Unmasking the Deductibility of Halloween Costumes

Ah, yes, Halloween again looms, and once again it’s time to make MauledAgain particularly frightening. In years past, I have focused on sugar, candy, and, yes, pumpkins:

In 2004, I looked at the idea of Taxing "Snack" or "Junk" Food. In 2005, I had some fun with Halloween and Tax: Scared Yet?. For 2006, in Happy Halloween: Chocolate Math and Tax Arithmetic, I simply lamented my inability to find four-pack versions of Reese's Peanut Butter Cups. In 2007, I added Tricky Treating: Teaching Tax Trumps Tasty Tidbit Transfers, while also noting that Halloween Brings Out the Lunacy. Finally, 2008 brought us A Truly Frightening Halloween Candy Bar.

A few weeks ago, an email came my way that opened with this question: “Can you deduct the cost of your Halloween costume as a business expense?” It then answered the question:

No, if you bought it to go trick-or-treating with your kids.

Yes, if you bought it to attend a client's Halloween party.

For both? Then proportion the cost based on % of use.

You can find this question and answer on the web at Ways Through the Maze: A Tax Guide for Indies.

Though I agree with the first part of the response, I recoil in horror at the second. Unquestionably there is no deduction if the costume is purchased for a Halloween outing with the children. But if the purchase is for a client’s party, the answer depends on whether the cost of attending the party is an ordinary and necessary expense of carrying on a trade or business. And that means that the third part of the response, dealing with percentage of use, requires a more sophisticated determination than simply hours at a party compared to hours with the children, but rather a comparison of deductible use versus non-deductible use.

The rule with respect to clothing that gets everyone’s attention is the rule that precludes a deduction if the clothing can be worn for everyday purposes. Many people think that if the clothing cannot be worn for everyday purposes that the deduction is allowable. But in so thinking they trick themselves. They miss the position of the rule in the larger scheme of things. The non-deductibility rule doesn’t become relevant until it is determined that the clothing can otherwise be deducted. Thus, before getting to the question of whether a costume can be used for everyday wear, one must determine if the cost of attending the party is deductible. Those costs include not only the apparel that one wears, but the transportation expenses of getting to and from the party. And even if the cost of attending a Halloween party can somehow turn out to be deductible, the cost of the costume might still be non-deductible because it is suitable for ordinary wear. Think about the lazy law professor who shows up in a flannel shirt and jeans, passing himself off as a lumberjack.

So is it possible to deduct the cost of attending a Halloween party, even assuming the costume is not useful for ordinary wear? A look at some authorities is instructive.

In Starrett v. Comr., T.C. Memo 1990-183, the Tax Court looked at the expenses paid by the host of a Fourth of July party and a “Christmas open house” that the taxpayer characterized as “business promotions.” The court concluded that the taxpayer had not demonstrated that the party expenses were ordinary and necessary. That’s not to say that party expenses never are deductible, but it points out the trap of assuming party expenses always are deductible. The court also pointed out that entertainment expenses must meet the requirements of section 274. Thus, they must be directly related to, or at least associated with, the active conduct of the taxpayer’s trade or business. For the “directly” requirement to be satisfied, the taxpayer must demonstrate that the taxpayer has more than a general expectation of deriving a specific business benefit at some future time and that the taxpayer actively engages in business during the period of entertainment. Though the latter may occur at some parties, one must wonder what sort of business goes on at Halloween parties. For the “associated” requirement to be satisfied, the taxpayer must demonstrate that the entertainment directly precedes or follows a substantial and bona fide business discussion. So even if the taxpayer had worn bizarre clothing to the party that was inappropriate for ordinary use, there would have been no deduction permitted to the taxpayer.

It is extremely unlikely that the deduction requirements can be satisfied by a taxpayer hosting or attending a Halloween costume party. In Gardner v. Comr., T.C. Memo 1983-171, the Tax Court considered the deduction claim of a dentist who hosted 200 guests at a cocktail party during which attempts were made to foster business relationships. The court rejected the taxpayer’s claim that the party was “directly related” to the active conduct of the dental practice, and noted that the regulations describe cocktail parties as examples of entertainment situations which generally are considered not directly related to the active conduct of a trade or business. The rationale provided in Regs. Section 1.274-2(c)(7)(ii) is that the party is “essentially a social gathering and there is little or no possibility of engaging in the active conduct of a trade or business because of the substantial distractions inherent in such form of entertainment.” The court explained, “Clearly a large party such as was given by petitioners in this case does not lend itself to substantial business discussions. . . . Indeed, the very size of the party dooms the claimed deduction to failure. Surely petitioner could not have expected to have had substantial business discussions with all or even most of those attending. Rather, the party has every appearance of a social gathering intended for the purpose of renewing acquaintances and enjoying a pleasant evening.” When put in the context of a Halloween party, how can one possibly argue with a straight face that discussion, particularly when masked, with another person who if not masked most likely is face-painted or otherwise circulating incognito, can reach the level of serious business dialogue?

Theme parties take a serious hit when it comes to deductibility. In Steinberg v. Comr., T.C. Memo 1995-116, the Tax Court held that the cost of a birthday party for a physician’s one-year-old son was not deductible. Anyone who has been at a child’s birthday party would find it very difficult to swallow an argument that serious business discussions were underway during the event. In this regard, Halloween parties are no less chaotic and perhaps even more out-of-control than birthday parties for children.

Though these cases focus on the cost of throwing a party, the same analysis should apply to the cost of attending a party. In Preston v. Comr., T.C. Memo 1961-250, the Court lumped the cost of “attending parties” with other expenses that it categorized as “entertainment expenses” and then proceeded to hold those expenses non-deductible.

The only mention I could find of Halloween parties involved the deduction, as a charitable contribution, of the cost of tickets to a Halloween Ball held to raise funds for a charity. The cost of costumes or other apparel acquired for the event is not mentioned. So the IRS has not treated us to a specific analysis in this context.

So if a costume is purchased for use at a Halloween party, the taxpayer doesn’t have a ghost of a chance when it comes to deducting the cost. Hopefully, people aren’t goblin up the advice being shared by those who claim that the cost of a Halloween costume purchased for use at a client’s party is deductible.

Revamping Philadelphia’s Tax System

Last week, the City of Philadelphia Task Force on Tax Policy and Economic Competitiveness delivered to the mayor and City Council its final report,Thinking Beyond Today: A Path to Prosperity. Although the report includes analyses of and recommendations with respect to things such as business activity regulations, zoning, publicity, government procedures, health care and pension spending, and other steps to making the city economically viable, it’s the tax proposals that caught my attention.

The premise of some of the tax recommendations is that the city should tax things that are immobile and not things that are mobile. The thinking, it appears, is that jobs can “walk” away from taxes whereas fixed assets cannot do so. Thus, the Task Force suggests that the planned cuts to the wage tax and the business privilege tax be resumed in 2012 and that wage tax rates be “more aggressively” reduced. There is a practical flaw in the premise. If the taxes on fixed assets, such as buildings, are too high, they are abandoned. That does not bode well for economic development. There is another flaw in the proposal, one that rests on principle. Jobs impose burdens on the city, no matter where the employee resides. The cost of providing infrastructure for people commuting into the city, the cost of police protection, traffic maintenance, and the other services rendered to nonresidents, if not borne by those who benefit, will be imposed on city residents. Municipalities throughout Pennsylvania have been imposing taxes, such as the Emergency and Municipal Services Tax, designed to shift to nonresident employees their share of the services provided by the local government in question. This approach, which pushes taxation in the direction of user fees, makes more sense.

The Task Force also suggests increasing the amount of revenue derived from the real property tax. If revenue increases arise because the currently flawed real property tax system in the city is fixed and assessments are adjusted to market value, this suggestion is worth pursuing. To its credit, the Task Force also recommends fixing the real property tax system. On the other hand, if revenue increases are accomplished through increases in the real property tax rate, that’s counterproductive. As much as wage taxes theoretically drive employees and businesses out of the city, so, too, real property tax increases will drive not only employees and businesses out of the city, it will also encourage tax-paying residents to flee. The Task Force proposes to avoid this latter effect with a homestead exemption, designed to shift the real property tax burden to commercial and industrial properties. This, however, simply exacerbates the former effect, for it means that businesses will face higher real property ownership costs or rental fees, and despite reductions in business privilege and wage taxes, will continue to relocate outside the city. For this shift to encourage the opposite effect, businesses moving to the city, the wage and business privilege tax decreases need to exceed the real property tax increases. But if this happens, the city’s budget deficit grows.

At a technical level, the Task Force recommends that the city adopt “market-based” sourcing in determining how much of a service company’s profits should be taxed by the city when the company performs services both within and beyond the city limits. Under this approach, which has been adopted by many states and localities, the company is taxed on profits derived from services rendered in Philadelphia and not on profits generated from income-producing activities in Philadelphia. In other words, if the activity is performed in Philadelphia but is delivered outside the city, the only profits that would be taxed are those arising from the delivery of services in the city, which could be as little as zero. Similarly, if the company engages in the income-producing activity outside the city but delivers it into the city, the only profits that would be taxed are those arising from the delivery of services in the city, which could include profits not currently being taxed. This approach currently is used for manufacturing companies, so extending it to service companies makes sense, provided that the company is taxed in some way, or charged a user fee, for the burden it imposes on the city by engaging in business activities in the city. Opponents of such taxes and fees would claim that the companies ought not be taxed because they are “doing a favor” to the city and its residents by bringing jobs and business activity to the city, but that argument too much resembles the “trickle down” justification for federal income tax cuts benefitting the wealthy and causing economic distress for everyone else.

