Is the Mileage-Based Road Fee a Threat to Privacy?

In a Washington Times editorial, Adam Brandon objects to raising funds for the nation’s crumbling highway infrastructure through the use of the mileage-based road fee because doing so would require the installation of a “little black box on your car’s dashboard that would transmit your vehicle-use data to a government tax collector.” This, he argues, would be an unwarranted invasion of privacy, or, at least, a threat to become an unwarranted invasion of privacy. I have addressed the mileage-based road fee in a long series of posts, beginning with Tax Meets Technology on the Road, and continuing through Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, Is the Mileage-Based Road Fee So Terrible?, Defending the Mileage-Based Road Fee, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, and Mileage-Based Road Fees: Privatization and Privacy.

Brandon actually tags the mileage-based road fee as “an improvement over the gas tax” because it “is both economically efficient and lacks the redistributive component of most taxes.” Yet Brandon seems nervous about the prospect of the possibility that “the government will know where you are at all times.” But the mileage-based road fee device will not provide that capability. Why? Because it can track only the location of the vehicle. Thus, even if a government wanted to know, and figured out, that a person’s vehicle was in a shopping mall parking lot, there would be no way of knowing from that information which stores the person visited, what the person purchased, or how much the person paid for those purchases. Nor would it provide any information about the identities of individuals with whom the person met or the content of their conversation. As I explained in my last post on the topic, Mileage-Based Road Fees: Privatization and Privacy:

And, yes, there is a risk that a mileage-based road fee system can be used to determine where a vehicle has been. Vehicles, of course, do not have privacy rights. But because people assume that an owner of a vehicle is wherever the vehicle happens to be, it is understandable that knowing where a vehicle has been might reveal where the owner has been. Of course, a mileage-based road system need not track location, though those being considered and those in place do so, provided that the fee did not change based on the road being used. Connecting to the odometer would suffice. It also is important to remember that for many decades, the location of vehicles has not been a private matter hidden behind the sacrosanct walls of a person’s home. For a long time, law enforcement officials, investigative journalists, and even nosy neighbors have been able to determine where a vehicle has been, aided by the existence of license plates, bumper stickers, and other identifying characteristics. There’s nothing private about being in public.

Thus, Brandon’s concern that “tax collectors can access our physical location at the touch of a button” is overstated, because at best, the only location that could be accessed is the location of the vehicle. And considering that the system could be outfitted with a delay such as that used with EZPass and similar systems, because information about the use of the road need not be real-time for a fee to be imposed, by the time the button is pushed the vehicle very well could be at another location, its driver could be out of the vehicle, or another person could be driving the vehicle.

Brandon also poses an interesting concern. He predicts that some people, in an attempt to avoid paying the fee, would tamper with the device. Or at least would try. He’s correct, because it is unquestionable that people exist who want something for nothing and want road use for free. The answer is not to ditch the proposal, for the same reason people don’t stop buying houses because burglars exist. The response is to create a device that is as tamper-proof as possible, and to provide for serious penalties for those caught trying to tamper with the device. But when Brandon tries to explain why the possibility of tampering demonstrates what he sees as the inadvisability of the proposal, he makes an awkward assertion. Brandon claims, “Do we really own our own cars if we are not allowed to modify them?” The answer is yes. Under current law, it is illegal to tamper with odometers, certain safety features, catalytic converters, and some other items. Adding the mileage-based road fee device to the list does not make the owner of the vehicle any less an owner.

Existing technology, such as roadside cameras, credit card receipts for fuel purchases, electronic toll systems such as EZPass, and observations by law enforcement authorities, already provide substantial information concerning the location of a vehicle. Similarly, the location of an individual when in public areas is not a secret. The mileage-based road fee does not generate a significant increase in the revelation of vehicle location information, and does nothing to increase the disclosure of individual location information.

If They Use It, Should They Pay?

Pennsylvania, not unlike other states, faces a transportation infrastructure crisis, though some reports indicate the situation is worse in Pennsylvania than in any other state, when measured, for example, by the number of deficient highway bridges. Legislators in Harrisburg have been hammering out a bill that would provide $2.5 billion for repairs to crumbling highways, bridges, and tunnels in Pennsylvania. According to this Philadelphia Inquirer report, there is a significant chance that the legislative effort will die.

One of the features of the proposed legislation is a provision that removes the limit on the tax imposed on the wholesale price of gasoline. Some Republican legislators object to the legislation because they “believe uncapping the tax on the wholesale price of gas will be passed on to motorists.” Of course it will. And it should. Motorists are the people who use the highways and bridges. Motorists are the ones whose vehicles, over time, wear down the road surface and stress bridges. Motorists are the ones who benefit from the existence of highway infrastructure. The price of repairing and maintaining that infrastructure has increased over the decades, and highway tax revenue has not kept pace.

Those who argue that motorists ought not bear the cost of maintaining the roads, because the roads benefit non-motorists who, for example, buy goods shipped over the highways are missing an important market factor. The motorists, specifically, trucking companies, who deliver goods will, as they ought, pass the increased costs on to the consumers. Those costs are part of the price of the item in question.

The highway infrastructure is crumbling. The cost of accidents, pothole damage to vehicles, and the deaths and injuries caused by infrastructure deficiencies is rising, and will continue to rise until and unless the roads and bridges are fixed. In the long run, the cost of increased road taxes is less than the cost of not doing anything about the roads. Roads are not free. Someone needs to pay. And who ought that be other than those who use the roads?

So Who Are the Takers of Taxpayer Dollars?

Advocates of cutting taxes claim, among other questionable assertions, that taxes can be cut because too many tax dollars are shifted from taxpayers to “takers,” with “takers” generally being defined as the poor and unemployed who are in need of assistance because they’re lazy, accustomed to entitlements, or unwilling to look for work. Supporters and members of the anti-tax crowd claim that taxes are too high. One of the questions they ask is, “Where do the tax dollars go?” One of the items on the list that constitutes the answer is something that ought not be on the list, yet stopping the flow of tax dollars in that direction is proving to be difficult if not impossible. Why? Because the recipients of these taxpayer dollars are the ultrawealthy.

The takers in this instance are the owners of professional sports franchises. I first raised objections to siphoning tax revenues into the wallets of wealthy sports team owners in Tax Revenues and D.C. Baseball. I explained:

Major league baseball wants D.C. to fund the stadium. D.C., an area that has had, and continues to have, serious financial problems, which depends on the Congress for appropriations to assist it in balancing its budget, and which can barely provide services to its residents, is being asked to come up with money to pay for a stadium to be used by a bunch of multi-millionaire team owners and their almost-as-wealthy employees. In addition to charging the team rent for use of the stadium, a tax on concessions, D.C. proposes to impose a tax on other businesses, and has set out to try to "sell" this plan to them.

Once upon a time, if a business chose to move one of its facilities, it found a location, negotiated a price, worked out any zoning problems, and carried on in true free market tradition. That's not how it happens anymore. Businesses that choose to move approach two or more governments and bargain for public financing and/or tax breaks. Sports teams are among the most notorious for seeking public financing of their private enterprises.

The argument that is used by the sports teams and by other businesses is that they are bringing "economic growth" to an area. Therefore, so the argument goes, because they are improving the economic condition of the community, the community ought to pay. Through the government. So governments trip over each other trying to entice the business to their neighborhoods.

There are three huge flaws in the argument.

First, there is no guarantee that the newly arrived sports team or business will bring economic growth. Yet any attempt to obtain a pay back of the governmental financial assistance if the promises of the sports team or business aren't met is rejected. Why can't the team or the business put its money where its mouth is? Simple. They want the risk to be shifted to the taxpayer.

Second, the community gets its chance to pay without the need for tax revenues to be funneled to the team or business. If the team or business is selling something that people want, they will come. They will buy tickets or pay for the goods or services being sold. They will patronize the subsidiary businesses that sprout up around the principal team or business location. They will watch the team on television, pushing up ratings, and increasing the amount of money that networks and advertisers are willing to pay to the team. A tax, in contrast, is a forced extraction of money that lacks the voluntariness of the free market.

Third, the idea that governments need to cave because the team or business otherwise would not locate in the area is tempered by the fact that the team or business needs to locate somewhere. There are only so many cities that can support a professional sports team. Most businesses need to be near a port, or an airport, or a good highway system, or the source of raw materials. No one city can "grab" all the teams or all the businesses, and when a city gets too big in that respect, businesses begin to avoid the city because its success in attracting businesses breeds its rewards of congestion, higher infrastructure needs, crime, and other disadvantages. In the long run, it balances out.

It is interesting that D.C., which could use revenue to fund schools, playgrounds, and other beneficial social services, is expected to come up with revenue for a baseball stadium when it hasn't been able to find the revenue to meet more important needs.

