Who Is a Farmer? A Taxing Question?

Many students bring to their first basic federal income tax class a deep anxiety and sometimes overwhelming fear that they will be immersed in some sort of mathematical nightmare. I try to reassure them that to the extent numbers are involved, it’s a matter of arithmetic, probably the least complex field in mathematics. I explain that when they struggle with allegedly mathematical concepts such as ratios and proportions, the challenge often is with the concept and not the numbers. And I emphasize the significant role that language plays in learning and applying tax law. It’s not, as the unfounded claims suggest, all about numbers.

A few days ago, an interesting example of the importance of words in the tax world appeared in a Philadelphia Inquirer article about the New Jersey real estate property tax limitation available to farmers. The article examined several situations, involving well-known individuals including a member of Congress, who have taken advantage of the real estate property tax limitation even though their farming activities are minimal. Someone reading the article might think that the issue is one of defining “farmer” or “farming,” but that is not how the statute was drafted.

The provision in question states:

54:4-23.2. Value of land actively devoted to agricultural or horticultural use. For general property tax purposes, the value of land, not less than 5 acres in area, which is actively devoted to agricultural or horticultural use and which has been so devoted for at least the 2 successive years immediately preceding the tax year in issue, shall, on application of the owner, and approval thereof as hereinafter provided, be that value which such land has for agricultural or horticultural use.

In turn, the statute defines agricultural use in this manner:

Land shall be deemed to be in agricultural use when devoted to the production for sale of plants and animals useful to man, including but not limited to: forages and sod crops; grains and feed crops; dairy animals and dairy products; poultry and poultry products; livestock, including beef cattle, sheep, swine, horses, ponies, mules or goats, including the breeding, boarding, raising, rehabilitating, training or grazing of any or all of such animals , except that "livestock" shall not include dogs; bees and apiary products; fur animals; trees and forest products; or when devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to a soil conservation program under an agreement with an agency of the federal government, except that land which is devoted exclusively to the production for sale of tree and forest products, other than Christmas trees, or devoted as sustainable forestland, and is not appurtenant woodland, shall not be deemed to be in agricultural use unless the landowner fulfills the following additional conditions: [with respect to establishing a forest stewardship or woodland management plan, attestation by professional foresters with respect to compliance, and proper submission of applications with respect to the plan].

The statute also provides that “ agricultural use shall also include biomass, solar, or wind energy generation, provided that the biomass, solar, or wind energy generation is consistent with the provisions of P.L.2009, c.213 (C.4:1C-32.4 et al.), as applicable, and the rules and regulations adopted therefor; and ‘biomass’ means an agricultural crop, crop residue, or agricultural byproduct that is cultivated, harvested, or produced on the farm, or directly obtained from a farm where it was cultivated, harvested, or produced, and which can be used to generate energy in a sustainable manner, except with respect to preserved farmland, ‘biomass’ means the same as that term is defined in section 1 of P.L.2009, c.213.” Another provision defines horticultural use as follows:

Land shall be deemed to be in horticultural use when devoted to the production for sale of fruits of all kinds, including grapes, nuts and berries; vegetables; nursery, floral, ornamental and greenhouse products; or when devoted to and meeting the requirements and qualifications for payments or other compensation pursuant to a soil conservation program under an agreement with an agency of the Federal Government.

In addition, another provision requires that the land be so devoted for at least two years preceding the taxable year in question and that it not be less than five acres. Finally, yet another provision requires the property to generate at least $500 during the year in receipts from the agricultural activity. Clearly, it’s not a simple matter of defining the word “farmer” or the word “farming.”

What brings this provision into the spotlight is a report, Subsidies of the Rich and Famous, issued by a conservative Republican senator. In the report, Tom Coburn criticizes not only federal subsidies for the wealthy, but also state subsidies, including the New Jersey farmland tax break. The spotlight was brightened because among the taxpayers taking advantage of this real property tax reduction provision are John Runyan, former NFL player turned Representative, Jon Bon Jovi, and Bruce Springsteen. It is important to separate the issues. One issue is whether these individuals are violating the law. They’re not, though Runyan had to add three donkeys to his land because the assessor had ruled that one donkey plus selling firewood was insufficient to meet the requirements, and to claim that Runyan is taking “advantage of New Jersey taxpayers by outrageously calling himself a farmer,” as does a spokesperson for the Democratic Congressional Campaign Committee, is to twist the language of a statute that does not require anyone to call himself or herself a farmer but requires a person to engage in agricultural or horticultural activities generating at least $500 of receipts. Put another way, the New Jersey real property tax limitation is not limited to full-time farmers. The other issue is whether it makes sense to let millionaires take advantage of a tax break supposedly established to “encourage individuals in agricultural pursuits, as Coburn puts it.

The policy issue can be separated into several questions. Should a tax break, which in Runyan’s case amounts to a 98 percent reduction in real estate taxes, be available to a person whose agricultural activities are minimal? Ought the tax break be limited to farmers whose activities are a meaningful part of their attempts to earn a livelihood? Ought the tax break be limited to individuals whose income is less than some particular amount? If the goal of the provision is to encourage preservation of farm land as a buffer against hopscotch development and urban sprawl, ought not the tax break be designed to mirror similar provisions in other states? Coburn answers one of the questions by stating, “Farmers that are millionaires no longer need [the] encouragement [to engage in agricultural pursuits].” He answers another by claiming “Further, a millionaire landowner should not be paid by the government to preserve their land.” Coburn’s first statement makes much sense. His second, however, appears to ignore what would happen without an incentive to sell land at its highest price to developers, namely, a diminution in the amount of open space in heavily populated areas. Conflating these two goals, , the encouragement of farming and the preservation of open space, muddies the discussion.

As a practical matter, when the goal is preservation of open space, the taxpayers who will directly benefit from the tax break are likely to be those with higher incomes. Poor people and working class individuals rarely own the quantities and types of land that are eligible for open space conservation attempts. So although the focus should be on the land and not the owner’s economic status, the overwhelming majority of tax breaks for open space preservation will flow to wealthier taxpayers. In contrast, when it comes to farming, most individuals who farm, at least in New Jersey, struggle. Often they must hold other jobs to make ends meet. When the goal is preservation of farming, perhaps there is justification to apply some sort of income test. Thus, though a Rutgers University professor explains that the farmland assessment is “blind to the person; it’s about the land,” when the tax break is broken into its separate goals, that characteristic ought to be limited to the open space goal and not the farming encouragement goal. Millionaires don’t need to be encouraged to farm or to be given financial assistance to farm. But if society wants a person to keep their land open and free of development, society should pay fair value, no matter who owns the land and no matter the income of the person who owns the land.

Taxes and Faux Dollars

As the nation struggles with a deficit caused by a combination of unfunded war expenditures and unwise tax cuts, yet another goofy budget suggestion has emerged from the Congress. This time, it is House Minority Nancy Pelosi who suggests that the extension of the payroll tax reduction can be funded with dollars not spent on military operations in Iraq and Afghanistan. In her joint press availability with Democratic Whip Steny Hoyer, she said, “And we can pay for the payroll tax cut . . . by taking the funds from the overseas contingency operations account.”

Perhaps an example will illustrate the madness. Consider a family with a child who is ready to enter college. Until this point the family has been spending what it earns, perhaps accumulating a bit of a surplus. The child then enters college, creating for the family a new and significant expenditure. Though most families would not consider doing so, in order for the example to parallel the federal budget story, this particular family gives up one of its part-time jobs, on some goofball theory that by cutting revenue it will improve its financial condition. Facing a substantial excess of expenditures over income, the family incurs a deficit, borrowing money from creditors willing to do some lending. During the child’s senior year, the family takes a leave from yet another part-time job, the money from which had been flowing into the family’s retirement plan. As the child nears graduation, the family decides that its financial situation will benefit if it continues to stay on leave from the part-time job. When one spouse asks the other how the family will cope with the continued loss of revenue, the answer is startling. “Junior graduates soon, so we’ll use the dollars we are no longer spending on junior’s tuition.” Hello? Those dollars are fake dollars. Not spending money that wasn’t going to be spent is not a cut in spending nor an increase in revenue. The only way the family continues to have access to the amount of dollars spent annually on tuition is to BORROW MORE MONEY. That, of course, increases the family’s budget deficit. The solution to the family’s problem is to get back to work. Cutting tuition expenditures isn’t the answer because there are no more tuition expenditures to cut.

If this latest nonsense does not persuade Americans that members of Congress, charged with fiduciary care of the nation’s economy, don’t understand economics, nothing will. People would not take their injured children to an emergency room staffed by tax law professors, would refuse to schedule surgery for their grandchildren with oil well drillers, and would object to having their teeth cleaned by a carpenter. Yet they seem willing to entrust the future of this nation to an assembly of politicians who are so lacking in the skills required for leadership that they offer, and occasionally enact, legislation that not only is wacky, but also dangerous.

Taxes: A Price for What?

