition of questions on the fly awaits real-time testing. There were several times in today's class when I was tempted to do that (questions that I would have prepped had I thought of them in advance), but clock management trumped.

One last thought: the students appeared to be "into" the clickers. We'll see if that changes when I shift from a "no wrong answer" question to a "not counted toward grade but has a correct answer" question or to a "counts toward the grade and has a correct answer" question.

Friday, August 20, 2004

Killing the Geese 

The Pennsylvania legislature is sharpening its knives as it readies the killing of the goose that lays the revenue eggs. Fresh off enacting legislation that permits local school districts, if authorized by referendum, to enact earned income taxes or full income taxes as a revenue replacement for reduction of local real property taxes, dozens of legislators have introduced a series of bills (House Bills 2750, 2751, and 2753) that would remove the right of school districts to impose real property taxes, and in return grant them authority to enact not only local earned income taxes and full income taxes, but also to increase the real property transfer tax by 2 percentage points (in most instances doubling it from 2% to 4%) and to authorize a 4.5% business receipts tax.

Do these folks pay attention to the news? Do they live in that ideal world so many desire, where one never meets a "tax type" at a dinner party, PTA meeting, concert or sporting event? Did they ever take a tax policy course?

The impetus for all of this legislative busy-ness is the public dislike of real property taxes. Of course, the public dislikes all taxes, so don't expect a parade down Harrisburg's main street when one bad tax is replaced by another bad tax. Expect another decade of maneuvering to get rid of the replacement tax. To the advocates of real property tax repeal I have these words of advice: Be careful what you wish for. You might get it. And then being pining for the "good old days."

Yes, the real property tax poses a problem for people whose incomes are fixed and whose homes continue to increase in value. Real property taxes for these folks increase while their income doesn't. But let's look more closely. Is it really such a HARDSHIP if a person pulling down $300,000 in pensions and investment income needs to cope with a $400 real property tax increase? On the other hand, someone scraping by on social security and a small pension finds a $250 increase taking a meaningful chunk out of a $15,000 annual income. And let's not forget that a significant number of elderly no longer own homes, and in some cases, never owned homes.

The cry that real property taxes hurt the elderly is as misleading as the silliness the late Rep. Claude Pepper rode to fame. His mantra that "the elderly are poor" led to a shift in government outlay allocation that has left us with a nation in which poverty is rampant among children. The simple fact is that a person's age should no more be used as a measure of their economic status as should their hair color or lack thereof. And, of course, there are people who cannot be classifed as "elderly" for whom real property tax increases are a serious burden, though most young poor don't have the opportunity to own real property.

So the relief ought to be provided to those who need it, namely, the poor. This is what has been done with the state income tax. True, the definition of "poor" can and will fuel some debate, but it can be resolved.

How does one pay for real property tax relief? By raising taxes. Either the real property tax imposed on those not getting relief is increased or some other tax is increased or invented.

Good tax policy dictates that the replacement revenue source ought to be the most equitable tax available. Scholars, most economists, many lawyers, and others agree that a progressive income tax is the most equitable. It may not be the most efficient, which suggests that revenue needs to be sourced among multiple taxes. The Pennsylvania income tax isn't very progressive. There is that poverty relief provision, and there are some incomes (e.g., pensions and IRA distributions) that aren't taxed.

But even the far-from-ideal Pennsylvania income tax is a whole lot better than the regressive earned income tax. Why should someone with $400,000 of investment income be spared participation in the funding of public schools while a person sweating to bring in $30,000 is nailed with a $300 or $600 tax bill? Probably because the person living on $400,000 of investment income can pick up the phone and call powerful people in Harrisburg.

Notice to Pennsylvania legislators: the earned income tax is a horrorible tax. Get rid of it. Do not encourage its proliferation.

It gets worse. The same legislators propose a business receipts tax. Are they aware that this is the same type of tax that pushed businesses out of Philadelphia? Are they aware that even more businesses would leave but for the return of the revenue through the so-called Keystone Zone tax relief? Are they aware that a business receipts tax applied throughout the state leaves no source of revenue to provide tax relief to keep businesses from leaving the state? Are they aware that businesses are already leaving the state and have been leaving for the past decade? Are they aware that their taxation policy toward business has made Pennsylvania the new "poor person on the block" among Northeastern states? Have they been reading the news reports about college and university graduates leaving for jobs in New York, Washington, Atlanta, New Orleans, and places not in Pennsylvania?

Have any of these legislators read or heard the story of the golden goose? Were they, as children, too busy trying to figure out how to get an allowance increase that they had no time to study the lessons of mythology?

Have the Pennsylvania legislators read the studies that analyze what happens when taxes on a business are increased? Do they understand that the tax increase will be passed on to consumers, including the so-called "poor elderly" who will turn from complaining about real property tax increases to complaining about increases in the cost of getting their heaters serviced, their gutters cleaned, and their pizzas delivered? Do the legislators understand that some businesses will up and leave or shut down? Have they read what happened in states that made insurance companies limit their premiums while accident claim costs increased?

Why it is so difficult for the Pennsylvania legislature to authorize a local piggyback onto the state income tax, and to leave it at that, puzzles me. There could be something more to this that I'm missing. Is there something truly admirable about a business receipts tax?

Don't get me wrong. There are some sensible legislators in Harrisburg. I don't envy them. I can't imagine what it's like to try to convince one's legislative colleagues that they're going about it the wrong way. Oh, wait, yes I can. I do that here quite a bit.

A public hearing will be held on August 25 at 9 a.m. at the Tredyffrin Township Building in Chester County. Thanks to regular blog reader, former student, and Graduate Tax Program teaching colleague Ryan Bornstein for bringing this to my attention.

Oh, have you noticed that a 9 a.m. meeting is inconvenient for people out EARNING their income and CONDUCTING BUSINESS. So who's going to show up and stomp their feet in support of this legislation? Yep, you've got it. Don't tell me that the bill sponsors aren't picking their audiences carefully. I'd go, except I have a class to teach. It's a FEDERAL tax class but perhaps I can sneak in an analogy to the Congress (whose tax legislation practices have won disciples in Harrisburg). I'd do so at the risk of being accused yet again of "going off on a tangent." Too bad. It's the stepping back to see the bigger picture that brings appreciation of what's being painted on the entire canvas.

Wednesday, August 18, 2004

Deducting State Taxes, Part II 

One of this blog's regular readers, Joe Kristan, of Roth & Company, PC, posed a question to me in response to my previous posting concerning the federal income deduction for state taxes. He asked, "What are your thoughts about a trade or business deduction for income
taxes paid on business income of pass-throughs?"

It's a though-provoking question. I've decided to share the thoughts that were provoked. Hopefully, people won't find these thoughts to be too provocative.

So let's get MauledAgain: If the federal income tax deduction for taxes is repealed, then there are two logical ways to treat taxes on business income.

No deduction, if one accepts the idea that whether or not a state imposes a tax on the income (on gross, net, or some differently defined taxable income) the federal income tax burden ought to be imposed on the pre-tax profits.

A deduction, if one accepts the idea that a tax on business income is akin to a fee or other business expense.

If one takes the second view, then taxpaying entities should get the deduction. So, too, should sole proprietors. So, too, should the pass-through member who pays the tax.