I returned to this issue more than a year ago, in Putting Tax Money Where the Tax Mouth Is, when I addressed plans in Chester, Pa., to enact new taxes to deal with the failure of a taxpayer-financed professional soccer stadium to generate the economic development that its supporters claimed would be generated by using taxpayer dollars to fund the stadium. I wrote,

Private enterprise, which for the most part rejects taxation and government regulation, is quick to find ways to tap into public funding that is financed by the very tax systems that private entrepreneurs detest. Though the argument that a particular private enterprise is good for the public gets transformed into a plea for public funding, what’s missing is evidence that the public funding is necessary. And, if the public funding is necessary because the private enterprise otherwise is not economically viable, ought not the private sector not pursue an uneconomical proposal? Ought not the question be whether the private enterprise is necessary for the health and welfare of the public? It’s one thing to seek public financing for a private enterprise that puts out fires, prevents river flooding, and improves public safety. It’s a totally different animal to seek public funding for the construction of a stadium that is important to the small fraction of the public that cares about the sport in question.

The absurdity of private enterprise feeding at the public trough is illustrated by the almost-completed deal to finance the construction of a stadium for the Minnesota Vikings. The team, a member of a league that hauls in billions of dollars of revenue every decade, managed to cajole state and local legislatures to approve public funding for its private activity. According to this Alexandria, Minn., Echo Press story, Minnesota would fork over $348 million and Minneapolis would dish up $150 million for the construction of a stadium owned by taxpayers who supposedly were going to use their increased after-tax-cut dollars to fund job-creating enterprises. So apparently the get-richer-quick deal is to buy some votes, get a tax cut, use a fraction of the tax cut to hire lobbyists, and have those lobbyists extract tax dollars from the government.

A little more than a year ago, in Building It With Publicly-Funded Tax Breaks , I pointed out that private sector claims that it was superior to government when it came to getting things done, and its slogan, “we built it,” was hypocritical considering the enormous volume of taxpayer dollars pumped into the private sector even when taxpayers objected.

About a year ago, in Public Financing of Private Sports Enterprises: Good for the Private, Bad for the Public, it was the taxpayer financing of parking garages for Yankee Stadium that generated my criticism of wealthy stadium owners grabbing taxpayer dollars, particularly when those garages ended up not as the economic blessing the multi-millionaires and billionaires promised but as an economic failure requiring more tax revenues to be diverted. A month later, in When Tax Revenues Fall Short, Who Gets Paid?, I pointed out how funneling tax dollars to wealthy sports team owners had required cities like Oakland and Jacksonville to cut services for ordinary citizens and how Indiana raised taxes to fund its contributions to the stadium used by the Indianapolis Colts. I noted that:

The anti-tax crowd, oblivious to the harm that tax cuts do to ordinary citizens, backs tax increases when the revenue is funneled into private enterprise. . . Reversing foolish tax cuts to provide revenue to care for the needy is some sort of outrageous sin in the minds of the anti-tax crowd, but jacking up taxes to pump money into the hands of the wealthy seems to be some sort of virtue to these folks.

It is outrageous that the anti-tax crowd casts into a “47 percent net” the people it considers to be “takers.” These folks do this without regard to whether the “taker” is a disabled military veteran, a person disabled by disease caused by private enterprise pollution of air and water, a person unable to work because of the consequences of being the victim of a crime that could not be prevented because a city had to let police officers go, a person disabled when doing a good deed to save the lives of innocent people, or a firefighter injured on the job. Yet when the rich show up, hat in one hand, bully-club in the other, these same opponents of “taking” start handing out taxpayer dollars to wealthy individuals and corporations, justifying their hypocritical decision with every possible baseless excuse available.

Now comes news that the Atlanta Braves, whose owners are swimming in wealth and who stand in line for billions of dollars of television and other broadcast revenue, have somehow persuaded Cobb County, Georgia, to fork over at least $450 million of its tax revenues to finance a new stadium for the club, while the team provides only $200 million. The taxpayers of Cobb County must be thrilled, facing some combination of tax increases or service cuts. The Braves and the politicians teamed up with the club argue, of course, that this deal will trigger at least $450 million in new revenues for Cobb County, but it hasn’t worked out that way in Chester, Pa., or for New York City, or Oakland, or Jacksonville, or any of the other places where the ultrawealthy padded their wallets.

As I explained in Putting Tax Money Where the Tax Mouth Is, there are two solutions:

The first is easy. When a private enterprise seeks government funding, just say no. If it’s an economically viable project, it will survive in the free market on its own. The second solution is an alternative, to permit flexibility in cooperation between the public sector and the private sector. When the private sector entrepreneurs offer promises that their project will increase government revenues, hold them to that promise. Compel them to offer a number. Compel them to guarantee that if the revenues do not materialize, they will make up the difference. If they truly believe their project will do what they promise it will do, they ought not hesitate to agree, because the guarantee rarely if ever will need to be met. I doubt, though, that the private sector handout seekers will agree to such a guarantee, because they know the reality of these sorts of deals. The promised tax revenue benefits rarely, if ever, show up.

Why am I so adamantly opposed to letting rich takers feed at the public trough while the needy and deserving are reduced to poverty? I answered that question in When Tax Revenues Fall Short, Who Gets Paid?, when I asserted, “The typical justification [for steering more wealth into the hands of the already wealthy] that it is good for everyone to cut the taxes of the wealthy, or that it is good for everyone to collect taxes from everyone and funnel the proceeds into the hands of private corporations and rich individuals, has been disproven repeatedly. These actions have not generated jobs. They have reduced public safety. They have failed America.”

Unraveling a Tax Filing Mess

There are two lessons to be learned from the Tax Court’s decision in Herring v. Comr., T. C. Summary Op. 2013-84. Both may be obvious to tax practitioners but probably are not so apparent to those not steeped in tax law.

The taxpayer inherited an interest in his family’s home when his mother died. Several years later, he moved into that house and treated it as his primary residence until 2007. For each of the years from 2005 through 2007, he filed with the local government for real property tax relief, claiming a homestead exemption because the house was his primary residence.

In 2001, the taxpayer began to build a house on another piece of property that he had owned for several decades. The development stopped in compliance with an injunction issued when the taxpayer and his then spouse began divorce proceedings, but resumed when the divorce was final in the fall of 2007. On June 8, 2008, the taxpayer moved into the new home.

On March 30, 2009, the taxpayer filed his 2008 federal income tax return, claiming the first-time homebuyer credit on account of the home he had constructed and into which he moved on June 8, 2008. When the taxpayer filed his 2010 and 2011 federal income tax returns, he reported a $500 additional federal income tax liability on account of the first-time homebuyer credit claimed on the 2008 return.

The Tax Court held that the taxpayer was not entitled to the first-time homebuyer credit because he failed to meet the requirement that he not have a present ownership interest in a principal residence during the three-year period ending on the date of the purchase of the residence or, when the residence is constructed by the taxpayer, the date the taxpayer occupies the residence. In this instance, the taxpayer owned a principal residence during most of the three years preceding June 8, 2008. By treating the inherited residence as a principal residence and by filing the homestead exemption claim on which the taxpayer asserted that the property was a principal residence, the taxpayer unquestionably failed to qualify for the credit. The lesson is a simple one, known to tax practitioners, but apparently not understood by many others. To be a first-time homebuyer, one must not already own a principal residence during that three-year period ending on the date of purchase or occupancy.

In what ought to be considered dictum, because it was not essential to the conclusion reached by the Court, the Tax Court rejected the taxpayer’s claim that by claiming the credit, he had entered into an enforceable contract with the IRS, by which the IRS loaned $7,500 (the amount of the credit) at zero percent interest, repayable through annual $500 increases in tax liability over a 15-year period. The taxpayer argued that the acceptance of his 2010 and 2011 tax returns by the IRS ratified the contract. The Court explained that putting something, such as a claim for a credit, on a return is at most a declaration by the taxpayer of the taxpayer’s position with respect to that item.

The Court also addressed the taxpayer’s argument that it was unfair for the IRS to issue a notice of deficiency for $7,500 without taking into account the $500 annual “repayments” made in later years. The Court explained that the definition of a deficiency does not take into account increases in tax liability for subsequent years required by section 36(f)(1). The Court advised the taxpayer that the appropriate avenue for relief would be the filing of a claim for refund for those subsequent years. However, if the taxpayer does not act with rapidity, the statute of limitations will preclude success. When the notice of deficiency is received, it might be wise to consider filing a protective claim for refund before the statute of limitations expires. Of course, the better plan would be to refrain from claiming in the first place a credit for which the taxpayer’s lack of qualification is undeniable.

Why This Tax Break?

According to this Philadelphia Inquirer story, the City of Philadelphia, strapped for cash because of tax revenue declines, and home to a School District on the verge of breakdown triggered by tax revenue shortages, is about to bless a team of private developers with a tax break in the tens of millions of dollars. The deal sought by the developers would provide them with a $33 million loan which they would repay through tax forgiveness over 20 years. In other words, the so-called loan is a special tax break, one amounting to $76 million over the 20-year period. The loan would be used to help finance the construction of two hotels in center city Philadelphia.

