Gambling with Tax Liability?

Every once in a while I get lucky and write something that ends up preceding rather than following a tax-related event. Back in October of 2004, I posted a summary of the then-pending American Jobs Creation Act, and pointed out that one of the provisions was

"10. An exclusion from gross income for winnings paid to nonresident aliens from legal wagers initiated outside the United States in pari-mutuel pools on live horse or dog races in the United States. Why not a similar exclusion for residents? Is this provision designed to get all those aliens holding U.S. debt to return it by gambling in the U.S. and losing most of it? If so, why only horses and dogs? Why not an exclusion on ALL gambling winnings by foreigners in the U.S.? If it has something to do with animals, why just horses and dogs?

Sure enough, along comes a poker player who's more than annoyed about the imposition of taxes on poker winnings. Apparently playing poker isn't as tax-favored as betting on the dogs. R. J. Schoettle of Indiana has passed along a story published in the Irish "Taxes and Tips" and available on the Pokerati site, about Andrew Black, who won $1.75 million coming in fifth place in the recent World Series of Poker. Harrah's, which handled the financial aspects of the tournament, informed Black that it had to withhold 30% for federal income taxes, because there is no Ireland-United States tax treaty provision setting aside the otherwise required tax withholding.

Black, rather unhappy, somehow arranged for his prize to be paid to his "backer," who holds a passport from a country that does have such a tax treaty provision. It's unclear from the story whether the backer is from Canada or the United Kingdom. This permitted Harrah's to pay the prize without withholding any taxes. According to the Harrah's staffer handling the paperwork, a woman named Dixie, she was "fine" with the arrangement, under which he transferred his winnings. She stated, "Whatever ... as long as we can do our paperwork to keep the IRS happy."

Will this make the IRS happy? Sure, if happiness for the IRS is tracking down Mr. Black and informing him that (1) he owes federal income tax on the prize, (2) he may owe gift tax on the transfer to his backer, and (3) there may be state, local, or other national governments interested in taxing Mr. Black's prize. Of course, there are two sides to every story, and perhaps Mr. Black and his backer had additional arrangements in place that would change the nature of the transaction.

I took a look at the tax treaty between Ireland and the United States. Article 17 states:

1. Income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio, or television artiste, or a musician, or as a sportsmen, from his personal activities as such exercised in the other Contracting State, which income would be exempt from tax in that other Contracting State under the provisions of Articles 14 (Independent Personal Services) and 15 (Dependent Personal Services), may be taxed in that other State, except where the amount of the gross receipts derived by such entertainer or sportsman, including expenses reimbursed to his or borne on his behalf, from such activities does not exceed twenty thousand United States dollars ($20,000) or its equivalent in Irish pounds for the taxable year concerned.

Translated, that reads "Income derived by a resident of Ireland as ...a sportsman, from his personal activities as such exercised in the United States, .... may be taxed in the United States, [unless it is less than $20,000 for the year].

Is Mr. Black a sportsman? Is gambling a sport? I don't know. I do know that these are questions about which the IRS and Mr. Black could argue. It matters because Mr. Black would not want the income characterized in such a manner as to come within Article 17.

Mr. Black would want to come within Article 14, by demonstrating that gambling is not a sport, and thus does not move him out of Article 14. But can he come within Article 14?

1. Income derived by a resident or a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State, unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base.

2. The term “professional services” includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.

Is gambling a professional service similar to those listed in Article 14?

So, unless Mr. Black demonstrates that gambling is a professional service and not a sport, or unless I've missed some other provision in the treaty that would make a difference, it seems that Mr. Black can't get off the hook for what clearly is a tax on his income. Every student coming out of a basic federal income tax class knows that one cannot avoid income tax liability by transferring income to another person after the fact.

Perhaps it will be difficult for the IRS to track down Mr. Black and collect. Perhaps not. But if he returns to the United States to play in another poker tournament, what's he going to do if there is a lien or other garnishment order hovering over any winnings? I can imagine the IRS proceeding against Mr. Black, his failing to appear, and a default judgment being entered against him, followed by the imposition of some sort of lien on future winnings. Of course, I am speculating, and perhaps Mr. Black intends to file a return and pay a tax. But then why object to the withholding?

Why does amaze me is that someone made this story public by reporting it. Why would the conversation between a payor and a payee get distributed, leaked, or announced to the press? I can't imagine why Mr. Black would have made the matter public. This is all very interesting, and I'd welcome any additional information about the story that might make it easier to analyze the tax issues.

I'll close by noting I've been kind, and have avoided the use of terms such as deal, hand, royal, straight, house, kind, or flush. Especially that last one. Next time, ha ha.

Tax Complexity Ought Not Generate Fear

It’s not all that surprising that the debate over the alleged simplicity or complexity of the Internal Revenue Code continues. This will be my fifth commentary on the topic, the first four appearing here, here, here, and here. Because Kreig Mitchell’s latest posting revives the question of the law professor’s role in the development of tax practitioners’ perceptions of the Code, I welcome the opportunity to share my philosophy about the appropriate approach to teaching complicated legal topics. I’ll let Joe Kristan respond to the first part of Mr. Mitchell’s post, which addresses the question of whether Code complexity is a necessary consequence of all the things legislators use the Code to tackle. On that point, my view is that legislative action has contributed both to the volume of the Code, which does not itself require complexity, and to complexity, because the design of special provisions masking as general law indeed generates complicated language. I also think that there are complex provisions that can be drafted more clearly without changing the substance.

Mr. Mitchell also agrees that the Code is not perfect. Excellent. We’re making progress. But he also contends that any writing, if subjected to the critical analysis to which the Code is subject, will reveal "numerous inconsistencies and ambiguities" but I disagree. Not only is there much writing that presents few if any complicated glitches, it again is no defense that because something or someone is no worse than anyone else that the world should settle for mediocrity. I compare the Code to what it could be, not to the other material that is as bad or worse. That is a critical point, one that is a significant ingredient in the failure of post-modern culture.

Mr. Mitchell points out that using Code complexity as a device to instill fear in clients and to persuade them to pay additional monies for services that may or may not be professional or of high quality is totally unacceptable. On this point, I completely agree. This sort of “milking fear” happens in other areas of the law, and it happens in other professions. Much of the advertising industry reflects this mentality. Playing on fear is unacceptable. My philosophy, that fear is triggered by the unknown, generates more of my philosophy, namely, that intense education in which the student is immersed in the subject, beyond “main rules and interesting issues,” provides the antidote to fear.

Finally, Mr. Mitchell gets to the point that demands a response. He states:

Also, Mr. Maule also states that he does not see how persons who are not sitting in tax classes learn to fear the code if they have not taken the individual tax courses. I would suggest that reading a blog post entitled “The Tax Code is Simple. Not!” might do the trick -- especially if it was penned by a tax professor.

Mr. Mitchell confuses describing something as complicated with instilling fear of the thing that is complicated. The distinction is critical. It is one with which I deal at the beginning of every semester in which I teach the basic tax course. It arises each time a student arrives in my office or sends an email explaining their “fear” or “anxiety” about the tax course because they perceive themselves as incapable of dealing with such a scary topic.

There is no question that the Code, and the tax law, is complicated. So I’m not going to hide that fact. I’m not going to dumb it down. I’m not going to pretend it is easy. I’m not going to swim in the superficial waters of post-modern culture. The Code, and the tax law, is complicated. So let’s just deal with it.

How does one deal with it? One studies it. One immerses one’s self in it. One gets familiar with it. One works with it, under the guidance and tutelage of someone more experienced. Eventually, one begins teaching one’s self and one’s classmates. The key word in this approach is the word “works.” Getting past fear, any fear, requires work. Conquering fear cannot be purchased at Target or Wal-mart. It cannot be received on a silver platter. It cannot be done by someone else. It requires WORK.

At least with law students, and surely with at least some clients, it’s not a matter of ability. The ability is there. It’s a matter of discipline, of persistence, of dedication, of perseverance, of industry, of effort, of all the things that enter into meeting and overcoming a challenge. That is why I tell students, and others, that the Code and tax law are complex, that the complexity is a challenge, and that the challenge either will be met or will block the student’s progress toward becoming a genuinely fine professional. It’s the student’s choice.

Many students, especially those who approach me at the outset shaking (sometimes literally) with fear and anxiety, end up doing well because they follow my advice. So well at times that they find themselves enchanted with tax law and find their spot in practice as a tax practitioner. Others, relying on last year’s outdated outline, looking for the quick and easy path, and putting higher priorities on other things, scrape by, moaning and griping about "all the work" they are required to do. Some simply avoid my course, choosing a path of least resistance. Sometimes I am tempted to conclude that what is feared is the work that is required. Guess what's waiting in the practice world?

There is no reason to fear the Code, or the tax law. That’s because a good educational exploration of tax law dispels that fear. A good educational exploration requires work by the student. That’s why I explained that my students do not contribute to, nor spread, fear of the Code or fear of the tax law among their clients or among other practitioners. Mr. Mitchell comments that he applauds this fact. I’d prefer that he applaud how this fact comes to be so. It’s the approach to learning tax law, which is intense, challenging, and well worth it. Unfortunately, too many people give up when a challenge appears intimidating or scary. That, however, is not how the species makes progress. Challenges exist to provide opportunities for growth.

So, the complexity of the Code and the tax law can be seen as a challenge to be undertaken and overcome. Or it can be played into a source of fear. I prefer the former. That’s how I teach. Tax law presents a demanding challenge, as do some clients and many partners, and one who teaches tax law accordingly must be demanding.

Anyone who reads my posts about the complexity of tax law ought to walk away, not in fear, but with an understanding that to deal with the challenges tax law poses, a person needs to work, with perseverance and diligence. A person may end up feeling disappointment, frustration, or disgust with respect to the tax law and how it is created, but that is not fear. And those feelings are far better than obsequious resignation to the mess that the Code and tax law present to taxpayers and tax practitioners every day.

Complexity ought not generate fear in a person who is willing to work to get past the complexity. Complexity generates fear in those who do not give themselves the chance to undertake a challenge.

