Tax Myths: Part II: The IRS Enacted the Internal Revenue Code

It is not uncommon to discover someone’s assertion that the IRS has enacted a particular Internal Revenue Code section or even the entire Code. For example, in this presentation, readers are told that in 1996, “IRS enacts IRC Section 4598” but that simply isn’t true. Congress enacted section 4598. In this commentary, we are told, quite incorrectly, that “Every year, the IRS enacts certain changes to the tax code.” A merchant servicing company claims that “In January 2011, the IRS enacted section 6050W.” It is unquestionable that this myth has multiple variants.

As I explained in The Precision of Tax Language:

The IRS DOES NOT ENACT INTERNAL REVENUE CODE SECTIONS. It is the CONGRESS that enacts Internal Revenue Code sections. That’s very basic stuff. Extremely basic stuff. Understandably, many of the propaganda ministries have a not-so-hidden agenda of trying to persuade people that it’s the IRS that generates the tax laws, as part of the effort to discredit the IRS and taxes generally. But tax professionals know, or at least should know, better.

An interesting twist to this myth is that it’s not so much a tax myth as it is a civics myth. As I also wrote in The Precision of Tax Language, “For some reason, although all Americans over the age of, say, fourteen, should understand that statutes are enacted by legislatures, the teaching of what was once the ubiquitous Civics course has been shelved in most school districts.”

Because I no longer teach the basic federal income tax course, I no longer have the opportunity to evaluate how deeply imbedded this myth is in the minds of law students. Early in the semester I reminded them, or perhaps explained to some of them for the first time, that Congress enacts provisions of the Internal Revenue Code. Shortly thereafter, when administering the first out-of-class graded exercise, I presented to them a situation in which they needed to react to some variant of the “IRS enacts Code sections” myth. The internet was a treasure trove of possibilities to work into the facts of the exercise.

I wonder how many tax law professors use this simple technique, dealing with a rather uncomplicated legal principle, to disconnect their students from myths, to identify which students have been paying attention, and to give students the opportunity to engage in remedial education.

But it’s not just law students who need remedial education. There are tax professionals, members of Congress, entrepreneurs, journalists, and all sorts of other people who need to pause and unburden themselves of their mistaken notion of who gives us tax laws.

Tax Myths: Part I: Introduction

Misperceptions about taxes abound. I’m not referring to the parade of rationalizations from the tax protest movement, though the terrible consequences of being led astray by its misinformation, as I described in For Would-Be Travelers on the Noncompliant Federal Income Tax Protester Path can afflict those who fall prey to tax myths that find traction for reasons other than tax protest.

There are numerous tax myths. Though not infinite, there are more than enough to warrant a short blog series calling attention to the more common myths, and those that are most likely to create problems for significant numbers of taxpayers. They are discussed in no particular order, because alphabetizing them isn’t particularly useful and there is no good way to determine which ones are the most prevalent.

How do tax myths get started? Sometimes a person does not understand what someone else is explaining, orally or in writing. Sometimes someone tries to help someone else but makes a mess of the explanation. Sometimes the myth arises from a well-intentioned attempt to put a complicated concept into simple sentences.

No matter how they start, tax myths, like other misinformation, are difficult to squelch. Once they take root, they spread like poison ivy or bamboo. Cut down in one place, they show up somewhere else. Hopefully, those who read the upcoming posts will dismiss any tax myths to which they subscribe, and find something useful to help them free others of their unfortunate attachment to one or more of these myths.

Look at What No-Taxes Gets Us

It’s a common complaint, tinged with a bit of humor, often heard when summer driving season rolls around. Highway construction slows traffic, and motorists are confronted with the ubiquitous “Temporary Inconvenience, Permanent Improvement” signs. The joke is “Temporary Improvement, Permanent Inconvenience.” Sometimes it seems that way. But reality is no joke.

Almost seven years ago, in Funding the Infrastructure: When Free Isn't Free, I reacted to the interstate bridge collapse in Minnesota by pointing out, “From that tragedy came at least one lesson. This nation had best repair its infrastructure, particularly highways and bridges. The catch? The repairs cost money. Where will the nation get the money it needs for this task?” I deplored the narrow-minded, single-focused opposition to raising funds to pay for preventative repairs. The attempt of the previous Administration’s Transportation Secretary to explain why it made no sense to raise those funds was baffling then and just as moronic today. I predicted that it would be only a matter of time before the infrastructure disrepair adversely affected people’s lives, health, and economic condition, noting “ When enough bridges collapse and highways fall apart, the trucks won't be moving products, such as fuel, food, clothing, and, yes, even military supplies. If you think that won't affect economic growth, you don't understand economics.” I predicted:

The problem with rejecting tax increases until the funding allocation system is fixed is that more people will die, more people will be injured, more property damage will occur, and more transportation bottlenecks will stifle the economy while Congress wiggles and squirms and the Administration and politicians wave slogans in the voters' faces. "No tax increases" sounds great until one realizes it's not unlike the "No more spending" family budget vow that looms in the way of paying for the baby's food. Perhaps "No more unnecessary tax increases" would resonate with those whose ability to analyze economic problems goes beyond three-word sentences.

For people living in the greater metropolitan Philadelphia area, the rising tide of infrastructure collapse is becoming brutally evident.

On June 2, transportation officials closed a bridge on I-495 in Wlimington, Delaware, effectively closing I-495 itself. The detrimental impact on Delaware, its people, and its economy, is difficult to ignore, as explained in reports such as this one. Granted, the problem that necessitated the closure was not so much one of unrepaired deterioration but a matter of unregulated or badly regulated decision making that led to the dumping of dirt that shifted support columns. Eighteen days later, drivers in Montgomery County, Pennsylvania, awoke to the news that yet another bridge over the Perkiomen Creek has been closed because of structural deficiencies. There are six bridges over the Creek, and now two of them are closed, for an indefinite period. These bridges won’t fix themselves for free. There is no guarantee that either of these bridges will re-open before a third or fourth bridge is closed.

There has been, not surprisingly, quite a bit of griping about these and other closures. The resulting traffic jams cost drivers time and money. Along with diversion of business to other areas, as described, for example, in this report, the traffic tie-ups are costing businesses revenue and thus profits. Just as it is foolish, in the long run, to avoid a few dollars of gasoline taxes in the short-term only to be confronted with much higher front-end alignment repair costs, to say nothing of death and injury, so, too, the short-term bonanza of avoiding revenue increases to fund infrastructure are dwarfed by the price America will pay for the past 15 years of catering to the “freedom means everything is free (at least for me)” crowd. And the price will be more than the lost revenue, closed businesses, increased fuel costs, and wasted time. Much more.

In Funding the Infrastructure: When Free Isn't Free, I concluded:

The fact that I, like most others, do not like taxes does not mean I will reject them when they are necessary. It would be better, and easier, to talk about "user fees" because that's what the federal gasoline tax and the proposed mileage-based road fees are. Properly structured, set at a price that reflects the true cost of building and adequately maintaining a highway, bridge, interchange, or other facility, these user fees would not only move the debate from the silly place it now occupies but also would make the prospect of additional bridge collapses and road failures the highly unlikely outcome most people thought was the case.

Any other approach does not bode well. Paying for repairs with borrowed money increases the nation's debt load, making it more likely that the foreclosure will destroy the country. Ignoring the problem and not spending money guarantees death and destruction on a far larger scale. Abandoning the infrastructure simply hastens the demise of the economy and ultimately the country. Unfortunately, the time has come to pay the price for so many bad transportation infrastructure decisions during the past 50 years. The even more unfortunate aspect of the matter is that most of those who made the bad decisions aren't around to see the consequences of their vote-pandering and ignorance or to deal with the consequences. The only good part of this is that voters will have a chance to ensure that those bad decision makers still around are deprived of additional opportunities to make a mess of things.

I wonder how many of the drivers inconvenienced by the closures and how many of the people economically disadvantaged by the closures are among those who voted for the “no tax” Pied Pipers. I wonder how many are beginning to understand that just as someone can look at a repaired bridge or repaved highway and think, “My tax dollars purchased this for me and others,” others can look at a collapsed or closed bridge or potholed highway and think, “This is what no-taxes gets us.” There’s a lesson to be learned. Let’s hope it’s learned in time.

