Can't Rebut the Argument? Attack the Proponent!

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

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

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

Mitchell then attacks academic scholarship:

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

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

Mitchell then contends that

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

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

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

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

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

But here is a clue:

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

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

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

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

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

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

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

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

The Code is Simple? NOT!

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

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

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

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

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

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

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

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

Hello, Taxes

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

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

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

Let's take this apart.

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

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

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

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

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

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

A Tax Dirt Book. Really.

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

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

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

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

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

What a Way for Tax to Meet Apostille

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

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

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

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

More Tax Pictures

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

Big Brother Getting Bigger?

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

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

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

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

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

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

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

Apostille II

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

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

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

Apostille

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

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

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

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

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

Independence, Taxes, and Homeownership

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

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

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

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

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

Happy Independence Day.

Taxing Traffic?

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

Save Some Energy to Learn More New Tax Law

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

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

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

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

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

Tax Fashion Getting Out of Hand?

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

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

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

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

More on the News Feed

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

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

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

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

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

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

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

A Good Job of Picturing Tax

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

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

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

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

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

Charts of Tax Cases

1. Atlas Tool - (D reorganization with boot)

2. Bhada - (Inversion via 351)

3. Chapman - (B reorganization)

4. Court Holding - (Conduit Seller)

5. Davant - (D reorganization with Strawman)

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

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

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

9. Intermountain Lumber (Busted 351 exchange)

10. King Enterprises - (Two-step Merger)

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

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

13. Smothers - (Liquidation-reincorporation)

14. TSN Liquidating - (Pre-sale distribution)

15. Waterman Steamship - (Pre-sale distribution)

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

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

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

Reorganization Charts

1. A Reorganization

2. B Reorganization

3. C Reorganization

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

5. A Reorganization with a drop-down

6. B Reorganization with a drop-down

7. C Reorganization with a drop-down

8. D Reorganization with a drop-down

9. Forward Triangular Merger

Taxes, Fashion Sense, and the Internet

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

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

Then think.....

Someone came up with the idea.

Someone manufactures the items.

People are buying the items.

People are wearing the items.

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

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

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

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

The Summertime of Tax

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

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

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

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

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

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

Back next week.

Sole Proprietorship as Corporation?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Much Energy Does It Take?

To make an even bigger mess of the tax code?

Here we go again. This time it's the ENERGY POLICY TAX INCENTIVES ACT OF 2005, which was approved by the Senate Finance Committee several days ago. Let's see what it does to the tax law:

* it adds a new investment tax credit to the energy credit, applicable to qualified projects that generate power using integrated gasification combined cycle and other advanced coal-based electricty generation technologies.

* it adds a new investment tax credit to the energy credit, applicable to qualified gasification projects, which are projects that convert coal, petroleum residue, biomass, or other materials recovered for their energy or feedstock value into a synthesis gas composed primarily of carbon monoxide and hydrogent for direct use or subsequent chemical or physical connversion.

* it adds a new investment tax credit to the energy credit applicable to clean coke/cogeneration manufacturing facilities.

* it provides a credit for non-business energy-efficient property, which consists of advanced main air circulating fan, a Tier 1 natural gas, propane, or oil water heater, and tier 2 energy-efficient building property used in a trade or business.

* it provides a credit for the purchase of combined heat and power property, the definition of which includes four conditions and an alternative.

* it provides a nonrefundable business energy credit for the cost of energy efficient appliances.

* it provides a personal tax credit for the purchase of qualified photovoltaic property and qualified solar water heating property used for purposes other than heating swimming pools and hot tubs.

* it provides a business energy credit for the purchase of qualified fuel cell power plants.

* it provides a credit for the purchase of new qualified fuel cell motor vehicles, new qualified hybrid motor vehicles, and new qualified alternative fuel motor vehicles, and the credit would reduce the existing deduction for qualified clean-fuel vehicles.

* it extends the nonrefundable business energy credit to include energy-efficient property installed in a qualified new energy-efficient home during construction by an eligible contractor.

* it creates a new category of tax credit bonds, namely, clean renewable energy bonds, .

* it creates a new category of tax credit bonds, namely, clean energy coal bonds.

* it provides for a temporary election to expense the cost of qualified refinery property.