Taxes Causing Pornography? Yikes!

No sooner had I reported on the Congressional proposal to impose an excise tax on "regulated pornographic web sites" in yesterday's posting than I heard on the radio a report that Mike Tyson is considering going into the adult film acting business in order to make money that he needs to pay back taxes. A search of the web yielded stories such as this one, which appear to confirm that Tyson did state he has been having discussions with people in the adult film industry. Nothing, though, specifically referred to his tax problems, though Tyson's statement that "My options are pretty minimal, but I will examine them." in the context of his financial situation and the common knowledge that he has had serious tax problems makes the radio report far from implausible.

So wouldn't it be ironic (and a lot of other things) if the adult film industry cranks up its revenues by adding Mike Tyson to its "stars" list because he needed money to pay taxes? Especially when this news is popping up at the same time some members of Congress are trying to use taxes, among other things, to curb the industry's web presence and reach.

For years, I've had a book in the planning stages. It's called "Celebrities in Tax Trouble" and it would be long, because the list of celebrities who have had tax problems is long. But the list of things on my "to do" list with higher priorities also is long and the book idea simply ferments in the back of my mind, occasionally moving into the forward regions when something triggers it. But this Mike Tyson thing might end up changing the title. I'm not going there. Not now. Not in the near future. Maybe after I retire.

It's just getting weirder and weirder in the tax world. Good thing I'm noticing or I'd fit in too easily.

Taxes Solve All Problems? I Doubt It

So a bunch of Senators has decided that the solution to the problem of Internet pornography sites luring children to their pages and products is, yes, a tax.

The full text of Senate Bill 1507 can be found by going to the Thomas Congressional web site. Thanks to Brian Coddington for the permanent link.

Clearly the goal of the bill is worthy. The purpose of the legislation is to "set tighter age verification standards to block minors from entering Internet pornography sites" and to "provide funding and support to law enforcement efforts to combat Internet and pornography-related crimes against children."

The bill imposes age verification requirements. I thought those already existed, but apparently not. Third-parties, such as credit card companies, are prohibited from providing services unless the web site complies with the legislation. That, I think, is something new. The Federal Trade Commission would have authority to regulate these web sites.

Here's the tax part: A new Internal Revenue Code section:

Sec. 4285. Internet display or distribution of pornography.

SEC. 4285. INTERNET DISPLAY OR DISTRIBUTION OF PORNOGRAPHY.

(a) Imposition of Tax- There is imposed on amounts charged by a regulated pornographic Web site for individuals to receive the display or distribution of pornography through the Internet a tax equal to 25 percent of the amounts so charged.

(b) Payment of Tax- The tax imposed by this section shall be paid by the operator of the regulated pornographic Web site receiving payment for the display or distribution taxed under subsection (a).

(c) Definitions- In this section:

(1) PORNOGRAPHY- The term `pornography' has the same meaning as defined in section 2256(2) of title 18, United States Code.

(2) REGULATED PORNOGRAPHIC WEB SITE- The term `regulated pornographic Web site' has the same meaning as defined in section 105 of the Internet Safety and Child Protection Act of 2005.

OK, this one can't be criticized for complexity. It's written in fairly plain English, although it does get away with a cross-reference for what is probably one of the most difficult words to define.

The revenue from the tax would be used to fund enforcement of the act, to fund a tip line, to fund a variety of child protection programs, some administered through the states, to fund research and development into filtering technologies, and to fund education of state agencies dealing with the problem. Any remaining revenue would be used to fund federal agencies, and certain private entities. If any revenue is not needed for these activities, it would be used for deficit reduction.

If it works, this would raise money. According to one of the sponsors, as reported by the Washington Post, the Internet pornography industry nets $12 billion annually.

Here's the problem. Or at least one of them. Most of these web sites are located outside the United States. Does anyone, including the sponsoring Senators, think that they will voluntarily pay this tax? Ha ha. Perhaps the plans are to send the military in to seize assets? What assets? Where?

This is what is called "for show" legislation. Even if it passes, like its predecessors, it will not solve the problem. At least one print version report that I read included a quotation from one Senator to the effect that they didn't think it would be effective but it would send a message. A message? To whom?

What would solve the problem is parental control, education, and discipline of children. That, of course, is asking a lot. Put the computer in the living room or den and look at the screen when the child is using it. That might interfere with the golf game, but, hey, aren't the children worth some attention?

So some members of Congress turn to the only thing that they think works, namely, a tax. To be administered by the Internal Revenue Service. Because it has nothing else to do?

The Internet is global. The problem is global. The solution needs to be global. It requires international agreement. The idea that the United States Congress can unilaterally police the Internet is not only short-sighted and narrow-minded, but a losing proposition.

And if another country imitates this legislation, will there be a credit for a tax paid to that country? Practical application of this theoretical idea is what will generate complicated amendments.

Sometimes tax isn't the answer.

Energy Tax Incentives for Almost None of Us

A little more than a month ago I shared a summary of the tax provisions of the ENERGY POLICY TAX INCENTIVES ACT OF 2005, as approved by the Senate Finance Committee in late June. The bill has been through Conference, and has been signed into law.

Rather than listing its tax provisions again, I'll point out the major differences between the Senate Finance version and the bill that was enacted. My point isn't so much to turn myself or any of you into experts on these provisions (though eventually I'll need to scrutinize them more closely as I update Tax Management portfolios) but to illustrate how politics ravages the tax law. But we knew that!

** Congress added a provision, from the House version, that treats natural gas gathering lines as seven-year property for depreciation purposes.

** Congress added another provision, also from the House version, that treats electricity transmission property as fifteen-year property for depreciation purposes.

** Congress, again picking up something in the House bill that was not in the Senate version, removed some restrictions on the use of 60-month amortization for certainatmospheric pollution control facilities.

** Congress again went to the House bill to adopt a provision making the credit for producing fuel from a non-conventional source part of the general business credit.

** Congress yet again adopted a House bill provision loosening the requirements for deduction of nuclear decommissioning costs.

** Congress adopted another House bill provision, this one exempting prepayments for natural gas from the tax-exempt bond qualification arbitrage restrictions.

** Congress adopted yet another House bill provision, expanding the small refiner exception to certain restrictions on the use of percentage depletion.

** Congress added Indian coal to the list of additional energy sources specified in the Senate bill as newly eligible for the renewable electricity production credit.

** Congress rejected the Senate bill provision making clean energy coal bonds tax-exempt.

** Congress also rejected the Senate's proposed credit for investment in clean coke/cogeneration manufacturing facilities property.

** Congress rejected the changes to the enhanced oil recovery credit that were in the Senate bill.

** Congress adopted, from the House bill, a special excse tax rate for diesel fuel blended with water to form a diesel-water
fuel emulsion.

** Congress also adopted, from the House bill, a provision permitting geological and geophysical costs incurred in connection with oil
and gas exploration in the United States to be amortized over two years.

** Congress rejected the Senate bill provision that would have repealed the scheduled phase-out of the credit for electric vehicles.

** Congress rejected the provisions in the Senate bill making changes to the alternative fuels excise tax credit.

** Congress rejected the Senate bill provision creating a business energy-efficient property deduction.

** Congress rejected the Senate bill provision creating a combined heat and power system property energy credit.

** Congress rejected the Senate bill provision expanding the energy credits allowable against the alternative minimum tax.

** Congress rejected the Senate bill provision treatig underground natural gas storage facilities and cushion gas as ten-year property for depreciation purposes.

** Congress rejected the Senate bill provision creating a credit for equipment for processing or sorting materials gathered through recycling, and instead directed the Secretary of the Treasury, in consultation with the Secretary of Energy, to conduct a study to determine and quantify the energy savings achieved through the recycling of glass, paper, plastic, steel, aluminum, and electronic devices, and to identify tax incentives that would encourage recycling of such material.

** Congress rejected the Senate bill provision creating a credit for investment in pollution control equipment.

** Congress rejected the Senate bill provision creating a credit for the replacement of a non-compliant wood stove
with a compliant solid fuel burning stove.

** Congress rejected the Senate bill provision exempting bulk beds from the excise tax on retail sale of heavy trucks and trailers.

** Congress rejected the Senate bill provision establishing an exclusion for certain fuel costs of rural carpoolers.

** Congress rejected the Senate bill provision treating qualified energy management devices as three-year property.

** Congress rejected the Senate bill provision creating an exception from the tax-exempt bond volume cap for certain cooling facilities.

** Congress rejected the Senate bill provision making changes to the excise tax treatment of kerosene and other excise tax provisions affecting fuels.

** Congress adopted changes to the rules for recapture of section 197 amortization with respect to sales of multiple intangibles, in a provision not present in either the House or Senate bill.

Most of the Senate bill provisions that were adopted were modified in minor ways. Those details will not get attention here at this moment.

I may have missed a few things. Take a look at the Conference Report if you'd prefer to dig into the source material.

I close with these concluding remarks from the Conference Report.

Section 4022(b) of the Internal Revenue Service Reform and Restructuring Act of 1998 (the “IRS Reform Act”) requires the Joint Committee on Taxation (in consultation with the
Internal Revenue Service and the Department of the Treasury) to provide a tax complexity analysis. The complexity analysis is required for all legislation reported by the Senate Committee on Finance, the House Committee on Ways and Means, or any committee of conference if the legislation includes a provision that directly or indirectly amends the Internal Revenue Code (the “Code”) and has widespread applicability to individuals or small businesses.

The staff of the Joint Committee on Taxation has determined that a complexity analysis is not required under section 4022(b) of the IRS Reform Act because the bill contains no provisions that have “widespread applicability” to individuals or small businesses.

So if none of these provisions have widespread applicability, how is this bill going to make a difference with how the population uses energy? If almost everyone is unaffected, how does this bill make a difference in terms of energy conservation and development progress?

That was a rhetorical, sarcastic question.

Worth a Second Glance....?

Every once in a while something happens that makes me wonder if I chose the wrong profession.

Sometimes it's an encounter or experience with another profession that triggers thoughts that it would be more fun.

Sometimes it's reading yet another Congressional text emission dumping thousands more words into the tax law.