The other technical recommendation is to shift from a three-factor formula for apportioning income to a single sales factor formula. This is another shift that has been taking place throughout the nation, and it does make sense to drop the property and payroll factors because if those factors are to be taxed they should be taxed directly, as they are. It is almost a double counting to bring them back into the analysis for income and receipts taxation. According to the Task Force, this change would decrease tax revenue, but is justified because failure to make the change will impede efforts to bring businesses into the city.

Another technical recommendation is that the city conform its tax laws to those in use by federal and state revenue agencies. For example, the city’s definition of unearned income differs from that used by the Commonwealth of Pennsylvania. Again, it makes sense to remove what is an opportunity for confusion and unintentional noncompliance, and to eliminate the expense of getting the taxpayer to fix the problem. Unfortunately, Pennsylvania is one of those very few states that itself uses a set of tax definitions that is nowhere near conformity with the federal tax system. Getting the city to conform to the state is but one step, and getting the state to conform to the federal system would help the city improve tax compliance. In that regard, the Task Force also recommends establishing an office of a Tax Advocate, patterned after the IRS Tax Advocate position. That is a good idea, and one too long delayed. The Task Force also recommends improvements in taxpayer service, increasing competence of tax agency employees, improving coordination with the Pennsylvania Department of Revenue, and consolidating tax enforcement and collection resources. These, too, are good ideas, but one easily can imagine the objections that will be raised by those with vested interests in the present system.

The recommendation for tax amnesty, although patterned after similar programs in other places, is questionable in terms of long-term impact. Tax amnesty tells those taxpayers who have complied, “Fools. Had you cheated, you’d be off the hook. You could delay paying your taxes without paying interest while the cheaters had interest-free use of the money that they should have been paying in taxes.” It tells people who are thinking of following a path of noncompliance, “Not only is there a good chance you won’t get caught, but there’s a chance another tax amnesty program will bail you out in the future.” On the other hand, an amnesty that waives criminal tax penalties for taxpayers who turn themselves in might be worth pursuing.

Though some suggestions in the report are questionable in terms of impact, many others are worth implementing quickly, in part because they reflect common sense and should have been implemented by city officials years ago. There will be debate over the substantive proposals, with discussion beginning when several city council members complained that their ideas had not been included, but that is how progress is made. As the vice-chairman of the task force stated, as quoted in Report: City Should Shift Tax Burden to Property Owners, "[T]he cost of inaction is even more troubling."

The chairman of the Task Force noted, "Recommendations to improve the tax structure have been offered in report after report, but while there have been some improvements, implementation has not been comprehensive due to concerns about the costs and risks of change." It remains to be seen whether this report is just another in the long line of tax reform reports that have been shelved or the beginning of genuine tax reform in a city that for too long has been an example of what happens when tax policy is not well thought out and tax administration is inconsistent and politicized.

How Can Asking Questions Improve Tax and Spending Policies?

One of the friction points in the debate between those advocating major tax reductions or even elimination and those advocating funneling money through government programs is the allegation that government involvement in projects and activities generates higher inefficiencies because of presumed waste. Another friction point is the contention by those trying to reconcile these competing positions that some of the problem arises from taxpayer noncompliance. On Friday there came news of two totally different inquiries, both involving governments on different sides of the Atlantic Ocean, that might illuminate a path to working out the conundrum.

The first article, City Peers Deep into Life at BRT, described what the mayor of Philadelphia recently did with respect to the Board of Revision of Taxes. As I’ve related in a series of posts, the most recent being Revising the Board of Revision of Taxes, the BRT is on the verge of a sweeping overhaul. In Revising the Board of Revision of Taxes and the many previous posts cited therein, I have explored, relying in part on a variety of Philadelphia Inquirer articles, the flaws in the administration of the Philadelphia real property tax, commented on the reasons, suggested ways to make the system responsive and responsible, and challenged political leaders to do what needs to be done. The mayor, according to City Peers Deep into Life at BRT, has decided to ask each employee to describe his or her job “in detail.” Bravo! The mayor claims that he is “trying to figure out how the organization functions and operates.” The joke answer is, “It doesn’t.” Seriously, BRT employees worry that their positions will be eliminated, a justifiable fear considering that many of them hold patronage jobs and at least some of them have little or no expertise in real property taxation. It’s not unusual for someone taking over as chief administrative officer of a business, an agency, a school, or any other organization to try to determine who does what and why, and then to give serious thought to how efficiencies, whether in terms of money, services to customers, or product development, can be improved. It’s clear from reading City Peers Deep into Life at BRT that if a person moving into the CEO’s office of a corporation encountered what goes on at the BRT, heads would roll, figuratively. Reading that latest Philadelphia Inquirer is an essential task for anyone who wants to see how badly things can get when politics takes over a government agency.

The second article, Seeing What Every Liv, Knut, and Terje Earns, describes the issuance by Norwegian tax authorities of the skatteliste for 2008. A skatteliste is the tax list, which discloses the annual income and total wealth of Norway’s taxpayers. The article explains the “media frenzy” that comes with the release of the information. No kidding. Because the information is in digital form, it takes mere seconds to ascertain information about neighbors, friends, celebrities, and anyone else about whom people are curious. This is not a new practice. It had been followed until a few years ago, when a conservative government outlawed the practice, but a change in government brought a repeal of the prohibition. The practice has its advocates and critics. Advocates focus on transparency and social equality they deem essential to the functioning of a social democracy. Opponents see invasion of privacy, impetus to criminals seeking worthwhile targets, and inspiration for playground bullies to taunt classmates whose parents are not as well-off as their own and busybodies to question neighbors about their lifestyles.

So would the collection of tax and government spending become more efficient and less objectionable if the nation started asking some tough questions? Does it make sense to ask every federal, state, and local government employee to describe in detail what he or she does? Would it make sense to ask supervisors and co-workers the same question not only of themselves but of others in the office? Would that not make it easier to clear out the deadwood in terms of inefficient programs, unproductive employees, and other questionable investments of taxpayer dollars? Ought not taxpayers, who are in some sense the employers, know what they’re paying people to do? Understandably, one would not ask for the release of national security information, the names of suspects being investigated, the details of information being disclosed in grand jury rooms and military policy meetings, but would it not create pressure on the Congress to take more responsibility for its funding decisions if it turned out that in some offices 10 people were being paid to do what 3 people could do?

And does it make sense to disclose to the public what people report on their tax returns? Unquestionably, whatever the folks in Norway may have decided to do, the cultural tradition in this country, and probably in many others, is that one of the most impolite questions to ask of someone is how much they earn or how much they are worth. Yet the salaries of many people are public knowledge. In some states, the compensation paid to public employees, including faculty at state universities, is included in legislative budget proposals. The salaries of many public officials are in the public record. Even in the private sector, the salaries of the tax-exempt organizations’ five highest-paid employees are reported to the IRS on forms available to the public (and that will soon change to include compensation information on many more employees of those organizations). Filings with the Securities and Exchange Commission include salaries for certain private sector corporate employees. The salaries of many professional athletes are tossed about in newspapers, on blogs, and in digital message board discussions. Somehow Parade magazine manages to use these sources, and others, to report periodically on what Americans from a wide array of locations and careers are earning. There even are books listing the names and salaries of America’s millionaires, but one ought not assume the information is correct.

It’s understandable why some people would not their salaries or net worth disclosed. It’s easy to construct scenarios in which people’s behavior would change if they knew another person’s income and wealth, and in which a person’s own behavior would change if they knew that everyone else knew their income and wealth. Excuse the cynicism, but imagine what the dating world would be if people walked around, in effect, with name tags that included income and wealth. No thank you. Imagine the sort of questions asked of public officials who disclose income and related information, such as charitable contributions, being asked of every citizen. Would not churches with policies of tithing find themselves dealing with congregational murmurs about the giving habits of their members? My biggest concern is that the numbers disclosed by the government in Norway are numbers provided by taxpayers, so there’s no assurance that the figures would be correct. The person trying to hide income from someone else is probably going to try to hide it from the government. On the other hand, this sort of disclosure might cause more instances of what happened thirty years ago in the Washington, D.C., area, when neighbors in a neighborhood of modest homes and lifestyles noticed one house where a collection of high-end luxury vehicles started turning up. Inquisitive neighbors did not call the police or FBI, they called the IRS (it’s D.C., remember) and it turned out they had uncovered a federal employee who was embezzling from the agency for which he worked. In other words, disclosure of income and wealth data (although the latter doesn’t show up as such on income tax returns) might shame Americans into full tax compliance, which we know would cut significantly into the federal budget deficit. Wouldn’t it be interesting to see who manages to get special low tax rates for huge portions of their income?

