Defining Dependents: Is it Any Easier?

The National Association of Enrolled Agents (NAEA) has sent a letter to the Commissioner, asking for clarification of the new provisions affecting dependency exemption deductions. The NAEA raises some interesting questions through hypotheticals. One of these had been posed to me a few weeks ago, so these questions don't come as a surprise.

These are not the first interesting situations to be presented to the world. Two months ago I shared a step-sibling puzzle, after having explained the changes in a prophetically-named posting, Redefining Children (at least in the Tax World).

Here is one hypothetical presented by the NAEA:

Twin nine-year old children of deceased parents, who live with their adult cousin for the entire year and are fully supported and cared for by the cousin, cannot be claimed as dependents by the cousin. Under the new rules, this cousin cannot claim the two children as qualifying relatives because the children meet the definition of a qualifying child with respect to one another. The problem does not exist if there is only one such child living with a cousin, so if each twin were to be taken in by a different cousin, they could be claimed as qualifying relative dependents

Neither twin can be a qualifying child of the adult cousin. Why? Neither twin is a child, descendant, sibling, step-sibling, nephew, niece, or child of a step-sibling of the adult cousin. Thus, neither twin meets the relationship test for qualifying child status, even though the adult cousin meets the other three tests of abode, age, and support for each twin. Each twin has the same principal place of abode as the adult cousin, each meets the age requirements by being under 19, and each has not provided more than one-half of his or her own support.

Can each twin be a qualifying relative of the adult cousin? An individual is a qualifying relative if the individual satisfies four tests as to the taxpayer seeking the dependency exemption: relationship, gross income, support, and non-qualifying child. The relationship test is met because each twin is someone who is not the adult cousin's spouse and who has the same principal place of abode as does the adult cousin. The gross income test presumably is met because the facts of the hypothetical suggest that they have none, being fully supported by the adult cousin. The support test is met because the adult cousin provides more than half, in this instance all, of the support of each twin. What about the non-qualifying child test?

The non-qualifying child test requires that the individual for whom the taxpayer seeks a dependency exemption deduction not be the qualifying child of the taxpayer or of any other taxpayer. It already has been demonstrated that neither twin is the qualifying child of the adult cousin. Is either twin the qualifying child of another taxpayer? According to the statutory language, no. There are no other taxpayers in the picture aside from the adult cousin.

The problem, however, is that the IRS, in its publications, changes the language of the statute. To quote from the NAEA letter to the Commissioner: "In IRS publications this has been translated into language such as the qualifying child of anyone else or the qualifying child of another person." This is a HUGE difference. If the test is that the person not be the qualifying child of anyone else, the twins are not the qualifying relative of the adult cousin because they are qualifying children of each other. Each twin is a sibling of the other, thus satisfying the relationship test for qualifying child. Each twin meets the other three tests (abode, age, support) because each twin has the same principal place of abode as the other twin, each meets the age requirements by being under 19, and each has not provided more than one-half of his or her own support.

In effect, the NAEA letter is asking the Commissioner, "What happened? On what grounds did someone drafting a publication change the word taxpayer to "anyone else or another person"? Not every person is a taxpayer. Not every person who is an "anyone else" is a taxpayer. Under Code section 7701(a)14), a taxpayer is "any person subject to any internal revenue tax." In contrast, section 7701(a)(1) defines "person" as "construed to mean and include an individual, a trust, estate, partnership, association, company, or corporation." Person and taxpayer are two different concepts, and using one term to mean the other is unwise.

Not all the problems, though, are of IRS making. Consider this hypothetical from the NAEA:

Twin nineteen-year old brothers live together in their home and attend school full-time. Their parents are deceased. The brothers do not provide more than half of their own support. Although they have part time jobs and earn about $5,000 annually, their principal support comes from their aunts and uncles who together contribute about $25,000 per brother towards their household and college expenses. The aunts and uncles do not live with the brothers. Each brother meets the definition of a qualifying child with respect to the other. Putting the dependency rules together with this, if each twin is able to claim the other as a dependent, it means that the other one cannot because a dependent cannot have dependents. However, since neither can be claimed, it means they can have dependents. This loop continues endlessly – we now have the qualifying child paradox.

Let's call the brothers A and B. A is the qualifying child of B. Why? A is the brother of B, A has the same principal place of abode as does B, A meets the age test by being a full-time student under 24, and A does not provide more than half of his own support. B is the qualifying child of A. Why? B is the brother of A, B has the same principal place of abode as does A, B meets the age test by being a full-time student under 24, and B does not provide more than half of his own support. However, even though A is the qualifying child of B, A cannot be the dependent of B because B is a qualifying child of A, and thus would be the dependent of A but for the fact that because A is the qualifying child of B, B would be a dependent of A. It is a classic paradox. Though there are many special rules in section 152, none addresses this puzzle.

However, one of the problems described by the NAEA is not a problem. Consider the NAEA's hypothetical:

Mom, dad, Alice (14), and Joe (22) live in the family house. Mom and dad file a joint return with an AGI of $400,000. Since Alice is a qualifying child of mom and dad, they could claim her as a dependent but would receive no tax benefit as their personal exemptions are phased out and the child tax credit would not be available to them. Joe is not a full-time student and his only income is a W-2 with $15,000 in wages. Under §152, Alice is a qualifying child of Joe, so he claims her as a dependent and thus gets the child tax credit and yes, even the earned income tax credit. Assuming Joe had no tax withheld, he goes from a balance due of $683 to a refund of $3,158.

I agree that Alice is the qualifying child of Mom and Dad. She is their child. She has the same principal place of abode as they do. She is under 19. She does not provide more than half of her own support. Alice also appears to be the qualifying child of Joe. She is his sibling. She has the same principal place of abode as he does. She is under 19. She does not provide more than half of her own support. But in this instance the Code provides a rule to break the impasse. Under section 152(c)(4)(A), an individual who may be claimed as a qualifying child by two or more taxpayers is treated as the qualifying child of the individual's parent if one of the taxpayers claiming the individual as a qualifying child is the individual's parent. The fact that the amount of the exemption for the parents is zero because their AGI is high enough to trigger total phase-out of the exemption amount does not change the definition of qualifying child.

Technical amendments to the 2004 legislation that changed the dependency definitions are awaiting action by Congress, but these amendments do not address the problems raised by the NAEA. The ABA Section of Taxation has identified yet another problem for which it suggests additional technical amendments.

There are lessons to be learned from this analysis. As is the case with computer programs, the more complex the provision, the higher the chances for a crash. The faster the writing, the greater the chance of error. The more authors, the higher the number of inconsistencies and paradoxes. The less review and testing, the faster it is rushed to market, the larger the number of snags.

The underlying problem is that the definitions in section 152 are being used for too many purposes. It's not that there ought to be multiple definitions. It's that there should be far fewer purposes. Strip the tax law of the wide array of credits, deductions, special provisions, and other attempts to create a different tax law for each taxpayer, and the complexity is reduced. Rather than an earned income tax credit, why not eliminate income taxes on people with adjusted gross income under the poverty level? Rather than trying to figure out who claims who as a dependent, why not assign each person an exemption amount that the person can choose to use on his or her own return, or transfer or sell to one other person (presumably a taxpayer who could make use of it), similar to the manner in which pollution credits are traded? It surely would be easier than the current approach, which has generated thousands of cases and hundreds of thousands of audit adjustments over the years.

In the meantime, let's hope the IRS responds quickly and sensibly to the NAEA's letter. And I might ask those folks to write some exam questions for my students!

Love of Learning Trumps Buying a Degree?

Every day the messages show up in my e-mail inbox. Though using different articulations, they all offer the same deal. I am presented with the opportunity to purchase a degree. M.B.A., J.D., Ph.D., you name, "they" have it. For sale.

This sort of nonsense has been around long before there was an Internet and e-mail. Quack doctors with fake degrees hanging on their office walls were the subject of news stories, when they were caught, of course, decades ago.

What the Internet has done is to make "fake degree proliferation" a much more serious problem. About a year ago, the Chronicle of Higher Education did a report on educators with fake degrees who were selling fake degrees. When will this end? When every person on the planet has one of every kind of academic degree imaginable?

Most people, degreed or not, would agree that there is something not only inappropriate, but dangerous, in permitting someone to purchase a degree and then use that piece of paper to lure patients, clients, or customers into paying for services. Who wants to have surgery performed on his or her child by a person with a purchased M.D.? Who wants to get legal advice from someone with a fake J.D.? Who wants to drive across a bridge designed by someone with a sham engineering degree?

The deeper concern, though, is whether a degree obtained through conventional means is any more of a guarantee that the patient, client, or customer will receive due care. I've raised this question, though obliquely, in several previous posts. For example, a few weeks ago, in No Wonder Tax Law Seems So Difficult, I noted:

The desire to "buy a degree" is overtaking the desire to pursue the natural outcome of intellectual curiosity and the mature and responsible awareness that life demands people get themselves educated. More than one student has expressed the opinion that having the degree is more important than learning the subject.

Several days later, in commenting on a response to that commentary, in Students Fail When We Fail Students, I observed:

7. When will the message that learning occurs not by attending class but by getting immersed in a course become the standard fare of school systems? I'll find out when I notice fewer, rather than more, students with the "I'm paying the tuition to purchase a degree" mentality. Somehow they think that having letters after their name, or a piece of paper saying they were physically in a building for 200 days, means that they have the requisite ability to prevent and solve problems.