Sometimes it's dealing with an aggravating situation or person in the course of doing my work.

And sometimes it's stories such as this one from the Daily Business Review. This sentence alone says it all: "A recent survey of 5,000 people by Salary.com found that lawyers ranked 10th on a list of the top "sexiest" jobs." The full salary.com report is here.

But to rub salt in the wound, consider that the "top three 'hot jobs' were firefighter, flight attendant and chief executive officer." I get the first. But the other two? Let's face it...when it comes to CEOs, it's a money and power thing. So much for romance, ha ha. But aren't lawyers more powerful than CEOs? Lawyers can put CEOs in jail.

Yes, money talks. Even though salary.com reports that salary is not an important factor in determining sex appeal, at least one newly admitted Florida lawyer claims he is successful on the dating scene so long as he mentions his income. According to salary.com, "the median salary for lawyers is more than three times that of news reporters, who ranked third on the sexy jobs list." Soundbite masters ahead of lawyers? Hey, lawyers can put journalists in jail, too.

Worse, "Lawyers ranked just below doctors and just above veterinarians." Interesting company we keep.

Yet, according to the story, "News reporters ranked third, in a three-way tie with interior designers and event planners. That seems preposterous enough to invalidate the whole survey."

Just like the surveys that claim personality, kindness, commitment, a sense of humor, and reliability are what people seek in a mate. Right.

That's why I tell people I'm a teacher. They come in eighth, ahead of lawyers. Then I'm asked what I teach, and by belonging to the 8th and 10th positions I drop to 18th. Then toss in writer, which isn't even on the list, and computer programmer, which also absents the list, and it's downhill at breakneck speed.

Even CPAs got some write-in votes. I knew there was a reason I should have accumulated additional weeks of accounting firm work so I could have sat for that exam. Maybe that would make for the winning combination.

Hey, have a good weekend. Just don't lie about your job tonight, hee hee.

An Interesting Trial Looms

All I'll say is this: if you can't pass the bar exam without knowing the questions and answers in advance, you ought not be permitted to practice law, and if you can't pass an academic exam without knowing the questions and answers in advance, you ought not earn a grade that is deserved only by those who can demonstrate they know how to think.

And this: What is alleged in the case, reported by the Legal Intelligencer, has been known to happen in similar ways in law schools. Tsk, tsk. When is integrity going to become a gateway to advancement?

And this: If the allegations are proven, the repercussions will reverberate far and wide. Hopefully we'll get updates.

Complexity Debate Gains New Participant

Joe Kristan of Roth and Company, P.C., weighs in on the Code complexity debate. His post is short and simple. I salute his farm method of accounting example. Take a look.

In Defense of Complexity?

The recent series of postings concerning the degree to which the Internal Revenue Code is complicted, the last of which is here, has brought a response from Ben Bateman of Amarillo, Texas. Ben's first point:

What's missing in your debate with Mr. Mitchell is agreement on the standard of complexity by which to judge the tax code. You are holding it to some abstract standard of perfection, while I suspect that Mr. Mitchell is comparing it to other statutes. Compared to other statutes, I agree with Mr. Mitchell that title 26 is a model of organization and simplicity, second perhaps only to title 11.

Yet there are standard readability and other word-based objective standards for measuring complexity. I wrote about that some time ago in this post. Much of the Code does not do well under those tests. The Code is not written in plain, simple, straight-forward language. Consider this provision:

For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an organization described in section 501(c)(4), (5), or (6) which would be described in paragraph (2) if it were an organization described in section 501(c)(3).

This is from section 509(a), which deals with tax-exempt entities. Try tossing that at a client affiliated with a tax-exempt organization.

Ben's second point:

For sheer obtuseness, I don't know of any sentence in title 26 that can compare with § 37 of the Texas Probate Code, which packs over 200 words into a single sentence.

Until its repeal, section 341 of the Internal Revenue Code came in at 342 words, 25 parentheticals, 17 commas, 2 dashes, and 1 period. See Steve Willis' Tax Humor page for this and some other doozies. And that's the short list. Ben points out that when spacing, internal subdivision, and margination are taken into account, a provision like section 341 isn't as difficult to read as it would be in the form of one huge batch of text. That's true, but it's no excuse for the Code to fall short of what sapiens sapiens can accomplish.

Ben also notes:

The tax code is complicated in the same way that the dictionary is complicated: There's a lot of information in it. But the information isn't badly organized, and it isn't badly written compared to other statutes.

Another objection I have to the "the Code isn't as bad as the state statutes" argument is that, even though this assertion is true, it reduces things to the lowest common denominator. The fact that many state statutes are just as bad or worse doesn't absolve the Code. It's no claim to fame to be a micrometer above the bottom. Remember that Kreig Mitchell's original point wasn't that the Code was in first place but that it was simple. It's one thing to have NBA-level basketball skills. It's another thing for an adult to stand out when playing basketball with middle school kids. I don't buy the "I'm not as bad as the other person" defense. I want to measure accomplishment against potential. That's how I was raised. And that's how I take on tasks. It's not a matter of rising above others. It's a matter of achieving potential. That's why I detest grading curves that are relative, because they deceive students (and employers and others). And as for organization, I refer again to the failure to put all deductions allowable in computing adjusted gross income in section 62. The Code is decently organized, at best. It isn't as good as it could be. That's the issue. Taxpayers deserve more than "decent job" when what's at stake is not a one-time matter but a permanent Code. For example, are the EITC provisions within "it tells you" to the extent an average taxpayer could understand them? What of the dependency exemption rules? Or the scholarship rules? The list is long. I think sometimes when we work with the Code enough it begins to "make sense"....sort of like closing time at the tavern. True, I teach my students to immerse themselves in the Code so that it loses its mysteriousness and the fear subsides.

Ben then explains:

Many lawyers I know are terrified of tax law because it carries this aura of super-complexity. I'm much more nervous about areas of law in which the relevant statute is badly written or badly organized. Or worse: Even once you understand the statute you don't know the law, because the real law is hidden in the cases or regulations, which are even worse than the statute. In my experience, most law is like IRC § 704(b): An ambiguous statute atop an ocean of impenetrable regulations. But most of the IRC isn't like §704(b). It tells you what it's trying to tell you. It doesn't hide the ball.

I agree there are lawyers terrified of the Code. Why? They haven't bothered to explore it. The familiar is far less like to instill terror than is the unfamiliar. And yes, the regulations are even worse, but why? Because Congress tosses the ball to the IRS. Take a look at section 706(d) and notice how Congress surrendered the completion of the list of cash-basis items to the regulation drafters (who after all these years have yet to step forward with a more complete list). Sure, it can't hide the ball when it hands the ball to the IRS.

Ben concludes with these words:

The tax code could be better, of course. The question is: Better for whom? Lots of different people use it for lots of different purposes. How much simplicity should it have, versus how much precision? How much simpler could anyone really make it? Here's an objective standard of complexity: Is it worth re-writing? In Texas, we just got a new comprehensive statute on business entities to replace an archaic patchwork of statutes dating from the fifties. It took an enormous amount of time to write, and the changeover costs are substantial. But the old statutes were bad enough, and the new one is good enough, to make it worthwhile. If you think that the same is true of the IRC, then maybe you should form a committee and start writing.

Indeed, the Code needs to be rewritten (substantive reforms aside). I'll do it if the Congress asks. Otherwise, any work product would go into the round file. Anecdote: Years ago, when I was in D.C., I drafted a Code provision. The "experts" said something along the lines of, "This is quite good. However, we have a similar provision, nowhere as nicely done, but we need to track it for sake of consistency." That's one of the obstacles to cleaning things up.

In a followup, Ben comments:

I like the IRS approach to presenting tax law, which leaves the actual statute to the professionals while giving the public an array of official publications. It separates ease of access from precision, as the two can never really coexist easily. So if the problem is that the tax law isn't accessible enough for the general public, then the solution lies in that publication system, not in rewriting the tax code.

Yet that's a reason I don't like the current approach. A group of IRS employees explain what they think the Code means, and wherever there is ambiguity it's not uncommon for the IRS to present an explanation favorable to the revenue. Why support a type of guild system under which translators are needed? I know I would not be writing as many (or perhaps as lengthy) portfolios if the Code were written in the language spoken by the people whom it is intended to affect. And the same can be said of many other laws, ranging from parking regulations and zoning ordinances to business licensing and labor laws.

The last thing we need is support for the existing Code mess. I, for one, do not want to be an enabler of the present system or the type of output we currently get. Stuart Levine is correct. The problem is deeper than the Code language. It's the process that generates it that requires fixing. Otherwise, a redrafted Code will soon relapse back into what it is at the moment, because continuation of the current mindset and process will produce more of the same.

Legislators have an obligation to speak and write clearly. Say and write what you mean. Mean what you say and write. Forget soundbites. Avoid duplicity and deceit. Blow away the smoke and break the mirrors.

Deceptive Simplicity: More Code Complexity Debate

Kreig Mitchell has posted an interesting and helpful response to my latest entry in our continuing debate about the complexity of the Internal Revenue Code.

He apologizes for any attack that I perceived to have been made on me. Accepted. I think a defense of the Code's simplicity can be made without characterizing or stereotyping the critic. Mr. Mitchell explains what he perceives to be a connection between how tax is taught and the adverse impact on taxpayers of their fear that the IRS can use a complex Code to do to them whatever it wishes.

I'll bite, though I don't see how taxpayers who have never sat in a law school or accounting program tax course can develop their fears from those courses, other than in the rare instance such as the one cited by Mr. Mitchell, in which a client's law student relative feeds that fear. After all, it would be distressing to think that practitioners who have been through those courses would indoctrinate their clients into that sort of thinking. In this respect, Mr. Mitchell and I share common goal, which is to demystify the Code for our respective audiences. We may have different views on how easy it is to accomplish that goal.

