Apologizing for the Tax Law Efforts of the Congress

A few days ago, I received an email from a reader, and with the reader's permission, I share it:

I enjoy your commentaries; keep them coming.

Twice this week, I found myself apologizing to clients for bad tax law written by Congress.

The first was a client who is an employee with no company-paid health insurance. He asked why the insurance he bought on his own was not an adjustment to income rather than a deduction like his self-employed neighbor. I shrugged and said "bad law."

The next was a couple who received a CP-2000 notice reporting a $3000 gambling winning that was not listed on their tax return. Several apologies here: "I'm sorry you cannot deduct your losses since you don't itemize." "I'm sorry you have to pay tax on $4500 since you are in the Social Security phase-in range." "I'm sorry Social Security is taxable since I don't think President Roosevelt intended it to be." "I'm sorry that the 25000/32000 threshold has not been indexed."

Last tax season I had a client who was furious that her U. S. Civil Service disability pension did not quality her for the stimulus rebate while others with Social Security disability pensions did. I apologized and said "call your Congressman."

The list could go on and on.

If Congress passes laws which I have to apologize for, I submit that they are not doing a good job (maybe I am stating the obvious).

Once again, I learned something from a reader. Though I would have guessed that many tax advisors share with their clients the disappointment and frustration triggered by the mess that is the Internal Revenue Code, it was the first time I encountered a tax advisor who apologized on behalf of the Congress for the thoroughly unacceptable job that it has done with the tax law. In my reply to the reader, I shared this opinion: "It's quite noble of you to apologize on behalf of Congress." It ought not surprise me that as increasing numbers of people look to blame everyone but themselves for their own mistakes and failures, the task of apologizing falls on someone else. I'm not focusing on the standard "I'm sorry" that is offered when someone mentions that they have been the victim of another person's ineptitude or malfeasance. That reaction amounts to "I'm sorry that you are hurting" and not "I'm sorry for the wrongdoer's idiocy or evil-mindedness." It's one thing to commiserate with the client by saying, "I'm sorry that your tax liability is higher than you thought it would be." It's quite another, and very admirable thing, to offer to the client an apology for the way in which Congress has treated the tax law. For someone who is enduring a wrong or a hurt, the "I'm sorry" reactions can come from everyone, but only the true apology can, and should, come from the person or persons who caused the pain.

Indeed it is noble for someone not a member of the Congress to extend a "mea culpa" on behalf of the Congress. I confess that my reaction when students groan in reaction to the bewilderment and frustration sweeping over them as the course works its way through just a small bit of the tax law surely is not an expression of remorse on behalf of the Congress. No, I yield to the temptation to criticize the consequences of the inattention, the ignorance, the vote-grabbing, the currying of favor with special interests, the sloppiness, and the last-minute rushing on the part of Congress that causes the nation to have such an abysmal tax law.

For example, every time I teach the course, students ask me why certain fixed amounts in the Code are indexed for inflation and others are not. They deal not only with the personal exemption and the standard deduction but also the social security taxation threshholds, the capital loss limitation, and the limitation on the active management exception to the passive loss limitation. The former are indexed for inflation. The latter are not. Why? It probably has something to do with budget games being played at the time of enactment, but it surely doesn't reflect any sense of a coherent wholeness to the Code. When students suggest that they could write a paper, I tell them that it would not be particularly difficult to identify all of the fixed amounts in the Code and then to classify them as indexed or not indexed. But, I warn them that such an effort simply gives them the first part of the paper. The second part of the paper would be an explanation of why there is this difference, how it could be justified, and why the arguments for eliminating the difference should or should not be rejected. In other words, they would be asking "What were members of Congress thinking?" And the answer is my favorite response to that sort of question, namely, "Why do you assume they were thinking?"

Creative Tax Argument Gets Drowned

For those who think tax law is boring, there's nothing like an interesting tax case to dispel that notion. Last week, in Langer v. Comr., the Tax Court rejected a most creative argment by the taxpayers.

First, the legal background. Under Internal Revenue Code section 262, personal, living, and family expenses are not deductible. In contrast, under section 162, ordinary and necessary expenses paid or incurred in carrying on a trade or business are deductible, subject to a variety of limitations and exceptions. Under section 212, ordinary and necessary expenses paid or incurred for the production or collection of income or for the management, conservation, or maintenance of property held for the production of income are deductible, also subject to a variety of limitations and exceptions. Under section 280A, if a person uses his or her residence for trade or business purposes, only the portion of residence expenses properly allocable to the trade or business are potentially deductible. The deductions are disallowed to the extent they exceed the gross income generated by the trade or business.

Second, the factual background. A married couple purchased a home and used it as their principal residence. The property included a swimming pool. The wife is a piano teacher, and gives piano lessons at the home. The husband is a former IRS agent, and operates a financial investigation business from the residence. The couple's tax return included a Schedule C for each business. Each Schedule C included deductions related to the operation of a trade or business in the residence. Among those deductions on the Schedule C for the piano lesson business were "swimming pool supplies and maintenance."

Third, the proceedings. The IRS disallowed these, and other, deductions. The dispute ended up in the Tax Court.

Fourth, the outcome. At this point, it makes little sense to try to paraphrase or improve on the Tax Court's reaction:

Mr. Langer testified and attempted to explain how these items were related to the piano teaching business. His arguments are beyond belief and contrary to all reason. We need not address each of the disputed items, but we give one illuminating and representative example. Petitioners argue that $2,446 spent for pool supplies and maintenance are related to Mrs. Langer’s piano teaching because the parents of the students would sit by the pool while waiting for their children to finish a lesson.

Though the argument may seem "beyond belief and contrary to all reason," consider the expenses incurred by a health care professional to provide amusement to patients who are waiting to be seen, or waiting for their child or elderly parent to finish with a physical examination or other medical care. Is the cost of the television in the waiting room deductible, either as a section 179 first-year expensing deduction or under sections 167 and 168 through depreciation deductions? What of the amounts paid for books purchased for children to read? What of the amounts paid for the magazines purchased for patients and their parents or adult children to read while in the waiting area? Are these various amounts in fact deducted? I think so. So why the difference in outcome? One difference is that the expenses of maintaining a swimming pool are not affected by the presence of people sitting near it from time to time. Another difference is that the swimming pool is used for personal purposes whereas the television and reading materials in the health care professional's reading room are used by the patients or their family members and not by the professional who is working in some other area of the office. There is one wrinkle in this analysis. It is not uncommon for health care professionals to subscribe to various general magazines, to read them, to put them in the waiting room when they're finished with them, to pay for them through the business, and to deduct the expense. Technically, the cost of these magazines is not deductible, but it is doubtful that very many, if any at all, of these deductions get attention from the IRS.

I suppose one could say that Mr. Langer's arguments supporting the pool maintenance expense deduction were all wet. One might say they did not flow logically from the Code and regulations. But they have at least made a splash on this blog.

They Tax What?

Here's an interesting tax story that I discovered over the weekend. Apparently, back in 1940, New Jersey enacted a law that permits municipalities to collect a tax from certain utilities based on their ownership of personalty used in doing business. For a telephone company, the tax would be imposed on utility poles, wires, and other land-line equipment. The tax is imposed on a utility only if it is the dominant provider of the service it renders. I have not been successful finding the text of the law, because it apparently has not been codified.

Now, along comes Verizon, which has decided it no longer is the dominant provider of telephone service. It points out that it has been losing more than 35,000 customers each month, as people turn to cable providers and the Internet for phone service. The state attorney general has undertaken to review Verizon's decision to stop paying these local taxes. Considering the impact of the current economic downturn on town finances, this news could not have come at a worse time.

One wonders why a tax would be imposed only on the dominant provider. Was it an attempt to disadvantage the market leader in order to boost the competition and level the playing field? It is a rather interesting way to spread the wealth. Imagine an income tax imposed only on the largest software company, the biggest bank, the top-paid baseball player, and so on. If the tax is intended to put costs on those enjoying the benefits, it ought to be imposed without regard to the market position of the company. If the tax is a charge for the "ugliness" of telephone poles and overhead wires, it ought to be imposed on all companies that have poles and wires. That would include all land-line telephone companies and all cable companies, except to the extent the equipment was underground. But I suppose a user fee could be invented to cover the costs of dealing with the inconveniences of underground wires.

But it gets even more interesting. In digging through title 54 of the New Jersey Annotated Statutes, I discovered some taxes that I've not seen on other lists of taxes (one such list being republished in Deconstructing Tax Myths). In chapter 47B, there is an excise tax on white potatoes. Chapter 47C brings us a tax on asparagus. There is a tax on apples in chapter 47D, and a tax on sweet potatoes in chapter 47E. It appears that these taxes are imposed in order to provide benefits to the industries growing and selling these items. I doubt these are taxes designed to discourage consumption of these products. Nor could they be considered "sin taxes" such as those imposed on cigarettes and alcohol, because I did not see a tax on brussel sprouts. Imagine, eating baby cabbages. For shame! But I suppose there's no tax on those delicacies because people who eat them are doing a favor for those of us who are more than happy to sacrifice brussel sprout consumption for the nutrition of others.

