Tuesday, October 31, 2006

Happy Halloween: Chocolate Math and Tax Arithmetic 

Very soon it will be time to answer the door and hand out packs of Reese's Peanut Butter Cups. I couldn't find the 4-pack version this year. Oh, there are going to be some disappointed children (and their parents). Somehow, 2 2-packs is not the same thing as a 4-pack. Forget arithmetic. These children have minds that will serve them well with the tax law of the 21st century, when 2 plus 2 is not quite the same as 4.

Now to the frightening stuff: I had my annual physical today. My physician said, barring accident, I'm good to go for a long time. Now, that's a scary thought, isn't it?

Monday, October 30, 2006

The Tax Consequences of Namesakes and Ghosts 

Every once in a while, Paul Caron enlightens the readers of the TaxProf Blog with something not really tax but too much fun to pass by. Such was the case with I Am 1 in a 100 (Literally)!, where he reports that in using How Many of Me, he determined that he was one of 100 Paul Carons.

Of course, I had to check out myself. "There are 27 people in the U.S. named James Maule." I know many of them, thanks to my family history and genealogy pursuits. Yes, a few of the other men named James Maule are lawyers. They have different middle names, which helps minimize the confusion, and to those who wonder why I use my middle name in formal matters I simply tell them that one of the other James Maule lawyers has had a few rough times in practice. My friends not named James Maule who live in the same area see to it that I know about it, and are a wee bit too happy doing so.

We are a formal bunch. "There is 1 person in the U.S. named Jim Maule." I do have a cousin whose name is Jim, not James, so perhaps that's him.

Unfortunately, How Many of Me does not permit a search for other people named James Edward Maule. I know that at least five of us existed, the other four are long gone (and were in distant branches of the family, i.e., England, except a closer cousin of several generations ago, in Texas, who was an ordained minister. Yes, the Rev. James Edward Maule was a real person, and I've met and corresponded with many of his descendants. Go peek at the Thomas Maule of Salem, Massachusetts, descendants chart.

The tax angle? At first, I simply thought it was a matter of Paul being able to say "You must really mean to audit the OTHER Paul Caron (or one of them), not me." But after several tax professors on the listserve noted that How Many of Me claimed that there were ZERO people with their name, I saw an even stranger tax twist. How can a person who does not exist have an obligation to file tax returns and pay taxes? Trees that fall in a forest bereft of people DO make sound, but non-existing people surely need not file tax returns. Of course, they also don't get to vote, earn money, or party.

I checked a few family members. My mother, apparently, is unique, but we knew that before running her name through How Many of Me. There are half a dozen people with the same name as my brother and nephew, five with the same name as one sister, five sharing the name of one niece, and more than four dozen sharing her husband's name. Yes, one of my nephews is a James Maule, so he's accounted for, as is his wife, who is the only of her name. However, it may come as a shock to learn that my other sister, her husband, and several of my nieces do not exist.

If for no other reason than to learn how many people there are who the Social Security Administration or the IRS might confuse with you, pronouncing you dead before your time or hitting you up for the taxes owed by your billionaire namesake, visit How Many of Me.

As to the theological aspect, the conclusion from How Many of Me that "There are 6 people in the U.S. named Jesus Christ" leaves me almost speechless. No one, however, has the first or last name of God. Nor is there anyone named Peter Rabbit or Santa Claus.

Oh, by the way, a few of those other James Maules? Yes, they're my clones. I was hoping no one would discover this.

ADDENDUM: A reader suggested a close read of the information on a separate How Many of Me page that deals with "accuracy." Apparently the results generated by How Many of Me are based on a theoretical construct reflecting the relative incidence of first and last names and not on an actual identification of real individuals. Sites like Google or Infobel are far more likely to provide a much more useful output, even if individuals lacking listed telephone numbers in the non-cellular phone world are taken into account. Once again, theory meets reality, and it's as frightening as ever. If How Many of Me ever becomes a pay site, perhaps they'll accept theoretical dollars. In other words, what's the point of How Many of Me? A toy? A game? Yes, "For entertainment purposes only" shows up at the bottom of the web page.

Friday, October 27, 2006

As Halloween Looms, Making Sure Dead Tax Ideas Stay Dead 

Early this month, in Ready It Was Not: The Demise of California's Government-Prepared Tax Return Experiment, I commented on the apparent demise of the California Ready Return Project, which I had criticized in "Hi, I'm from the Government and I'm Here to Help You ..... Do Your Tax Return" and in ReadyReturn Not a Ready Answer.

Despite the seeming termination of the project, some of its opponents continue to lobby against it. Perhaps they've seen too many of those horror flicks where the monster, the alien, the bad guy, or whomever it is that should be dead appears to be dead but isn't, usually because there's another forty minutes to go before the credits roll. It seems, according to stories in the Sacramento Bee and the Los Angeles Times, Intuit has contributed a million dollars to the Alliance for California's Tomorrow, which then spent $66,000 on a television spot for a candidate running for state controller. Intuit, whose opposition to ReadyReturn is no secret, appears to be concerned that the project is not terminated and is trying to ensure that it does not get revived. Apparently the candidate benefitting from Intuit's dollars does not favor ReadyReturn and apparently the other candidate does, though I have not found anything that specifically links either candidate to a position on the issue. Perhaps most folks think, as I do, that the ReadyReturn experiment is over. But perhaps that sort of thinking is too close to the premature sense of relief that shows up too early in the movie.

It is unfortunate, though, that the issue is affected far more by campaign dollars than it is by an open and thorough discussion of the merits. It's not as though the merits have been ignored, but there's too big of a disconnect between the choices California voters perceive and the analyses of ReadyReturn that can be found in blogs such as MauledAgain. In other words, I doubt California voters see this particular race for state controller as a referendum on ReadyReturn, but at least one of the campaign donors does. Tax and politics remains a strange and scary mix. Halloween and Mischief Night are right around the corner. Ever wonder why election day follows so closely on their heels?

Namibia: A Different Sort of Tax Haven? 

