Tuesday, June 27, 2023
Though I don’t always catch every proposed legislation or commentary, I do notice some and readers sometimes alert me when there is news on this topic. Today I spotted an article in this morning’s Philadelphia Inquirer, which it has picked up from the Associated Press and reprinted in several places, including this one. The article is more of a summary than a delivery of breaking news, but it does make some points that deserve attention.
The article notes that the need to deal with the deficiencies of using fuel taxes to fund highways is moving ever more quickly to becoming a crisis. I’ve been pointing this out for years, and it’s good to see that increasing numbers of people are taking notice. Electric vehicles, which accounted for about 5 percent of new vehicle car sales in 2021 will constitute 40 percent by 2030, which is only seven years from now.
The article shares the opinion of an Oregon woman who thinks “it’s far less hassle to just pay at the pump,” though she admits, "It's probably a good thing, but on top of everybody else's stress today, it's just one more thing." If done correctly, it’s not one more thing. The system for measuring mileage and relevant factors such as weight and number of axles can be installed easily in existing vehicles and will eventually be pre-installed by vehicle manufacturers.
The article points out that many states are seeking temporary fixes. Those fixes, such as increasing registration fees for electric vehicles and taxing electricity consumption at public charging stations, require more effort and are less efficient than simply enacting mileage-based road fees. These fixes also fail to share the financial burden of maintaining highways in an equitable fashion. What an individual vehicle owner pays per mile in fuel taxes is not equivalent to what is paid through these temporary solutions. Some of the fixes are absurd, such as taxing companies that make home deliveries, where there is no correlation between road usage and the tax.
The article notes that the Washington state legislature passed a bill, which the governor vetoed, to permit collecting odometer readings on a voluntary basis. The governor justified the veto by explaining that the state should establish a program before collecting personal data. The notion that the number of miles a person uses a public highway is somehow personal data is puzzling. I don’t know how Washington state handles vehicle inspections and mandatory liability insurance, but in Pennsylvania, odometer readings are collected when vehicles undergo annual safety inspections, and when vehicle registration renewals are filed. Also factoring into the equation is the increasing connectivity between vehicles and manufacturer and other services that track all sorts of vehicle information, including mileage, in connection with safety and maintenance of the vehicle.
The article also pointed out that the annual survey undertaken by the San Jose State University Mineta Transportation Institute demonstrates growing support for mileage-based road fees. There also is increasing support for special rates for low-income drivers, and rates that reflect pollution generated by a vehicle. The latter concept makes sense, because vehicle pollution contributes to road deterioration, just as heavier vehicles cause more wear and tear. The need to lower rates for low-income drivers makes little sense when one considers that the fuel tax rate is the same for all drivers, and that a mileage-based road fee would replace, not supplement, the fuel tax that low-income drivers are already paying.
Whether I see a wholesale replacement of the fuel tax with a mileage-based road fee during my lifetime remains to be seen. The actuaries and political pundits can compute the odds. I can’t.
Monday, June 26, 2023
As often is the case with tax issues, before the tax question can be analyzed there is a need to look at the underlying concerns. In Illinois, it is illegal to take something from another person’s private property, even if it appears to be trash. But if it is on public property, such as the street, then it is not illegal to take it, though as a child I was taught to knock on the neighbor’s door and ask. It’s the polite thing to do. What constitutes public property depends on state and local law. In some jurisdictions, the sidewalk and the grass strip between the sidewalk and the street are public property.
If the item is taken legally, when the person donates it to a charity and gets a receipt indicating that the property is worth, say, $100, then the taxpayer, by claiming a charitable contribution deduction for $100, also is admitting that the item was worth $100 when taken (barring some unusual instance in which the taxpayer did work on the item before donating it). When the $100 item is taken by the taxpayer from the trash, the taxpayer has $100 of gross income. How would the IRS catch this? From the paperwork that must be filed, which asks how the donated property was acquired. At least, that’s the theory. It’s a wash. Worse, if the taxpayer’s other itemized deductions do not exceed the standard deduction, the charitable contribution deduction is worthless. So the taxpayer probably doesn’t claim the deduction and probably omits the gross income. The IRS probably detect the transactions. But it’s still a wash.
But suppose the taxpayer can use the deduction because the other itemized deductions exceed the standard deduction. And suppose the item is taken illegally. In this case, there still is gross income, because gross income exists for the same reason embezzlement proceeds are included in gross income. But there would be no right to a charitable contribution deduction because that deduction is limited to gifts of money and property owned by the taxpayer. The taxpayer does not own the item of trash stolen from the neighbor’s private property.
The article to which reader Morris directed my attention advises readers to look at the IRS website or consult with a CPA or attorney. Good advice.
I see here an exam question for use in a basic federal income tax course. Better yet, it could pop up on a bar exam, because bar examiners prefer questions that require examinees to work with multiple areas of law. This question involves application of property law, criminal law, and tax law. Fun.
Wednesday, June 21, 2023
On September 8, 2022, the IRS sent a notice of deficiency dated September 12, 2022, to the taxpayer. The notice provided that the deadline for filing a petition with the Tax Court for redetermination was December 12, 2022.