Evading Tax = Self-Help Bailouts?

Four different news items coming along during the past two days have coalesced into a strange thought. All three stories involve the financial relationship between government and business.

The first story broke on Wednesday. In a press release, the Department of Justice announced the indictment of Raoul Weil, a senior executive of an international Swiss bank, for allegedly conspiring with other persons to assist approximately 20,000 taxpayers conceal $20 billion of assets from the IRS. The indictment charges Weil with ordering his employees to enlarge this line of business, even though he knew it would cause them to violate the law. These practices generated annual income of $200 million for the bank. Weil and others at the bank used nominee entities, encrypted laptops, and counter surveillance techniques. More than 3,800 trips to the United States were made by the bank's employees to assist the U.S. taxpayers in dealing with their Swiss bank accounts. Those clients filed false tax returns, omitting the income earned on those accounts and failing to disclose their existence.

The second story has been developing over the past several weeks, and every day brings a new wrinkle. In Potential grows for lame-duck session of Congress, three CNN correspondents explain the twists and turns through which proposals to provide additional assistance to domestic auto manufacturers have journeyed. Though the proposals are as varied, ranging from funding the Big Three's health care costs to supporting a re-tooling to manufacture energy-sensible vehicles, the reaction has generated a divide between those who see additional assistance as opening the door to a bailout of every industry and those who see financial failure of even one of the manufacturers as the trigger for a catastrophic economic collapse.

The third story also broke on Wednesday. As reported in numerous places, including this report, the Secretary of the Treasury announced that none of the $700 billion provided by the bailout legislation would be used for the purposes for which the bailout legislation was enacted, namely, the purchase of mortgage loans and mortgage-linked securities. Instead, the money has been used to purchase stock in banks and to assist AIG. The Secretary of the Treasury noted that perhaps non-bank financial institutions not currently within the scope of the program would be assisted through capital acquisition, including life insurance companies, and property and casualty insurance enterprises. Other plans include some ill-defined concepts of increasing liquidity for certain areas of the credit markets and for supporting new securities lending.

The fourth story, Nutter Goes After Top-50 Business-Tax Ddelinquents, reports that the largest unpaid Philadelphia business tax bill is owned by a defunct medical business, one of whose principals is now practicing through a separate entity. In Physician Says He's Trying to Heal Himself of Tax Mess, Gregory Nelson explained that the former business ceased to exist because of tax problems, though it is unclear if it declared bankruptcy. He attributes the failure to pay taxes as the outcome of trying to provide medical care to patients in poor areas of the city, to the consolidation of the health care industry, to reduced insurance reimbursements, and to higher medical malpractice insurance premiums. In addition to the city taxes, Nelson and his former business have both been named in filings by the federal government for failure to pay over employee withholding taxes. According to the article, the government produced evidence that Nelson earned $800,000, and after Nelson pleaded guilty to wilful failure to pay taxes, he continued to spend money on a center city apartment, a fur, and overnight stays at one of Philadelphia's best hotels. Evidence also showed that he owned more than $300,000 in commercial real estate, an automobile worth more than $50,000, another costing roughly $80,000, and a family home worth roughly $600,000, which eventually was sold in a sheriff's sale. The court had ordered Nelson to live on a set allowance and use the rest of his income to reduce his tax debt, but he did not do so. The city of Philadelphia put his business into receivorship in order to obtain some of the unpaid taxes. At present, the unpaid balance exceeds two million dollars.

When these four stories are considered against the backdrop of how citizens relate to the government in a financial sense, it is not difficult to see how that relationship has gone awry. Some industries that mismanage themselves or that make bad decisions, such as the mortage lending business and the automakers, find ways to get back from the government amounts that are sufficient to eliminate tax liabilities and to cause cash paid by other taxpayers or borrowed from abroad to flow into these industries. This encourages other large industries to jump onto the bailout bandwagon. Other businesses, generally much smaller, convinced that they are not in a position to lobby for similar breaks, take it upon themselves to engage in self-help bailout by ignoring their tax liabilities. Facing what they claim are adverse conditions, they choose to put governments at the bottom of the list of bills that they plan to pay. Their claims of adverse conditions are not unlike those made by the industries that have obtained and that are seeking bailout money, both in terms of the nature of the circumstances and in the inability to accept blame or responsibility for their own actions. In this respect, all of them mirror modern culture, in which the game is to blame everyone but one's self. The mortgage industry blames Congress for the fraudulent and irresponsible lending practices in which it engages. The auto industry blames consumers for its decisions to manufacture vehicles that are energy inefficient even though somehow the Japanese and certain other car companies managed to avoid taking the same path.

Yet another similarity exists between the taxpayers who choose to evade taxes by hiding assets and income or by ignoring tax payment obligations and the industries that claim receipt of bailout money is essential not only to their survival but to the economic health of the nation. Somehow, though presenting a picture of financial misery, the captains of these industries enjoy the same luxurious life style as that in which the tax evaders engage. Executives of AIG were enjoying visits to a high-end resort while present and future taxpayer dollars were bailing out the company. Taxpayers stashing assets in secret Swiss bank accounts continued to enjoy the good life. Someone who chose not to pay federal and city taxes because of alleged financial difficulties managed to own multiple commercial properties and to make high-end purchases.

All of this suggests to me that the problem isn't financial, economic, or monetary. The problem is cultural. The "me generation" has taken root deep within society and most of its institutions. The same mentality that lets some people think they can jump the line by going straight out of the left turn lane causes too many people to think that they are entitled to whatever they can grab and to hang onto it despite laws requiring true freedom in the markets, the payment of taxes, full disclosure, and honest transaction structuring. It's too easy for those acquiring wealth to overlook the contributions others have made to their so-called success. None of this should be surprising. The professor who taught my American Civilization course when I was at Penn, whose international stature escaped me until I read his obituary a few years ago, predicted this outcome. There is a sadness in how quickly the nation evolved from one in which its greatest generation, sacrificing to ensure the nation's survival through depression and world war, predominated to one in which a the country is overshadowed by so many who did not learn the value of sacrifice and the long-term disadvantages of greed.

The solution isn't one of bailouts, tax law changes, or government purchases of ownership in private enterprise. The solution is one of education, the teaching of lessons about short-term and long-term analyses, about the benefits of sacrifice and the evils of greed, about the complex interconnections that make personal wealth accumulation futile in the long run, about the values of cooperative endeavor, about appreciation for how no one succeeds without the assistance of others, about the benefits of truth and the dangers of manipulation, and about the inadequacy of money grabbing as a solution for psychological insecurities. Where and how that gets done is a challenging question. Whether it could be done with sufficient alacrity to avert the next economic manifestation of the underlying problems is problematic. But someone, somewhere, somehow, needs to step up and persuade the American nation that bailout after bailout isn't going to have much more beneficial effect than putting band-aid after band-aid on a stab wound. Slowing the bleeding isn't enough. Stopping it is necessary. And that cannot happen if knives continue to be plunged into the national fabric.

Taxes and Economic Stimulus: Déjà vu All Over Again?

Talk of a second stimulus package is making the rounds on Capitol Hill. The first stimulus legislation, originally marketed as a tax rebate endeavor, had a negligble effect on the economy. A second package, passed by the House in October but dying in the Senate, has been brought back to center economic stage. This time, unlike its predecessor, it's not a vehicle consisting chiefly of tax rebates. Into the mix has been thrown not only tax reductions in the form of tax and withholding reductions rather than rebate checks, but also, according to this story, "extensions in unemployment insurance, food assistance for impoverished Americans and healthcare assistance for seniors and children." In earlier reports, such as this one, the package would include financial assistance to state governments and money for rebuilding the nation's infrastructure. According to this report, some members of Congress want to include money for improving the infrastructure of America's ports of entry. Not unlike tax legislation that grows and grows until every legislator's favorite tax break is included, this package could become a comparable collection of favorite spending measures. Would this work to solve the problems?

When the proposal to issue tax rebates first emerged, before the arrangement was renamed stimulus, I questioned whether it was the appropriate response to what ailed the economy in late 2007. In Who Should Get a Tax Rebate?, I suggested that funneling money to taxpayers made sense only if taxpayers would make better use of the money than would non-taxpayers. That concern eventually went away, when the legislation was modified to funnel the rebate checks in ways that included people without tax liability. I expressed a reservation that the rebate or stimulus program would increase and already bloated federal budget deficit. I noted that the proposal did not address the underlying problem:

So long as consumption exceeds production, so long as more wealth, particularly dollars, flow out of the country than flow into the country, so long as certain items remain in short supply and project to remain that way, the nation's economic and financial health will worsen. Tax rebates will not increase the supply of clean water, oil, natural gas, or any of the other resources mismatched to the demands of the world population.