The anti-tax movement, at least some of which is an anti-government movement, objects to government having access to resources collected through the tax system. Rather than seeing taxes as a price paid for a civilized society, they see taxes as an obstacle to their so-called freedom to do whatever they want to do, as I pointed out in Free, Freedom, Fees, and Taxes and Taxes and the Funding of (De)Regulated Markets. A recent story from New Jersey demonstrates why taxes are a price that needs to be paid to permit society to function in a civilized manner.

Using tax dollars, state officials in New Jersey inspected 325 gasoline stations and discovered that 14 of them, almost 5 percent, were delivering gasoline with octane ratings less than what the pump indicated. In other words, entrepreneurs in the anti-tax movement’s beloved private sector were cheating their customers.

Government needs to regulate markets, and needs tax dollars to do so, because the private sector is incapable of policing itself. As I asked in Keeping Free Markets Free, “Who, I ask, protects the freedom of the free market?” The answer should be obvious. The answer also is disliked by some people. Who? People who lose when government regulates markets. For example, I wonder if the owners of the 14 gasoline stations in New Jersey that were selling lower quality gasoline than what the consumers were paying for are thrilled with the idea of paying fees or taxes to fund gasoline quality inspectors. I wonder. That is why I concluded, “The notion that a society without government, or a totally unregulated market, can provide for the welfare of society is a proposition that has never been successfully applied in life.” I also wonder how many people who resent taxes and wish for the disappearance or impairment of government were spared thousands of dollars in engine repair expenses because a tax-funded inspector identified gasoline stations selling a product inadequate for the customer’s needs. I wonder.

It’s not just the quality of gasoline that suffers when tax funding shrinks because of anti-government inspired opposition to taxation. I provided some examples in Life Without Tax Increases. According to this recent National Law Journal article, the list is growing, as a consequence of tax cuts that have reduced funding for state courts, in turn reducing citizen access to justice. I wonder whether it’s the owners of the 14 gasoline stations or their customers who benefit from the reduced availability of judicial system redress.

Disaster planning experts advise us to consider how we might function in the wake of a natural disaster. Perhaps it is time for people to consider how we will function in the wake of government disintegration.

Taxes and Small Business

The debate over extension of the payroll tax reduction involves a dispute over the funding of its cost. A proposal to impose a surtax on taxable incomes exceeding $1,000,000 has encountered resistance from Republican members of Congress. For example, as widely reported, including, for example, this posting, Speaker of the House John Boehner claims that “one-third of small business income would be hit by the surtax.” Senate Minority Leader Mitch McConnell, as reported here and elsewhere, claims the surtax would negatively affect small business. In contrast, the White House contends that the surtax would affect only one percent of small businesses, as explained in this commentary.

The difficulty with this particular aspect of the debate is that no one agrees on what constitutes a small business. Even the Internal Revenue Code has at least four different definitions of “small business.” One is found in section 1361(b), which deals with small business corporations eligible to make the S election. Another is found in section 1244, which allows an ordinary loss deduction for certain small business stock losses. Yet another is found in section 1202, which provides an exclusion for capital gain from the sale of certain small business stock. Even another is found in section 44, which allows a disabled access credit to small business. Not surprisingly, the Small Business Administration has its own definition of small business. Section 1361 focuses primarily on the number of shareholders, though the amendments increasing the limitation to 100 hardly bespeak “small” in that respect. Section 1244 defines a small business as a corporation that has received no more than $1,000,000 for its stock. Section 1202 defines a qualified small business as a corporation with aggregate gross assets of no more than $50,000,000. Section 44 defines a small business as a business with either gross receipts not exceeding $1,000,000 or no more than 30 full-time employees. With this sort of inconsistency in the Code, is it any wonder that all sorts of claims are being tossed about with respect to the impact of the proposed surtax on small business?

Most people, perhaps almost all people, when asked about a small business, would refer to the solely-owned or family-owned business that has few employees, generates a modest amount of taxable income, and owns a modest amount of assets. Most people would not consider a business with $49,000,000 of gross assets to be “small,” yet under one definition that business is a “small business.” An corporation, so long as it has no more than 100 unrelated shareholders and meets some other tests, can qualify as a “small business” for S election purposes, even if it has billions of dollars of assets and hundreds of millions of dollars of taxable income.

Any sensible definition of small business, such as gross receipts not exceeding $1,000,000, or fewer than 31 employees, or no more than a handful of unrelated owners, necessarily escapes the surtax on taxable incomes exceeding $1,000,000. Put another way, 99 percent of America’s small businesses do not generate $1,000,000 or more of taxable income for their owners. Though, as explained in this Treasury Department report, two-thirds of millionaires are “small business” owners (using $10,000,000 as the threshold), only 3.31 percent of small business owners are millionaires, which leaves 96.69 percent of small business owners unaffected by the proposed surtax. Thus, the claims that the proposed surtax would kill small businesses is false. Why is this false claim being circulated? Because it sounds plausible to enough people that political mileage can be gained from touting it. In contrast, if opponents of the surtax on taxable incomes of $1,000,000 or more claimed that it would wipe out widows and orphans, the lunacy of such an assertion would be so obvious that the goals of the objectors would be more readily observed. The bottom line is that many, perhaps most, but probably not all, people with taxable incomes of $1,000,000 or more do not want to pay more taxes, and in fact are trying to obtain more tax reductions. Though some admit to this viewpoint, others prefer to have legislators make the proposed surtax look like something it is not, namely, the destroyer of small business. This sort of political discourse, with false claims and disguised agendas, is dangerous, but it won’t stop until enough people call out the politicians for using this sort of twisted rhetoric.

Debunking Tax Myths?

In two recent posts, Tax Policy, Elections, and Money and If the Government Collects It, Is It Necessarily a Tax?, I have explored the unwarranted and excessive influence that the unelected Grover Norquist holds over federal, state, and local tax policy and decision making. Based on Norquist’s own words, I concluded that his anti-tax stance is simply part of his strategy to destroy government.

The adverse effect of Norquist’s efforts on the American people and the nation’s economy is beginning to get attention from people other than myself. For example, a well-written letter to the editor by Sarah H. Widman of Trappe, Pennsylvania asks:

Who's Norquist?
I don't remember ever voting for Grover Norquist for any public office, so it is difficult for me to understand why and how so many members of Congress have allowed their integrity and independence to be hijacked by him and his tactics.
In fact, it should be illegal for an elected official to pledge allegiance to any private, partisan interest group that places the interests of that group above the needs and interests of the representative's constituents and prevents that representative from doing a proper job of legislating.
The fact that we do not know who finances Norquist's Americans for Tax Reform organization makes the strength of his influence even more suspect. But how can we hope for reform from Norquist's brand of campaign-finance extortion, when a majority of those with the power to reform are in his thrall? The only answer is for voters to head to the polls in the next election and vote out all who have placed their loyalty to Grover over their loyalty to country.

This groundswell of opposition to disproportionate influence wielded by an unelected person disturbs Charles Krauthammer. In Debunking the Norquist Myth, he attempts to discount the claim that “Republicans are in the thrall of one Grover Norquist” by offering several examples of Republican legislators who agreed to proposals that would increase tax revenue. Aside from failing to mention that only a few Republican signers of the anti-tax pledge have defected, Krauthammer overlooks Norquist’s bullying reaction to anyone who stands up to his strategy. Politicians who signed the Norquist anti-government, excuse me, anti-tax pledge and who, realizing how dangerous it is, decide to make a more sensible decision, go through twisted and tortured maneuvers to prove they are not violating the pledge. Whether it is Pennsylvania’s governor explaining that impact fees are not taxes, as discussed in If the Government Collects It, Is It Necessarily a Tax?, or a legislator claiming that a package with more spending cuts than tax increases is not a tax increase, Norquist’s influence and unelected power cannot be denied, and Krauthammer short-changes some of his other analysis by rushing to the defense of one of the nation’s most dangerous people.

Krauthammer claims that the “myth of the Norquist-controlled antitax monolith” persists because “Democrats can’t tell the difference between tax revenues and tax rates.” He correctly points out that the nation’s creditors care only about total revenue and not the particulars of rates, deductions, exclusions, and credits. Though I suppose sophisticated creditors do pay attention to those things as they try to evaluate the creditworthiness of the United States, as a practical matter, it’s the total revenue that counts. Krauthammer claims that Democrats are so intent on raising rates that they overlook proposals to eliminate deductions and loopholes. But in making that claim, he distorts the analysis. People who have read or listened to my tax policy position know that I’m in favor of eliminating most exclusions, deductions, and credits. That’s not the issue. The issue is identifying the loopholes to be eliminated. Republican proposals target exclusions, deductions, and credits that benefit the working class and the middle class, while providing additional tax reductions for the wealthy, as discussed in What Sort of Tax Increase?. That is why the Democrats object to the loophole elimination ploy. If the Republicans stepped up to support elimination of things such as the capital gains loophole, the tax-exempt bond interest exclusion, the stash-your-money-overseas-to-avoid-tax schemes, and the turn-your-compensation-into-low-taxed-capital-gains-because-you-are-rich-enough-to-do-that partnership gimmick, they would find allies among Democratic legislators in a heartbeat. So although Krauthammer is on the right road with this argument, he’s driving in the wrong lane.