Taxes and Jobs

New Jersey is in a quandary. A budget quandary. It’s not alone, but it presents an interesting example of the sort of choices that must be made when the “taxes and jobs” connection is invoked during policy debates.

The Republican governor, according to this report, has proposed filling the budget gap by taxing electronic cigarettes, increasing almost two dozen fees, and removing the provision that permits businesses in Urban Enterprise Zones to pay sales tax at half the normal rate. A member of his own party, the Senate minority leader, has objected to the proposals, arguing that the tax on electronic cigarettes would put a damper on an industry and cost jobs. Similarly, the sales tax exemption in question was designed to stimulate small businesses, presumably to create jobs.

On the other side, according to another report, New Jersey Democrats have proposed increasing the income tax rates on taxpayers with taxable incomes exceeding $1,000,000. The usual reply is that such a move would destroy jobs because the rich create jobs. Democrats are unhappy with Republican efforts to solve the budget problem by cutting pensions, a compensation-reduction move that also negatively affects jobs.

All that this proves is that the word “jobs” can be tossed around no matter what one wants to argue, and depending on the context, it can invite fear or it can be the bait that entices people to support a bad idea. The bottom line is that every tax affects jobs in two ways. Taxes both encourage the creation of jobs and encourage the elimination of jobs. Because wages are deductible, taxes encourage job creation. Because taxes reduce business cash flow, taxes discourage job creation. Because taxes provide revenue with which governments can hire people to provide necessary public services, taxes encourage job creation. This back-and-forth can continue for quite some time.

The lesson is that using job creation or job destruction as an argument when taxes are being debated is a waste of time. True, it works to fire up some voters and alarm some taxpayers, but as the past decade and a half has shown, most of the arguments presented with respect to the impact of taxes on jobs have turned out to be facetious at best. When arguing about taxes, what needs to be discussed are the purposes to which those taxes would be applied, and the connection between those purposes and the incidence of the tax in question.

Taxes Ought Not Be Hidden

Earlier this week, in a Philadelphia Inquirer op-ed, Nicholas E. Calio, president and CEO of Airlines for America, came out in support of the Transparent Airfares Act, which would allow airlines to specify how much of the cost for an airline ticket reflects taxes. The legislation also is supported by major labor unions and has bipartisan backing in Congress.

Under current law, airlines are required to include taxes and fees in the ticket’s base price. Consequently, unless a consumer has the time and skill to do extensive research, the ticket purchaser has no idea how much of what’s being paid is for taxes. That’s wrong. It’s one thing to disagree on whether there should be a tax or how much it should be, but it’s a totally different thing to hide taxes. When the tax is out in the open, people can see what it is, and then construct their arguments about the tax. If the tax is hidden, discussion of its appropriateness is curtailed or impossible, because it’s rather difficult to argue about something that the would-be debaters don’t know exists.

This is not the only example of hidden taxes. In 1990, as I explained in Objections Raised to Elimination of Legislative Tax Deceit, Congress enacted two phaseouts in order to raise effective tax rates without raising section 1 stated tax rates. I explained:

In this particular instance, Congress wanted to raise taxes without raising tax rates, because it concluded that it could tell Americans that it did not raise taxes by pointing to unchanged tax rates. However, "clever" minds figured out that if deductions, in this case itemized deductions and the deduction for personal and dependency exemptions, were reduced, the effect would be an increase in tax revenues. In other words, Congress "discovered" that it could raise taxes without raising tax rates and thus trumpet a self-serving proclamation that it had not raised taxes. The simple word for this is lying.

I campaigned against these phaseouts from the start. For example, take a look at my letter to the editor, "Author, Don't Phase Out the Phaseouts, Kill Them," 70 Tax Notes 911 (1996). From July of 1996 through July of 1999, I chaired the Phaseout Tax Elimination Project of the American Bar Association's Section of Taxation Committee on Tax Structure and Simplification. The major accomplishment of that Project was the Report of the ABA Tax Section Committee on Tax Structure and Simplification: Phaseout Tax Elimination Project, issued in July 1997. Almost a year later, the elimination proposal found light of day in H.R. 4053, introduced by Mr. Neal, for himself and Mr. Rangel (June 11, 1998), and eventually found its way into enacted legislation through a path too long and tortured to recount in detail. Unfortunately, the current Administration decided to restore these hidden tax rates, an idea I deplored in A Foolish Tax Idea Resurfaces and in Tax Rates and Deduction Caps. This time around, the advocates of tax deception carried the day, and the phaseouts were brought back.

So it ought not surprise anyone who follows this blog that I agree with Nicholas E. Calio. He points out that 17 different taxes and fees are buried in ticket prices. I will admit that I cannot identify or name more than a few of those taxes. As Calio explains, when people purchase other items, the receipts show the base price, and separately state the applicable sales, transfer, or other taxes. There is no reason to treat airline tickets any differently, other than legislative desire to hide from people what they are requiring people to pay in taxes.

I have only one quibble. The proposed legislation would “allow” airlines to disclose the taxes separately from the ticket base price. The legislation ought to “require” airlines to do so. Even though airlines, if allowed to state taxes separately, most likely will do so in order to show that what they are charging is less than what it otherwise would appear to be, it makes sense, just to be cautious, to require the separate statement of taxes. Americans deserve nothing less.

The Contagiousness of Tax Noncompliance

Almost two weeks ago, in Is It Fraud, Negligence, or Simple Tax Hatred?, I wrote about a Republican member of Congress who claimed a property tax homestead exemption to which he was not entitled, was informed of its inappropriateness, made up the difference with a check that bounced, and then the following year again claimed the exemption to which he was not entitled. Perhaps there is something I do not understand, because for me a public official ought to make certain that he or she is in substantial compliance with the tax law. Minor errors will happen, but the egregious matters ought to be avoided. They provide too much issue-deflecting ammunition for one’s electoral opponents.

Now comes a report that Andrew Cuomo, governor of New York, has run into property tax trouble. Cuomo’s celebrity chef girlfriend, Sandra Lee, did some renovations to the house she shares with Cuomo, talked about the work in magazine interviews, but then refused to let the town assessor come into the house to see the work and determine the impact on the house’s assessed value. Making things more complicated is Lee’s failure to obtain the required building permits. Generally, building permits alert assessors that changes are being made to a property, changes that potentially affect the property’s value.

Cuomo, according to another report, claimed that he did not know that Lee had prevented the assessor from entering the house, and that exterior inspections were the only thing required under the law. According to yet another report Cuomo explained, “In terms of local rules, I’m not all that familiar.”

Cuomo’s opponent in the upcoming gubernatorial election charged Cuomo with evading property taxes and attempting to cover up the improvements. A spokesperson for the opponent said, "We are directly suggesting that Andrew Cuomo hid renovations to his home in order to evade the higher property taxes he would have to pay if those renovations had been properly permitted, as is required of other citizens. We are further suggesting that the governor is intentionally barring home access to his town assessor to conceal the amount of work that was done. We are also accusing Governor Cuomo and his government staff of not telling the truth in press reports about the extent of work done in the home.”

The assessor raised the assessment by guessing at what had been done inside the house, presumably relying on the magazine stories about the work. Lee explained that she will review the new assessment. If she does not file a grievance the assessment becomes final.

Unlike the member of Congress who deliberately claimed an exemption, once after being told it was inappropriate, and who paid with a bounced check, Cuomo is not a Republican. He is a Democrat, but one who has made property tax reduction one of his objectives. This is not the way to do that, but it’s unclear to what extent Cuomo is involved in the renovations. The house was purchased by Lee, Lee arranged for and supervised the renovations, Lee discussed the renovations in magazine interviews, Lee barred the assessor from entering the house, and Lee is the one considering whether to file a grievance. Perhaps she is doing this at Cuomo’s behest, or with his guidance and blessing. But perhaps not. Perhaps Cuomo is somewhat like the stereotypical male who doesn’t pay much attention to interior decorating and the remodeling of kitchens. Lee is sufficiently well-off to pay for the renovations without even asking or telling Cuomo, especially as it appears to be her home for all practical purposes.