So why would the City of Philadelphia, specifically City Council and the Mayor, permit a cash-strapped city to relieve these developers of some or all of their tax obligations, while not extending similar breaks to the ordinary rank-and-file worker who lives in the city and pays taxes? For those who advocate free market approaches to government regulation and tax policy, this situation is an interesting lesson.

When it comes to deciding to build a hotel, a developer faces two possibilities. Either it is an economically feasible project, or it is not. By economically feasible, I mean a project that over a period of time will generate sufficient net revenue to pay for its construction and return a profit to the developers and owners. If the project is economically feasible, then the developers ought not be begging at the doorway of government offices for tax breaks. Build the hotel, provided zoning and other requirements are satisfied. On the other hand, if the project is not economically feasible, don’t move forward. If the project is not economically feasible, the reasons should encourage putting the project on the shelf or abandoning it entirely. For example, if the project cannot generate sufficient revenue, it’s almost certainly because there is no need for the two hotels. As another example, if the costs of building and operating the hotels are high, then charge higher prices for the hotel rooms, and if the market cannot sustain those prices because there isn’t a shortage of hotel rooms to drive up room prices, don’t build the hotels. When asked by City Council to provide their project profit margin, the developers declined to do so.

According to the story, the developers insist “they can’t build there without tax increment financing.” The response from the city ought to be, “Then don’t build there, because the market is telling you it makes no sense to build there.” Existing hotel owners explain their opposition by pointing to the lack of demand for the hotel rooms the developers are proposing to build. Supporters of the project insist that demand is or will be increasing, and that existing hotels are not able to set aside blocks of hotel rooms for people attending conventions at the city’s convention center. From a lawyer’s perspective, this aspect of the debate comes down to a matter of determining the facts. Opponents of the project note that although convention center space has grown by more than one-third, the number of attendees has remained the same during the past dozen years. If the hotels are built and demand does not increase, it is possible that these newer hotels would siphon customers from existing hotels, which could go out of business.

Interestingly, some of the existing hotel owners who oppose the project aren’t opposed to tax subsidies for private developers. Of course not. Isn’t it fun when private developers fight with each other over tax breaks not available to others?

The developers also have obtained funding for the project by persuading the governor of Pennsylvania to kick in $25 million of state taxpayer dollars. This is the same state that is incapable of coming up with funds for financially distressed school districts or for fixing transportation infrastructure.

Advocates of the project argue that, when built, the project will generate tax revenues even after taking into account the tax breaks. If this is true, then perhaps the city ought to build the project and collect the profits, which would generate far more revenue for the city than simply giving $76 million in tax breaks to private sector developers.

This is not the first time I’ve criticized public funding of private sector projects. I doubt it will be the last time. The private sector individuals and corporations who help themselves to public money surely are among the wealthy who complain that tax rates are too high, and yet even after tax rates for the wealthy are chopped, they continue to find ways to reduce their tax burdens through these sorts of private arrangements. Most of these projects fail, leaving taxpayers in a lose-lose situation. When are taxpayers who don’t get these multi-million dollar tax breaks going to wake up and stand up to this continued erosion of the well-being of the commonwealth?

Tax Evasion Investigations Can Yield More Than Unpaid Taxes

Earlier this week, numerous reports, such as this one, revealed that an investigation for suspected tax evasion turned up more than unpaid taxes. Customs police in Germany conducted a raid in 2011, searching the apartment of a person suspected of tax evasion. During the search, the police discovered a cache of 1,500 works of art, worth at least one billion dollars. The art, which included masterpieces, had been stolen by the Nazi Party. How it ended up in the possession of the taxpayer has not yet been disclosed. Government authorities in Germany have not confirmed these reports, and have declined to comment on any of the issues involved in the investigation. Nor has there been any comments on the tax implications of the discovery, and it is unclear whether questions about tax issues have been posed to the authorities.

So to the list of reasons taxes are a good thing is added another, unexpected benefit. I doubt that any of the people who eventually recover the art stolen from them or their families will be shedding tears over the fact that a tax investigation search was the cause of the discovery.

Prospects for Tax Reform?

From time to time, and rather often during the past few months, people ask me to describe the chances for tax reform. My response is always the same. “Don’t hold your breath.” I explain that for genuine reform to occur, special tax breaks need to be repealed. I describe what happens when a tax break is put on the table for repeal. “Those who benefit from the tax break show up, or send lobbyists on their behalf, to argue that repeal of the tax break will destroy the American economy, bring on a depression that dwarfs all prior economic downturns, and quietly threaten legislators with losses in the next election. I don’t doubt that those campaigns are financed in part with the tax savings generated by the tax breaks in question. It doesn’t matter whether the tax break is good or bad for the economy, creates or destroys jobs in this country, enhances or weakens national security, or is good or bad for the American people. The folks with the money use some of it to purchase more tax breaks.”

And now another reason to doubt that we will see tax reform in the near future has come to light. As revealed in this calendar, the House of Representatives had scheduled 126 working days for the First Session of the 113th Congress, which meets during 2013. For 2014, according to the recently published legislative calendar, the House plans 113 working days. In comparison, the typical American fortunate enough to have full-time employment works, assuming a two-week vacation, 250 days each year. Or more. Tax reform requires a heavy investment of time. It is a major project. It’s not something that can be done, even in a slipshod manner, by a legislature that is absent most of the year.

If there ever was a need for proof that members of the Congress is more concerned with getting themselves re-elected than with buckling down to do what needs to be done for the common welfare of the American people, the legislative calendar is Exhibit A-One. There’s no denying that the Congress has become the servant of the moneyed interests, and in its present configuration and mentality, will bring nothing of value in terms of tax reform. If something is enacted with fancy words of promise in the name of the Act, it almost surely will not be genuine reform and most likely will be a cover for more tax breaks benefiting the people who can afford to purchase them.

Tolls, Taxes, and User Fees in a Public-Private Context

An important decision by the Supreme Court of Virginia, Elizabeth River Crossings v. Meeks, Docket No. 130954 (Va. 2013), addresses the imposition of tolls by a private entity empowered to do so by a state transportation agency to which the legislature delegated toll-setting powers. Though the decision rests on the language of the Virginia Constitution and the specific statutes enacted by the Virginia legislature, the holding and analysis should prove helpful when similar questions arise in other states.

The litigation was brought by a citizen who objected to the fact that he would be required to pay a toll for using a tunnel that previously had been untolled. The plaintiff claimed that the toll was a tax, that the setting of the amount of the toll had been delegated to a private entity in violation of the Virginia Constitution, and that the arrangement abridged Virginia’s police power. Though prevailing in the lower court, the plaintiff’s claims were rejected by the Supreme Court of Virginia.

To deal with traffic congestion in the Portsmouth and Norfolk areas, specifically, the crossing of the Elizabeth River, the Virginia legislature authorized the Department of Transportation to enter into a contract with a private entity, selected by the department, under which the private entity would build a new tunnel and, at the option of the parties, make improvements to existing tunnels and feeder highways. The legislation provided that if those improvements were made, tolls could be imposed on the use of the improved facilities.

The plaintiff’s arguments rested on the contention that the tolls are taxes, and that the setting of the tolls by the private entity was an unlawful delegation of legislative power. The Supreme Court of Virginia disagreed.

The plaintiff argued that the tolls “are a tax because their primary purpose is to raise revenue.” The court explained why it held that the tolls are user fees. To be a tax, the amounts in question must be “levied for the support of government, and their amount . . . regulated by its necessities.” On the other hand, “tolls are user fees when they are ‘nothing more than an authorized charge for the use of a special facility.’ ” Specifically, the court treated the tolls in question as user fees for three reasons. First, “the toll road users pay the tolls in exchange for a particularized benefit not shared by the general public.” Second, “drivers are not compelled by government to pay the tolls or accept the benefits of the Project facilities.” Third, “the tolls are collected solely to fund the Project, not to raise general revenues.”

The plaintiff also argued that the tolls are taxes, that delegating the setting of the tolls was an impermissible delegation of legislative power, and that the Department of Transportation was not permitted to transfer the toll-setting role to the private entity. The court responded by pointing out that the tolls are not taxes, acknowledging that if they were taxes the setting of the rates was not a task that could be delegated. In addition, the court pointed out that the setting of the tolls was not done by the private entity acting alone, but only in concert with, and subject to the supervision and approval of, the Department of Transportation. The court explained that by permitting the private entity to be involved in the determination of toll rates, the legislature did not delegate toll-setting powers to the private entity, but simply empowered it to participate in the process. The court emphasized that the dichotomy between delegation and empowerment is a critical component of its analysis.