If people’s income were to be disclosed in Norwegian fashion, the questions would turn full circle. It would not be long before people turned to one another and asked, “So what do you REALLY do?” and asked for an answer that was “in detail.” The process could be educational. We could learn about jobs that appear easy but aren’t, jobs that appear difficult but are easy, and all sorts of other information that would bring transparency that strengthens the nation, its governance, its economy, its tax policies, and its work ethic. But it isn’t going to happen. At best, the proposal could serve as a bridge to bring together both sides of the Congressional political aisle, reminding the nation’s leaders that we do have things in common. Perhaps transparency and strength, wisdom and responsibility could take off from that discovery. Perhaps if the nation wants the same health care coverage Congress gets, it could subject itself to the same financial disclosure rules with which members of Congress must comply. Perhaps that’s as good a question to ask as is what do you do and how much do you make. Perhaps.

Getting Ready for More Tax Errors of the Ominous Kind

Thanks to Paul Caron’s TaxProf Blog post, I found my way to The Report of the Treasury Inspector General for Tax Administration, Ensuring the Quality Assurance Processes Are Consistently Followed Remains a Significant Challenge for the Volunteer Program (Sept. 15, 2009). Fancy title aside, the report examines “whether taxpayers receive quality service, including the accurate preparation of their income tax returns, when visiting Internal Revenue Service (IRS) Volunteer Program1 sites.”

The news isn’t good. The Treasury Inspector General for Tax Administration (TIGTA) sends auditors to Volunteer Income Tax Assistance( VITA) and Tax Counseling for the Elderly (TCE) sites to have tax returns prepared. The auditors presented 49 returns, and only 29 were properly prepared. That’s 59 percent. Had the auditors filed these test returns, 17 taxpayers would have missed out on a total of $4,318 in tax refunds and 3 would have received a total of $4,575 in unwarranted refunds. The 59 percent accuracy rate represents a 10-point decrease from the 69 percent rate achieved during the previous filing season.

What’s going on? According to the TIGTA report, the people trained by the IRS or by others using IRS training materials “do not always follow required procedures designed to assist in the accurate preparation of tax returns.” We’re told that “some volunteers did not consistently use the required intake and interview process or perform a quality review to ensure that an accurate tax return was prepared.” We’re also told that “the IRS-developed intake sheet was not effective to ensure that taxpayers received the additional property tax deduction when appropriate.” To me, this seems to indicate that somewhere along the line the people “on the front line” preparing tax returns either lack required skill sets, have been short-changed in training, aren’t properly supervised, don’t know how to pay attention, are careless, or are afflicted with some combination of the preceding problems. Whether some, none, or all of those deficiencies are the responsibility of the IRS is problematic.

The IRS has been aiming for higher quality. According to TIGTA, the IRS has implemented a “100 Percent Quality Review” of every volunteer-prepared return, schedules anonymous visits along the same lines used by TIGTA to gather information for its report, conducts “Quality Statistical Sample (QSS) Reviews,” and does “Post Reviews of 100 percent of QSS Reviews.” Yet TIGTA determined that “IRS QSS reviewers did not consistently follow required procedures” and that “[p]rocedures were not consistent from site to site and did not always conform to applicable guidelines in place to ensure the effectiveness of the tax return review process. “ A random sample by TIGTA of “Post Reviews showed that 6 (14 percent) QSS Review files lacked sufficient taxpayer information to support the reviewers’ conclusions.” As a result, missing information in the files “could cause the IRS to report incorrect accuracy rates.”

But the IRS also argues with the TIGTA results. It claims that when it sampled return preparation, the error rate was only 21.5 percent and not 41 percent. TIGTA notes that the IRS analysis rests on a much larger sample size, but though larger sample sizes are expected to be “more reliable,” one must consider that “improvements are needed to the quality assurance process used to monitor program effectiveness before accuracy rate results can be considered reliable.” In other words, not only are there accuracy problems in the returns being prepared under IRS supervision, there are accuracy problems in the processes being used by the IRS to determine if there is accuracy in the return preparation.

The IRS replied that the decline in accuracy from 69 percent to 59 percent reflects the inclusion by TIGTA of a “scenario that is not a traditional issue for the volunteers.” TIGTA rejoined that the scenario involved a new tax law topic that the IRS had included in its training programs. The IRS claim isn’t unlike the student who complains that a grade isn’t a true measure of the student’s competence because one of the examination questions involved something that was new, even though the person teaching the course took time to focus students’ attention on the issue. Tax law being what it is, there always are changes when a new tax season rolls around, so there always is at least one “scenario that is not a traditional issue.” The goal for tax return preparers is to be competent with respect to current, not traditional, tax law.

The IRS also explained why it could not track accuracy rates on a site-by-site basis. Why? It lacks the resources. In all fairness to the IRS, this one, like so many other problems with tax law and tax administration, must be attributed to its cause, the Congress.

It’s not just IRS-trained volunteers who are making mistakes. IRS employees are falling short. For example, TIGTA also recently released its Evaluation of the Planning, Computation, and Issuance of the Recovery Rebate Credit (Sept. 9, 2009), in which it disclosed that more than a quarter million taxpayers did not receive payments because of IRS errors, and almost 150,000 taxpayers received payments for which they were ineligible because of IRS errors. And that’s just one of the thousands of exclusions, deductions, credits, and other items that the IRS must handle. Thanks again to Paul Caron’s TaxProf blog for putting me in touch with this report.

Why does all of this matter? It matters for two reasons. One reason is the obvious one, the one that concerns TIGTA and anyone else paying attention. It is unconscionable that 41 percent, or even 21.5 percent, of people turning to IRS-trained tax return preparers for help in doing their tax returns to end up with an outcome that is wrong, and often way wrong. It just isn’t right. The other reason is one that causes me much more concern. It’s the attempt to institutionalize government-prepared tax returns, with a burden on taxpayers to audit those proposed returns to ascertain if they are correct. My previous criticisms of the “Ready Return” and its variants, which appear in Oh, No! This Tax Idea Isn't Ready for Its Coffin, and the previous posts cited therein, are based in part on a concern that huge numbers of taxpayers will end up with erroneous returns and, despite having a theoretical opportunity to review the government-generated return, won’t find the errors because they cannot afford to hire someone with the requisite knowledge, understanding, and experience to do the job. Perhaps these folks will take their Ready Returns to IRS-trained volunteers, where they have a 59 percent chance that the errors will be spotted. Worse, perhaps they will be told to challenge things that turn out to be correct. As I noted earlier this week in Why the Nation Needs Tax Education, “Part of the problem is that even some employees of revenue agencies, including the IRS, don’t understand tax law or understand it insufficiently to get it right enough of the time.”

The solution, of course, is a tax system that does not provide as many traps for the unwary, opportunities for error, and unwarranted complexity as does the current arrangement. Until that happens, stories of mistake-filled returns, erroneous refunds, audit blunders, and other failures will multiply, and the resilience of a tax system built on self-compliance, which requires taxpayer confidence in the system’s fairness and reliability, will weaken to the point of collapse.

VAT Proposal Problematic Beneath Deceptive Surface

On Sunday, the Philadelphia Inquirer printed an editorial that advocated enactment of a federal value-added tax as a source of revenue to fund health care reform. The authors argue that because slowing the growth of health care costs will take time, the only way to cover the cost of extending coverage is to enact a tax to pay for the shortfall. Though the concerns that triggered the article make sense, the proposed solution is not the repair that the federal revenue system requires.

The authors contend, “There is no way to restore this nation to fiscal health without higher taxes.” They’re correct. The sorts of budget deficits that have been racked up during the past 18 months by the federal government threaten the survival of the nation. That’s not hyperbole and I’m not alone in that assertion. But the authors then argue that the higher taxes must be enacted “for the middle class as well as for the rich.” Why? What created this mess are the tax cuts for the rich. Those who argued for, and got, those tax cuts claimed that by reducing their tax burden they would repay the nation two-fold or three-fold or whatever-fold because of some theory called “trickle down.” There’s been trickle down on the unwealthy but it hasn’t been economic betterment. It’s time for the beneficiaries of unwarranted and unwise tax cuts to pay the piper. Bringing the middle class into the mix simply opens the door for the lobbyists employed by the wealthy to make certain that the middle class gets the short end of the stick.

The authors correctly note that health care reform will cost money, that cutting health care costs or even the rate of increase in those costs will happen, if it happens at all, over a long period of time, and that Medicare faces more financial stress as the number of retirees increases. Each of these challenges deserves separate attention. Some sort of revenue injection into the health care system, whether increased premiums or publicly-financed cost defrayals, is required. Cutting health care costs and trimming the rate of increase of those costs isn’t a tax issue. The Medicare issue requires changes in the definition of benefits, including raising the age at which individuals are eligible for Medicare coverage, and cleaning out the waste, corruption, fraud, and inefficiencies in the system.