Recently I commented on the tax fraud indictment brought against Wesley Snipes. In The Tax Fraud Environment: Sniping at the Congress, I noted that Congress could do a better job of reducing the motivation and opportunities for people to commit tax fraud. I also took note of the fact that he could not be found. It turns out, according to stories such as this one from CNN, that he is in Namibia. He's in the middle of filming a movie called Gallowwalker.

The movie's producer reports that Snipes has no intention of interrupting the production and that he'll be ther at least until near the end of December. She claims that Snipes went to Namibia to do the film work and not to avoid the arrest warrant that has been issued. The United States does not have an extradition treaty with Namibia. Perhaps that is why fugitive Jacob Alexander is living there. So will Snipes decide to linger after the director says "cut" for the last time?

So is anyone in the government trying to negotiate an extradition treaty with Namibia? Is anyone taking steps to make certain that if Snipes is found liable for the alleged tax deficiency, even if he's not convicted of tax fraud, that he would not already have moved out of the country his assets that would otherwise be in the United States for the IRS to seize to satisfy any judgments for the back taxes?

Wednesday, October 25, 2006

Oh, Why Not? Let's Do the First-Year Tax Thing 

Jim Chen has posted on MoneyLaw, a blog to which he is one of several contributors, a thought-provoking response, "Wisdom from whatever source derived," to my half-in-jest but serious proposal that Harvard could accomplish its curricular reform goals much more easily by putting the basic tax course in the first-year curriculum. Jim concludes that my proposal will not accomplish the stated goal.

Jim explains that first-year students consistently try to compile rules of law or substantive doctrines rather than abstract principles such as legal process, canons of interpretation, and the role of common sense. He's absolutely correct. If he's not, it's only in the perhaps unintended implication that second-year and third-year students don't make that mistake. Many, perhaps most, of them do. Fortunately, some law students evolve in this regard during their very short stay in law school.

For this reason, Jim concludes, using any substantive subject as an avenue to focus students' thoughts on legal process, administrative regulation, or statutory interpretation will not succeed. I agree, at least to the extent we're talking about substantive courses as taught in most instances throughout American legal education. It's easy to elevate doctrine above process, to succumb to student demands for information acquisition, and to surrender to student passivity. In response, it may be helpful to point out that I use my courses no less to help students become familiar with substantive doctrine as to help them analyze their own thinking process while they try to sharpen and modify their intellectual toolkit. An explanation is in order, one that requires me to write delicately and diplomatically.

Early in my law teaching career I noticed that student errors on law examinations fell into several categories. Surely I was not the first or only law professor to identify these "thinking process" flaws. And perhaps I was not the only one to make a deliberate decision to find ways to identify these flaws on an individual basis and to encourage the student to make corrections before taking another examination or test. As I met with students individually to do examination post-mortems, it became apparent to me that students equated information acquisition with high achievement. The erroneousness of this perception contributes to the disappointment experienced by law students whose grades do not meet their expectations. It also became apparent to me that changing the focus to other perspectives, including not only those mentioned by Jim in his post, such as legal process and internalization of statutory construction canons, but also others such as problem solving, fact acquisition, critical analysis, and policy development, would improve student learning and, incidentally, student examination performance.

Getting students to shift their efforts from acquisition of substantive doctrine is challenging. Jim concludes that it cannot be done. I disagree. I know it can be done because I've succeeded, at least with respect to many of the students who have enrolled in my courses. The initial resistance is strong and widespread. By the end of the semester the unhappiness has diminished for some, and has evolved into those wonderful "aha's" that are at the core of teaching satisfaction. The key to pushing students away from mere substantive doctrine acquisition, without removing it from their toolkit, is to reduce the reward for information acquisition. I do this by evaluating students on multiple levels. The first level is, indeed, one of basic knowledge. There are a few questions, on the examinations and semester exercises, to permit a student who does nothing more than acquire substantive doctrine to pass a course, though with a grade that, if also earned in the student's other courses, does not permit graduation. The other levels focus on a student's ability to demonstrate an understanding of the process that is involved. Sometimes, for example, I give the students a statute they've never seen (because I invented it), and put them to work making sense of it, explaining why and how they reach their conclusions. Again, I didn't invent this approach and I'm far from the only person who uses it.

Most importantly, I try to get students to think about their thinking. Some of this can be accomplished in the classroom. The other day, for example, after presenting a question to the class and asking them to respond using clickers, I discovered that only one student had the correct answer. The other choices would be selected by those who pursued analytical processes that had one or more wrong turns in the intellectual route. Thus, I was able to discuss with the students how they had processed the issue and the facts, and where their thinking had gone astray. They understand that they won't see the same question again in a graded experience, but they will see something that requires the same sort of thinking process. Much of the time, of course, the task of getting a student to contemplate how his or her mind works and how it should be working comes in one-on-one, or occasionally small group, sessions, often triggered by their during-semester reaction to less-than-ideal graded exercise results. It's time consuming. It is, to paraphrase my current dean, "an awful lot of work." Yes, it is.

In their rush to demonstrate their knowledge of legal doctrine, thinking that it will earn them high grades, students run roughshod over good legal analysis skills. They ignore facts. They presume facts. They answer the question they wanted to see and not the one asked. They begin their analysis in the middle of the process because they focus on the issue or fact that grabs their attention. Breaking students of these "bad intellectual habits" requires more than getting rid of the habit. It requires development of a substitute, just as one does in trying to break any bad habit. The substitutes, I have found, are those things that Harvard (and I suppose every other law school and law professor) wants to instill in its and their first-year (and upper-year) law students. Coming at problems with a toolkit larger than an acquisition shovels and an information bucket makes the student aware of how rich and wide a lawyer's mind needs to be. One of the additional reasons tax is ideal for this approach is that its information has the shortest shelf life of any doctrinal category in the law school curriculum. Students are told, more than once, that half of the information they learn will be obsolete within five years, but the processes they learn to apply will last their professional lifetimes and longer.