Recent events have persuaded me that the problem is very real, and is no less a threat to the health and welfare of individuals than is the problem of fake degrees purchased on-line or through some other outlet.

Theoretically, someone who does business with a person who holds a degree from an accredited educational institution can rely on that institution's role as a gate keeper to whatever profession the degree permits its holder to enter. In theory, someone who does not understand the subject matter, or someone who does not perform to a specified minimum standard, does not earn the degree. In theory, a person who earns a degree in the conventional manner has engaged in the equivalent of the apprenticeship through which persons learning trade skills must pass before holding themselves out as masters of their trade.

In practice, however, it just isn't so. People emerge from educational institutions holding degrees and carrying brain cells stuffed, more or less, with knowledge. Some of these people also carry an understanding of the discipline, acquired through experiential and active learning, reflecting a devotion to the subject matter of the degree. They are immersed. But others, increasing in number, depart with a degree in one hand, an expecatation of salary in the other, and not much more than acquired but unapplied knowledge, to a greater or lesser extent, in their cerebral memory banks.

This is not a new phenomenon. For as long as there have been schools there have been folks who have tried to slide by, doing the minimum amount of work necessary to acquire the benefits associated with graduation from the school. What is new is the prevalence of this mindset among present-day students. This is in no way an indictment of the diligent students who bring a rigorous approach to their studies. It is, instead, a lamentation over the ever-growing attitude that the student is a customer who, having paid tuition, is entitled to set the terms and conditions of his or her participation in the education offered by the institution to which tuition has been paid.

In theory, students who fail to do what is required should fail to graduate. In theory, this should happen because they fail one or more courses. Or, as I like to put it, they "earn a grade of F." Unfortunately, the F grade has all but disappeared from American higher education, and it seems to be on its way out in the K-12 grades. Why? There are several reasons. There is pressure to move the student through the system as quickly as possible. Parents assume that their children deserve wonderful grades because they are wonderful people. Standards have eroded, viewed in light of post-modern culture as meaningless trappings of a by-gone era pervaded with injustice. In some instances, effort alone earns high grades, and if it does not, students squawk.

What is most disturbing to me is that I see more of the "I paid my tuition, now give me my diploma" attitude among post-graduate students than among graduate students. What troubles me is that the former, for the most part, are or have been participants in the practice world. They should know that clients are not well served by anything less than rigorously application of genuine understanding of the subject matter. The impression I get, however, at least from some, is that the degree becomes a wall decoration that brings more clients into the office. Call it strict, but I simply don't see how anyone in practice can view a degree as anything other than a marker of having climbed to an even higher understanding, and having become even more deeply immersed, in the subject matter.

Interestingly, there is a related phenomenon that gets far less attention in today's media than it did decades ago. Perhaps it is not as common an occurrence. There are people who read and study in a particular discipline without being enrolled in any sort of program, degree or otherwise. For all intents and purposes, they are teaching themselves, having learned to do so somewhere along the line in their previous education. They self-study for the enjoyment, the fulfillment, the growth and the understanding. They may end up doing more reading and thinking than someone enrolled in a formal degree program. Wait. Surely they end up doing more work than at least some people enrolled in a degree program but scraping by on the bare minimum.

The folks who have the desire to learn, the discipline to stay focused, the perseverance to keep reading and thinking, the motivation to write and explain, and the appreciation for genuine understanding make the best students. They also become the best practitioners, whether it is in an operating room, nuclear power plant control room, architect's office, or law firm. To them, the degree is a marker and not a stand-alone consumer purchase. For their teachers, they are what makes the classroom a fun place.

Fortunately, I have always encountered some people of this disposition in my classes. Their numbers, though, appear to be shrinking. They're being crowded out. They're being crowded out by the degree purchasers. It is an issue to which I intend to pay even more attention. The question is whether I can get anyone else to pay more attention.

Primary Goal of Tax Policy = Ever-Accelerating Growth? Hardly.

Yesterday the Heritage Foundation issued a report by Daniel J. Mitchell, Ph.D., with the fascinating title, "The President’s Tax Agenda: Pro-Growth Measures Jeopardized by Excessive Spending and Misguided Focus on Deficit." The theme of the report jumps out from the opening: "President George W. Bush’s tax agenda is largely focused on making the 2001 and 2003 tax cuts permanent. This is sound policy."

I disagree. It is not sound policy.

Dr. Mitchell argues that "The primary goal of tax policy should be faster growth. This is why permanent tax cuts are important, especially the tax rate reductions that increase incentives to work, save, and invest." I'm surprised, considering his perspective, that he thinks that government should use tax policy to stimulate private markets. There are two principal difficulties with this position. First, the primary goal of tax policy should be the collection of revenue sufficient for government to perform the services that only government can perform for its citizens, such as national defense, or to perform services most efficiently handled by government, such as national disease monitoring and quarantine implementation. Note that the question of whether a local, state or a national government should be the particular government entity performing an appropriate government-provided service is a secondary issue. Second, faster growth as a goal makes no sense. Accelerating growth would lead to, well, infinity. Economic growth should keep pace with the demographic changes in society, with an allowance for improvement in the standard of living of those not sharing in the growth because their opportunities are limited by the imbalance in growth sharing.

Dr. Mitchell argues for making the overall rate reductions permanent because "these rate reductions have increased incentives for productive activity." Not only is it difficult to imagine someone taking on a productive enterprise because the applicable income tax rate is 35% instead of 39%, it also makes no sense to assume that most people have a choice in the matter. What drives productivity is the need to eat, own or rent shelter, acquire medical care, and to have access to the goods and services that make survival possible. Not only does the current rate structure tax someone making a few hundred thousand dollars a year at the same rate as someone making millions, tens of millions or hundreds of millions of dollars a year, the current tax law also iimposes higher effective marginal tax rates on those earning from roughly one hundred to roughly two hundred thousand dollars a year than it does on those earning more, on those living on social security and seeking part-time employment to supplement their income, and on some low-income families eligible for the earned income tax credit.

Dr. Mitchell argues for "reduced double-taxation of ... capital gains." It comes as a surprise that capital gains represented double taxation. Why? Because they're not. Yes, taxation of dividends represents theoretical double taxation, but because most corporations pay little or no taxes, most dividends represent earnings taxed only upon payment to taxable shareholders. Dividends paid to tax-exempt shareholders are not taxed.

Dr. Mitchell rests part of his analysis on the proposition that "Higher taxes encourage additional spending." Though I agree that federal spending is replete with unjustifiable waste and misguided policies, the Congress manages to spend no matter the tax rate or the amount of revenue. Some financially disciplined individuals restrict spending to income, but even among individuals spending often exceeds income. In other words, restricting federal revenue is the wrong place to start. The process needs to begin with a discussion of proposed government spending consistent with the primary goal of tax policy being the collection of revenue sufficient for government to perform the services that only government can perform for its citizens and to perform services most efficiently handled by government. Once the cost is tallied, the appropriate revenue needs can be seen, presenting the opportunity to evaluate the cost of the desired programs and the burden of the taxation. That's how many private organizations and individuals handle their budgeting. Of course, those folks can't print money.

Dr. Mitchell then argues that "All tax increases cause economic harm because they encourage bigger government." This is total nonsense. The United States was compelled to increase tax revenue in the 1940s to pay for the cost of a war. Although the war caused harm, the spending ended the lingering unemployment from the Depression, and created a world in which the national economy could continue to function, free of the specific totalitarian threat it then faced. Taken to its extreme logic, Dr. Mitchell's analysis would support a tax rate of zero. The point is that although some government taxation-and-spending represents inefficient transfers of wealth, other instances of tax-and-spend do far more for the national benefit than would the absence of such situations.

In all fairness, Dr. Mitchell is not entirely off base. When he writes, "The bad news is that the President’s budget is silent on the issue of fundamental tax reform," he strikes a resonant chord with me. As I mentioned in my analysis of the tax portions of the State of the Union speech, I am bewildered by how quickly the President and his Administration has backed away from the recommendations of a Tax Reform Panel set up to generate the sort of report that the Administration could tolerate. I doubt Dr. Mitchell and I would agree on the details, but unless there is a full discussion, a thorough analysis, an opportunity for all to be heard, and a squelch on greed, there's no way any sort of tax reform will happen.

Trying to make the tax cuts permanent is not only a matter of good money chasing bad, it's pointless. What are the odds that permanent means beyond 2008?

EDIT 11 Feb 2006: The sentence "Note that the question of whether a local, state or a national government should be the particular government entity performing an appropriate government-provided service is a secondary issue." now appears as it does thanks to former student Nakul Krishnakumar pointing out that as originally written the sentence could be interpreted in a manner I did not intend.

Tax and Gambling: Worth the Risk?

When gambling meets tax law, a variety of interesting issues arise. One of the most interesting is the question of whether a taxpayer who borrows chips from a casino, gambles, loses, and gets a reprieve from the casino has gross income. In Zarin v. Commissioner, 92 T.C. 1084 (1989), the Tax Court held that the taxpayer had gross income, but the Third Circuit reversed (916 F.2d 110, 90 TNT 213-10 (3d Cir. 1990). This question, which continues to stir up debate among tax law academics and practitioners, is not the focus of today's post. There are other interesting questions. Those who are interested can get a good start to understanding the Zarin decision by reading Dan Shaviro's excellent analysis in "'The Man Who Lost Too Much: Zarin v. Commissioner and the Measurement of Taxable Consumption," 54 Tax L. Rev. 215 (1990).