The plaintiff argued that the contract between the Department of Transportation and the private entity abridged Virginia’s police power because its terms prevented “the Commonwealth from responding to changing circumstances throughout the duration of” the contract. The court held that by entering into the contract, the police power had not been abridged, because any interpretation of the contract is subject to the impact of the police power, and that the possibility of money damages being awarded against the Commonwealth for breach does not abridge the police power because the legislature must consent to those damages and appropriate funds to pay them.

As these sorts of arrangements for improvements to the nation’s transportation infrastructure continue to get attention, the decision of the Supreme Court of Virginia in this case will be studied, cited, and given consideration. As the court pointed out, the policy question of whether states ought to be putting transportation functions in the hands of private entities is a different issue, one not within the scope of the court’s jurisdiction, but left to the world of public politics and legislative lobbying.

Mileage-Based Road Fees: Privatization and Privacy

A reader commented in response to my post earlier this week, Highways Are Not Free, by pointing out that the mileage-based road fee poses a risk that the system would be privatized, and also poses a risk to privacy.

The reader is correct. Yes, there is a risk that the mileage-based road fee system would be privatized. Indeed, there is a risk that every government function will be privatized. To date, many government functions have been privatized, too often with bad results. So long as there exists a group of people with money to burn who want to make a killing, there will be attempts to find a way to obtain government revenue streams on the cheap in ways that appear to be, but aren’t, economic windfalls for governments and their citizens. The response is not to shy away from something because there is a risk of privatization, but to move forward in a manner that makes it clear privatization needs to be resisted.

And, yes, there is a risk that a mileage-based road fee system can be used to determine where a vehicle has been. Vehicles, of course, do not have privacy rights. But because people assume that an owner of a vehicle is wherever the vehicle happens to be, it is understandable that knowing where a vehicle has been might reveal where the owner has been. Of course, a mileage-based road system need not track location, though those being considered and those in place do so, provided that the fee did not change based on the road being used. Connecting to the odometer would suffice. It also is important to remember that for many decades, the location of vehicles has not been a private matter hidden behind the sacrosanct walls of a person’s home. For a long time, law enforcement officials, investigative journalists, and even nosy neighbors have been able to determine where a vehicle has been, aided by the existence of license plates, bumper stickers, and other identifying characteristics. There’s nothing private about being in public.

Some Scary Halloween Thoughts

Though I don’t remember when, how, or why I decided to give a special place in this blog every October-end to the connection between Halloween and taxation, I do know it has developed into a MauledAgain tradition. Beginning with Taxing "Snack" or "Junk" Food (2004), and continuing through Halloween and Tax: Scared Yet? (2005), Happy Halloween: Chocolate Math and Tax Arithmetic (2006), Tricky Treating: Teaching Tax Trumps Tasty Tidbit Transfers (2007), Halloween Brings Out the Lunacy (2007), and A Truly Frightening Halloween Candy Bar (2008), Unmasking the Deductibility of Halloween Costumes (2009), Happy Halloween: Revenue Department Scares Kids Into Abandoning Pumpkin Sales (2010), and The Scary Part of Halloween Costume Sales Taxation (2011), I have aimed for the light-hearted, the ridiculous, or the goofy when describing how Halloween and taxation can intersect. Last year, I set the silliness aside, in Halloween Takes on a New Meaning and It Isn’t Happy, because Hurricane Sandy brought misery, death, and destruction to millions of people, in a disaster that was a treat for no one.

This year, frightening meets ridiculous. The IRS has announced that the start of the 2014 income tax filing season will be delayed, to as late as early February, to give the agency time to do the work that wasn’t accomplished during the shutdown of the government earlier this month. Consequently, taxpayers who are entitled to refunds will be waiting longer to receive their money. Perhaps they ought to send thank-you notes to the Congress. I wonder how many people who gripe about delayed refunds next spring will confess to cheering the closing of the government for three weeks. What’s so frightening about this? There are taxpayers who will be harmed, economically or otherwise, when and if their refunds arrive several weeks later than expected. Those tempted to suggest better cash flow planning might not quite understand the challenges of cash flow budgeting when the cash isn’t flowing very much. But there’s something even more frightening. The legislation that ended the shutdown is a temporary fix, and come January 15, spending once again ceases to be authorized, and by February 7, the Treasury runs up against the debt limit. In the likely event that the dysfunctional governance syndrome isn’t fixed by then, it would not be surprising to see the government, including the IRS, once again shut down. A shutdown at that point in time will create havoc far worse than what already has been foisted on the American people by a handful of sore losers.

And what’s so ridiculous? What’s ridiculous is that it need not be this way. Some catastrophes are unavoidable. Letting the nation suffer through an avoidable catastrophe, particularly when the possibility and even possibility of a repeat looms large, is simply ridiculous. Using the tactics of two-year-olds throwing temper tantrums, the attitudes of adolescents sulking in response to life generally, or the bullying of spoiled brats grown up into obnoxious adults is no way to govern a nation. What’s worse is that when level-headed, sensible legislators try to prevent or minimize the damage caused by their irresponsible colleagues, the latter do everything in the power to push aside rationality, common sense, and fiduciary duty.

Yes, it’s “only” Halloween, though I’m told that some mercenary commercial outfits are already doing the “countdown ‘til Christmas” thing. The countdown ought to be focusing on the number of days until January 15. Seventy-seven days seems like a long time to many people, especially politicians and procrastinators, but once the holidays, weekends, and legislative recesses are taken out of the computation, time is running short. Procrastinating politicians, and that might be a redundant phrase, are at high risk of letting the nation careen wildly into another, far more serious, disaster. Hopefully, American citizens will not continue to be tricked by the nonsense of politics and will treat their legislators with messages that demand placing loyalty to nation above loyalty to political party.

Highways Are Not Free

A letter to the editor in last Monday’s Philadelphia Inquirer reminded me of how difficult it is to get people to understand that highways are not free, and that some sort of funding, preferably in the form of the mileage-based road fee, is necessary, unless some ultra-wealthy person donates to the government a sufficient amount of money to create a permanent endowment that fully funds the cost of transportation. That, of course, is highly unlikely.

Stephanie Fleetman, president of Mustang Expediting, Inc., argues that it is a “terrible idea” to add tolls to “existing interstate lanes that we have already paid for.” Ms. Fleetman’s conclusion that the existing interstate lanes have already been paid for overlooks the fact that the need for repair and maintenance funding is separate and apart from the cost of constructing the existing highway. As any business owner knows, the cost of buying a building or a vehicle does not make the cost of repairs and maintenance zero.

Ms. Fleetman then claims that “our taxes continue to pay for” highways. The problem, as anyone who examines the situation knows, is that the highway taxes currently being imposed are insufficient to pay for the cost of repairs and maintenance. Gasoline tax revenue has declined because vehicles are more fuel-efficient, increasing numbers of vehicles do not use liquid fuels, and the Congress has refused to increase the per-gallon tax rate to keep up with inflation.

Ms. Fleetman then takes a jab at those whose job it is to study and determine why our highways are falling apart. She claims “for some researcher to come along and say ‘Just put tolls up and everything will be fine’ would be laughable if it were not so ridiculous.” Surely Ms. Fleetman hears reports from her drivers about the cruddy condition of our nation’s highways. Potholes, raised seams, washboard surfaces, dangerously pooling rainwater, congestion, malfunctioning traffic signals, closed bridges, bridges restricted to low-weight vehicles, leaking tunnels, and scores of other problems plague the highway transportation infrastructure. It’s not just “some researcher” but a large number of experts from a variety of professions who have studied the problem. Engineers, economists, cost accountants, highway safety officers, and other trained individuals have worked through the data, observed the realities, and have analyzed the problem. Even amateurs with a rudimentary knowledge and simple understanding of reality on the highways understands that the highways are falling apart and it costs money to repair them and maintain them so that Ms. Fleetman’s trucks, and the rest of us, can use them.

Ms. Fleetman does make a good point. She claims that “[t]olls push traffic onto local roads that weren’t built for that type of volume.” This is true. I’ve made that point repeatedly, in support of my position that tolling should apply to all roads in the form of the mileage-based road fee. This would “level the playing field” in terms of highway use choices, pushing long-distance traffic back onto the interstates, and truck traffic onto the roads best suited for those types of vehicles.

Ms. Fleetman makes another point. She claims that “[t]olls increase the cost of goods that ship by truck.” Of course they do. But the shipping of goods by trucks imposes a burden on the nation’s highways, and someone needs to pay for the damage caused by those shipments. Shippers need to pass along the cost to the person whose decision to make a purchase of something shipped by truck, or any other vehicle, generates a need for money to keep the highway in safe and efficient condition. The shipping of goods by trucks also requires the payment of wages and benefits to the truck drivers, fuel for the vehicle, and maintenance of the trucks. It’s called a cost of doing business. First-year business students often need to learn the difference among receipts, gross profits, and net profits. All businesses would be delighted if net profits equaled receipts but that isn’t going to happen. All businesses would prefer that the cost of shipping be zero, and some would like the cost of employing workers also to be zero,. It isn’t going to happen, and it ought not happen.