Unfortunately, the during the ten months since I posted that observation, the nation's economic and financial health indeed worsened.

In Something Better Than a Tax Rebate?, I explored Len Burman's proposal to deal with the financial mess by accelerating the termination of the 2001 federal income tax cuts. The theory is that investors, facing higher capital gains taxes, would sell their assets in 2008 in order to avoid the higher taxes, and would use the sales proceeds to make purchases of what I call high-end assets. I explained my reticence to endorse the proposal for this reason:

My hesitation is that I'm not convinced there is a net long-term benefit from increases in the sales of high-end consumer goods, or perhaps even from increases in the sales of consumer goods generally. Increases in the sales of consumer goods translates into more energy use, more demand for increasingly scarce resources, and more dollars flowing out to the countries producing these consumer goods. Aren't these included among the things causing the lack of confidence that has triggered the recent stock market slide? In the long-term, can the planet handle a never-ending, sometimes slowed upward spiral in the consumption of its resources? At some point, the combination of the federal deficit, the trade deficit, the ensuing decline in the value of the dollar, the declining supply of oil, clean fresh water, copper, and similar resources, the growing world population, and the widening gap between haves and have-nots and the concomitant disappearance of the middle is going to cause something in the highly tensed global and national economic systems to snap. When something snaps, there's no easy prediction as to where the pieces land or what else gets broken. The scary question is whether something already has snapped and we're just now beginning to realize it.

It turns out something had snapped. And it turned out that investors did sell, but for a totally different reason, and under circumstances that did not generate much in the way of capital gains.

Eventually, in Can a Tax Rebate Band-Aid Stop the Economic Bleeding?, though expressing a preference for Burman's idea over the legislation that was crafted, I continued to criticize the tax rebate plan because it would, and it did, increase the federal budget deficit, probably would not be used to make retail purchases but would end up in banks and with creditors as people either saved the money or paid off debt, and predicted that banks and creditors would then loan those deposits in ways that increased consumer debt, which I tagged as a "one of the glaring imbalances in the national economy." Imbalance, indeed. I predicted that it would become much more difficult to borrow, asking, "From whom will they borrow?" I also predicted " the emergence of a small creditor group and massive hordes of debtors" and characterized it as "a recipe for disaster." What I failed to recognize was the extent to which the creditors in that situation would be no better off than the debtors, for there's no economic advantage in being a creditor whose debtors are totally tapped out.

What seems undeniable is that simply transferring cash to individuals, whether through rebate checks or reduced tax withholding, will have the same insignificant impact on the economy as did the earlier stimulus package. Having the money end up in banks, through savings or loan repayment, simply makes the ocean of bailout money flowing to bank shareholders somewhat, and unnecessarily, deeper. Having the money end up abroad to the extent it is used to boost the consumer goods production in other nations does little to create jobs in the United States, one of the few specific goals mentioned by advocate of a second stimulus package. Transmitting the money to state governments simply removes the question to the next level but doesn't address its ultimate disposition.

If direct tax reductions are set aside, there are two core questions that must be addressed. One is whether it makes sense for the federal government to increase its budget deficit by spending money. The other is whether the money, if spent, should be focused on one or more projects at the expense of others.

My thoughts about the infusion into the economy of money borrowed by the federal government need not be repeated. Just as it makes no sense to ask one bankrupt corporation to bailout another, it makes no sense to have a government itself in serious debt borrow more money in order to assist an economy that is debt-stricken. The catch in this reasoning is the assumption that the economy is in debt. It's not. Some segments are in debt, some people are in debt, and some companies are in debt, but the economy still has net positive wealth. Its distribution is awry, and the more skewed that distribution has become, the more the economy has failed to function properly. On a global scale, and on a national scale, the shift of resources from the have nots and the have lesses to the have even mores has been accompanied by a long list of economic ills. This isn't a new phenomenon. Consider the points made in John Steele Gordon, "The Great Crash (of 1792)", in which speculation, credit squeezes, greed, and double-crossing corrupted the economy and, as pointed out in the print version of the story, promises of job creation through the floating of debt failed to come to fruition.

As for spending money, if it's to be spent, does it not make sense for the government to spend its money in ways that permits it to acquire public assets? Is there some sense in funding public works undertakings, through which the nation's bridges, highways, tunnels, libraries, recreation centers, public health facilities, port security assets, firehouses, and other infrastructure is repaired and improved? Would this not create a substantial number of jobs in this country? Would this not increase state and local tax revenue?Would this not put the government in a position, when the economy recovers, to impose user fees on those who benefit from use of these facilities? Would it not amount to a loan by the government, not to bank shareholders and wealthy investors through a bailout plan, but to the American public in the form of useful assets? Is it not better to build and repair tangible assets than to chew through wealth in the form of consumption?

Put to a choice between, on the one hand, tax reductions in the form of rebate checks or withholding reductions, and on the other hand, investment in national infrastructure with future user fee cost recovery, I would select the latter. It will be interesting to see what, if anything, the Congress does.

Tax, Emotionally

For tax practitioners, tax is a rational subject. So, too, is tax law. Occasionally afflicted by illogical provisions, it nonetheless contains a variety of rules, marked by definitions, computations, and limitations, that can be applied, in most instances, by that most rational thing, the computer. Where objectivity fails, it involves issues such as valuation and purpose, raising questions that can be resolved through objective analysis of facts and circumstances.

For many taxpayers, tax appears to be an irrational subject, one that triggers emotions in a serious way. The recently concluded presidential campaign demonstrated that tax is no less a hot-button topic as are the several other issues that can polarize discussion and threaten to polarize a nation. Though it may appear that the principal emotion evoked by the mention of tax is anger, the underlying feeling almost certainly is fear.

Last week, I responded to a request to share my views for a TaxProf Blog post on "Tax Policy Under President Obama." I did so, and my short essay appeared with those contributed by 14 other tax law professors in Tax Policy in the Obama-Biden Administration. Some of the essays attempted to predict what that administration would offer in terms of tax legislation, while others, and some of those that attempted to make predictions, also contained suggestions and discussions of tax theory. In my essay, I emphasized that much of what was promised during the campaign by President-elect Obama would not be enacted or would be significantly modified, that the dire predictions fears made by Senator McCain and his supporters would not come to pass, that the tax law would remain complicated and become even more so, and that changing circumstance would derail some of the campaign proposals. In short, the essay was a preface to my What's Ahead for the Tax Law? post of last Friday. I also noted that the tax law would not change into what I would want it to be, that it would reflect compromise, and that it would continue to generate griping. Though making some rather safe predictions, I also peppered the essay with words such as "perhaps" and "possibly."

Many of the comments that were posted in response to the collection of essays were generally disappointing, though not surprising. It wasn't difficult to pick out the people whose unhappiness at Tuesday's election results and whose apprehensions of impending doom came through loud and clear in their postings. The overused and disproven canard of "socialism" showed its face, as did the assertion that the next administration would steal all the wealth. The essays were described as "a crock" and "embarrassing," threats of tax fraud and voluntary unemploymet were offered, and the fifteen law faculty who contributed were accused of doing nothing more than "discussing their pet peeves and wish lists." One post rested on the assumption that Obama promised to repeal all of the 2001 tax cuts. Another poster advised one of the essay writers to "lay off the meds." The anger is obvious, the fear isn't well hidden, and the ignorance that fertilizes those emotions isn't difficult to find.

The temptation to respond was too strong to resist. I pointed out that someone closely reading my essay would understand that it was not a wish list nor a collection of pet peeves. Though such lists and collections may have surfaced in some of the posts, lumping all of them together as sharing that characteristic is ignorant nonsense. My response also replied to the inquiry, "Does the fact that not one of these experts have any idea of what a President Obama would do, in spite of his innumerable promises, not give a moment's pause?," by explaining that the words "perhaps" and "possibly" were intended to reflect that unpredictability, and by wondering if those words showed up in invisible ink. I closed by sharing the thought that inspired today's post: "Sometimes I wonder whether rational analysis will ever trump emotional reaction."

The fear that taxpayers demonstrate, chiefly through angry comments, is thoroughly disproportionate to the disadvantages that they might face. Joe the Plumber became famous because he expressed his indignation at the very idea that if he managed to generate $250,000 of income -- presumably taxable income -- that his tax bill under Obama's stated plan would be more than that under McCain's stated plan. Had Joe bothered to do his arithmetic, he would have discovered that if his taxable income increased to $260,000, he would pay approximately $400 more under Obama's plan than he would under McCain's plan. Had he thought more, he would have had to admit that in order to make that sort of money he would be taking advantage of employees billed out at rates much higher than their salaries, and that Obama's response was an attempt to instill in Joe the Plumber some sense of obligation to pay back to society a very small portion of the largesse Joe could acquire by conducting business in a nation that protects him, his employees, his contracts, his suppliers, and his business. In other words, Joe, if you do manage to make that sort of money, you can't claim you did it on your own.