Does it work? For many students, yes. For those who hold out their resistance to a change in how they think, other than by avoiding my courses, perhaps not, or perhaps it does, a year or two or three after they graduate. How do I know that it works for many of them? They tell me. More than once, more than a hundred times, I've been told, "I wish I had been through this last year." or "Now I understand how bad my earlier exams really were and I wish I could do them again." My favorite experience was that of a student, ranked very very high in the class, who did not do well on the first few semester exercises. She visited my office and argued well, making the point that if she was not doing well then what I was asking of her and her classmates was off the mark. One day, on her third or fourth visit, she came into my office and said, in so many words, "I get it. Wow. You're not asking for an answer to a set of facts. You're asking us to figure out what the facts must be and why they must be so in order to get an answer." She had articulated in a way that I never had what it was that I was doing in this respect. So, yes, it works.

In his post, Jim Chen wonders why students are so intent on merely acquiring substantive doctrine. He suggests it might be the nature of American undergraduate education, some "debilitating facet of legal education," or something "even worse," namely, ourselves. I think it is all three, plus a fourth. Students somehow think that passing the bar examination is made more likely by the acquisition of vast stores of legal information. Fortunately, an increasing number of states are modifying their bar examinations to move away from information regurgitation and memorization skill exposition to the processing of practice-like client matters. Dispossessing first-year students of their misimpressions, misunderstandings, bad intellectual habits, and implanting in their minds the appreciation of legal process, statutory construction canons, problem solving approaches, and critical analysis, while nurturing and preserving the good academic discipline they have brought with them, is essential. Perhaps Harvard's plan will do this, or do this more effectively. I cannot say it won't work. I do wonder though, if it wouldn't be far easier to adapt a course such as tax (or something not so different in this respect, such as environmental law) to accomplish the same goals in a context that isn't as divorced from legal practice as are courses so imbued with theory as some of the Harvard courses appear to be.

Before closing, it's worth noting that reaction from other law schools to Harvard's plan is mixed. According to this National Law Journal story, some schools approve, noting that they already have implemented what Harvard is now discovering. As one law school dean put it, "When Harvard does it, it becomes news." I'd be in agreement with that observation even if my son wasn't among his students, and giving me a special perspective on law school's first year. But I disagree with what another law school dean opined, "The first year is the one year that works." I'm not convinced of that assertion. My disagreement might rest on my having a different sense of what law school should be doing, or it might rest on my conclusion that too many first-year students emerge into the second-year carrying too many intellectual bad habits and too little appreciation for law beyond appellate cases and Restatements. If it is true, as a group of students once insisted, that I was the first law professor they had encountered who made significant use of the word "client" then something is amiss.

In closing, it's encouraging to read Jim Chen's ode to tax: "It has everything a law school course should have, plus the added bonus of being relevant to the future professional interests of virtually every law school graduate." Jim also notes that "As an inveterate generalist, I've always been fascinated by the idea of adding tax to my teaching repertoire. It covers the full range of business law issues and provides the perfect platform for considering, at the highest manageable levels of abstraction, the very purposes of government." To quote my colleague Michael Mulroney, in his last academic year as Director of Villanova's Graduate Tax Program, "tax lawyers are the last vestige of the general practitioner." I was delighted to see that Jim Chen very nicely demonstrated the pervasive reach of taxation when he asserted, "In teaching law students, we should happily accept wisdom from whatever source derived." The tax folks will recognize the reference and understand its cleverness.

Monday, October 23, 2006

All Harvard Law Needs is My Basic Tax Course in Its First-Year Curriculum 

As reported in the Harvard Law Bulletin, the Harvard Law School faculty unanimously approved revisions to the first-year curriculum. The news isn't new. As I discussed in The Law School Curriculum: Ready for a Change?, early reports indicated that Harvard's curriculum reform study was seeking "a more practical, problem-solving approach" to the teaching of law.

I'm not so sure that what has been adopted aligns with the "more practical, problem-solving approach" that I try to bring to my courses. As I explained in my earlier post:
I have used the problem method to educate law students. I blend into that approach awareness of overarching jurisprudence, policy considerations, and ethical concerns. In other words, I try to replicate the intellectual challenges that students will encounter when they graduate and enter law practice. Whether they begin or end up in a law firm, a corporation's legal department, a government agency's counsel office, or a judge's chambers, or even in some non-law field, law graduates will be doing two primary tasks: solving problems and preventing problems.
I try to "synchronize legal education with law practice."

Harvard plans to add three courses to the first-year curriculum. The first, Legislation and Regulation, is intended to "introduce students to the world of legislation, regulation and administration that creates and defines so much of our legal order" and will "teach students to think about processes and structures of government and how they influence and affect legal outcomes." A closer look at the first course suggests it is a mixture of constitutional and administrative law: "The course will introduce students to, and include materials on, most or all of the following topics: the separation of powers; the legislative process; statutory interpretation; delegation and administrative agency practice; and regulatory tools and strategies."

The second course is a buffet of three courses, public international law, international economic law, and comparative law. These courses already exist in most law schools.

The third course, Problems and Theories, will be offered in a special January term for first-year students. It "will allow students to reflect on what they have learned through systematic treatment of methods of statutory and case analysis, discussion of different theories of law and work on a complex problem (or problems) beyond the bounds of any single doctrinal subject, explored through simulation and team work. The course’s focus will be on complex problem solving. The basic materials used will be case studies of complicated situations involving facts and diverse bodies of law and demanding both creativity and analytic rigor in generating and assessing solutions."

I'm impressed with the stated goals of the changes. The chair of the reform study stated, "We believe these changes will better prepare our students to think about and practice in a legal world in which regulations and statutes play an equal or more important role in the creation and elaboration of law as do court decisions; in which transactions and interactions among parties are increasingly global in nature; and in which economic, cultural and technological changes call upon the best lawyers to become skilled in system design, problem solving and creative approaches to issues." Of course. It took this long to figure this out?

But I'm not impressed with the implementation. What I see here is some reshuffling of courses, bringing into the first year courses that are upper-year courses in almost all law schools. The words theory and theories show up too often, and the word client doesn't appear.

Much time and effort could be saved, and the same worthwhile goals accomplished, by moving Introduction to Federal Taxation, as many of us teach it, into the first year. What's in the package? Constitutional law analysis? Yes. Administrative law principles? Yes. Statutory and regulatory analysis? Yes. Application of law to facts? Yes. Problem solving? Yes. Planning to avoid problems? Yes. Discussion of ethical considerations? Yes. Awareness of client needs? Yes. Development of interviewing and counselling techniques? Yes. Attention to international issues? Yes. Incorporation of business, social, economic, and political facets of the topics? Yes.