In conclusion, Ms. Fleetman claims that “tolling is by far the most inefficient and harmful way to raise money.” It isn’t. The most inefficient and harmful way to raise money for highways is the current system of a per-gallon liquid fuels tax that fails to keep up with inflation, raises insufficient revenue, and will increasingly become antiquated and useless. If Ms. Fleetman’s point is that there are better ways to raise highway funds than tolls, she’s correct. But she does not offer any suggestions.

It is unclear whether Ms. Fleetman would support a mileage-based road fee. She might very well prefer that her company use the highways without paying any sort of tax or fee, or by paying a tax or fee that, like what currently is being paid, is insufficient to maintain the highways. Perhaps she fails to mention the mileage-based road fee because she is unaware that such a system exists. In that case, I invite her to read the series of posts I have written on the topic, beginning with Tax Meets Technology on the Road, and continuing through Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, Is the Mileage-Based Road Fee So Terrible?, Defending the Mileage-Based Road Fee, Liquid Fuels Tax Increases on the Table, and Searching For What Already Has Been Found, Tax Style. Every other road user, whether or not owning a business, needs to read these posts, look at the reports to which these posts link that explain the outcomes in localities using the mileage-based road fee, and examine the studies and reports also linked in my posts. An informed citizenry is one that benefits, and an uninformed citizenry is easily misled. Don’t take my word for it. To use a colloquial translation of a phrase found in the seal of the Augustinian order that operates the university of which the Villanova University School of Law is a part, and that appears throughout the campus, Tolle Lege, go and read.

One More Price Comparison: Chocolate

What we did not need is more bad news, especially of this sort, so near to Halloween. According to this report, the price of chocolate is going up. During the past 12 months, the price of cocoa butter has risen 70 percent. The principal causes are increasing demand in emerging markets and bad weather in cocoa-producing areas.

If the price of chocolate increases along the same lines, almost doubling, the impact could be alarming. Aside from reductions in the size of chocolate bars and the adverse effects on Halloween hauls, other, even more, undesirable consequences loom. Six years ago, as I explained in Should the Tax Law Provide a Fix for This Looming Catastrophe?, increases in the price of cocoa triggered a request to the Food and Drug Administration by chocolate manufacturers to redefine chocolate, so that they could sell “mockolate” as a substitute. Of course, I opined that it is better to sell “Fake Chocolate” by that name and let consumers decide if they want to trade price for taste.

Earlier this week, in Looking at Numbers, I compared price increases for things such as cars, houses, tuition, and World Series items. Out of curiosity, I tried to find similar information for chocolate. I discovered, courtesy of FoodTimeLine, that in 1956, a 1.5 ounce Hershey bar cost 5 cents, whereas in 2011 and 2013, and thus presumably in 2012, a 1.55 ounce bar cost 99 cents. The cost of the chocolate bar in 2012 was roughly 20 times what it cost in 1946. That’s on the low end of the list, close to the increases in the cost of cars and houses, and far below the increases for World Series tickets and rings.

So the price of chocolate would need to quintuple, to a $5 chocolate bar, before it presented the same sort of price increases that have been demonstrated by World Series items. I doubt this is going to happen anytime soon.

User Fee Scofflaws

Maybe it’s a mistake. Perhaps it’s some sort of digital error. Or perhaps the equipment isn’t working. But it’s almost certainly not an error. According to this report, a man and woman from a Texas town near Austin have managed to rack up $236,026.32 in unpaid tolls and fines. The vehicle registered in their name has passed a toll booth 14,358 times without paying. Blowing through a toll booth without paying on one occasion could be a mistake or a misunderstanding. Zooming through more than 14,000 times without coming up with the toll is not a mistake or misunderstanding. It’s something else.

What’s new about this story isn’t the story. More than nine years ago, in Money: The Root of All Evil?, I reacted to the report that the Delaware River Port Authority had caught a “toll cheat” whose trucking company’s vehicles had been driven through E-Z Pass lanes 2,559 times without paying more than $20,000 in tolls. More than five years ago, in If We're Special, Can We Ignore Taxes and User Fees?, I commented on a report from the state of Delaware identifying its “top E-Z Pass violator” as a driver who made 633 illegal drive-throughs without paying, racking up $4,748 in unpaid tolls, and $30,000 in fees and penalties. I also noted a report from New Jersey about a violator with 1,444 violations who owed $1,700 in unpaid tolls and $36,000 in administrative costs.

What’s new about the story from Texas is that, like a lot of things Texas, it is Texas-sized. To accumulate 14,358 unpaid toll events a person needs to use the toll road 4 times a day, every day, for roughly ten years. My guess is that one or both of the owners of the vehicle are using it for a business that has them making multiple trips each day. The state of Texas is owed $27 million by drivers who have failed to pay their tolls. Even for Texas, that’s not loose change or petty cash.

In If We're Special, Can We Ignore Taxes and User Fees?, I wrote:

There's no doubt that the people who are evading tolls on a regular basis aren't dealing with a momentary brain failure, or an unsuccessful attempt to hold up the transponder as they drive through the toll booth. These indeed are people who think they are special and therefore above the law. As a spokesperson for the Delaware Department of Transportation summarized the situation, this is someone whose mindset is "I'm going to violate the law, and I don't care what anyone thinks." An indication of how deliberate are their actions is the account given in the Inquirer story about one driver "who hooked his license plate to a rope inside the car," and as he went through the tool booth, would "tug the rope, causing the plate to flip up so that the cameras couldn't catch the tag number." As I was told when I was a child, being smart doesn't mean much if it's used in the wrong way. The prisons, I was told, are full of smart people and people who thought they were smart.

But it’s more than just a matter of being smart and trying to evade a law. In Money: The Root of All Evil?, I suggested that the cause of the problem is selfishness and greed:

What's this fellow's mindset (assuming that the allegations are true)? Was it curiosity or a dare to see if it was possible to avoid the toll, that ripened into an addiction? Was it greed? Was it an attempt to avoid financial problems? Was it an attitude of "me first and the rest of the world isn't as important as I am?" My guess is that it is another instance of selfishness and greed, reflecting outlooks on life that are learned somewhere and that somehow escape reformation as a person grows and develops. Under almost every moral code, it simply isn't right.

I followed up in If We're Special, Can We Ignore Taxes and User Fees? with these thoughts:

I continue to think it is a manifestation of selfishness and greed, though I think selfishness is the stronger of the two catalysts. That there aren't even more selfish people who think they are so special that they can ignore laws is a blessing, considering the examples that are set and the messages that are delivered by society, and people in highly visible positions, to the residents of the planet. Once upon a time, not so long ago, someone whose law-breaking interfered with my professional activities said to me, "I don't care about no law." I didn't think I'd succeed in creating a teaching moment by trying to get the person to understand the disadvantage they'd face if I, or anyone else, took the same approach. If for all of her life, this person was told, "You are special," would it not indeed be difficult to understand that she, too, must obey the law? Perhaps it's time to change the refrain, and when necessary, explain that "You're no more special than anyone else, and like everyone else, you will pay the toll."

And now I wonder, if the folks who evade tolls are among those who oppose government expenditures because they think too many people rely on entitlements. Would it not be a transformative discovery for this nation to learn that opponents of entitlements consider themselves entitled to use a toll road without paying, letting the cost fall upon others? Perhaps then the citizenry would understand that complaints about entitlements really have very little to do with entitlements.

Looking at Numbers

In recent years, increases in college tuition have brought complaints and criticism, as noted in this report, and have generated stress for students and their families. Similar complaints and concerns have arisen with respect to health care costs, food costs, and energy costs.

Late last week, while reading the AARP Bulletin for October, an article caught my eye because of its title, “A Boomer’s History of the World Series.” It turned out not to be a history, aside from noting that in 1946, the year that the boomer generation “dawned,” the St. Louis Cardinals beat the Boston Red Sox. The article provided another historical tidbit, the cost of World-Series-related items in 1946, along with a comparison to the cost of the same things in 2012.

In 1946, tickets to the World Series ranged in price from $1.20 to $6.25. In 2012, the price ranged from $110 to $1,040. The 2012 prices ranged from 92 times to 166 times the 1946 prices.

In 1946, a hot dog and a beer cost 50 cents. In 2012, the cost was $10.25. The 2012 price was 20.5 times the 1946 price.

In 1946, a program cost 25 cents. In 2012, it cost $15. The 2012 price was 60 times the 1946 price.

In 1946, the bonus for a winning player was $3,742.54. In 2012, it was $377,002.64. The 2012 bonus, which represents a cost to someone, was 101 times the 1946 bonus.

In 1946, the World Series ring cost $100. In 2012, it is estimated to cost $10,000. The cost of the 2012 ring was 100 times the cost of the 1946 ring.

Rarely do I hear or read complaints about the size of the winning player’s bonus, the cost of a program, or the cost of tickets. So, out of curiosity, I decided to take a look at the cost of college, cars, houses, and energy items in 1946 and in 2012.