Yet somehow, significant numbers of taxpayers, almost none of whom would be disadvantaged by Obama's tax plan, became distressed, angry, and fearful that their wealth would be seized. Almost all of these taxpayers, and perhaps all of them, rallied to the defense of the taxpayers who supposedly would suffer when the tax cut enacted for them eight years ago was revoked or permitted to expire. Why would members of the middle class rush to the defense of the upper class, when the upper class surely won't go bankrupt on account of Obama's tax plan, and when the current economic travails of the middle class are attributable, in no small part, to the stock market and loan-making shenanigans in which those with excess wealth have engaged? Why does it seem so difficult or impossible for the middle class to understand that they are not targets of some wealth confiscation plan? Could it be that clever manipulators have taken the combination of ignorance and fear percolating in the collective subconscious of the middle class and whipped it into a frenzy that makes rational analysis impossible? As many intelligent tax experts, and others, have noted, Joe the Plumber was used.

The appeal to emotion is usually dangerous. It can be effective, but that effectiveness is almost always a short-term phenomenon and a long-term catastrophe. The appeal to emotion underlies most advertising, too much of political campaigning, all hate crimes, and most rumor-mongering. The appeal to emotion is everywhere. It pops up constantly in law school, where students too often begin their arguments or responses to a question from a moot court judge with, "Your Honor, I feel that…" rather than with "Your Honor, careful thought suggests that …" or "Your Honor, sequential analysis of the facts compels a conclusion that …" Though feelings may have a role to play when juries consider punitive damages or the death penalty, it makes little sense to argue that "I feel that section 163(h) allows the deduction." I truly hope that the student, the attorney, the tax practitioner, and the taxpayer would *think* that section 163(h) allows the deduction. Whether section 163(h) allows the deduction is a matter of rational analysis, not of emotional reaction.

The key to muting the anger about tax proposals that has become so rampant in recent weeks is to defuse the fear that fuels it. Fear is broken by knowledge and understanding. Knowledge and understanding are transmitted and acquired through education. The education need not be formal. It is the moral obligation of every educator, whether holding a formal position on a school's faculty or writing a blog, whether teaching a regularly scheduled class or dispensing information on a talk show or news network, to disseminate truth, to refrain from exaggerations and half-truths, to encourage rational discourse and discourage emotion-laden soundbites, and to realize that until fear is dispelled, knowledge cultivated, and understanding acquired, the nation's ability to restore itself, an effort that will involve the tax law in no small part, will be impeded.

What's Ahead for the Tax Law?

Trying to predict what changes will take place in the tax law as we approach 2009 and the commencement of the Obama Administration is a fool's errand. No one knows. Barack Obama does not know. Members of Congress do not know. Tax experts, tax practitioners, tax law professors, and tax return preparers do not know. There are two principal reasons that no one knows. First, legislative proposals get modified, adjusted, expanded, narrowed, and reconstructed as they go through the legislative process. Second, events will take place between now and the date or dates in 2009 when amendments to the Internal Revenue Code are enacted that will influence or even compel changes that had not been contemplated or that had been considered and rejected.

None of that, however, is getting in the way of web site after web site, columnist after columnist, pundit after pundit from venturing into the risky world of making predictions. Although there is some information to be gleaned from party platforms and campaign speeches, there really isn't enough information to make the predictions anything more or less than educated guesses. Many prognosticators simply are presenting what they would like to see happen, even though some of the proposals have very little chance of finding a home in the Code. Others are zeroing in on one or two narrow provisions or proposals, leaving the overall crystal ball analysis to others. I've read enough of these commentaries to conclude that if a tax proposal exists, someone somewhere has come forth with an assurance that it will find life in the Obama Adminstration and the next Congress.

So I'm going to play it safe. Though some have said that other issues will occupy the Administration and keep it from focusing on tax law changes until 2010, I disagree. With one exception, no matter what major issue facing the nation is tackled, the tax law will be amended. In no particular order, because I have no clue as to what the priorities for solving these these problems will be:

Health care? Even the simplest of tweaks will involve changes to at least a handful of Code provisions dealing with medical expenses, health savings accounts, and the like. In Obama's plan is a health care tax credit.

The impending crises in social security and medicare and the shaky status of retirement plans? Much attention has been given to Obama's suggestion that a tax be levied on high level incomes to fund the social security and medicare trusts, and there also are proposals to change the rules currently applicable to private retirement plans, such as eliminating required minimum distributions from plans for taxpayers 70.5 years of age and older.

Energy independence? I guarantee that any program designed to encourage development of alternative energy sources, energy conservation, and similar initiatives will be done principally through the tax law. The precedent is entrenched.

Environmental issues? As is the case with energy independence, proposals being floated will increase the size of the Internal Revenue Code, just as the ideas already enacted have done. Increased credits for clean-fuel vehicles can be found in Obama's tax plan.

Economic downturn? There will be some sort of stimulus payment or, in lieu thereof, some sort of incentive to increase investment, perhaps in the form of an income tax credit for businesses and indivduals making certain types of acquisitions. There will be changes to the taxation of American business activities abroad and to the tax treatment of asset transfers to foreign tax havens.

Fixing problems in the education systems? Obama's plan includes, among other things, an American Opportunity Tax Credit.

The war in Iraq? This is the one major issue that I don't see generating tax law changes. That's ironic, because it's the failure to raise taxes to pay for the war that contributed significantly to the credit crunch.

And whether anyone likes it or not, there are all sorts of tax provisions expiring in 2009 and 2010, some of which, if left alone, would create all sorts of havoc for taxpayers, including the surreal decision facing terminally ill taxpayers facing an estate tax if they survive from December 31, 2010, into 2011. In other words, there will be no choice but for the Obama Administration and the Congress to do something with the tax law.

What won't happen is simplification. There's very little, if any, attempt to remove or consolidate existing provisions. There will be more credits. The actual tax liability computations will become more complicated. The AMT will continue to star in its own horror movie as the once sensible but no longer viable abuse remedy that will not die.

People will continue to complain about the existence of taxes, the amount of taxes that they pay, and the complexity of taxation. Bickering on Capitol Hill will continue, as members of the House and one-third of the Senate begin to focus on the 2010 elections, with tax policy again finding a spot in the center of the stage.

TurboTax will not go out of business. Tax return preparation and tax advising will continue to be growth industries, though whether that will increase employment here or abroad depends on what changes are made to the tax law.

For me, the basic tax course will not become any easier to teach or to take. The same can be said, to a lesser extent, of my other tax courses. There will be even more tax portfolios and book chapters for me to modify and create. There will be no slowdown in the flow of questions posted to the ABA-TAX and similar listservs.

And I will not run out of material for MauledAgain.

Tax Lies Don't Work

It's wonderful that the number of voters who bought into the "Barack Obama voted to raise taxes on everyone earning more than $42,000" misrepresentation were outnumbered by those who recognized not only its falsity but the extent to which it reflected desperation. It's one thing to debate a point on which reasonable minds can differ, such as the degree of progressivity in the income tax that is best for fixing the economy. It's a totally different thing to make false assertions designed to create fear and panic among people genuinely worried about their economic tomorrow.

The supposed tax increase on income exceeding $42,000 was part of a budget bill, and therefore would not become part of the tax law. What's more important is that the budget plan would have increased taxes on unmarried taxpayers earning more than $42,000, but would not have affected married couples or people filing as head of household. An ad that tries to make married couples earning more than $42,000 think that Obama voted to raise their taxes is deceptive and manipulative. It takes unfair advantage of the overwhelming percentage of Americans who, for one reason or another, do not understand the tax laws, the Congressional budget process, or the nuances of legislative drafting.

On Saturday, a McCain canvasser knocked on my door. We had a nice conversation. It was apparent he was disappointed in John McCain but very worried about the economic policies of Barack Obama. Yet his pitch focused chiefly on the well-worn allegations about Obama's past associations. When, however, he tossed the "voted to raise taxes on everyone earning more than $42,000" claim, I stopped him and told him what I do for a living. His crestfallen expression said it all. I saw him again this morning [edit: by the time this posted showed up it was yesterday morning] when I voted. He asked me if I had changed my views. I responded that after hearing the $42,000 question turned into a radio ad, the door had closed.

