MauledAgain: August 2021

Tuesday, August 31, 2021

Is the Cost of a Postage Stamp a Tax?

From time to time the question of whether an economic outlay is a tax has been a question posed to me and occasionally mentioned in a commentary on this blog. Often the question involves the distinction between a user fee and a tax. But several days ago, in Black Voters Matter Fun v. Georgia, the United States Court of Appeals for the Eleventh Circuit was asked to decide if the cost of putting a postage stamp on a mailed absentee ballot amounted to a prohibited poll tax. An affirmative answer would require George to pay for the postage in much the same way many businesses and some charities provide postage pre-paid envelopes.

Voters in Georgia who vote by absentee ballot have three options for how they can return their ballots. They can return the ballot in person at the county election office, they can deposit them into a ballot drop box, or they can mail them to the county election office. They are not obligated to use postage stamps because if they want to avoid paying for a postage stamp they have two other options that do not require postage stamps.

The district court dismissed the plaintiffs’ complaint, rejecting the claims that requiring postage constitutes imposition of a poll tax. The Eleventh Circuit affirmed, reasoning that unlike a tax, which is an enforced contribution to support government functions, the payment of postage is not something enforced by the state but voluntarily assumed by voters who choose not to deliver their ballots in person or to use a drop box. Additionally, the postage is charged by, and the cost of the stamp is collected by, the United States Postal Service and not by the state of Georgia which is administering the election. Put another way, the voters who choose to mail their absentee ballots and who pay for a postage stamp are paying for a service offered and delivered by a third party. It is no different from the cost of the gasoline incurred by voters who drive to the country election office to deliver their ballots or who incur a fraction of a penny’s cost of wear and tear on the heels and soles of their shoes if they choose to walk to that office or to a drop box.

The court rejected the plaintiff’s argument that if a payment to any government is not a penalty it is a tax. Aside from the issue of whether a payment to the Postal Service is not a payment to Georgia, the court gave examples of payments to governments that are neither a penalty nor a tax. It described the payments made for electricity provided by the Tennessee Valley Authority as a payment for delivery of electricity. It described the cost of an Amtrak ticket as a fare, not a tax or a penalty. It also noted that a toll is neither a tax nor a penalty, but a user fee. It also pointed out that the fee to enter a National Park or the cost of a souvenir purchased at a National Park gift shop is not a tax, nor is it a penalty.

In its concluding footnote, the court wrote, “We note that the Plaintiffs’ claims border on the frivolous. At this time, however, we are not imposing sanctions.” For most people, understanding what a tax is and isn’t, distinguishing taxes from user fees, and comprehending the difference between a tax and a payment to a government for goods or services isn’t easy. Even for some lawyers, these nuanced distinctions aren’t always the easiest thing to grasp. So the decision not to impose sanctions makes sense.

Friday, August 27, 2021

What Appears to Be Criticism of the Mileage-Based Road Fee Isn’t, Though It Is a Criticism of How Congress Functions

It was the headline to a opinion piece on the pending federal mileage-based road fee pilot program that caught my eye. It stated, “Mariya Frost of the Washington Policy Center shares her opinion that a proposed national mileage tax pilot program should be rejected.” Upon closer review, it indeed was written by Mariya Frost, but what she wrote doesn’t seem to be a call for an outright rejection of a federal pilot program, nor does it appear to be a rejection of the mileage-based user fee concept.

Frost objects to the fact that the pilot program language is “buried deep in a larger infrastructure package that lawmakers have to vote for or against in totality.” Indeed it is. And, as Frost notes, this sort of conglomeration legislation, which is pervasive and has been around for quite some time, “is a problem.” She correctly notes that “in the interest of transparency, it shouldn’t be tucked away in a larger bill.” She also explains, “it takes away the opportunity for lawmakers to vote directly on the pilot or subsequent implementation.” I agree. Yet what Frost criticizes is not the pilot or the mileage-based road fee, but the legislative process in general. That is a serious problem that needs correction, but it does not address the merits of the pilot or the fee.

Frost also objects to pending attempts and anticipated attempts to use a mileage-based road fee for purposes other than maintaining and repairing roads, bridges, and tunnels. She notes that portions of existing fuel tax revenues are diverted to other purposes, particularly public transit and “environmental outcome.” To the extent that public transit passengers would otherwise use roads and highways, financing a reduction of highway use, which reduces the need for and cost of repairs, funding public transit is an indirect funding of roads and highways. So on this point I am not prepared to agree with Frost. As for “environmental outcomes,” I’m uncertain as to what that means and so I can only speculate. If it means the cost of dealing with the environmental impact of a road widening or new road, that expense is part of the cost of maintaining or constructing the road. If it means financing some unrelated environmental mitigation project miles from the highway, then I would agree, it is inappropriate to use fees collected from highway users for something unrelated, just as it would make no sense to use road fees to pay for the construction of a privately-owned sports stadium. One of the advantages of a mileage-based road fee is that it would put an end to the current practice of overcharging users of the Pennsylvania Turnpike system so that revenues can be used to maintain highways that are untolled because powerful interest groups want to use those highways while shifting the cost to drivers not using those highways.

Frost describes the pilot program as a “massive policy shift.” It isn’t. As I’ve described in earlier posts, it’s simply a simulation to gather information, it is voluntary, and no one will actually pay anything. It is no different from the pilot programs administered by states and by several interstate groups, such as the one in which I participated. In fact, Frost notes that she participated in such a pilot, so she knows how they work. Nothing will happen in terms of an actual change, which would be a massive policy shift, until legislation to that effect is proposed and enacted. And, yes, that legislation should be a stand-alone item and not buried in some conglomerate bill.

Wednesday, August 25, 2021

A Tax Reduction Promise Kept

According to several reports, including this one, the fuel tax rate in New Jersey will decrease on October 1. Why?