The authors also make a profound statement when they tell us, “The dirty secret is that the revenue generated under current tax laws cannot pay for the government services – health care and everything else – that Americans want for their children, their parents ,and themselves.” Bingo. Haven’t I been arguing that point since the day this nation went to war with leaders who claimed that there was no need to raise taxes to pay for the war? Is it not fiscal insanity, and decision-making that puts the national existence in jeopardy, to put the preservation of tax cuts for the nation’s elite above the well-being of its citizens? Someday the nation will figure out that the biggest economic cost of the current war is not the lost equipment, the corporate profiteering by the elite and their friends, and not the economic disadvantages of international disapproval, but the collapse of the American economy. There’s still time to reverse this outcome, but it requires rapid and courageous decision making. What are the odds of that happening, considering what we see transpire in the nation’s capital day after day?

The authors, though, take a wrong turn when they argue that tax increases should be enacted now but phased in slowly. There’s no time to wait. The longer the nation waits to deal with the deficit, the more quickly the nation will spiral into the black hole of no return. It’s bad enough the unwarranted tax cuts of almost a decade ago were enacted, it’s worse that they weren’t rescinded when war broke out, and it’s outrageous to postpone the day of reckoning on the theory that requiring the financial elite to give back what they should not have had in the first place will cause economic disaster. The current economic disaster arose in part because the promised benefits of cutting the taxes on wealthy citizens never materialized, and it’s foolish to permit the same sort of flawed thinking to carry the day when it comes to unraveling the mess to which that flawed thinking has already contributed.

The authors, after taking that wrong turn, then take their good idea of fixing the tax mess and drive it off the cliff. They argue that “Congress should enact a value-added tax.” In describing for their readers what it is, namely, “the equivalent of a broad-based sales tax on all goods and services,” though that’s not quite what it is, they fly right by all of the defects and flaws inherent in sales-based taxes. Sales taxes are easy targets for lobbyists. Consider the example discussed in Another Step Toward Elimination of All Taxes, which involves a sales tax exemption for helicopters. Or consider the questions raised in Tax as a Measure of Values, the latest in a series of posts criticizing the Pennsylvania legislature for subjecting cigarettes and cigarillos but not cigars or smokeless tobacco to the state sales tax, and for carving out sales tax exemptions for tickets to sporting events while imposing the sales tax on tickets to cultural events. Do the authors of the editorial believe for one moment that the Congress would enact a VAT that has no exemptions, or that if did enact such a statute that it would remain untouched by lobbyists as time moved ahead?

The VAT proposal suffers from an even more serious flaw. It would shift the tax burden to lower and middle income individuals in terms of the percentage of income turned over to the government under the VAT. The VAT, in other words, is a regressive tax. A family of four earning $50,000 and spending $40,000 (after paying other taxes of $10,000) would pay $4,000 under a 10% VAT. That’s 12.5% of income. In the meantime, a family of four earning $100,000, after paying $25,000 in other taxes and setting aside $10,000 in savings, would spend $65,000, thus incurring VAT liability of $6,500. That’s 6.5% of income. When states enact sales taxes and encounter this regressivity phenomenon, they enact exemptions for food, clothing, and shelter, or other so-called “necessities.” Thus, assuming that both families are spending $30,000 on food, clothing, and shelter, the $50,000 family would pay a VAT of $1,000 (10% of ($40,000 - $30,000)), and the $100,000 family would pay a VAT of $3,500 (10% of ($65,000 - $30,000)). That’s an 2% of income for the $50,000 family and 3.5% of income for the $100,000 family. The fun begins, though, when it’s time to define food, clothing, and shelter. Are designer jeans “necessities” within the clothing exemption? Are cigars “necessities”? What about helicopters? Others have written extensively on the disadvantages of sales taxes, and there’s no need to repeat them here.

Once upon a time, it would be amazing to see how defenders of tax breaks for the elite and special low tax rates for the types of income constituting much of the elite’s overall wealth increases rush to offer a substitute for the repeal of that special treatment. Now, it’s no longer amazing. It’s par for the course. It’s disappointing. It’s deeply troubling. In terms of what it means for this country’s future, it’s dangerous. How much longer will the failed promises of the past continue to find takers among those charged with the stewardship of the country?

Why the Nation Needs Tax Education

From time to time, more often than not, I point out the need for American citizens to become educated about the federal income tax system. My justification for that proposal is the combination of a fact and a premise. The fact is that very few Americans understand the federal income tax system. The premise is that only by understanding the tax system can Americans not only pay no more and no less than what they legally owe in taxes but also comprehend the sorry state of national politics and economics that threaten the well-being of the nation and its citizens. To a slightly lesser extent, I can make the same arguments with respect to state and local income taxes, and even taxes other than income taxes. For the moment, the federal income tax system is more than enough, and it’s the biggest of the bunch.

Though I could invest some words in defending the premise for my advocacy of more tax education for Americans, I want to focus on what I consider to be the fact that underlies my proposal. It is frightening how ill-informed Americans are about federal income taxation. Granted, there’s just as much misinformation floating about with respect to other areas of life, particularly the sciences. What makes it all appalling is that Americans possess the capacity to be well-informed, but many have chosen to devote their thinking, knowledge acquisition, comprehension processing, and memory brain cells to matter of far less import than national economics and fiscal sustainability.

Only a few days ago, in First Check the Tax Facts, I commented on one example of incorrect tax information acquiring a life of its own and replicating itself throughout the nation thanks to the pervasiveness of the internet. Now it’s time for another one.

In Will Obama pay taxes on his Nobel?, Pat Regnier explores the tax consequences of Obama’s announced plans to donate the money he will receive as a Nobel Prize recipient. The article contrasts assertions made by several bloggers, one of who doesn’t quite get it and another of whom directs readers to IRS tax instructions. It would help, of course, if the analysis took itself to the source, namely, Internal Revenue Code and Treasury Regulations provisions. Those are far, far more authoritative than are IRS tax instructions. No matter, provided the instructions are correct, as they are in this instance, the article’s readers are getting a good education.

What troubles me are some of the comments posted in response to the article. They can be found at the same location as is the article.

The first comment is that “The money from Nobel prizes is ‘TAX FREE’.” That’s not quite right. The money from Nobel Prizes is excluded from gross income if certain conditions are satisfied, principally, that it be transferred directly to a qualifying charity or government. A person who receives a Nobel Prize and keeps the money must include it in gross income.

Another comment alleges that “This is still unclear.” Hardly. Section 74(c) is quite clear, and the Regulations and IRS instructions tell taxpayers exactly what they need to do to avoid including the Nobel Prize money in gross income. The same comment then proposes that “Such prizes should not be taxable.” There’s no absolute right or wrong in the tax policy argument that this portion of the comment raises, though once an exception is made for one type of prize, then recipients of other prizes will also seek special treatment. The arguments in favor of including prize amounts in gross income unless they are transferred directly to a qualifying charity or government outweigh the argument that somehow Nobel Prize winners are more deserving of special tax treatment than are recipients of other awards. The weakness of the argument shows up in the comment that followed, “This shouldn't be taxable. Recipient of this prize are persons who has worked hard and should be able to have a tax break.” If this logic were applied uniformly, anyone who has income from working hard would not be taxed. Aside from trying to identify those who work hard and those who don’t work hard, advocates of such a taxation policy would need to figure out how to deal with the consequences of eliminating most federal income tax revenues.

Yet another comment disagreed with the conclusion in the article, suggesting, “So don't say that the IRS doesn't come after people for money even though they give it away and don't even keep it.” Unfortunately, section 74(c) provides that the IRS cannot “come after” someone who satisfies the conditions of that statutory provision, which has absolutely nothing to do with the Joe Louis story that highlights the beginning of the comment. Still another comment claims that the “award was given to [Obama] for what he will ‘accomplish’ in the future . . . ” and that, accordingly, “[t]he award does not meet this criteria [the statutory requirements” and “fails the second statement.” The “second statement” to which the comment refers is one of the statutory requirements repeated in the IRS instructions included in the article: “You are not required to perform substantial future services as a condition for receiving the prize or award.” Nowhere in the Nobel Prize award is a requirement that any recipient perform future services, let alone substantial future services.

Fortunately, several of the comments are nicely articulated expressions of current tax law. Which ones? The ones that I didn’t critique and that addressed tax, rather than other, issues. I particularly liked the comment that addressed two previous comments by explaining, “But Damien (and Travis) the whole point is that there IS a provision in tax code that allows Obama, or anyone else receiving a similar kind of prize, to not include it in income provided he gives it away in the proper manner.” The person writing this comment understands this part of the tax law. I didn’t say no one understood the tax law. But too few do.

The nation is becoming, if it hasn’t already become, a country inhabited by individuals who understand so little about the federal income tax system that they don’t know if they are paying what they should be paying, more than they should be paying, or less than they should be paying. They rely on the accuracy and competence of tax return preparers and tax preparation software. As we know, <begin sarcasm> all tax return preparers are honest and totally competent and computer software is flawless</end sarcasm>. With the resurgence of the “Ready Return” proposal, which I criticized in Oh, No! This Tax Idea Isn't Ready for Its Coffin, and the previous posts cited therein, huge numbers of taxpayers are at risk of having the government prepare their tax returns, with an option for those taxpayers to examine what the government generates, identify any errors, and make corrective adjustments. And, as we know, <resume sarcasm> the government doesn’t make mistakes </end sarcasm>. Part of the problem is that even some employees of revenue agencies, including the IRS, don’t understand tax law or understand it insufficiently to get it right enough of the time.