Does all of that seem overwhelming? It can be, for the unprepared student.

Does all of that resemble the practice world into which almost all law graduates go? Most definitely.

Isn't that what law school is supposed to be?

Maybe, someday, somewhere.

Friday, October 20, 2006

What? Is It Celebrity Tax Mess Day? 

Thanks to Paul Caron and his TaxProf Blog for alerting me to this most recent saga in the world of celebrity tax crimes. On the heels of the Snipes indictment on which I commented less than an hour ago comes news of another celebrity with serious tax issues.

According to the Associated Press report, Sunny Garcia has been sentenced to three months in prison for failing to pay taxes on more than $400,000 in winnings. Who is Sunny Garcia? If you're asking that question, welcome to my world. I now know who he is because the headlines are putting "surfing king" in the middle of his name. I know very little about surfing, unless it's surfing the web, and I don't think there's prize money available for doing that.

Garcia was straight-forward about his tax woes. "I didn't surf because I thought I was going to make money at it. But coming from a poor family, you want to buy everything you never had. I spent my money foolishly."

Well, at least he didn't cite the section 861 argument or try to pay his taxes with fake certificates. But how did he not know that he owed tax? And how did he not know the consequences of failing to pay? Yes, folks, here's yet another example of why high school students need a mandatory tax course.

The Tax Fraud Environment: Sniping at the Congress 

Most of the time, when someone is indicted for tax fraud the news doesn't travel far beyond the accused, the prosecutors, and friends and family of the taxpayer. Sometimes neighbors or former classmates hear of the indictment. But when it's a celebrity, even the mainstream media pays attention. Perhaps it's because people take subconscious delight in watching a celebrity tumble down, or perhaps it's because American culture has a deep obsession with information about celebrities that means nothing when it involves "ordinary" folks.

So it was no surprise when the federal government's indictment of Wesley Snipes for tax fraud was released, it made headlines throughout the mainstream media, from the Associated Press to USA Today. One of my students alerted me to the news within minutes after the announcement. I'm pleased that he now scans the news with a tax gleam in his eye. I passed the news along to Paul Caron, as did several others, and Paul compiled a summary of the story, along with links to some of the mainstream media and blog reports.

What did Snipes allegedly do? He's accused of failing to pay almost $12 million in federal income taxes, failing to file tax returns for six years, and claiming fraudulent refunds on taxes already paid for earlier years when he was filing returns. Snipes did not do this by himself. It is alleged that Snipes contracted with several companies that were in the business of marketing tax evasion schemes. Among the schemes marketed by the individuals behind these companies was a so-called "section 861 argument" and the "Bills of Exchange" ploy. The former is a long-rejected argument based on a deliberate misinterpretation of an Internal Revenue Code provision applicable to a narrow group of taxpayers, and the latter is a fraudulent arrangement by which so-called "Bills of Exchange" are sent to the U.S. Treasury in payment of taxes. The marketers of these schemes received a fee equal to 20 percent of whatever taxes they could prevent their clients from having to pay.

Snipes attended seminars conducted by the tax shelter marketers. He failed to persuade his former tax advisor to file returns that relied on the section 861 argument. Several years ago, one of the tax shelter marketers was sued by the government on account of fraudulent tax refund claims that were filed, including one for Snipes.

So how does a person get pulled into this sort of criminal behavior? Snipes is not an attorney, nor a tax practitioner. Surely he shares the desire most people have to reduce their tax liabilities. What he heard sounded good. What we don't know is if he did any research or had anyone do research for him, other than his former tax preparer who told Snipes it was a plan long rejected by the courts. Had Snipes approached any worthwhile tax attorney or tax accountant, he would have been given the same opinion. Perhaps he didn't want to hear the bad news about what he thought was good news.

I'm not going to defend Snipes. He has serious problems. If convicted, he faces years in jail and tens of thousands of dollars in fines. Even if he isn't convicted, he owes tens of millions of dollars in back taxes, interest, and civil penalties. At the moment he cannot be found, which is why he has not been arrested. Last year, he was refused entry into Sout Africa because he was using a forged passport. Though the passport issue is separate from the tax indictment, one begins to wonder what Snipes is thinking. Or if he is thinking. Why would he need a forged passport?

Snipes is not alone. He is one of tens of thousands of Americans who each year fall for these fraudulent tax evasion schemes. Most of these people are not celebrities, so their troubles don't end up in the national limelight. The dollar amounts that are involved often are far less than tens of millions of dollars. The government must divert resources into finding these taxpayers, auditing their returns, building a case, and prosecuting those who are indicted. There must be a better way.

Surely the United States Congress can do some things to reduce the motivation of taxpayers to cheat. Not that I have any false hopes that the United States Congress would do what needs to be done, nonetheless I share some ideas.

Because Wesley Snipes and the other folks buying into these fraudulent schemes probably would reject a proposal from some smooth operator to zoom through a toll booth on the basis of an argument that their vehicle is invisible, so too, the number of people ready to accept arguments such as the "section 861" joke would significantly decline if the tax law were not so convoluted as to make the nonsense offered by the tax fraud marketers seem plausible.

Because the United States Congress continues to tax wages at rates higher than those applicable to the earnings of investors, almost all of the people who fall for these tax evasion gimmicks surely are thinking that this is the only way they can eliminate the tax disadvantage facing them because their income is not as sacred to the Congress as are the earnings of those who own capital. People who are disaffected by the inequities, perceived or real, in tax policy are much more likely to pay attention when the Pied Pipers of Tax Fraud show up at their door.

Because an educated citizenry is less likely to believe the twisted logic of those trying to sell tax fraud plans, it makes sense to require high school students to take a course in basic rules of taxation. If we're willing to fund programs that teach children why illegal pharmaceuticals are best avoided, we ought to be just as willing to fund programs that teach the nation's future voters and taxpayers why section 861 doesn't mean what the tax fraud purveyors claim it does. Of course, teaching basic tax rules to high school students would be much easier if the Congress would clean up the tax code and adopt a sensible tax policy.