If Cuomo is in some way wrapped up in an effort to avoid property taxes, then he has caught the same tax hatred virus that has infected so many Republicans. If the situation is entirely of Lee’s doing, then Cuomo is suffering from, and will suffer the consequences of, failure to exercise an abundance of caution, to the extent of advising partners, friends, and associates to conduct their tax transactions with the utmost of care, lest their behavior boomerang back onto the public servant.

Almost Always, in Tax, We Must Get It Right the First Time

A recent case, Baur v. Comr., T.C. Memo 2014-117, demonstrates why, sometimes, the tax law doesn’t provide a reset button. If we don’t get it right the first time, we lose, and we cannot pretend that we have won. Though it is unfortunate that minimizing adverse tax consequences requires careful examination of much of what we say, do, write, and sign, that’s the way it is, and until it changes, we can either scrutinize our transactions at the outset or suffer the consequences of not being permitted to change the facts after the fact.

In Baur, the taxpayer and his wife were divorced after 27 years of marriage. The divorce decree incorporated a marital settlement agreement into which the taxpayer and his wife had entered. Under the agreement, the taxpayer agreed to pay his ex-wife, as unallocated maintenance and child support, $3,750 per month. He also agreed to pay 45% of any and all net bonuses and commissions that he received. The payments were to terminate upon the earlier of the ex-wife’s death, the taxpayer’s death, the ex-wife’s remarriage, or the ex-wife’s cohabitation with an unrelated person on a continuing conjugal basis. The agreement provided that if one of the children is emancipated or one of the other children lives independently or outside the ex-wife’s residence without financial support from the ex-wife, then the unallocated support payment would be modified to $1,800 per month, subject to review upon petition by either party. The agreement also provided that the amounts paid by the taxpayer “are acknowledged to be paid incident to the Judgment for Dissolution of Marriage and in discharge of [taxpayer’s] legal obligation to support [the ex-wife, and that the] sums shall be includable in the gross income of [the ex-wife] and deductible from the gross income of [the taxpayer] within the meaning and intent of Sections 71 and 215 of the United States Internal Revenue Code of 1986, The Tax Reform Acts of 1984 and 1986, as amended, or of any identical or comparable provision of a federal revenue code hereinafter enacted or modified.” The agreement provided that the “parties expressly state that they have freely and voluntarily entered into this Agreement of their own volition, free from any duress or coercion and with full knowledge of each and every provision contained in this Agreement and the consequences thereof.”

During 2010, the taxpayer paid $45,000.02 to his ex-wife as unallocated maintenance and child support, but did not pay any portion of a bonus that he had received. On his 2010 federal income tax return, the taxpayer deducted $41,695 as alimony paid, later explaining that he intended to deduct $45,000 but erroneously deducted the $41,695 amount. In June 2012, the IRS issued a notice of deficiency to the taxpayer, disallowing $26,143 of the deduction and allowing $15,552 of it, though on brief the IRS increased the amount it allowed to $17,981.89. In September 2012, the court that has issued the divorce decree issued an order that stated, “[T]he provision in the Judgment for Dissolution of Marriage concerning unallocated support is intended to be maintenance, for the support of [the ex-wife],” that the payments that had been made “have been and continue to be maintenance to [the ex-wife], that it was the court’s intent that the payments are to be includible in the ex-wife’s gross income and deductible by the taxpayer, that the inclusion of the paragraph concerning emancipation and financial independence of the children was a scrivener order, was not intended to be part of the decree, and should be vitiated nunc pro tunc.

The Tax Court, after setting out the basic rules of section 71(a), explained that section 71(c)(1) excludes from the definition of alimony and separate maintenance payments any part of a payment which the terms of the divorce or separation instrument fix as a sum payable for support of the payor spouse’s children., and that section 71(c)(2) provides that if any amount specified in a divorce or separation instrument is to be reduced upon the occurrence of a contingency specified in the instrument relating to a child, such as attaining a specified age, marrying, dying, leaving school, or a similar contingency. or at a time that can clearly be associated with that kind of contingency, an amount equal to the amount of the reduction is treated as an amount fixed for child support.

Because the paragraph dealing with the emancipation or financial independence of the children falls within section 71(c)(2), the court was required to determine whether that paragraph was operative for tax purposes. The taxpayer argued that the state court’s September order made the paragraph retroactively inapplicable. The Tax Court relied on previous decisions holding that the definition of alimony and separate maintenance payments rests on the text of section 71 and not the intent of the parties to the divorce or the state court, and that state court orders retroactively redesignating payments as alimony and not child support, or vice versa, are disregarded unless the retroactive order corrects a divorce decree that at the time issue mistakenly failed to reflect the intention of the court at the time of the original order.

The Tax Court pointed out that the divorce decree incorporated the marital settlement agreement, and that the agreement was “freely and voluntarily entered into” by the spouses “with full knowledge of each and every provision contained in this Agreement and the consequences thereof.” The agreement unambiguously provided in the paragraph in question for a reduction in payments based upon particular contingencies related to the children. The Tax Court rejected the state court’s statement that the paragraph in question was not intended to be part of the divorce decree and was a scrivener’s error. The Tax Court took note of the fact that the state court issued its September order only after the taxpayer received the notice of deficiency from the IRS, and concluded that inclusion of the paragraph in the marital settlement agreement incorporated into the divorce decree was not an error.

The taxpayer’s deduction was limited to what the IRS allowed. The Tax Court also held that the imposition by the IRS of the section 6662(a) accuracy-related penalty would be sustained if, after the recomputation of the taxpayer’s tax liability to reflect the reduction of the alimony deduction, there is an understatement of the taxpayer’s 2010 tax liability that exceeds the greater of 10 percent of the tax required to be shown or $5,000.

The lesson to be learned is that tax consequences need to analyzed before the fact, and not after the transaction has been completed. Often, I tell my students, “Some clients will give you a chance to help you out by talking with you before they do something, but many others will not. It’s from the latter group that comes the pressure to backdate documents, hide facts, invent facts, and otherwise try to make things appear other than as they are.” It’s easy to forget that the tax law casts a shadow over pretty much everything, and it must be given its attention sooner rather than later.

When the Poor Need Help, Give Tax Dollars to the Rich

It truly is amazing that some of the people who complain about their tax bills appear thrilled with a deal that the state of New Jersey has reached with a Philadelphia professional sports team. For a state whose governor makes a big deal about cutting taxes and cutting spending, the deal in question violates that philosophy and even apart from theoretical concerns, doesn’t make any sense. As reported in this story, the state of New Jersey will grant $82 million in tax credits over a ten-year period to the Philadelphia 76ers, who in turn will build a practice facility in Camden, provided that the team employ at least 250 people in Camden and remain in that city for at least 15 years. Those who don’t consider the tax credits to be a transfer of money to the team owners should change their mind once they understand that the credits can be sold for cash. In other words, New Jersey is writing 10 $8.2 million checks payable to multimillionaires.

Why would the state dish out $82 million to a team owned by multimillionaires rather than cutting taxes on lower and middle income taxpayers or using the funds for something along the lines of feeding the hungry, educating children, or protecting the environment? In theory, the state gets back more by funneling tax dollars to wealthy owners of professional sports teams than it would get back by educating children or feeding the hungry. The theory, of course, falls apart when it meets reality.

According to the report, the state will get back $76.6 million over 35 years through taxes paid on employee wages and that oft-trumpeted “secondary effects” component, predicated on employees spending money in Camden. But what sort of deal is this? Who in their right mind would agree to pay $8.2 million per year for 10 years to get back $2.2 million per year for 35 years? Do the math. Don’t forget present value. It doesn’t add up.

It gets worse. The 250 jobs aren’t new jobs, because the team simply will move its employees from Philadelphia to Camden. That doesn’t mean, however, that they will spend their take-home pay in New Jersey. Philadelphia’s restaurants and night life beckons across a river that can be crossed in a matter of minutes. I discovered this many years ago, when I interviewed at Rutgers Camden School of Law, and was taken to lunch in Philadelphia. The computation generating the $76.6 million return, pitiful as it is, needs to be redone, and it will generate an even lower number. Critics are calling the $76.6 million amount “inflated,” and also point out that the facility won’t do much, if anything, for local residents in one of the poorest cities in the country. There are no plans for the facility to be open to the public. So why should New Jersey taxpayers chip in to build something that has no value to them?