In 1946, undergraduate tuition at the University of Pennsylvania was $475. In 2012-13, it was $39,088. The cost of tuition is 2012 was 82 times what it was in 1946. That’s not quite as good a deal as the hot dog and beer, or program, but it’s a better deal than the cost of the tickets, the ring, and the bonus.

According to The Cost of Living, in 1946 a car cost $1,120 and a house cost $12,304, whereas in 2011 (the most recent year for which information was provided), they cost, respectively, $28,150 and $218,200. The cost of a car in 2011 was 25 times what it was in 1946, and the cost of a house was about 18 times what it was in 1946. That’s worse than the hot dog and beer, but better than what happened with the program, and far better than what happened with the cost of the tickets, the ring, and the bonus.

According to InflationData.com, the price of a barrel of crude oil in 1946 was $1.63, and in 2012 it was $86.46. The cost of a barrel of oil in 2012 was 53 times what it was in 1946. That’s about the same as the change in the cost of the program, but far less than the cost of the tickets, the ring, and the bonus.

The same site tells us that the consumer price index in January 1946 was 18.2 and in January 2012 it was 226.665. The 2012 index was 12 times what it was in 1946. That’s nowhere near the increase for any of the World Series items, and much closer to the increases for cars and houses.

Had I been quizzed before looking for these numbers, I would have pegged crude oil as the winner of the “highest increase” prize. I would have projected the cost of the program as increasing far below what actually took place. From all the complaints about college tuition prices, I would have expected the increase to have surpassed everything but crude oil. And I would have been wrong. Some things just seem worse than they are, perhaps because they’re encountered more often and more directly.

Law, Genealogy, Adoption, and Assisted Reproduction

The headline on an inner section of Wednesday’s Philadelphia Inquirer caught my eye. Considering my interest in family history and genealogy, it is not surprising that 'Where did I come from?' Donor eggs, sperm and a surrogate made me want to read the article. The fact that I am once again going to be teaching the Wills and Trusts course, and had just finished preparing the segment in which intestacy issues involving children of assisted reproduction are discussed, gave me another reason to read the article.

The article discussed what I think can be reduced to several questions. “What do I tell my child?” “When do I tell my child?” and “How do I tell my child?” As the article points out, it can be confusing, because it is now possible for five individuals to be involved, “a sperm donor, an egg donor, a gestational carrier, and the intended parents.” That’s not to discount the contributions of the reproductive endocrinologist, the obstetrician, and the delivery room staff.

As the article explains, “In 2010, 58,727 babies conceived through assisted reproductive technology were born in the United States. That's a lot of kids eventually asking, ‘Where did I come from?’”

To the questions discussed in the article, I add another. “Why does it matter?” It matters because a substantial part of who a person is, ranging from personality and talents to health characteristics and risks, depends on genetics, specifically DNA. As a professor of bioethics points out, “There is no legal right to know your biological roots.” I think that needs to change. The professor also explains, “I think there is an ethical right.” Indeed there is. And, as a practical matter, current and soon-to-be-current biotechnology will make it possible to figure out one’s genetic origins.

When I started working on my family tree, roughly forty years ago, I soon realized I had to make a decision. How does one deal with adoptions? The answer, for me, was easy. A child who is adopted becomes part of the adopting family and thus ought to be included. That’s the “family history” part of the process. Yet, genetically, the child is of a different origin, and that is the “genealogy” part. Thus, when coding the family tree, I included an “a” if I knew the child was adopted. As a practical matter, sometimes the genetic origins of someone in a family tree are not known to the compiler. That is becoming very evident now that DNA matching has become a tool used by genealogists. It’s long been known that a certain percentage, some say as little as 2 percent and others suggest as high as 10 percent, of children recorded as offspring of a married couple are not, in fact, the biological child of both spouses.

My answers to the questions raised in the article are, for the most part, consistent with what others suggest. But I’m confident there are many people who disagree, or who, though in agreement, cannot bring themselves to handle the child’s question as they think they should.

“What do I tell my child?” My answer is simple. “The truth.” The American Society for Reproductive Medicine reached the same conclusion in an ethics opinion issued nine years ago. As one physician noted, secrets have a way of coming out, and “You don’t want to have a kid find out in a way they shouldn’t.”

“When do I tell my child?” My answer is simple. “As soon as the child has the intellectual ability to understand.” That probably means introducing the child to the truth in stages, as there is no need to get into technical details at the outset. Some experts answer “early and often,” but in some instances waiting a bit might make more sense.

“How do I tell my child?” My answer is not so simple. It depends on where the child and parent are when the question is asked. For example, it’s easier to respond when alone at home than if the child blurts the question out in a setting teeming with strangers. Some parents might find it useful to use the many visual aids, books, and other tools that are available.

As I have discovered doing genealogy and family history research, almost every child at some point wants to know about his or her origins, both specifically in terms of identified people and generally in terms of culture and ethnicity. For the most part, this inquisitiveness fades into the background until the child becomes a parent. That’s when I, and others who dig into the specifics of a family tree or trees, get the phone calls, emails, and facebook messages. That’s when I feel as though I’m doing something useful and helpful.

When I wrote my first genealogy book, I chose as the title “The History and Genealogy of the Maules". Some people suggested the title was redundant. That gave me the opportunity to describe the differences between, and the coherence of, family history and genetics. That parallel will endure for quite some time, perhaps forever, but I will spare readers of this blog the theological side of the question. Perhaps I will share those thoughts some other day.

A Nation’s Inability to Understand the Value of Taxes and User Fees

One of my concerns about the susceptibility of citizens to the promises of tax cuts and tax elimination by the anti-tax, let-the-private-sector-take-charge-of-you crowd is that the propaganda focuses people on a narrow, short-sighted perspective of taxes and user fees. In Liquid Fuels Tax Increases on the Table, I wrote, “Leaving gasoline taxes at their current levels guarantees more bridge collapses, and pothole-caused front-end alignment repair costs that will take more out of motorists’ pockets than the proposed tax increases.” I made the same point in You Get What You Vote For, when I predicted that “front-end alignment spending will skyrocket past the small amounts that would have been paid if the [highway repair tax funding] proposal had been enacted.” In Zap the Tax Zappers, I explained why tax evaders need to face the consequences with these words, “Lest this be thought too rough, think of the person who dies when their vehicle hits a pothole and goes out of control, a pothole not repaired because of revenue shortfalls and spending cuts triggered by the actions of a group of people who refuse to pitch in and fulfill the obligations of citizenship.” In Potholes: Poster Children for Why Tax Increases Save Money, I noted that a study in the United Kingdom determined that the cost of damage caused by potholes exceeds the cost of fixing the potholes, a road hazard that had afflicted one-third of UK motorists. Now comes a report from a national transportation research organization that each driver in this country is paying as much as $800 a year because America’s roads are in bad shape. The cost reflects not only pothole damage but also additional fuel costs from driving on rough roads and fuel wasted sitting in traffic jams.

It boggles my mind that people complain about a $100 annual increase in the gasoline tax but willingly shell out $800 on account of problems that would be mitigated by spending funded by the $100 increase. Surely it isn’t simply a matter of people not understanding that they are paying $800 a year that they could avoid paying. People complain constantly about the need for, and cost of, front-end alignments and the dollars they are paying for fuel. The awful condition of the nation’s transportation infrastructure makes the news every few days, and though some people may be clueless, most are aware of how bad the roads are, because they also complain about that problem.

My guess is that three factors are at work. One is the phenomenon of blind principle. Those who adhere to a principle, even to the point where the principle becomes self-destructive, make bad decisions. Thus, the “no new taxes at all” mindset generates a need for even more taxes than would have been required had a rational, reasonable approach been taken to the question of taxation. Another is the tendency of people to think that they can game the system, and somehow escape the cost of a bad decision by having it fall on everyone else. The notion that it makes more sense to refuse to pay for road improvements because the pothole damage will happen to someone else is the same warped thinking that causes people to think that paying for emergency room health insurance is for others because they don’t have the invincibility of the cost-avoider. The final factor is the ability of the anti-government manipulators to craft the interaction of blind principle with invincibility exceptionalism into sound bites used to deceive people into thinking that it is possible to have excellent roads, safe bridges, and an efficient transportation system without paying for them. The truth of the matter is that the anti-tax, anti-government crowd does want people to pay, but they want the payments to go into the hands of the ultra-wealthy who want to buy or lease, and control, the nation’s transportation system, part of their overall plan to buy and own the nation and its citizens.

This nation needs a tax comprehension wake-up jolt not unlike the one rattling the teeth of drivers and passengers when vehicles hit potholes and other road defects. Unfortunately, it is going to take a monstrously catastrophic event before the light bulbs go on in most brains.

Do Dead People Pay Taxes?