New Jersey law requires that about $2 billion in fuel tax revenue be collected each year. So when driving, and thus fuel consumption, dropped significantly in 2020, the two fuel tax rates, one for gasoline and the other for diesel, were increased. According to this story, the rate of gasoline tax increased from 41.4 cents to 50.7 cents on October 1, 2020. Now, because of an increase in driving, and thus fuel consumption, the rate on gasoline will drop from 50.7 cents to 42.4 cents. New Jersey officials attributed the increase in driving and fuel consumption to a “swifter than expected economic recovery.” So, as promised in the legislation enacted a few years ago, when consumption increases, the tax rate drops.

Unlike tax cuts that primarily benefit the wealthy, and unlike tax cuts that require reductions in public services, this tax cut benefits the typical not-very-wealthy and not-wealthy-at-all taxpayer, and does not require cuts in public services. Perhaps this sort of “targeted revenue amount” approach could be applied by the other jurisdictions to fuel taxes. Perhaps it could also be applied to other taxes and user fees. Of course, the happiness when rates decrease will be drowned out by the cries of pain when rates increase.

Monday, August 23, 2021

Why Worry About Tax Evaders?

An interesting article today in the Roanoke Times. Ray Cox writes about Virginia residents who evade Virginia sales taxes on vehicles by setting up limited liability companies in Montana, which has no sales tax, and putting title to their vehicles in the limited liability company. The cost of doing this is much less than the sales taxes that are evaded. I doubt it’s only Virginia residents who are doing this. Cox wrote in response to readers who also complained about people obtaining antique tags, thus saving taxes, for vehicles that are not antiques, and farm plates for vehicles not used on farms. For more on how these evasion techniques are designed, and why they violate Virginia law, read the article.

What caught my eye were several of the comments to the article. One reader explained that the taxes being evaded are minimal, “yet some whine about it anyway,” and then proceeded to the usual talking point about “half” of Virginia residents not required to pay income taxes but who “suck up millions of benefits paid by tax dollars.” Fortunately, another commenter noted that the percentage of Virginia residents not subject to Virginia income tax is less that half of the residents. Another reader suggested, “That guy needs to lighten up. Stop worrying about others and worry about himself.” Again, fortunately, another reader explained, “When others don't pay their share of taxes, then ‘self’ has to pay more. So yeah, he's justified.” And that’s the point. We live in a civilized society, not in hermit land or the Wild West. Though sometimes what a person does has no effect on others and need not be the subject of public discourse, much of what a person does affects others. Somehow that lesson either isn’t being taught, isn’t being taught well, or is being pushed out of too many conscious minds by the purveyors of the “it’s all about me” approach to life.

We should worry about others when others are evading taxes, robbing banks, setting off explosives along parade routes, firing guns into crowds, refusing to wear masks, preparing food in restaurants without washing hands, running red lights, not stopping for school buses, driving while intoxicated or texting, bullying classmates, and kidnapping children, to give just some examples of how the actions of one person affect others. Those who thing their supposed rights have no limits fail to understand that in order for their rights to have no limits the rights of others must be limited. That is why I believe that those who claim to have unlimited rights aren’t the advocates of rights for everyone that they claim to be, but simply are exercising a form of bullying. Society breaks down when people turn a blind eye to what breaks down society. That is why some people worry about tax evaders.

Friday, August 20, 2021

How MauledAgain Got Its Name

It’s finally time to answer the question, “How did MauledAgain get its name?” To do that, I need to remind readers that for many years I taught, in addition to other courses, the basic federal income tax course and the basic course in taxation of business entities. The basic federal income tax course was a prerequisite for the business entity taxation course. The basic course was taught in the fall semester, and the business entity course was taught in the spring semester.

Many years ago, in the early 1990s, one my colleagues approached me and, though I don’t remember the exact words, said to me, “You’re the subject of graffiti in the men’s room.” Pressed for details, he simply told me to see for myself and directed me to look at the far stall in one of the school’s men’s rooms. So off I went.

What did I discover? I had to read some of the graffiti before I saw this: “I took the basic tax exam. I’ve been Mauled.” Below that, in different ink and different handwriting, someone wrote, “Me too, and I then took the business tax exam. I was Mauled again.”

No, I do not know who wrote those two contributions to literature. If ten or twenty former students claim to be the authors, I have no way of confirming their claims or identifying the authors. The graffiti is long gone, as the rest rooms in the old law building were renovated, and even had that not happened, I would not try or think feasible any sort of handwriting analysis.

So when I started this blog in response to the then-dean expressing surprise that one of the law faculty’s then most technically proficient members didn’t have a blog, I needed to find a name for it. The men’s room graffiti episode had never left my mental memory bank, and somehow it popped into my forward consciousness as I pondered naming the blog. And, the rest, as they say, is history.

And spare the jokes and word play. I’ve already thought of dozens, some funny, some awful, some insulting, some puzzling. But I will spare the world the groans and eye rolls.

Wednesday, August 18, 2021

In Praise of the Mileage-Base Road Fee

John Tsitrian, whose commentary about road funding was the subject of my recent post, Using General Funds to Finance Transportation Infrastructure Not a Viable Solution, has written a reply. It appears that our disagreement rests on how the financial burden of maintaining and repairing highways, bridges, and tunnels should be apportioned.

Tsitrian and I agree on several basic underlying facts. First, the nation’s highway infrastructure is in bad shape and needs quite a bit of attention, ranging from inspection through repairs. Second, roads are important for society and the economy. Third, the increasing fuel efficiency of gasoline and diesel powered vehicles and the increasing shift to electric vehicles has been causing fuel tax revenues to decline. Fourth, fuel taxes are, as a practical matter, user fees even though called taxes. Fifth, the mileage-based road fee is a user fee. Sixth, the status quo, which I define as fuel taxes, is untenable.