This deal is not the only one through which taxpayer dollars have been channeled to business owners. Close to $4 billion in tax credits has been dished out during the past ten years. And the benefits to the state’s economy? Negligible.

In the meantime, the state faces a budget gap, has failed to fund its pension obligations fully, and is cutting spending on other programs. States with budget deficits ought not be sending money to multimillionaires. Alternative proposals for the site, such as businesses offering entry-level jobs in a city where 42 percent of the residents live below the poverty line, did not gain traction.

Where are the advocates of the “free” market and the so-called superiority of the private sector? Why can’t a team owned by multimillionaires build its own facility without asking taxpayers to foot part of the bill? If the proposal is not financially viable without government input, then the proposal should be shelved. And if it is financially viable without government input, which surely is the case, then the deal is nothing more than a grab by takers who see an opportunity to increase their wealth at the expense of taxpayers.

Eliminating Taxes Cannot Buy Happiness

There is, I think, an addiction that gets little, if any, attention, though some studies, such as the one described in this report, are beginning to find their way into the spotlight. There are wars on drugs, anti-gambling initiatives, anti-smoking incentives, and even remnants of the Prohibition movement funded, nurtured, and empowered. One common thread in all of those efforts is the point that nothing is ever enough, that whatever drug works one day, more of it will be needed on the following day or during the following week. Too often, the spiraling cycle stops only with death.

In comparison to substance abuse, the addictive lure of money and wealth gets far less attention. Whatever rationalization is advanced for their behavior by the folks who simply can’t get enough money – and eliminating taxes is part of the attempt to maximize personal wealth – the bottom line is that even with more money that the typical person would know what to do with, those who are addicted to money never have enough, cannot stop trying to get more, and like those addicted to other things, don’t let concern over harming others get in the way of satisfying their unquenched thirst for money.

Now comes an ORC International poll that asked some interesting questions about the connection between money and happiness. The responses are even more interesting. The questions are relevant to the money addiction question, because most addicts will explain that they pursue what they are pursuing because they want to be happy.

One of the questions asked, “how much money would you and the other people in your household need to make this year in order to consider yourself rich?” Two percent selected as their response, “No amount of money would make me feel rich.” Unlike those who, coming from various economic perspectives, would feel rich with anything from the $1 to $29,999 category (4%) to the $1 million or more category (11%), those two percent would not feel rich even if they had an infinity of money.

The next question asked, “how much money would you and the other people in your household need to make this year in order to be happy?” This time around, six percent concluded that “money can’t buy happiness,” but 85% had some amount of money (ranging from the $1 to $29,999 category to the $1 million or more category) that they concluded would make them happy.

The published survey results do not reveal whether the 2 percent who would not feel rich no matter their annual income are among the 6 percent who think that money cannot buy happiness. My guess is that these are two different groups of people. My guess is that the six percent, having concluded that happiness cannot be purchased, don’t need much to feel rich. Are the two percent who would not feel rich with any amount of money the same two percent who responded that income of $1 million or more would be required to be happy? I think so, but the survey doesn’t answer that question.

The survey results do make clear, however, that the vast majority of Americans would feel rich and be happy with annual income of less than $1 million, and more than half would feel rich and be happy with annual income of less than $100,000, although very few went as low as $50,000. I wonder how many of these people ask the same question I ask, that is, “At some point, what does one do when there’s more money than there’s time to figure out how to use?” Economists call that the dwindling marginal utility of money, that is, at some point, a person doesn’t really need any more money. Unless, of course, they’re addicted. So for a very few, the need for money and wealth is insatiable, not only as a means of purchasing politicians and dominating nations, but also simply for the sake of “having it.” The “My [pile of money] is bigger” syndrome has much to do with it.

Sometimes people can escape. It requires stepping back and looking at money from another perspective, as did Sam Polk, who shared this confession. His suggestion at the end is commendable, but I doubt it will resonate where it needs to be understood. It isn’t just the addict who suffers when addiction runs rampant.

And that’s why reducing taxes to zero, though perhaps bringing thrills to those who want a world without government where they can run free until, of course, they run into someone else who is running free, will do nothing to satisfy those who want every dollar they can grab, and then some. As the Sam Polk explained, “I heard the fury in their voices at the mention of higher taxes.” It matters not to them that the reduction of taxes has, in the long run, not only hurt those not addicted to money but the addicts themselves, for it has fueled their obsession with the notion that there are no limits to wealth, and with their fixation on the fantasy of being “the” person who has it all. The only person who can have it all, and does have it all, is God. And no amount of money can buy God.

Is It Any Wonder People Think the Tax Law is Wacky?

The facts are simple. The taxpayer is hired, the employer pays a salary, and the employer also sets aside some money in a deferred compensation plan for the taxpayer. The salary is included in gross income for federal income tax purposes. The salary, and the present value of the deferred compensation, is subjected to FICA taxation. In this taxpayer’s case, because the salary subject to FICA exceeded the limit on the portion of FICA attributable to social security, the FICA tax in question is only the hospitalization insurance, or Medicare, portion of the tax. The employer goes bankrupt, does not pay the deferred compensation, and will never pay the deferred compensation. The taxpayer sues for a refund of the FICA taxes paid on compensation never received by the taxpayer. The IRS denies the refund claim. The taxpayer sues. The taxpayer loses.

This is the tale of Balestra v. U.S., No. 1:09-cv-00283 (Fed. Cl. 2014). As the court explained, FICA generally applies to wages when they are paid, but there is a special rule in section 3121(v)(2) subjecting the present value of certain deferred compensation payments to FICA tax at the later of when the services are performed or when there is no substantial risk of forfeiture of the rights to the income. The regulations under section 3121(v)(2) provide that in computing the present value of the deferred compensation, no discount is applied “for the probability that payments will not be made (or will be reduced) because of the unfunded status of the plan, the risk associated with any deemed or actual investment of amounts deferred under the plan, the risk that the employer, the trustee, or another party will be unwilling or unable to pay, the possibility of future plan amendments, the possibility of a future change in the law, or similar risks or contingencies.” The regulations do not provide for refunds in the event the deferred compensation is not paid.

The taxpayer argued that the FICA tax should not have been imposed on anything that is not income, and that because the deferred compensation is not income for purposes of the income tax, it is not wages subject to FICA. The taxpayer also argued that accrual accounting provisions should apply to defer taxation when realization of the benefits is doubtful and to provide for an adjustment when amounts that are taxed are not received. Implicitly, the taxpayer argued that failing to take into account the possibility of employer bankruptcy when discounting the future compensation is arbitrary and capricious.

The court pointed out that there is no getting around the language of section 3121(v)(2). It disagreed with the taxpayer that the words “income of every individual” means “wages received,” and with the contention that wages are a subset of income. The court agreed with the IRS that something can be taxed as wages even if it is not gross income, and that to conclude otherwise would make section 3121(v)(2) meaningless. It also pointed to section 3121(a), which provides that “Nothing in the
regulations prescribed for purposes of chapter 24 (relating to income tax withholding) which provides an exclusion from ‘wages’ as used in such chapter shall be construed to require a similar exclusion from ‘wages’ in the regulations prescribed for purposes of this chapter.”

The court rejected the taxpayer’s accrual method of accounting argument, noting that Congress chose to rely on the principles of substantial risk of forfeiture in section 83 rather than accrual concepts developed under common law. The court also pointed out that Congress “knows how to incorporate [accrual method accounting] principles when it desires, and it has not done so here.” The court further explained that in some instances Congress has provided relief when early inclusion causes taxation of an item that is never paid, giving section 166 as an example, and that in other instances Congress has not provided such relief, giving section 83(b) as an example. The court described the many issues that would need to be addressed, and the challenges presented, by a system permitting a refund when the deferred compensation was not paid. It concluded that nothing would have prevented the IRS from setting up such a system, but that the IRS was not required to do so. The court suggested that considering the complexity of setting up a refund system, it could “hardly fault” the decision not to do so.