Most people who don’t understand the federal income tax system are in that quandary because they haven’t had the opportunity to learn about it. In some respects, it’s not their fault. Thanks to the Congress, which ultimately is responsible for the incomprehensibility of the federal tax law, and state legislatures, which have increasingly muddled state tax law, people are reluctant to study tax law, and educators are afraid to make it part of a general curriculum for K-12 students or for college students generally. Although most of us can get by in life without understanding quantum physics or the technical analyses of the first law of thermodynamics, tax law affects everyone, from cradle to grave. Understanding the basic principles should be a requirement of participation in the civic debate and the selection of those who enact and amend tax law. There’s a deep need to end too many years of the ignorant electing the ignorant.

You’ve Gotta Give ‘Em (a Tax) Credit?

Lobbyists are quite skilled at persuading legislators to fork over the citizens’ money for the pet projects of the lobbyists’ clients. A good example of this ploy is the Pennsylvania tax credit for film making, which survived an attempt by some legislators to repeal it during the recent Pennsylvania budget negotiations. According to this very informative Philadelphia Inquirer article, the credit survived, though it will be reduced for several years before returning to its present level.

The credit is designed to persuade movie production companies to make films in the state. The credit equals 25% of a company’s qualified film production expenses, subject to several limitations as described in the legislation. According to its backers, the credit has generated $300 million of spending in Pennsylvania by film production companies and has created 4,000 jobs. The 45% cut-back in the amount of the credit provided by the current budget is expected, according to the credit’s advocates, to cost “45 percent fewer jobs.”

There are three problems with the tax credit. One involves a factual assumption, one involves the appropriate role of tax credits, and one involves horizontal equity among business ventures.

The first problem with the credit is that its backers assume that without the credit, the film companies that film in Pennsylvania would not do so. Trying to prove that point, one way or the other, is very much a matter of proving a negative. If a movie’s story line involves Pennsylvania, it usually is cheaper to film in the state than it is to have the production crew manufacture a replica somewhere else. The threat from lobbyists that doom and gloom await the citizens of those states whose legislatures that don’t give the lobbyists’ clients the tax breaks they seek proves too much. Should we believe that all jobs will disappear if there are no special tax credits enacted for the various interest groups that come knocking at the legislative door? If the backers of the credit are correct in their theories, perhaps a credit for 1,000 percent of production costs would bring every film making company in the world to Pennsylvania, creating 500,000 jobs, but also the need for more highways, more schools, more hospitals, more police, more fire fighting equipment and personnel, more airports, and a wide array of other demands on government services. Oh, and I’m sure the state’s citizens will be pleased with even more street closures, traffic jams, entrance refusals at sites being used by film companies, and the other inconveniences suffered by all for the benefit of a self-selected special few.

The second problem with the credit is what its enactment says about the state’s ability to attract movie makers, or, for that matter, any business, based on the merits of the state’s natural and human resources. Pennsylvania offers scenic views, dynamic cities, vibrant small towns, sports venues, cultural attractions, historic sites, a full range of weather and temperature, and just about everything else that a movie maker might need. Yet Pennsylvania acts as though no film production company will show up without being bribed. And bribe is the next word. The situation isn’t unlike that of a guy who decides that the only way to persuade a woman to go out on a date with him is to send some money her way. There’s an amazing lack of self-confidence involved, and the lobbyists play on it. What are film companies going to do? Take their operations to a state that has a double-digit income tax, thus causing its employees to ask for higher wages to cover the increased tax burden, and thus making the production more expensive? Head to a low-tax state where the quality of infrastructure and the overall education levels and skills of the residents reflect the consequences of minimal tax policies? True, if a movie company needs scenes of the Rockies, Pennsylvania won’t be able to oblige, but neither will Florida, Iowa, or most other states. You are what you are.

The third problem with the credit is the most serious one. Even assuming that the credit generates jobs that would not otherwise exist, and even assuming that the credit makes up for whatever Pennsylvania deficiencies would otherwise deter film companies from showing up, why is the credit limited to one industry? Cannot one say the same about almost every other business? If Pennsylvania were to offer a credit for 25% of manufacturing expenses to an automobile company, or a credit for 25% of research, design, and salary expenses to a software development company, or a credit for 25% of production expenses to a music recording company, would not those companies also relocate to Pennsylvania and generate thousands and tens of thousands of jobs? If the backers of the credit are correct in their arguments, the industries for which there is no credit already would have left the state. Somehow, other industries prosper without a credit. Why can’t the film industry do likewise? The answer is that it’s a road of less resistance to ask for money from the pockets of Pennsylvanians, a road whose resistance is quite low because too many legislators cave in to the promises and campaign contributions of the industry’s lobbyists.

The movie companies are telling Pennsylvania, “You’re not good enough for us unless you line our pockets with taxpayer money.” Even if they were admitted when they knocked on the legislative door, these companies, after saying that, should be shown the door, just as anyone who says that under other circumstances should be escorted out. Hopefully, this tax credit, and others like it, will be escorted out of the Pennsylvania tax laws.

First Check the Tax Facts

One of the basic principles I try to push into the brains of my tax students is that speculation about laws and outcomes wastes energy unless the facts are known, and unless the rules are understood. One of my former students, now a successful tax practitioner and an adjunct teaching tax at another institution, got the message. I had already known this when yet another bit of proof came along. His mother received an email, which I will share momentarily, and sent it to her son, the former student, for his reaction. His mother earns points for checking things out rather than jumping to conclusions. My former student directed his mother to my posting, State Tax Consequences of Cash-for-Clunkers. What a great way to find new readers! In that post, before digging into the state tax consequences, I noted that the IRS had directed taxpayers’ collective attention to the statute enacting cash-for-clunkers, which made it abundantly clear that there is no federal income tax liability on the rebate.

That doesn’t stop the ignorant from generating erroneous allegations and circulating them by email. Nor does it stop the folks who figure that because it’s in an email, it must be true. Isn’t it obvious why I congratulate my former student’s mother on having the good sense, better yet, the common sense, to determine the tax facts before passing along what clearly is an erroneous email designed either out of ignorance or out of spite and hate?

Here’s the email in question:

"DEMOCRATIC MATH "

Here’s what my friend Peggy in Texas had to say about “Democratic Math”:

It’s worse than that... Ignore all the gas crap, and just look at how the stupid car buyer got taken to the cleaners:

If you traded in a clunker worth $3,500, you get $4,500 off for an apparent "savings" of $1,000.

However, you have to pay taxes on the $4,500 come April 15 (something that no auto dealer will tell you). If you are in the 30% tax bracket, you will pay $1,350 on that $4,500.

So, rather than save $1,000, you actually pay an extra $350 to the feds. In addition, you traded in a car that was most likely paid for. Now you have 4 or 5 years of payments on a car that you did not need, that was costing you less to run than the payments that you will now be making.

But wait, it gets even better: you also got ripped off by the dealer. For example, every dealer here in LA was selling the Ford Focus with all the goodies including A/C, auto transmission, power windows, etc for $12,500 the month before the "cash for clunkers" program started. When "cash for clunkers" came along, they stopped discounting them and instead sold them at the list price of $15,500. So, you paid $3,000 more than you would have the month before. (Honda, Toyota, and Kia played the same list price game that Ford and Chevy did).

So lets do the final tally here:

You traded in a car worth: $3,500

You got a discount of:          $4,500

                                                --------

Net so far                             +$1,000

But you have to pay:        $1,350 in taxes on the $4,500
                                                --------

Net so far:                               -$ 350

And you paid: $3000 more than the car was selling for the month before

                                                 ----------

Net:                                       -$3,350

We could also add in the additional taxes (sales tax, state tax, etc.) on the extra $3,000 that you paid for the car, along with the 5 years of interest on the car loan but lets just stop here...

So who actually made out on the deal? The feds collected taxes on the car along with taxes on the $4,500 they "gave" you. The car dealers made an extra $3,000 or more on every car they sold along with the kickbacks from the manufacturers and the loan companies. The manufacturers got to dump lots of cars they could not give away the month before. And the poor stupid consumer got saddled with even more debt that they cannot afford.

Obama and his band of merry men convinced Joe consumer that he was getting $4,500 in "free" money from the "government" when in fact Joe was giving away his $3,500 car and paying an additional $3,350 for the privilege.

(emphasis added by me).

Throughout the email, the writer claims that the rebate is subject to federal income taxes. That’s flat out wrong. I doubt that “Peggy in Texas” is the author of the email, and I am convinced that the person who wrote this email has remained anonymous because he or she is unwilling to stand up to the challenges brought by people who are in better touch with reality. I invite the author of this email to defend the allegations made in the email. Do I expect the author to accept this invitation? No, the author has already demonstrated an astounding lack of courage to go along with an astounding lack of knowledge, understanding, and diligence.

The writer of the email also asserts that there are state sales taxes and other state taxes, including, presumably, state income taxes, on the rebate. But as I pointed out in State Tax Consequences of Cash-for-Clunkers, most states do not subject the rebate to income taxes, and only a handful of states subject it to sales taxes. Once again, it’s so much easier to fire off unsupported allegations than it is to take time and do some research.