* it provides a deduction for energy-efficient commercial building property expenditures made by the taxpayer, limited to $2.25 per square foot of property for which the expenditures are made.

* it provides a deduction for the purchase of qualified energy property, which consists of advanced main air circulating fan, a Tier 1 natural gas, propane, or oil water heater, and tier 2 energy-efficient building property used in a trade or business.

* it treats natural gas distribution lines as 15-year property for MACRS purposes.

* it repeals the phaseout of the electric vehicle credit, and increases the credit to varying amounts depending on the specific characteristics of the vehicle.

* it increases the clean-fuel vehicle refueling property credit, and changes certain definitions relating to that credit.

* it increases, from 10 to 30 percent, the credit for solar energy property.

* it modifies the enhanced oil recovery credit, increasing it for qualified projects that use certain carbon dioxide injections.

* it extends the electricity production credit to electricity produced at advanced nuclear power facilities.

* it extends and modifies the renewable electricity production credit, by postponing the sunset date by three years, and adding fuel cells as a qualifying energy resource.

* it postpones the sunsetting of the biodiesel fuel mixture credit.

* it eliminates the sunsetting of certain income exclusions for tax-exempt rural electric cooperatives, and modifies some other highly technical provisions dealing with those cooperatives.

* it creates an excise tax credit for alternative fuels, allowed against the excise tax on alternative fuels.

* it creates an excise tax credit for alternative fuel mixtures, allowed against the excise tax on alternative fuels.

* it permits independent electric transmission companies to use the 8-year ratable gain deferral provision applicable to sales of property used in providing electricity transmission when the proceeds are invested in exempt utility property.

* it provides for the passing through, by cooperatives to their patrons, the deduction for costs paid or incurred to comply with the Highway Diesel Fuel Sulfur Control requirements.

By my count, there are 12 new income tax credits and 2 new excise tax credits, 6 modifications and expansions of existing credits, 3 credit sunset extensions, 3 new deductions, a deduction modification, and 2 other provisions. In the meantime, down the street, the Tax Reform Commission is studying ways to simplify the tax law and increase compliance. Up the street, Treasury and IRS struggle to find ways to deter taxpayers from manipulating complex code provisions to achieve goals not intended by the Congress, noting that the more provision are enacted, the more game-playing fields are opened to the tax shelter manipulators.

Is this any way to run an enterprise, whether a government, a private business, a charity, or any other institution?

No.

Of course energy conservation and the discovery and development of new types of energy sources are activities critical to national defense, economic viability, and preservation of a culture that nurtures democracy and human rights. But is turning the tax law into a chemistry and engineering handbook the appropriate approach?

No.

Notice how the credits are tailored to specific and narrow segments of subdivisions of the energy industry. It appears that, once again, lobbyists have had a field day. Where are tax credits for helping people purchase homes near their place of work, thus cutting down commuting time, which saves energy and reduces pollution. Where are the tax credits for teaching children not to leave the doors wide open in winter, or to teach people not to open a refrigerator in summer and stand there looking over the contents while debating their next move? Where are the tax credits for joining community swimming pools and closing down individual residential pools? Where are the tax credits for designing traffic light systems that don't keep cars waiting, getting zero miles per gallon, while invisible cars proceed on the cross street? Where are the tax credits for encouraging use of passenger trains, oh, wait, Congress is cutting Amtrak funding. Sorry.

Will the Congress authorize the hiring of dozens more Treasury and IRS employees to write the regulations and rulings required to interpret these dozens of new provisions? Will it pay for the hiring of IRS employees to develop the dozens of forms that will be required for these new provisions? Will it authorize the hiring of hundreds more IRS employees to audit the tax returns on which these credits and deductions are claimed? Will it fund programs to ferret out the tax shelter manipulators who will be offering various energy credit investment deals? I doubt it.

If the goal is to persuade individuals and businesses to engage in energy conservation and to develop new types of energy sources, why not let the market do its job? For example, when the price of gasoline reaches $6 a gallon, the demand for hybrid and other alternative fuel vehicles will soar, as demonstrated by the increased interest in hybrid automobiles as gasoline prices climbed over $2 a gallon. What's the point of giving a credit for something people would do on account of market conditions? If the concern is that some people would not be able to afford the purchase, and that a small credit would make the difference, why not operate a grant program for impoverished individuals through the Department of Energy? Well, the answer is that Congress apparently thinks that the IRS is the most efficient federal agency to operate energy and other grant programs disguised as tax credits. Yes, the same Congress that publicly bashes the IRS in order to "get" votes turns around and entrusts administration of its energy program to the IRS. Think about it.