Taking the second view requires defining business income. Are wages business income? In one sense, yes, they are income from performing business as an employee. In another sense, no, the employee is not operating a business but working for it.

For purposes of simplicity, I'd favor the first approach. That, of course, would favor taxpayers who do businesses in states with higher user fees and lower (or no) income taxes. Businesses can vote with their feet.

But.... then the states with user fees would be favored, and the tax law could be seen as encouraging states to have user fees (which isn't a bad idea, but it conflicts with the idea that Congress ought not try to influence how states do taxation apart from Constitutional concerns.

I add to those thoughts a few things that have since wandered into my brain.

A good argument can be made that so long as the income tax permits the deduction of business expenses, then a deduction should be allowed for user fees, taxes, and other governmental charges. Of course, if the charge or fee is for something with a long-term benefit capitalization and amortization would be in order, but that's a timing question. Deductions also are allowed under current law for the cost of producing or collecting income, even if it is not in connection with a trade or business.

There are user fees and taxes that are not paid to run a business or to generate or collect income. These ought not be deductible. Thus, the bridge toll paid while driving to a vacation resort is non-deductible, even if called a user fee. The gasoline tax paid on fuel consumed in a personal-use vehicle is not, and ought not be, deductible for this reason alone, let alone energy policy issues.

But the line in the tax law isn't so clear-cut. What happens those expenses which if not paid or incurred would prevent the running of the business or the generation of the income. The sole proprietor needs food and clothing, and in most cases, a hair-cut. Tax law is settled. These expenses are not deductible. The test, therefore, is not so simple as "paid to run a business or to generate or collect income."

Let's consider, then, state taxes. A state excise tax paid on a product to be resold becomes part of inventory cost and eventually is deducted (or subtracted) in computing taxable income. A state excise tax paid on the cost of electricity used to power the business is deducted (or in a manufacturing situation, added in whole or in part to the cost of the manufactured product and eventually deducted). Generally, businesses do not pay sales taxes on products purchased for resale. What of a sales tax paid on something like office supplies? Deductible? Yes.

The results should be the same for the sole proprietor and they are.

Turning next to state income taxes, under current law they are deductible. My proposal that a way to resolve the existing advantage held by taxpayers living in states that rely more heavily or totally on income taxes rather than sales taxes is to eliminate the deduction for state income taxes leaves us with Joe's question. In other words, ALL state income taxes? Or something similar to what the law permits with respect to state sales taxes?

The comparison breaks down at one point. Sales taxes are imposed on the sale of items. Income taxes are imposed on a business profits, as measured generally. Is the income tax a cost of doing business or an imposition that arises AFTER the business has generated its output? I favor the conclusion that income taxes are NOT a cost of doing business but are a cost of MAKING MONEY FROM a business.

Where does that take us? It takes us to a repeal of the deduction for state income taxes, with survival of the deduction for state sales taxes imposed on items purchased and consumed by a business. So what? After all, it also leaves us with a deduction for license fees, highway tolls, and other user charges incurred by the business even though those items are not deductible when incurred outside of a business (or income generating activity).

So what? The "so what" is that, in theory, state legislatures would shift revenue sources from the income tax to user fees, thinking that with the federal subsidization in place (through the deduction), businesses could "withstand" higher rates for deductible state taxes than for nondeductible state taxes. Such a result would mean that the federal decision to repeal the state income tax deduction would influence state revenue choices. Not that federal legislators are shy about trying to tell state legislatures (and state judges, and state everyone elses) what to do.

But that's in theory. In practice, I doubt much would happen. Consider current law. In theory, states without deductible state income taxes ought to be shifting FROM nondeductible state sales taxes TO deductible state income taxes. But as a general rule, they're not. (The theoretical Pennsylvania shift from a deductible real estate tax to a deductible local income tax proves nothing in this respect).

Why not? Because a whole host of other factors influence state legislators when they fiddle with state revenue sources. Legislatures are pressured to set up lotteries and permit gambling as these are seen (wrongly) as cost-free to the taxpayers. So-called "sin taxes" are favorites. State income taxes meet a lot of resistance. More, in many respects, than do state sales taxes. Why the latter are so distasteful to academics but not to the citizenry generally is an interesting question that suggests a need for some "psychological tax perception" studies. Money deducted from a paycheck for some reasons seems more painful to people than money added to the tally at the cash register, even if the latter is more than the former (as it is in some states).

Of course, my proposal, Joe's question, and this posting in reply all qualify as theoretical musings. That's because, barring some blinding light knocking Congress off its tax horse, it's unlikely that we'll see the repeal of the federal income tax deduction for state income taxes.

Tuesday, August 17, 2004

"Cutting Rates"? 

I just cannot resist reacting to a story heard this morning on the local news station. I don't see it on the home page of its web site.

According to the story, auto insurance companies will lower their rates for drivers who agree to put tracking devices into their cars. Premiums will be reduced based on speed and on total miles driven.

The privacy advocates will have problems with this proposal, but if the government isn't involved, there's no Constitutional issue. Several major trucking companies have been using these types of devices for years, in some instances using them to recover stolen tractor-trailers.

What I don't understand is how use of the tracking devices will permit the reduction of rates. What will happen is the SHIFTING OF RATES.

First, the people who will "sign up" for the tracking devices are likely to be those who drive less and who drive slowly. I doubt the speed demons who haul down the interstate at 85, 90 or more will sign up. At least not voluntarily.

If the insurance company lowers the premiums paid by the people who agree to use the devices, what happens? Easy. Corporate revenue declines. Then toss in the cost of purchasing, installing, and tracking the devices.

Then what happens? Pick one, or some combination:

1. The salaries of the CEO and other big-wigs are reduced. Nah. Are you kidding me?

2. Profits are reduced and the shareholders revel in the knowledge that safety, somehow, has won. Nah, nah, and nah (no, the profits are not reduced, no, the shareholders don't revel, and no, safety doesn't win).

3. Expenses are reduced because the tracking devices reduce the number of accidents by encouraging slower, and thus safer, driving. No to this one. First, as I pointed out, the people going for this deal are already driving few miles and driving slowly. Too slowly, in a lot of instances. See, too many people think that speed kils. WRONG. What kills is SPEED DIFFERENTIAL. I saw it last week on my trip to New Hampshire. Three lanes of interstate, moving along at 65 and there, in the center lane, is Ms SafeDriver, putting along at 45, YES, 45. This forces all the traffic around her. It forces three lanes into two. Then cars from the right and left lane seek to return to the middle. VERY DANGEROUS. Ms. SafeDriver is a cause of "lane turbulence" and is among those dangerous drivers whose bad driving increases the risk of accidents FOR OTHER DRIVERS. Before you think I invented this, keep reading. My father, who worked for decades for an automobile insurance company, persuaded me to read a book, "The Book of Expert Driving" which his company distributed as a public service. EVERYONE WHO WANTS A LICENSE MUST READ THIS BOOK. Especially Ms SafeDriver and others who think that slower is better. Right. Why not drive at 5 mph? Why not go back to horses? Oh, horses were far more dangerous than cars, on a per person and per mile basis.

4. Revenues are maintained, and increased to cover the cost of the speed tracker program, by raising rates. Whose rates? Everyone else. Even the good drivers.

So this speed tracker device program is a bad idea. It will encourage the dangerous slowpokes to slow down even more. It won't find participants among the speed demons. And as for miles driven, the insurance companies already know that through the vehicle annual inspection program.