What will happen to Snipes? Perhaps he will plead guilty in exchange for reduced punishment. Perhaps he will go to trial and persuade one juror not to convict because he, Snipes, reasonably believed he owed no federal income tax. Perhaps he will go to trial, be convicted, and be sentenced to prison.

I'm not concerned about Snipes. He created the mess he is in, and he's in a mess even if he finds a way out. His mess is his problem. What is the nation's problem is the fact that Snipes, and thousands of others, are in a similar mess. The indictment may get Snipes' attention, but it ought to be a wake-up call to the entire country that the time for talking and writing about tax reform is over, and the time for fixing the problem is upon us. How big of a Justice Department will the nation need if instead of thousands, millions of taxpayers decide to imitate a celebrity?

Wednesday, October 18, 2006

Animals, Fire, and the Tax Law 

Ten months ago, a house fire supposedly started by a burning mouse triggered four posts:
Why Tax Law Can Fire Us Up
Follow-Up Report Extinguishes Blazing Mouse Tale (but not the tax issues)
Tax Law and Rodents Afire
The Flaming Rodent Tax Trilogy Gets a Sequel
Not only were there some interesting casualty loss deduction issues to examine, the story was perplexing because the reported facts changed several times. In the third post I pointed out that animals afire doing damage to human property is not a new phenomenon, with a history reaching back thousands of years. Flaming rats and fox tails afire shared the spotlight with the burning mouse. I quipped, "For the moment, though, I'm content with warning folks not to let their pets play with matches."

I spoke too soon.

Donna Byrne, who teaches at William Mitchell School of Law, passed along a report of a house fire started when a pet cat knocked a candle onto a chair. This time, the damage was not limited to property. The homeowner, who is disabled, suffered burns, and both her cat and her specially-trained care dog, who had brought her a phone so she could call for help, perished in the fire.

The same sort of questions that I raised with respect to the burning mouse incident will be asked at some point in this latest catastrophe. For example, is it gross negligent to have lit candles when there is a cat prowling the premises? Perhaps. Perhaps the homeowner was trying to cut back on electricity costs and was using candles for lighting. Had the cat previously knocked over items? Should the candle have been placed so that if it was knocked over it would fall onto a surface more resistant to rapid incineration than a chair?

In a smart-aleck moment, I had asked, "What's next, a blazing canary?" Now, in hindsight, I realize that when it comes to blazing, it's a different species of which some might need to be alert. Hopefully the next story won't be about horses in the barn breaking loose with blazing saddles. Apologies to Mel Brooks.

Monday, October 16, 2006

En Banc Hearing in Murphy? Will It Happen? What Will Happen? 

The government has filed its Petition for Rehearing En Banc in the D.C. Circuit's Murphy decision, the one in which the D.C. Circuit held, among other things, that section 104(a)(2) was unconstitutional. On one of my commentaries on the opinion, Why Hold Section 104(a)(2) Unconstitutional When There's No Need to Do So?, I pointed out one of the Court's many flaws in its decision, namely, holding section 104(a)(2) unconstitutional for requiring inclusion in gross income of the damages in question, when it is section 61 that requires the inclusion in gross income. In its petition, the government merely alludes to this particular problem:
The panel compounded its error by concluding that damages for nonphysical personal injuries were not considered income at the time the Sixteenth Amendment was ratified. (Op. 17- 23.) That analysis is incorrect, but in any event focuses on the wrong question. The critical question is whether § 104(a)(2), or more accurately § 61, involves any direct tax that would have been subject to the apportionment requirement, but for the Sixteenth Amendment. [emphasis added]
Perhaps the reason the government does not dwell on this issue is because it has so many other serious errors in the three-judge panel's opinion with which to grapple. Now, in addition to concerns over the chances of the petition being granted and the en banc outcome being decided correctly, there is another worry, namely, that the inability to understand how Internal Revenue Code inclusion and exclusion provisions work will become a problem not just for three judges but for many more. Perhaps this matter can be clarified at oral argument. That, of course, assumes a favorable reaction to the petition. It's tough to imagine the full court letting the three-judge panel's horrific opinion stand without comment.

Friday, October 13, 2006

Perhaps the Educators Need Educating? 

I should not have been surprised when I read the story in Wednesday's Philadelphia Inquirer about the tent city that pops up in State College the week before Penn State has a home football game. Called Paternoville, a strange compliment to the team's long-time head coach, the area outside the student entrance to the football stadium fills up with students camping out so that they can get a good seat at the game.

Apparently, for unexplained reasons, student seats at the football games cannot be reserved. It's first-come, first-served, an approach to event handling that made sense in the pre-Internet world but that offers far more disadvantages than advantages in almost all venues. So, Penn State officials, having rejected or perhaps never having considered the twenty-first century idea of letting students reserve seats through an on-line system, have now recoiled in horror at what their policy, or lack of policy, had created.

The phrase "tent cities" usually triggers visions of refugee camps or protesting World War One veterans, but in this instance such a vision is far from reality. The students bring their computers, laptops, and televisions. They power this array of electronic devices by running extension cords to some unidentified power source. They also stock up on beer. They invite their boyfriends and girlfriends to share the tent. Do they bring books? Do they study? The article doesn't mention books. Or studying.

In reaction to the situation, Penn State officials have decreed that tents cannot be pitched before 6 a.m. on Thursdays. It took moments before some clever college-graduates-in-the-making decided to camp out on the Thursday ten days before the Michigan game, because the decree did not specify that the Thursday to which it referred was the one before the game. Sounds to me as though this group is headed to law school. Except that on their applications they will need to disclose what then happened. Campus police showed up, and removed them. Officials also banned appliances, extension cords, and alcohol.

So along comes Paterno, the head coach who takes pride in his players' graduation rate. His take on the situation? "I think it's a great thing for a kid to be able to get that involved in something on the campus. What are the consequences if you bring a bunch of kids up here on a Tuesday as opposed to a Thursday? I don't know. I hope we don't get to the point where every time there is a lot of enthusiasm for something, regardless of whether it's for that or for something else, that we have to worry about the consequences. Sure, there are consequences. There's always going to be consequences. You get a bunch of kids together and they're out there to have a little fun and share an experience, there's going to be some consequences."