Tsitrian thinks that using general funding rather than user fees would be “fairer and probably more economically beneficial way to spread the cost of our road system, which benefits everybody, regardless of how much they drive or even if they don’t drive at all.” Though it is true that the road system benefits everyone, or at least almost everyone save, maybe, for the hermits living off-grid, what also is true is the fact that people do not use the road system equally. Some people drive 3,000 miles a year and rarely order items online. Other people drive 15,000 miles a year and have online deliveries multiple times a week. Using general funds would apportion the cost, not in proportion to use, but in proportion to income, value of real property owned, or some other basis unrelated to road use. That is not fair. It would shift cost from heavy users to light users. Tsitrian admits as much when he contends that shifting to the use of general funds, which he agrees would simply replace fuel taxes with other taxes, would even out the tax burden among all taxpayers. But the fact that all, or almost all, taxpayers use the roads does not mean that they all should be charged the same amount, unless they all used the roads equally, which certainly is not the case.

The cost of paying for roads, whether through fuel taxes or a mileage-based road fee, ultimately falls on the user. A person who uses the road to go to the grocery store pays a fuel tax and would pay a mileage-based road fee, designed to cover the cost of the wear-and-tear that the person’s vehicle puts on the road. A delivery company that pays a fuel tax and that would pay a mileage-based road fee, which also would cover the cost of the wear-and-tear that the truck puts on the road, passes that cost either to the recipient (who might not own a vehicle or have a driver’s license) or to the shipper, who in turn would pass the cost along to the recipient customer. So, under the current system and under the mileage-based road fee, the ultimate cost indeed already falls upon the people and entities who are beneficiaries of road use. The key point is that the cost would be apportioned in a manner reflective of that use, which would not be the case if general funds were used.

Tsitrian opposes the mileage-based road fee because he thinks it “retains the untenable tax burden on drivers.” But as I point out in the preceding paragraph, that burden, as is the case with the fuel tax, would be based on to the ultimate beneficiaries of the road system, whether it is the driver enjoying a scenic ride or going to the store or the customer sitting at home getting package delivered by trucking companies and delivery vehicles. He notes the pilot program in the pending federal infrastructure legislation, which is far from the first pilot program for mileage-based road fees. Even though those state pilot programs have demonstrated the superiority of mileage-based road fees compared to fuel taxes, a federal pilot is necessary to answer logistical matters germane to the federal fuel taxes whereas the state pilot programs provided that information for particular state fuel taxes.

The mileage-based road fee** is much more fair that fuel taxes because it solves the existing problem of electric vehicle owners not paying fuel taxes, and paying little or nothing in terms of vehicle fees, thus shifting the cost onto users of non-electric vehicles. The mileage-based road fee is a user fee, but it ought not be condemned simply because the fuel tax, which is in effect a user fee, has become untenable.

Tsitrian continues to insist that, “Meantime, consumers would enjoy a bonanza of spendable income once they’re spared the onerous taxes they have to pay at the gas pump.” That simply isn’t the case. The fuel taxes would be replaced by increases in income, real property, sales, or other taxes. What would occur are two shifts. People who are relatively light users of roads would save what little they pay in fuel taxes and then face higher, perhaps much higher, other taxes, thus realizing a decrease in spendable income. On the other hand, people who are relatively heavy users of roads would save what they pay in fuel taxes and then face lower, perhaps much lower, other taxes, and they would realize an increase in spendable income. The increase and decrease would net to a wash. Total spendable income would not increase. It simply would cause disruptive shifts that would increase, rather than decrease, unfairness in road funding.

Tsitrian sets aside my concern that using general funds would “put road building in the crosshairs of political warfare.” He concedes it is possible but thinks that politicians would face backlash from individual and corporate interests. That might happen in a healthy political system but we don’t have a healthy political system. Corporate and individual backlash has not prevented government shutdowns. It has not prompted legislatures to act responsibly to fix potholes and deteriorating bridges afflicting individuals and businesses on a grand scale. The legions of vehicle owners paying for flat tires, wrecked suspensions, injuries, and deaths haven’t moved legislatures, so I doubt very much that a legislature proposing to cut road funding because the general fund is too low and the amounts in it are needed for other purposes will act responsibly and maintain road funding. The only corporate and individual backlashes to which legislators pay attention are those coming from their big donors.

The bottom line is that I don’t understand why drivers who use the road, including those who can pass the cost of using the road to customers, should be relieved of paying for the use of roads, with the burden being imposed disproportionately on all people no matter their relative use of the road. Liquor taxes are paid by those who purchase alcohol, and tobacco taxes are paid by those who purchase tobacco products. This reflects the matching of burden with the cost imposed on society. As an advocate of user fees generally, I stand in favor of repeal of fuel taxes and revenue replacement with mileage-based road fees. Will that happen? Time will tell us.

Post Number 3,000

Today’s post, according to blogger.com, is number 3,000. I haven’t counted to confirm the accuracy of that information. Considering that I have been writing commentaries on MauledAgain for more than 19 years, 3,000 is not out of line. I’ll trust blogger.com and not worry that it missed one or two posts or overcounted.

Long-time readers of this blog might ask if I made a big deal about post number 1,000 or post number 2,000. I noted post 1,000 in A MauledAgain Millesimal Event. When I reached post number 2,000, I didn’t write about it. I suppose I didn’t think it was a big deal. So why mention that this is post number 3,000?

There aren’t all that many things I’ve done for 19 years. Of course, I’ve lived longer than that. I’ve been living in the same house for 30 years. I’ve been a member of my church for 32 years. I’ve been a law faculty member, full-time or retired-as-adjunct, for 40 years. I’ve been writing tax and other books, law review articles, and similar publications for 46 years. I’ve been researching and compiling genealogies and family histories for 48 years. The list of things I’ve done for durations of less than 19 years is much longer, and not worth reciting.