Let's face it. Even if Obama wanted to raise taxes on everyone earning more than $42,000, and he doesn't want to do that, there's no way that the Congress would go along. Two years from now, all of the House and one-third of the Senate will be up for election. As critical as I am of the Congress, I'll give them credit for not being so callous as to think that their constituencies would be accepting of a tax increase of such a scope. Yes, there will be some folks facing tax increases, or to be precise, revocation of previous tax cuts. Though there has been talk of revoking tax cuts for those with incomes exceeding $250,000 in 2009, it would not surprise me to see them remain in place until they expire in 2010. What does not exist is a consensus to extend those tax cuts past 2010, though it also would not surprise me to see the tax cuts for those earning less than $200,000 renewed so that they do not expire in 2010.

This much is certain. Though there are going to be quite a few amendments to the tax code in 2009, Congress is not going to increase taxes for all taxpayers earning more than $42,000. It's unfortunate that some people cast votes thinking that Congress would do that if Barack Obama were elected. It's even more unfortunate that supposedly responsible candidates permitted those people to be misled.

Americans, Wealth Distribution, and Income Taxes

Last week, in Wealth Redistribution, Socialism, and the Tax Law, I wrote:

The notion that believing in taking from the haves and giving to the have nots makes a person a socialist means that almost every President elected since 1913, and almost every member of Congress elected since that time, is or was a socialist. How do I develop that reading of the GetLiberty assertion? The federal income tax usually takes something from the haves and redistributes it to the have nots, though in recent years it also has taken from the have less and provided more to the already haves. Since 1913, the executive and legislative branch of the federal government has enacted, amended, and administered a progressive federal income tax. Seen in this light, the notion that Obama, or anyone else supporting the progressive federal income tax, is a socialist, is a total canard, a misleading sound-bite designed to mislead those who are emotionally predisposed to dislike taxation.

From what one hears from those trying to equate wealth redistribution through a progressive income tax with socialism, it might appear that wealth distribution through progressive income taxation is some un-American plot by a small group intent on accomplishing something to which most Americans are opposed.

Perhaps to the surprise of some, but surely not to the shock of many others, a recent Gallup poll tells us that 58% of respondents concluded that the current distribution of money and wealth in the United States is not fair and that money and wealth should be more evenly distributed among a larger percentage of the people. Gallup has been asking this question for two decades, though surely its appearance as a hot button topic in the current election prompted Gallup to ask it again. Whenever it has been asked, a majority of those asked the question reached the same conclusion as did the majority of respondents during the most recent questioning. Gallup also asked if wealth should be redistributed through "heavy taxes on the rich," but only 46% of those responding to the poll agreed. Precisely one-half disagreed. These numbers do not differ significantly from the results when Gallup has asked the question in the past, though earlier this year 51 percent agreed.

Unfortunately, at a time when the country needs to be unified, Gallup's follow-up questions demonstrate the depth of the chasm that divides the populace. Among Republicans, roughly two-thirds think that the current distribution of wealth and money is fair, whereas only one-third of independents and 13 percent of Democrats agree with that conclusion. Among Republicans, only 17 percent agree with the proposition that wealth should be redistributed through heavy taxes on the rich, whereas 47 percent of independents and 75 percent of Democrats agree.

Gallup managed to combine the answers to these questions to determine that 41 percent of Americans are what it calls "strong redistributionists," namely, "those who say money and wealth should be more evenly distributed and that the government should do so with heavy taxes on the rich." Another 15 pecent are "non-government redistributionists," namely, "those who say money and wealth should be more evenly distributed but that the government should not attempt to do so with heavy taxes on the rich." That leaves 32 percent who are "anti-distributionists," namely, "those who say the current distribution of money and wealth is fair and who oppose heavy taxes on the rich." Four percent replied that current distribution is fair but that the government should heavily tax the rich. The others replied "don't know" to one or more of the questions.

What this poll tells me is that if opposition to the current distribution of wealth, agreement with the proposition that the tax cuts for the wealthy should be repealed, or both, makes a person a socialist, the majority of Americans are socialists and have been so for many decades. It ought not be surprising that a majority of Americans look at what tax cuts for the wealthy have accomplished and conclude that it isn't something beneficial for the nation. This issue may not be the sole factor in tomorrow's vote, but it certainly appears to be the principal issue. We'll know late tomorrow evening the extent to which saving the wealthy from the proposed repeal of their tax cut mattered to the electorate.

A Truly Frightening Halloween Candy Bar

Today is Halloween. It's also the day that parade honoring the Philadelphia Phillies for their World Series Championship is scheduled to work its way from downtown to the stadium complex. This being Philadelphia, one hopes that what promises to be a long-awaited treat doesn't turn out to be a trick of some sort.

Yes, it's Halloween. Though it began unintentionally, I now focus on this holiday each year when it rolls around. Perhaps it's the connection between candy and Halloween. It surely isn't a break from tax, for I simply haven't succeeding in hiding tax issues behind a mask when October 31 appears on the calendar. Once again, tax leaves its imprint on the world of confections.

Last year, I summed up what I had done for the three previous costumed evenings:

In 2004, I looked at the idea of Taxing "Snack" or "Junk" Food. Those proposals seem to have melted away into the shadows of outright bans enacted by local governments on the use of trans-fats and other injurious food ingredients. But not seeing a ban on candy, I will let this issue settle in for a vampire's sleep. Please, someone, insert a stake through the heart of the dormant candy tax project. Let us not forget, chocolate is medicinal, and most state sales tax statutes exempt medicines from taxation.

In 2005, I had some fun with Halloween and Tax: Scared Yet?. Between trying to use every word associated with Halloween, and trying to find connections between various taxes and the tradition of dishing out candy, I managed not so much to scare people but to make them sick to their stomach, as if they had ingested 15 or 20 non-chocolate candy items.

In 2006, I simply lamented my inability to find four-pack versions of Reese's Peanut Butter Cups. In Happy Halloween: Chocolate Math and Tax Arithmetic, I noted that 2 double-packs isn't quite the same thing. It was a very short post. Imagine that! Perhaps the disappointment in my search for the ideal Halloween hand-out left me at a loss for words.

Last year, in 2007, I added Tricky Treating: Teaching Tax Trumps Tasty Tidbit Transfers, to the list. I again puzzled over the disappearance of the Reese's Peanut Butter Cups four-pack cartons from my usual shopping venues, and I noted that for the first time in six years my teaching obligations would prevent me from greeting the treat solicitors intent on adding weight to their candy bags by knocking on my door. Later that day, I posted Halloween Brings Out the Lunacy, when news broke that the Iowa Department of Revenue had ruled pumpkins are not food because they are used primarily for Halloween decorations.

This year my recognition of Halloween began on Wednesday evening, as I concluded the Partnership Taxation class for that evening. I suggested to my students that if they truly wanted to frighten the daylights out of the treat seekers, they should answer the door while holding open a copy of the Internal Revenue Code. That two-volume witches' brew concoction has sent more than a few hardy souls screaming into the night. Read that thing, and tax will haunt you forever. It might not be the most frightening Halloween tax stunt. Imagine the horrifying effect on party-goers when they show up to find one or more guests dressed up as revenue agents or tax auditors. Not yet petrified? OK, now imagine the ghastly impact of someone arriving dressed as a tax law professor.

The appalling news of the day is that I continue to fail in my effort to find those four-pack Reese's Peanut Butter Cups. I just don't think two two-packs has the same effect, despite the arithmetical equivalency. There's something impressive about not being able to fit the four-pack into those tiny plastic pumpkin candy-holders that get dragged about by children whose parents refuse to let them haul out the pillowcases. So if I can't get a yell of delight by doing the four-pack thing, perhaps I will generate a scream of loathsomeness if I start distributing the candy bar to end all candy bars. Relax, neighborhood children reading this blog. I haven't abandoned the Reese's. Not this year.

Wealth Redistribution, Socialism, and the Tax Law

During the past week, the outpouring of "it's socialism" as a response to the proposal to revoke the tax cuts enacted for those with high-level incomes has continued unabated. For example, over at GetLiberty, the assertion is put forth that "Barack Obama is a socialist who believes in taking from the haves and giving to the have nots." It's unclear whether this assertion claims that Obama is a socialist BECAUSE he "believes in taking from the haves and giving to the have nots" or if the claim is that Obama is a socialist WHO " believes in taking from the haves and giving to the have nots." The latter interpretation suggests that there are socialists who do not believe in "taking from the haves and giving to the have nots." Perhaps there are such socialists, but if they exist, they're not on my radar. What is troubling about the assertion is the former interpretation, which must be the intended one considering that the latter interpretation makes no sense. The notion that believing in taking from the haves and giving to the have nots makes a person a socialist means that almost every President elected since 1913, and almost every member of Congress elected since that time, is or was a socialist. How do I develop that reading of the GetLiberty assertion? The federal income tax usually takes something from the haves and redistributes it to the have nots, though in recent years it also has taken from the have less and provided more to the already haves. Since 1913, the executive and legislative branch of the federal government has enacted, amended, and administered a progressive federal income tax. Seen in this light, the notion that Obama, or anyone else supporting the progressive federal income tax, is a socialist, is a total canard, a misleading sound-bite designed to mislead those who are emotionally predisposed to dislike taxation.