Whoa, Joe. What about class? What about studying? What am I missing here? Let's face it. For years, Penn State has had a reputation as a party school. Stories I've heard from friends and acquaintances who went there, tales from some of the law students who have graduated from the school, and concerns expressed by parents of Penn Staters, have reinforced that reputation, at least as far as I'm concerned. I do know that the trustees and senior administration officials have been working relentlessly trying to change the school's reputation. I'm not convinced, though, that acquiring a top-flight medical center and absorbing a fine law school is enough. Perhaps a serious conversation with the athletic department and its iconic head football coach would send a message that camping out for football game seats ought not be a higher priority than academic pursuits? Perhaps putting the wizards in charge of football game seating in touch with folks in the computer science department would be a productive first step in moving the seating procedures out of the twentieth, wait, nineteenth century?

Students are no different from other groups of Americans who report that they are short of time. There's so much to do. How efficient is it to invest 48 hours, or more, in effect standing in line waiting to get seats at a football game? What sort of message does Penn State University send to its students when it refuses to do away with the practice, and instead countenances student behavior that surely has an impact on attendance at Thursday and Friday classes? Who deals with the fallout when Penn State alums show up in their graduate program courses without the information or understanding they would have acquired had they not missed so many classes?

Lest it appear I'm picking on Penn State, I have the same low regard for this nonsense wherever it takes place. I'll guess Penn State isn't the only university where this happens, but it made the news. The others haven't. At least not yet. I also will guess that there are universities who handle student demand for athletic contest seats in a manner that eliminates the need for students to waste time, missing class while camping out.

I suppose my opinion on this matter contributes to my reputation as a demanding teacher. I'm no more demanding, and probably am less demanding, than are the clients, partners, judges, supervisors, and other employers for whom my students will work. Perhaps the folks running America's undergraduate education systems ought to be no less demanding than their students' future graduate school faculties, future employers, and future clients and customers will be. Considering what students, parents, and taxpayers are being charged to fund the nation's colleges, it isn't unreasonable to expect that somewhere on campus is someone capable of implementing a student football seating procedure that eliminates the need for students to cut classes.

Wednesday, October 11, 2006

Tax Jobs Are Waiting, But for Whom? 

Not much competes with the job search to increase law student anxiety. Exams? Grades? Those surely would be much less worrisome if they didn't mean so much. And they mean so much because most employers look at grades, or more specifically, class rank, as a significant factor in their hiring decisions. Yes, personality exhibited during an interview matters, but the interview is much easier to arrange when the grades are outstanding. Add to the mix the high debt burden many graduates have accumulated and are accumulating, and it's easy to see why Directors of Career Services need counseling skills to go along with their savvy about employer preferences and job-hunting tips.

With one major concern among law students the belief that there are more law graduates than available entry-level positions, recent news from the IRS ought to be encouraging. As reported by the Wall Street Journal and explored in its law blog, the IRS intends to pursue the same law students that the large law firms have been recruiting. How can the IRS, which offers starting salaries roughly half of what the large firms pay, attract students to practice in an area almost all consider too challenging, too boring, and too intimidating? The Chief Counsel to the IRS points to the roughly 40-hour work week, the opportunity to make court appearances within a month or two of being hired, and a long list of available locations. Will that be enough?

For law students who are not looking forward to the billable hours race of large law firms, where law graduates find themselves putting in 60, 70, or even 90 hours a week, the prospect of a "normal" job with IRS Chief Counsel must be very appealing. Based on my experience, though, I hesitate to confirm that 40-hour work weeks can be guaranteed. One thing is certain. The fewer tax courses a law student takes in law school, the more time he or she will need to get up to speed so that the assigned case, ruling, or regulation drafting project can be undertaken competently. So hopefully the IRS will bring the message about its effort to hire more "top of the class" law graduates to first-year law students. I've had enough conversations with third-year law students who avoided tax, only to discover the doors that their decision had closed, to know how unwise some law students' course elections are.

The IRS needs to revamp its hiring process if it's going to succeed in this new endeavor. Reportedly, applications gather dust while candidates turn their attention to favorable responses from law firms that somehow manage to communicate their decisions within weeks, if not days. Three decades ago, I waited for several months while the Chief Counsel's hiring system did whatever it was doing. Changing the hiring process at a government agency requires more than drawing a new flowchart. It requires serious changes in the institution's culture. Urgency, which permeates law firm practice, doesn't seem to afflict most government bureaucracies.

According to the Wall Street Journal article, another problem faced by IRS Chief Counsel is that "for decades ... [i]t recruited in the spring, instead of the preceding fall when the private firms did." That was not my experience. I applied in the summer before my third year, and had a response before the spring semester started. After I started with what was then the Legislation and Regulations Division of Chief Counsel, new attorneys arrived throughout the year. Perhaps the "for decades" doesn't reach back more than two?

What might be driving the new emphasis by IRS Chief Counsel on competing with large law firms is the perception that the IRS is at a disadvantage when dealing with tax shelters and other tax-savings arrangements because the taxpayers have access to sharp private practice tax lawyers and the IRS does not. I doubt that this is a significant reason for the problems faced by the IRS when dealing with tax avoidance and tax evasion. But if it is, hiring law graduates who have had one, two, perhaps even four tax courses and who have not practiced law is not going to put Chief Counsel into a position to lock horns with taxpayers' representatives. At least not in the short-term. Consider that someone earning an LL.M. in Taxation must enroll in twelve, yes, twelve tax courses. That's a number reflecting the decision back in the 1950s by New York University's law school when it instituted the nation's first such program. It probably made sense then. Today, with the tax law having grown by leaps and bounds, twelve courses is inadequate. When I make that assertion I'm not told I'm wrong. I'm told it isn't expedient, or efficient, to require 18 or 24 courses in an LL.M. program. So LL.M. graduates must learn on the job. So, too, must J.D. graduates who have at most one-third, and usually have one-sixth or one-twelfth, of the formal tax education LL.M. graduates bring to their employers. So long as tax practitioners with 10, 15, or 30 years of practice experience are representing taxpayers, the Chief Counsel to the IRS will continue to be at the disadvantage some say is the reason for its tax shelter repression problems.