Instead, A GOOD IDEA would be a "drunk driving detector" and a "substance abuse in progress detector." The best would be a "stupid idiot driver detector" but I don't think they've yet been invented.

OK, maybe the program will be implemented in a way other than as described in the news program. I'd really like to hear from the theoreticians who have designed this program, especially from an insurance company executive.

Ah, I almost forgot. Where is this happening? Minnesota. Where are you Jesse Ventura? My prediction: the next states to get on this bandwagon will be Wisconsin, Massachusetts, New Jersey, and California. Curious as to where I get that prediction? Let me know and I'll share what the students in my Decedents' Trusts and Estates classes already know.

Monday, August 16, 2004

Oh My (Our) Poor Brain(s) 

In the last post I declined to get hyper-technical, motivated by a desire to refrain from chasing away the few readers that this blog has.

Just to prove the point, let me share a quotation from a tax case that was shared among tax law professors by a colleague who was responding to an inquiry asking us to nominate our "favorite tax quotes." Keep in mind that Tax Analysts annually publishes a growing list of tax quotes that is worth reading if you can find the time.

This one, though, is so wonderfully reflective of life in the tax world:

From PHINNEY V. TUBOSCOPE CO., 268 F.2D 233 (5TH CIR. 1959): "We here deal with problems arising under the Korean Excess Profits Tax Statute, as to which others have said, and we have echoed, that this statute " * * * probably represented the most intricate and baffling enactment ever to receive Congressional approval." Burford-Toothaker Tractor Co. . . . . As we struggle through this intricate web of definitions, exclusions, provisions, exceptions, cross references, limitations, provisos and a general but unavoidable obscurity, it is our conclusion that § 430(e)(2)(B)(i), expressly incorporating § 445(g)(2)(B), impliedly carries with it § 445(g)(3), though not necessarily that portion of § 461 impliedly incorporated by the reference to § 462(g) in § 445(g)(1), so that the attribution rules of § 503(a)(1)(2) (5) makes ownership of the corporate stock by the minor beneficiaries of a trust the ownership of the father, and thus pushes the stock ownership beyond the critical 50 per cent to make thereby a new corporation an old one."

My thanks to Eliot Manning for reminding us of this, especially as it arrived in the world long, long before I knew anything about taxes, and only a few years after I did. No, I've never read, studied, analyzed, or taught the Korean Excess Profits Tax Statute. Wow, I missed out. I feel SO deprived.

Deducting State Sales Taxes 

Last week's Tax Notes carried two articles addressing the current proposals to restore the federal income tax deduction for state sales taxes, which was abolished in 1986 as part of the "deductions and exclusions are removed but rates are lowered" reform that fell to the wayside when rates subsequently were increased. This is a topic on which I previously commented.

After reading these two articles, two more thoughts wandered into my head. The article supporting the deduction restoration argues that the absence of a deduction puts taxpayers living in sales-tax-dependent states that do not have income taxes at a disadvantage. This is true. Both articles address the notion that repeal of the sales tax was an attempt to encourage states to shift from regressive sales taxes to progressive income taxes.

First it's just plain inappropriate and silly for the federal government to try to influence or control how a state raises revenue, other than restrictions intended to prevent states from violating the Constitution. It's inappropriate because if the residents of a state want a regressive tax system, that's their choice and they have a right to make it. It's silly, because, as events show, eliminating the sales tax deduction had no effect on tax decisions made in state legislatures. There's a lesson here for the Congress. If it bothers to read, study, listen, and learn.

Second, resolving the unquestioned disparity in the federal tax treatment between taxpayers living in "income tax states" and those living in "sales tax states" doesn't necessarily require restoration of the sales tax deduction. Resolution also can occur by REPEAL OF THE DEDUCTION FOR STATE INCOME TAXES. Trust me, that one won't sell anywhere, but logic, in contrast to greed, supports such a conclusion.

Here's why. A federal income tax deduction for a state tax shifts a portion of the burden of that tax from the person on whom it is imposed to taxpayers generally. It shifts the burden from taxpayers in one state to taxpayers in another, it shifts the burden among taxpayers in the state, and it can shift the burden from higher income taxpayers to lower income taxpayers (because lower income taxpayers tend to use thed federal standard deduction and forego the state income tax deduction). A taxpayer in the 25% federal income tax bracket who pays a $3,000 state income tax to State A saves $750 in federal income taxes on account of the federal income tax deduction for state income taxes. That means taxpayers across the nation, and not only in State A, pay $750 more in federal income taxes than they would have paid had there been no deduction. But wait! A taxpayer in State B, who pays state income tax, in turn gets a federal income tax reduction, and depending on how much state income tax is paid, comes out a bit ahead, even, or a bit behind as compared to life without a federal income tax deduction for state income taxes. The taxpayer in a state requiring payment of high sales taxes but no income tax loses. But does restoring the state sales tax solve the problem? No, it simply adds to the shifting. With restoration, it means state tax burdens will be shifted from taxpayers in high tax states (whether the tax is income, sales, or as is sadly the case in a few states, BOTH!) to taxpayers in low tax states. Thus, taxpayers who voted to have lower taxes and less government intrustion in life end up paying for the programs operated in states where the taxpayers voted to imitate Sweden. OK, that's a bit simplistic and contrasting the edges, but if I got hypertechnical the reading of this post definitely would stop here.

This debate reminds me of the discussion between two children and a parent that takes place after one child is caught playing with one of dad's power tools. "It's not fair," says the other child, "he gets to play with a power tool and I haven't." Fairness could dictate that both children get to play with power tools. It also dictates that neither child gets to play. It's common sense that helps make the choice between the two avenues to fairness easy to make. Ah, common sense. I haven't seen much of that lately.

Righting a wrong can be done by eliminating the wrong rather than wronging the right.

Independence Has Its Advantages 

I cannot resist a brief comment on a story in today's Philadelphia Inquirer. Penn State University, which "acquired" the formerly independent Dickinson School of Law in Carlisle, Pennsylvania, in a merger several years ago, has been trying to relocate the school in State College. The Law School's Board of Governors, which retained powers with respect to the school's name and location, has voted to recommend that Penn State renovate the school's Carlisle campus rather than build it a new facility in State College.

The relocation plan would have divided the Law School between two locations. The School's clinic programs, which give students practice-world experience while assisting persons in need of legal assistance who most likely would not otherwise get it, would need to remain in Carlisle. That alone is reason to consider the relocation plan detrimental for the students, their present and future clients, and legal education in Pennsylvania. Interestingly, it would cost less money to renovate the Carlisle campus than to build a new facility in State College. Perhaps there is some perceived long-term operating cost savings?

My interest in this story remains high, not only because I am a legal educator who pays attention to these issues, but also because I taught at Dickinson for two and a half years at the beginning of my law teaching career. Though some students might think a so-called "party happy" State College (a/k/a "Happy Valley") has its advantages over an allegedly "boring" Carlisle, I continue to wonder why there would be any advantage to the law school from such a relocation. In an era of digital technology, including video-conferencing and distance learning, the need to concentrate everything in one place flies in the face of the "decentralization" approach that political and other conditions suggest is needed in both the near-term future and the short-term future (if not longer).