Did auto dealers increase the price of new vehicles so that the rebate simply replaced the discount that the dealer otherwise would have offered? There are surveys indicating that this happened in some instances, and information indicating that in other instances it did not happen. If the rebate moved the car off of the lot, dealers would be better off even if the existing mark-down was left in place. Some dealers may have been more interested in reducing inventory, thus leaving the dealer discounts in place. Others may have seen a chance to grab a windfall by eliminating all, or a substantial portion, of the dealer discount. That’s the free market, yes? Savvy consumers would be expected to shop around, identify the dealers with the best price, and shift business away from the windfall-seeking dealers. Did that happen? No one yet knows with any certainty. Nonetheless, had the government included safeguards to prevent dealers from generating windfalls by eliminating the dealer discount, the same minds that generated the email would have been screaming about the horrors of government regulation of marketplaces, defending the right of automobile dealers to operate in a free market, that is, a market free of government oversight. Yet the same folks who write these sorts of emails (as this is not the only one in circulation), as well as those who agree with those writers, are complaining, in the very same email, about the behavior of unregulated “free” market automobile dealers. I wish these people would make up their minds.

Whether trading in a clunker made sense for a particular individual depended on a variety of factors, but federal income taxation of the rebate was not such a factor, nor, in most instances, were state taxes. Whether sending emails filled with indefensible allegations makes sense can be answered without examining factors. It’s detrimental behavior. When receiving emails that make claims about taxes, do some research or, as my former student’s mother did, check with someone whom you trust and whom you know is educated, knowledgeable, and reliable. In this manner, the garbage emails can be stopped in their tracks.

Revising the Board of Revision of Taxes

There is light at the end of the dreary, depressing, and disappointing tunnel of Philadelphia real property tax assessment and administration practices. The inefficiency and corruption of the current system has reached the point where city political leaders cannot continue the decades-long pattern of speaking platitudes and doing nothing. Though I would like to think that my repeated criticism of the existing arrangement had something to do with what has happened, it’s more likely that the attention drawn to the matter by a series of articles in the Philadelphia Inquirer is what triggered what has happened. Before digging into the current new, permit me to share links to my previous discussions of the topic so that those who are not up to speed on the story can get the background in place before continuing with what must be the umpteenth chapter in the story.

Several years ago, I dedicated at least five posts, some lengthy, to the systemic problems of the Philadelphia real property tax, or, more specifically, the systemic problems in the operation of the Bureau of Revision of Taxes (BRT), the bureaucracy charged with administering the tax. In An Unconstitutional Tax Assessment System, Property Tax Assessments: Really That Difficult?, Real Property Tax Assessment System: Broken and Begging for Repair, Philadelphia Real Property Taxes: Pay Up or Lose It, and How to Fix a Broken Tax System: Speed It Up? , I explained how the pervasive flaw in the administration of the tax was the irregularity, inconsistency, inequity, and inefficiency of the valuation process that generates the amount on which the real property tax is computed. In Not the Sort of Tax Loss Taxpayers Prefer, I explored the particular problems surrounding the Board’s low assessment on property owned by a Philadelphia-based state legislator now serving prison time and the disclosure by the Board that it had lost files associated with the property and its special valuation. In May of this year, in a pair of postings, Inching Closer to a Sensible Philadelphia Real Property Tax Assessment Process, and its follow-up Taxes, Sausage and Politics, I commented on steps that the BRT announced that it was taking to deal with the discrepancies between property values and assessments. Last month, in When Taxes Are Unfair, I addressed the frustrating news that despite announcements trumpeting changes in the system, the BRT had managed to generate thoroughly bewildering and totally inconsistent assessments on thousands of properties.

Late last week, as described in BRT Will Yield Assessment Tasks, the mayor announced that the BRT had agreed to let the city’s finance director take responsibility for the BRT’s operations and to supervise changes in how properties are assessed. Unfortunately, although the work is being shifted to another city office, the members of the BRT board will keep both their part-time positions and the $70,000 salaries that go along with them. That’s no surprise, considering that when asked by the mayor in May to resign, the board refused. The BRT also will handle appeals from property owners unhappy with their assessments. None of that makes any sense. If the work is being shifted to another office, then the money being used to pay salaries to board members with even less to do should be shifted to that other office, so that it can hire people to do what needs to be done. Otherwise, employees already burdened with workloads increased because of layovers triggered by budget woes will have even more work to do. Worse, if the BRT is incapable of getting assessments correct in the first place, why should it be the agency that reviews the assessments generated by the finance office? That’s like letting a person who flunks a pilot’s license test fly the rescue helicopter. As bad as all of that is, the outrageous aspect of the work shift is that the 80 people who hold jobs at the BRT because they have done favors for the two major political parties in the city will keep those patronage plums. Understandably, the mayor described the assessment responsibility shift as a first step, and perhaps, in all fairness, it will take several steps to clean out the Augean Stables of Philadelphia. The incentive for the takeover by the finance office was last month’s resignation of the BRT’s executive director.

A day after the assessment responsibility shift was announced, Bill Green, a member of City Council, introduced legislation to revise the Board of Revision of Taxes. Technically, as reported in Phila. Council Begins to Reinvent the Defunct BRT, the BRT would be dismantled after assessments for 2010 are finished. It’s safe to say that the legislation, perhaps with amendments, will be enacted, because 15 of the 17 members of City Council co-sponsored the bill. The proposal would create a new Office of Property Assessment that reported to the mayor, and a Board of Property Assessment Appeals. The current version of the bill does not specify what happens to those 80 patronage employees. Nor are the specifics of how members of a new appeals board would be selected or how it would be organized, though under the current version, the Board of Judges would no longer appoint those who hear assessment appeals.

Though I generally dislike sound bite education, Councilman Green managed to utter one that quite nicely summarizes what is about to transpire. “There are instances where reform can be accomplished through minor repairs, and then there are times where it is better to just raze the structure and start fresh. With this bill, Council has fired up its bulldozer." That’s along the lines of Bill Archer’s "pulling the tax code out by its roots" comment. Green’s bulldozing legislation has a much better chance of wiping the slate clean than did Archer’s attempt to clean out the Internal Revenue Code. Many critics of federal income tax reform worry that what would replace the current system would be worse. In the case of Philadelphia’s BRT, there’s no chance that the new arrangement would be worse. Nothing could be worse.

Who Doesn’t Pay Federal Income Tax?

Recently, news reports have circulated data concerning the number of individuals who pay no federal income tax. For example, this CNN report summarizes and comments on the data. What grabs people’s attention, if assorted in-person, blog, and Facebook comments are any indication, is the fact that 47% of households have no federal income tax liability in 2009. Of the 71 million households in this category, more than 63 million are classified as having less than $50,000 of cash income. Though some use the data to support a claim that “half” the nation’s population isn’t contributing to the cost of government, others, including myself, ask how it is that in a nation of multi-millionaires and billionaires there are so many households trying to get by on incomes of, for example, $10,000, $20,000, or $40,000. These are households, so there may be two, three, four, or more people trying to live on rather low incomes.

It is important to note that very few, if any, of the people living in households with no federal income tax liability escape taxation or fail to contribute to the cost of government. These people, if they are employed, are subject to the social security tax. If self-employed, it’s the self-employment tax. If they purchase an item subject to federal excise tax, it’s an excise tax. They pay all sorts of state and local taxes, including sale taxes, real property taxes, and occupation-type taxes. Many pay state and local income taxes. The federal income tax is designed not only to defray the cost of federal government, but also to redistribute income because the market place is inefficient and causes income disparities wholly disproportionate to the value of what the income earner contributes to society.

A more important question is how do we end up with 5.7 million households with incomes between $50,000 and $100,000 of income paying no federal income tax? In some instances it might be the consequences of huge disaster loss deductions or some other outlier, such as the impact of dependency exemptions for a family with a houseful of adopted and foster children, but in some instances surely it is a tax law that provides a select few with special tax breaks. If that’s not disturbing, what of the more than 700,000 households in the $100,000 to $500,000 income range that pay no federal income taxes? If all of those can be explained away as reasonable outcomes, what of the 17,000 households in the $500,000 through $1 million income bracket that have figured out how to have no federal income tax liability? At the top level, there are 6,000 households with income over $1,000,000 that pay no federal income tax. That’s a lot of dependency exemptions, but we know that’s not what’s going on.

An important observation is found in the more detailed information on this issue provided by Roberton Williams in Who Pays No Income Tax? (Tax Notes, June 29, 2009). More than 16% of households with income between $10,000 and $20,000 pay federal income taxes. Ought that be the effect of the federal income tax law? Almost 40% of households with income between $20,000 and $30,000 pay federal income taxes. So the perception that is seen in some of the reactions to the publication of the CNN report, and others like it, reflects overstated and misleading generalizations. To conclude that “low-income people don’t pay federal income taxes” says too much and too little. Somehow we have a nation in which some low-income individuals pay federal income tax while some high-income individuals do not. That is a flaw in the federal tax system. It needs to be fixed. If this isn’t sufficiently convincing, read on.