Mr. Mitchell explains how a very stressed client was able to use an index to the Code to find the section pertinent to his problem, and then to read that provision to determine that the IRS was wrong in his particular situation. The taxpayer expressed relief at discovering that "yes" was the answer to his question "is that it?" Granted, sometimes an IRS employee takes a position so at odds with a basic rule that a person who has not been through a tax program can figure it out from the Code. Left for another day is how that happens and why it isn't a good thing that IRS employees take positions so clearly erroneous. But I don't think that the fact the Code is straight-forward with respect to certain issues puts a blanket of simplicity on it.

Let me give an example. If the question is what deductions are allowable in computing adjusted gross income, a Code index would send the reader to section 62. That provision purports to list those deductions, and it is a relatively simple provision, and not too difficult to read. Of course, many students think it is the section that allows the deduction in the first place, when in fact it is classifying deductions allowed by other provisions. That may be one of the "arcane" points to which Mr. Mitchell refers, but it is a critical distinction. Yet that's not the problem. The problem is that there are four (at least, the last time I checked) other deductions allowable in computing adjusted gross income that are not in section 62. The allowance, in computing adjusted gross income, of casualty loss deductions to the extent of casualty gains is the best example. Is it good drafting to put this in section 165(h) and not section 62? No. Now although Stuart Levine explains how this might happen, principally because of working under deadlines and stress, it nonetheless is the sort of sloppiness that creates traps for the unwary. If a client was led by a Code index search to section 62 when seeking deductions allowable in computing adjusted gross income and asked "is that it?" the correct response is no. And when a client, thinking logically, is told that there are other deductions "hidden" elsewhere, the client's reasonable response is that it could be less complicated, couldn't it? This is one example of why the Code does not earn an A, or even a B or C, from me when graded for simplicity and organization.

Mr. Mitchell notes that there have been other instances, including his own academic experiences, in which people teaching tax have impressed on their students the fact that the Code is complicated. Well, it is. The breakdown occurs when the tax student, perhaps experimenting at developing clients who "need" the student's help, uses an "alarm the client" technique. My students are taught that their task is to assist clients and to put them at ease. Perhaps that is not a widely presented point.

However, where Mr. Mitchell and I part company, again, is when he states, "So Mr. Maule, you can continue to tell your students and others that the tax code is hopelessly complex. That is your right." But I don't use the adjective "hopelessly" and that makes all the difference. If I thought it was hopeless I'd be doing something else. I teach my students in a manner that lets them understand (1) the Code IS complex, (2) but it CAN be deciphered, and (3) even though there are a few "easy" provisions, (4) doing the deciphering requires a huge amount of effort. After all, most law students will agree that tax is one of the most, if not most, difficult law school subjects. Most law faculty cannot, and will not, teach tax even though they often claim, on employment applications, that they can teach anything else. Why? The superficial response, "it's boring" masks the truth, "It's way too difficult and much too much work."

Serious harm can be done into making someone think a complex thing is simple. Good teaching, though, moves a student into the complex by taking him or her through a series of layers that begins at the straight-forward and moves to the reality of the complex. Not all Code sentences are complicated. But if the complex ones are removed, there isn't much left. And one has to wonder how simple the simple parts are if an IRS employee can't even get that right even though the taxpayer can. As I tell my students, sometimes you get lucky and have a bright, sensible, accomplished client who can do almost as much with some parts of the law as can a lawyer.

I doubt that most taxpayers would have been able to do what Mr. Mitchell's client did. If the Code were as simple as I wish and think it could be, I'm sure many more clients indeed would be so successful.

Still More Tax Charts

Andrew Mitchel is back at it. I pointed out in this post of three weeks ago that he had put together a collection of charts depicting a variety of corporate tax cases and the reorganization provisions. Then I noted in a followup that he had added a group of section 367 charts to his Andrew Mitchel LLC - International Tax Services web site. Now he has added charts for another 20 cases and rulings (including Aiken Industries, Elkhorn Coal, First Chicago, Vetco, Inc., Rev. Rul. 2003-51, Rev. Rul. 2003-79, Rev. Rul. 2004-59, Rev. Rul. 2004-77, and Rev. Rul. 2004-83.

The best place to start is with his sitemap. Understand I'm a big fan of visuals, whether charts, graphs, pictures, or animation, as a means of teaching and learning something that is complicated. So I repeat, Andrew's web pages are definitely worth a look by those studying, teaching, or working with the statutes, cases, and rulings that he has illustrated.

Can't Rebut the Argument? Attack the Proponent!

My post yesterday challenging the assertion that the Internal Revenue Code is "clear, simple, and well organized" has brought a quick and intense response from the People's Tax Lawyer (Kreig Mitchell) and a nicely reasoned and balanced "middle position" analysis from Stuart Levine.

Mitchell stresses that he is a practitioner. So, too, am I, though no longer on a full-time basis and no longer with taxpayers (aside from a few to whom I dare not say go away). My clients are tax practitioners, directly and indirectly. So when I help a tax practitioner help a client I'm not doing something all that different (if different at all) from what tax practitioners do.

Mitchell writes, "the non-practicing tax professor’s job is to ferret out arcane and obscure rules and fact patterns that may or may not be an issue or even arise in real life. Such a reading of the Code allows the tax professor to test which students deserve the higher mark and which deserve the lower mark." Where Mitchell gets this idea is a question I'd enjoy having answered, because that's not what I do as a tax law professor. There is no time in my courses to ferret out arcane and obscure rules. There's not enough time to deal with the basics. Although occasionally a student complains that I left an exception to an exception for some later day in practice, most appreciate the separation of fundamentals from arcane that characterize the courses that I teach. Granted, some don't quite grasp this until they are in practice and discover that client problems and assignments from partners make my tax courses seem like child's play. My job is to prepare students to learn how to interpret the Code and other tax sources and to learn how to teach themselves as they progress through a career during which there likely will be 20 or more major tax acts changing how they deal with their tax and non-tax clients. Mitchell's assertion reminds me of the students who contend that if they got a question wrong it was because the question addressed an obscure provision. I resist responding that a provision never read is indeed obscure.

Mitchell then attacks academic scholarship:

It also provides academic job security. The process goes something like this. One professor writes an article on some arcane and obscure rule or fact pattern. It is sufficiently long and/or complex so that no one actually reads it. Everyone just assumes that the piece is good and wise and the professor adds another publication notch to his or her belt. Then a second professor writes an article citing the first professor, which adds a publication notch to his or her belt. The process continues until there is a whole mess of writing on an issue that may or may not materialize in real life. Then one or more professors hold themselves out as consultants on the issue -- advising tax planners as to how the issue is important and how they can help their clients avoid it. The process has the trappings of a multi-level marketing scheme. I have not read the particular tax professor’s work, but I think that this is the market for tax translation that the professor mentioned.

Well, as everyone who listens to me or reads my comments on the matter, I'm no fan of typical academic scholarship published in student-edited, and usually untimely, law reviews. I'm somewhat of a misfit in the law school "academy" because my writing, whether articles, book chapters, or books (such as Tax Management Portfolios) focuses on problems that already exist in practice. That's why I keep in contact with practitioners. It lets me find out what's happening in the practice world. Amazingly, and it absolutely amazes me, Mitchell hasn't read any of my writings. Let me be an egomaniac for a moment. How can anyone practice tax and not use Tax Management portfolios, at least now and then? And if anyone is dealing with the income side of tax (in contrast to international or estate and gift), the place to start is with the 8 overview portfolios, all of which have been written by this "particular tax professor." Hmm. That idea of the unread and therefore obscure and arcane provision seems to resurface here. So the accusation that I, or for that matter, any other tax law professor, invents issues that otherwise would not exist and then inject them into the practice world is flat out silly. The few tax law professors who confine their writing to highly theoretical and conceptual explorations are not in a position to so influence practitioners.

Mitchell then contends that

even if these arcane and obscure rules and fact patterns do arise, they have a way of working themselves out. This occurs where the government is not able to recognize the issue; the government recognizes the issue but decides not to pursue it; the government recognizes the issue, pursues it, loses in court, and gives up; or the government recognizes the issue, pursues it, loses in court, and expresses that it will continue to pursue the matter. In the later case it is only a matter of time before the courts or Congress clarifies the issue or the issue becomes a non-issue via one of the previously stated means. In the end, the tax professors are the only ones talking about the issue (typically for many many years).

An issue that affects a taxpayer is not arcane and obscure to that taxpayer. Absent guidance, the taxpayer must choose between safe surrender and risky adventure. Sometimes what little guidance exists comes from things such as Tax Management portfolios. Considering the number of law review articles and Tax Management Portfolios cited by the courts, surely the output of practitioner-focused tax law professors has value. Let me self-promote again. A few years ago, I discovered, thanks to an observant law librarian, that the Department of Justice had cited some of my Tax Management Portfolios in appellate briefs, on more than a few occasions.

Then Mitchell states: "The truth is that a great many tax cases are won on procedural grounds without ever getting to the underlying substantive tax law. Yet very few tax professors write about or even teach tax procedure. The academic world portrays tax procedure as lowly or not worthy of academic study." I must bring this to the attention of the two faculty members who teach a basic and advanced tax procedure course at my school, and, oh, there's one that deals with criminal tax procedure. I devote 2 days at the beginning of the basic tax course taking students through an overview of procedural issues. Every survey result I've seen suggests that J.D. students are getting some exposure to procedure, and LL.M. students are pretty much compelled to take at least one such course. I'd like to see the empirical evidence that supports Mitchell's assertion.

What follows is shocking. He writes, "Rather than teaching the law and skills necessary to do this, tax professors employ their flawed means of reading of the Code to have their students explore the merits of one or two words in the Code." Flawed means? Does Mitchell intend to suggest I (alone or with my colleagues) have turned thousands of students into bumbling tax practitioner fools? Surely such an outcome flies in the face of what my practitioner graduates tell me.

I guess Mitchell doesn't like tax law professors. How else to explain this comment: "But to be fair, reading the Code for arcane and obscure issues and fact patterns is not entirely useless. It does give tax professors something to do, it does allow tax professors to feel like they are contributing something, it does help justify paying tax professors a salary, and in rare cases, it does add to the body of tax knowledge." I wonder what traumatic academic experience brought about such a "paint with a broad brush" attack.