The tax law limits the deduction of gambling losses to gambling winnings. For this reason, people gambling for the fun of it often try to persuade the IRS and the courts that they are carrying on a trade or business, which would permit deduction of gambling losses as business losses unimpeded by the limitation on the deduction of gambling losses. If they succeed, they also obtain deductions for the associated expenses of gambling, such as travel costs if they go to places such as Las Vegas or Atlantic City to pursue their goals.

In Commissioner v. Groetzinger, 480 U.S. 23 (1987), the Supreme Court held that the taxpayer had demonstrated his gambling activities rose to the level of a trade or business. The only salient fact making his situation special was that he devoted most of his time gambling and had no other source of earned income. Most gamblers need to hold regular jobs in order to make money, and thus it remains very difficult for a taxpayer in a specific situation to convince the IRS that he or she is carrying on a trade or business.

And if a gambler does make money, the income is taxed as ordinary income. If the taxpayer in Groetzinger had turned a profit, the profit would have been taxed at ordinary rates. It is also arguable that the income would be subject to self-employment taxes.

The question that gets my attention this morning is how should gambling be defined? In other words, what activities ought to be brought within the deduction limitation? Is it simply a matter of identifying the games available in a casino? Is it a matter of identifying those activities regulated by state gaming boards?

From a much broader tax policy perspective, the question is why should certain activities that involve gambling be taxed at special rates. For all intents and purposes, investing involves a gamble. There is no certainty in making an investment. The odds may differ, giving the investor a much better prospect of profit when investing in land than when investing in an obscure start-up company, but nonetheless, risk is risk. Even an agreement to perform services for a fee is a gamble, because there is a risk that the employer will go bankrupt.

Yet for some reason the Congress treats certain types of gambling, namely, investing in things called "capital assets" or engaging in activities "deemed" to be the same as investing in capital assets, as privileged and worthy of reduced taxation. Thus, the person who puts down a bet today on the 2008 Presidential election will be taxed at regular rates if she wins, but the person who puts down a bet today on the value of stock in Exxon-Mobil during November 2008 will be taxed at special low rates if he wins.

The argument that betting on stocks and other investments deserves a lower tax break because it creates jobs doesn't resolve the distinction even if the assertion is true. After all, there are hundreds of thousands of people holding jobs created to service those who gamble Las Vegas style.

Perhaps there is some sense that investing in land or a fly-by-night start-up is somehow more noble, more valuable, more dignified, or more moral than investing in the outcome of a Presidential election, next year's Superbowl, or oil to be delivered in 2010. But since when does the tax law care about the morality of income? Gross income from dignified jobs is taxed no more or less than gross income from undignified jobs. Gross income from illegal jobs is taxed no more or less than gross income from legal jobs. Gross income from investing in stock in a company manufacturing alcohol or tobacco products is taxed no more or no less than gross income from investing in stock in a company manufacturing cancer-curing pharmaceuticals or chicken soup, though both are taxed at special rates lower than those applied to gross income from any sort of job.

I do not see a difference between the person who devotes their time almost entirely to making casino and similar investments and the person who devotes their time almost entirely to making commodities futures and long-term option investments. Folks doing the latter try to distinguish themselves by arguing that they are using their intellectual skill and acquired knowledge, evaluating prospects, and otherwise doing something more than pulling a slot machine lever (or pressing a slot machine button). Yet that argument fails in two respects. Every person I know who gambles, whether at poker, the track, or using cards, claims that they are using their intellectual skill and acquired knowledge, evaluating prospects and otherwise doing something more than throwing some money at a stock on a hunch. Some folks study corporations and other study horses. The argument by the folks claiming capital gains low rates for their investment gambling, that they use intellectual skill and acquired knowledge and evaluate prospects, demonstrates that they are not very different from the lawyer, physician, or engineer who uses intellectual skill and acquired knowledge and evaluates prospects when deciding how to proceed with their professional endeavors. Yet the income they produce is taxed at the high rates imposed on labor income.

I wonder if the current Administration and its Congressional allies, in proposing to make permanent the special low rates applicable to those who gamble in commodities, options, and similar items, understands that gambling is gambling. Do they understand that making those rates permanent will generate even more incentive for tax shelter designers to find ways to package poker games as long-term investments the income from which would be taxable as capital gains?

Actually, I don't wonder. I'm certain that the thought has not crossed their minds. So I'm not even gambling when I make that observation.

A New Insult: Don't Like It? Call It Taxation.

It seems that taxes are so despised in this country that a great way to denounce an economic concept with which one disagrees is to call it taxation. I already can hear the insults. "You ... you .... you .... you tax person, you!" I've been called worse.

This latest observation comes from this CNN report about America OnLine's plan to require businesses to pay a fee to send commercial email messages. AOL, in conjunction with Yahoo!, has been testing an email system that permits the certification of email, which, theoretically at least, would curtail spam. The fee could be as much as $2 to $3 per 1,000 email messages.

Not surprisingly, there are marketers opposed to the idea. The CNN report quotes a USA Today report in which some marketers assert that the contemplated service fee is "a form of e-mail taxation." The CNN report also quotes the CEO of an e-mail services company as saying, "It's taxation of the good guys with cash, and it does nothing to help the good guys who can't afford the cost or to deter the bad guys who spam anyway."

News alert. A fee charged by a private company is not a tax. A tax is a financial imposition levied by a government or government entity, or a non-governmental organization acting on behalf of or under specific revenue-collecting authority of a government or government entity. To be more specific, this definition from Lectric Law Library's Lexicon will help a lot of people doing crossword puzzles: "This term in its most extended sense includes all contributions imposed by the government upon individuals for the service of the state, by whatever name they are called or known, whether by the name of tribute, tithe, talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other name."

The mis-use of the words "tax" and "taxation" by the people unhappy with AOL's plan could be deliberate. It surely makes the fee seem far more devious. Or it could be another case of ignorance, a pale imitation of the use of the term "tax" in the major league baseball collective bargaining agreement. The so-called "competitive balance tax" is simply a charge assessed against member clubs whose payrolls exceed a specified threshold. It has nothing to do with a tax other than the use of the term by lawyers and labor negotiators who decided to use the word "tax" to describe something that is not a tax.

And from such nonsense comes even more nonsense. Perhaps the next step is the exclamation of someone who walks up to a ticket window at a major league baseball stadium, asks for a ticket, and hears the words, "That will be $45, please." The exclamation? "Wow, what an outrageous tax you are sticking on me." Yes, indeed. They're taxing this person for entering the stadium.

Now let me go see if I can tax my employer for my services. Perhaps I'm onto something. Are taxes taxable?

Referring to AOL's plan as an email tax is going to do nothing but stir up that old urban legend about a federal email tax, which had seemed to fade away. Ah, old myths never die, they return in recycled form to haunt yet another generation.

New alert. AOL is NOT proposing to tax anyone. It couldn't even if it wanted to do so.

Super Bowl Taxes But No Super Tax Systems

Yes, even the Superbowl is not without tax overtones. Michigan, the state in which this year's showcase is being played, has an income tax, and imposes that tax on income earned by non-residents from sources within the state. Detroit, the city hosting the game, also has an income tax. Applying the state's 3.4 percent rate and the city's 1.275 percent rate to the income earned by employees of the Seattle Seahawks franchise while in Detroit, Michigan will generate roughly $500,000 of income taxes for Michigan and Detroit.

This is not news. The same general result, though with different rates and dollar amounts, would occur if the game were played in California, New York, or any of the many other states with income taxes that extend to non-residents. In California, where rates reach 9.3 percent, the amount involved could be as high as a million dollars of tax revenue for a few days of work.

What's news is that this is news to folks in Washington, one of the few states in the country without a state income tax. And some of these people, including state representative Christ Strow, think there is a problem. If Michigan and Detroit are going to take tax money from Washington residents, the state must "try and protect [its] athletes," according to Strow.

So Representative Strow has proposed a bill to tax Washington residents when they play professional games in Washington. The bill would not tax athletes from states that do not impose an income tax on Washington residents. Thus, it is "retaliatory" legislation, following the approach taken by Illinois when it enacted what has come to be known as "Michael Jordan's revenge." For more about the Illinois approach, and alternatives, see the student paper, STATE INCOME TAXATION OF NON-RESIDENT PROFESSIONAL ATHLETES, published by the Villanova University School of Law Tax Law Society's Tax Law Compendium.

But before Washington proceeds, its legislators ought to take a close look at the United States Constitution, and, more practically, at two important United States Supreme Court pronouncements on what the Constitution does and does not permit states to do when it comes to taxing non-residents. In Shaffer v. Carter, 252 U.S. 37, 52 (1920), the Court stated:

[W]e deem it clear, upon principle as well as authority, that just as a State may impose general income taxes upon its own citizens and residents whose persons are subject to its control, it may, as a necessary consequence, levy a duty of like character, and not more onerous in effect, upon incomes accruing to nonresidents from their property or business within the State, or their occupations carried on therein.emphasis added

In other words, Washington cannot subject non-resident athletes to a tax more onerous than the income tax it imposes on Washington resident athletes. For example, when New Hampshire, another state without an income tax imposed a commuter income tax on residents of surrounding states, the Supreme Court struck it down, in Austin v. New Hampshire, 420 U.S. 656 (1975), saying:

Against this background establishing a rule of substantial equality of treatment for the citizens of the taxing State and nonresident taxpayers, the New Hampshire Commuters Income Tax cannot be sustained. The overwhelming fact, as the State concedes, is that the tax falls exclusively on the income of nonresidents; and it is not offset even approximately by other taxes imposed upon residents alone. Rather, the argument advanced in favor of the tax is that the ultimate burden it imposes is "not more onerous in effect," Shaffer v. Carter, supra, on nonresidents because their total state tax liability is unchanged once the tax credit they receive from their State of residence is taken into account. * * * While this argument has an initial appeal, it cannot be squared with the underlying policy of comity to which the Privileges and Immunities Clause commits us.