As another example, when the cost of home heating oil and natural gas reaches comparably high prices, the incentive to shift to fuel-efficient appliances and fuel-conserving behavior will increase. Again, if there is a concern with the plight of those unable to afford new heaters and appliances, set up a grant program. After all, of what use is a tax credit, unless it is refundable, to someone with so little income that they don't have tax liability against which to set the credit. Note that, as best I can tell, only one of the credits is refundable.

The notion that American businesses and individuals will conserve energy and switch to more efficient, less expensive forms of energy only if bribed with tax credits is appalling. If that is indeed the case, it speaks volumes about a nation that perhaps is narrow-minded and short-sighted. And if Americans won't otherwise act in energy-wise ways, then it's time to enact laws dictating that they do so. Americans should be expected to do what is right, even if laws need to be enacted to tell us what is right. But to rely on tax incentives to get people to do what they ought to be doing, and very well might already be doing, is wrong. Very wrong. After all, what's next, a tax credit for stopping at stop signs? A tax credit for owning a gun and going a full year without shooting someone out of anger or revenge? A tax credit for eating broccoli? As sarcastic as these questions may appear, it would not be a surprise to see another several dozen lifestyle credits enter the Code next year, another several dozen neighborly behavior tax credits enter the Code the year after that, and for the entire system to become the playground of the monied special interest groups who have no sense or understanding beyond their own little worlds. And if the nation succumbs to being controlled by these narrow-minded and short-sighted special interest groups, it will make the tax code mess one of the lesser concerns of the citizenry.

So what happens when the Tax Reform Commission comes in with a proposal to simplify things, assuming that it will do so. And I think it will do so, if for no reason other than to rack up PR points for the Administration. Can this addicted-to-lobbyists Congress resist the temptation to desimplify the proposal? I doubt it.

Watching Congress turn the tax law into a bureaucratic, inefficient, compliance-deterring nightmare is distressing, frustrating, and frightening. At least, for me, it is. I suppose it's not yet that way for enough other folks for it to matter. Congress, after all, won't stop until it is told to stop. Why else should it stop? That's where the frightening part comes in. Think about it.

More on Skyrocketing Housing Prices

My post the other day about skyrocketing housing prices brought some interesting comments from several tax law professors across the nation. Without unveiling their identities to the world, they collectively made these suggestions:

** The cause is twofold: low interest rates and a worldwide glut of capital.

** It's not a phenomenon limited to the U.S.; housing prices are skyrocketing in much of the world.

** Population increase is indeed a factor.

** Consider Mark Twain's (or Will Rogers') comment on investing in land because they aren't making any more of it, but also consider that there are separate land markets for farm, seasides, and residential development, the last of which has been increasing.

** To some extent wetlands preservation limits land supply.

** Housing markets rest on what new home sellers can command in the market, and they price new homes by capitalizing the stream of montly mortgage payments that the purchaser can afford.

** Even though the home mortgage interest deduction has the effect of reducing the buyer's monthly payment, becasuse it increases what the buyer can pay, it contributes to a higher asking price by the seller, and thus subsidizes sellers, and, to the extent they increase interest rates to reflect the deduction, banks.

** The combination of low interest rates and zero-principal, interest-only mortgages is drawing many renters into the home purchase market.

** The $5,000 tax credit for first-time homebuyers in the District of Columbia has had an impact.

** Increases in the cost of lumber and other building materials is contributing to the increase in home prices.

I had forgotten about the D.C. first-time homebuyers credit, and although it has very little impact on housing prices throughout the nation, it is an interesting example of government interference in the markets. Is the credit still necessary now that D.C. residential real estate has become much more attractive?

It's not just wetlands preservation that limits land supply. It's preservation of forests, open areas, historic properties such as battlefields, and any other building restriction that limits what an owner can do with the land, if it means fewer or no residential units being built on it.