Continuing the dialogue and looking at another implication, should one conclude that those condemning the progressive federal income tax as socialist and advocating the denial of votes for any candidate who supports that tax means that they support a candidate who would repeal the federal income tax? If that is a component of their true and disguised agenda, how would they replace the revenue? I suppose some of them would simply cut federal spending to the level supported by, hmm, tariffs? State and local governments would need to impose exceedingly high taxes to provide the services that all Americans, including those who oppose the income tax, presently enjoy. Aside from the loss of economy of scale obtained when one government rather than 50-plus seek to acquire goods and services at the level demanded by citizens, the coordination of state militias that would replace the Department of Defense, for example, boggles the logistical mind.

I suspect that the goal is to replace the progressive income tax with a flat wage tax. The "he's a socialist" crowd is the same crowd, for the most part, that supports reduction and elimination of taxes on investment, whether it be capital gains, dividends, or interest. Or, putting it more accurately, the folks who jump onto the "taxes are bad" bandwagon are wage earners who don't understand that they are being used to create the illusion of popular resistance to the income tax, so that this illusion can be translated into an elimination of taxes on investment activity. If they were to think about it, they would realize what is intended to replace the current income tax is a flat tax on wages. A quick computation of whether they would be better off or worse off under the "I'm not a socialist" plan might shock them. It might even change their vote.

But there's even more dangerous implications in the tossing about of the words "socialist" and "socialism." On Monday, John McCain parlayed Obama's response to Joe the Plumber into an accusation that Obams wants to be, to use McCain's clever sound-bite words, "Redistributionist in Chief." Aside from the reality that using McCain's definition of the clever phrase, almost every twentieth and twenty-first century president has been the redistributionist in chief, the truly alarming implication is that McCain opens the door to an analysis of federal wealth redistribution policy. During the past decade, the relative wealth of the haves has increased, and the relative position of the have nots has decreased, stayed the same, and in a very few instances, increased though at rates disproportionately lower than the rate at which the haves have gathered more wealth. The issue isn't whether the federal government redistributes assets. By its very nature, it must. The issue is "in what direction is the wealth redistributed?" Any sensible American who thinks about this question, who studies the information readily available with respect to changes in wealth distribution during the past decade, and who carefully analyzes the effect of present tax policy, will come to understand that with respect to the wealth redistribution question, the choice isn't between a redistributionist candidate and a non-redistributionist candidate, but between a candidate whose redistribution policies favor those in need over those wallowing in excess and a candidate who advocates retention and extension of policies that favor the haves over the have nots.

From the perspective of those who understand the lesson of history that civilized society and justice are threatened when there is a growing disparity between the haves and have nots, between the nobility and the peasants, between the cartel owners and the workers, the notion that fixing the current economic crisis by undoing the causes of the damage consititutes socialism is genuinely worrisome. The proposal to "stay the tax course" in order to undo the economic woes that are a consequence of current tax policy is nothing more than a belief that if taxpayers can be duped once or twice, they can be duped a third time. When McCain claims, as he did on Monday, that his plan would "create wealth," "end this crisis," and "restore jobs," he must think no one has the ability to figure out that the very policies he advocates are those that ultimately eroded wealth, created the crisis, and destroyed jobs. When McCain claims his approach will create wealth, he is correct only in the sense that his plan, identical in tax respect to that of the person he seeks to replace, created wealth for the privileged few. If McCain's supporters think that socialism is terrible, and that some sort of "anti-socialism" is in order, then in effect they are telling us that they want four more years of a tax policy with an abysmal track record. The only logic in their argument is that, theoretically, if they keep trying the same disproven approach over and over, it might, perhaps, work. Yes, even a blind squirrel can find a nut.

Those who claim that repealing the discredited tax cuts for the wealthy constitutes socialism because it means redistribution of wealth are resting their case in part on something Obama said seven years ago. Here is what Obama said, in response to a Supreme Court civil rights decision:

But the Supreme Court never ventured into the issues of redistribution of the wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break us free from the essential constraints that were placed by the Founding Fathers in the Constitution … And the Warren Court interpreted, in the same way, that generally the Constitution is a charter of negative liberties … I think there was a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change.

To assist those who, like GetLiberty, label the quotation a "bloviation" because they cannot understand what it means, I will put it into simpler terms. Although the Supreme Court has held, in many cases, including the one on which Obama commented, that it is illegal to treat people differently because of race, ethnic origins, religious affiliation, or gender, the outcome for those who were being mistreated is a shallow victory. Why? Telling someone that they can sit in the front of the bus doesn't help the person who lacks bus fare. Telling someone that they cannot be excluded from a neighborhood because of ethnic origins means little if that person lacks the economic ability to purchase a home. So long as the economic playing field is tilted in favor of those with economic power in the form of excessive wealth, those at the bottom will not be able to get into the economic game. Put bluntly, it's not enough to end physical slavery if the nation continues to wallow in economic slavery. And economic slavery is far more dangerous than physical slavery, for it does not limit itself to any particular race, ethnicity, gender, or religion. Someone earning $6 per hour, with no benefits, working for a company whose CEO pulls down a $70 million salary, enhanced by golden parachutes and tax-free fringe benefits, surely must doubt whether the American dream is something unfairly limited to people other than themselves.

The discussion has turned on the phrase "redistribution of wealth." It doesn't, but should, turn on the notion of "distribution of wealth." Those who oppose redistribution of wealth, particularly redistribution from the haves to the have nots, assume that the unredistributed distribution, the distribution of wealth as it exists untouched by progressive income taxes, is the way it ought to be. They don't question how the wealth distribution ended up as it is. They assume that everyone with excessive wealth acquired it because of some praise-worthy work effort. They ignore the fortune and misfortune of birth. They ignore the corruption and bullying. They ignore the deceit and the theft. They ignore the benefits of monopolies and cartels. They claim that the free market manifests its glory in the wealth distribution patterns that exist. They see the word "free" in the phrase "free market" as meaning "free to do whatever one wants to do to acquire even more wealth" provided that when those who have little or no wealth try to behave in that manner, the much-detested government conveniently is available to slap them back down.

The current economic crisis has caused the wealthy to lose some petty cash. It has caused most Americans to lose or to be at significant risk of losing homes, jobs, dinner money, health care, and retirement resources. To label someone a socialist, and to label an error-correcting tax plan as socialism, under these sorts of circumstances and in a way that misleads the public, is a disservice to the nation. The nation, though, seems to be on the verge of demonstrating that it understands this point very well.

Is Tax Noncompliance by The Rich Worse than by the Super-Rich?

A new study by Prof. Joel B. Slemrod, a University of Michigan business school professor and Andrew Johns of the IRS, The Distribution of Income Tax Noncompliance has provided some surprising and not suprising news about tax compliance. The not surprising news is that 21 percent of taxpayers with annual income between $500,000 and $1,000,000 misreport income and deductions, whereas only 8% of those with annual incomes of $50,000 to $100,000 do so. That's understandable. People with less income have fewer opportunities to avoid taxes with difficult-to-detect schemes, have fewer resources with which to retain tax evasion consultants or to invest in tax avoidance schemes, and have little or no financial cushion to absorb the costs of being caught.

The suprising news is that only 11 percent of taxpayers with annual income exceeding $2,000,000 misreport income and deductions. That outcome is counter-intuitive. Would these taxpayers not have even more resources to devote to tax evasion? One of the study's authors explained, “It could be that the tax gap studies aren't as good at picking up the kinds of noncompliance they would do.” According to the Forbes article on the report, Slemrod noted, “I just don't know whether these audits were able to track down really sophisticated noncompliance or Swiss bank accounts. They may underestimate [noncompliance] at the top.” The answer might be found in an analysis of noncompliance rates for various types of income. Tax practitioners and others know that it is almost impossible to hide wages reported on W-2 forms, and the study confirmed that noncompliance with respect to wage income was 1 percent. Similarly, it is difficult, though not impossible, to hide income reported on Forms 1099, such as interest, dividends, gains, and similar items. In contrast, 62 percent of businesses with income between $50,000 and $75,000 and between $100,000 and $200,000 omitted income, overstated deductions, or both.

At this point, it is not a surprise to learn that, according to the study, taxpayers with true income (reported plus unreported income) of $200,000 or more were responsible for 40 percent of unreported income even though they received only 25% of all income. They also account for 42% of unreported tax. Combined with the data on noncompliance by income type, it appears that the worst noncompliance activity occurs among businesses with $200,000 or more of income. It would not be surprising for the planned additional studies to determine that noncompliance occurs wherever the willingness to evade taxes meets opportunities to do so, and that the opportunity to do so is highest among businesses of moderate size that are subject to the lowest level of reporting obligations. Whether the willingness to evade taxes differs by income class is a question that hopefully will be studied.