An even more important question is what percentages of income do the low-income households and the high-income households shell out in total taxes? This question is important for two reasons. The obvious one is that when all taxes are considered, the tax burden on lower income households is more than what the “47% don’t pay” table in the CNN report suggests. The not-so-obvious reason is that the focus on households paying zero tax ignores those households, particularly those in the upper income brackets, who pay a few dollars or even a few hundred or thousand dollars of federal income taxes. How many high-income households escape the “paid no federal income tax” stigma but end up paying taxes equal to a very small fraction of income?

Though it is tempting, and easy, to criticize the high-income taxpayers who pay no federal income tax, if they are not committing fraud, they ought not be the focus of the criticism. The focus should be on the handful of taxpayers who, with their lobbyists, have engineered the special low rates for the types of income prevalent among high-income taxpayers, though the others who go along for the ride aren’t totally free of complicity. The focus also should be on a Congress that just doesn’t get it, that just doesn’t understand what Americans generally consider acceptable in terms of tax policy. The middle-income taxpayers, who generally bear the highest marginal rates (because of phase-outs and other gimmicks in the tax law) aren’t so much annoyed by the tax breaks and low rates available to low-income taxpayers who are trying to scrape by in life, as they are by the huge handouts bestowed on high-income taxpayers who promised economic nirvana but delivered an economic agony that afflicts the lower and middle income classes far more than it does those upper income brackets.

Until Congress repeals special low rates for capital gains and dividends, repeals the phase-outs, increases the standard deduction and personal exemption amount, restores progressivity to the tax rates, eliminates the special breaks such as depreciation for appreciating property and deductions for depletion that exceed investment, and imposes rigorous information reporting, these inequities will persist. The first step in trying to create popular support for genuine tax reform is education with respect to what the current system does. That’s the primary reason I wrote this commentary. Share it.

Another Step Toward Elimination of All Taxes?

A few days ago, a Philadelphia Inquirer article explained that one of the provisions in the Pennsylvania budget deal that is getting a rough reception among legislators and citizens is an exemption from the state sales tax for helicopters. Although, as described in Tax as a Measure of Values, legislators have argued over the appropriateness of taxing cigars, tickets to cultural events, and natural gas drilling, they all seem to be on board (sorry) this tax break for helicopters. How does this come to pass?

It seems that many legislators, and the governor, think that by exempting helicopters from the state sales tax, they will provided the decisive factor in Sikorsky Aircraft Corporation’s anticipated expansion of its Pennsylvania-based manufacturing, bringing 300 new jobs to the state. In terms of tax effects, the arithmetic is as follows. Helicopter sales in Pennsylvania during 2008 generated less than $100,000 in sales-tax receipts. The 300 new jobs are estimated to generate $500,000 in additional income tax revenues. Where does this number come from? A spokesperson for the Senate Majority Leader described the 300 jobs as having an average salary of $60,000. Keeping the numbers simple, the Pennsylvania income tax on $60,000 of salary is $1,800. If one multiplies $1,800 by 300, one gets $540,000. What’s missing from the equation, though, is a reduction to reflect the additional expenses that state and local governments face when a manufacturing facility is built or expanded and 300 workers begin using public infrastructure to get to, and to carry out, their jobs. These jobs most likely would go to existing residents who need jobs, and thus would not trigger the economic benefits that arise when 300 workers arrive from some other place and require construction of 300 new homes and related facilities. Also missing from the equation are the millions of dollars in sales taxes that would be collected if Sikorsky was persuaded to increase its activities in Pennsylvania without getting a sales tax exemption. Perhaps offering Sikorsky a genuine reform of the business tax structure in Pennsylvania would do the trick, especially because it is long overdue.

But there’s a problem. Sikorsky isn’t the only helicopter manufacturer in Pennsylvania. If it gets an exemption, ought not similar treatment be given to Boeing? And what of manufacturers who crank out (sorry) small planes? Last year they tried for a sales tax exemption, but failed. Is there some sort of essential difference between small airplanes and helicopters that justify treating them differently for sales tax purposes? As noted in Sales Taxes as Logically Illogical, legislators who can justify taxing Twix candy bars differently from Hershey Bars surely can find ways to distinguish helicopters from small airplanes for sales tax purposes. As for treating Sikorsky differently from Boeing, this sort of thing goes on constantly. If Boeing makes the right moves, and says the right things, it, too, will get to fly along with the sales tax break.

Sikorsky makes it clear that if the sales tax exemption does not pass, it very well may end up moving its operations to some other state, or at least place the expansion elsewhere. The legislature is, in effect, being held hostage. The existence of a helicopter manufacturing facility is not essential to Pennsylvania residents the way, for example, grocery stores are. No matter what is done with sales taxes, someone will continue to operate grocery stores in Pennsylvania because people need food. Ultimately, by exempting the non-essential goods and services out of fear that their providers will locate elsewhere, and taxing essential items because they’re the only things left to be taxed and there’s a guaranteed market, the sales tax is evolving toward its policy antithesis, namely taxation of essential items and exemption of non-essential goods and services rather than taxation of non-essential items and exemption of essential goods and services. It’s much easier, isn’t it, to threaten the removal of manufacturing jobs than it is to threaten a boycott on food purchases? Not many Pennsylvania residents are prepared to go on hunger strikes to make a tax point.

The argument that by eliminating sales taxes on helicopters, more jobs will be created and, in turn, generate much larger income tax revenues runs into a problem when taken to its logical end. Why not eliminate sales taxes on everything? Surely, if sales taxes on automobiles were eliminated, cars that would otherwise not get sold would be sold, generating more jobs at dealerships both in the sales and repair departments. Repealing sales taxes on auto parts and auto manufacturing services should bring auto manufacturers into the state, generating more jobs and more income tax revenue. Would not repeal of sales taxes on cigarettes cause people to purchase more cigarettes, thus tempting tobacco companies to locate facilities in the state, and thus increasing income tax revenues? In theory, and that’s all the Sikorsky proposal is, a theory, every sales tax exemption would bring income tax revenues. Once the sales tax exemptions subsume the general rule, the next step is the income tax. Surely, reducing income tax rates would cause economic growth that would trickle down to all economic segments of society, such that over time bringing the rate down to zero guarantees economic nirvana. Do you detect some sarcasm here? That theory has been tried. It failed. So, too, has the gimmick of offering developers, manufacturers, and other entrepreneurs tax breaks ranging from real property taxes to income and sales taxes, on the “guarantee” that doing so will be good for the surrounding community. In almost every instance, the burden on the community of increased traffic, growing demand for government services by the business in question, failure of the business to follow through on its promises of jobs and other returns to the community, has left the locals in dire straits long after the out-of-towners have moved on. Ask Philadelphia how well the tax breaks for real estate developers and companies like Comcast have played out. The city’s economic situation turned out just fine, didn’t it? Yes, you’re noting a wee bit more sarcasm. Sorry, I don’t buy the “be nice to us now with tax breaks and we’ll be nice to you later” song and dance routine. It doesn’t work with taxes just as it doesn’t work with life generally.

It boils down to this. Eliminating taxes for a specific person or company definitely helps that person’s or company’s bottom line. But if all taxes are eliminated, that person’s or company’s bottom line suffers because they now need to pay for what formerly was provided by the government with those tax revenues. So the only way tax elimination works for a particular person or company is to limit the repeal to that person or company while continuing to tax everyone else. The problem with this approach is that it’s nothing more than having others bear the burdens that the person or company should bear. Getting others to bear the person’s or company’s tax burden is not unlike getting others to do the person’s or company’s work. For free. Think about it.

Tax as a Measure of Values

So what does it mean when politicians decide that sales taxes should be imposed on tickets to cultural events but not sporting events, that sales taxes should be imposed on cigarillos and cigarettes but not cigars or smokeless tobacco, and that taxes should be imposed on raffles and small games of chance sponsored by fire companies and fraternal organizations but not on natural gas drilling? What does it mean, as revealed in State Budget in Jeopardy, when a group of legislators, all affiliated with one party, claim that they “cannot support” sales taxes on cigars and smokeless tobacco or taxes on natural gas drilling?

This question has risen to the surface of the ongoing stalemate afflicting the Pennsylvania budget process. In Taxes, Tobacco, and Tickets: Punching Through the Smoky Haze, I commented on reports that political leaders in Harrisburg were optimistic that a deal had been reached and would be passed. Though leaders of the various legislative caucuses and the governor had come to terms, rank-and-file legislators have balked. The principal reason is the selection of some transactions as subjects of taxation and the exemption of other things from taxation. When news of the deal between the governor and legislative leaders was announced, a wave of consternation and objection swept through volunteer fire companies, patrons and supporters of cultural events, and employees and the many volunteers who devote their time and efforts to the operation of zoos, the presentation of community theater performances, and the maintenance of museums.

So when the deal reached the state House, a committee rewrote the tax portion. It eliminated the proposal to impose taxes on cultural events and civic organization raffles. It substituted a higher rate in the proposal to subject casino table games to tax, and it imposed a tax on cigars, smokeless tobacco, and natural gas drilling. This move by Democrats on the committee triggered threats from Republicans. They warned that the change would cause the agreement to implode. The governor warned that if the deal goes down, legislators will need to compromise. Compromise was not the order of the day, though, because, as noted in Rendell Chides Democrats for Undoing Budget Deal, the House approved the committee's rewrite. The governor, whose position on the tax questions aligns with the House version, nonetheless claims that the legislature is bound by the deal reached by the party leaders. Yet rank-and-file Democrats, and even some leaders, note that the House version of the legislation raises the same amount of revenue and spends the same amount of money as does the deal reached by the governors and some legislative leaders.