Even though the cost of building materials affects chiefly new home construction, when new home prices rise, the cost of used homes will follow. This happens because potential buyers of the new homes who are priced out of the market or who cannot find a suitable new property will turn to the used home market, where prices generally lag behind new home prices by a few percent.

Interestingly, there is much concern that farmland is decreasing because of the "intrusion" of housing developments as population growth pushes out the boundaries of urban and suburban areas. If a disruption in global trade required America to increase its domestic food production, would there be enough farm land? Even though America exports food, such as grain, it also imports food, such as fruit from the Southern Hemisphere when the growing season in much of the continental United States has ended. Ultimately, there is a finite limit on how many people the continent and the planet can support. And one principal reason is the finite amount of usable land.

Home prices are highest in areas that are most desirable. Thus, housing prices on the two coasts lead the way. Clearly this reflects the demand side, as the portion of the country's population living within 200 miles of either ocean continues to grow. As small town after small town in the heartland closes up shop, will the D.C. homebuyer credit be expanded to cover those areas? Assuming, of course, that policy makers should, and do decide to, try influencing home purchasing decisions. Although one response, that people move to where the jobs are, makes sense, isn't that offset by the opportunity to telecommute? We know that people are telecommuting, as the tax tribulations of one particular telecommuter has been highlighted in several earlier posts (here, here, and here).

The zero-principal, interest-only mortgage surely is a factor, and some reports claim that anywhere from one-fourth to one-third, and even one-half, of new mortgage loans written during the past few months are this type of mortgage. The attraction to the buyer is the ability to take out a higher loan for the same monthly payment. But in the long-run, the zero-principal, interest-only mortgage is more expensive. Jeff Brown had a good explanation of why this is so in his Philadelphia Inquirer column yesterday. He's the one, incidentally, who noted that the proportion is as high as 50% of recent mortgage loans.

Much of the discussion about the skyrocketing housing prices has been a concern that there is a bubble that is going to pop. If that happens, there will be foreclosures, so we're told, on a scale similar to that during the Great Depression. Lenders will end up holding properties whose values are tumbling. Evicted homeowners will be flooding the rental market, or moving in with parents or other relatives. Will this happen? Is there a bubble? Andy Cassel, in today's Philadelphia Inquirer column, asks that very question, and in the style of a good law teacher, presents information and leaves the rest of the analysis and the reaching of a conclusion to his readers. He points out that household monthly debt service payments, as a percentage of household income, has remained steady since 1980. But he also points out that household debt has doubled. Andy notes that the "it's a bubble and will burst soon" cry has been with us now for quite a while, and yet new home construction and existing home sales continue to climb, and are on the verge of setting yet another record.

I worry about two things. First, because property taxes are based on home value, people on fixed incomes are going to be hit with yet another round of increased property taxes, unless localities scale back the millage rates. That's unlikely, because local governments, particularly school districts, are under all sorts of financial pressures as they struggle to comply with all the federal and other mandates specifying the long list of services that they must provide.

Second, if the geniuses who make national tax and economic policy start fiddling with the tax law to "control" housing prices, the fallout might not be limited to another stack of Internal Revenue Code pages filled with hyperlexic regulation. The fallout might be an overcorrection, or a dampening effect, that causes the baby to be thrown out with the bathwater. (Yes, nice (sarcasm) expression, but did it ever really happen???). I noted this concern in my Wednesday post, and Andy Cassel makes a similar point, namely, if the escalating prices are generating an even bigger bubble, "then it makes sense for government to try somehow to correct them" but if the home market is a rational reflection of supply and demand, "then government is likely to do more harm than good by stepping in." Considering the government's track record using the tax code to "step in" the ideal of using the tax code to tinker with the housing market is alarming.

One last question: So who is it that has all this excess capital available for infusion into the housing market? Home buyers? Surely not the ones, who like my former student Nakul and his wife, are experiencing sticker shock. How many people in this country have excess capital on their hands? Even though 75% of households own their homes, I truly doubt that 75% of Americans have excess capital. My guess is that the excess capital is being funneled into mortgages, marketed with an enticing "interest only" feature that in the long-run will, following Jeff Brown's analysis, shift even more wealth into the hands of those with the excess capital. Unless, of course, home prices continue to escalate. And if they do, at what point does the "interest only" feature fail to bring in new buyers?