Resistance to proposals for better reporting with respect to business transactions usually rests on the assertion that the resulting paperwork burden would be so great that it would impede business activity and impose substantial costs on private enterprise. Although that proposition can be refuted on its own terms, particularly because advances in digital technology make the costs and paperwork minimal, it causes one to wonder whether the underlying motive for opposition is the awareness of how it would shut the door to what presently is massive tax evasion.

One also wonders whether full compliance by businesses with $200,000 or more of income and by taxpayers with incomes between $500,000 and $1,000,000 would generate sufficient revenues to dampen the need for tax increases proposed for taxpayers with incomes exceeding $250,000. Those increases would fall on the compliant. Would it not be better to fund the IRS to the extent necessary so it could collect unreported taxes owed by the noncompliant? If the estimates putting the tax gap at $300 to $400 billion annually are anywhere in the ballpark, there could be $4 trillion somewhere that should have been paid to the Treasury. For all we know, a good chunk of it is overseas. What's fairly certain is that very little of it can be attributed to noncompliance by taxpayers with annual incomes under $200,000.

The information provided by the report should contribute to the debate about tax policy currently finding attention in charge and counter-charge tossed about by presidential and vice-presidential candidates. Surely some carefully researched data is more valuable than emotion-laden charges of “socialism” and “communism.” Those terms, as I tried to explain in Taxes, Bailouts and Socialism, tell us nothing.

Progressive Income Taxation and Socialism

My post dealing with the charge that letting tax cuts for high income taxpayers expire, Taxes, Bailouts and Socialism, has generated all sorts of comments. Over at Economists's View, comments range from those that analyze the economic validity of progressive taxation to those that explore why support for revoking tax cuts for high income taxpayers has been tagged as socialism. The former group of comments address the impact of progressive taxation on the preservation of the purchasing power of all taxpayers, and how taxing the wealthy during a recession can steer their dollars into investments, and how stimulation of demand, which is what puts the brakes on a recession, requires wealth transfer. The latter group of comments focus on what the critics of letting the tax cuts expire truly fear. Perhaps it is more government involvement in their life, perhaps it is discussion of the issues that need attention, perhaps it is a fear that lower income citizens will acquire more political power. Other comments note that during the past eight years there has been a huge redistribution of wealth, from the lower income end to the higher, and that government taxation and spending includes benefits transferred to corporations. Still other comments wonder if churches that advocate social welfare are "socialist." As I write, the comments continue. It's very much worth wandering over there and checking them out, though a few are more worthy of being skimmed because they wander into tangential issues that don't bear directly on the issue.

Over at A Taxing Matter, Linda Beale has taken a look at the question, in Progressive Taxation--Socialism? or Just Standard USA Tax Policy?. She does a good job refuting the claim that progressive taxation constitutes socialism, and makes some additional points that I didn't set forth. Take a look.

One of the regular readers of MauledAgain wrote with these comments:

Regarding your blog post on the topic of socialism, it is not merely increasing taxes on the so-called wealthy that is denounced as socialism; it has always been part of Obama's platform to increase tax on the wealthy, but you'll find the media references to "socialism" with respect to Obama has only picked up a great deal lately. It is raising taxes on the wealthy and then redistributing those dollars to people who do not pay any income tax whatsoever (and in amounts in excess of employment taxes they pay) - a tenet of the Obama proposal that has only recently begun to get attention, and Obama's admitting that his goal is to "spread the wealth," that strikes many as socialist. This is plainly stated in the article that you link to at the beginning of your blog post. I don't think your post gave the cries of socialism a fair shake, as you mostly defeat an argument they are not making (you state "revoking income tax cuts for the wealthy isn't socialism" - I don't think many disagree with that, by itself). Additionally, there is likely a heightened sensitivity to socialism currently, following the bail-out and fed purchase of bank stock - each of which has been ridiculed as socialist by many on the right.

It is a basic tenet of socialism to spread wealth around, and the circumstances surrounding Obama's tax cut/raise and his comments do seem to cross an admittedly arbitrary line into real socialism (as opposed to the imaginary socialism, the pejorative term used to describe Demoratic safety net policies that have been around for 70 years). Rather than saying we need to fund government, and what is a fair way to spread the cost around (e.g., Clinton raised taxes predominately on the wealthy in 1993, but on everyone), the new policy is to increase taxes on some in order to write checks to others. You may find the policy pleasing, necessary and/or fair, but it is a new policy in this country that I don't recall any major party candidate advocating, and goes far beyond merely raising taxes on the rich to pay for a war.

Obama has also stated that he didn't care whether increasing capital gains tax would DECREASE government revenue (it is not important whether the premise is true, it's Obama's state of mind that is relevant), because according to him, increasing the tax is a matter of fairness. This comment was also shocking to many, implying that he would deliberately increase the deficit in order to cause certain people to have less money. It is these circumstances which have caused many to claim him to be a socialist.

I responded to his comments as follows:

Perhaps we interpret Obama's statement differently. I did not read it as revoking the tax cut on the wealthy in order to give cash to the poor and middle class. I read it as revoking the tax cut on the wealthy so that the government did not need to rack up deficits to provide the health care, school lunches, head-start education programs, and other benefits that indeed give opportunity to people who otherwise would be stuck in poverty.

This nation has been doing that for decades. It's socialism, perhaps not as far along the spectrum as Sweden's version, but it's socialism. When the administration refused to raise taxes to finance the war, it ended up cutting benefits to those in need. Obama seeks to fix that problem. That problem is exacerbated by the impact of cutting taxes on the wealthy, who didn't trickle much down to the poor other than short-term smoke and mirrors and longer-term financial distress. The poor and lower middle class will suffer far more from the present and continuing recession (depression, perhaps) than will the wealthy.

My reader in turn offered this rebuttal:

A few responses though:

1. Bush cut benefits to those in need? He doubled the size of government yet he managed to cut benefits? I remember all kinds of hollering in the Gingrich years about cuts in spending (which were really increases that were not as large as some liked) but I don't recall hearing that Bush has cut anything. Has he really?

2. This is a side issue, but tax cuts for the rich can be justified on moral/fairness grounds - if I believe tax rates are too high for those making between $200,000 and $500,000, then I'll support cutting their tax rates. Whether wealth "trickles down," or whether or not it helps the economy, is beside the point. The point of raising taxes is to pay for government, not rectify life's injustices or turn on or off the economy.

3. we may interpret Obama's comments differently, but my point is not to argue what Obama meant, but what Republicans who are crying "socialism" mean. They don't mean that raising taxes on the wealthy is, by itself, socialism. They mean that raising taxes on one group, while writing checks to another group who doesn't pay tax, all in the interest of spreading the wealth, sounds like socialism.

4. your response to #3 may be we already have socialism to some degree. True. This raises it a notch. But government ownership of banks, the bailout and the explicit policy of wealth redistribution (taxing some to write checks to others) crosses the line from an acceptable level of socialism (the safety net that's been in effect forever) to, for lack of a better phrase, "real" socialism.

And I, of course, tried to clarify my position:

The Bush spending doubled because of interest on the debt, the Iraq war, the war in Afghanistan, whereas states have struggled under mandates (federal imposition of obligations without federal funding). Taxes pay for government, and government needs to maintain a stable and productive society, which it cannot do if the poor get poorer, the rich get richer, and the gap widens. I'm no fan of the bailout -- read my posts -- but that was bipartisan socialism, and McCain voted for it, so it seems it's ok to take from the poor and middle class and redistribute wealth that way. Or at least to create conditions "conducive to business" that benefit the wealthy. Real socialism occurs when the government owns everything. We're not there yet.

And I should add, that's not where we will be. Surely letting tax rates return to where they were, and to where they should have returned when war erupted, is not going to trigger government ownership of everything. The government didn't own everything when income tax rates were more than double what they would be if the tax cuts for high income taxpayers are permitted to expire.

What I think underlies these charges of socialism is fear. It's fear, not of millionaires paying another fifty or a hundred thousand dollars in taxes, not of government taking over ownership of all assets, but of change. For quite some time, the economic and tax arrangement have favored the wealthy. They created this arrangement by persuading the middle class and even the poor that life would be better if income taxes were cut, particularly income taxes on capital gains and dividends. Yet when all was said and done and the policies advanced by the tax cutters played out, the nation ended up in what may be the worst economic catastrophe it has faced. While wages barely kept pace with inflation, and in some instances fell, while jobs were outsourced, while the quality of products and services suffered, while health care became less affordable and less available, while resources allocated to education continued to be insufficient, the percentage of wealth owned by the wealthy increased. Because the sales pitch worked in the past, they expected it to work again, but to their surprise, the track record of the don't-tax-but-spend crowd has turned out to be no better than, and in most respects worse than, the track record of the tax-and-spend crowd. With that taking the wind out of their economic policy sails, they turned their focus on a broader question, using terminology designed to spread their fear throughout the electorate.