Here's hoping that the trustees of Penn State, which "acquired" the law school in order to keep up with the Big Ten universities that have law schools when it gave up independent athletic status and joined that athletic conference (another bad move), have the sense, this time around, to refrain from destroying one of the qualities that has permitted Dickinson to be a quality law school. The other, unfortunately, which is independence, has been lost, though perhaps it may someday, somehow be recovered.

For a law school, independence has its advantages. Yet few independent law schools remain, just as few independent banks or other businesses remain. When a university founds a law school, the latter is dependent for a few years. But then law schools become "cash cows" for the universities. Even the law schools created by persons or entities other than universities become attractive merger targets.

The alleged advantages of merger to an independent law school don't outweigh the benefits of independence. Having a university handle administrative tasks, ranging from registration and billing to custodial services, is over-rated, and can easily be done by an independent law school for itself. The opportunity for multi-disciplinary and inter-school cooperation is closer to home for the university law school, but independent law schools don't have the "partner with the university's school of whatever" pressure that can preclude partnering with a more reputable school that is not part of the university. In fact, some university law schools have partnered with schools outside their university because the university does not have a school, and it works well.

Some other time I can get into the particulars of these advantages and disadvantages. For the moment, I'll simply hope that this situation works out in a way that counters the past pattern of merger mania and that encourages the development and nurturing of educational independence in graduate programs much as it's beginning to develop in the K-12 world with charter schools and other innovative ideas.

Saturday, August 14, 2004

Angry? Who's Angry? 

One of my readers posted a reaction to yesterday's posting on attempts to expand the phone excise tax. Joe Kristan, of Roth & Company, P.C., quoted a part of my summary of Declan McCullagh's column on the topic. You can see Joe's post here.

Credit goes where credit is due. The analogies to a tax on Henry Ford for horse troughs and on laser printer manufacturers to prop up manual typewriter manufacturers are the product of Declan's imagination. And they're good. That's why I brought them to the attention of more people.

Joe then comments, "And then he gets angry." I'm not sure if that's in reference to my comments, or the rest of the summary of Declan's column. Or perhaps both.

I'm not angry. Anger requires energy, and there's no way I'm wasting precious energy on the Congress. I, and probably many others, share a different perspective: total amazement, bewilderment, and sorrow that legislatures and legislators are so ineffective and inefficient. And a lot of other things. I can't speak for others, but the words for me are disgusted, disappointed, offended, and a few others that I'll leave to your imagination.

In any event, Joe drew an analogy to Lou Ferrigno, a/k/a the Incredible Hulk.

Anyhow, Joe's comment inspired Paul Caron, a member of the law faculty at the University of Cincinnati who runs the TaxProfBlog to start a Tax Profs as Super Heroes? contest. So he has a picture of me next to Ferrigno in green. Man, does that make me look good, ha ha!!

I surely don't identify with the "Incredible" part. I am, I think, quite credible. It's almost a liability.

As for the Hulk stuff, ha! I wish! 'Cept I'd need to get a new wardrobe.

And I do need to get Villanova to change the picture it has of me, which Paul and others use. Ever since Breton Littlehales* photographed me for the Tax Management Millenium calendar, I've found it much more difficult to look favorably on the work product of many other photographers. The ones taking the pictures at Villanova (they seem to get replaced every year, hmmmm) don't seem to have the knack to get the shutter release timed with the best of the pose.

So perhaps next year I'll show up for the photo appointment with my face painted green. And I'll scowl.

As for that contest, I'm going to sit back and watch who shows up as Hercules, Xena, WonderWoman, Austin Powers, MightyMouse, Roadrunner, Wile E. Coyote, and, oh wait, cartoon characters don't count? Drat. Tax professors CAN be amusing. Even to people who aren't tax professors.

*I cannot find a web site for Breton Littlehales. I wish I could because I'd put in a link. It was the best photographic experience (as a subject) that I've ever had.

Friday, August 13, 2004

It Will Not Die 

It will not die. The lure of "the Internet" as a source of tax revenue has been strengthening during the past several years. Despite the ease with which we dismissed the "n cents per email tax threat" rumors that populated our email inboxes during the Internet's infancy, the seriousness with which the tax advocates have pushed their agenda requires us to be more attentive to the doings of Congress and state legislatures.

The current darling of the tax advocates is a tax on what I will call "internet telephone calls." The technical term is Voice Over Internet Protocol telephony, or VOIP for short. Declan McCullagh, a correspondent with a strong understanding of technology and its relationship with the political world, whose POLITECH list is a clearinghouse for political news affecting technology that sometimes seems to be a week or more ahead of the usual media outlets, has written a column for news.com describing the latest developments in the "tax the Internet" craze. It appeared a few weeks ago while I was away, and this is the first chance I've had to share some thoughts on the matter.

First, go take a look at what he wrote on the subject. It makes my commentary more coherent. Also take a look at this news account. Knowing that some folks can't or won't visit, here's a very brief summary of the news:

** The Senate Committe on Commerce approved an amendment brought by Sen. Byron Dorgan, D-N.D., that lets states impose Universal Service taxes (UST) on "providers of a VoIP application." A VOIP application is any software permitting "multidirectional voice communications." The UST is the charge that raises revenue ostensibly to subsidize rural telephone companies. Literally, if enacted, the provision imposes a tax on software developers who offer free software.

** Another bill, this one in the House and sponsored by Rep. Rick Boucher, D-Va., would permit imposition of the UST only on commercial Internet voice services. In other words, the UST would be charged if the provider required payment for the service. This bill, however, authorizes the FCC to subject these providers to the regulations applicable to public telephone companies: 911 regulations, access requirements for the disabled, and UST on chat software. These rules and the tax would apply even if the software does not involve the public telephone network.

** These bills are getting support not only from the tax-friendly legislators, a club to which Dorgan and Boucher belong, but also from Republicans representing rural areas. Apparently some of the UST is diverted to schools, libraries and health care, which makes the UST difficult for some politicians to oppose. Not only are they reluctant to repeal it, they are reluctant to prevent its growth. Declan reports tha the Universal Service Program financed by the UST is rife with fraud and waste. (Well, that's a surprise, isn't it?)

Declan asks some interesting technical questions, most of which demonstrate that Congress is unsurpassed when it comes to tinkering with stuff of which it has so little understanding. Here's my favorite question from Declan:

"How would dialing 911 work on a PlayStation 2 equipped with Sony's forthcoming EyeToy Chat feature, anyway?"

Maybe Sen. Dorgan, or Rep. Boucher, or Sen. Conrad Burns, R-Mont., who persuaded the Senate Committee to add a 911 regulation to the Senate bill, can educate us on the matter. Have they ever USED a PlayStation 2?

Declan also points out some tax issues lurking behind these provisions:

* How do the tax advocates envision collecting taxes from providers that are based overseas? One provider, for example, Skype, is based in Luxembourg.

* There are dozens, if not hundreds, of applications and projects already in use that carry voice over the Internet. Imposition of the tax surely will kill or severely degrade these services.

* The logic underlying these bills would have inspired previous Congresses to have taxed Henry Ford to pay for horse troughs and to have taxed laser printer manufacturers on behalf of the dying manual-typewriter industry.

Declan offers this suggestion:

* Perhaps UST should apply to VoIP companies that make use of the public telephone network. At least it is reasonable and can be defended on the grounds that the public network is being used.