This is going to remain a most interesting story to follow.

Home Price Sticker Shock

One of my former students, Nakul Krishnakumar, whose comments on previous postings have found their way to the MauledAgain blog on two occasions (and here), pointed me to an article in Capitalism Magazine about the causes of escalating housing prices. Nakul and his wife are experiencing sticker-shock first hand, as they set about house hunting and moving forward from Nakul's graduation last month. As a more passive observer, I'm not unaware of the significant increases in recent sales of homes throughout the area, but they don't have the same impact that they would had I been out shopping.

The point of the article, by Thomas Sowell, is that government intervention has caused the increase, bringing to an end, at least for the moment, an era of affordable housing attributed to the free market system. Sowell suggests that the passage of laws that restrict building, impose time-consuming review procedures, and subject home construction to planning commission review contribute significantly to the price increases. Sowell is particularly bothered by the fact that most of the people who vote for these types of laws already own homes and won't be paying higher home prices. True, at least until they move. Considering Americans move every seven years, on average, it is likely that a sizeable number of the voters Sowell describes will eventually get to write a check of some significant amount. Likely, but not certain. After all, there's more than a wee bit of a lottery characteristic in the home market.

Sowell points out that land is the biggest cost. He writes about prices in the San Francisco area, where average home prices have reached one million dollars. Though most other areas haven't reached that level, in every community I have lived or about which I have read, land is the biggest cost. Why? Aside from some minor reclamation projects, land pretty much is a known, finite resource. Oil is finite, but no one knows how much exists. But we know how much land, and buildable land, exists. We have maps. Supply and demand affect land. Sowell focuses on the supply side, pointing out that as more land is zoned off-limits to home construction, land prices will increase. He dismisses the impact of the demand side, claiming that overpopulation isn't a factor. His proof is that the population of San Mateo County, for example, declined by 9,000 people during a four-year period while housing prices rose. That, however, proves nothing. It isn't population, per se, but household quantity and size. If, over a period of time, 50,000 homes occupied by 5-person households are put on the market, and 80,000 3-person households seek to acquire homes, home prices will rise even though when all is said and done the population of the market has declined. I don't disagree that restricting supply drives up prices, but I think it is only a piece of the puzzle. Whether the supply should be restricted is a serious question, because American taxpayers and consumers are getting tired of paying taxes and insurance premiums that eventually are used to rebuild, yet again, a home built on a barrier island, a mudslide-prone hill, or in a wildfire-ready thicket.

There are two other factors to consider. One is the purpose for which homes are being purchased. The other is, of course, taxes.

What little data exists suggests that the number of people who are purchasing homes primarily as investments rather than as residences, including the number of homes purchased by buyers who have no plans to occupy the structure, is increasing as a percentage of home buyers. Consider this quote from John McLaughlin two years ago: "But in point of fact, investors have not lost confidence; they are investing. They're investing in houses like you, Pat, who own several houses -- many houses, I might say." There are all sorts of books touting housing as an investment safer and more profitable than the stock market, such as this one and this one, to mention two picked randomly from a flood of such publications. There is no doubt that the entry of investors into the housing market has a demand-side impact on prices. If, and when, those investors leave, housing prices will fall. Will they crash? Perhaps not, because other demand-side pressures could continue.

The tax question is whether the tax law fuels, dampens, or has no effect on the home price surge. Without doing empirical research, I'm going out on a limb by suggesting that current tax laws nourish the increases but aren't the primary cause. Here is why I reach this conclusion.

First, the tax law favors investments that generate capital gains and dividends, rather than investments that generate interest. In recent years, tax rates on capital gains and dividends have been significantly reduced, and reductions in other tax rates pale in comparison. This rate difference makes a house a more attractive investment, from a tax perspective, than is an investment in a mortgage. The tax law appears to be neutral in terms of rate differentiation when it comes to the stock market and housing, because both would generate capital gains if the investment is successful. To the extent, though, that the recent reduction of tax rates on dividends has driven money out of interest-paying investments, it contributes to the infusion of investment money in the housing market even though the tax law is not responsible for investor wariness about the stock market.