But here is a clue:

This brings back memories of my partnership tax law class. In that class the professor did not simply cover the main rules and point out interesting or novel issues. Instead, the professor went into great detail about very specific fact patterns involving inside and outside basis, tax and cost basis, minimum gain charge back and qualified income offset provisions, and about other minutia. For sure, it was all good information to know. However, the fact patterns presented were very obscure. At the review for the exam one student asked the professor how partnerships could function in the real world given our partnership tax laws and why anyone would set up a partnership given the amount of compliance work that would be required to comply with the partnership tax laws. The tax professor responded by saying that almost no one complies with the law. After graduating and practicing I now know that the professor was partially correct.

First, note the typical desire for "main rules" and "interesting ... issues" in contrast to the nuts and bolts of practice. This is a desire of which most of my students need to be, and are, eventually, disabused. Second, inside and outside basis is a fundamental linchpin of subchapter K. Tossing it off as "minutia" indicates a total lack of appreciation for what partnership taxation is about. Questions from practitioners struggling with real-life, practice world subchapter K issues involving basis, minimum gain chargebacks, and similar issues dominate the ABA-TAX listserv. Why? Because the Code, and yes, the regulations, are not well drafted. So I get to "translate" not only for list participants but for the dozens of practitioners who email me directly. If these are silly arcane issues, why are the practitioners wasting their time with them? Yes, compliance is horrible in this area of tax law. Why? Because people don't take the courses? Because the law (Code, regs) is NOT as simple as Mitchell contends? Because as students practitioners "tuned out" anything past "main rules" and "interesting issues"? Surely, reading the Code through a filtering lens of "main rules" leaves the practitioner with a simple (but erroneous) short and easy text.

Mitchell then states, "In the end, many of the partnership tax issues that were so pertinent in my law school partnership tax class are really non-issues in practice. Even then, I recently read an article by that very same professor complaining about the complexity of our tax code. Go figure." Well, of course, go figure. Yes, I complain about the complexity of the Code. Mitchell claims the Code is clear and simple. (He also claimed not to have read any of my works, but I guess he did.) My partnership tax class focuses on issues that practitioners have presented to me in one way or another. There is a long list of issues I don't cover, because time is scarce and these issues haven't been in the spotlight. Time and again, I cite (anonymously) a practitioner question posed to me on the listserv or directly by email. As law professors in most subjects tell their students, "We don't need to make up this stuff." Time and again former students call or write to express amazement that they are encountering in practice what I predicted they'd encounter (not a grand accomplishment considering in most instances I was relaying information from other practitioners).

When Mitchell writes, "The perspective from the ivory tower is not the only perspective out there," he implies I live in the ivory tower. I don't live in an ivory tower or an ivy-ed tower. That's been one of my hallmark characteristics, and one that, at times, has presented challenges fitting in with the culture of a theoretically-focused non-tax academy. I am surely the last tax law professor on the planet to be accused of being too theoretical, isolated, oblivious to the practice world, or residentially ivy-ed.

Mitchell concludes: "I did not say that the Code was perfect. What I did say is that from my perspective, for all it is to accomplish, the Code is model of clarity and simplicity and it is not too complex." As Stuart Levine points out, compared to most state tax laws the federal Code is high quality. True. And amongst 8-year-olds I'm still a very good basketball player. Analyzing the Code through stadard readability tests, for example, is a far better way to determine its clarity and simplicity. It's been done, and the Code is far from "not too complex." That the Code is not as bad as the regulations, or as some degree of organization, is no high praise.

Mitchell never responded to my specific examples of serious flaws in the drafting and style of the Code. Stuart Levine's post presents a good defense, explaining how the drafting process almost guarantees what we get. Where are the examples of clear, easy to read and understand Code provisions? Where are the readability scores showing the Code as a model of clarity?

Attacking the critic is not a useful response to the criticism. This is especially true when the attack on the critic is groundless. I expect better. My students say I am demanding. I am. I am, because I know that practice will be just as, even more, demanding. It demands something more than a gloss on "main rules" and "interesting issues." It demands a thorough understanding of the details that matter in practice. Arcane or not, if the client has the problem, the issue is real. And if the Code were so simple, why are there so many taxpayers seeking or needing professional tax advice?

I stand by my criticism of Mitchell's assertion that the Code is simple and clear. It's not.

The Code is Simple? NOT!

The People's Tax Lawyer has posted a defense of the Internal Revenue Code, concluding that it is "model of clarity and simplicity for all it is to accomplish" and that it "is not too complex." The People's Tax Lawyer concludes, "Our Code is clear, simple, and well organized."

In all fairness, much of the post is a complaint about failings in the organization and other features of Treasury Regulations. There will be no argument from me that this complaint lacks justification. My students often hear and see specific examples of bad drafting practices evident in the regulations. The cross-referencing in the section 704(b) regulations (e.g., "(1) and (2) of (b)(2)(ii) of this section" rather than "the first two prongs of the three-prong test" is one of my favorite examples).

But to characterize the Code as clear and simple suggests familiarity breeds affection. At least for the People's Tax Lawyer. But not for me. True, the Code is decently organized. It is not well written. Ask any basic tax student about the "bears to" language that could be, as it is in some instances, a simple "multiplied by a fraction, the numerator of which...." construct. Consider that sometimes effective dates are in a code section, other times in uncodified amending legislation. Consider that parts of section 167 that still apply have been repealed. Check out the application of section 1245 to ACRS property, which requires digging through "old' versions of the Code with several amending acts in hand. Consider the numerous uses of the "we'll let the IRS finish writing the statute" approach. Consider the enumeration of a certain number of paragraphs in a subsection, suggesting that there are those number of requirements, when in fact several requirements are buried in the introductory language. Take a peek at section 71(b) to see that inconsistency.

Of course, when one turns to substance, the Code gets even more convoluted. What is the definition of a small business corporation? Yes, which one? Or the "Notwithstanding provision x, a z is not a z if a w has been held for t years during the time that the z would have been a z but for this rule" grammatically absurd and incomprehensibly dense tweaks grafted onto what might otherwise be a clear and cogent definition. Or perhaps it would be fun to count the many different ways inflation adjustments are computed and rounded?

Some of my professional writing for Tax Management, Inc., involves the exposition and analysis of the tax law as found in the Code (the rest involves regulations, rulings, cases, etc.). Much of the time I take what is in the Code and rewrite it, in English. Apparently there is a market for this translation, a conclusion I base on the number of tax practitioners (and others) who use the portfolios in which I do this. Of course, I am joined by several or more hundred other authors providing the same service.

If the Code were so clear and simple as the People's Tax Lawyer contends, things such as Tax Management portfolios would not be necessary. Now, it could be that all the rest of us are lacking some special skill or insight, but I guarantee you there are times I read a Code provision, especially one recently enacted or amended, scratch my head (maybe that's why I'm losing my hair), read it again, read it to myself out loud, try to rewrite it, and sometimes begin inventing words to describe the poor quality of the provision.

And eventually along come the technical corrections. I wonder why those are necessary, he asks sarcastically.

Sorry, People's Tax Lawyer, on this one I flat out disagree. Even accepting the substantive mess that it has to reflect, the Code is not as well organized or drafted as it could be. After all, I think my translations are far less convoluted. I'll let the practitioners score that assertion.

Hello, Taxes

I begin my Introduction to Federal Taxation Class, after getting through the "housekeeping" details, with an illustration of the federal and state income tax liabilities of someone who earns roughly what a first-year associate at a medium-sized Philadelphia law firm would earn. My goal is to orient students to thinking in terms of post-tax income. Why? Primarily to provide an overview of how income taxes are computed, but also to awaken students to the idea that a person who earns $x a year cannot spend $x a year without going into debt, digging into savings, or hitting up relatives for gifts. It's a reality check. Every year there are audible reactions from some students.

Last week I received an email from a former student whose experience with taxes in a work world setting had a more profound impact than did the classroom example. He wrote, with redactions intended to shield his identity:

The reason I am writing is that I now more than ever feel the need for the tax code and current tax structure to be overhauled. As you may recall, I am receiving a fellowship for my work this summer from PIFP. Fellows receive a $4500 total fellowship, but the actual pay is so far removed from this figure. There are six gross payment of 750 each that are disbursed to students over the summer. I was shocked to discover that my last net pay was a mere $580, after two FICA taxes, federal withholding tax, [state Q] state tax, AND a $52 Radnor EMS tax (even though I am not working in Radnor, but in [city D in State R], leaving a meager $580. Is it just me or is there something wrong with the system? Just wanted to send my thoughts to you

Let's take this apart.

1. If all he earns for the year is the $4500, he will have no federal income tax liability. Someone appears to be withholding at a rate based on a $27,000 annual salary. It often happens with summer jobs, and can be prevented by indicating no withholding on the W-4 form. Most people miss that option.

2. As a resident of State Q, he is subject to withholding of state Q income tax. As best as I understand that state's income tax, he will have liability even if he earns only $4500 for the year. I don't think there is a "do not withhold it's only a summer job" option for that state.

3. The two FICA taxes are social security and medicare. Unless the wages are exempt, and in this instance they are not, it's bye-bye to 7.65% of the $4500. In a follow-up email, he indicated that if he dies before working 40 qualifying quarters, the money is gone. I think that is correct. That's simply another aspect of the pyramid scheme of the current FICA system.

4. Why is a Radnor tax withheld when he is a resident of another state and working in yet another one? The answer is that because Villanova is writing the fellowship checks for the work done in the other state, the Radnor tax must be withheld. That's a flaw in the ordinance. The EMS (emergency and municipal services) tax ought not apply to someone who is imposing NO burden on the Radnor emergency or municipal services systems.

5. These arre four different taxes, enacted by three different jurisdictions. Changing the Internal Revenue Code would have no effect on the Radnor EMS tax glitch. Nor would it affect the state Q income tax. Reforming the federal income tax would not fix the FICA problem. In fact, of all the problems, the one that is most transitory and easily handled is the federal income tax W-4 withholding option. I suppose somewhere, somehow I didn't even try to get that point across in class (mostly because it is a small bit on a huge structure to which only 42 50-minute sessions are devoted).