Krauthammer further weakens his credibility by claiming that “the real drivers of debt, as Obama himself has acknowledged, are entitlements.” The real driver of debt is the reduction of tax revenues while incurring huge amounts of debt to finance war. I’ve pounded on this issue for years, and fortunately increasing numbers of commentators and taxpayers are beginning to wake up and realize the magnitude of this wealth-shifting tactic. Entitlement spending needs to be reformed, but the only way to reform it without raising tax revenues is to eliminate all entitlements. That, of course, is one of Grover Norquist’s goals, because it is a necessary consequence of his desired destruction of government.

Not long ago, in What Sort of Tax Increase?, I mapped out the foundations of a plan to deal with the federal budget crisis:

Put the tax rates back where they were before they were foolishly reduced at the same time the nation went to war (as discussed in When Tax Cuts Are Part of the Problem, They Ought Not Be Part of the Solution, and the posts cited therein). Impose a user fee on entities that receive or received federal bailout or other funds and fail to increase the number of employees hired and working in the United States. Enact a mileage-based road fee to fund transportation infrastructure repair (as discussed in Toll One Road, Overburden Others? and the posts cited therein). Remove from the Internal Revenue Code all spending programs, and then put each one up for a vote in Congress as a spending outlay, thus putting an end to the spending increases that have been enacted disguised as tax credits, to bring front and center a serious budget problem discussed in More Criticism of Non-Tax Tax Credits and the posts cited therein. Provide corporations a deduction for dividends paid, and impose a tax on corporate accumulated earnings that exceed five percent of the fair market value of assets reported for financial accounting purposes, thus reinvigorating a rarely enforced existing tax (as discussed in Taxing Capital to Help Capital). Repeal the depreciation deduction for buildings and building components (as discussed in Abolish Real Estate Depreciation Deduction? An Idea Gathers Attention, and the posts cited therein). Repeal section 168(k) and section 179 (as discussed in If At First It Doesn’t Work, Try, Try, Try Again, and the posts cited therein). Repeal the special low rates for capital gains and dividends, and index the adjusted basis of assets (as discussed in, among other posts, Special Low Capital Gains Tax Rates = More Tax Revenue? Hardly.). Remove the limitation on the deduction of capital losses. Subject Social Security benefits to means testing, making relevant the “I” in FICA (as discussed in FICA, Medicare, and Payroll Taxes). Clean up the Medicare and Medicaid programs. Eliminate subsidies to any individual or entity that has positive taxable income or reports income for financial accounting purposes.

I know Grover Norquist would reject my suggestions out of hand, because they necessarily require the continuation of government. But I wonder if Charles Krauthammer would be so single-minded. The answer to that question would tell us a good bit about Krauthammer’s defense of Norquist.

If the Government Collects It, Is It Necessarily a Tax?

Sometimes an article about tax can hit the surely-you-jest trifecta. That was my reaction after reading a Philadelphia Inquirer article about Grover Norquist’s self-injection into the Pennsylvania legislature’s consideration of an impact fee on Marcellus shale drillers. My recent post on the issue, Revenue: It’s Not Just the Name, It’s Also the Place describes how I have been arguing for a user fee to defray the costs generated by natural gas developers that otherwise would be borne by the state government and thus, indirectly, by its taxpayers. I first made that suggestion in Tax? User Fee? Does the Name Make a Difference?. I followed up in Giving Up on Taxes = Surrendering Taxpayer Rights?. A month later, in Life for My Proposed Marcellus Shale User Fee?, I asked, “Have these people been reading my MauledAgain posts?” and answered “Perhaps.” Five months ago, in Revenue: Is It All in The Name? I described an impact fee proposal offered by the President of the Pennsylvania Senate who defended the revenue raiser by noting that it was a fee and not a tax.

The first hit in the trifecta is the headline of the Philadelphia Inquirer article: Tax Guru Norquist inserts himself in Pa. Shale Debate. Are you kidding me? Grover Norquist is not a tax guru. He does not practice tax law, nor tax accounting. He is not a commercial tax return preparer. He would struggle to earn points on any well-designed tax law exam.

The second hit in the trifecta is Norquist’s absurd challenge is his contention that Pennsylvania Governor Tom Corbett, who has signed Norquist’s infamous and dangerous anti-tax pledge, was violating the pledge by supporting an impact fee because, in Norquist’s bizarre perspective on government operations, a flat-dollar-amount fee is a tax because it requires the driller to pay a portion of revenue from the gas wells into the commonwealth’s general fund. Norquist, who claims he does not exert “any direct influence” over legislatures, including the Congress, because he merely “applauds from the sidelines” made himself quite visible in the Pennsylvania legislature’s debate on the issue. He peppered the legislature of a state in which he does not reside with letters in which he warned Pennsylvania legislators who had signed his pledge that they would be violating it by voting for the governor’s proposal because the governor’s proposal was a tax. The governor responded, explaining that the proposal involved a fee because the money that would be collected would be transferred to agencies dealing with the matters affected by the drilling, such as environmental protection and transportation infrastructure. The governor told Norquist that a vote for the proposal would not violate the anti-tax pledge. Could it be that the governor is beginning to understand the shallowness of whatever intellectual analysis Norquist purports to bring to tax policy discussion? Or might Corbett also be increasingly aware of the negative impact Norquist’s meddling has on the ability of governments to serve their people? There is no question that what the governor has proposed, and what passed the legislature though in different versions, is a fee and not a tax. I explained this in Tax? User Fee? Does the Name Make a Difference? and again in Revenue: Is It All in The Name?. I doubt Norquist has ever read these, or any other explanation of the difference between a tax and a user fee. I doubt that he cares, for as I explained in Tax Policy, Elections, and Money, Norquist is not so much anti-tax as anti-government, and his diatribes against government revenue, warped by his inability to distinguish fees from taxes, is nothing more than his own version of hate speech directed against government.

The third hit in the trifecta was the foolishness of the only pro-Norquist-position comment in the collection of opinions attached to the Philadelphia Inquirer article. Asked one reader, “If you dig a hole in your yard and you find you have gold there, then you sell the gold and make a fortune, should you be taxed over and above the 3.07%. If so why?” The 3.07% to which the reader refers is the Pennsylvania state income tax rate. The answer is the classic, “It depends.” More facts are required. Does the person digging the hole cause thousands of heavy vehicles to traverse and damage local roads? Does the person digging the hole, by doing so, pollute groundwater and inject harmful materials into watersheds that adversely affect people living many miles downstream? Does the person digging the hole rip out trees in otherwise pristine forests? If the answer to one or more of these questions is yes, then the answer to the reader’s question is yes, because the person digging the hole is imposing costs for which compensation is required. The reason I characterized the reader’s comment as pro-Norquist-position and not pro-Norquist is that the reader wrote nothing to contradict the other comments. Those other comments included a variety of negative opinions of Norquist, including questions such as “What does this leech actually do? Who pays him?” and warnings that “If you research Grover Norquist’s background and his affiliations you will quickly realize neither Party should be affiliated with him” and “This guy needs to go, he’s a cancer on this nation.” One reader noted, “Grover Norquist is not an elected official and should not be shaping tax policy. . . . Funny, I don’t see Grover Norquist living up here in Bradford County dealing with the negatives of gas drilling. Grover a true America[n], let the other guy feel the pain but don’t do it in my back yard.” That Norquist hasn’t fooled everyone is corroborated by a comment describing him as “Just a greedy POS slug using his power and money to get more power and money – and easily convincing the average amerikan idiot that he’s a ‘hero.’ The morons who give this guy credence are intellectually unable to understand they are being reamed a big one.” They will eventually figure it out if his dangerous campaign is permitted to continue and heed is not given to a wonderful suggestion provided by another of the article’s readers: “Time for politicians to sign a pledge to not pay attention to this dork.” I, however, will continue to pay attention to Norquist just as I would continue to pay attention to the suspicious character wandering the neighborhood testing house and car doors to see if they are locked.

“Small Change” Tax Noncompliance?

Many taxpayers, tax commentators, and tax practitioners think that the IRS, or any other revenue agency, doesn’t focus on “small change” tax deficiencies because it isn’t worth their while to pursue an amount that most likely is less than what it costs to track down the taxpayer, determine the deficiency, and set out to collect what is due. A recent City of Philadelphia press release, however, calls that common belief into question.

According to the City of Philadelphia press release, the city plans to pursue unpaid back taxes, and other city bills, from retirees and beneficiaries receiving pension benefits from the city. According to the city, roughly 2,500 of its 33,000 pensioners and beneficiaries owe $12.9 million in delinquent taxes. Simple division tells us that on average, each of the 2,500 pension benefit recipients owes $5,160. According to this report, the average pension in 2010 was $18,363. Again using simple division, the average unpaid tax is roughly 28% of the average pension. No city tax or even bundle of taxes comes close to that sort of percentage in one year, so the situation must be one of unpaid taxes accumulated over multiple years. A sensible guess is that a good chunk of the unpaid taxes are real property taxes.