Then he suggests a simple solution:

* "Leave the Internet alone."

And he offers this veiled warning:

* If the UST is not restricted to services using the public telephone networks, what's to prevent imposing the UST on e-mail?

Declan's column needs to be read by anyone who uses the Internet, whether for VOIP or not. If the citizenry remains asleep while these amendments are slipped onto legislation, when it awakens it will discover that its tax burden has risen, yet again.

It boggles my mind to think that the Congress would enact a provision that would stop the development of VOIP in it tracks. Long-time observers of the Internet know that most major advances come not from copy-cat Microsoft but from free-lance developers and teams of independent collaborators who experiment, not so much in search of the almighty dollar and control of the world, but in satisfaction of their overwhelming intellectual curiosity, desire to see "if it can be done," and sense of doing something useful for other people.

If one or another of these tax-raising bills gets enacted, there is no question that these services will be curtailed. One developer concluded that if the Dorgan amendment becomes law, the audio chat features of the authoring collaboration program now in its infancy will need to be removed. That's amazing. What a blow for progress!

The UST was enacted to subsidize rural telephone customers. The theory was that the much greater distances that these people live from the central switching stations generated a cost that, if passed on to the customers, would make telephone service unaffordable. So Congress did a bit of wealth transfer juggling, imposing a tax on telephone service, most of which is paid by folks living in urban and suburban areas, that is used to pay for the more expensive rural telephone service.

In its day, that made sense. A nation that considers itself advanced would be hypocritical if its rural citizens (many of whom are farmers, ranchers, and foresters providing the nation with its food and timber) were left living in the 18th century.

But it is now 2004. Technology has rendered the public telephone network obsolete. Telephone companies, recognizing this, have brought themselves to offer, for example, DSL, knowing that unless they offered SOMETHING, customers would eventually stop using their product. Already many cell phone users are dropping landline service in favor of the cell phone. This trend will continue now that a person can retain the same telephone number when they move or change carriers.

So what's the point of feeding a dying dinosaur? I could accept the idea of taxing VOIP to make it available to rural customers if in fact it was more expensive to provide it to rural customers. But it's not. The technology of wireless, the proliferation of communications satellites, the ubiquitousness of cell phones, and the surging popularity of hand-held computing devices makes the old landline phone a creature that will soon join white-out, IBM Selectrics, blue flashbulbs, and 45 RPM records as items on a "how old are you really?" quiz list.

It gets worse. As more and more rural customers shift to wireless services, the number of landline telephones (and landline telephone equipment) needing financing will dwindle. What happens to the UST proceeds? Already we have a clue. They'll be siphoned off to other projects. Projects that can be spotlighted by a politician who wants something to offer in exchange for a vote other than a demonstration of vision for the future reflecting understanding of technology and its role in the rapidly changing contours of American life.

Here is another challenge to Sen. Dorgan, Rep. Boucher, Sen. Burns, and their friends. In fact, they can jump to this endeavor even if they get stuck with the Play Station 911 phone call query:

Describe for us the burdens that VOIP impose that justify subjecting it to the UST or any other tax or user fee. Provide a quantitative analysis of the societal costs. Explain why rural customers should be encouraged, through subsidies, to stay aboard the sinking ship of landline wired telephones. Describe how this will nurture America's journey into the 21st century.

Here's the catch: The combination of, to use Declan's words, "state officials ... hungrily eyeing the Internet as a rich additional source of untapped revenue" and members of Congress who are still trying to figure out how to create an image file from a Powerpoint slide condemns us to a nation whose taxation policies are anachronisms. Students of the decline and fall of the great nations and empires of the past know that tax systems afflicted with stagnated response mechanisms contribute to the demise of political culture.

We, the citizenry, must awaken now. We must make it clear to the tax advocates that the extension of the UST to VOIP is inefficient, foolish, detrimental, and short-sighted. Even a die-hard wealth transfer advocate can see that the UST is not the answer. Hanging onto the past can be dangerous, and a warning must be shouted. Declan got it started. He ought not be left alone.

Thursday, August 12, 2004

More on Cricket and Tax 

In response to my comment about the inventor of cricket resurfacing as the inventor of the income tax, a reader in Australia suggested that I had overlooked the following differences:

In cricket, one has a chance to win.

In cricket, there are two independent umpires.

In cricket, you can bowl the other side out (but cannot do that with taxes).

In cricket, even if you can't win, you can drag the game out and play for a draw.

In cricket, you can bowl bouncers at the head of the other guy (something one doesn't want to try with a tax collector).

My response:

"You're right. After inventing cricket, the guy figured he had cut in too much fairness, too much opportunity to knock heads, so he tightened up the game, took out all traces of gentility, and invented the income tax. :-)"

Oh, yeah, I said "guy" as though I'm assuming that it was a male who invented cricket and the income tax. Well, it WAS men (not just one) who were responsible. I don't know what cricket would have been had it been invented by women, as I'm still trying to figure out what it is. As for the income tax, who knows? I think it would have been different, but probably no less complicated.

The Renege Effect 

A discussion on the taxprof listserve has been underway for a few days, giving participants an opportunity to opine on the advantages, disadvantages, likelihood, and wisdom of replacing or supplementing the income tax with a value added tax (VAT). The discussion was triggered by reports that if the President is re-elected the Treasury will seek to abolish the IRS and replace the income tax with a VAT (or some similar sort of consumption or sales tax).

There are people who prefer that the income tax (or perhaps its alternative minimum tax alter ego) be retained with respect to higher income taxpayers (whoever they may be), and that the enactment of a VAT be coupled with elimination of the income tax for lower income individuals. Of course, unless something is changed with respect to employment taxes, lower income wage earners will continue to bear a disproportionate tax burden.

What troubles me about such arrangements is what I call the “renege effect.” Two examples come to mind.

The first was the “deal” reached in 1986 with respect to the federal income tax. Rates were lowered in exchange for surrender of some exclusions and deductions. What happened? The exclusions and deductions having been surrendered, the rates were increased, both directly and through the sneaky phase-out mechanism. And Congress wonders why on trust surveys it ranks so low. Simple. Congress cannot be trusted.

The second is the so-called reform of local taxation in Pennsylvania, enacted in an attempt to deal with public school financing issues. I’ll leave aside the concern that the question addressed revenue sources rather than the tougher issue of why so little is produced relative to how much is funneled to the schools, as evidenced by the fact that some under-funded non-public schools often out-perform the public schools. Some other day perhaps I’ll discuss why money cannot purchase discipline and values.

The situation in Pennsylvania is a classic case of the bamboozle used to such great advantage by Barnum. Yes, folks, it is a circus.

Ostensibly, the reform addresses the major concern that the use of the property tax by school districts imposes a burden on individuals (mostly retirees) whose income does not increase as quickly as the values of their homes and the property tax rate increases. Combined, these phenomena put a lot of pressure on these people.

So the reform was sold as follows: school districts would cut property taxes, and in exchange would be permitted to enact or increase local income taxes. But what was enacted is much more complex and puts taxpayers at risk of another renege effect. And even if what was enacted was what was described, it surely would put the squeeze on people who rent. Most renters fall into two categories: lower-income people unable to afford homes, and retirees who choose to surrender the joys and agonies of maintaining a home. Isn’t there some sort of counter-productivity in this?