Before December 12, 2022, the taxpayer set up an account to file an electronic petition through DAWSON, the Tax Court’s electronic filing system. During the evening of December 12, 2022, the taxpayer started the process of filing the petition. At 9:59 p.m. EDT, he downloaded the necessary PDF forms to his Android mobile phone but he was unable to fill out the forms on the phone. Shortly after 11 p.m. EDT on December 12, 2022, the taxpayer tried to file his petition from his phone. At 11:03:07.442, he logged into DAWSON.. At 11:43:53.728 he logged in again. The taxpayer stated that between 11:03 p.m. and 11:44 p.m., when he was logged out from the phone for the rest of the evening, he tried to upload documents but DAWSON “would not even allow [him] to click the button to upload the documents from [his] android device even after several times of login in and logging out.”
At that point, the taxpayer switched to his Windows computer, presumably a laptop or desktop, shortly before midnight. He need time to send the filled out forms from his phone to his email so he could download them to his computer. The Court noted that this explanation, using forms filled out on the phone, conflicts with the taxpayer’s statement that he was unable to fill out the forms on his phone, but because neither statement is material to the outcome, the Court accepted both as true. At 11:56:15.88, he tried to log into DAWSON from his computer but was unsuccessful. The Court noted that within one second of that time another user successfully logged into DAWSON. At 11:57:21. 379, the taxpayer did log into DAWSON successfully. The taxpayer explained that after he logged in and started the filing process he was slowed down by having “to do 3 other steps” before he could actually file his petition. He also explained that he had to refer to the filing instruction several times. During this entire time, DAWSON was fully operational.
The taxpayer began to upload the petition at 00:00:09.493 on December 13, 2022. At 00:00:11.693 (11 seconds after midnight) on December 13, 2022, the petition was filed. The DAWSON system automatically applied a cover sheet to the petition that states that the petition was electronically filed and received at “12/13/22 12:00 am.”
On January 25, 2023, the IRS file a motion to dismiss for lack of jurisdiction. The IRS argued the petition was filed late because the period for filing the petition ended at 11:59 p.m. on December 12, 2022. The IRS pointed out that the taxpayer did not begin to file the petition until after that time. The IRS also pointed out that because DAWSON, which is a filing location, was operational the entire time it could not be considered inaccessible or unavailable to the general public, a condition that would postpone the deadline.
The taxpayer filed an objection to the IRS motion. He stated:
I object to this motion due to the fact that I logged in and uploaded documents on time. On December 12, 2022 I attempted several times to upload documents well before midnight. Finally I was able to get it uploaded and it literally did not finish the upload until exactly 12a. I am sure it can be proven that the system had errors and that my upload was loading before cut off time.An amicus brief was filed by the Center for Taxpayer Rights, represented by the Tax Clinic at the Legal Services Center of Harvard Law School. That brief argued that the petition should be treated as filed at the time that the taxpayer relinquished control of it. Although the brief did not ask the Court to apply equitable tolling, it urged the Court to view the timeliness of an electronically filed petition “through the lens of equitable tolling.”
The Court explained that its jurisdiction is limited, and in deficiency cases its jurisdiction is limited to petitions that are timely filed. It lacks authority to extend the deadline. A petition is filed when it is received by the court, and an electronically filed petition “will be considered timely filed if it is electronically filed at or before 11:59 p.m., eastern time, on the last day of the applicable period for filing.” Because electronic filing is not limited to the Court’s business hours, electronic filing systems may extend the number of hours available for filing, but not the number of days. Electronic filing is not accomplished merely by logging into the system or beginning the filing process. The Court concluded that the taxpayer’s petition was not timely filed.
The Court also explained that the timely mailing rule does not apply to electronically filed petitions. It thus rejected the argument made in the amicus brief. The Court also explained that even if it adopted the argument that the petition should be considered filed when the taxpayer gave up control, akin to the timely mailing rule, it would not help the taxpayer because the petition was not relinquished until 9 seconds after midnight when the taxpayer began to upload the petition.
The Court rejected the taxpayer’s claim that DAWSON system errors caused the delay. The Court pointed out that the DAWSON system was fully operational during the time in question. Though inaccessibility of the filing system extends the deadline, inaccessibility on the user’s side does not extend the deadline. The Court compared user problems, such as entering an incorrect password, a Wi-Fi outage, or problems with the user’s device, to traffic jams or car problems that occur on the way to an open courthouse. None of those situations render the electronic filing system inaccessible or otherwise unavailable to the general public.