The city threatens to withhold up to 25% of pension payments to satisfy the unpaid taxes. It also has the option of publishing the names of the delinquent taxpayers on its web site. The latter approach should prove to be far less effective than the former.

There are several lessons to be learned from this development. First, although a particular item of noncompliance might generate a rather small amount of tax underpayment, when accumulated over multiple years, even aside from interest and penalties, the instances can add up to something far more worth the revenue agency’s efforts than one year’s instance standing alone. Second, governments are caught between continued demand for services from most of their populations and a decline in revenue caused by tax cuts, economic malaise, and noncompliance, and are looking for revenue in places formerly considered not worth exploring. Third, advances in digital technology and communication make it easier, and a bit less expensive, for revenue agencies to pursue smaller amounts of unpaid tax. Fourth, tax noncompliance is increasing, in part because of the economic challenges facing specific taxpayers, but also as a way in which lower and middle income taxpayers can compensate for the tax cut attention provided to the wealthy. Fifth, though counter-productive in the short term, these sorts of silent taxpayer revolts might wake the nation up to the reality of the concern, not that citizens seeking government services and protection despise taxes, but that a privileged few are doing well at the expense of everyone else by manipulating the tax system and those who write the tax laws. Sixth, when a revenue agency pursues a lower income individual for $500 or $1,000 in unpaid taxes, that individual often lacks the resources to hire an attorney or other representative to work out a favorable deal, whether in terms of settlement or enactment of a tax break that legitimizes what the taxpayer did, but when a revenue agency pursues a high income individual for $20,000 or $100,000 in unpaid taxpayers, that individual almost always can afford to retain someone to work out a favorable deal and someone to push a special tax break through the legislature.

Two Short Words, Thank You

Like turkey, cranberry, and football, sharing a moment of thanks on the fourth Thursday of November has become a tradition on the MauledAgain blog. With the exception of 2008, an omission for which I don’t have or remember an explanation, I have consistently addressed the underlying purpose of Thanksgiving since 2004: In that year there was Giving Thanks, in 2005, A Tax Thanksgiving, in 2006, Giving Thanks, Again, in 2007, Actio Gratiarum, in 2009, Gratias Vectigalibus, and in 2010,
Being Thankful for User Fees and Taxes. The cumulative list is long, and though I won’t repeat it in this post, I’ll again do the lawyerly thing, and incorporate it by reference. The interesting thing about the list is that unlike my assorted “to do” lists, there’s nothing for me to cross off the list.

Despite the attention given at Thanksgiving to expressions of gratitude, this holiday does not have, and ought not have, a monopoly on saying “thank you.” Those words are, and should be, uttered millions of times each hour across the planet, in a variety of languages. Almost always, they are reactionary. Someone does or says something, and it inspires in another person, or several or more people, the delivery of two words taught to most children at a very young age. For the most part, people do not speak or act in an effort to bring these words out of the mouths of others. They speak or act for other reasons, and the “thank you” might appear in some ways to be gratuitous and extraneous to the conversation or encounter. Rarely does someone, for example, hold open a door for another simply to elicit a “thank you” from the other person. The door is held open because it is the right thing to do, and the expression of appreciation is vocalized because it, too, is the right thing to do. I wonder sometimes, though, if the world would be a better place if we thought about our words and deeds by considering if those affected by what we are about to say or do would be motivated to say “thank you.” Though that might not work with some people – consider the “you will thank me for this later” voiced to defiant teenagers and occasionally to resistant students – it might help open people’s minds to the contemplation of an interaction with another person from that other person’s perspective.

Today I will add that I can think of some things for which I will be thankful when and if they occur. Perhaps those who are in a position to bring these things about will think about the effect of their decisions on the willingness of people to say “thank you.” At what point will the people of this nation collectively turn to the Congress, consider what it does to repair the nation, and say, “Thank you”? At what point will the consumers of this nation collectively turn to those who have sold products and services to them, consider what effect those things have had on their lives, and say, “Thank you”? At what point will the temptation to say “Thanks for nothing” subside?

Today I am thankful to live in a nation where it is possible that these things might come to pass. I am thankful that I can offer these thoughts freely. I am thankful that I have had thousands of reasons over the past year to say “Thank you” to friends, colleagues, acquaintances, and strangers. I am thankful that I have heard friends, colleagues, acquaintances, and strangers say “Thank you” to other people. I am thankful that there have been reasons for people to say those two words and that they have been said.

Tax Policy, Elections, and Money

One of the benefits of my regular attendance at the gym, aside from the obvious health advantages, is that I have an opportunity to address tax-related questions in an environment outside the law school and law practice worlds. I’ve shared some earlier experiences of this sort in Flat is Not Simple, At Least Not with Taxes, Tax Talk at the Gym, A Zero Tax, A Zero Congress, and Being Thankful for User Fees and Taxes.

The latest episode opened when one of the regulars at the gym said to me, “So have you ever heard of Grover Norquist?” I kept my reply simple. “Yes.” “Did you see 60 Minutes last night?” This required another simple answer. “No.” That brought an interesting question. “So what is it with this Norquist guy and his anti-tax pledge?” My response this time wasn’t so simple. “He doesn’t like taxes and he likes to get politicians to sign onto his anti-tax pledge.” I was not surprised when I heard in turn an unambiguous criticism of Norquist and his anti-tax campaign. Among the reactions was one that stood out. “It’s dangerous.” Of course it is.

As I drove home from the gym, I wondered, “So who is Grover Norquist? Why does he have so much influence? How does he manage to turn so many politicians against taxation even when anti-tax policies threaten the nation’s survival?” It is no secret that in 1985 Grover Norquist founded Americans for Tax Reform. Though the name of the organization suggests one thing, the actual goal is not reform in the sense of making the tax system more efficient, but elimination taxation by opposing tax increases while advocating tax cuts. Norquist was a principal player in the design of the Bush tax cuts.

Norquist, though, does not oppose tax increases simply because he advocates maintenance of the tax status quo. He opposes not only tax increases, but taxes. He has not cloaked his goal behind smoke and mirrors. As Norquist explained, "I do not want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.” So the leader of the anti-tax movement is not only anti-tax, but anti-government. So much for the claims that my likening of the tax-cut movement to a bring-back-the-Wild-West movement is off base.

Yet Norquist, though active behind the scenes, has not been elected to public office. Americans have not been given any choice when it comes to his influence over tax policy. So how did he maneuver himself into this position? It’s another simple answer. Money. Norquist’s father was a vice-president of Polaroid Corporation. According to Americans for Tax Reform’s Form 990, Norquist was paid $222,419 for a 24-hour-per-week job. Norquist was not and is not poor, has not experienced deprivation, and has not suffered through the trauma of being laid off hunting for work. He comes from, and lives in, the ranks of the privileged few. Roughly $4 million in contributions are collected by his organization, and it is doubtful that the money is coming from people with little or no income, or even from people trying to get by on middle-class salaries. The people paying for anti-tax advocacy are people who benefit from that advocacy. According to this article from eight years ago, the tobacco, gambling, and liquor industries lead the way in funding Americans for Tax Reform.

What makes Norquist so zealously anti-government? Considering his claim that “nobody learned anything about politics after the age of 21,” it is likely that something happened when he was young. Something, some event, some person’s experience turned him into a zealot for abolition of the IRS, the FDA, and every other piece of government, a champion for dismantling of public pensions and public schools, and a diehard for privatization of social security. Perhaps the answer lies in a story such as this one, in which Norquist explains how his father would deprive him of some of his ice cream cone. One must wonder whether Norquist's anti-authoritarianism and his rejection of partisanship and support of bitter partisanship has its roots in the psychological abuse suffered at the hands of a cruel parent.

Norquist has acquired sufficient power that, as I described in Food for Tax Thought, he can host a “Tax Policy Dinner” at his home, so that people like Jack Abramoff and Karl Rove can arrange how they are going to direct the representatives of the American people to make tax policy decisions. In 2006, released Senate documents “shed light on how [Abramoff] secretly routed his clients' funds through tax-exempt organizations with the acquiescence of those in charge, including prominent conservative activist Grover Norquist.”

When unelected power brokers control the nation, especially when they use tactics and strategies that border on, if not cross, the line of what is appropriate, it makes a mockery of the ballot box. As I predicted in Food for Tax Thought, “To me, a ‘Tax Policy Dinner’ packed with lobbyists is certain to generate more of what we've seen during the past two decades, things that grill the average citizen, slice and dice paychecks, and sweeten the tax rates for the wealthy. If the trend continues, the tax system will be toast.”

Revisiting a Dependency Exemption Problem

Five years ago, in Maybe There is A Dependency Exemption Problem After All , I re-examined a dependency exemption hypothetical that was one of several raised in a National Association of Enrolled Agents (NAEA) letter to the Commissioner, asking for clarification of what then were new provisions affecting dependency exemptions, and that I had examined in Defining Dependents: Is it Any Easier?. Now, an alert reader has pointed out to me that the issue raised in the hypothetical was addressed by the Tax Court in a Summary Opinion in July of this year, Abdi v. Comr., T.C. Summary Op. 2011-89 (July 13, 2011).