So if a law student who takes a federal income tax course has this sort of taxing experience, what's it like for everyone else? Surely not fun. Perhaps unpleasant.

A Tax Dirt Book. Really.

The story begins when the IRS decides to write a history of its criminal enforcement activities. Presumably it was an anniversary project, as it is called "75 Years of IRS Criminal Investigation History" and covers IRS criminal enforcement from 1919 through 1994. Part of it is a republication of a 1936 summary coveringa mere 17 years of enforcement efforts.

It describes individual cases involving celebrities, public figures, politicians gone bad, organized crime syndicate members, and others. Some of the stories are familiar: Al Capone, George Raft, Teapot Dome, Bobby Baker, and hundreds more. There are names, dates, dollar amounts, and enough material to write several movie scripts, or more.

The story gets even more interesting when the IRS, after sending copies of the book to federal depositary libraries (such as the one at Villanova), determined that it ought not to have done so because of personal tax information in the book. It asked the libraries to return the book. Hah, hah. A Freedom of Information Act request to the IRS for the book brings a heavily redacted document. The horses are out of the barn and the IRS has shut the door and stands guard over it.

Steven Aftergood of the Federation of American Scientists' Project on Government Secrecy scanned the book. Michael Ravnitzky, who brought this to my attention, proofread it. You can find it at The Memory Hole web site.

It's well worth the read. I've read parts of it, skimming through and stopping when I saw a recognizable name. I'm sure when I go back and read about the unfamiliar names I'll find more good tales. Anyone teaching or praticing in the criminal tax law area must read this. The rest of us tax folks should. And taxpayers generally might find some interesting beach or mountain lake reading. After all, the American public seems to like reality shows, and what's more real than a tax fraud case? Talk about FEAR FACTOR. OK, if there's not a movie script, surely a Fox reality show. TAX CHEATS. Talk about desperate. Sorry, it's late.

What a Way for Tax to Meet Apostille

Warren Rojas of Tax Notes, made this connection between my recent posts (here and here) on the word for the streamlined process for authenticating documents internationally and the sentencing of a Hull, Massachusetts, man for bank fraud. The fellow generated false tax and income statements in his wife's name and used those documents to obtain loans. Here's the clincher:

EDELKIND, who filed for bankruptcy in October 1999, used his wife's name on all of the loans. EDELKIND prepared loan applications in his wife's name, listing fictitious employment and income information, backed up by forged tax and payroll records. EDELKIND fabricated a variety of documents, including forged "W-2" Wage and Tax Statements and tax returns. As the loans got larger, the amount of income claimed grew as well. Early in the scheme EDELKIND submitted records showing that his wife had an annual income of roughly $200,000 -- by the end he claimed she earned $1.1 million as Chief Operating Officer of a company called Apostille, Inc.

So even the con artist (who gave an address for Apostille, Inc. that postal authorities said would be in the Atlantic Ocean) knew about this word and I didn't. Proof I don't know everything.

And he used tax forms to do his deeds, too. I knew there was a connection.

More Tax Pictures

Andrew Mitchel is at it again. I pointed out in this post of two weeks ago that he had put together a collection of charts depicting a variety of corporate tax cases and the reorganization provisions. Now he has added a group of section 367 charts to his Andrew Mitchel LLC - International Tax Services web site. Defintely worth a look by those studying, teaching, or using these provisions.

Big Brother Getting Bigger?

Some things don't mix. Oil nd water come to mind. Some things ought not be allowed to mix. Drinking and driving, for example.

So how about this hook-up? Choicepoint and the IRS.

Choicepoint, as most news readers know, from stories such as this one, is a data gathering enterprise that became (in)famous after the personal and confidential records hundreds of thousands of indiividuals were stolen from the company's computers. Now along come the IRS, according to reports such as this one, which awards a 5-year contract to Choicepoint to run IRS data batch processes. The contract could amount to as much as $20 million.

Isn't this nice? Get lax with security, put other people's data, identity and even lives at risk, and be rewarded with a government contract. This suggests that the IRS managers who entered into the arrangement didn't think there was anyone else out there who could be better at what counts, at least not at the specified price.

Fortunately, members of Congress have jumped in to criticize and even attempt to stop the implementation of the contract. Senator Patrick Leahy, joined by Senator Arlen Specter, in a bipartisan effort, has called for a review of the contract to ensure that taxpayer data and privacy are protected. Representative Ed Markey, using a nice word twist, pointed out that the contract left taxpayers with no choice about the destination and spread of their data.

The IRS responded by ordering a full review of the contract. Considering what's at stake and Choicepoint's track record, it had best be a thorough review. I doubt a confirmation of the contract will sit well with people, especially those whose lives have been inconvenienced and ruined by the "make profits at others' expense" philosophy of most big business enterprises.

Other than pressure their legislators, what can taxpayers do? Not much. So, as usual, this falls back on the Congress. It writes the tax laws. It created the IRS. It appropriates tax dollars to the IRS. So it had best do its duty.

Apostille II

No sooner had I posted my "discovery" of the apostille, both word and process, than the English major and expert of the family sent this:

http://switzerland.isyours.com/e/faq/apostille.html
What is an apostille?
An apostille is a special seal applied by an authority to certify that a document is a true [sic] copies of an original. Apostilles are available in countries, which signed the Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents, popularly known as The Hague Convention. This convention, created in 1961, replaces the time consuming chain certification process used so far, where you had to go to four different authorities to get a document certified.
www.wordfocus.com
apo-,
wordinfoap-, aph- (Greek: from, away from, asunder, separate, separation from, derived from; used as a prefix).
tillo-,
wordinfotill- (Greek: to pluck, tear, pull).

So kudos to my sister for digging this up. And thanks. I don't think I would have guessed a Greek origin.

Apostille

One never knows when one will learn something new. For me, this time, it was during a visit with one of my cousins, retired from the diplomatic corps. We were discussing estate planning, and the fact that Portugal, where he owns a property does not "understand" or recognize the trust. The lawyer in Portugal needed some documents, including some tax papers, and they had to be certified.

Once upon a time it worked as follows. Let's assume a county tax document. The document was taken to the county court house, where the clerk certified the document. Then it was forwarded to a state official, who certified that the certifying county clerk was indeed who he or she claimed to be. Then this was forwarded to the state's Department of State, which certified the authenticity of the state official's certification. Then it went, if I am remembering this correctly, to the U.S. State Department, which certified it to the other country's consulate or embassy, and then it made its way to the lawyer in the other country.

Fortunately, the U.S. entered into a treaty that streamlined the process. It calls for something called an APOSTILLE. No, not apostle. After I left, my cousin sent me the link to this explanation of an apostille.

Perhaps you knew about this. I didn't. I've learned some law. So, if you ever need to certify a tax or other document to another country, that's how it's done.

The word apparently is both a noun and a verb. At least it is used as a verb on that web site. Imagine if I used it playing Scrabble. I would be challenged. So would you. Now you have proof it's not a figment of your imagination. According to Webster's, it is a noun, not a verb, and it means " marginal note on a letter or other paper; an annotation". Look at the Webster's site for all sorts of trivia about the word. But I haven't found the origin of the word.

Independence, Taxes, and Homeownership

It's almost Independence Day. It's a day that means a lot of things to a lot of people. We have opportunities unlike those available to most people in the world. For example, what percent of the world's adults own their own home? In some countries, private home ownership is rare or reserved for a privileged few. Sometimes it's economics, but usually it's politics. And often when it is economics, it's really politics in disguise.

That's why the following response to my post several weeks ago on Home Price Sticker Shock is appropriate at the moment. Dave Harmon wrote:

Here in NYC, the housing boom is driving gentrification (bye-bye, Bowery) and pricing the middle class out of town. It was already messing with the demographics and social structure -- especially, police officers either can't afford to live in the communities they serve, or don't dare to (in the slums). Note that the slums are part of the same problem: these are places where the landlords can't score "enough" money from rent, so they don't bother with maintenance, let alone investment. They just wait for the developers to come along and buy them out, often with subsidies from the same City Hall that couldn't be bothered to deal with the neglect. I'm sure there are tax issues in there, but mostly it's just power politics.... ;-(

Well, there is tax in this, from the beneficial impact of the real estate property tax deduction and the home mortgage interest deduction on home ownership, to the debilitating impact of rapidly rising local property taxes on continued ownership by citizens on fixed incomes, to the variety of incentives, gimmicks, and other control features woven into state and local tax law. If housing prices contine to escalate, and of course the question is whether they will, the tradition of private home ownership by the majority of citizens, nurtured and strengthened by American political and socio-economic characteristics, will be in jeopardy.

Why is this so important? I think "pride of ownership" extends beyond care of the home to care of the community. Home owners have an investment flavored wth an emotional attachment not found in other investments (except, perhaps, cars, jewelry and collectibles). There are many freedoms in independence. Homeownership reflects one.

Happy Independence Day.

Taxing Traffic?

This traffic backup/tieup simulator is VERY cool. Run the uphill grade variant and decide if the truck in the left land should be charged an "unwarranted use of left lane for passing beyond capability of truck engine" user fee. The technology exists to do this. Note that in the simulations there are no accidents, bad weather, etc. I was clued into this by a tax faculty colleague. Who says tax profs aren't forward thinking and capable of spotting the cool stuff?

Save Some Energy to Learn More New Tax Law

A little more than a week ago I posted a summary and critique of the energy bill approved by the Senate Finance Committee. Today it passed the Senate, 85-12. I guess my thoughts were influential n D.C. NOT!

Many practitioners tell me that they don't focus on pending legislation because it could turn out to be a wasted investment of precious time. That makes sense, to a point. Perhaps if these things got more attention on the public radar we would see better legislation. Then again, perhaps not. Dave Harmon wrote to me, in response to my critique:

What ever made you think that the energy bill was intended to *help* our energy situation? ;-) Our current administration has a pattern of passing bills and laws that actively interfere with whatever they claim to be protecting or encouraging. "Patriot Act" undermines the Constitution, "Defense of Marriage" would keep (same-sex) people from getting married, "No Child Left Behind" attacks the school systems, "CAN-SPAM" requires you to respond to spammers to (supposedly) get off their lists, and so on ad nauseum.And don't get me started on the Department of Homeland (In-)Security!