According to the State's theory of the case, the only practical effect of the tax is to divert to New Hampshire tax revenues that would otherwise be paid to Maine, an effect entirely within Maine's power to terminate by repeal of its credit provision for income taxes paid to another State. The Maine Legislature could do this, presumably, by amending the provision so as to deny a credit for taxes paid to New Hampshire while retaining it for the other 48 States. Putting aside the acceptability of such a scheme, and the relevance of any increase in appellants' home state taxes that the diversionary effect is said to have, we do not think the possibility that Maine could shield its residents from New Hampshire's tax cures the constitutional defect of the discrimination in that tax. In fact, it compounds it. For New Hampshire in effect invites appellants to induce their representatives, if they can, to retaliate against it. * * *

Nor, we may add, can the constitutionality of one State's statutes affecting nonresidents depend upon the present configuration of the statutes of another State. Since we dispose of this case under Art. IV, 2, of the Constitution, we have no occasion to address the equal protection arguments directed at the disparate treatment of residents and nonresidents and at that feature of the statute that causes the rate of taxation imposed upon non-residents to vary among them depending upon the rate established by their State of residence. emphasis added; footnotes omitted

So there it is. Representative Strow's proposal guarantees litigation, and Supreme Court precedent guarantees a loss for Washington. Even though Strow is following the Illinois approach, the fact that Illinois has an income tax applicable to residents makes all the difference in the world. And in any upcoming litigation.

Another aspect of this situation deserves a bit of attention. That people who work in many states must file many tax returns is a fact of tax life. Until states and localities get together and agree on some sort of combined reporting, the professional athlete who plays games in multiple states must file multiple state and local income tax returns. Depending on how many games are played in states without an income tax, and on how deep into the playoffs the team advances, NFL players and team employees who travel need to file in as many as ten states and perhaps as many localities. For athletes in other professional sports, whose teams play many more games, in more states, the number of state income tax returns could reach several dozen.

The computations can be complicated. Records must be kept of the number of days played in each state. The paperwork burden is enormous, and athletes on the low-end of the salary scale, outside of the major sports, might not be able to afford professional tax return preparation assistance. According to a spokesperson for the Tax Foundation, quoted in this story, some very highly-paid athletes "travel with a coterie of accountants." This same person took the position that, "We consider it to be an outrageous administrative burden on anyone who travels and works for a few days out of state."

But before tears of sympathy are shed for the athletes, consider that anyone who works in more than one state or locality during the year faces the issue. Consider the barely-making it musical group or touring theater company making stops in all the states. Think about the traveling sales representative who criss-crosses the nation, spending several days in each state. Some of these folks are required to file state and local tax returns that can number as many as one hundred.

When people speak and write of tax reform, much, perhaps almost all, of the attention turns to the federal income tax. But for every federal income tax there are more than forty state income taxes. And for every state income tax there are dozens of local income taxes. Add this to the reason that a "flat tax rate" doesn't in and of itself simplify the tax law or tax return filing.

Today may be the day a Super game is being played, although I confess that because the Philadelphia NFL franchise isn't represented, it's just not quite as super as it could have been. But there is no question that the nation's tax systems, from Washington to the tiniest borough, is far from super. Perhaps it will be, aha, superseded by something better. Sorry. I'll take the 5-yard penalty for bad puns.

Taxes and the State of the Union

When my dentist yesterday afternoon asked me what I thought of the State of the Union speech, I wanted to reply, "I didn't hear much that wasn't recycled, and even the comments spoken by the President that were new for him, such as the addicted-to-oil comment, wasn't news to me." Of course, considering my mouth was full of equipment and he was poking around at a tooth, I wasn't able to say much. I couldn't say anything. Yes, the dentist is one of the few people who can get the edge on me in conversation time sharing.

But it reminded me I had intended to share some commentary on the tax and tax-related proposals mentioned by the President. Now that the crammed schedule of Wednesday (four hours of class, presentation, grading, etc.) and the tooth drilling of Thursday is behind me, I have a moment to present some brief notes.

From the President:

Yet the tax relief is set to expire in the next few years. If we do nothing, American families will face a massive tax increase they do not expect and will not welcome.

Because America needs more than a temporary expansion, we need more than temporary tax relief. I urge the Congress to act responsibly, and make the tax cuts permanent.

No, Mr. President, only a few American families will face massive tax increases if the special low rates expire, and though they will appear massive to most people, they won't be massive to the people who incur them, because the return of tax levels to where they had been will affect a very small fraction of these folks' income. Some Americans' tax liabilities would not change if the special low tax rates expire. On the other hand, Mr. President, the alternative minimum tax threatens to carve deeply into the economic well-being of the middle class. Why not fix that problem even if it means that the high rollers give up their special low tax rates? If you need to understand this, take a look at this blog. Scroll through, and you'll find more than enough explanations of why the "we deserve special low tax rates because we're so good for the economy" crowd is serving you about as well as has some sectors of the intelligence community.

From the President:

Keeping America competitive requires us to be good stewards of tax dollars. Every year of my presidency, we've reduced the growth of non-security discretionary spending, and last year you passed bills that cut this spending. This year my budget will cut it again, and reduce or eliminate more than 140 programs that are performing poorly or not fulfilling essential priorities. By passing these reforms, we will save the American taxpayer another $14 billion next year, and stay on track to cut the deficit in half by 2009.

I love that first sentence, Mr. President. It's a great soundbite. But cutting the budget deficit in half is like putting fillings in only half the cavity-afflicted teeth. Some of the deficit arises from those special low tax rates. Another significant portion is the cost of war. Trying to wage war while enabling most Americans to lead peacetime lives is oxymoronic. Wars aren't buildings that can be mortgaged.

From the President:

I am pleased that members of Congress are working on earmark reform, because the federal budget has too many special interest projects. And we can tackle this problem together, if you pass the line-item veto.

My expectations, Mr. President, is that you will live by these words, and just say no to the requests for special interest expenditures and special interest tax cuts. But I'm willing to predict that a discussion of the definition of special interest would be, ah, interesting.

From the President:

We must also confront the larger challenge of mandatory spending, or entitlements. This year, the first of about 78 million baby boomers turn 60, including two of my Dad's favorite people -- me and President Clinton. This milestone is more than a personal crisis -- it is a national challenge. The retirement of the baby boom generation will put unprecedented strains on the federal government. By 2030, spending for Social Security, Medicare and Medicaid alone will be almost 60 percent of the entire federal budget. And that will present future Congresses with impossible choices -- staggering tax increases, immense deficits, or deep cuts in every category of spending.

Congress did not act last year on my proposal to save Social Security -- yet the rising cost of entitlements is a problem that is not going away. And every year we fail to act, the situation gets worse.

So tonight, I ask you to join me in creating a commission to examine the full impact of baby boom retirements on Social Security, Medicare, and Medicaid. This commission should include members of Congress of both parties, and offer bipartisan solutions. We need to put aside partisan politics and work together and get this problem solved.

Well, Mr. President, you're right that entitlement growth threatens the nation's financial health. And it's not just retirement entitlements. Of course the question needs to be studied. Carefully. With input from people who are gifted with skills necessary for analyzing, explaining, and proposing remedies for the structural deficiencies in entitlements. But I fear that the nation will end up with a commission not unlike the one that looked at tax reform, omitted thorough analysis of many alternatives, and recommended changes, from some of which you turned and ran like a little child who hears the dentist's drill for the first time. Make me a promise. Promise you will appoint people because of their expertise, intellgence, willingness to listen, open-mindedness, creativity, and diligence. That disqualifies a lot of the people who might otherwise find their way onto the proposed commission. We don't need folks whose minds are already made up and whose political souls have already been sold to one or another particular devil of a detail.

From the President:

We will strengthen health savings accounts -- making sure individuals and small business employees can buy insurance with the same advantages that people working for big businesses now get. We will do more to make this coverage portable, so workers can switch jobs without having to worry about losing their health insurance.

Making health care affordable at the same price to all people must be balanced with the need to preserve the health of medical insurance companies by adjusting rates to reflect the bad health habits of some Americans. Designing accounts that put responsibility on people might just give people a chance to show themselves that they can be responsible. At the same time, remember it's tough for some people to put away money for future health issues when there are children in the house who are hungry. Tax deductions and tax exclusions work for those who have something to spend and deduct or who have income to exclude. Making coverage portable is a very good, but of course, not new, idea. Considering that part of the retirement entitlement concerns involve health care for retirees, perhaps it would make sense to wrap these issues together. Oh, I could live with a separate commission. But again, I want the experts on it. I want to know what should be done, not what politicians think needs to be done to ensure re-election.

From the President:

Second, I propose to make permanent the research and development tax credit -- (applause) -- to encourage bolder private-sector initiatives in technology.