The Court then stated a version of the principle that I have shared for decades with thousands of students. It stated that the case “exemplifies the risk in last-minute electronic filing. Filing close to the deadline leaves ‘little margin for error.’” That principle was important long before electronic filing came into existence. The issue can arise in various academic situations. If a paper is due by a certain day and time, dropping it off minutes or hours or days later is equivalent to not dropping it off. Though many faculty ignore something being turned in a few minutes late, and though some faculty simply reduce a grade a little bit, the lesson that needs to be taught is that often in practice, being 11 seconds late is equivalent to not being compliant. The Court also stated a related principle, that is, a “prudent litigant or lawyer must allow time for difficulties on the filer’s end.” I have repeatedly advised students to pretend that a deadline is actually a day or two earlier or that a scheduled event is 15 or 30 minutes sooner than the starting time. When I assigned out-of-class exercises, the instructions always contained boilerplate telling students that “I strongly recommend NOT waiting until the last minute to send the message because YOU then bear the risk of the network or email system being down.” Though I cut students some slack when responses arrived a few minutes late, I tried to instill in them a sense of the reality that they will confront in practice.
It is unfortunate that being 11 seconds late prevented the taxpayer from having the Tax Court decide his disagreement with the IRS. Instead, he will need to pay the amount of tax the IRS claims he owes and sue for a refund in federal district court. That is most likely more than an inconvenience because it requires the taxpayer to come up with the money to pay the alleged tax deficiency.
Eleven seconds made all the difference. Eleven seconds.
Friday, June 16, 2023
The proposed North Carolina legislation seeks to deal with funding issues by enacting or tinkering with five different taxes and fees. It would increase the electric vehicle registration fee from $140.25 to $180. It would impose a new $90 annual registration fee on hybrid vehicles. It would amend the sales tax so that it applied to the entire purchase price of a vehicle rather than to the first $66,667. It would enact a new tax on ride-share companies, charging 50 cents for exclusive rides given to one person and 25 cents for shared rides, increasing each year in tandem with the state gasoline tax. It would permit the state to authorize six, rather than the current three, toll road projects based on private-public partnerships.
Would it not be easier, simpler, and most importantly, fairer, to charge vehicles according to the wear and tear they impose on highways rather than enacting and tinkering with five different taxes and fees? Because I’ve written extensively about the superiority of a mileage-based road fee as a solution to the transportation funding issues exacerbated by the advent of electric vehicles, I will simply point out that one criticism of the mileage-based road fee, that it is too complicated to implement, not only is unsupported by the experience of states trying it on a trial basis but also encourages setting aside that fee in favor of the truly complicated and difficult-to-implement hodgepodge of stopgaps such as those contemplated by the North Carolina legislation. Why should people using ride-share vehicles be hit with a tax when people riding in other vehicles don’t share in that burden?
Too often politicians lack the courage to solve a problem directly and efficiently because they are unwilling to help citizens understand what needs to be done and why it needs to be done. They find it easier to enact and amend existing laws in the hope that they can avoid pushback by acting in ways that make their changes seem palatable. The long-term price that is paid for this way of legislating ends up being borne by everyone but the legislators.
Perhaps legislators in North Carolina can avoid the unfairness, inefficiency, and complexity of the proposed legislation and step to the forefront of the transportation funding changes that this nation needs. Perhaps. But don’t hold your breath.
Wednesday, June 07, 2023
This morning, listening to news radio, I heard a report that prompted me to dig up this pending Pennsylvania legislation. The proposed bill would provide a tax credit to individuals who enter the teaching, nursing, or policing professions. The impetus for this proposal is easy to identify. Teachers, nurses, and police officers are leaving their professions, through retirement or resignation, at much higher rates than people are entering those professions. Once again, legislators think that the solution is to throw tax breaks in the direction of the problem.
Many times I have heard, and I’m confident readers have heard, a variation of the exclamation, “You couldn’t get me to do THAT even for a million bucks.” And though sometimes enough financial incentives will prompt people to do things they don’t want to do or would prefer not to do, such as cleaning septic tanks and sewers, there are some things that most people would not do no matter the money.
There is a reason people are abandoning professions such as teaching, nursing, and policing. It’s not the money. It’s the lack of respect, the lack of consideration, the lack of support, and the lack of social pressure to mitigate the problems that make life in those professions miserable. Will a few dollars cause someone to enter the teaching profession or cause a teacher to change their mind and continue teaching in a dilapidated building filled with rowdy students who don’t hesitate to disrespect teachers and even bring violence into the classroom, to say nothing of the intruder who thinks schools are a good place to work out their psychological issues with military-grade weapons? Will a few dollars cause someone to enter the nursing profession or cause a nurse to change their mind and continue nursing in a short-staffed medical facility lacking supplies and visited by a patient who assaults personnel? Will a few dollars cause someone to enter the policing profession or cause a police officer to change their mind and continue policing in a society that has more concern for the criminal than the victim, in a judicial system that puts criminals back on the street before they are rehabilitated, and who are too often in situations where they are outnumbered.
It is easy for legislators to vote for a tax break and claim that they have “taken steps to solve a problem.” It is difficult, and requires political courage, to vote for legislation that focuses on the root causes of the problems. That political courage is easier for legislators to find when people generally stand up and advocate solutions that address those root causes, resisting the influence of the monied lobbyists and those who hesitate to hold people accountable for their actions. And to the extent that money is an issue, and it is in some segments of those professions, then the answer is to raise salaries and benefits, dealing with the issue directly instead of using a more complicated round-about paperwork-filled tax break approach.