Finally, the court rejected the taxpayer’s challenge to the lack of an employer bankruptcy discount factor, because nothing in the statute required that the discount process include such a factor. The taxpayer failed, according to the court, to provide any example of the use of such a factor in any other discounting provisions promulgated in regulations or otherwise. Thus, the regulations defining the discounting computation were not unreasonable.

In its opinion, the court shared a wonderful observation. The court wrote, “But these are matters for law makers, not judges --- suboptimal tax laws are still valid tax laws. (Title 26 of the United States Code would be a good deal shorter if the unwise tax laws could be purged by the judiciary.)” It is unfortunate that suboptimal laws of any sort, tax or otherwise, cannot be struck down because of sloppiness, inconsistency, stupidity, or other flaws. It indeed is true that the tax law would be shorter, and indeed less complicated, more efficient, and much fairer, if the judiciary could clean up the mess made by Congress.

Sometimes when someone says to me, after describing a tax rule or hearing a tax rule described, “That makes no sense,” I can find a way to demonstrate that indeed it does make sense. But sometimes, I cannot. And this is one of those times. The reason for the absurd result, being taxed on something never received, is Congressional inadequacy. What a surprise.

Is It Fraud, Negligence, or Simple Tax Hatred?

Reaching into my pile of topics waiting for attention, I pulled out this story from three weeks ago. A homeowner in Indiana computed the property tax on the home by subtracting a homestead exemption from the value before multiplying by the applicable rate. The problem with this approach is that the homestead exemption applies only if the homeowner is living in the house, and in this instance the homeowner had moved out and was renting the property to third parties.

This wasn’t the first time that the homeowner did this. The homeowner moved out in 2011, and after subtracting the homestead exemption, ended up reporting a tax lower than the actual liability. The county treasurer, who collects the tax, told the homeowner, when the homeowner showed up to pay the overdue tax, that the homeowner did not qualify for the homestead exemption. So what did the homeowner do in 2012? The homeowner once again claimed the homestead exemption. And the check that the homeowner wrote for the 2011 taxes that were overdue? It bounced.

So, perhaps one’s reaction is that taxes are complicated and this can happen to anyone. That might be a fair evaluation of the 2011 situation, might be, but it surely isn’t an explanation for the 2012 repeat. The 2012 delinquent tax was paid after a news organization approached the county auditor, who notified the homeowner that inquiries were being made about the situation.

The county treasurer called the homeowner’s actions fraud. The county auditor disagreed, calling it a mistake, and noting that even if someone intentionally claims the homestead exemption when knowing that it is not permitted, the term fraud is not used by the auditor’s office.

So who is this homeowner, about whom a news organization was inquiring? None other than a member of Congress who sits on the House Ways and Means Committee, the congressional committee charged with drafting the nation’s tax laws.

Some tax laws are very complicated. Some parts of complicated tax laws are insanely complex. But there are tax laws deserving of being called simple. The homestead exemption doesn’t require intense analysis, difficult computations, or frustrating lack of authority. When a person subtracts the homestead exemption, is told that it’s not permitted, and does it again, it’s not a question of complexity. There must be some other explanation.

Was it a mistake? Perhaps in 2011. Probably not in 2012. Was it fraud? Maybe. But I think it might be something else.

The member of Congress in question, Republican Representative Todd Young, is affiliated with the Tea Party movement. Is it possible that the claiming of an unpermitted homestead exemption is attributable to hatred of taxes? What sort of role model is this sort of behavior? And though these episodes suggest that Young’s other tax returns, state and federal, ought to be examined, it is easy to predict that if the IRS checks out whether the same sort of approach affects his income tax return, surely we will hear allegations of IRS unfairness, IRS misdeeds, and IRS targeting politicians affiliated with the Tea Party.

It’s Not a New Tax, Yet Again

About a year ago, in It’s Not a New Tax, I explained why legislation to shift collection of a tax is not the equivalent of a new tax. Today, I explain why amendments to an existing tax does not create a new tax.

What caught my attention was a headline indicating that Newt Gingrich was outraged over “DC’s swarm of new taxes.” So I checked out his commentary. Here is what he said, referring to people in the District of Columbia: “If you get your carpet cleaned, you’ll pay a new tax. If you go to the car wash, you’ll pay a new tax. There’s a new tax on bottled water if you have it delivered. Yoga studios and gym memberships now carry a new tax.”

Curious, I did a bit of research and discovered, in this report, that the tax in question has been around for a long time. It’s the District of Columbia sales tax, and the proposal, and that is all it is, would extend the sales tax to include some transactions that for unexplained reasons have been exempt, though in some instances the reason could be simply that the item or service didn’t exist when the sales tax was enacted.

Of course, opposition to taxes, new or otherwise, is a prominent badge on Republican rally jackets. Yet, somewhat to my surprise, as I did a quick check on whether other states tax gym memberships, I discovered that among those that do, and a significant number do, one finds red states. Extending the sales tax to gym memberships, for example, has been proposed in Alabama Gym memberships are taxed in Florida, prompting proposals to suspend the tax for a short time. Gym memberships also are taxed in Missouri.

To be fair, Gingrich didn’t use political party labels in his commentary. Instead, he referred to “incompetent politicians with incompetent bureaucracies,” claiming that they “always need more money.” No one is a fan of incompetence and corruption, but even if those attributes were expunged from legislatures, executives, and agencies, the need for more money would continue to exist for the simple reason that the cost of the goods and services used or provided by government keep increasing. The incompetence claim is just another component of the anti-tax, anti-government campaign being waged by those in the employ of private sector buccaneers who want to run the world with a vote-proof oligarchy. The “new tax” ploy is a worn-out tactic of that campaign.

It’s Not Just Taxes

Bartlett D. Cleland, at the Institute for Policy Innovation, has published commentary in which he asks, “What's Wrong with the Middle Class?,” a question to which he answers, “Uncertainty, Taxes and Low Growth.” That, in fact, is the title of his piece, and in the piece he adds debt as a fourth cause. His proposed solution consists of investment in buildings and heavy equipment, internationally competitive sound tax policies, and telegraphed regulatory forbearance.

Cleland is quite correct that uncertainty gets in the way of economic success. It’s a problem that extends far beyond the business world. How can anyone make plans when everything is changing, often without notice? To some extent, uncertainty cannot be eradicated. Next week’s weather might force delays in shipping materials. A surprise announcement from a corporation can throw the stock market into disarray. But surely uncertainty can be reduced despite the fact that, ultimately, nothing is guaranteed. One of the significant contributors to uncertainty is the gridlock in Congress that leaves people wondering what the tax and other rules will be for a taxable or planning year already underway. As I noted in Tax Politics and Economic Uncertainty, Punting on Taxes and Tax Punting, Tax Uncertainty, and Tax Complexity, playing politics with tax and economic policy is a dangerous game. The solution isn’t mentioned by Cleland. The solution is cleaning up politics, outlawing gerrymandering, and reforming Congress. Until that happens, nothing will happen.

Cleland’s claim that high taxes keep companies from investing ignores the fact that companies have been generating record profits and have been building up immense amounts of cash. Even holding cash is, technically, an investment. The issue isn’t whether these companies are investing, because they are, but what investments are they, and ought they, be making. Taxes are lower than they were in the 1950s, and yet the economy rolled along nicely in the 1950s. Something else is the problem, and uncertainty is one piece of it. Taxes are not, aside from the substantial business tax breaks that are available to corporations, particularly the large ones.

Low growth is not a cause of economic distress. It simply is another name for economic distress or, perhaps to some, a symptom of economic distress. If the economy is fixed, low growth disappears. I’m not disagreeing with Cleland’s conclusion that there is low growth, just simply pointing out that low growth is not a reason for a sluggish economy.