It is worth repeating enough of the discussion to put the analysis in context:

Recall the hypothetical:

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

I had analyzed the facts in this manner:

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

Frank Degen [who had signed the NAEA letter] explains that the NAEA considers phrase "and is claimed" in section 152(c)(4)(A) as precluding the parents from entering the tie-breaking competition. Literally, this would make sense. The parents, not needing a dependency exemption the amount for which has been phased down to zero, do not enter Alice on their return. Thus, as Frank concludes, the son is the only person claiming Alice and there is no tie to break under the tie-breaking rules.

What happens if the statute is interpreted in this manner? First, taxpayers in the situation that Alice's parents and brother find themselves are left to work out a suitable tax-favorable arrangement. Only one "claims" the child in question and the others fail to "claim" the child. Perhaps Congress intended this flexibility. Under this interpretation, the only time that the tie-breaker would be triggered is when two or more taxpayers both claim the dependency exemption, prompting the IRS, which most likely would notice the double dipping, to apply the tie-breaker. Is the tie-breaker intended only as a remedial tool for the IRS to use when multiple taxpayers with "claims" to the child fail to settle on one claimant? Although figuring out what Congress intends is more a guessing skill than an analytical one, it's safe to suggest that Congress intended for the tie-breaking rule to apply as soon as multiple taxpayers became eligible to claim the child.

Interpreting the "and is claimed" language so that it gives the taxpayers a planning option is inconsistent with how Congress treats failure to claim the dependency exemption when doing so opens up a personal exemption for the dependent. Persons for whom another taxpayer can claim a dependency exemption are not permitted to claim their own personal exemption. Technically, they have a personal exemption but its amount is zero. Taxpayers whose adjusted gross income is sufficiently high to trigger a phase-down of the dependency exemption amount to zero have nothing to lose by omitting the dependent from their tax return. The statute, however, eliminates the dependent's personal exemption even if the eligible taxpayer neglects the dependency exemption.

But it's not so simple. In several other provisions, Congress bases eligibility on whether a dependency exemption has in fact been taken rather than looking to see if one could have been taken. For example, the Hope and Lifetime Learning credits are disallowed to a person if a dependency deduction with respect to that person "is allowed to" another taxpayer. Thus, the other taxpayer can forego the dependency exemption and leave open the credit door for the person in question, which is something that the taxpayer would want to do if the dependency exemption was phased down to zero or close to zero.

Why the difference? No one has any idea. In fact, some have argued that the credit should be disallowed to the person if the other taxpayer is eligible to take the dependency deduction even if the other taxpayer fails to do so. But the language of the credit provision undercuts that argument.

Thus, although it makes no sense in terms of policy or practical application, there is something to be said for the NAEA's interpretation of the "and is claimed" language. After all, to reach the sensible policy and practical application result, Congress should, and could, have used the phrase "and could otherwise be claimed" in lieu of "and is claimed." Congress did not do so. Thus, to the extent the NAEA is asking for clarification, it is a problem that should be mentioned, even though I'd be reluctant to advise Alice's brother to take the dependency exemption deduction and would insist he make his decision after listening to, or reading, a full explanation of the issue and the risks involved in making a yes or no decision.

In the Abdi case, the taxpayer in 2008 was a 21-year-old who lived with his mother and three siblings, including his 11-year-old sister. The taxpayer’s mother did not claim him as a dependent, and though she claimed exemptions for the two youngest siblings, she did not claim one for the taxpayer’s sister. The taxpayer had three jobs and used most of his earnings to contribute to the support the family. The taxpayer claimed a dependency exemption for his sister in 2008, and the IRS disallowed it. The Tax Court concluded that the sister was the taxpayer’s qualifying child and also the qualifying child of the mother. The sister was the daughter of the mother and the sister of the taxpayer, satisfying the relationship test. The principal place of abode test was satisfied because all three resided in the same house. The sister satisfied the age test because she was eleven years old. The sister also satisfied the support test because she did not provide more than half of her own support.

The Tax Court examined section 152(c)(4)(A) as in effect for 2008. The applicable language provided, “. . . if (but for this subparagraph) an individual may be and is claimed as a qualifying child by 2 or more taxpayers for a taxable year beginning in the same calendar year, such individual shall be treated as the qualifying child of the taxpayer who is – (i) a parent of the individual . . .” The court simply concluded, “However, as herein pertinent, this rule comes into play only if petitioner’s mother had claimed [the sister] as her qualifying child. The record shows that petitioner and his mother carefully arranged their tax affairs; petitioner’s mother claimed her other two sons as her qualifying children and petitioner claimed [his sister]. . . Because [the sister] is petitioner’s qualifying child for 2008, petitioner is entitled to the claimed dependency exemption deduction for [his sister] for 2008.” The Court did not examine the inconsistency between the provision in question and other provisions dealing with the dependency exemption, most likely because neither party raised the question. The Court applied the statute as written.

Long before the case reached the court, Congress had amended the provision, effective for taxable years beginning after 2008. Section 152(c)(4)(A) now provides, “. . . if (but for this subparagraph) an individual may be claimed as a qualifying child by 2 or more taxpayers for a taxable year beginning in the same calendar year, such individual shall be treated as the qualifying child of the taxpayer who is – (i) a parent of the individual . . .” The words “and is” were removed. In addition, Congress added, also effective for taxable years beginning after 2008, the following new provision in section 152(a)(4)(C): “If the parents of an individual may claim such individual as a qualifying child but no parent so claims the individual, such individual may be claimed as the qualifying child of another taxpayer but only if the adjusted gross income of such taxpayer is higher than the highest adjusted gross income of any parent of the individual.” If the Abdi case had arisen in 2009 or thereafter, the taxpayer would not have prevailed unless his adjusted gross income was higher than the adjusted gross income of his sister’s mother or father, whichever was higher. There are insufficient facts in the opinion to resolve the question.

Because of the 2008 legislative amendment in Public Law 110-351, the issue raised in the hypothetical has disappeared. Congress decided to eliminate the tax planning opportunity available before 2009. I close with the same words I used to close Maybe There is A Dependency Exemption Problem After All : “It is, though, a wonderful lesson in how the Internal Revenue Code, and tax law generally, becomes more complicated as each year passes. And this is with respect to a fairly simple concept and rule, as tax law concepts and rules go. Imagine what it's like parsing the subchapter K partnership regulations.”

The Tax Consequences of Exorcism

A reader wrote to me recently, asking an interesting question and demonstrating how taxes can pop up anywhere, anytime. After watching what he described as one of his favorite movies, The Exorcist, he asked “what are the tax consequences of an exorcism on the exorcist and the family of the victim?” He further asked, “If the exorcist is a priest or doctor and operates as a sole proprietorship , what expenses could be deducted? What are the ordinary and necessary expenses of an exorcist? Would the IRS classify the activity as not for profit {hobby Loss} ? Could a home office deduction be possible? What would be his business code? How would the family deduct these costs ? Could the costs be deducted as an itemized medical expense? What are medical expenses? If the parents are divorced or separated , which parent could claim the medical expenses of a qualifying child? If the parent or parents have an employer provided medical reimbursement plan, would the costs be reimbursable? If the priest or doctor injures the victim, could the family sue for damages?”

The answer is not so much one of applicable legal principles, but the application of legal principles to facts that makes law school, for example, even more challenging for those who think the object of learning to be a lawyer is simply a matter of learning the rules. It’s in the application of legal principles to facts that the challenges of law, tax or otherwise, are most pronounced.

First, the exorcist. If the exorcist is paid, the exorcist has gross income. I don’t know enough to conclude if all exorcists are paid. Some, I assume, perhaps in error, do their work as part of their overall responsibilities as, for example, a priest, and are reporting a salary as gross income. But perhaps there is some bonus pay for doing exorcisms. If the exorcist is conducting a trade or business, section 162 applies. What are the ordinary and necessary expenses of carrying on the trade or business of exorcism? Again, what matters are the facts, and I simply don’t know what the full list of expenses would be. It’s easy enough to identify some, such as travel and transportation expenses, which would be deductible to the extent the exorcist traveled from one place of business to wherever the client is. Does the exorcist pay for some sort of liability insurance? If so, the cost of the premiums would be deductible, except to the extent they covered a period longer than a year, which would trigger the capitalization requirements. If the expenses are paid by the exorcist’s employer, which probably is what happens in the case of Roman Catholic priests, there is no deduction. Similarly, if the expenses are reimbursed, the reimbursement reduces the deduction. Are there independent exorcists operating out of their home? I have no idea, factually. Presumably it’s possible, and so the usual rules applicable to the home office deduction would apply. Are there exorcists who engage in that activity for purposes other than making a profit, thus causing their activity to fall within the limitations of the section 183 “hobby loss” limitations? Once again, I don’t know. My guess is that because people dabble in every sort of activity, for every activity there are people who take it to the level of a trade or business and people who do not move it past the hobby or not-for-profit stage. That happens with stamp collecting, horse raising, dog breeding, and surely exorcism. As for business code, I have no idea. Presumably a physician would use the appropriate code for the practice, and non-physicians would use either “All other professional, scientific & technical services” or “All other personal services.”