If there is going to be an r&d credit, you're right, it ought to be permanent. It's tough to run a business that engages in r&d without knowing whether there will be a credit 2 or 3 years down the road. The same can be said, by the way, about other credits and tax provisions. It might be fun holding one's breath until reaching the last page of a great mystery novel, but American businesses need an environment of relative certainty, and not one in which it isn't know until May of a particular year that the Congress has retroactively renewed a tax credit back to the beginning of the year. Until entrepreneurs master time travel, they can't go back and grab "do overs" for their January through April business activities.

From the President:

Third, we need to encourage children to take more math and science, and to make sure those courses are rigorous enough to compete with other nations.

Of course this will make it easier for them to learn about the tax law, won't it? I'm doing my part, Mr. President, so if you need advice on how to make a course rigorous, send me an e-mail. Perhaps requiring high school sophomores to take a basic federal tax course would get their brains warmed up and ready for the math and science stuff? Rather than seeing those courses as "too hard" and impossible, they'll jump into those courses with a sigh of relief that they get to take "easier stuff" and they'll know that having succeeded in the tax course they can succeed in anything. Even quantum physics, Mr. President. After all, a little dash of subchapter K in one's high school sophomore year puts the entire cosmos into perspective.

Tax Charts for the Section 894 Regulations

Once again, Andrew Mitchell has created and now shares some more charts, the entire collection of which can be found at his tax charts web site. Here's the latest tax chart news:

Today we added to our website charts of the examples in the section 894 regulations dealing with domestic reverse hybrid entities. The charts include:

Example 1 - Dividend Paid by Unrelated Entity to DRHE

Example 2 - Interest Paid by DRHE to Related Foreign Interest Holder

Example 3 - Interest Paid by DRHE to Related Foreign Interest Holder

Example 4 - Reverse Hybrid for One Interest Holder But Not The Other

Example 5 - Recharacterization of Interest to Dividends Can Reduce U.S. Withholding Taxes

Example 6 - Payment to Related Tax-Consolidated Entity

Example 7 - Interest Paid to Unrelated Foreign Bank

Example 8 - Interest Paid to Foreign Bank Pursuant to a Financing Arrangement

Example 9 - Royalty to DRHE & Interest to Foreign Holder

The charts can be found at this link.

There are three ways to access the overall chart collection:

By Topic
Alpha-numeric order
Date uploaded

If you haven't read my previous accolades for Andrew's charts (see here, here, here, here, here, here, and here), take a look. As those who have followed my endorsement of Andrew's tax law visualization efforts know, I and others (e.g.,here) hold them in high regard.

Inadvertently Sharing Tax and Other Confidential Data

The Florida Bar Board of Governors has issued announcement in which it explains that it has asked its Professional Bar Committee to determine if "an ethics opinion or Bar Rule is needed to regulate the mining of metadata from electronic documents" by lawyers. The problem is one that affects not only lawyers, but also other professionals and pretty much every computer user. Although the Florida Professional Bar Committee will focus on a narrow question of what lawyers ought to do and not do when they receive documents filled with metadata, the ramifications of the problem extend far beyond that question.

First, what is metadata? According the to announcement, " metadata is information a word processing or document creation program keeps about the history of that document. This history includes changes, deletions, additions, which persons have accessed the document, and electronic notes that have been attached at various times. Such information is not visible on the screen, but it can be held in the background. And this information usually accompanies the document when it is electronically transmitted."

Here are some examples. Lawyer A prepares an estate tax return, using a spreadsheet to do certain computations not done by the return preparation software. In selecting particular values, the attorney makes certain decisions, and puts notes in the spreadsheet. Eventually the lawyer deletes those notes. A beneficiary sues Lawyer A, convinced that the estate tax was improperly computed, causing a diminution of the estate on account of allegedly overpaid estate taxes. The beneficiary retains Lawyer B. During discovery, the spreadsheet finds its way to Lawyer B. If Lawyer B "mines" the document, he or she will discover the notes that Lawyer A made and seemingly deleted.

Or consider an example from the Florida Bar Board of Governors. Lawyer C worked on a brief which was requested by law firm D for a case on which it was working. While working on the brief, C emailed her client with questions and received an email in reply. The email was attached to the brief as it was being prepared, and then was deleted. When C finished the brief, he offered to fax it, but D asked that it be e-mailed. D then mined the brief for metadata, and discovered a history showing every change that had been made to the document by C, information identifying the other persons, such as paralegals and legal secretaries, who had worked on it, and the content of the email sent by the client.

Or try this one that I shared with students in my Decedents' Estates and Trusts course, though I'm not certain I got the point across. Rest assured that to the best of my knowledge, no one other than myself and perhaps one of my colleagues brings this issue, and similar concerns, to the attention of our students. Lawyer A prepares a will for Client 1. Months later, while working on an estate plan for Client 4, Lawyer A decides that the will drafted for Client 1 is a good place to start. Even if Lawyer A is careful to change ALL the references to Client 1's name and gender-based references, a knowledgeable and curious Client 4 will be able to figure out the content of Client 1's will and the fact that it was used as a template for Client 4's will, unless Lawyer A removes the metadata.

Second, should lawyers who receive a document from another lawyer, a client, another party, or any other person, dig through the metadata in order to discover information that has been deleted? At least one member of the Florida Bar Board of Governors thinks so, calling it unethical and unprofessional. I agree. In many respects, the metadata's appearance in a document on the attorney's computer is not unlike the arrival of a misdirected facsimile on the attorney's facsimile machine. In both instances, the sender would not have sent the information had the sender been more careful and less ignorant.

Third, what should computer users, including attorneys, do to prevent other people from mining metadata? The Florida Bar Board of Governors also asked its Professional Ethics Committee to consider if lawyers have "an affirmative duty to take reasonable precautions to ensure that sensitive metadata is removed from an electronic document before it is transmitted."

There is no one answer, because software exists to mine metadata from documents created in Word, WordPerfect, Powerpoint, Excel, Adobe, and most other formats, and the steps that must be taken are not the same for all document formats.

In Word, Powerpoint, and Excel, users should turn off the Fast Saves feature, which isn't very important anymore because computers now run at fairly rapid speeds. In WordPerfect, turn off the "Save Undo/Redo Items with Document" option, but this will not remove all metadata. There is additional guidance at the Corel knowledge database.

Saving Adobe documents in PDF format removes most metadata, but this renders the document un-editable, so many attorneys are using this format if the recipients have no need to edit the document. But saving a Word document in PDF format doesn't necessarily remove the same data as does saving the file from within Adobe. However, a PDF document can be converted into TXT format, edited, and then converted back into PDF format, though doing so removes much of the formatting that makes PDF attractive. It is possible, though, when saving a file in PDF format from within Adobe Professional to make it impossible to convert the document into TXT format. For additional information, take a look at the National Security Agency's "Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF". I suppose imitating the practices of the NSA should be sufficient for lawyers, other tax professionals, and computer users generally.

There also exist "metadata scrubbers" for certain formats, such as Metadata Assistant, ezClean, and Workshare Protect. I haven't found, though admittedly I haven't invested hours searching for, scrubbers that clean up tax return files generated by TurboTax, TaxCut, and similar programs.

So consider this post the sharing of an alert, and not a prepackaged solution. Attorneys and tax professionals need to study the problem, learn the solutions, establish office policies and procedures, and ensure that their employees understand and follow those rules. If a client is harmed by the release of data, a standard of "known or should have known" will leave no easy escape from liability for those who are not paying attention to this issue.

Thanks to the folks on the ABA-TAX listserv who shared their knowledge with the list's subscribers. After reading the questions and comments, I decided I could be of assistance by bringing these concerns to the attention of a different audience.

Blowing Away Some of the Capital Gains Smoke

Almost two years ago I posted an explanation of why it does not make sense to have special low tax rates for capital gains, and why adjusting basis for inflation responds to the arguments for taxing capital gains at low rates that reflect serious problems rather than mere preferences. I have mentioned my opposition to special low rates for capital gains and to the extension of those rates on numerous occasions. Bored? Go to Google, choose advanced search, enter "capital gains" as the phrase, and put "mauledagain.blogspot.com" in the domain box. Seventeen hits. I'm not going to churn out 17 links.

Now comes some interesting data from a new Congressional Budget Office (CBO) report. In 2003, the top one percent of the population received 57.5% of all capital income. This is the highest percentage for any year since the CBO began examining data for 1979. Before 2001, the share of the top one percent was under 50 percent, and usually was significantly lower than 50 percent. The trend, therefore, is that by the time data for 2005 is reported two years from now, the share of the top one percent may reach 60 or 65 percent. Or more.

In the meantime, the bottom 80 percent of the population received 12.6 percent of capital income. In 1989, it was almost double that, at 23.5 percent.

So why does this matter?

Capital income consists of capital gains, dividends, interest, and rent. Two of these categories already enjoy lower tax rates. The President's Tax Reform Panel proposed adding interest to the group. These are the types of income at the center of the debate over tax rates and the campaign to make the lower rates permanent. Capital income does not include income earned by tax-free retirement plans.

One of the arguments made in favor of special low tax rates for capital gains and dividends, and for extending those tax rates and/or making them permanent (to the extent anything Congress does can be considered permanent) is that, to quote the report, "stock ownership is widespread and thus the benefits of extending these tax cuts will be widespread as well." That argument makes for such a nice soundbite, but it just isn't so.