Second, the limitation on the amount of gain that can be excluded from gross income on the sale of a residence, and its availability every two years, might, and I emphasize, might, encourage a sort of churning by young, especially childless investor-residents, who move from property to property to extract the gains while they are under the $250,000 (or $500,000) cap. This practice was not unheard of years ago when the tax law permitted total gain deferral, as the facts of a few cases involving badly planned and poorly timed relocation indicate. Why go for one $250,000 exclusion over 10 years when moving five times during that period makes it possible to exclude as much as $1,250,000, especially if the taxpayer is childless and not burdened with several moving vans' worth of possessions? It is, after all, as those books point out, a matter of timing and location. That's true of much of life, but I won't go there now.

The bigger questions, though, are the interesting ones. How long until some vote-seeking member of Congress decides that it would make sense to use the tax law to curtail home price increases, or to offset the impact on those shut out of the market because of the increase in demand, coupled with the supply decreases? What sort of proposal would be made? Some sort of credit? Disincentives to the purchase of housing as an investment? Lengthening of the two-year period applicable to the residence sale gain exclusion?

The final questions, though, are the scary ones and surely more important and larger than the tax issues. Will the phenomenon of rapid and substantial price increases that have afflicted the housing market, due to a combination of demand-side pressures, supply-side shortages, and questionable government tax and other policies interacting with a finite resource, land, not only afflict another finite resource,oil (and its products), but yet another finite resource, clean water? Or some other finite resource, such as clean air? Or some other life-critical substance? Aren't those, too, subject to a combination of demand-side pressures, supply-side shortages, and questionable government tax and other policies? Toss in the renewable resources that require a long time to renew (rain forests, deep sea fish schools, lumber, and the like), and the picture becomes quite ugly. It is not without careful reasoning that some suggest the next, and most devastating, world war will involve water. The recent oil, concrete, steel, lumber, and housing market experiences could be very instructive.

Looking for Tax in All the Wrong Places?

I can’t help it. It’s built into me. It’s true. As Andy Cassel wrote last fall in his column about my tax class, "Maule himself not only understands the tax structure, he sees evidence of it pretty much everywhere."

Every which way I turn, I see tax rearing its ugly head. The latest opportunity came thanks to this news alert posted by Paul Caron on the TaxProf Blog. Paul noted that he “could not find much of a tax angle” in this Smoking Gun story about a Florida busboy who found Jimmy Buffett’s cell phone, kept it for a week, possibly called Bill Clinton, whose number was in the phone, refused to return the phone despite a $200 reward offer, and finally surrendered it when police and Secret Service agents showed up.

It took but a moment. Yes, there’s an examination question, with several subparts, in this story. A few more facts need to be added. The phone had the numbers not only of Bill Clinton, but Al Gore, Bill Gates, George Clooney, Jimmy Carter, Cam’ron, Harrison Ford, Alan Jackson, and other celebrities and politicians. The busboy was fired from his job at the establishment where he found the phone after Buffett had visited in May.

Rather than hand the answers to students who might be reading this, and, yes, a few do, I’ll set forth the questions, which hopefully will encourage them, and everyone else, to think about the tax implications. The tax principles involved are fairly basic, and don’t involve computational gymnastics.

1. Does the busboy have gross income when he finds the phone? Why or why not?

2. Does the busboy’s refusal to return the phone matter in the gross income analysis? Why or why not?

3. If there is gross income, how much must be reported? Is it the value of the phone as a phone? Or is it a value that includes some amount attributable to the worth of the celebrity phone numbers stored in the phone?

4. Had the busboy returned the phone in exchange for the $200 reward offer, would it be treated as a sale of the phone or would it negate any gross income on account of finding the phone in lieu of simply $200 in gross income from receipt of a reward?

5. Is there a loss deduction on account of the phone being confiscated, in effect, by the authorities? If so, is the amount of the deduction equal to the amount of any gross income?

6. Is there any sort of deduction arising from the busboy’s loss of his job?

Here’s a hint. If there is gross income, the busboy’s basis in the phone would equal the amount of the gross income. That basis, in turn, would have an impact on some of the questions focused on subsequent events with respect to the phone.

OK, I’ve asked the questions. Now it’s your call. For students and former students, these questions ought to ring a bell. They’re simply an extension of several topics discussed in the basic tax course. Don’t get hung up on computation of fair market value.