Once a person dies, the person’s obligation to pay taxes ceases. Tax obligations accrued during lifetime must be paid, of course, and that’s an issue for the executor or administrator of the decedent’s estate. And although there are taxes on a decedent’s estate, and taxes on an heir or beneficiary with respect to the privilege of inheriting or receiving something from the decedent’s estate, the dead person does not pay taxes. Dead people actually cannot do much of anything in this life.

This proposition generates a long list of questions, tax and otherwise, when considered in light of the news in this CNN report. In 1986, Donald Miller, an Ohio resident, disappeared after he lost his job. He owed roughly $25,000 in child support. He had a wife and two children. Eight years later, there having been no contact or sighting, he was declared dead, and his social security number was “retired.” In 2005, Miller returned to Ohio, and tried to resume his life. He was unaware that he had been declared dead. When he found out and tried to have the declaration revoked, he was stopped by a law that prohibits courts from making changes to death rulings after three years have elapsed. The judge, not surprisingly, said, “In over 40 years, I’ve never come across a case like this.” If the death ruling were to be reversed, the mother of the two children probably would be required to pay back to the Social Security Administration the benefits paid to her to support the two children, benefits based on the declaration of Miller’s death. It is not known whether Miller will appeal.

When I posted this story on facebook, one of my friends from high school noted that this was the sort of thing that will tie up courts and agencies in knots. Indeed. There are all sorts of questions. Some involve tax, some don’t. They arise in just about every area of the law. If Miller commits a capital crime, can he be put to death if he is already dead? Will he be permitted to marry, considering that marriage licenses aren’t issued to dead people? See Kirsten Rabe Smolensky, Rights of the Dead. Will he be permitted to serve on a jury or testify as a witness? The situation isn’t a new one. When I teach the course in wills and trusts, I pose a question along these lines, namely, what if the wife of a man who disappears subsequently marries and then a few years later dies intestate, at about the same time that the first husband re-appears? Who is the spouse for purposes of the intestacy laws?

Turning to taxes, will Miller be required to file tax returns? Because his social security number is on the list of those assigned to dead people, what does he put on the return? Does he apply for a TIN not based on social security numbers? Will the Social Security Administration issue him a new number? If he gets a job and pays social security taxes, to whose account are they credited? When it is time for him to retire, will he be denied credit for the social security taxes he paid before he disappeared?

One wonders if Miller tries to file a tax return, whether it will be tagged as a highly likely incident of identity theft or fraud. Criminals are know to use the social security numbers of dead people to file returns on which earned income tax credits are claimed for fictitious income.

With all of these problems awaiting him, and already afflicting him, Miller’s life easily can become a living hell. And if he appeals and succeeds, will he be tagged as an undead person? Not only the tax practitioners and lawyers, but also the theologians and philosophers, the politicians and mystics, the doctors and computer engineers, are going to have quite a time with this situation.

So what will YOU do and say if Miller walks into YOUR office and asks, “What do I do about tax returns?” Sit there, stupefied, as though you have seen a ghost?

Tax Review Board Strips City’s Lap Dance Tax Attempt

Back in July, I commented on the City of Philadelphia’s attempt to impose its amusement tax on fees paid for lap dances. In Lap Dance Tax?, I suggested that “If a fee is paid for the lap dance is in addition to the admission fee, then the amusement tax should be computed not only by taking into account admission fees but also by including amounts paid for lap dances, if in fact the lap dance is an amusement.” I concluded that the first issue to be decided is whether a lap dance constitutes amusement. I explained that the attorney representing the establishments providing lap dances clubs argued that the amusement tax applies only to the admission fee, on which the establishments had been paying the amusement tax. I pointed out that the statute applies the taxa to “the admission fee or privilege to attend or engage in any amusement.”

Now comes news that the city’s Tax Review Board unanimously concluded that the amusement tax does not apply to lap dances. After holding six hearings, the Board concluded that the tax is “generally understood” to apply only to the cost of admission to an establishment, and that the city’s rationale for taxing lap dances was “vague and inconsistent.” The Board took note of the fact that the city had audited the establishments in prior years without raising the issue of subjecting lap dance fees to the amusement tax.

The Board accordingly did not reach the issue that I think needs to be decided, which is whether the lap dances constitute amusement. If the tax applies only to admission fees, then why is the statute not phrased in those terms? The language “to attend or engage in” is broader than “to be admitted to,” but rather than focusing on dissecting the language in that manner, the city argued that the lap dance fee was the equivalent of a new admission fee, an argument rejected by the Board. Because the Board concluded that the amusement tax did not apply to lap dances, it did not reach the issue, raised by the establishments, of whether the lap dances are exempt from the tax on the basis of being theatrical performances. The City has yet to decide if it will appeal the Board’s decision.

Tax Language: Simplistic Isn’t Simplification

A reader asked me to examine what the IRS has done in its attempt to reduce section 280A(c) to something easier for taxpayers to understand. Section 280A(c) describes the exceptions that apply to the section 280A(a) restriction on deductions with respect to the use of a dwelling unit used by the taxpayer as a residence.

Specifically, the reader focused on the section 280A(c)(1) exception that applies to certain business use. Section 280A(c)(1) provides:

Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis --

(A) as the principal place of business for any trade or business of the taxpayer,

(B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or

(C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business.

In section 2.02 of Rev. Proc. 2013-13, the IRS described the scope of section 280A(c)(1) as follows:

Section 280A(c)(1) permits a taxpayer to deduct expenses that are allocable to a portion of the dwelling unit that is exclusively used on a regular basis (A) as the taxpayer’s principal place of business for any trade or business, (B) as a place to meet with the taxpayer’s patients, clients, or customers in the normal course of the taxpayer’s trade or business, or (C) in the case of a separate structure that is not attached to the dwelling unit, in connection with the taxpayer’s trade or business.

There are several problems with this attempt to simplify the statutory language. First, section 280A(c)(1) does not allow deductions; it simply is an exception to a provision that disallows deductions that otherwise would be allowable, and thus fitting within section 280A(c)(1) is insufficient unless there is another provision, such as section 162, that allows the deductions in question. Second, the description in the revenue procedure writes the phrase “or dealing” out of the picture; if Congress had intended that the exception be limited to “meeting,” as is suggested by the language in the revenue procedure, it would not have included the words “or dealing with” in the statute.

The IRS also attempted to explain this exception in its FAQs - Simplified Method for Home Office Deduction. The answer to question 8, “What is a qualified business use of a portion of the home for purposes of the simplified method?,” provides “ A qualified business use of a portion of the home generally means: 1) Exclusive and regular use as the main place in which you conduct your business, or meet with customers, clients or patients. . . ” This further simplification adds to the confusion, in addition to continuing the flaw of omitting any reference to “or dealing with.” First, it removes the requirement that the meeting or dealing with customers, clients, or patients occur in “the normal course of [the] trade or business.” Second, it completely omits the “separate structure” exception found in section 280A(c)(1)(C).

Though it is a worthwhile objective to “translate” statutory language into something understandable by most people, a task to which I have devoted myself for decades, simplification ought not take place at the expense of accuracy or precision. There are ways to dissect section 280A(c)(1), or any other provision in a tax statute, that do not simplify by turning to the simplistic. It is this sort of “dumbing down” that generates the misinformation afflicting twenty-first century political discourse. The search for the infantile sound bite creates false impressions that trigger misrepresentations, which in turn breeds a nation teeming with ignorance.

Simplification cannot be achieved by pretending complexity does not exist. Simplification requires elimination of the complexity. The tax law would be simplified, but perhaps not enhanced in fairness terms, by repealing the “separate structure” exception. Pretending that it does not exist so that an explanation can be limited to a handful of words does not change reality, but simply misleads those who read the simplification attempt. At the very least, use of modifiers such as “In general” or “For the most part,” and use of place-holders such as “and other exceptions ” or “and similar situations” alerts the reader or listener that there is more to the rule, exception, or explanation that meets the eye or ear.

Nuance matters. Precision matters. Accuracy matters. Simplification is a noble goal and a productive outcome. Going simplistic is neither noble nor productive.

Searching For What Already Has Been Found, Tax Style

According to a story in Friday’s Philadelphia Inquirer, “New proposals to place tolls on the nation's interstate highways have stirred the debate on how to pay to rebuild the aging network.” The story describes a proposal for tolling interstate highways, with inflation-adjusted rates of 3.5 cents per mile for cars and 14 cents per mile for trucks. The director of transportation policy for the Reason Foundation concludes that these amounts would raise the $983 billion that is required to “reconstruct and expand the interstates.”

The need for the funding isn’t open to much debate. Most of the highways in the interstate system are at the end of their 50-year design lives. The Highway Trust Fund is running out of money. The federal gasoline tax generates insufficient revenue because vehicles are more fuel efficient, fewer vehicle miles are being driven, and Congress refuses to increase the tax to keep pace with inflation.