For the first two years, I posted on the blog at irregular intervals, though usually several times a week. There were days on which I posted two commentaries. About 17 years ago, because of my teaching schedule, I fell into a practice of posting three times a week, on Monday, Wednesday, and Friday. When I knew I would not be able to post on a particular day, I wrote the commentary earlier and set it up to appear on a specified day. That became a habit, and I routinely wrote commentaries ahead of time as insurance against the unexpected interruption on a Monday, Wednesday, or Friday morning. When I knew that I would be away from the computer, or lacking reliable access to the internet, for periods of time, I would write several commentaries ahead of time. On several occasions I wrote entire series and set them up to post automatically over a period of weeks or even a month or two.

Why am I reciting this history? Readers have become accustomed to posts appearing every Monday, Wednesday, and Friday. On several occasions when I inadvertently mistyped a date or time for a scheduled post to publish, or when blogger.com had a hiccup, readers have emailed me to ask if I was ok. The answer was either, “Yes, thanks for alerting me, I checked and fixed my timing typo,” or “Yes, thanks for alerting me, I checked so let’s wait for blogger.com to come back online.”

Because I now plan to return to posting at irregular times, I don’t want readers worrying that there is a problem. I am not disappearing. I plan to post in real time, though I may schedule some posts in advance. So that means posts may appear any day or any time. There may be weeks when there are only two posts, or perhaps just one, and there may be weeks when there are four or five or more posts. Why am I doing this? My schedule needs more flexibility, and I want to be reactive in a more timely manner. Yet is is not unlikely that the Monday-Wednesday-Friday pattern will recur from time to time, even this week and next!

Though 19 years is a long time, there are blogs that have been around longer. Though blogging began in the mid-1990s, in 1999 there supposedly were only 23 blogs in existence. MauledAgain wasn’t one of them. Tax blogs have come and gone. I’m not sure how many existed before MauledAgain first published, but if it was not the first it was one of the first. Because so many tax blogs either disappeared or haven’t had a post for quite some time, I stopped worrying about keeping “Links to Other Tax Blogs” up to date. And unless I deliberately decide to stop posting permanently, and if I do I will let that be known, one day this blog will join those that without any announcement or fanfare simply become a blog that hasn’t had a post for quite some time.

Monday, August 16, 2021

Using General Funds to Finance Transportation Infrastructure Not a Viable Solution

The proposed pilot, which relies on volunteers, is pretty much along the lines of the one in which I participated several years ago. The one in which I participated simply sent a pro forma “what if” invoice that I was not required to pay, whereas the federal pilot will collect and then return a user fee. It’s not clear why the pilot will go through those motions but it might have something to do with analyzing the data.

The inclusion of the pilot program in the legislation has sparked a variety of reactions. One, in a commentary brought to my attention by reader Morris, carries the headline “Might be time to start thinking of funding our roads with something other than user fees, like gasoline or mileage taxes.” Understanding what the author, John Tsitrian, means by “something other” requires reading the commentary and then guessing. He defines something other as “general funding” but doesn’t identify what taxes or fees should be implemented or increased to provide the necessary monies in the “general funding” account.

Tsitrian rests his theory on the claim that “all of us, no matter how much or how little we drive, are ‘users’ of our roadways.” That is almost completely true, in the sense that transportation infrastructure benefits not only drivers but also those who don’t drive but are driven or who receive items delivered by vehicles. Perhaps there are a few people who are so “off the grid” that they are unaffected by road use, but if they exist they are so small in number that their existence does not detract from Tsitrian’s point.

But though everyone, or almost everyone, uses or benefits from the use of transportation infrastructure, the degree of use varies. Fuel taxes and mileage-based user fees allocate the cost of building, maintaining, and repairing roads proportionate to the use. People who benefit from road use but who don’t drive pay a proportionate share of those fuel taxes because taxi, Uber, Lyft, and similar drivers pass the taxes along to their passengers in the cost of the ride. People receiving deliveries pay delivery charges that take into account the fuel taxes paid by the owners of the delivery vehicles. So, bottom line is that everyone benefitting from the use of roads is paying, directly or indirectly, the fuel taxes used to maintain and repair the roads. The problem, of course, is that the total taxes being collected falls far short of what is required. So when Tsitrian argues that, “It seems much more equitable for the cost of building and maintaining our highways to be spread out over the entire populace,” and that “Now’s the time to consider that concept,” he misses the point that the incidence of fuel taxes already is spread out over the entire populace. And when he claims that the mileage-based user fee “unfairly puts the burden on drivers who use a system that is an essential feature of life for all of us, whether we drive or not,” he ignores the reality that drivers whose driving benefits others would pass the fee along to passengers and customers in the same manner they currently pass the fuel tax along to their passengers and customers.

Tsitrian then claims that, “Eliminating taxes for drivers would put a substantial amount of money into circulation throughout our economies, which would probably have some noticeable impact on local, state and federal GDPs.” The reality is simple. Though people would stop paying fuel taxes they would face increases in whatever other taxes are used to fund the “general funding” that Tsitrian wants to use to fund highway repair and maintenance. The only way that the elimination of fuel taxes would put more money in the pockets of drivers is if no other taxes or fees are enacted or increased. That scenario requires either reduction or elimination of highway repair and maintenance, or reductions in spending for other services funded by general funds.

Another problem with Tsitrian’s proposal is that leaving highway funding without a dedicated funding source subjects the maintenance and repair of highways to the vagaries of legislative budget debates. One can imagine even more closed highways and bridges, and even longer periods of closure, because general funds are frozen while legislatures wallow in gridlock. There are enough problems with transportation infrastructure funding without needing to add yet another roadblock to the restoration of the nation’s bridges, tunnels, and highways.