Second, the client. The primary question is whether the amount paid for the exorcism qualifies as a medical expense deduction, as I cannot think of any other deduction for which it might even remotely qualify. The legal principles sort out as follows. There are two major issues. The first is whether the services must be provided by a physician. The answer is no. Medical expense deductions have been upheld for services provided by licensed and unlicensed chiropractors and osteopaths, by naturopathic doctors, and by Christian Science practitioners. The second is whether the nature of the services qualifies as medical. The IRS takes the position that the cost of psychiatric, psychotherapeutic, and psychological treatment is a medical expense, but that payments to religious science practitioners for spiritual guidance and counseling are not. The IRS has concluded that the cost of deprogramming a person who is in a cult is not a medical expense. The Tax Court has held that amounts paid to Navajo medicine men for healing ceremonies called sings are deductible. So where does exorcism fit? Factually, the better argument probably is that exorcism more resembles a Navajo medicine man sing than does spiritual advice-giving or counseling by a member of the clergy.

As for who claims the deduction, if there is one, the answer is found in applying the usual rules dealing with that issue. The costs are reimbursable under a medical reimbursement plan if the terms of the contract so provide. Whether there are damages available if the exorcist injures the victim demands on the application of tort law principles to the situation, a discussion I will let others pursue. Exorcists have been sued, as evidenced by this report.

If I recall correctly, in the movie there was a good bit of collateral damage. I don’t know if that’s the case in exorcisms generally or whether that was worked up for purposes of making the movie more entertaining. In any event, an issue that was not raised by the reader is whether damage from an exorcism attempt qualifies for the casualty loss deduction. That damage seems no less “sudden, unexpected, and unusual” than damage from high winds, a meteor impact, or a lightning strike, suggesting that a deduction, within the applicable limits, would be allowable.

More Tax Ignorance, With a Gift

Usually when there is a manifestation of tax ignorance, it leads to bad tax policy, ill-advised votes, or some other sort of economic problem. One or more of those outcomes is still possible with this latest incident of ignorance, but at least the event brings a silver lining. It is now a bit easier to understand why the Congress is unable to do what needs to be done to fix the nation’s economy. Why? Because the nation is being poorly educated by imprecise reporting.

When I read a Philadelphia Inquirer article on the Deficit Commission’s lack of progress, I concluded that someone had made some sort of reporting error or typographical error or some sort of error when I read the following statement attributed to Senator Tom Coburn. Reacting to the debate swirling around proposals to increase tax revenues, to quote the article, “Coburn, a vocal opponent of any tax increase, said he could stand the idea of increasing government revenue if the money comes from restructuring entitlement programs.” I read the sentence again. Was he really claiming that a reduction in spending on Medicare, Medicaid, and Social Security would increase revenue?

Unwilling to dissect the statement without clarification, I did some internet searching and discovered that the precise words had come from the Associated Press and were being reported all across the country. If there was an error, it was not at the Philadelphia Inquirer. From another report, I learned that Coburn had made his statement on CNN’s State of the Union. When I dug up the CNN State of the Union episode on which Coburn allegedly made his statement and listened to it twice, I could not find the statement that Coburn supposedly made. Yes, he did point out that restructuring entitlement programs was necessary to reducing the deficit, but somehow someone’s summary of what he said transformed that statement into a claim that restructuring entitlement programs would raise revenue. Coburn did say, “You can call it a tax increase or you can call it a revenue increase” but that’s an almost accurate statement, though perhaps some people, including some members of Congress, might think that by voting for something called a revenue increase they are not voting for a tax increase. It is possible to increase revenues without increasing taxes, but that requires increasing either fees or other revenue such as income from the rental of government property. As a practical matter, those sorts of revenue pale in comparison to tax revenues, and no deficit reduction can be accomplished by playing only with insignificant fees and items such as rental income. The bottom line is that a reduction in spending on Medicare, Medicaid, and Social Security would not increase revenue, though it would decrease the deficit.

The confusion with respect to revenue, taxes, spending, and deficits is simply another piece of evidence demonstrating how deficient Americans and their representatives have become in terms of understanding economics and government policy. It is the same sort of misunderstanding that causes many people to consider tax credits to be tax reductions rather than the disguised spending programs that almost all of them are, and to resist cutting or repealing them because doing so appears to them to be the same as increasing taxes rather than cutting spending. To the credit of Coburn, and Senator Warner who appeared on the show with him, they have pointed the finger at the politicians who are putting partisan politics above the best interests of the nation. One must hope that the reporting of a statement that was not made indeed is ignorance and not something worse.

What Sort of Tax Increase?

Headlines, like sound bites, can be so misleading because they are so short. Sometimes succinctness is not a virtue. Consider this headline: GOP Aides: Super-Committee Republicans Open to Tax Increases. Does that mean some Republicans, perhaps some anti-tax-increase Republicans, have changed course? No.

A better headline would have been: “GOP Aides: Super-Committee Republicans Open to Tax Increases and Benefit Cuts for Middle-Class Citizens While Advocating More Tax Cuts for the Wealthy.” Yes, I know, it’s too long for a headline. Making it shorter makes it more volatile. Perhaps “GOP: Tax Middle-Class More to Fund Tax Cuts for Wealthy” gets the point across. But what politician advocating that approach has the courage and dedication to integrity to step up and declare support for that goal? Instead, the complexity of the tax law provides camouflage behind which lawmakers can hide.

Republicans on the deficit-reduction panel want to cut back itemized deductions and credits that primarily benefit middle-class taxpayers, while cutting the tax rate on high incomes from 35 percent to 28 percent. They also seek to cut back on Social Security, Medicare, and Medicaid benefits. The net effect of these proposals would be to worsen the economic position of the middle class, while leaving the wealthy with even more after-tax dollars.

Here’s the first part of a plan for dealing with the federal budget crisis that makes sense. Put the tax rates back where they were before they were foolishly reduced at the same time the nation went to war (as discussed in When Tax Cuts Are Part of the Problem, They Ought Not Be Part of the Solution, and the posts cited therein). Impose a user fee on entities that receive or received federal bailout or other funds and fail to increase the number of employees hired and working in the United States. Enact a mileage-based road fee to fund transportation infrastructure repair (as discussed in Toll One Road, Overburden Others? and the posts cited therein). Remove from the Internal Revenue Code all spending programs, and then put each one up for a vote in Congress as a spending outlay, thus putting an end to the spending increases that have been enacted disguised as tax credits, to bring front and center a serious budget problem discussed in More Criticism of Non-Tax Tax Credits and the posts cited therein. Provide corporations a deduction for dividends paid, and impose a tax on corporate accumulated earnings that exceed five percent of the fair market value of assets reported for financial accounting purposes, thus reinvigorating a rarely enforced existing tax (as discussed in Taxing Capital to Help Capital). Repeal the depreciation deduction for buildings and building components (as discussed in Abolish Real Estate Depreciation Deduction? An Idea Gathers Attention, and the posts cited therein). Repeal section 168(k) and section 179 (as discussed in If At First It Doesn’t Work, Try, Try, Try Again, and the posts cited therein). Repeal the special low rates for capital gains and dividends, and index the adjusted basis of assets (as discussed in, among other posts, Special Low Capital Gains Tax Rates = More Tax Revenue? Hardly.). Remove the limitation on the deduction of capital losses. Subject Social Security benefits to means testing, making relevant the “I” in FICA (as discussed in FICA, Medicare, and Payroll Taxes). Clean up the Medicare and Medicaid programs. Eliminate subsidies to any individual or entity that has positive taxable income or reports income for financial accounting purposes.

Guaranteed, no politician is willing to advocate such a plan. Why? It pretty much chops away at the benefits available to the most of the politician’s fund-raising base. We know who populates that base, and we know who generates the bulk of the money flowing into campaigns. We know that they will not tolerate interference with the good thing they have going. So long as the wealthy and powerful are permitted to exercise their power and utilize their wealth for their own benefit, to the detriment of the nation and everyone else, tragedy looms.

The Fallacy of Taxes and Job Creation

Jobs are created when there is a need for work to be done. If every owner of property with a lawn did the lawn mowing, there would be no lawn mowing jobs available.

Jobs are not created when someone has money to burn unless there is a need. So in a world where every lawn that needs to be mowed by someone other than the property owner is being mowed because there are sufficient lawn mowing service employees available to do the lawn mowing, a millionaire who decides to hire people to mow the lawns of other property owners isn’t creating jobs. At best, if jobs are created, it’s because someone with a job currently mowing lawns loses that job.

Even if there are lawns that need to be mowed, but that are on properties whose owners cannot do their own lawn mowing, this is insufficient to create a market for the millionaire to exploit. The owners who need lawns mowed but who cannot do the work themselves must have resources to pay for lawn mowing services.