Although on some of these issues disageement divides the nation, on others it's almost unanimous: Congress does exactly the opposite of what should be done to accomplish what almost everyone agrees ought to be done. Who welcomes spam? Yet why confirm email addresses as Congress provided? Who wants higher energy costs? Yet who, ultimately, will pay the $11 billion cost of the energy bill, if enacted?

And yes, practitioners, clear some room on your "learn more tax law" calendar. This one's on its way.

Tax Fashion Getting Out of Hand?

My recent post on Taxes, Fashion Sense, and the Internet brought some additional information from Dave Harmon: Apparently Cafe Press will put a customer-provided picture or logo (within limits, I suppose) on t-shirts, mugs, whatever). So.... the possibilities of a MauledAgain mug/t-shirt/keychain endeavor is more than an idle threat. As in quip of a month ago:

My children must be glad they're of legal age. No fear that Dad will crank up some MauledAgain t-shirts for them to wear. Hmm. Wait a minute. MY kids would jump at the idea.

So why am I out looking for souvenirs when I could order them up from home.

But... still don't have a logo. Maybe a hammer (maul, get it>) with IRC on the handle coming down on my head?

More on the News Feed

In response to my announcement that I had put a FeedBurner newsfeed link on the blog, Raj A Kapadia of Mumbai, India, who reads the blog regularly, sent me this news:

Actually, everyone who has a blog on Blogger also gets an Atom NewsFeed, the URL of which is <(URL of the Blog)/atom.xml>. Thus, the URL of the Atom NewsFeed of your Blog is http://mauledagain.blogspot.com/atom.xml. I SHOULD KNOW - I AM SUBSCRIBED TO THAT FEED SINCE THE PAST FEW MONTHS !!

So, again, I learned something. Thanks, Raj.

It leaves me, though, with two questions. I've tried to research an answer to the first but had no success. Haven't tried to figure out the second.

1. How can I find out how many people have news feed subscriptions to the blog? Would that require aggregating statistics from each of the news feed subscription sites?

2. If I post something, and then change it (usually because of typos, sloppy HTML, or experimental HTML that ends up ugly), does the feed get replaced? Does a new feed go out each time I update the post? The one I just did on the tax charts was reposted three times until I could get the HTML the way I wanted it. If it refeeds each time, goodness, it's giving literally meaning to "MauledAgain," hahaha.

So, anyhow, there's a second news feed source for those who are interested in subscribing to the blog.

A Good Job of Picturing Tax

What's going on here? A Saturday post. A Sunday post. Yes, indeed, it's the summer schedule.

I'd like to bring to your attention a very interesting and useful tax resouce on the web that should be of interest to practitioners, tax law professors, and law students. It's the Andrew Mitchel LLC - International Tax Services web site, particularly the two resouces, Charts of Tax Cases and Reorganization Charts. Andrew, who combines an LL.M. and CPA and practices in Connecticut, specializes in international tax. Of course, because one cannot dig into that area of tax without understanding basic tax, corporate tax, and some other areas, Andrew, like the rest of us, worked through a variety of corporate tax cases and the reorganization provisions. And like many of us, he chose to design visualizations of the transactions. Charts, graphs, pictures, anything that appeals to the eye can be a great help in understanding tax law. That's the case here. As many of you know, I'm a very visually-focused person. That's why creating Powerpoint slides for my courses was a snap.... I had been drawing the pictures on the blackboard. Trust me, the Powerpoint visuals are MUCH more legible.

As I tell my students, there's no point in getting into black letter law until one understands the facts. Understanding the transaction often is the chief stumbling block for a tax student, and, of course, for many tax practitioners and judges. Missing facts, distorted facts, unclear facts, all contribute to confusion. "Mapping out" the facts, whether in a chart, matrix, process flow, Venn diagram, or other graphic representation, is essential.

So, take a look, and if you think one or another of Andrew's charts helps, let him know. And if you're thinking of using them beyond your own eyes, ask him permission. As an author, creator, and programmer, I can state unequivocally that he will be most appreciative. And I'm confident he'll be of help in your goals.

Here's what he has in his still-growing collection. Oh, I'm sure he'd welcome some sharing in reverse. Hey, anything that makes digging through tax transactions easier gets my vote.

Charts of Tax Cases

1. Atlas Tool - (D reorganization with boot)

2. Bhada - (Inversion via 351)

3. Chapman - (B reorganization)

4. Court Holding - (Conduit Seller)

5. Davant - (D reorganization with Strawman)

6. Davis - (section 302 - redemption of preferred stock)

7. Esmark - (Tender offer followed by in-kind redemption)

8. Gregory v. Helvering - (Seminal Case on Form vs. Substance)

9. Intermountain Lumber (Busted 351 exchange)

10. King Enterprises - (Two-step Merger)

11. Morris Trust - (Spin-off followed by merger of Distributing)

12. Plantation Patterns - (Guarantor of debt treated as borrower)

13. Smothers - (Liquidation-reincorporation)

14. TSN Liquidating - (Pre-sale distribution)

15. Waterman Steamship - (Pre-sale distribution)

16. Yoc Heating - (pre-section 338 QSP followed by failed reorganization)

17. Zenz v. Quinlivan - (Part sale / part redemption)

18. Rev. Rul. 67-274 - (Purported B reorg plus Target liquidation is a C reorg)

Reorganization Charts

1. A Reorganization

2. B Reorganization

3. C Reorganization

4. D Reorganization (acquisitive - i.e., not a 355 type transaction)

5. A Reorganization with a drop-down

6. B Reorganization with a drop-down

7. C Reorganization with a drop-down

8. D Reorganization with a drop-down

9. Forward Triangular Merger

Taxes, Fashion Sense, and the Internet

Perhaps this is one of the great contributions of the internet to culture. Someone has an idea, and it can be shared with the world in the blink of an eye.

Take a look at this merchandising site. Click on any one of the apparel items and then click on the "Click to enlarge" link so that you can read what it says.

Then think.....

Someone came up with the idea.

Someone manufactures the items.

People are buying the items.

People are wearing the items.

It's all the talk of the ABA-TAX listserve, and it's just been posted to the tax law professors' list. It's spreading faster than bad tax legislation.

Understand, I have, so I am told, no fashion sense. I manage to remember that I am a "winter" and should stick with jewel tone colors. That's why you see me (if you see me) in plain black, navy blue, and the like.

Yet even I know that wearing one of these to a party isn't going to trigger conversation with folks suddenly curious about the tax adventures of a blogging law professor, or the fashion mishaps of a tax blogger. I have a feeling that there is ONE of these items in existence that says on the back "I INVENTED THIS" and that is the direction in which all the folks at the party will head for invigorating conversations. Entrepreneurs... they'll do it every time.

OK, so I'm annoyed I didn't come up with the idea. Even if I had, I don't think I'd be wearing it. Unless, of course, someone paid me $500,000. On principles of fashion, I can compromise. For $500,000. Sure.

The Summertime of Tax

Summer officially began several days ago. At least for the astronomers, climatologists, weather forecasters, and anyone paying attention to the length of the day. For me, it begins today. Why? After all, classes have been done for 7 weeks ago, grades were turned in (by me) more than a month ago, graduation was a month ago, and grades were distributed to students two weeks ago. Summer begins today, for me, because yesterday was the last scheduled faculty meeting (though at the last minute it did not happen), I have prepared my fall courses (except for the things that cannot and should not be done until August, such as configuring some of the technology, making updates to reflect relevant tax law changes popping up during the next 6 weeks, possibly changing from infrared to wireless student response pads ("clickers"), and printing out what needs to be printed for the course), I have reached a natural breakpoint in the revision of Tax Management Portfolio 505, and I have finished the semi-annual archiving of email. Oh, and I tidied up the office, to the point where I could wash down the desktops and one can now see more open space on the desk and tables than not.

This means that during the next 6 weeks my posting will be irregular rather than the Monday, Wednesday, Friday, and occasional other day pattern into which it had slipped. With the arrival of summer, my patterns change and I won't necessarily be at a computer on Monday, Wednesday and Friday mornings. Indeed, it is almost certain I won't be. But I'll show up at unannounced times, share some thoughts, and then disappear again for a couple of days.

I know many of you stop by regularly to see what I've added, and that irregular posting makes that a chore. So, I've added a feature to the blog. I was inspired to do this when an ABA-TAX listserve participant asked me how to subscribe to MauledAgain. Once I got the "he wants to BUY a subscription, what has happened to him?" momentary shock out of my mind, I realized what he was describing. News feeds. I knew they existed, I hadn't done much with them, and yet I realized that it was only a matter of time. So the time has arrived. If you use a news reader you can click on the news feed icon on this blog, and set up your news reader to automatically show a posting when something gets posted to MauledAgain. If you don't use a news reader but want to use one, the folks at Blogger and at FeedBurner recommend FeedDemon. I'm sure there are other news readers available that would meet your needs.

Anyhow, I'd be most appreciative if someone using a news reader tries this and lets me know if it works. At the moment, all has been set up and in theory it should operate, but you know how I distrust relying on untested theory. And I'm not content trying it myself when the point is to have it work properly for others.

On a slightly different note, you may enjoy a story passed along to me by a non-blogging colleague. According to this ABA Journal e-report, it is likely that a lawyer's blog that contains advertising content or otherwise invites readers to use the lawyers services would constitute advertising and be subject to the state rules regulating lawyer advertising. That's not surprising or unreasonable. The catch is that in at least one state, Kentucky, a lawyer must pay a $50 fee each time he or she issues advertising. The Kentucky Attorneys' Advertising Commission is studying the question of whether a $50 fee must be paid each time the lawyer posts to the blog. Yikes, that would bankrupt me! Interestingly, the lawyer who noticed the issue is the former chief bar counsel for the Kentucky Bar Association, and he thinks the reason the issue is just now hitting the radar is that he may be the first lawyer in Kentucky to have a blog. Wow. His blog, incidentally, is well worth a visit; after all, it's the Legal Ethics blog, by Ben Cowgill. His "what? $50" story spread through the Internet like lightning. I'm just a wee bit slow catching up to it.