I agree with Cleland that debt is a problem. It’s a big problem. A significant chunk of the debt, however, arises from the decision to cut taxes and increase military spending at the same time. I’ve written about this problem numerous times, explaining, for example, in Peacetime Tax Policy While Waging War = Economic Mess, that the economic mess was generated by factors underling the decline in the value of the dollar, in turn caused by the increase in debt, which “happened because at the same time federal revenues were trimmed through tax cuts, chiefly benefitting the wealthy, federal expenditures soared on account of the war in Iraq.” The tax cuts, we were told, would bring jobs. They did not. It’s time for the nation to file for a refund and to get its money back from the people who took it under false pretenses.

Cleland suggests that part of the solution is investment in buildings and heavy equipment. To some extent, but with some qualifications, he is correct. If by investment in buildings he intends to include rehabilitation of the millions of empty buildings littering the landscape, great. If he contemplates more new buildings while letting the vacant ones crumble and become safety hazards and drug dens, no thank you. Why heavy equipment? Is there something not so good about light equipment? What about infrastructure? Technically, highways, train tracks, bridges, and tunnels are not buildings nor heavy equipment. Does Cleland propose encouraging the purchase of equipment manufactured overseas? If so, how does that help the American economy grow? If Cleland intends to encourage or reward only purchases of American-manufactured equipment, then he’s on the right track. But to move down that track properly, the investment needs to be in jobs, with or without equipment. If corporations would view workers as assets rather than disposable supplies, the economy would flourish. Workers form the heart of the consumer class, and without a consumer class that has wages to spend, the economy sputters.

When it comes to international tax issues, Cleland is correct. Taxation of Americans and American companies abroad, and taxation of foreign corporations and aliens with respect to United States transactions needs to be fixed. It needs to be simplified, it needs to match burden with cost, and it needs to be fair.

Finally, Cleland asks for “telegraphed regulatory forbearance.” That’s not the same as certainty. Instead, it’s a fancy way of saying, “get rid of rules, and turn aside when businesses break the rules that still exist.” If the business world operated as it ought to operate, very few rules will be needed. Businesses must cope with piles of labor law regulations because, absent those regulations, businesses mistreated employees. Businesses must comply with mountains of environmental rules because businesses otherwise would destroy the environment. Had the folks at Enron, Adelphia, and the other poster children of corporate misbehavior, not done what they did, had the Wall Street speculators not pawned off bad mortgages, had the banks not mismanaged credit and use deregulation as a gateway to bad investment decisions, much of the regulatory increase of the past 20 years would have been unnecessary. If business wants fewer rules, business needs to behave more appropriately.

My guess is that Cleland speaks primarily on behalf of the small business, the sole proprietor, the up-and-coming entrepreneur. The problem is that these enterprises are at a disadvantage because the Wall Street operators and the gigantic corporations do not distinguish among small business, consumers, and the middle class when they engage in their oligarchic behavior, another significant contributor to the nation’s economic malaise. During the past year, there are signs that Main Street is beginning to understand that its interests are not being protected by Wall Street. Perhaps as alliances shift, the gridlock in Washington will dissolve, and some progress can be made to fix the problems. Subscribing to the Wall Street mantra, however, is not going to help Main Street or the middle class.

What Does It Mean to Dispose of A Passive Activity?

Section 469(a) prohibits a taxpayer from deducting passive losses in excess of passive income. Under section 469(b), passive losses that cannot be deducted under section 469(a) are carried forward and treated as a deduction in the next taxable year, and to the extent not used, are carried forward indefinitely until used. Section 469(g) provides that passive losses carried forward and not used are generally allowed when the taxpayer “disposes of his entire interest in any passive activity.”

In Herwig v. Comr., T.C. Memo 2014-95, the Tax Court was presented with the question of whether, and when, the taxpayers disposed of their interests in passive activities, which they held through pass-through entities. Specifically, the taxpayers argued that when the creditor foreclosed on the properties associated with the activity, they disposed of the activity. Alternatively, they argued that when, in a later year, the pass-through entities filed returns marked as a final return, the disposition took place in that year. The IRS disagreed.

The Tax Court held that disposition does not necessarily take place when foreclosure occurs, because the debtor has the opportunity to contest the foreclosure, as did the taxpayers in the case. The fact that the pass-through entities owned by the taxpayers continued to list the properties on their tax returns for taxable years after the year in which the foreclosure occurred strengthened the court’s conclusion that the taxpayers had not disposed of the activity. The court also concluded that marking a return as final does not establish that all of the assets listed on the return have been disposed of. It was not until the year after the taxable year for which the allegedly final returns were filed that the taxpayers and the creditor settled the foreclosure dispute. That taxable year was not in front of the court.

Presumably the pass-through entities need to file returns for the taxable year in which the disposition actually occurred, that is, the year in which the foreclosure was settled. By not filing timely returns for that taxable year, the taxpayers may end up back in Tax Court arguing the consequences of filing late returns.

When Tax Cuts Matter More Than Pothole Repair

The danger faced by Americans from the preaching and successes of those who despise taxes and user fees is no less real and surely more extensive than the dangers presented by the menaces conjured up by pretty much the same folks. For me, one of the most visible and easily demonstrated indications of the threat posed by the anti-tax crowd is the proliferation of potholes that remain unfixed because of the lack of funding. I have returned to this theme repeatedly, in posts such as Liquid Fuels Tax Increases on the Table, You Get What You Vote For, Zap the Tax Zappers, Potholes: Poster Children for Why Tax Increases Save Money, When Tax and User Fee Increases are Cheaper, Yet Another Reason Taxes and User Fee Increases Are Cheaper, and When Potholes Meet Privatization. Though it doesn’t fit into a tweet or sound bite, the point is clear. It is far better to pay taxes and user fees to fix potholes than to be saddled with the much higher cost of lost lives, crippling injuries, and property damage caused by potholes.

Now comes a sad story that drives home the risks being foisted on Americans by those determined to eliminate or minimize government. According to this report, seven people were injured when an SUV hit a pothole on Interstate Route 95 near the Philadelphia Airport. I’ve driven that road recently. It is a minefield of deep cavities, many of which are in the portions of the lanes where vehicle tires must traverse. The accident happened at 8 o’clock at night, making it likely that it was even more difficult if not impossible for the driver to see the lurking danger. It is more than likely that the pothole had been there for a while. Why? With limited funds, and therefore limited staffing, the highway departments can do only so much.

The vast majority of Americans do not favor potholes. They want them fixed, and quickly. They are willing to pay to have them fixed. Yet a minority of intransigents dead-set on destroying government, society, and people, have managed to co-opt legislatures, through the evils of gerrymandering and bribery, so that the needs of America take a back seat to the desires of the selfish.

Sadly, I have little hope that this is the last story of this kind that we will read or hear. There will be more, and probably many more. A nation with crumbling infrastructure, unrepaired because of strange fixations on the tax hatred, cannot defend itself or its people. The failure of so-called leaders to protect those to whom fiduciary duties are owed is at the root of the problem, and until those leaders are replaced by people willing to shut down the bribery and disassemble the gerrymandering, the potholes will continue to injure and kill people, destroy property, and make people miserable. The nation gets what the nation votes for.

Windfalls Are Taxed, Even If The Taxpayer Thinks It is Unfair to Do So

It is a basic tax law principle that economic windfalls are taxed. That principle applies to a variety of transactions, and as a recent tax court case, Debough v. Comr., 142 T.C. No. 17 (2014), demonstrates, comes into play when property sold by the taxpayer is reacquired by the taxpayer. In this case, the property in question was the taxpayer’s principal residence and the taxpayer was unable to shelter any of the gain under section 121.

The taxpayer sold his principle residence in 2006 under an installment sale agreement. The taxpayer sold the residence for $1,400,000. Under the sales agreement, the buyers paid $250,000 at the time they entered into the contract, and promised to pay $250,000 on July 12, 2007, along with $25,000 semi-annually until July 11, 2014, when the balance was due.

The taxpayer had purchased the residence for $25,000, and recomputed his adjusted basis after his wife died. Using an adjusted basis of $742,204, he computed gain of $657,796. Before trial, the IRS and taxpayer stipulated that the basis was $779,704.