Another argument for special low tax rates for these sorts of income is that it frees up income that can be invested in ways that create jobs. Yet from the period 1979 through 2003, the "average after-tax income of the top one percent of the population more than doubled, rising from $305,800 (in 2003 dollars) to $701,500, for a total increase of $395,700, or 129 percent.... By contrast, the average after-tax income of the middle fifth of the population rose a relatively modest 15 percent (less than one percentage point per year), and the average after-tax income of the poorest fifth of the population rose just 4 percent, or $600, over the 24-year period." It's not a matter of creating jobs, it's a matter of creating jobs that provide the opportunity to have proper shelter, food, clothing, health care, and the other necessities of life.

For me, the report data is further proof that some people would like for a one-percent portion of the population (themselves included) to own ALL the capital income and property, so that they can "hire" the other 99% to work for them. Of course, those workers would need to shop at company stores, rent company-owned housing, and visit company-provided hospitals when ill. Does something in this seem familiar? Which empire? Oh, perhaps the now-defunct Soviet Union. Or the People's Republic of China before they figured out that the existence of a prosperous middle class and a diminution of the economic underclasses was essential to developing into a first world country? Or perhaps any of the many other historical and current have/have-not nations that lacked a middle class and thus ultimately faded from the arenas of history or continue to exist as shadows of what they could be.

The CBO report concludes that "Extending lower tax rates on capital gains and dividend income would exacerbate the long-term trend toward growing income inequality." I'd add, "Extending lower tax rates on capital gains and dividend income would accelerate the decline and fall of the American dream." Even for the top one percent. After all, without the 99%, where would the 1% be?

Should Scholarship Recipients Be Taxed on the Portion Used for Student Health Fees?

An interesting question raised by a tax listserve colleague yesterday provides a wonderful example of how a simple tax law concept can become complicated, and how an attempt to keep it simple raises the possibilities of abuse. Because the tax provision in question is one easily understood by most people, and relevant to tens of millions of taxpayers, it provides a wonderful object lesson.

The concept is that students should not pay income tax on scholarships. In implementing this concept, Congress limited the exclusion from gross income to "qualified scholarships." See section 117(a). Technically, the exclusion is limited to "qualified scholarships" received "by an individual who is a candidate for a degree at an educational organization described in section 170(b)(1)(A)(ii)." Because the specific question involves the definition of "qualified scholarship" the other requirements for an exclusion need not receive additional attention.

Section 117(b)(1) of the Internal Revenue Code in turn defines a "qualified scholarship" as "any amount received by an individual as a scholarship or fellowship grant to the extent the individual establishes that, in accordance with the conditions of the grant, such amount was used for qualified tuition and related expenses." Again, because the specific question involves the definition of "qualified tuition and related expenses" the other requirements of the definition of "qualified scholarship" can be ignored.

Section 117(b)(2) of the Internal Revenue Code in turn defines "qualified tuition and related expenses" as follows:

For purposes of paragraph (1), the term "qualified tuition and related expenses" means--
(A) tuition and fees required for the enrollment or attendance of a student at an educational organization described in section 170(b)(1)(A)(ii), and
(B) fees, books, supplies, and equipment required for courses of instruction at such an educational organization.

Regulations proposed by the IRS pretty much repeat this definition and then add a requirement not relevant to the specific question, namely, that "in order to be treated as related expenses under this section, the fees, books, supplies, and equipment must be required of all students in the particular course of instruction."

The specific question is whether health fees charged by a university to its students and which are covered by a full scholarship grant are eligible for the exclusion. Neither the Code nor the proposed regulations, nor, as best as I can tell, any other source of guidance, deals with this specific question.

One approach is to take the language for what it says. Tuition and fees required for enrollment attendance are within the exclusion. If the health services fee is required for enrollment, then it is within the exclusion. That seems simple enough. Why complicate it?

The other approach points out that the simple approach opens the door to abuse. Using an extreme example, what if the school charged a "BMW fee" and provided BMWs to all its students? Should the portion of a scholarship covering this fee (assuming there would be such a scholarship) be excluded from gross income? Would that make sense in light of the presumed intention of Congress in enacting the scholarship exclusion, which is to prevent a federal income tax from obstructing the use of scholarships granted for educational purposes. What's educational about using a BMW?

Perhaps this is a theoretical concern. After all, political pressure and state legislative oversight would discourage or even prohibit state-funded schools from charging BMW fees. And market pressure would do the same to private schools. But the issue of the health services fee, a commonly charged fee, is far from theoretical.

It is easy to see that the simple approach does open the door to abuse. Forget BMWs. That's too obvious. What about fees for TGIF parties, intramural sports, computer equipment use, or the so-called "general fee"? Those concerned about abuse suggest that the portion of the scholarship used for a fee should be excluded only if the fee is used for a "related expense" and that to be a related expense, the charge must be related to tuition.

In one respect, it makes sense for there to be some sort of definition that restricts the exclusion to amounts used for education or for things directly related to education, such as lab fees, textbooks, computers used for course work, and similar items. The portion of a scholarship used to pay activity fees, sports fees, health care fees, and similar items would be treated in the same manner as the portion of a scholarship used for room and board. It would not be excluded from gross income.

But in another respect, this would elevate form over substance. Even those advocating a restrictive interpretation of "related" agree that the portion of the scholarship used for tuition is excluded from gross income. Consider a school that charges tuition, but no fees. There does not appear to be any requirement, either in the statute or by the IRS, that the school separate the tuition into the portion used for course work and the portion used to operate the university's student health care facility. Of course, many schools charge fees because it keeps the stated tuition lower, permits the school to announce lower tuition hikes while jacking up fees, and permits the school to charge fees to its employees who qualify for free tuition. Thus, a narrow interpretation of "related" puts a scholarship recipient at a tax disadvantage if he or she attends a school that breaks out fees from tuition.

There is another concern. The term "qualified tuition and related expenses" is a term of art. Even if each word in the phrase should be interpreted, the word "related" should mean "related to tuition" and not "related to classroom and course work" or some similar restrictive definition that excludes health care fees. The definition of the term "qualified tuition and related expenses" in turn encompasses two types of fees that qualify for the exclusion. One is the fee required for enrollment or attendance at the school. The other is the fee required for a course of instruction at the school. The latter fee is included in the group that the proposed regulations restrict to those required of all students in the particular course of instruction. There doesn't seem to be any justification for carving out a definitional gloss.

Is it abusive to permit exclusion of the portion of the scholarship used for student health fees? I don't think so. The school has determined that providing basic health services to its students furthers the educational purpose. The rationale, I think, is that the school would shut down if students not sick enough for hospitalization but sick enough to infect the campus aren't treated, and treated quickly. Yes, there is some parentalism involved, but that's nothing new, even for universities (in contrast to private K-12 schools where parentalism is a sina qua non of the experience).

If someday, somehow, somewhere, a school manages to charge fees for things beyond the pale, such as BMWs, Congress will need to revisit the provision. The outcome surely would be more complexity. Complexity would arise if school-required fees had to be sorted into two different piles, with some fine line separating those charged for things more closely related to education and those charged for things less closely related to education. If schools avoid charging fees for BMWs and other over-the-top things, as I expect they will, the complexity will not enter the tax law. The lesson? Complexity often is the product of taxpayer attempts to push the envelope. In this particular instance, because the schools are tax-exempt, they have far less incentive to push the envelope, and most likely are not going to do so on behalf of their scholarship students' income tax exclusions.

Many thanks to Reggie Mombrun of Florida A&M College of Law, who presented the question, and to Alan Gunn of Notre Dame, Mike McIntyre of Wayne State University, Margaret Raymond of the University of Iowa, and anyone else whose name I've overlooked who contributed to the discussion.

No Such Thing as a Fraudulent Tax Shelter?

According to this report, federal prosecutors have convened a grand jury in New York to investigate three lawyers at a well-known Dallas law firm who allegedly marketed illegal tax shelters. This news suggests that the federal government is casting its criminal prosecution net beyond the KPMG waters. The article provides very little specific information about the shelters, because the proceedings are sealed and only small bits of information have found their way into the public sphere. At least for the moment.

This news does not sit well with J. Craig Williams, of May It Please the Court. In this posting he argues that it is wrong for the IRS to prosecute lawyers who "come up with tax shelters". He explains:

It's just plain wrong. Think about it. Congress passes laws that require us to pay taxes. Once you establish the rules and write them down, it's up to the lawyers to figure out the loopholes and the way around them. * * * * * So, when enterprising lawyers go out there and successfully figure out how to shelter money from taxes, the IRS takes aim and prosecutes the lawyers for being smart enough to figure out what they did wrong when they wrote the code. I'm not sure if the lawyers are being prosecuted because they showed the ________ (fill in your own word) of the IRS and Congress to the rest of us or because the result of their work actually means less dollars in the government's hands and more money in our hands.

Sure, there's another way to look at it: the lawyers actually did something illegal that was precluded by the code, and they should be punished. As you can see just from these paragraphs, however, there's no such thing as black and white in the Internal Revenue Service code.

I suggest that it is premature to evaluate the wisdom or appropriateness of the federal government's investigation of these lawyers. Perhaps there will be an indictment. Perhaps not. If there is an indictment, it means that a grand jury was persuaded that what transpired was more than simply good chess playing.