That's all for now. Another sign that it is officially summer is that tax news doesn't come in the torrents that characterize fall, when Congress faces deadlines for enacting legislation, winter, when thoughts turn to the tax filing season, and spring, when everyone, it seems, is writing something about tax as April 15 looms. But I have a few things on the back burner, including thoughts about the latest failure in the continuing saga of the attempt to repeal the antiquated Philadelphia gross receipts tax, the current chapter of which is not yet complete.

Back next week.

Sole Proprietorship as Corporation?

Sometimes the simplest of tax questions can trigger the most complex of discussions.

The question put to the ABA-TAX listserve was simple. Can a sole proprietor elect, under the check-the-box regulations, to be treated as a corporation for federal tax purposes? The question was raised by someone who attended a CPE session, was told that a sole proprietorship COULD elect to be treated as a corporation, and who had trouble, understandably, accepting the correctness of the statement.

Those voicing an opinion offered all sorts of rationales and explanations to support one or the other of the championed answers. How could that be? A look at the check-the-box regulations reveals not only the absence of any statement addressing the question directly, but also the absence of definition of organization.

The definition of organization is critical because the check-the-box regulations, and almost every flow-chart portraying their rules, begin analysis with the existence of an organization. If there is an organization, , then the door is open to deciding if it will be a corporation, partnership, sole proprietorship, or division of a corporation for federal tax purposes.

The regulations technically begin by stating that they apply for purposes of determining "the classification of various organizations" and specify that "whether an organization is an entity separate from its owners for federal tax purposes is a matter of federal tax law and does not depend on whether the organization is recognized as an entity under local law."

The next logical step would be to define organization. But the regulations don't do that. Instead, they proceed to identify certain "joint undertakings" (such as joint ventures and other contractual arrangements) that "may" create a separate entity for federal tax purposes. They do, if the participants in the undertaking carry on a trade, business, financial operation, or venture and divide the profits from it.

So are the regulations saying, in effect, "In addition to organizations, which may or may not be treated as separate entities for federal tax purposes, certain ventures and arrangements that are not organizations may qualify as separate entities for federal income tax purposes"? In other words, do the regulations provide that an entity can exist even though there is no organization?

The regulations then kick out of the analysis certain organizations out of the analysis. Presumably, there is no question that they are organizations. Thus, organizations wholly owned by a state aren't recognized as separate entities. Considering that states are tax-exempt, this is not an earth-shattering conclusion. Certain Indian tribes are treated as not being entities.

The regulations then point out, specifically, that organizations with a single owner can choose to be recognized or disregarded as entities separate from the owner. Of course, what first comes to mind is the single-member LLC, which is disregarded as an entity (and thus treated either as a sole proprietorship or as a division of a corporation depending on whether the owner is an individual or corporation) unless it elects to be treated as a corporation.

But the fascinating question is this: Is a sole proprietorship an "organization"? If so, it is a single-owner organization and can follow the same path down the flow-chart or through the analysis as does a single-member LLC.

The regulations then push aside organizations that have separate, special treatment under the Code. For example, a REMIC is an organization (or so one can presume), but it is a REMIC and not a partnership, corporation, trust, sole proprietorship, or division of a corporation.

One would expect the next rule to be "An organization is treated as a separate entity if...." but that's not where the regulations go. Instead, on the assumption that organizations treated as separate entities have been identified, the regulations state that "the classification of organizations that are recognized as separate entities is determined under" specified sections of the regulations. Technically, that makes no sense, because it is under one of those specified regulations that a single-member LLC (presumably an organization) is disregarded and NOT recognized as a separate entity. Literally, the provision that treats a single-member LLC as a disregarded (and not separate) entity is in a Regulations provision that one doesn't reach unless one is dealing with an "organization recognized as a separate entity." I'm beginning to wonder what the flow chart used by the regulations drafters looked like. But, just as too many computer programmers don't flow-chart their projects and end up paying a price or causing their customers to pay the price, so, too, failure to flow-chart this sort of regulation means that at some point the IRS, or its customers, we taxpayers, will pay the price.

The regulations then jump to the definition of a business entity, which primarily pushes trusts (and presumably estates) into their own special corner of the tax classification world. These regulations state: "a business entity is any entity recognized for federal tax purposes (including an entity with a single owner that may be disregarded as an entity separate from its owner) that is not ... a trust .. or otherwise subject to special treatment." Again, the use of the language is deficient. If the IRS wants to treat disregarded entities as a subset of recognized entities, which perhaps it is trying to do, it needs to use better phraseology. Otherwise, we end up with recognized entities that are disregarded.

This is the point at which the question, can sole proprietorships elect to be treated as corporations, runs aground. The rest of the regulations, which take business entities and provide for their treatment, don't impact on the specific question.

One argument that was made is that a sole proprietorship is an organization, because it is organized by a person as a means of doing business. In response, one argues that the sole proprietorship is simply an individual and that no separate organizational structure or procedures exist. Even so, under state law X can set up a sole proprietorship under a business name such as "X doing business as Arf's Biscuits." Is Arf's Biscuits an organization?

Another argument that was made is that if a sole proprietorship is not an organization, it can't be an entity as an undertaking or contractual arrangement because the definition requires that there be "participants" who divide the profits. A sole proprietorship has one participant and the profits are not divided.

Another argument was simply that nothing in the regulations states that a sole proprietorship cannot be an entity, or an organization, or a business entity. Of course, nothing in the regulations states that a sole proprietorship CAN be an entity, organization, or business entity.

To the same effect was an argument that referred to the Preamble to the regulations, which state that protective elections, made when there is uncertainty about status, are not prohibited. Of course, a protective election is simply that, a contingent protection that would fail if, in fact, the organization, entity, or other existence does not qualify to make the election.

I argued somewhat more obliquely. If a tenancy-in-common, "mere cownership" to use the technical phrase, cannot be an entity, can a tenancy-by-one's-self (a sole proprietorship) be an entity? The response is that joint ownership can be an entity, under the joint undertaking or contractual arrangement rule, if there is sufficient "activity" so why can't a sole proprietorship that engages in the same sort of activity rise to the level of an entity? The counter-response is the absence of participantS to divide the profits.

Another response to my argument brought an interesting twist. The regulations state "Mere co-ownership of property that is maintained, kept in
repair, and rented or leased does not constitute a separate entity for federal tax purposes. For example, if an individual owner, or tenants in common, of farm property lease it to a farmer for a cash rental or a share of the crops, they do not necessarily create a separate entity for federal tax purposes." This language suggests that an individual owners does not necessarily create a separate entity, but because it doesn't state that an individual owners can NEVER create a separate entity, it leaves open the possibility that an individual can create a separate entity in the form of a sole proprietorship.

Several cases were cited, including Williams v. McGowan, in which the court held that the sale of a sole proprietorship is the sale of the assets of the sole proprietorship and not the sale of a single business, or presumably, entity. Also pointed out was the Supreme Court's decision in Morrissey, suggesting that entities are limited to corporations, partnerships, and trusts, but the decision does not explicitly so state. And, of course, that sort of definition of entitly leaves out things not in existence when Morrissey was decided, such as the LLC, and it says nothing of estates, which surely are separate from their executors and beneficiaries (and are very similar to trusts for many purposes).

Some interesting arguments were raised on the basis of what would happen if a sole proprietorship were permitted to elect to be treated as a corporation for federal tax purposes. One, citing Braswell v US, asks if the individual would lose the right to raise, as a sole proprietor, the "act of production" privilege under the Fifth Amendment? Would profits retained by the individual generate dividends or interest? If the sole proprietor ceases doing business, is the corporation dissolved, with its attendant liquidation consequences? If not, would retention of interest-bearing accounts create a personal holding company?

Well, one enterprising participant in the discussion, sought a response from the IRS Email Tax Law Assistance. Having known this particular participant for many years, I'm not surprised that he took the initiative to find out what the IRS thinks. The short answer is that the IRS said, "No, a sole proprietorship cannot elect to be treated as a corporation."

The longer analysis is interesting. The IRS cited the regulations that apply to the definition of business entity, but not the regulations that deal with organizations and joint undertakings, which is where most of the discussion, and my analysis, turned its attention. The IRS stated "A business entity does not include a sole proprietorship not classified as a single owner entity disregarded from its owner (an LLC under state law). A sole proprietor is not an entity in and of itself thus, this election cannot be made." Of course, the cited regulations do NOT make this statement. The IRS also quoted the regulations that deal with the consequences of changing classification, but those, to me, provide nothing in the way of guidance.

So now we know what the IRS thinks. I agree with its position. But I don't think the IRS provided persuasive reasoning. The arguments raised by those discussing the question, on both sides, were far more cogent. Why not simply state, "A sole proprietorship is not an organization, and because it does not have more than one participant, it is not a joint undertaking. Accordingly, it is not an entity, and because it is not an entity it is not a business entity for which an election to be treated as a corporation is available."? Isn't that the gist of what the IRS wants to say?

I learned two other things from this discussion. Well, maybe I ought to say that two things I knew or suspected were reinforced. First, the active members of the ABA-TAX listserve can really get into a tax law discussion, of the quality and scope one likes to see from a law school class on a Blackboard virtual classroom discussion board. Second, things get said at CPE and CLE sessions that are flat out wrong, and risking intrusion into another topic, there's no supervision of what is said, and no evaluative mechanism to determine if those attending the sessions have learned anything. Of course, most CLE and CPE sessions are of high quality, and some attendees learn at least something, but there's more education experienced on the ABA-TAX listserve by its active participants and readers than happens for some people in some CLE and CPE sessions.

And, oh won't my students be so appreciative, that another examination question has crawled out of the many pages of discussion that traversed the ethernet during the past few weeks. The best part, for many, I suppose, was that I deliberately sat back and said nothing until near the end. I think some people thought I had email laryngitis. No such luck.