What Chief Counsel needs to do is to find ways of hiring tax practitioners who are ready to leave the 70-hour work weeks, pressures of law firm management, and the other aspects of practice that wear people down. Rather than emphasizing the Office of Chief Counsel as a good place to get started, Chief Counsel ought to emphasize the agency as a good place to begin a second career. The drawback? Money. Tax attorneys who are 30 years out of law school are unlikely to settle for the salaries offered by the IRS to J.D. graduates. To the surprise of no one who reads this blog, I think the problem lies with Congress. It must understand that the sustained effectiveness of the tax system requires the investment in human intellectual capital that demands the going price for experienced tax experts. Congress needs to abandon its annual ritual of cutting the IRS budget, or grudgingly giving it increases that barely match inflation, while holding the IRS out to the public as some sort of unwelcome enemy of American values. Whether this will happen depends on whether Americans are finally so sick and tired of the incompetence, arrogance, corruption, misbehavior, and other inadequacies of the Congress that they clean house and demand genuine reform.

In the meantime, IRS Chief Counsel will move along with its new marketing campaign. It is distributing a CD that includes, among other things, a list of "notable IRS alumni." Would you have guessed Ronald Pearlman, who now teaches at Georgetown? Perhaps. I knew that one. Pam Olson, now at Skadden Arps? Sure. How about Jerry Reinsdorf, owner of the Chicago White Sox? I didn't know that. My oh my, I made a mistake somewhere. Well, I've made many, but this one is annoying. After all, I am a Chief Counsel alum, perhaps even notable, and I don't own the Philadelphia Phillies, or the Eagles, or, oh, never mind. If I can't figure out how my tax skills should get me to professional sports franchise ownership, I guess I don't deserve to have one.

Monday, October 09, 2006

Hopefully, International Airline Tax Proposal Will Fly Away 

Time to pick up on some news from last month that's been sitting in my "get around to blogging this" digital pile. Last month, according to several reports, including this one, France is ready to impose a tax on airline tickets. That's not news. Many countries and states impose taxes on airline tickets or otherwise tax air travel. The proceeds almost always are used to pay for the cost of operating the airports and to pay off the bonds floated to finance construction of airports and airport improvements. In that respect, these taxes are user fees. What's new with the French proposal is that the government plans to use the proceeds of the tax to fund the purchase of medicines for people afflicted with HIV, AIDS, tuberculosis, and malaria.

Support quickly came from Kofi Annan, Secretary General of the United Nations. Reportedly, the governments of Algeria, Brazil, Chile, Germany, and Spain plan to advocate an international airline tax administered by the U.N. Other countries have not responded with enthusiasm. Some oppose the idea. The U.S. opposes the idea but has promised not to block it. According to this report, 44 countries are involved in pushing the idea but only 18 are ready to implement it. Needless to say, the airline industry and the travel industry oppose the idea.

Initially proposed by French President Chirac, the tax is hailed as sensible because it would be easy to impose and allegedly "economically neutral," whatever that means. Here are a few of my reactions:

1. A tax should not be enacted simply because it is easy to impose. Protection money is easy to impose. That doesn't make it appropriate.

2. Air passengers, who ultimately would pay the tax, ought not be subjected to a user fee unless the proceeds are used to ameliorate the societal burdens created or increased by air travel. It would make sense to use the proceeds of such a tax to pay for the medical costs of dealing with hearing loss and diseases caused by jetliner air pollution.

3. Letting the U.N. have any role to play in taxation is as unwise as letting the U.N. have any role in the many projects it has undertaken without success. Which, unfortunately, is most of them. Note that I'm not opposed to a United Nations. I'm simply unimpressed by the track record of a United Nations that is more efficient with corruption than it is with peace-making, peace-keeping, and the other lofty goals that justified its creation.

4. A user fee to cure diseases ought to be imposed on the activities that cause or exacerbate those diseases. So, consider these:

a. Why not a tax on incompetent producers and workers whose failures cause stress (which in turn harms health). Perhaps one cent on Microsoft for each time a blue screen of death appears, and ten cents each time a flawed operating system security hole opens confidential data to hackers. Perhaps ten cents on every light fixture manufacturer whose product fails within one year?

b. How about a tax on contractors who promise to show up and work or promise estimates but fail to follow through? The stress that these no-shows generate surely accounts for all sorts of ill health.

c. Why not a tax on restaurant workers and food service employees who don't wash their hands and thus spread disease? Think spinach and e-coli.

d. Why not high taxes on industries that pollute, letting the marketplace decide if the industry will survive by passing through the taxes to consumers who are willing to pay because they want the product or service (e.g., coal burning electric generation plant) or will die because the real cost as reflected by the tax demonstrates the economic inefficiency of the product (e.g., imported toys containing lead)?

e. How about a tax on developers who build yet another unnecessary shopping mall or other construction project, leaving the resulting traffic congestion, and attendant pollution, and local infrastructure burden costs to fall on whomever happens to catch the fallout of yet more paved-over farmland?

f. How about a tax on politicians, government officials, and business executives whose lies, coverups, and thefts damage property, destroy lives, eviscerate pensions, or otherwise harm society?

g. How about a tax on people whose eating habits and failure to exercise contribute to poor health and disease and thus increase health care costs?

h. How about a tax on companies that sell food and other products that damage the health of U.S. citizens?

5. On the other hand, is it possible that the countries in question have nothing to tax other than airline passengers arriving and departing because the country has nothing much else in its economy that can pay taxes? If that's the case, what happens if the tax causes a decline in tourists and thus a decline in tourist revenue? There's this story about the golden goose.....

Now I have one more item to add to what once was my "Ten Reasons Not to Fly Commercial Airlines" list. Maybe I'll write that story some other day.

Friday, October 06, 2006

Taxation by Decree Isn't American 

There is a gubernatorial race underway in Pennsylvania. Well, it's as much of a race as there would be if I tried to compete with Olympic-class sprinters in the 40 yard dash. The latest Quinnipiac University Polling Institute numbers put incumbent Ed Rendell ahead of challenger Lynn Swann 55 percent to 39 percent.