The answer to Joe the Plumber's question was honest. It might not be something with which people agree, but at least it's not the misleading promise that cutting taxes will make everyone economically secure. And underneath this trumpeting of the "socialism" warning cry is an unarticulated lack of faith in America, a notion that somehow citizens will sit back and do nothing if attempts to fix the economic mess turn too sharply to what genuinely is socialism rather than returning the country to the path which uses economic policy to promote fairness, affordable health care, improvement in children's education, and the other characteristics of high quality of life that were promised but not delivered by the merchants of tax cuts for high income taxpayers. I don't see the appeal in continuing to do what has been done, when what has been done is what brought us to where we are.

Taxes, Bailouts and Socialism

When a candidate's tax plan is described as socialist during a presidential campaign, it should turn public attention to the tax policy question of why taxes exist. When Senator Barack Obama replied to the question asked by "Joe the Plumber" about his tax plan by noting that "I think when you spread the wealth around, it's good for everybody," he opened the floodgates of accusations that his tax proposals would amount to socialism. The accusations come from the Republican candidates, from journalists, from bloggers, and from commentators.

Determining whether the accusations make sense require two analyses. One is identifying what Obama's tax plan does. The other is identifying socialism.

Obama's tax plan is to increase taxes for individuals with incomes exceeding $250,000. Most Americans do not fall into that category, and 95 percent are unaffected by this particular proposal. Americans in that category are paying taxes at lower rates than they were paying a decade ago. The theory was that reducing rates on the rich would generate benefits not only for the rich, but also for everyone else. This "trickle down" theory turned out to be a failed experiment. All that trickled down was the economic pain inflicted on America by the casino capitalist gamblers. Technically, Obama proposes revocation of tax cuts for the wealthy. They had their chance. It failed, other than to make the wealthy wealthier, the middle class smaller, and the gap between the haves and have-nots wider. Obama incorporated that thinking into the portion of his reply that doesn't get as much attention: ""It's not that I want to punish your success. I want to make sure that everybody who is behind you, that they've got a chance for success, too. My attitude is that if the economy's good for folks from the bottom up, it's gonna be good for everybody."

The tag of "socialism" is an easy piece of red meat (pun intended) for those who want to stir up fears not unlike those afflicting the nation during the "red menace" days. The irony is that just as Communism (with the capital "C") wasn't really communism (with the lower-case "C"), so, too, imposing higher income taxes on the wealthy isn't socialism. Revoking undeserved and economy-damaging tax cuts for the wealthy isn't socialism. If anything, it reflects the fact that the wealth is built on the backs of those who produce it, not those who grab it, manage it, mismanage it, or gamble with it when it belongs to others.

Will Obama's tax plan redistribute wealth? Hardly. The additional revenue generated by the revocation of tax cuts for the wealthy very well may end up paying the interest on the national debt that was incurred because taxes were cut and kept too low during wartime. One could consider those tax cuts to have been a loan to the wealthy, and the events of the past month have demonstrated what they did with it.

But perhaps there's some wealth redistribution involved. One reasonably can argue that the revenue raised by revoking the tax cuts for the wealthy will be used to fund government programs that help only the poor or only the middle class or only the poor and middle class. Does that make it socialism? More important, does that make it bad policy?

Senator Mel Martinez thinks so. He thinks that revoking the tax cuts for the wealthy is equivalent to adopting the economic policies of Cuba. He also called the revocation "communism -- not Americanism." Wow. I suppose the Obama tax plan means that all land will be owned by the federal government? The analysis from Martinez is about as enlightening as the conclusions about Joe the Plumber's tax situation to which people jumped, as I pointed out in Taxing Joe the Plumber.

Colin Powell has suggested that "Taxes are always a redistribution of money. Most of the taxes that are redistributed go back to those who pay them -- in roads and airports and hospitals and schools. And taxes are necessary for the common good, and there's nothing wrong with examining what our tax structure is or who should be paying more, who should be paying less. For us to say that makes you a socialist, I think, is an unfortunate characterization that isn't accurate." Hooray for Colin Powell. I might disagree that taxes ALWAYS are a redistribution, because to the extent that they pay for services being rendered to the paying taxpayer, they do not transfer wealth. They simply represent an exchange of cash for services or property. But that articulation technicality aside, there are, and have been for decades, valid arguments for imposing higher taxes on those on whom America has bestowed better opportunities and greater fortune. Undoing the mistaken tax cuts, and fixing the problems caused by trying to fight a war without raising taxes, isn't socialism. It's an attempt to undo the problems caused by welfare for the wealthy.

Other commentators have pointed out that if someone wants to find socialism in government policies, one need look no further than the $700 billion bailout of the financial services industry. When Governor Sarah Palin was asked about the bailout, she characterized it as "measures that had to be taken by Congress to shore up not only the housing market but the credit markets -- also to make sure that that's not frozen -- so that our small businesses have opportunities to borrow. And that was the purpose, of course, and that part of the bailout and the shoring of the banks." Again, articulation issues aside, why is a rescue of middle-class taxpayers any less a "measure that has to be taken by Congress" to shore up individuals' financial status? The difference, it seems to me, is that she and those of like mind think it's acceptable to shore up institutions and the wealthy but not to help the poor and the middle class.

Senator John McCain tried to distinguish the bailout from a tax increase on the wealthy by saying, "That's the reason why we have governments, to help those who need help, who can't help themselves, and in a time of crisis, to step in and do what's necessary to preserve the lives and futures of innocent people. It wasn't Main Street America that caused this; it was Washington and Wall Street." Whoa. A total ban on wealth redistribution would mean tens of millions of people in need would not get assistance, and in many instances would die. Social Security is wealth redistribution. So, too, is Medicare. So, too, are food stamps. So, too, is the program that provides breakfasts and lunches to school children who would otherwise go unfed. So, too, are all sorts of other programs. If these programs are socialism, and if support for these programs make someone a socialist, then here's some news: by that definition, America has been a socialist nation for decades, and most of its Presidents and legislators have been socialists. So what would it mean to purge "socialism" from public policy? What then would life in America be?

Another D-word and Taxation

In Children, Toys, Greed, Profits, Gambling, and Lessons from History , I noted that some experts have warned us that if the world's economic problems are not solved quickly, the world will enter a "dangerously deep recession." I then wondered if we tightened up that phrase, would we get Depression?

Well, the experts assure us that there is little chance of a depression. But, instead, they are beginning to express concern about another d-word. According to The Dark Side of Lower Prices, the concern is deflation. What is deflation? It's the opposite of inflation. Instead of increasing every month and every year, prices drop. Look around. Stock prices are dropping. The price of oil has returned to levels not seen for a while. The price of gasoline is now under $3 per gallon. Housing prices have been trending downward for at least a year.

Because inflation causes so many worries, particularly among individuals on fixed incomes and organizations on fixed endowments, it is tempting to think that deflation would be good news. But it isn't. Economists explain that when prices drop because demand falls, producers must cope with production costs that exceed revenues. Their reaction usually is a reduction of production, together with the dismissal of part of their work force. In turn, demand for goods continues to drop, and prices continue to fall.

Economists suggest that it is very difficult to reverse deflation. To many of them, it is "scarier than a recession." Though most of them don't think deflation will occur, the odds that at least one economist puts on it happening are now six times what they were a month ago. Deflation, it seems, can cause, hasten, or worsen a depression, though it doesn't necessarily have that effect.

Conditions for deflation are present, we are told. So it could happen, even if the chances aren't high. It's not comforting to be told that declining prices are not a reason to hope that the economy recovers quickly, but rather a reason to begin worrying about deflation.

Curious, I looked again at the tax code to see if my initial thought was correct. It was. A variety of numbers in the tax law are adjusted for inflation. Technically, they are increased to reflect upward changes in the consumer price or other index. What's missing, I thought, was a downward adjustment for deflation. My thought was correct. If deflation sets in, the tax law will not respond as it does when prices rise, unless Congress steps in and amends the law. We've been living with inflation for so long that no one considered writing the inflation adjustment language in a manner that responds to both deflation and inflation.

It took Congress decades to insert inflation adjustments into the tax law. If deflation comes upon us, will it take Congress several more decades to make adjustments in the tax law for deflation? From the economists' perspective, we had best hope that the question remains theoretical. For if it becomes real, we're in even deeper trouble than the deep mess in which we currently are. And that, folks, is a depressing thought.