In 2006, the taxpayer reported gain of $28,178. He did so by excluding $500,000 of gain under section 121, because his wife had died within the past two years, permitting the taxpayer to use the $500,000 limitation rather than the $250,000 limitation. Thus, the taxpayer computed taxable gain of $157,796 ($657,796 minus $500,000), and divided it by $1,400,000 to generate a gross profit ratio of 11.27 percent. Multiplying the $250,000 payment received in 2006 by 11.27 percent generated taxable gain of $28,178. In 2007, the taxpayer received the second $250,000 payment, and again reported $28,178 in taxable gain. In 2008, the taxpayer received only $5,000, and using the 11.27 percent gross profit ratio, reported taxable gain of $564. Thus, the taxpayer reported total taxable gain of $56,920.

The buyers failed to comply with the terms of the contract. The taxpayer reacquired the property in July of 2009, incurring costs of $3,723. The taxpayer treated the reacquisition as full satisfaction of the indebtedness, reporting gain of $97,153. Subsequently, the taxpayer amended the 2009 return and removed the $97,153 gain. Before trial, the IRS and the taxpayer agreed that the taxpayer was obligated to report at least $97,153 of gain. The IRS, however, took the position that the taxpayer ought to have recognized $443,644 of gain. The IRS computed this gain by subtracting the $56,920 reported by the taxpayer from 2006 through 2008 from the $505,000 of cash received by the taxpayer.

Under section 1038(b), a taxpayer who reacquires real property in satisfaction of debt secured by that property is taxed on any money and other property received before the repossession, except to the extent previously reported as income. Section 1038(e) provides that if the taxpayer reacquires property with respect to the sale of which gain was not recognized under section 121, and within one year of the reacquisition the taxpayer resells the property, then section 1038(b) does not apply, and for purposes of section 121, the resale is treated as part of the original sale of the property. The taxpayer and the IRS agreed that section 1038(e) did not apply because the taxpayer did not resell the property within a year.

The taxpayer argued that section 1038(e) does not preclude applying section 121 to the original sale, because “if Congress had intended to completely nullify the section 121 exclusion upon reacquisition of a taxpayer’s principal residence, it would have drafted a provision explicitly so stating.” The IRS argued that the existence of section 1038(e) “confirms that Congress was aware of the interplay between sections 1038 and 121 and drafted section 1038(e) as a limited response thereto; the absence of a ‘more generous provision’ regarding the overlap of sections 1038 and 121 confirms that Congress intended for taxpayers in petitioner’s situation to be treated under the general rules of section 1038.”

The court agreed with the IRS. It held that section 1038 applied to the reacquisition, and that section 121 does not apply to a transaction subject to section 1038 unless it is within section 1038(e). Accordingly, because section 1038(e) did not apply, the taxpayer was subject to section 1038(b) and section 121 did not apply.

The court pointed out that economically, the taxpayer began with property and ended up with property and $505,000. The court cited the Glenshaw Glass decision in support of its conclusion. That case stands for the proposition that windfalls are gross income. The $505,000 was a windfall, as the taxpayer ended up retaining the property. It was not “unfair,” according to the court, to tax the $505,000. Because $56,920 had already been reported as gain, the other $443,644 of gain was taxable in 2009. Presumably, though the court did not mention it, the $3,723 cost of reacquisition is added to the taxpayer’s adjusted basis in the property to be taken into account when the property is resold.

Had the taxpayer resold the property within a year, the taxpayer would have escaped taxation, though how the “unused” portion of the exclusion would have been recovered is unclear. But the taxpayer did not do so, presumably because of adverse market conditions. Perhaps one year is too short of a window in which to resell principal residences under these circumstances. But that one-year period is a creature of the Congress, and cannot be changed by the IRS or by the courts. I don’t expect Congress to change that time period, not only because it isn’t accomplishing much of anything these days in terms of tax law, but also because it isn’t focusing on section 1038 and its interplay with section 121.

No Deduction If Entitled to Reimbursement

It is a long-established principle of federal income tax law that a taxpayer is not permitted to deduct an otherwise deductible expense to the extent that the taxpayer is entitled to reimbursement from the taxpayer’s employer. As I tell my students, it’s usually not the legal principle that stumps the taxpayer. It’s the application of the principle to the facts. This notion is illustrated by the taxpayer’s tale in Richards v. Comr., T.C. Memo 2014-88.

The taxpayer was a loan officer employed by Prospect Mortgage, LLC. Under the employment agreement, she was entitled to an expense reimbursement allowance equal to .0005 of the 1st Point of Revenue for each non-brokered loan. If the expenses exceeded that reimbursement, an employee was permitted to submit itemized receipts and other documentation and would be reimbursed for “any legitimate expense that were necessarily incurred in the performance of Employee’s duties that exceed the reimbursement allowance.”

The taxpayer traveled to New Orleans to attend a marketing event. She alleged she spent approximately $2,100. Prospect reimbursed her immediate manager for the cost of his trip but denied her oral request for reimbursement. She concluded that the denial was on account of her being a “probationary” employee who had not yet made any sales. After this denial, the taxpayer made no additional requests for reimbursement.

The taxpayer testified she paid expenses as a real estate loan officer, including the cost of a home office, equipment, supplies, subscriptions, and advertising. She was not reimbursed for these expenses by Prospect. She claimed these expenses as deductions on her income tax return. The IRS audited the return and denied the deductions.

The Tax Court explained that with respect to the New Orleans trip, the taxpayer did not qualify for reimbursement. However, the court concluded that she was not entitled to deduct the expenses because she failed to substantiate them. As for the other expenses, the court held that the taxpayer failed to establish that she did not have the right to reimbursement, failing, for example, to provide evidence of loan revenues that she generated. The court noted that the taxpayer admitted that she did not seek reimbursement for any expenses other than those for the New Orleans trip. Accordingly, the deduction of the employee business expenses was denied.

Demonstrating whether a taxpayer is or is not entitled to reimbursement requires presentation of all the facts permitting the IRS or a court to compute the extent to which the taxpayer was or would have been reimbursed. Not only should a copy of the employer’s reimbursement policy be provided, and not only should the taxpayer keep receipts and other documentation for the expenses, the taxpayer also needs to produce the other information that permits application of the employer’s reimbursement policy to the specific circumstances of the taxpayer’s outlays. In this case, the taxpayer failed to introduce evidence of her loan revenues, and she failed to supply receipts and other evidence for her expenses.

When the question “is the employee entitled to reimbursement?” is asked, providing the answer is much more a matter of evidentiary detective work than it is knowing a principle of tax law. The principle is about as easily expressed as any tax law rule. It’s the facts and circumstances part of the equation that poses the practical challenges. As I tell my students, being a lawyer is much more than knowing the law or being skilled in writing or oral advocacy. Being a lawyer, or a tax practitioner, requires the skills of a detective.

It Seems So Simple, But It’s Tax

The Treasury Inspector General for Tax Administration has released report, Significant Discrepancies Exist Between Alimony Deductions Claimed by Payers and Income Reported by Recipients. I haven’t decided which reaction bothered me the most. Is it the fact so much misreporting can arise from violating one straight-forward tax principle? Or is it the fact that the IRS has no system in place to detect comprehensively the misreporting?

The tax law principle in question is studied in pretty much every basic federal income tax course. The deduction of an alimony payment by the payor must match the gross income reported by the recipient. Unless the parties agree to treat the payment as neither gross income nor deduction, alimony must be included in the gross income of the recipient and is deductible by the payor.

According to the report, in 2008, alimony deductions were claimed on 577,003 federal income tax returns, amounting to $9.9 billion. The following year, the number of returns decreased to 573,904 but the total alimony deductions increased to $10.4 billion. In 2010, the number of returns on which alimony was deducted declined again, to 567,887, and the total deductions fell to $10 billion. Of the 567,887 tax returns filed in 2010 on which alimony deductions were claimed, 266,190, or 47 percent, were not fully matched by gross income inclusions on corresponding returns. In some instances, the recipient filed returns with no alimony gross income, in other instances, the recipient filed returns with alimony gross income less than the claimed deduction, and in still other instances, the recipient did not file a return even though the amount of the alimony in question would have required a return. The unreported gross income, or overstated deductions, however one wants to characterize the imbalance, exceeded $2.3 billion in 2010 alone.