Friday, August 13, 2021

Cryptocurrency Tax Reporting Legislation Demonstrates the Flaws of How the Senate Operates

The concept is simple. For the federal tax system to work, there must be reporting of transactions relevant to taxation. That’s why employers issue Forms W-2 reporting wages and other information. That’s why banks issue Forms 1099 reporting interest paid. That’s why real estate sellers issue Forms 1099-S reporting sales and exchanges of real estate. There is a long list of information returns that individuals and organizations must file.

The concept, as a theory, is fine, but it encounters practical reality when new types of transactions are developed. In recent years, cryptocurrency transactions have been unreported because they don’t fit within existing requirements. This, of course, opens the door to a significant amount of tax avoidance and a more-than-negligible amount of tax evasion. So the Senate included cryptocurrency information reporting requirements in the pending infrastructure legislation because it raises revenue to offset the cost of the planned expenditures. And then the fun started.v A dispute arose because some people in the cryptocurrency world did not like the definition of the word “broker.” That matters because the information reporting requirement would be imposed on brokers. The industry argues that the current language would require information reporting by intermediaries such as miners and network validators who are not traditional brokers and who arguably do not have the user information that must be provided as part of the information reporting. The dispute delayed passage of the legislation for days.

Finally, as reported by many sources, including this Politico report, a bipartisan compromise was worked out. The compromise found support among people in the cryptocurrency industry, accountants and tax professionals, the Secretary of the Treasury, and Senators on both sides of the aisle spanning the political spectrum. And then the fun began.

One of the authors of the compromise, Republican Senator Pat Toomey of Pennsylvania, attempted to attach the compromise to the legislation. But Republican Senator Richard Shelby of Alabama threatened to block the amendment. The Senate rules dealing with the legislative process permit one Senator to block the amendment. But Shelby revealed that he was not against the compromise amendment because he offered to refrain from blocking the amendment if Toomey would include in his motion Shelby’s amendment to boost defense spending by $50 billion. Toomey agreed. But then Independent Senator Bernie Sanders of Vermont, objecting to the military spending increase, blocked Toomey’s revised amendment. So the compromise died.

Is this any way to work for the benefit of the people? Does it make sense to give one Senator a de facto veto power over legislation? Of course, this isn’t the only example of the absurdity of the rules under which the Senate works. A good bit of the political gridlock hampering progress is caused by, and is reflected by, the rules of the Senate. Much has been written about these issues, so I will simply let the tale of the cryptocurrency information reporting legislation illustrate the mess.

Wednesday, August 11, 2021

Why Delay A Mileage-Based Road Fee Until Existing Fuel Tax Amounts Are Posted at Fuel Pumps?

The author of the letter to the Pocono Record, Philip Cohen, raises two concerns. One concern is that fuel pumps in Pennsylvania do not disclose how much of the price consists of fuel taxes, in contrast to his experience when he had lived in New York State. It certainly is a good idea to show the portion of the price that consists of taxes. I am unaware of any law requiring fuel vendors to do so. However, I also am unaware of any law prohibiting them from doing so. And, in my travels throughout Pennsylvania over the years, I have encountered fuel stations that do publish the amount of the taxes. I am surprised that most don’t. Why? Fuel vendors and their employees are on the front lines when customers complain about the cost of fuel. Some customers think that fuel vendors rake in huge profits, though the reality is that they don’t. So it is in the best interest of fuel vendors to post the tax amount, in effect saying to customers, “you think that we’re raking it in with these prices being what they are, but in reality, here is the amount of the price per gallon that we simply turn over to federal, state, and local taxing authorities.” Granted, any interested consumer can research the amount of fuel tax paid in a particular locality, but the reality is that too few people bother to do research. For the record, the federal fuel excise tax is 18.4 cents per gallon on gasoline and 24.4 cents per gallon on diesel fuel. The Pennsylvania motor fuel tax rate is 57.6 cents per gallon on gasoline and 74.1 cents per gallon on diesel fuel. These facts are not secret, and even if not posted on a fuel pump, are readily available to any fuel purchaser who is interested.

Cohen’s other concern is that the suggested 8.1 cent-per-mile fee in the Pennsylvania Transportation Revenue Options Committee report will “confiscate as much as $1,215 per year from each of us,” basing that amount on “a typical resident driving 12 to 15 thousand miles per year.” Putting aside the fact that the tax is imposed on fuel purchasers and not “each of us” because not everyone drives a vehicle, how does Cohen’s analysis play out? Consider a vehicle that gets 20 miles per gallon and that is driven 12,000 miles, and assume all of the driving and fuel purchasing is done in Pennsylvania. That vehicle will require 600 gallons of gasoline for the year. The federal and state fuel taxes on 600 gallons would be $456. A mileage-based road fee of 8.1 cents per mile would amount to $972. The same fee would be paid by a vehicle that gets 10 miles per gallon though the fuel required for that vehicle would be subject to $912 in federal and state fuel taxes. An electric vehicle would also pay $972 whereas currently no fuel taxes are imposed on it. As Cohen points out, the justification of the shift is the continuing increase in motor vehicle fuel efficiency and the increased use of electric vehicles. As fuel tax revenue fails to keep up with the cost of maintaining and repairing the roads, bridges, and tunnels used by vehicles, that infrastructure has continued to deteriorate and in some instances fail. If only Pennsylvania fuel taxes are taken into account, the comparison for a vehicle getting 20 miles per gallon would be the proposed $972 Pennsylvania mileage-based road fee and current Pennsylvania fuel tax of $345. For the vehicle getting 10 miles per gallon the $972 amount would replace a $690 Pennsylvania fuel tax. No matter how computed, the proposed mileage-based road fee would increase what drivers pay.