Obsolete Before It Leaves the Factory

Today I'm turning from getting the J.D. Program Introduction to Federal Taxation course ready for the fall to preparing the Graduate Tax Program Partnership Taxation course. It's going to take longer than usual, because there is a new edition of the "casebook." The "law" has changed, so the authors have revised the text and the problems. For me, every place a page reference is made must be changed. Each problem needs to be reviewed. After all, in some instances even if the problem hasn't changed, the answer has.

Just as the book went to the printer, the IRS issued several sets of regulations. I described one set, dealing with the tax treatment of partnership interests issued for services, a few weeks ago.

So I wondered, could these changes possibly be in the book? I know it will change the answer to at least one problem set. The response, no, the regulations were issued too late.

That's one of the frustrations of dealing with tax. It never stands still. The authors update their book, and even as it goes to press, it's out of date. There once was a joke, back in the industrial age, about equipment taking so long to build tha it was obsolete before it left the factory. I don't remember the entire joke.

On Wednesday I received my author's copies of 597 T.M., Tax Incentives for Economically Distressed Areas, which discusses all the enterprise zone, empowerment zone, renewal community, New York Liberty Zone, etc., etc., provisions in the tax code designed to alleviate economic problems in specific areas. I wrote the manuscript two years ago. Then Congress made changes. The manuscript was revised. Then Congress made more changes. The manuscript was revised again. I suppose I could accept the phenomenon if the changes were vital and critical. They're not. Most of them are window dressing or deferential catering to specific special interests.

So after I dig through the new Partnership material, I'll have some time, perhaps, to discuss one of the latest topics circulating among some practitioners. Can a sole proprietor elect, under the check-the-box regulations, to be a corporation?

Truly, Tax is Everywhere

I surrender. I can no longer resist commenting on some news from several weeks ago. It's an excellent example of tax policy run amok. Full credit to Paul Caron of the TaxProfBlog for picking up on this story and alerting us to it.

Denmark has an income tax. It excludes from taxation income earned by men who donate sperm to sperm banks. Stop. What's the reason for this exclusion? To encourage sperm donation? What's next, a deduction for purchasing chocolate?

Danish officials see the light. According to stories reported by the BBC and Reuters, the Danish government plans to revoke the exclusion. Good tax policy, as suggested by this Tax Foundation report on the story, demands that the source of income should not affect its taxation.

Denmark is home to Cryos International Sperm Bank, one of the world's biggest. It objected to the requirement that it report information about the men to whom it pays $85 for each donation. The term "donation" is misleading, of course, because when a person gets paid for transferring something, it isn't a donation.

The issue affects about 160 men, down from 250 five years ago. Most are students. Cryos, which earns about $1,700,000 a year, which presumably is taxed, assists in generating about 1,000 pregnancies each year. For Cryos, the concern is that its source of product will "run dry." Interestingly, only three years ago, Pravda, yes, Pravda, was reporting that there were too many sperm donors in Denmark.

So Cryos argues against revocation of the exclusion. Its argument is simple. "It is a special kind of work and the fees paid cannot be compared to normal working income." Huh? Are the rest of us NOT engaged in special work? Should governments restrict income taxtion to normal working income and exclude abnormal working income? Can we make a list of abnormal jobs?

Cryos claims that taxing the fee would cause 93% of current "donors" to stop participating. The reason isn't the money, but the privacy concern arising from the government learning the identities of the men, who fear being sued for child support. Huh? Danish law permits the sale of sperm but doesn't insulate the sellers by maintaining anonymity? Yes, but some politicians and activists have proposed abolishing anonymity to remove an objection to making artificial insemination available to lesbians, namely, that a child should have a mother and father.

So if the anonymity protection for sperm sellers is removed, would it matter that the payor would be reporting names and income to the government? So perhaps this isn't as much a tax problem as a cultural, social, moral, and theological problem. Hold on. Most tax issues are cultural, social, moral, and theological problems in disguise.

Such is the case here. According to this New York Times report, there are laws that limit the number of children that a sperm donor can "father." The reason for the limit is to reduce the risk of accidental incest. So the United Kingdom caps it at 10, Denmark at 25, and the United States uses a more complex limit of "25 births for each donor within a population of 800,000." Yet one man, a Cryos client, has sired (interesting word) 101 children, a fact that even does not know. Egads, if he and his children keep up that pace, in 300 years half the world will be his descendants. It took 1200 years for Charlemagne's descendants to reach some much lower fraction of the population.