No, not if one realizes, as one does after an analysis, that this entire “trade-off in taxes” is nothing more than a disguised tax increase. Some clever people snookered some not so clever people. And, as usual, the citizenry, misled and uninformed, gets the short end of the stick.

Point 1. The law gives local governments and school districts the option to enact an earned income tax OR an all-inclusive income tax that exempts pensions and the first $13,000 of interest and dividends from the tax. Why isn’t the first $13,000 of earned income also exempt? Anyhow, because of prior law restrictions, the existing local income taxes are of the earned income tax variety. That means that wage earners bear the burden and millionaires living off investment income go tax-free. Can we guess who supported and caused this sort of tax policy to infect Pennsylvania? Surely not the labor unions. It will be interesting to see how many localities go for the more equitable almost-all-inclusive income tax. One legislator predicts that the almost-all-inclusive income tax will carry the day because it raises more revenue. He could be right. But he could be underestimating the power of the folks that limited local income taxes to earned income taxes in the first place.

Point 2. Pennsylvania residents who work in Delaware and New York face another squeeze. These people are permitted to claim a credit against Pennsylvania STATE income tax for income taxes paid to Delaware or New York. Because income taxes in those states are higher than the Pennsylvania income tax, the effect is to reduce the Pennsylvania income tax burden of these workers to zero, even though they end up paying more state and local income taxes than had they worked in Pennsylvania. The reason there’s no problem with other states is that the other states, such as New Jersey, Ohio, and West Virginia, have entered into reciprocity agreements with Pennsylvania. Under these agreements, those states agree NOT to tax Pennsylvania residents working there and Pennsylvania agrees NOT to tax residents of those states working in Pennsylvania. My guess is that New York and Delaware have concluded they’re better off in terms of revenue by declining Pennsylvania’s reciprocity offer.

Here’s the problem: these people will NOT be permitted to claim as a credit against the new local income tax the income taxes paid to other states and localities in other states. Why not? Because the school districts lobbied for the omission of a credit. If a credit is provided, the worker pays tax to the other state and not to the school district. School district officials think it is a “good thing” because they reject the idea of Pennsylvania residents working in another state paying for the education of students in that other state rather than Pennsylvania students.

Well, let’s consider this. When the Pennsylvania resident works in another state, he or she imposes a burden on that other state, in terms of highway use, police and fire protection, emergency health care, etc. That other state needs educated people to work in those industries. So it makes sense to impose a tax on the Pennsylvania resident working there.

What about the Pennsylvania side? The Pennsylvania resident also imposes a burden on the locality in which she or he lives. But is it as much of a burden as it would be if the resident worked in Pennsylvania? No. In fact, if the Pennsylvania tax were high enough, the credit would reduce but not eliminate it. So the problem is with the structure of the Pennsylvania tax, not the providing of a credit.

The same situation exists when Pennsylvania residents (such as those working in New York) pay sales tax to other states rather than to Pennsylvania because they are eating lunch and doing shopping while in the other state. (Note that Delaware does not have a sales tax, so the analysis with respect to that particular state is different but doesn’t change the basic point.)

The answer, of course, is a user fee. It can be set at one level for residents who work in other states and at a higher level for residents who work in the state. Residents whose income is not from wages would pay the higher level user fee. This would reflect the burden that is imposed on the Pennsylvania locality by the various categories of residents. Of course, this isn’t going to happen, not when the localities have been admitted to the regressive income tax feeding trough.

Point 3. Within Pennsylvania, a similar problem exists with respect to people who live outside Philadelphia and who work in Philadelphia. Philadelphia’s wage tax is set at two levels, a higher one for Philadelphia residents and a lower one for Philadelphia non-residents, an interesting model for the multi-tier user fee I proposed. The non-resident wage tax is sufficiently high that the credit for it that is allowed against the home locality’s earned income tax totally wipes out income tax liability to the home locality. Under the new legislation, a locality that enacts either type of local income tax will be reimbursed by the state for the revenue it loses on account of the credit.

Where does the state get the money for the reimbursement? From taxpayers, of course, although it isn’t clear in terms of the accounting whether the money comes from specific tax sources or from the general fund. No matter, why can’t this be done for Pennsylvania residents working in New York or Delaware? The answer, of course, is that the Philadelphia politician-lobbyists extracted this deal as part of the legislative process.

Point 4. Guaranteed, within ten years, the new local income taxes will exist. And property taxes will return to, or exceed, what they are now. Oh, I know the enacted law has provisions designed to prevent this outcome, but the Pennsylvania legislature cannot be expected to hold to this arrangement any more than the Congress held to the 1986 income tax legislation arrangement. Legislators dealing with taxes are very much like sugar-addicted folks walking past the bakery or donut shop. They just cannot help themselves.

None of the localities can enact the new income taxes until the proposal goes before a referendum of local voters. The referendum must be held before November 2007. The timing is good. After the 2004 national election, the spinmeisters can turn their attention to writing ads for and against the many proposals that are certain to pop up. Separating truth from fiction will be no easier, and considering the subject will be taxation, probably will be even more difficult.

In a Philadelphia Inquirer article, a person who lives in Pennsylvania and works in Delaware stated, “I think a lot of people will be surprised to find out that the impact will be different from what they expect, and many people will wind up payingmore.” I think MOST people will end up paying more. It ALWAYS works out that way. And the people paying less? Guess.

Monday, August 09, 2004

Youngsters with Money 

While I was away one of the ABA-TAX listserv subscribers posted a question asking if there were any studies on the impact of a child getting a chunk of money from a trust when the child attains age 18 or 21. It’s a good question, though I think it’s just as interesting and necessary to understand the impact when the money is received at age 25, 30, or thereafter.

In my Decedents’ Estates and Trusts class I point out to the students that although the client makes the decisions with respect to how a trust will be structured, the attorney has an important role in helping the client learn the options. There are, of course, all sorts of trust wealth disposition plans, many involving the discretion of a trustee. I’ve noticed that the once-typical “one-third at age 25, one-half the balance at age 30, and the balance at age 35" plan morphs as the trust settlor ages. The 25-30-35 plan that seemed appropriate becomes 30-35-40 and even 35-40-45. I suppose as clients get older, the qualities that they want their children to have, or think that their children should have, to manage money are less likely to exist at age 25.

I’ve seen very few trusts that drop bundles of wealth on 18-year-olds or 21-year-olds. Of course, discretionary education spending by a trustee can be quite a bundle of wealth, but that’s not the sort of thing the subscriber was considering.

The subscriber posted a follow-up that was news to me. Some of the laws providing for Indian gaming also provide that members of the tribe receive money from the proceeds of the gaming enterprises. One law, for example, requires that each member of the tribe receive $9,000 a month. If the recipient is under age 18, the money goes into an account that is turned over to the child when he or she attains age 18. That’s $1,944,000 plus interest. There are all sorts of questions (and the subscriber posted some) that can be asked about the impact of teenagers finding themselves with $2 million or more.

Another subscriber made the point that a similar set of issues can arise when a person wins a lottery. He noted that lives are changed, “but not always for the better.” How true. His anecdotal account fuels the stereotype that most people, when finding themselves with more money than what they’ve been accustomed to receiving, go on spending sprees, splurge, and have little or nothing after a short period of time.