It is quite likely that almost all of the owners who need lawn mowing services are not millionaires. Over the past decade, their real incomes have stagnated. So that leaves very few people able to pay for the services offered by the millionaire with newly hired employees. In turn, the lack of customers means that those employees will quickly find themselves out of a job. This is one reason why tax reductions benefitting the wealthy have not created jobs.

On the other hand, if the resources available to the people who need lawns mowed are increased, the market ramps up. The millionaire in the story finds customers able to pay, and gets a tax deduction, and thus a tax reduction, for paying salaries to the newly hired employees. The current system generates tax reductions for millionaires without the need for tax rate reductions. In fact, restoration of the ill-advised Bush tax cuts for millionaires would be even more incentive for the wealthy to spend their money hiring people, because the resulting deductions would push their taxable incomes down, perhaps into lower tax brackets.

There’s another reason tax cuts for the wealthy do not create jobs. Many of the jobs that could be created require skills that don’t exist in the workforce. As reported by Joseph N. DiStefano in Millions of U.S. Jobs Vacant, But Millions More Americans Out of Work, there is a gap between the jobs that are available and the skills in the labor pool. Though some of the disconnect might reflect unwillingness to do certain work, such as crop picking, landscaping, and lumberjacking, there are all sorts of jobs for which Americans lack the requisite training and skills. That’s not a surprise, considering the mismatching of students and education choices, the failure of American education to provide the sort of education and training that the nation needs, and the cultural phenomenon of most parents thinking that their children are too gifted to take on certain jobs or pursue certain careers. Consequently, as DiStefano explains, employers aren’t hiring “young, entry-level U.S. workers” because older workers and “reliable, desperate immigrants” are more attractive to companies unwilling to train “people likely to leave,” a situation compounded by worker mobility and corporate mergers and consolidations, to say nothing of outsourcing. So all the tax breaks in the world piled onto millionaires won’t make a difference, because, assuming they are in fact job creators, they don’t want to hire, and won’t hire, from the largest segment of the unemployed.

Yet, despite this reality, we continue to hear not only objections to termination of the Bush tax cuts, but cries for even more tax rate reductions for the millionaires and cutbacks in benefits for everyone else, on the specious grounds that this is the solution to the job creation dilemma. The only outcome of more tax cuts for the wealthy and fewer benefits for everyone else is that the people needing lawns to be mowed continue to lack the ability to pay for those services, and the millionaire ends up with even more money that cannot be put to use creating jobs because there’s no one to pay for the services or goods that could be provided by people hired to provide those services and goods. And even in segments of the economy where there is demand, employers cannot find employees because the nation’s education and training system has failed. Instead of pumping more money into the hands of millionaires, why not pump that money into quality training to provide the labor pool that employers claim they need and haven’t found?

So are additional tax cuts for the wealthy really about creating jobs? Or is that just some nice sound bite material being used for other purposes?

Flat Tax Plans Should Fall Flat on Their Faces

In an article in Monday’s Philadelphia Inquirer, Small Matters: Don't Make the Mistake of Overtaxing Wealth, Bill Dunkelberg tries to make the case for a flat tax, claiming that it would “be a boon for millions of small businesses, reducing the amount of time and money owners had to spend to deliver tax revenue to the government.” His definition of a flat tax is this: “There would be no deductions for anything - not charity, mortgage interest, or a host of other special stuff in the tax code today. There would be only personal exemptions (like now), say $30,000 for a family of four, less for single individuals. Your tax would be a percentage of your income in excess of the exemption.” He gives two examples, using his proposed $30,000 exemption and a 20 percent rate, and concludes that someone earning $31,000 would pay $200 in tax while someone earning $1 million would pay $194,000.

Dunkelberg offers this version of the flat tax in response to the unassailable claim that, “The tax code is a mess,” and as a solution to the not surprising claim that taxpayers invest six billion hours annually filling out tax forms and keeping records. He begins his argument with a plea to ignore the calls for restoration of the tax rates in effect before the Bush tax cuts were enacted, alleging that wealth produces “investment and job creation.” He raises the shop-worn argument that the top one percent earns 20 percent of income but pays 40 percent of income taxes.

The first problem is that the statistics concerning the percentage of income earned by the wealthy are flawed because the definition of income is flawed. A good chunk of the wealthy’s income doesn’t show up in IRS statistics, because it consists of tax-exempt interest, unrealized increases in wealth through the untaxed appreciation of assets, postponed income on account of deferral techniques and nonrecognition provisions, and shifting of income offshore. Thus, when institutions such as Kiplinger describe what percentage of income is earned by the wealthy, or provide calculators to permit visitors to determine which percentile they inhabit, they use adjusted gross income, which is about as good a measure of true income as the wild guess of a child as to the height of a skyscraper. This point is important not only for showing that the wealthy have a much higher percentage of overall income when the quirks of the tax definition of gross income are set aside, but also to set the foundation for one of the flaws in the so-called flat tax solution.

The second problem is that eliminating deductions removes only some of the complexity. Even eliminating credits, which perhaps is part of Dunkelberg’s suggestion to remove “other special stuff in the tax code,” would remove only some more of the complexity. When it comes time to discuss gross income exclusions, what happens? One choice is to eliminate all of them. The other choice is to retain some of them. The latter choice, of course, preserves an arena for the development of complexity. The former choice means that gifts, scholarships, inheritances, life insurance proceeds, employee benefits, and, yes, even municipal bond interest and unrealized asset appreciation, would be taxed. Does Dunkelberg want a student who receives a $50,000 scholarship to be hit with a $8,000 tax (which presupposes a $10,000 exemption for a single person, based on the $30,000 exemption for a family of four)?

The third problem is that eliminating all exclusions, deductions, and credits other than credits for taxes withheld or paid in advance does not simplify the tax system sufficiently. Upper income salaried taxpayers have the advantage of being able to defer income, and their tax liabilities on that income, to a future year, which in present value terms, is a tax savings. Lower income salaried taxpayers cannot afford to play this game because they need their meager salaries to pay the bills and put food on the table. What happens to nonrecognition provisions, a source of much complexity but also a source of tax avoidance that lowers the effective tax burden on taxpayers in a position to take advantage of those provisions? The tax law would be simplified if these provisions were removed, but that would generate all sorts of liquidity issues for taxpayers trying to move assets from one entity to another for business purposes.

The fourth problem is that a flat tax as Dunkelberg advocates, that is, a flat tax with an exemption and the elimination of deductions, would increase taxes on lower income taxpayers and further reduce taxes on upper income taxpayers.

This is not my first attempt, nor my second, nor my third, to explain why the flat tax does not simplify tax law nor deal adequately with the things that generate complexity. Six years ago, in The Revived Forbes Flat Tax Plan, I dissected the proposal to tax all income at 17 percent with a zero percent rate applicable to capital gains, and revealed the complexity generated by taxing capital gains, to say nothing of the unfairness of leaving the primary source of wealthy individual’s wealth accumulation free of taxation. Three years ago, in Flat is Not Simple, At Least Not with Taxes, I explained that a true flat tax, namely, a one-rate tax, does absolutely nothing to simplify the tax system, and revealed that most plans tagged with the label are nothing more than disguised attempts to impose income tax on workers while letting people who live off of trust income and investments off the hook. Two years ago, in Fighting Tax Ignorance, I took apart, among other things, Paul Ryan’s claim that reducing the tax rate schedule to one or even two rates would simplify the tax law. Four months ago, in The Flat Tax Myth Won’t Die, I explained why, although I agree with those who want to remove special interest tax breaks from the Internal Revenue Code, and transform spending plans disguised as tax credits into actual expenditure programs that the public can see for what they really are, I object to retention of special interest treatment for capital gains and other sorts of income leaving wage-earners as the people on whose back the nation is financed.

Because I think that the plans masquerading as “flat tax” plans are designed for the purpose of shifting tax burdens from the wealthy to the poor, I think that the phrase “flat tax” ought to be put out to pasture. That won’t happen, because use of more precise labels would show the plans for what they really are. It’s not surprising to me that advocates of taxing nothing more than wages keep hiding behind the phrase “flat tax.” But it will be to the people who sign on to a flat tax plan as the answer to tax complexity and then discover that the Pied Piper has struck again.

The Tax and Spending Stalemate: Can It Destroy the Nation?

The nation’s bridges and highways are falling apart. I’ve not seen or read anything to the contrary, certainly no one claiming that the transportation infrastructure is in tip-top condition.

That’s not the only problem afflicting the nation. Far too many Americans, including many in the construction trades, are out of work.

The Administration develops a plan to kill two birds with one stone. Hire unemployed construction workers to fix the nation’s transportation infrastructure. Actually, a third bird gets killed with this stone, because the impact of hiring the construction worker and initiating construction projects will give a secondary boost to the local economies of the areas where the work will take place.