Why the jump in the amount that drivers would pay? The answer is simple. For too long, fuel tax revenues have failed to keep up with inflation and the costs of maintaining and repairing the transportation infrastructure. It’s time not only to reset the revenue stream for the future but it’s also necessary to pay off the deficit that has grown over the past several decades because of pressure from anti-tax groups to curtail fuel tax revenue in efforts to privatize the infrastructure so that profits will flow to the private equity and other oligarchic revenue collection mechanisms. Those mechanisms, incidentally, and their owners, are beyond the reach of the ballot box. Without an increase in transportation revenue, and an adjustment that imposed the burden equally based on miles, the cost of driving will ultimately be set by private sector oligarchs whose decisions will be imposed on an impotent public. I would not use the word "confiscate" to describe adjusting the cost of driving on a road to match the expense of maintaining and comparing that road.

Though the headline to the letter claims that “the mileage tax is a bad idea,” Cohen doesn’t make that claim in his letter. Of course, I’m long familiar with the fact that headlines often are written by someone other than the author of an article, letter, or commentary. True, the use of the word “confiscate” suggests that Cohen doesn’t like the proposed mileage-based road fee, but his only point, aside from the request for disclosure at each fuel pump of the taxes being charged, is that, “Until the commission publishes total tax per gallon paid at the pump, there should not be any changes to the system.” Publishing the tax per gallon is easy enough to do and can be done quickly, even though the information already is available. So assuming that posting the taxes at each pump is accomplished, does that mean Cohen is fine with going forward with the proposal? That is unclear from his letter. The discussion of transportation funding in Pennsylvania, as in the rest of the nation, is far from over.

Monday, August 09, 2021

Yet Another Bad Consequence of Unwise Tax Breaks

Years ago, Philadelphia decided that to encourage home buying in the city, it would provide a ten-year period of substantially reduced real property taxes on properties purchased during the qualifying period. The tax abatement would persist even if the property was resold to a new owner during the ten-year period. Though enacted with the best of intentions, this tax break, like most others, also presents disadvantages. For example, in A Tax Problem, A Solution, So Why No Repair?, I described the shock felt by a new owners when the abatement period ended shortly after the purchase, though the surprise would have been ameliorated had the new owner and the real estate agents done some research. And as mentioned in Goofy Tax Proposal Withdrawn in the Nick of Time, the abatement generated revenue losses that City Council tried to relieve, though it first rejected by a one-vote margin a proposal to offset the revenue loss with a tax on the tax break.

Eventually, Philadelphia enacted changes to the abatement program. In 2019, it enacted a scaled-down reduction in the abatement percentage, so that over the ten year period the abatement fell by ten percentage points each year, so that, for example, in the second abatement year only 90 percent of the tax was abated. The change was set to occur with respect to applications filed after December 31, 2020. Then, because of backlogs, another change pushed the effective date to applications filed after December 31, 2021. The abatement for commercial and industrial property also was reduced, from 100 percent to 90 percent, but is not phased out over the ten-year period.

This change has sparked another problem that would not exist but for the abatement and the attempt to offset its other disadvantages. According to this Philadelphia Inquirer article, developers are rushing to get applications filed before January 1, 2022, in order to avoid the scale-back of the tax break. Developers who plan to build properties must have their sites ready for the construction by December 31, 2021. Developers wanting to build on sites currently occupied by historic properties that are not certified for protection against demolition have been posting demolition notices. Apparently it takes too long to do what is necessary to prepare a property for rehabilitation in time for the application deadline. The article notes that in one week, demolition notices were posted on for “the historically designated St. Laurentius Church in Fishtown, two early 20th-century banks in Kensington, and two rowhouses on a beautifully preserved, 19th-century block in Powelton Village.” The article reminds readers that already there have been demolition notices, and demolition, of properties including “a Romanesque-style Catholic church in West Philadelphia’s Haddington neighborhood, a severely damaged, but still magnificent synagogue in Strawberry Mansion, a handsome industrial building on Spring Garden Street, the historically designated home of a notable 19th-century painter in Germantown, and a slew of elegant 19th-century townhouses on the stretch of Christian Street known as ‘Black Doctor’s Row.’” The article reports that, “The demolition targets increasingly include designated buildings, which are supposed to be protected by the Historic Commission but are flagrantly neglected by owners who have little fear of official sanction.”

Though other factors, such as demand for housing and low interest rates, also encourage demolition, the head of the Preservation Alliance notes that Philadelphia’s “development policies are geared toward demolition and replacement. This is all happening in a city with an abundance of properties that could be restored.” Fortunately, the changes made to the abatement program do provide a better tax break for renovated properties, though zoning law breaks that parallel the tax breaks, such as the replacement of a building with a taller building that generates more rent, push developers in the direction of demolition rather than renovation. Thus, for example, the article explains that in the 3700 block of Lancaster Avenue, a block-long row of 19th-century houses in near-perfect condition will be split in two by a developer who plans to demolish a pair of the homes in the “exact middle” in order to build a 16-unit apartment complex.

Though the tax abatement was intended to convert vacant office buildings into housing, it is encouraging the destruction of occupied properties. This, in turn, increases the demand for housing as the evicted occupants seek a new place to live. It has become a vicious cycle.

What really drives the demolition frenzy isn’t a matter of housing demand and low interest rates. If that were the primary driving force, tax breaks would not be needed, because the market would function efficiently. Instead, what is driving the destruction of occupied properties in order to build replacements is the desire to increase rents. In other words, it’s the desire to make money. The developers doing the demolitions aren’t low and middle income folks trying to move up a bit on the economic ladder. It’s people with money who have no use for the money other than to find ways to make more money because they never have, and never will have, enough money. Though a handful of developers are respectful of history and historical architecture, by preserving facades while reconstructing behind them, or adding floors consistent with existing architectural design, most go the cheaper route of total destruction because preservation is more expensive and thus adverse to the goal of maximizing money.