Yet another subscriber provided a link to the Gallo Institute, which offers seminars and workshops dealing with the psychology of money and issues surrounding family wealth. A lawyer-psychotherapist team established the Institute, and it seems they are providing a service that surely would be of value not only to the folks making the decisions about family wealth, but the lawyers and other professionals advising them.

For those who are advising the trust settlors, it is important to remember that in most cases that person knows more about their intended beneficiaries than do the advisors. Sometimes, though, there is more to the situation than meets the eye or is apparent from an interview with the trust settlor. With the settlor’s permission, it makes sense to get a better picture by talking with others or having someone with credentials or programs such as those of the Gallo Institute to become involved. After all, the notion of team advising, with lawyers, accountants, financial planners, and appraisers working together to help the client, suggests that adding a financial psychologist makes a lot of sense.

Let’s face it. Some people at age 18 are very ready to handle money responsibly. I know one college student whose nickname is the “old man” and for a reason. And all of us know people in their 20s, 30s, and 40s who cannot handle money. I’m not talking about checkbook balancing. I’m talking about responsible decision-making, budgeting, saving, and establishing financial priorities.

Most 18-year-olds have some roads to travel before they are at the point where the trust settlor is willing to drop 1/3 of the trust principal into their laps. Once upon a time it probably happened by age 25 for most people, because life demanded that people grow up. In the post-modern world (or whatever it’s called), there are many children who are pampered and coddled, protected and sheltered, to the point where they don’t acquire financial maturity by age 25. That’s probably why I see more and more “30-35-40" and “35-40-45" plans (as well as a few 30-35-40-45 plans).

Sometimes the principal disbursements can be put into the hands of the trustee with the use of discretionary clauses. That, however, invites litigation, and if not done properly, can generate tax problems. And surely, considering all the talents that a trustee needs to have, judging the character of a beneficiary is at least as important as the ability to juggle investments. Trustees who can make the judgments to distribute income under a discretionary clause can make the judgments to distribute principal under discretionary clauses.

None of that, of course, deals with the listserv subscriber’s question. The law providing for full distribution at age 18 trumps any planning that the 18-year-olds parents or legal guardians might wish to put into place. Unfortunately, it will take a few years of financial catastrophes before the legislature that enacted the law even begins to think about amending it. After all, if a legislature can conclude that 18-year-olds cannot purchase or use alcohol (even though some 18-year-olds might demonstrate moderation when it comes to alcohol), it surely can make a similar decision with respect to the acquisition of significant amounts of money. Then again, if an 18-year-old can purchase a lottery ticket and win millions, why should 18-year-olds receiving money from gaming enterprises be subjected to greater constraints? Is it simply a matter of numbers, that there are only a few 18-year-old lottery winners but significant numbers of 18-year-olds receiving gaming enterprise money?

Well, now I’m simply posing even more questions so I’ll leave it at that. I don’t profess to have “the answer.” I’m not sure if there is “the” answer. But there’s a lot to think about, and I’m not so sure that the legislatures did much thinking on this one. I’m not sure that they do much thinking on much else, either.

Not Really a User Fee Research Trip, But..... 

First, a brief note as to the absence of a posting since Wednesday. I went to New Hampshire, invited by a fifth cousin twice removed with whom I’ve corresponded for the past two decades but whom I had not met. She and her husband had moved there, from California, a while ago, and decided to have a reunion of their branch of the family, most of whom are in California.

It was a wonderful gathering and I had a great time. I’m amazed at how much this group of Maules resemble my more immediate family and cousins. And, of course, personality and other traits were so similar that when someone asked me if I was having a good time I honestly replied that I felt as though I were at a gathering of my cousins.

So sometimes the blog takes second seat. Or even third.

I will note, though, that the roads I used for the trip varied in quality in direct proportion to the funding systems used to maintain them. My vote for highway most in need of redesign (even though it is in fairly decent shape) is I-84 as it goes through Hartford. It is impossible to stay in one lane if traveling through. A bypass or ring road is in order.

And a suggestion to the Pennsylvania Turnpike Commission and the folks running the toll booth on I-78 at the Pennsylvania-New Jersey border: Take a page from the folks who set up the E-Z Pass bypass lanes at the Tappan Zee Bridge. Sitting in backed up traffic trying to get to the E-Z Pass lanes makes no sense when most of that traffic consists of vehicles not using E-Z Pass. Once I “broke through” the 3/8-mile jams, the E-Z Pass booths were almost empty. My guess is that for every vehicle with E-Z Pass there were 100 or 150 without it. C’mon, folks, get E-Z Pass: it’s in use in more and more places, there’s a wee bit of discount on the tolls, there’s no need to fumble for cash tolls, and once the Tappan Zee plan is in place there’s no need to waste time (and gasoline) cooling one’s heels in the backup. In fact, there would be no backup.

Oh, by the way, Turnpike Commission: put up signs indicating where the E-Z Pass lanes are so that the vehicles with E-Z Pass can get into position long before they get into the thickest jams in front of the cash toll booths. Easily done and worth the effort.

Wednesday, August 04, 2004

That Microsoft Dividend 

Though the news about the huge Microsoft dividend appeared several weeks ago while I was away, there’s still time, I hope, to share some observations that I haven’t seen in any of the material that passed through my email, listservs, and news subscriptions. Microsoft’s announcement of a $32 billion dividend, the largest ever, got attention.

Some folks focused on the inevitability of a huge dividend from a corporation that had accumulated huge amounts of cash. Others pointed out that the dividend creates an incentive for foreign owners of Microsoft stock to sell their stock, to avoid a 30% withholding tax on dividends paid to residents of countries other than those that have tax treaties with the U.S. providing for a lower rate (usually 15%).

The announcement also brought speculation about the impact of the presidential campaign. If John Kerry is elected and manages to abolish the special low tax rate for dividend income (something that is far from certain even if he does win), corporate officers and directors that waited until 2005 to cause increased dividend payouts to be made will face adverse shareholder reaction.

No one has said much about the accumulated earnings tax. Generally treated as meaningless by most commentators because almost every corporation can get into the “accumulated to meet the reasonable needs of the business” exception, it surely must come into play under these circumstances. Though it is possible that Microsoft has figured out ways to make its taxable income less than its cash flow, it surely has not reduced it to the point where there are no or little accumulated earnings in the company. Now, the declaration of this dividend is PROOF that the accumulation were not for the reasonable needs of the business because Microsoft is saying, in effect, that the business didn’t need the earnings. It will be interesting to see if the IRS picks up on this (especially if no one there reads this blog). Perhaps it will be more successful than was the Department of Justice.

Accumulated earnings taxes aside, the Microsoft dividend, and its taxation at low rates, highlights some of the failings of present-day corporate business culture. Let’s try this scenario:

A company invents an operating system unlike anything ever seen. It is almost perfect. It rarely crashes. It is secure against hacking, worms, and other intrusions. It is fast. It is easy to use. The company advertises this operating system, users speak of it highly, sales skyrocket, and the industry begins to suggest that the company branch into applications software. The company brings its expertise to bear on word processing, databases, spreadsheets, email, networking, and a long list of other applications. The programs are a hit. Competitors simply cannot deliver similar quality. Company revenues soar. The applications and the operating system are sold for a fair amount representing value. The company eventually pays out a huge dividend to its shareholders, who are taxed at low rates. After all, the company’s products energized the economy.