Last night, the two candidates faced off in a debate. High on the list of items tackled by the duo was the issue of tax reform in Pennsylvania. Ten months ago, in "Legislatures Take a Holiday From Taxes", I explained and commented on the Pennsylvania legislature's inability to reach a tax reform agreement. In June, after the legislature cobbled together a reform plan in which few have much confidence, I expressed my dismay in "New Pennsylvania Tax 'Reform' Doesn't Add Up." It didn't require all of my brain cells to suggest "Taxes the Highlight of This Year's Pennsylvania Gubernatorial Campaign?"

It's no surprise that Rendell pounded Swann on the latter's tax proposals. As I pointed out in "Taxation Swann Song Should Be Tackled for Loss," Swann's tax plan is "nonsense" and a "gadget ploy." Rendell's reaction to Swann's proposals was summed up in this quote: "It's not that he has no ideas, it's that he has bad ideas." I'd like to think Ed Rendell has been reading my blog. I doubt it.

Swann's performance in last night's debate did nothing to change my opinion of his tax proposals. Worse, it added to the list of reasons I don't think he's right for the job. Swann took Rendell to task, claiming that Rendell had backed off his 2002 campaign promise to reduce property taxes by 30 percent. Had Swann been careful in his reading and articulation, he would have understood that Rendell promised to push for that reduction. What Rendell understood, then and now, and Swann apparently doesn't, is that a reduction in property taxes requires action by the legislature. In his debate response, Rendell explained to Swann that the governor is not a monarch. His quote, "Well, Lynn, you'll learn that the people of Pennsylvania don't elect you king," is marvelous, because it shines some light on an attitude that is strengthening among some of those who hold public office in this country. What part of the civics course does Swann, like some of his like-minded political compatriots, not understand?

The notion that the executive branch should simply change tax law by decree also showed up earlier this week in a Wall Street Journal editorial that advocated implementation of inflation-adjusted cost basis through Presidential Order. Aside from the technical issues that cannot be solved in this manner, the idea that the Congress be bypassed, no matter how appealing the thought, is frightening. A good idea shows its strength by the power of the arguments its advocates make in its support. The notion of indexing basis for inflation, which I support despite the arguments to the contrary, is one that should be adopted only after the arguments in its favor and against the idea are set forth in a public forum that allows for the debate that characterizes a democratic political process. I suppose the folks who think the President can change the tax law by fiat adhere to the same philosophy as those who are telling Swann that as governor he simply could order a reduction in property taxes as he claims Rendell should have done. As I commented several months ago, Swann isn't getting good coaching. Neither is his D.C. counterpart, but let me not stray too far from the topic.

It's no surprise that the key to Swann's tax proposal, as I pointed out earlier, is his hope that the general fund can be raided to fund his plan. Cutting revenue while letting deficits pile up is something at which those presently holding power in Washington do with no apparent consternation, and at least one disciple wants to bring that short-sighted vote-collection game plan into Pennsylvania. It might not be the principal reason Swann is trailing so badly as the campaign enters its fourth quarter, but surely most Pennsylvanians are sharp enough to see through the play fake.

This time around, for me, dedication to higher principles trumps loyalty to party. Competence means more than political affiliation. Responsibility in making tax policy must not be shirked.

Wednesday, October 04, 2006

Ready It Was Not: The Demise of California's Government-Prepared Tax Return Experiment 

About a year ago, in "Hi, I'm from the Government and I'm Here to Help You ..... Do Your Tax Return", I criticized the California Ready Return project, characterizing it as not ready for prime time. Five months later, in ReadyReturn Not a Ready Answer, I renewed my criticism in an even more extensive analysis of the disadvantages of the program.

Now comes news relayed by Paul Caron's TaxProf Blog, that the California Franchise Tax Board has terminated the Ready Return program. Surely the debate over the merits of the program will transform itself into discussions of the reason. Was it the product of careful analysis by the Board not unlike what I, and others critical of the program, had undertaken? Was it simply a surrender to vested interests? Did members of the Franchise Tax Board read my posts on the topic and become convinced of the program's shortcomings? I doubt it. Though we probably will never know with certainty whether the decision was the result of analytical processes or lobbying by interest groups, I do predict that this development significantly decreases the odds of any proposed federal ready return program taking hold. At least not for quite a while.

Monday, October 02, 2006

Food for Tax Thought? 

Oh, how twisted politics has become. In a story released on Friday, NBC News Producer Joel Seidman spotlighted the depth of the relationship between lobbyist Jack Abramoff and White House Political Director Ken Mehlman, who now serves as chair of the Republican National Committee. Of course there is a tax angle.

In June, the Inspector General of the Department of Justice released a report that discussed the extent to which Abramoff was being fed information by Mehlman on U.S. Pacific Territories, two of which were clients of Abramoff's firm. In an exchange of emals concerning Abramoff's attempt to get the President's endorsement of Republican candidates in Guam, Abramoff refers to a conversation he had with Karl Rove.

Based on an electronic calendar entry, it appears that the conversation took place at a "Tax Policy Dinner" hosted at Grover Norquist's home. So, wrapped up in this morass of favors, endorsements, deals, and other shadowy transactions is a thing called a "Tax Policy Dinner." Hosted, no less, by one of the staunchest opponents of taxation to come along in a long time.

It is simply wrong for tax policy to be worked out at a private dinner to which only a select few are invited. When the deal is done before the vote is tabulated, what's the value of the vote?

Years ago, when I served as an attorney-advisor at the U.S. Tax Court, a group of us decided that we would not talk about tax issues during lunch. We wanted a break. A break from tax analysis, tax thought, tax writing, and tax ideas. The last thing I want to discuss during a meal, dinner or otherwise, is tax. Why ruin good food and wreck one's appetite?

Apparently the movers and shakers with the money and power, who make decisions in the back rooms, corridors, and dining salons, think I'm wrong, and that tax and food go well together. To me, a "Tax Policy Dinner" packed with lobbyists is certain to generate more of what we've seen during the past two decades, things that grill the average citizen, slice and dice paychecks, and sweeten the tax rates for the wealthy. If the trend continues, the tax system will be toast.

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