So what does the Senate do? According to many reports, including this one, it rejected the Administration’s $60 billion proposal. Why did all of the Senate Republicans, a Democrat, and an independent oppose the plan? Republicans provided two reasons. First, it is funded with a tax on the wealthy. Boo hoo for the wealthy. If they would have used their tax breaks to hire people instead of financing off-shore tax shelters that don’t benefit America, perhaps this nation’s infrastructure would not have fallen so deep into disrepair. Second, claim these wizards of economics, $60 billion is too much to spend. Hello? The amount needed to fix the nation’s roads and bridges is multiples of $60 billion. Perhaps it is cheaper to let bridges collapse, leading to the sort of deadly consequences of infrastructure funding shortfalls I discussed in Funding the Infrastructure: When Free Isn’t Free? Brilliant thinking. These are the same Republicans who voted down an effort to keep the nation’s firefighters and teachers on the job.

In turn, the Senate’s Democrats then caused the failure of the Republican plan to spend $40 billion to repair bridges and other infrastructure using funding taken from other programs. The Republican plan also included provisions intended to make the nation’s air quality worse than it is, under the pretext that less regulation means better lives for, oh wait, more money for those already with plenty of it.

After telling the nation that it doesn’t deserve quality highways and bridges, the Senate Republican leader claimed that “Democrats are more interested in building a campaign message than in rebuilding roads and bridges.” Hello? What better way is there to rebuild roads and bridges than to offer legislation that provides funding for the repair of roads and bridges? McConnell’s comments are equivalent to claiming that a person riding a bicycle is not trying to ride a bicycle.

The Senate’s majority leader has this one right. “[The Republicans’] goal is to do everything they can to drag down this economy, to do anything they can to focus attention negatively on the President of the United States in hopes that he can get my job, perhaps, and that President Obama will be defeated. So let's not talk about campaign speeches here on the Senate floor. Let's talk about reality." Exactly. Some of the Senators who voted against the legislation previously voted for highway repairs and the requisite funding. It is so unavoidably obvious that the nation’s transportation infrastructure needs have been put in the back seat so that partisan politics can ride up front.

When partisan loyalties mean more than the nation’s well-being, when money means more to wealthy “world citizens” than does the long-term physical security of the nation, and when protection of millionaires who fund campaign treasure chests means more than the lives and safety of the rest of America, the literal physical survival of the nation is imperiled. Without a high-grade transportation network, the economy becomes even worse. There are times one must wonder if the wealthy “world citizens” see that sort of outcome as more conducive to their plans than the sensible approach of spending money to keep the nation intact.

So, yes, as long as this absurd tax and spending stalemate continues, where decisions are not made on the merits of the issue but on the partisan attachments of supposedly public servants, the nation and its infrastructure, the nation and the health of its citizens, the nation and its economy, will continue to stagnate, deteriorate, and crumble. The question now is how close we are to the point of no return.

Undressing the Sales Taxation of Costumes and Accessories

In response to my recent Halloween post, The Scary Part of Halloween Costume Sales Taxation, Thomas A. Haines, CPA, of Tax Matrix, offers some helpful information about the sales taxation of costumes and accessories, for which I thanked him. He writes:

In contrast to your recent blog, I believe that there is general agreement among the states as to the definition of “clothing” and “costumes.” Our firm specializes in sales & use tax. We advise our clients—generally larger retailers—as to items subject to or exempt from state sales tax.

There are only seven states that provide an exemption for clothing: Massachusetts, Minnesota, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont. Among these states, four have adopted the definitions provided in the Steamline Sales Tax Agreement: Minnesota, New Jersey, Rhode Island, and Vermont. These four define clothing as “human wearing apparel suitable for general use” (see M.S. 297A.67, Subd. 8; N.J.S.A. 54:32B-8.4; R.I. Gen. Laws § 44-18-7.1(f); and, 32 V.S.A. § 9701(24), respectfully). You will note that Minnesota and Vermont laws include a list of examples of “clothing” which includes “costumes” (see M.S. 297A.67, Subd. 8(b) and 32 V.S.A. § 9701(24)(A)(ix), respectfully). Minnesota, New Jersey, and Rhode Island has issued publications or regulations specifically stating “costumes” are “clothing” (see Minnesota Sales Tax Fact Sheet 105, Clothing; Bulletin S&U-4, New Jersey Sales Tax Guide>, and Rhode Island Regulation SU 07-13, respectfully).

Massachusetts provides a sales tax exemption for clothing under G.L. c.64H § 6(k). As you can see, this is a rather broad definition; however, they have provided guidance in their publication, A Guide to Sales and Use Tax. Under “Apparel and Fabric Goods,” they specifically state “costumes” are an exempt item.

New York provides an exemption for clothing under Tax Law § 1105(a). “Clothing and footwear” is defined in Tax Law § 1101(b)(15). You will note that this definition specifically
excludes “costumes.”

Pennsylvania defines clothing under 61 Pa. Code § 53.1. Costumes are deemed “Ornamental wear” as defined under 61 Pa. Code § 53.1(a)(5) and provided via examples under 61 Pa. Code § 53.1(c)(6)(i). “Ornamental wear” is subject to tax pursuant to 61 Pa. Code 53.1(b)(2).

With regard to tuxedos and other formal apparel, they are exempt as “clothing” in Streamline states. They are deemed “formal day or evening apparel” in Pennsylvania and are subject to sales tax (see 61 Pa. Code § 53.1(a)(3)). Massachusetts and New York each impose limits of $175 and $55, respectfully, on exempt clothing. A tuxedo would be exempt should the cost fall below the aforementioned limits.

Accessories, too, have not been a problem. The only exceptions are Santa hats, Santa gloves, and witches hat. These three items are classified these as costumes; however, any thing else is classified as accessories even if worn (e.g. masks, wigs, hand coverings, etc.). To date, we have not received any complaints (from clients or state regulators) regarding the classification of items.

Though progress is being made, there remains a lack of uniformity. Seven states provide a clothing exemption not found elsewhere. Four of the seven agree on a definition but the other three are not yet on board. Costumes are taxed in some of these states but not in others, and similar disparate treatment is afforded tuxedos. Two states impose limits on the clothing exemption, but the others do not.

In an increasingly interdependent world, let alone interdependent union of states, lack of uniformity poses risks. Imagine if states used different shapes, colors, and words for stop signs. Imagine if states decided to use different colors for traffic signal lights. Though the disadvantage to states of doing so – increased accidents, deaths, and injuries – is more readily apparent, states are losing revenue because of variations in tax definitions. It is too easy for someone accustomed to a tax exemption for clothing or to the sales taxation of clothing to take the same approach no matter where they happen to be. States face so many problems, though, that getting them to focus on the technical definitions that may or may not bring Santa hats, tuxedos, and Halloween costumes into the sales tax regime is quiet unlikely. So, buyer beware! Sellers, too.

Taxes by Any Other Name

About a year and a half ago, in Don’t Like This Tax? How About That Tax?, I criticized a proposal to revamp Philadelphia’s business privilege tax because it would eliminate the income component and measure the tax based on gross receipts, causing enterprises without net income to pay the tax. Six months later, as more details emerged, I returned to the question, updated the examples of how the changes would impact businesses, and in Better to Tax Gross Receipts, Net Income, or a Combination?, predicted that the proposal, if enacted, “. . . would drive every business with gross receipts exceeding $100,000 and with a low gross profit margin out of the city. I wonder what that would do to tax revenue.” Two months later, in Taking Time to Construct Viable Tax Proposals, I explained that hearings on the proposal had been postponed, and that negotiations were underway to phase out the gross receipts portion of the tax so that in effect it would transform into a 6 percent net income tax.

Now comes news that the city’s mayor and council have agreed to modify the business privilege tax. There would be a $100,000 exemption of the gross-receipts portion, and exclusion of the first $100,000 in sales from the net-income portion of the tax. Businesses would be taxed only on sales made in Philadelphia. The bill has not yet been enacted into law.

About six months ago, in connection with a different tax issue, I let the title of a post ask a question: Revenue: Is It All in The Name?. The answer can be debated, but in Philadelphia’s case, according to its mayor, the answer is yes. As reported in this story, the mayor wants to change the name of the business privilege tax to the business income and receipts tax. Why? The mayor said, “But it is not necessarily a privilege to pay taxes,” explaining that attaching the word “privilege” to a tax bothers businesses and even some elected officials.

Is it a privilege to pay taxes? Some people think so. Here’s a blog post titled “Paying Taxes is a Privilege.” Here is another, and yet another. Lest one conclude that the argument is made only by those who are incorrectly accused of benefitting from the tax system, the chairman and CEO of Phillips Beverage Co. agrees. Theological justification for the goodness of paying taxes is explained in this post written from the perspective of Christian humanism. Others, of course, disagree. To see an example of this position, check out dakota99’s comments at this site.

It is not my goal today to resolve the question of whether paying taxes is a privilege. I think so, but clearly others disagree. That much can be confirmed by dropping the terms paying, tax, and privilege into an internet search engine. My goal today is to focus on whether changing the name of a tax by removing the word privilege makes a difference. I doubt it. The word tax remains.

The word that bothers most people is not privilege but tax. That’s one of the points I raised in Revenue: Is It All in The Name?. Perhaps entrepreneurs would react in a less unfavorable manner if the amount in question were called a “publicly-provided services and benefits fee.”