We don't know the facts. There are tax shelters that rest on fraud, and not on the ambiguities of the tax law. The notion that "there is no such thing as black and white in the Internal Revenue Service code" is nonsensical. Not only is there no such thing as the Internal Revenue Service Code, but there are clear tax rules. The fact that some tax issues are unresolved, or that there are ambiguous provisions, or that application of particular principles to specific facts is near impossible, there's no escaping the existence of numerous unambiguous provisions that are turned to a tax savings benefit only through fraud or similar manipulation. For example, no taxpayer is entitled to deduct a dependency exemption for his or her pet canary. That's an easy rule, though it isn't one that will generate much in the way of fees when explaining it to a client. Somewhere there is an attorney trying to figure out how to make the canary a child of the taxpayer. The unsophisticated were in the habit of putting the canary on the return as a dependent, but then Congress required that the dependent's social security number be provided. Perhaps some clever attorney is figuring out how to get a social security number for a canary. Silly example? No. After all, credit cards have been issued in the name of dogs.

There are tax shelters in the Code, and though most require the assistance of an attorney to set up, none require the invention skills of an attorney. For example, real estate investment is a huge shelter, because a person can invest a few of her own dollars and many dollars of a bank, watch the property increase in value and simultaneously claim depreciation deductions. Though an attorney's assistance in drafting the acquisition documents and setting up the ownership vehicle is most helpful, no attorney is going to rake in huge fees simply by inventing the "real estate tax shelter."

What gets attorneys, and others, in all sorts of trouble is the attempt to take a transaction that does not provide a tax benefit and turn it into one that does. Layers of nominal owners, transparent entities, and circular transfers are pasted onto the core transaction to generate the appearance that the transaction is something that it is not. A great example is the attempt to classify a debt as recourse for purposes of the creditor, who unequivocally wants recourse to the borrowers, while claiming to the IRS that it is a nonrecourse debt (which generates tax advantages) even though that assertion requires taking a position inconsistent with the reality. The reality is hidden underneath a panoply of smoke and mirrors.

It is true that lawyers, and other tax practitioners, can and should assist their clients in minimizing their taxes to the least amount required by law. If a lawyer figures out that an S corporation makes more sense than a C corporation, there's no problem in steering the client to the more tax-advantaged form. But trying to make a C corporation look like an S corporation when in fact it does not qualify is an effort of a totally different character.

J. Craig Williams leaves us with the impression that it is impossible to do something "precluded by the code," and thus illegal, because "there's no such thing as black and white" in the tax law. Baloney. If it turns out that the three attorneys under investigation did counsel tax law transgressions, and we don't know if they did or did not, then so be it. Disbar them, imprison them, fine them, and, yes, cheer for the folks duped by their clients' tax shelters who already have filed civil lawsuits against them and their firm. If it turns out that the three attorneys did not break the law, so be it.

The whole purpose of empaneling a grand jury and conducting an investigation is to find out what happened. J. Craig Williams seems to think that there is some sort of per se rule that no tax attorney can possibly commit tax fraud while creating tax shelters. Thus, he rails against the idea of federal criminal investigations. Why? If he is correct, all of the grand juries (surely there will be more) will refuse to return indictments. I wonder if the real concern is that the grand juries will return indictments, causing the culture of greed and self-centered selfishness so prevalent during the past 14 years to come crashing down.

I am sure we will be hearing more about these investigations. Put on the breathing masks, put on the shades, and get ready for a tour through the smoke and the glaring mirrors. If they exist in this case. Or the next. Or the one after that. Odds are, they'll turn up.

Tax Practitioner, Heal Thyself

Now that the start of the income tax return filing season is upon us, I decided it was time to pull this item from my "blog this someday" list and to transform it into a quiz.

Question 1. According to the IRS Office of Professional Responsibility, what percentage of certified public accountants failed to file a tax return for the last year for which the statistics were compiled?

A. 48%

B. 37%

C. 24%

D. 18%

E. 11%

F. 1%

G. None. Certified public accountants always file their returns.

Question 2. According to the IRS Office of Professional Responsibility, what percentage of tax attorneys failed to file a tax return for the last year for which the statistics were compiled?

A. 46.5%

B. 33.5%

C. 20.5%

D. 13.5%

E. 8.5%

F. 1%

G. None. Tax attorneys always file their returns.

If you chose answer E for both questions, give yourself an A. If you chose answer F or G, perhaps it is time to retire the dreams. If you chose answers A, B, C, or D, you're even more pessimistic than I am. Of course, I knew the answer. It was in a BNA Daily Tax Report email of a few months ago. I saved the data so that all of us who are filing tax returns, for ourselves and others, can find some inspiration when we're several hours into the task and ready to give up.

It is rather shocking, isn't it? After all, the non-filing CPAs and tax attorneys don't have some of the reasons/excuses offered up by most non-filers. "I didn't know I was required to file." That might seem plausible coming from some people, but not from a tax professional. "I couldn't figure out how to do it so I gave up." Ditto.

My guess is that the reasons fall into these sorts of explanations: "I forgot." "I was too busy with other things." "I'm like the shoemaker whose kids go barefoot, because I was so dedicated to filing returns for my clients I neglected my own responsibilities." "I don't like paying taxes."

Perhaps when someone is looking to retain a tax professional, in addition to the usual questions about education, experience, pricing, and deadlines, the person ought to ask, "Have you been filing YOUR tax returns?" According to the BNA information, roughly one in ten, if honest, would say, "No." But I wonder how many would answer honestly. Perhaps one in ten?

The irony is that one would think that tax professionals would know that the IRS has a greater chance of discovering their failure to file than it does of discovering anyone else. Especially considering that the IRS is taking affirmative steps to track them down.

Every time I teach the basic tax course, I point out to the students that attorneys are among the groups targeted by the IRS for special audit consideration, that failure to file tax returns is one of the leading reasons for disbarment and suspension, and that their education and experience makes it more difficult for attorneys to avoid the penalties for failure to file and pay taxes. Whether this news has any impact, or changes a student's values, I don't know. But I will continue to hope that it is worth the several minutes I set aside for it.

How Not to Survive Accusations of Tax Fraud

Numerous reports, such as this one, are popping up with the newest explanation offered by "Survivor" winner Richard Hatch for his having filed an incorrect income tax return. My summary of Hatch's tax adventures is in the "Honorable Mention" cluster of TaxProfBlog's The Top 10 Tax Stories of 2005.

During a break in Hatch's trial for tax fraud, his lawyer explained to the judge that he planned to question his client about a deal allegedly reached between Hatch and the show's producers. After telling the producers that he had caught his competitors cheating, Hatch was assured by the producers that if he won they would pay his tax bill. But when testimony resumed, Hatch was not asked about this new development.

Although some have questioned whether the cheating Hatch claims took place could have happened, I'll skip over that debate because I simply don't know enough to evaluate the allegations. Maybe the other competitors had friends who figured out how to sneak them food. Maybe not. That doesn't matter.

Why does it not matter? Because I find it difficult to believe that someone could conclude that they were not obligated to report their income on a tax return, despite having been told by tax professionals that it had to be reported, simply because someone else promised to pay the tax bill. I might accept such an explanation if the taxpayer didn't pay the tax due, because I can accept the idea that a person's mistaken though sincere belief that they don't need to pay taxes that they think someone else has already paid should block a criminal conviction for wilful failure to pay tax.

But Hatch filed a return that did not report the income. He was told by tax professionals that the income had to be reported. He filed a return that was generated to show what his tax situation would have been had he not won the money. He was told not to file that return. And his explanation has nothing to do with hundreds of thousands of dollars of other income that he failed to report.

The trial continues. Unquestionably the saga has not yet ended.

Thanks to Mark Morin for the initial tip about this new twist in the story, which he sent me several days ago but which I've had to leave aside while other professional duties with a higher claim to my time took hold.

Electronic Tax Payment Alert!

There has always been a tension in the tax law, and in law generally, between theory and practice. Some of the tension simply reflects the unwillingness of individuals, corporations, and other entities to comply with requirements that, at least in theory, have been put in place through a democratic process reflecting the will of the people. Some of the tension reflects the disconnect between the textbook civics lesson of how tax and other laws come into being and the reality of how they are made. There are a variety of other causes for the tension. One that has always fascinated me is the tension that arises from the chasm between a theory made law and the inability of taxpayers to comply with that law. Another is the cluster of traps for the unwary that illustrate the extent to which taxpayers can get caught by conflicting regulations.

Consider the matter of electronic filing and electronic payment of taxes. Among the many advances delivered by digital technology is the convenience, and occasional cost reductions, of filing a tax return through the internet rather than through the postal service or a delivery company. Another of the many advances brought to us by digital technology is the convenience, and presumable cost reduction, of moving money from one account to another through an internet or touch-tone telephone connection.

So, in theory, one might think a taxpayer can proceed as follows. On April 14 or 15, take one last look at the Turbotax or other software-generated tax return, click the appropriate menu items, and send the return on its way to the IRS. Technically, it goes to the Turbotax or other electronic filing service, which then checks it for compliance with electronic filing standard, sends it to the IRS, and notifies the taxpayer that the return has been filed. In the meantime, if the taxpayer owes taxes, the taxpayer can instruct Turbotax or its counterpart to make payment on behalf of the taxpayer, or can go directly to the Electronic Federal Tax Payment System and make payment of the taxes.