Perhaps the solution is a demolition tax imposed when properties not in need of demolition are destroyed. Perhaps the abatement tax break should be limited to developers who maintain existing structures, or a meaningful portion of structures, while doing rehabilitations that avoid demolition. It’s unfortunate that this sort of approach wasn’t considered when the abatement was first enacted, and it’s just as unfortunate that this sort of approach is almost certainly not going to be adopted. There’s too much money standing in the way of preservation and common sense.

Friday, August 06, 2021

Tax Return Preparers Who Fail to File Their Own Returns Beg For IRS Attention

Why do I write about tax return preparers who are charged with, indicted for, convicted of, or pleading guilty to the preparation of fraudulent returns? As I have explained in previous commentaries, it is important for taxpayers to understand that they need to do sufficient research to find a tax return preparer who complies with the tax law. Using a tax return preparer who does not have the best of intentions damages the taxpayer, as well as taxpayers generally. My commentaries include posts such as Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for the IRS and DOJ to Find Them, Tax Return Preparers Putting Red Flags on Clients’ Returns, When Language Describing the Impact of Tax Fraud Matters, Injunctions Against Fraudulent Tax Return Preparers Help, But Taxpayers Still Need to Be Vigilant, Will the Re-Introduced Legislation Permitting Tax Return Preparer Regulation Be Enacted, and If So, Would It Make a Difference?, and Can Fraudulent Tax Return Preparation Become An Addiction?.

In one of those blog posts, When Unscrupulous Tax Return Preparers Make It Easy for the IRS and DOJ to Find Them, I observed that one tax return preparer was detected because she foolishly claimed that clients attended school at particular institutions despite knowing that they had not done so. When IRS computers or IRS personnel cross-check the school listed on the tax return with information about students matriculated at that school, the misinformation will jump out. And perhaps clients, concerned that they will be charged with fraud, contact the IRS or another tax professional when they take a closer look at the return they signed. As I wrote in that post, “Some unscrupulous tax return preparers might be difficult for the IRS to spot, or perhaps avoid detection for long periods of time. But others seem to be raising red flags so obvious that they might was well post ‘Fraudulent Tax Returns Prepared Here’ signs in their storefront windows or on their websites. Lack of ethics combined with lack of knowledge about how tax returns are examined and audited is a recipe for a much shorter time as a preparer.”

A few days ago, the information in this Department of Justice news release revealed another red flag that a tax return preparer can wave. A tax return preparer in North Carolina pleaded guilty to aiding and assisting in the preparation of a false tax return and to filing a false personal income tax return. The preparer prepared fraudulent returns for clients that reported false wages and business incomes to increase the clients’ refunds. He also filed a false personal income tax return for 2014 and failed to file tax returns reporting his income for 2015 through 2019.

I do not know exactly how the IRS determines when to investigate a tax return preparer. I can guess that it has a system to examine returns with similar false information to see if the same preparer is responsible for some, most, or all of those returns. That is probably how the IRS tracked down the preparer who was claiming clients attended schools they did not attend. I am also guessing that the IRS has a system to determine if tax return preparers have timely filed their own tax returns, and that it also audits those returns either systematically or using some random sampling. What I do know is that a tax return preparers who fail to file their own tax returns are pretty much waving red flags inviting the IRS to start investigating. One wonders if there is some sort of subconscious desire to be caught playing out in these situations. I don’t know. I’ll let the psychologists explore that question.

Wednesday, August 04, 2021

They Were Warned, They Did Not Listen, They Are Paying the Price for Tax Fraud and Other Crimes

A long time ago, early in the history of MauledAgain, specifically in Tax Deductions, Theology, and Education, I addressed the question of when a transfer qualifies as a gift for purpose of the charitable contribution deduction. I wrote:

Another hypothetical will help. A person pays $30,000 to the University of Their State as tuition for their child's education. The university is a qualified organization. Is it a gift? No, of course not. The $30,000 is paying for $30,000 of education. Yes, I know that sometimes it's tempting to treat the education as worth a dime, but that's not how the tax law looks at it. If the person deducted the $30,000 and then on audit offered a cancelled check as proof, the IRS would not be amused. The word "penalties" comes to mind, and in some instances so too would the word "fraud." (As for the disappearance of cancelled checks under the new banking law, well, eventually I'll need to change that part of the hypothetical, but not today.)
Time for a related story in the nature of an amusing aside that demonstrates what can happen to people who game the system. The IRS audited a person whose charitable contributions were very high considering his income. On audit, he produced checks written to his church. Puzzled, the IRS contacted the pastor of the church (with the taxpayer's approval, I think). The pastor explained that he knew the fellow, that the fellow was in regular attendance, and was an active member. Asked about the extent to which the fellow's devotion would inspire him to give such a large portion of his very modest income to the church, the pastor explained that the fellow approached him several years earlier and suggested that there was a risk in leaving the Sunday collection laying around and that he could help by writing the church a check for the cash that was in the collection basket. That, folks, is a quid pro quo. As in you do fraud, you get penalized.

And now comes a Department of Justice press release about taxpayers who did not read my 2004 blog post or any other publication that shared the same message.