In the meantime, Republicans claim that if the deal as written fails, it’s “back to square one.” The Senate Majority leader claims, “[I]t is obvious that you can not simply swap out one source of revenue for another.” To that assertion, I ask, "Why not? What is so sacred about cigars? Why are cultural events more deserving of being taxed than sporting events? Are cigars less of a burden on society than cigarettes and thus worthy of sales tax exemption? Are cultural events more harmful to society than sporting events and thus a more defensible source of tax revenues?"

Another legislator stated, “We have an agreement, and let’s stick to it.” But who is the “we”? The legislators who are responding to angry phone calls, letters, and emails from constituents didn’t agree to the deal. What law or norm requires them to assent quietly to what a few legislators have worked out with the governor? Legislatures can reject proposals that come out of committee, so why can’t committees and entire legislative bodies reject deals made in the back rooms? Not only are rank-and-file Democratic legislators repudiating the deal, rank-and-file Republicans are objecting to the spending levels in the deal and to the enactment of any new taxes.

The people of Pennsylvania aren’t thrilled about the budget deal as originally crafted. According to a Quinnipiac University poll, only 31 percent of those polled like what was negotiated, whereas 37 percent disapprove, and 31 percent aren’t sure. Surprisingly, 27 percent blame the governor for the stalemate whereas only 21 percent blame Republicans legislators. Yet only 9 percent blame Democratic legislators and 30 percent say “they are equally to blame, though it’s not clear whether the governor is included in the “they” who are equally to blame. When asked about budget cuts, 43 percent wanted to cut even more from spending whereas 44 percent concluded that more cuts would jeopardize vital state services. Since July 21, the percentage of those polled who blame Republican legislators has risen from 17 percent to 21 percent, whereas the percentages who blame the governor or legislative Democrats have fallen.

The people of Pennsylvania also aren’t thrilled about the legislature. According to that same poll, when asked about how the state legislature handles its job, only 27 percent approved whereas 64 percent disapproved. Nor did the percentages vary much across party or gender lines. If the legislature insists on taxing tickets to cultural events and raffles held by volunteer fire companies, but not on cigars or natural gas drilling, the approval rating surely will continue to fall. Somewhere along the line, the values reflected by legislative decisions are deviating more and more from the values that matter to the people of Pennsylvania. That’s not good.

Is It Going to Get Worse than Taxation?

About a week ago, in It Could Be Worse Than Taxation, Worse Than Stimulus, I noted an English precedent for stimulating an industry, not through stimulus payments and not through tax credits, but through behavioral mandate. When the wool and textile industries fell on hard times, the English government passed a law requiring citizens to wear domestically produced wool caps on certain days. The law was riddled with exemptions for the haves of society, ironically those in the best economic position to afford wool caps. But aside from the exemptions that riddled the law, what struck me was the notion that government mandated citizen behavior in the economic sphere. Governments have always reserved, and often exercised, the right to compel citizens to render services in the military and defense arenas, so my inquiry focuses on mandated purchases and acquisitions.

The issue has surfaced, in a present-day context, with a vibrant discussion of the provision in Senator Max Baucus’s health care legislation that would require citizens to purchase or obtain health insurance, and that would subject them, if they failed to do so, to a tax, fine, or penalty, depending on who’s defining it. The President says that the $1,900 imposition is not a tax. The House bill is calling it a tax. The proposal from Senator Baucus calls it a “shared responsibility payment.” The conservative group Americans for Prosperity not only described it as a tax, but directed attention to a dialogue between Senator John Ensign and Thomas Barthold, chief of staff of the Joint Committee on Taxation, in which Barthold, responding to a question from Ensign, explained that people who refused to acquire health insurance could go to jail if their refusal to purchase the insurance was fraudulent. This dialogue has caused a ruckus, but careful thought suggests that imprisonment would be a risk for those who tried to make it appear as though they had acquired health insurance when in fact they had not, whereas those who openly defy the mandate would not be acting fraudulently because they would be disclosing more than enough information to make it clear they weren’t hiding anything.

Here are my concerns about the proposal. One is that the debate over the word used to describe the monetary punishment distracts attention from the bigger issues. Even if the payment is called something else, so long as it was set forth in the Internal Revenue Code, there’s no doubt that any fraudulent attempts to circumvent the mandate to purchase health insurance, in contrast to openly defiant refusal to acquire health insurance, would be subject to the fraud penalties of the Internal Revenue Code. The solution isn’t to argue about it’s name as though that’s determinative, but to draft language that provides an answer to the question without the need to play with implications and inferences.

Another concern is the use of a purchase mandate. As best as I can figure out from discussing this question with others, there is no other governmentally mandated purchase obligation in the United States. In every other instance that came to mind or that was suggested by a colleague, the mandate can be avoided. Every state requires vehicle drivers and owners to carry insurance, but a person who chooses not to own a vehicle nor hold a driver license can avoid the mandate. Property owners often are compelled to spend money to clear debris or weeds from the land, but a person who chooses not to own property can avoid this purchase. A thornier example is the requirement that parents get their children vaccinated, but people can choose not to have children, parents can choose to home school their children and avoid the vaccination requirement, and if parents cannot afford the cost of the vaccination, governments and possibly social service agencies provide them for free. A state or local per capita tax can be avoided by moving to another state, and the prospect of a federal per capita tax is zero. Prof. William A. Jacobson of Cornell makes a similar point in Taxing Your Mere Existence. Though he doesn’t say so, the implication of his post, and of the points I am making is that the tax or “shared responsibility payment” imposed for failure to acquire health insurance could be avoided only by buying the insurance or dying.

Yet another concern, one that I have been criticizing for at least thirty years, is the use of the tax law and the IRS to handle matters that are not revenue administration and collection matters. Perhaps it is the fact that I am working my way through dozens and dozens of tax credits as I revise T.M. 506, Tax Credits: Concepts and Calculation, almost all of which are designed to reward people for engaging in certain behavior, that causes me to be particularly disturbed by yet another non-tax program being implemented through the tax code. As Prof. Jacobson points out in IRS The New Health Care Enforcer, the Baucus legislation would require health care providers to file information returns not with the Department of Health and Human Services, but with the IRS. The House bill contains similar requirements. Why this information reporting requirement? The IRS cannot enforce the tax or “shared responsibility payment” unless it knows who has and who does not have health insurance coverage. So the IRS would end up policing compliance with the health insurance mandate. Why not let HHS do its work, and if there is to be a fine, penalty, tax, or other payment for failure to comply, which is yet another and a different question, let it send a bill to the individual. After all, a person who fails to stop at a red light and who receives a ticket, pays a fine that isn’t collected or administered by the local or state revenue department.

It would be interestingly sarcastic to ask, “What’s next? The IRS checking to see if people have had their vehicles inspected?” As far fetched as that might seem, or might have seemed, it’s really not so implausible a situation. The IRS administers tax credits for purchases of energy efficient appliances, for purchases and installation of residential energy savings improvements, for adoption of babies, for generation of electricity from nonconventional fuel sources, for pursuing education, for purchasing hybrid vehicles, for purchasing homes, for using alcohol as a fuel, for manufacturing biodiesel, for building low income housing, for engaging in research activities, for investing in orphan drug development, for employing native Americans, for providing access to disabled individuals, for investing in so-called new markets, for maintaining railroad track, for producing low-sulfur diesel fuel, for producing oil and gas from marginal wells, for operating advanced nuclear power facilities, for training mine rescue teams, for sequestering carbon dioxide, and for hiring individuals in high risk categories, to name just some of the many social programming goals that are in the hands, not of the federal agency tasked with overseeing energy, health, employment, and the like, but the IRS.

Because actions speak louder than words, we know that Congress knows, understands, and respects the fact that the IRS is far more efficient an agency than are any of the others. Despite the public IRS-bashing in which members of Congress engage in order to gather up votes at the expense of misleading citizens about the value of the IRS, Congress repeatedly turns to the IRS when something needs to be done. Some weeks ago, in Tax Talk at the Gym, I shared a conversation I had at the gym: “During this conversation, I noted to this fellow that it was surprising that the Cash for Clunkers program didn't involve the IRS. Does the Congress have a higher level of confidence in the NHTSA than in other agencies? Considering the reports of long delays faced by car dealers waiting for reimbursement checks under the program, I would not be surprised to see Congress return to administration of these sorts of programs through the IRS. I would prefer the Congress investigate why there is such sluggishness in the NHTSA processing the reimbursement claims.” I learned a few days ago that the IRS ended up lending several hundred of its employees to NHTSA to help it process the reimbursement claims being filed by auto dealers. That almost guarantees that any program, whether health care, climate remediation, public education, or energy development, will end up somehow, someway, being the responsibility of the IRS to administer and the subject of many more pages of Internal Revenue Code language. The future indeed, if not looking worse than taxation, is promising worse taxation.