It's the digital world equivalent of the "old paper days" when a taxpayer would complete the return, write a check, put the return and the check in the envelope and get it postmarked by midnight on April 15. The return and check would reach the IRS some days later, and the check would be cashed at some point after April 15.

But guess what? It doesn't work that way.

Thanks, again, to Jim Counts CPA CTFA, for an important alert. Jim shares a response he obtained from the IRS after he made an inquiry following up on something he heard at a professional meeting. The question simply is this: is the tax timely paid if the electronic payment is directed to take place on April 15? The answer:

Yes, it would be best if the taxpayer scheduled his/her payment at least 48 hours in advance of the payment due date, using electronic payment options. It does not always happen, but it could take up to 48 hours to receive acknowledgment of the IRS' receipt of the payment. If a
return were filed on the due date, or even the day before, it would be in the taxpayers' best interests to make sure that any payments for tax liabilities were received by the IRS by the due date in order to avoid potential penalties.

A return could be filed or mailed on the due date, and still be timely, since the postmark date is used to determine a timely filed return. However, a[n electronic] payment must be received by the payment due date, to be considered as timely paid by the IRS.

Of course, once everyone knows this, it ought not be a big problem. It's easily solved if people pretend that returns and taxes are due on April 11, but that's not always possible. My question is this: if writing a check and mailing it by April 15 is sufficient, why is it inadequate to direct electronic payment on April 15? The IRS almost always gets the cash from depositing the check long after it gets the cash from the electronic transfer.

What's a taxpayer to do? Jim Counts recommends one approach, and I agree that it works. File the return electronically but mail the payment the old-fashioned way. Alternatively, process the electronic payment earlier than April 15, though that may require paying more than is necessary if the return is not finished by April 8 or 9.

Jim adds a "final thought." He says, "This issue needs to be fixed by the IRS and Treasury." Indeed. Whoever is writing the regulations and rules relating to electronic payment of taxes needs to provide that taxes are deemed paid when the electronic payment is ordered, just as they are deemed paid when a check is placed in the mail. If the electronic payment "bounces," deal with it in the same manner as a bounced paper check is handled.

After all, the IRS has been pushing taxpayers, and in some instances, requiring them to file returns electronically. The IRS has been encouraging, and in some instances requiring, electronic payment of taxes. So why throw an impediment in front of taxpayers who are trying to be twenty-first century citizens? Why the disconnect between what's encouraged on the one hand and made difficult on the other? Why the trap for the unwary, which surely would have caught even more people were it not for the alertness of Jim Counts and his generous willingness to share what he learned on the ABA-TAX list and with the readers of MauledAgain?

So until the IRS and Treasury fix this, the song continues:

In theory use the internet to file and pay
In practice pay up the cash on an earlier day
Else send the IRS a check the old-fashioned way
This is the path to keeping tax penalties at bay

[Yeah, it rhymes and the meter is right. But, ok, see why I teach tax and not poetry?]

Students Fail When We Fail Students

My recent post on the shortcomings in K-12 and undergraduate education, "No Wonder Tax Law Seems So Difficult," brought a response from a long-time, loyal reader whose writing style, at least in this one, rivals the sarcasm sometimes found in my retorts.

The comments were directed to this particular portion of my post:

The answer? Graduate schools must become more demanding of the K-12 and undergraduate education systems. They must abandon the notion that they can teach anyone anything, and dictate to their applicants an appropriate list of skills that must be held before they can enter. Hopefully, the spillover to the college students not intending to pursue a graduate education will, as it is said, be a rising tide that makes all the boats ride higher.

After sharing this quote from CNN,

Without "proficient" skills, or those needed to perform more complex tasks, students fall behind. They cannot interpret a table about exercise and blood pressure, understand the arguments of newspaper editorials, compare credit card offers with different interest rates and annual fees or summarize results of a survey about parental involvement in school.

this reader explained:

Soon to be release new curricula for all public school districts:

The Newest, Latest, and Greatest Planned Course Outline:

1. Students will interpret an exercise table.

2. Students will interpret a blood pressure table.

3. Students will understand the arguments of newspaper editorials (even if the editors do not).

4. Students will compare credit card offers, noting differing interest rates and annual fees.

5. Students will summarize the results of a survey about parental involvement in school (even if zero parents took the survey).

However, students will not be encouraged to understand that the latest changes in course syllabi are directly related to the inability of politicians to interpret literacy studies. They will not be expected to understand that the reduction of course expectations from grades K-12 to a sequential list of skills that produce proficient and advanced test results does not necessarily result in students who can problem-solve or engage in witty repartee.

Likewise, no consideration is to be given to home environments and any expectation of learning from parents. Furthermore, more individuals without education degrees will be encouraged to leave their high-paying jobs (where they're likely to be laid off a few years before retirement) and become teachers.

Still under consideration by politicians is the bill to take infants from parents from birth to college graduation, at which time children will be returned to parents. In all likelihood, their college diploma will not enable them to find employment that pays well enough to live on their own; all high-paying jobs will be taken by children who attended private schools and were encouraged to use their multiple intelligences.

Wow. Lurking in this satirical response are several very important points:

1. There are good teachers and there are bad teachers in every sort of school system, whether public or private, and whether K-12, undergraduate, or graduate. The more money that is invested in education, the more likely that the teachers are better. Yet some underpaid teachers excel, and some overpaid teachers are an embarrassment. Why? Because some of the characteristics of good teachers aren't measured by mere competence tests. How does one measure caring? Or patience? Or perseverance? Or holding the well-being of students more dear than the addiction to office and faculty politics?

2. When is the appropriate time to measure outcomes? As the students are completing a year of study? Or six months, two years, or a decade later, when time tells us what sticks and what doesn't, and when subsequent events in a real world are more indicative than artificial measurements that may or may not tell us what needs to be known?

3. Too many parents think that education is the task of everyone but themselves. No school system can read bedtime stories to children. No school system can engage in constructive dialogue at the dinner table. No school system can direct children's activities when school is not in session, seeing to it that the children get a balanced blend of physical activity, passive absorption, and active learning.

4. Being competent in a subject matter is no more a guarantee of teaching competence than is brilliant classroom demeanor devoid of intellectual value. Being knowledgeable doesn't guarantee the ability to inculcate understanding in the minds of students. Great teachers, even good teachers, are like athletes: born with skills, and coached to excellence.

5. Society speaks volumes about the value it places on teaching by supporting economic structures and policies that pump more money into the hands of a professional athlete or name celebrity than some public school systems have for their annual budget.

6. Academic discipline is a key ingredient to learning. Concentration, diligence, perseverance, and respect for others are core elements of a disciplined student. Discipline cannot be learned when discipline is avoided because children, and their parents, claim that their "feelings are hurt" when attempts are made to nurture discipline. Has anyone counted the number of good teachers who finally broke and left because the parents, politicians, and professional administrators cared more about votes and public image than the long-term educational effects of good discipline?

7. When will the message that learning occurs not by attending class but by getting immersed in a course become the standard fare of school systems? I'll find out when I notice fewer, rather than more, students with the "I'm paying the tuition to purchase a degree" mentality. Somehow they think that having letters after their name, or a piece of paper saying they were physically in a building for 200 days, means that they have the requisite ability to prevent and solve problems.

8. Students who learn by rote tend to become "memorizing regurgitators" who panic when presented with a fact situation similar but not identical to ones with which they are familiar. I see this too often among law students, and I wonder why the skill of "reasoning through analogy" which supposedly is a hallmark of "learning to think like a lawyer" isn't just as valuable to almost all other professions, occupations, and activities, and thus emphasized in every learning environment.

I am sure that some teachers will read this and be offended. But first, understand that I am not trying to indict all teachers. In some respects I'm not trying to indict teachers. It's the system, which in large part is the product of educational systems being subjected to the whims of politicians and politics, to the power of money, and to the influences of the wider culture. Understand that I know many teachers, almost all of whom are superb. Yes, I guess either I'm lucky in having met mostly great people or perhaps I'm just a snob who doesn't make friends with very many less than competent or priority-disordered individuals.

Yet we know there is a problem. The assessment I discussed in the earlier post tells us so. Something is seriously wrong, not just in the superficial trappings but in the very center of the educational universe, and if it isn't fixed quickly, it will be too late.

The entire nation, and not just some solitary blogger and some interested readers, should be alarmed. A poorly educated citizenry makes for a poorly prepared nation, a country that cannot compete economically, a land that suffers from bad decision making, a people who are disordered and ill-served. The nation's children are the nation's future. It's bad enough that today's youngsters are being put in harm's way because of structural budget deficits project to last generations but also because they're not learning what they need to learn so that they have a chance to save themselves by the mess being created for them to handle.

For if we don't give our children and grandchildren the education they'll need to enjoy the American dream, there won't be an American dream for them to experience, or perhaps even envision. The opportunities that a poorly educated nation presents to the nefarious oppressors of the world are no less expansive than those a well-educated nation presents to itself.

A Third Visit to Overpaid Employer Taxes

The issue of whether employers ought to get a return of excess social security taxes as do employees, which I first discussed last Friday, and visited again on Wednesday needs yet another bit of attention.

An enrolled agent in Michigan wrote to remind me that the Federal Unemployment Tax (FUTA) also generates the same sort of overpayment problem. It's on a far smaller scale, because the limit is $56, and the total amount involved is far less than the billion dollars caught up in the social security overpayment trap.

But if the problem is to be fixed, all of the taxes should be given appropriate attention.