Toll increases are opposed by the American Trucking Association, which claims that “the public continues to see tolls as an intrusive and inefficient tax.” The problem is that tolls are not taxes. They are user fees. They reflect the amount of use, which in turn reflects the amount of wear-and-tear imposed on the road being used. The American Automobile Association also objects to the proposal, claiming that “all roads should be toll-free.” If all roads are toll-free, how are they to be funded? The current system of using gasoline taxes doesn’t work. According to AAA polling, more than half of motorists object to tolls, and three-quarters object to liquid fuels taxes. Of course the public will side with these organizations, fueled by the cultural sense that someone else should pay. The same polls that show opposition to tolls, taxes, and other funding sources also show huge support for spending money to maintain and improve highways. This sort of inconsistency reflects a deep flaw in the way this country deals with problems.

State transportation officials favor the proposal. So, too, does the Bipartisan Policy Center and the organization Building America’s Future. These enterprises were founded by the sort of moderate, sensible politicians rarely found in legislatures nowadays, people like Howard Baker, Tom Daschle, Bob Dole, George Mitchell, Ed Rendell, Arnold Schwarzenegger, and Michael Bloomberg. In other words, people who know how to get things done rather than how to obstruct progress by demanding that money be spent while objecting to any attempt to raise that money.

The downside to the proposal is that it’s not just the interstate highway system that needs maintenance, repair, and reconstruction. Most of the nation’s highways, tunnels, and bridges are in need of attention. Though some are in acceptable shape, way too many are falling apart, and some have been severely restricted or closed. There is a problem. It needs to be solved. The answer that I put forth, as readers of MauledAgain know, is the mileage-based user fee. I have discussed this approach extensively, , in posts such as Tax Meets Technology on the Road, Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, Is the Mileage-Based Road Fee So Terrible?, Defending the Mileage-Based Road Fee, and Liquid Fuels Tax Increases on the Table. As I wrote in Another Look at Highway Privatization, “The bottom line is that the notion of driving on highways without paying tolls or any sort of sufficient fuels tax is a recipe for the deficiencies afflicting American interstate highways. Because the problem isn’t limited to interstates, but afflicts all sorts of roads, the solution is the mileage-based user fee.”

Congressional Approval Rating Sinks Even Lower

The rest of America seems to be catching up with those of us who, for decades, have found fault with the manner in which the United States Congress operates. Focused more on retaining power, and letting national interests take a back seat, if at all, most legislators demonstrate no concept of fiduciary duty, trust, and commonwealth, to say nothing of common sense, dignity, or truth.

According to a new CNN/ORC poll, described in this story, only 10 percent of Americans approve of the manner in which Congress is meeting its responsibilities. The number disapproving is at 87 percent. These ratings are, respectively, the lowest and highest in the history of the poll. Considering that the poll was taken before the shutdown triggered by exaltation of party politics over the well-being of the nation, it would not be surprising that a poll taken this week would generate even lower approval ratings and higher disapproval ratings.

When pundits claim that the solution is to vote legislators out of office, they ignore the political realities. First, the incumbents amass huge war-chests of money because they have done things that benefit the moneyed interests that pretty much own the Congress. Second, the federal legislators’ state colleagues have gerrymandered legislative districts in ways that make it almost impossible to remove an incumbent. Third, the manner in which primary elections are managed in most states gives the edge to the radicals, who are far less ability or inclination to engage in the requisite negotiations and compromise than do the moderates who for the most part have been sidelined. Is it merely coincidence that the demise of moderate, in-the-middle, politicians corresponds to the demise of the middle class?

When historians study the fall of the Roman Empire and try to pinpoint the cause or the turning point, they offer a variety of suggestions, ranging from environmental and public health issues to the hiring of barbarians as mercenaries. For me, the turning point was the Roman Senate’s turning away from public service to private gain. When a legislature rolls over and its members focus on their individual concerns to the detriment of the public, it does not bode well for the survival of the nation it holds in trust.

Failing to Keep Those Records Can Increase Taxes

Not long ago, in The Aggravation of Tax Paperwork, after describing a case in which the taxpayer’s failure to keep records undermined the taxpayer’s position, I recommended that taxpayers do three things: “Determine what records need to be generated. Take steps to have those records produced. Keep those records.” Now comes another case that illustrates why record keeping is important.

The case, Haskett v. Comr., T.C. Summ. Op. 2013-76, involved a married couple who stepped up to help the wife’s mother. During taxable year 2008, the wife’s mother lived with the taxpayers from January until May, when she moved into a nursing home. She died three months later. The taxpayers produced four invoices from the nursing home addressed to the wife’s mother care of the wife. The total of the invoices was $10,756. During 2008, the wife’s mother received $7,824 in social security benefits, Medicare benefits in unspecified amounts, $740 a month from the U.S. Department of Veterans Affairs paid to the nursing home, and $419 a month from the State of Florida paid to the nursing home. According to the opinion, these two sources provided roughly $3,000 during 2008 to or for the benefit of the wife’s mother. The taxpayers testified that during 2008 they paid the daily living expenses of the wife’s mother, some of her medical expenses, property taxes and insurance on her home, $1,743 per month to the nursing home for four months, and $4,529 toward funeral expenses. The taxpayers’ bank records show payments to the nursing home of $1,743, $60 to a medical aide, and $249 for a walker.

The taxpayers claimed a dependency exemption deduction for the wife’s mother. Though it was agreed that the wife’s mother met the relationship, gross income, and not qualifying child requirements for being a qualified relative under section 151(d), the IRS took the position that the taxpayers did not provide more than one half of her support. Because the funeral expenses do not qualify as support, the Court concluded that the taxpayers had provided $2,052 for the support of the wife’s mother. The Court took into account the amounts corroborated by the bank records but disregarded the testimony because no documentation was provided. For example, although the taxpayers claimed that the social security benefits were used solely to maintain the wife’s mother’s residence and to pay for medical care, rather than being used to cover the nursing home monthly charge and other daily living expenses. The court made it clear that it would not rely on the taxpayers’ testimony alone.

It is not implausible that the taxpayers paid more than $2,052 for the support of the wife’s mother. Certainly during the time when she was living with them, a portion of the costs of maintaining the taxpayers’ residence constituted support of the wife’s mother. But apparently the taxpayers did not offer any evidence of those costs. It is unclear whether the taxpayers had the documentation that would have persuaded the court that the taxpayers had paid property taxes, insurance, medical expenses, and nursing home fees on behalf of the wife’s mother. If it existed, they failed to bring it to court. If it did not exist at the time of trial, either it never existed, which is highly unlikely, or the taxpayers failed to retain it.

Though keeping records adds to some extent to the clutter that afflicts many of us, there is quite a high cost to tossing it away. With the advent of digital technology, records can be maintained in ways that demand far less space than was required when documentation existed only in paper form.

“Tax Us More!” Say Some Wealthy Pennsylvanians

Philadelphia’s public schools are in dire financial straits, to the point where closing schools and showing employees to the door won’t solve the problem. Though a variety of factors have contributed to the situation, one component of the deficit is a reduction in state funding. Those who understand the long-term view of cost benefit analysis realize that the so-called savings being implemented in Harrisburg for the benefit of corporations and wealthy individuals will be more than offset by a serious price ten, twenty, and even thirty years down the road. Why? Because failing to educate the next generation is a bad investment.

Last week, a letter was published by “a group of people in our 20s and 30s with inherited wealth and class privilege” advocating tax reforms for the benefit of the Philadelphia schools. Yes, they did write, “Tax us more!,” pointing out that “Wealthy individuals and corporations are not paying our fair share of taxes.” Whether the vast majority of their peers agree with them remains to be seen.

This group, however, also offered an very interesting argument against the claim that the additional funds available to the wealthy on account of tax cuts can be used for philanthropic purposes to accomplish what governments cannot do on account of revenue shortfalls. They explain that there is a huge difference between education and similar public endeavors being financed with tax money and those same activities being financed with private philanthropic funding. Funding financed with tax dollars is subject to public scrutiny, control, and input, whereas privately-funded alternatives, the existence of which is another cause of the public school system financial distress, contributes to the “root causes of inequality.” As they point out, “It weakens the democratic process.”

Those who signed the letter suggest that when the wealthy give away money, they feel they are making a difference, but by retaining the power to decide what gets funded, they “perpetuate the injustice we think we’re addressing.” Indeed, one of the great risks of the ever-increasing inequality that afflicts this country is that democracy is in danger of being replaced by oligarchy.

Another suggestion from this group deserves deep consideration. “Make policies that require businesses to respect people over profit. Until wealthy people’s means of making money are just, no amount of charitable philanthropy will cancel out the exploitation that initially created the wealth.”

One of their sentences caught my eye. I like it. “Require us to opt in to the public sphere, not choose to pay to set our lives apart.” The days of nobles in castles and peasants on the land, of plantation owners on porches and slaves in the field, of wealthy in gated communities and poor in slums need to be part of history taught as reminders of why democracy matters and how fragile it is. Those days ought not be present-day conditions of society.