If that were the story, perhaps there would be some sympathy for the temporary stashing of cash in the company as it pondered other areas of technology in which it could make a similar high quality contribution, making talk of an accumulated earnings tax a bit silly. And if that were the story, perhaps there would be an array of arguments advanced to support the idea of taxing dividends at rates lower than other income.

Of course, that is not the story. Even if it were, we know that no one, back in the 80s, would have banked on dividends being taxed at absurdly low rates in the 2000s. Not only could no one have counted on such a thing, it would have been risky even to predict it other than as something in the “anything can happen” category of items ignored as silly.

No, the story goes as follows. A company takes an existing operating system and rushes it to market in order to get an advantage over another enterprise also fashioning a new operating system from the existing operating system. The company’s operating system is a kludge. It crashes incessantly. It is insecure. Later versions, spawned almost yearly if one counts service pack upgrades as new versions, add all sorts of needless complexity while opening up even more security holes. The systems are slow, and users complain. Attempts by users or other businesses to bring other operating systems to market are met with obstructions, some legal and some on or past the borderline. Manufacturers are arm-twisted into accepting the operating system because the company knows most end users lack the ability to replace it. Free copies are given to schools in the same manner as the soft drink sugar merchants put discounted vending machines in the school, both having learned lessons from the guy down the street from the school just past the “Drug-Free Zone Starts Here” sign. The company, bored with fixing the operating system, jumps into developing applications to compete with any other venture that manages to bring out something useful. The perfect word processing program is pushed aside with a lesser-quality pale imitation that is filled with security holes, a mind-boggling concept. Someone invents a great web browser and a campaign to drive it into oblivion succeeds even though the replacement is buggy and needs upgrade and revision almost every month. Someone else develops instant messaging and the company is on their backs the minute it seems there is money to be made. Others develop web search engine technology that works marvelously and the company announces it’s going into that area as well. In the meantime, its latest operating system, rid of some of the earlier flaws, generously advances new defects that defy explanation and that are passed off by the company as the fault of the users or others. As the money flows in from what clearly is a compelled monopoly, the efforts of the federal government and most of the state governments to bring the company into compliance with antitrust laws is thwarted.

Now, awash in cash from having shoved its less than adequate products into most of the nation’s homes and businesses, and a good portion of those elsewhere in the world, the company decides to funnel a huge amount of the cash to its shareholders. Yes, that’s us, if we own Microsoft stock (I don’t) or are in retirement plans that own the stock. But is that what we really want?

There are two things that Microsoft SHOULD do with its cash. Both rest on the principle that until a job is finished, and finished correctly, the anticipated profits ought not be spent.

First, all users of Microsoft products should be compensated for the time, distress, and lost profits caused by the numerous crashes, virus and other invasions, sluggish performance, and other damage generated by the flaws in Microsoft products over the years. I’m picking on Microsoft because it is awash in cash that reflects the burdens and costs it surreptitiously shifted to the consumer. Other companies do the same thing but they’re not awash in cash because if they didn’t shift costs to the consumers in terms of bad products, poor service, incompetent help line employees and other failings, they’d be out of business. Microsoft, it will claim, simply learned the lesson taught by the developers who made and make money building projects that leave infrastructure burdens in the form of traffic, congestion, demand for fire and police services and other costs on the taxpayers of the region. With all the economists in this country, you’d think somehow they’d get the point across that hidden and shifted costs ought to be taken into account. More, in a moment, on how.

Second, Microsoft should take this cash, for which it appears to have no use, and plow it into a total and complete redesign of its operating system. Microsoft claims it doesn’t do that because it would cost too much. Well, guess what? Microsoft has the wherewithal to pay those costs.

Before getting to the how, one more facet of this prism needs examination. Bill Gates announced that his $3 billion dividend (subject to $600 million less tax than it would have been in the absence of the “dividends are really special” low tax rate) will be contributed to the Bill and Melinda Gates Foundation, which already is the largest charitable foundation in the world. Sounds nice? Well, let’s face it. When foundations give money, they can attach conditions. Foundations CONTROL the use of their money. So while we hear about elections and voting, we don’t hear much about how corporations and their foundations are shaping policy and decisions while the Congress wanders aimlessly searching for ways to deal with the EU tax crisis, homeland security, intelligence oversight and many other serious issues.

The tax law, of course, exempts the foundations from tax if they jump through certain hoops. A tax-free institution, therefore, has even more economic muscle when it’s not Alex’s Lemonade Stand trying to eke by on the generosity of individuals, but is simply an extension of someone who has a lot of wealth acquired not through the free marketplace rewarding high quality products but gathered through intimidation, questionable business practices, and corporate behavior still being investigated by some brave state attorneys general.

The tax law has failed us. Not only has it prompted Microsoft to move its profits into charitable foundations and to shareholders taxed at rates more appropriate for the working poor, it has also failed to penalize Microsoft for having accumulated these profits in the manner in which it did. It also lacks any mechanism to reward quality and tax that which hurts society. If there can be taxes on environmental polluters, why not taxes on technological destroyers? Why not a system that records every Microsoft operating system crash, every security hole opportunity used by a hacker, and every productivity slow-down caused by bad programming, followed by a user fee imposed on Microsoft for the outrage of high priced products that deliver far less reliability than the $29 genealogy program or $19 html editor (which, by the way, is far superior to the junk churned out converting a Word document to html)?

Here’s why not. The typical person does not understand computers and think crashes are as normal as are automobile accidents (even though both are preventable and need not be accepted as unavoidable). Most people know little or nothing about programming, and thus are in no position to judge the defenses raised by those whose programming falls short because the dollar is considered more important than any other value. Most people know little or nothing about the tax law, how it affects dividend payment decisions, or how it is used to regulate (or not regulate) charitable foundations. So they don't know what to demand of their elected representatives (who themselves struggle to understand what's really going on), and thus suffer because "that's the way it is" and "what are you going to do?"

I have a nephew who is a certified Microsoft network engineer. He defends Microsoft with the same vigor with which I criticize it. He argues that Microsoft is doing a better job than anyone else. I respond that no one else is given much of a chance to do the job, and when they do find a niche and make it successful, Microsoft moves in quickly and rapaciously. Our debates could be endless, except that we’ve given up trying to change each others’ minds. I am resigned to the notion that someday Microsoft will pay yet another huge dividend, say, $50 billion, because it has accumulated yet another hoard of cash, from selling and monopolizing the sale not only of operating systems, word processing applications, networking software, email clients, and internet searches, but also robotics software, music downloads, cable television services, cell phone services, computer hardware, homeland security software, defense department databases, RFIDs, highway toll collection systems, GPS navigation services, and just about every other digital product or service on the market. Considering the extent to which technology has penetrated and will dictate even more decisions in education, health care, safety, entertainment, transportation, and manufacturing, it may be time to start collecting corporate logos for the collectors’ items they are bound to become.

And I will always wonder what the world would have been like had Microsoft waited to market its products until the products were essentially as fault-free as intensive cardiac care software systems. I wonder what would have been the impact on society, politics, and life had the increased productivity, the hack-free databases, the increased speed in delivery of goods and services, and the other benefits that should come from paying top dollar for software, been delivered. At least a $32 billion dividend would have been seen in the same light as a similar payout to the folks who cured cancer or developed an earthquake preclusion system.

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