Does society want this? Perhaps. Perhaps not. Yet it is safe to predict that the tax laws will end up being implicated to put the policies, whatever they are, in place. There already exist several tax incentives for adoption. What's next for the tax law in the world of reproduction policy? I have no clue. That's part of what makes tax fun, at least sometimes. Yes, the thrill of not knowing what surprises are around the next legislative corner.

Deflating Discover about Inflation Adjustments

I have “discovered” something rather interesting about the inflation adjustments that pepper the federal income tax. Even taxpayers who would never claim to be tax experts are aware that many of the “fixed” amounts applicable in computing income taxes, like the standard deduction and personal exemption, have increased annually due to inflation adjustments.

I use the word “discovered” because I hadn’t seen any mention of another phenomenon I noticed last week when preparing my Introduction to Federal Taxation course for J.D. students. Yes, it’s “only” June but it is unwise to wait until mid-August to begin preparing the course. Anyhow, when I teach depreciation the best I can do, because of time limitations, is to take the students through an overview. So when it comes time to look at section 280F, which imposes caps on depreciation deductions for vehicles and other listed property, there’s about 3 minutes to describe the concept and to show the inflation-adjusted caps so that the scale of the limitation can be appreciated. Rest assured, I don’t require the students to do any section 280F computations.

When I took last year’s materials and Powerpoint slide and started revising the numbers, I noticed something that caused me to think I had made a typo or had mis-read last year’s or this year’s revenue procedure prescribing the numbers. For autos placed in service during 2004, the deduction limits for each of the first four years of service are, respectively, $2,960, $4,800, $2,850, and $1,675. For autos placed in service during 2005, the deduction limits for each of the first four years of service are, respectively, $2,960, $4,700, $2,850, and $1,675. Yes, look again, as I did. The limit goes DOWN, not up. An INFLATION adjustment not going UP?

I looked again at the two revenue procedures. The inflation adjustment for the section 280F depreciation limits reflect the new car component of the consumer price index (CPI). It was 115.2 for October 1987, the base period, 133.5 for October 2003, the reference period for the 2004 limitations, and 133.0 for October 2004, the reference period for the 2005 limitations.

So even though the standard deduction increases from 2004 to 2005, for example, from $4,850 to $5,000 for unmarried individuals, and even though the personal exemption jumps from $3,100 to $3,200, the section 280F limitation goes DOWN. Apparently the other elements in the CPI increased sufficiently to outweigh the decline in the cost of new vehicles.

Apparently the CPI components for manufactured items, not just cars, but sporting goods, appliances, clothing, and the like, have been declining ever so slightly for the past few years. So why is the CPI increasing? Medical care, energy, education, to name several components that have been increasing more than moderately as most taxpayers know and have experienced.

I’m told that the CPI components for manufactured goods are adjusted not only for actual price changes but also for quality changes arising from newer technology. I was directed to the Bureau of Labor Statistics website, including an example with respect to one sort of appliance, a report by Paul Liegey, “Hedonic Quality Adjustment Methods for Microwave Ovens in the U.S. CPI..” To paraphrase my source, when’s the movie being released? If microwave ovens aren’t your thing, the BLS CPI home page contains similar articles about clothes dryers, college textbooks, refrigerators, VCRs, DVD players, and camcorders. Amazing the places tax research takes us!

One problem with the the modification of the adjustment with respect to technological improvements is that some things considered to be improvements might not be improvements, and some service degradations aren’t taken into account. Someone pointed out to me that the on-pump credit card reader was considered an improvement, but that no adjustment was made for the removal of traditional service station services such as window washing.

Another problem with the modification of the adjustment is that if taxpayers pay 5% more this year than was paid last year for vehicles that are 8% better, the result is a DECREASE in the depreciation limitation. Does it make sense for the tax benefit to be DECREASED when the taxpayer’s investment reflects an improvement in quality? I don’t know the answer. It’s a question worth pondering.

Is it possible that one of these years the standard deduction and personal exemption will DECREASE? I can only imagine what taxpayer reaction will be when that decision is announced. My guess is that they’ll be somewhat deflated by the news.