According to the press release, Jason Ellis pleaded guilty to filing a false tax return as part of a years’ long tax evasion scheme with Rabbi Yisroel Goldstein. Until several years ago, Goldstein was the director and head rabbi at Chabad of Poway, a tax-exempt religious organization and he also operated several non-profit entities affiliated with the Chabad, including the Friendship Circle of San Diego. Beginning in 2008, at Goldstein’s request, Ellis, an employee of Qualcomm, donated $1,000 to Friendship Circle. He then requested Qualcomm to make a matching donation through its corporate matching program, and Qualcomm did so. Goldstein and Ellis then met in person, and Goldstein returned $1,000 in cash to Ellis. They did not inform Qualcomm that the donation it had matched had been reversed. They engaged in this same donation-corporate-match-return-donation-to-Ellis scheme every year through 2017. In 2016, Ellis was promoted to the position of Director at Qualcomm, which meant that Qualcomm would match up to $5,000 of charitable donations made by Ellis. In 2016 and in 2017, Ellis and Goldstein engaged in the scheme but with $5,000 rather than $1,000 being donated and returned in cash to Ellis. For the period 2008 through 2017, Ellis made 10 donation to Friendship Circle, each matched by Qualcomm. The donations by Ellis totaled $18,000, all of which were returned to him, and Qualcomm contributed a total of $18,000 in matching donations. In 2018, Ellis donated $5,000 but did not get any cash back from Goldstein. In 2019, Ellis did not make a contribution to Friendship Circle, but received an unexpected donation receipt for $5,000 from the organization, which Ellis used to falsely claim a $5,000 tax deduction on his 2019 return, even though he knew he was not entitled to the deduction because he had not donated $5,000 to Friendship Circle in 2019.

That wasn’t all. Between 2015 and 2019, Ellis paid preschool tuition to the Chabad for his children. He falsely claimed these payments as charitable contribution deductions, totaling $55,600, knowing that they were tuition payments and not tax-deductible charitable contributions.

Through these various schemes Ellis evaded over $27,000 in taxes.

In July 2020, Goldstein pleaded guilty to fraud charges, admitting that he participated in a complex, years-long, multi-million-dollar tax evasion scheme and other financial deceptions involving theft of public money. Goldstein’s plea agreement described the tax evasion scheme involving Ellis. Ellis was the ninth taxpayer to plead guilty to the crimes discovered in the investigation of Goldstein. Two other taxpayers have agreed to deferred prosecution agreements. Goldstein has agreed to cooperate with the investigation, which is continuing. The charges against the individuals involved in Goldstein’s scheme include filing false tax returns, wire fraud, money laundering, aggravated identity theft, conspiracy to defraud the United States, conspiracy to file false tax returns, and conspiracy to commit wire fraud. Had they read what I, and others, have written about these two types of fake charitable contribution deduction schemes, and declined to participate, they would be in a much better place.

Monday, August 02, 2021

Another Problem With Tax Credits and Deductions for Doing The Right Thing

Last Wednesday, in Is a Tax Credit or Tax Deduction the Answer to Every Problem?, I explained why using tax credits and deduction to encourage people to do the right thing is not a sensible approach. The analysis applies whether the credit or deduction is used to encourage people to do something that is considered good or to discourage people from doing something that is considered bad. I mentioned the dichotomy between giving someone a benefit for doing what they should be doing or imposing a punishment for not doing what they should be doing.

There is another problem with using tax credits and deductions, that is, monetary rewards, to encourage appropriate behavior. It is most easily explained with an example. There are suggestions that people who have not been vaccinated against coronavirus be given a tax credit for doing so. There also have been suggestions for other sorts of benefits, including cash “bonuses,” lottery tickets, priority parking, and product discounts. Though the intent of these incentives is clear, to push vaccination percentages to levels that reduce the risk of vaccine-resistant variants emerging from the reservoir of unvaccinated individuals, it essentially rewards the holdouts while making at least some individuals who got vaccinated in the spring feel like fools. It puts a bonus on holding out. What happens when the next pandemic – and there will be one, and probably within the next ten years – pops up and everyone, or some significant portion of the population, holds back taking preventative steps, such as masking, getting vaccines, etc., because they anticipate monetary rewards for taking those steps?

Consider another example. Under current law, individuals are required to hold a driver’s license before operating a vehicle on public highways, putting aside those using learner’s permits. Under current law, those driving without a license are punished, but they are punished only if they happen to get caught. Many people driving without a license, including those who never had a license, those who have failed to renew a license, and those whose licenses have been revoked, don’t get caught, or escape for long periods of time before they are caught. Often they are caught under circumstances that cause death, injury, or property damage to another person. Imagine if a state decided to reduce the number of unlicensed drivers by offering cash, lottery tickets, priority parking, or product discounts to unlicensed drivers. Would that not discourage people from getting or renewing licenses so that they would qualify for the giveaway? Of course it would. Improved enforcement and effective punishment, whether in the form of fines, jail, or community work programs, is a much better way to encourage drivers to get and renew their licenses.

The tax law does include penalties, but almost all of them are for violating some aspect of the tax law. If the Congress is willing to use the tax law to reward people who save for retirement, fix railroad tracks, go to school, purchase energy efficient property, produce electricity from specified renewable sources, and sequester carbon oxide, ought it not be willing to use the tax law, in the form of additions to tax, to punish people and companies that fail to fix their railroad tracks, go to school, or sequester carbon oxide? When it comes to the proposals to provide tax credits for voting, writing a will, or getting a vaccine, why not a penalty for failing to vote, execute a will, or get a vaccine? Of course, because I oppose using the tax law to provide rewards for behavior I also oppose using the tax law to provide punishments. Whether behavior is regulated through reward or punishment, and even though using rewards can be counterproductive, it ought to be done by the government agency that deals with the behavior in question, not by the IRS or a state revenue department.

Isn’t it interesting that the same Congress so quick to criticize the IRS are so quick to put the IRS in charge of tax breaks that deal with just about every aspect of the lives of the nation’s citizens? Isn’t there something deeply hypocritical about that? Could it be that deep down members of Congress trust the IRS to administer their and their lobbyists’ pet projects while then using pretensive outrage at the IRS to stir up the populace?