The report concluded, “Apart from examining a small number of tax returns, the IRS has no processes or procedures to address the alimony reporting compliance gap.” Contributing to the problem not only are inadequate examination selection filters, but also “limited examination resources.” In theory, it ought to be easy to bring the claimed deductions into equivalence with reported gross income. Because the taxpayer identification number of the recipient must be reported by the payor, it should be simple to pull up the recipient’s return, determine whether the amount of the deduction is reported as gross income, and if it isn’t, pull both returns for audit. But it costs money to write the software, and it costs money to pull the returns, and it costs money to conduct the audit. Where does the IRS obtain that money? I suppose some people would argue that it ought to stop auditing corporations, and others would add a proposal to stop auditing tax returns filed by the wealthy.

People are increasingly aware that the IRS has limited resources to track down tax cheats. People are increasingly aware that the chances of getting away with tax fraud are getting better each day. Not that all of the mismatching is due to fraud, as surely some small fraction is attributable to negligence or simple innocent mistake, but the erosion of the tax pillars on which civilization is built promises to swell from a few falling stones to a landslide. After all, if this sort of noncompliance is taking place with respect to one simple tax principle, imagine what is transpiring with respect to all of the other tax rules, including the very many that are so complicated it’s not so easy to detect the noncompliance. It’s only a matter of time before the landslide buries the system.

The Continued Assault on the Tax Foundations of American Civilization

The IRS Oversight Board has released a report, FY 2015 IRS Budget Recommendation Special Report, that examines the seemingly eternal problem of deficient IRS funding. This is not a new issue. I have criticized Congress on numerous occasions during the four decades I have lived in the tax world, including posts such as Another Way to Cut Taxes: Hamstring the IRS and So Cutting IRS Funding Won’t Decrease Revenues? Yeah, OK.

The Oversight Board makes the same points that I, and others who understand the seriousness of the problem, have been making over the years. IRS funding has been cut, even though its responsibilities have increased. IRS funding has been cut even while other agencies have received increases to reverse the impact of the sequestration stunt. IRS funding is unpredictable, making it difficult or impossible for the IRS to establish and maintain programs to counter tax evasion and identity theft. IRS funding has been cut, preventing it from updating its technology and curtailing its ability to train employees and help them keep up with repeated changes in the tax law. IRS funding has been cut, causing reductions in taxpayer service, longer wait times on the IRS telephone assistance lines, increases in waiting times, decreases in Taxpayer Assistance Center activities, and delays in taxpayer correspondence. IRS funding has been cut, causing reductions in the number and scope of taxpayer audits, making it easier for taxpayers to evade taxes.

What person or entity, presented with a guarantee that investing a dollar would generate ten dollars, would reject that offer? There is no question that every dollar invested in the IRS generates ten dollars of revenue, revenue that would be collected without IRS intervention if all citizens were honest, but we don’t live in that sort of world. So why does Congress cut the IRS budget when it ought to be increasing it? The answer is simple. The people who control the Congress want to kill the IRS, eliminate federal tax revenues, eliminate federal spending, and eliminate the federal government. Some want to do this so that states can return to the days when they violated laws and human rights with impunity, daring anyone to put an end to their mistreatment of people other than the controlling elite. Others want to do this so that private corporations, under the control of the elite and free from voter control, can own and run everything for the benefit of the elite at the expense of everyone else.

Why do they succeed in this effort? Because it is easy to paint the IRS as the enemy of the people, and because the IRS has contributed to its bad reputation through mismanagement, though one wonders how much of that mismanagement is the consequence of insufficient funding. Every chance that anti-tax, anti-government advocates get to trash the IRS, even if it means twisting the facts, hiding some facts, or exaggerating facts, they pounce on the opportunity to rip apart the system that holds American civilization in place.

How many members of Congress will read the Oversight Board’s report? Few, if any. How many American citizens and residents will read the report? A handful, most of whom already know what’s in the report and understand the problem. How many people will act, write, speak, vote, or argue differently because of what’s in the report? A few, at most. Does this mean that writing the report was a waste of time? No. When all else fails, and the perpetrators of American decline are finally exposed, their claim that they did not know can be rebutted, easily.

When Potholes Meet Privatization

My use of potholes as the poster child for what is wrong with the public fiscal policy perspectives advanced by the anti-government, anti-tax crowd caught the attention of a long-time reader, who shared with me three reports. Two expanded my understanding of pothole effects, and the most recent highlighted the relationship between potholes and another of my concerns about anti-government, anti-tax policies, the privatization ploy.

The first report explained that potholes cause far more damage than things I had previously mentioned. I had focused on damaged front-end alignments, wrecked tires, and pothole-triggered accidents causing death, injuries, and property damage. The first report adds to the list things such as back injuries caused by hitting potholes, swerving to get around potholes, and slamming on the brakes to avoid potholes. The list of complications reads like a medical school text, but it is unimaginable that anyone would be pleased if they suffered prolapsed inter-vertebral disc, whiplash, or vertebral compression fractures after encountering a pothole. Although some people are more at risk, no one is safe. The second report is the story of how a pothole “saves a man’s life.” An ambulance transporting a man with a life-threatening rapid heartbeat hit a pothole, and the impact knocked the fellow’s heart rate back to normal. Despite the silver lining in the pothole cloud, potholes remain a serious threat to life, limb, and property, notwithstanding the good fortunes of one man. As I explained in Liquid Fuels Tax Increases on the Table, You Get What You Vote For, Zap the Tax Zappers, Potholes: Poster Children for Why Tax Increases Save Money, When Tax and User Fee Increases are Cheaper, and Yet Another Reason Taxes and User Fee Increases Are Cheaper, it is far better to pay taxes and user fees than to be saddled with the much higher cost of lost lives, crippling injuries, and property damage.

The third report corroborated the foolishness of putting pothole repair or any other public service into the hands of those who seek nothing but profits, particularly at others’ expense. In Are Private Tolls More Efficient Than Public Tolls?, When Privatization Fails: Yet Another Example, How Privatization Works: It Fails the Taxpayers and Benefits the Private Sector, and Privatization is Not the Answer to Toll Bridge Problems, I have explained why privatization benefits a select few at the expense of the many.

According to the third report, the town of North Bergen, New Jersey, using municipal employees and equipment, repaired 700 potholes at a cost $50,000 less than what it would have cost using private contractors. The cost to taxpayers of keeping the work in-house was approximately $1,000 per day. Private contractors would have charged the town $3,000 per day. That $2,000 daily difference represents the profits sought by the private sector, a factor that does not exist when public tasks are done publicly. As for the claims by privatization advocates that the private sector is more efficient, there is nothing to indicate that the private contractors would have generated at least a three-fold increase in the number of potholes repaired each day.

From every angle, potholes teach us why taxation is not evil and why privatization of public responsibilities isn’t the panacea its advocates claim that it is. Fortunately, there seems to be a slowly growing understanding among Americans that the smooth ride promised for several decades by the anti-tax, anti-government lobby is, in fact, quite a bumpy and dangerous journey. It’s time to hit the brakes on that failed philosophy before even more damage is done.

If You Don’t Like It, Call It a Name, But Don't Call It a Tax If It's Not a Tax

Most of us do not enjoy sitting at red lights. Most of us do not enjoy shelling out money for something because we would prefer to get it for free. How can we convince other people to join with us in making the world bow down to us? The answer, it seems, is to tag what we don’t like with a name, a name that will rile up others and bring them to join our ranks. The answer, it seems, is to call it a tax.

This is not the first time that I have objected to the twisting of language, specifically the misuse of the word “tax,” to attain a goal better met through genuine intellectual argument and analysis rather than sound-bite name-calling. In The “Rain Tax”?, I explained that a storm management fee imposed by the state of Maryland was not a tax, but a fee to defray the costs of permitting runoff from one’s property. In A Tax or a Ban: Which is Better?, focusing on attempts to improve public health, I noted that “Some health insurance companies provide premium discounts for insureds who regularly exercise. However one wants to characterize the higher premiums paid by those who don't exercise enough, it is not a tax. It isn't imposed by a government.” In Please, It's Not a Tax, I rejected the use of the term “curb tax” to characterize parking fines.

On Monday, in a letter to the editor of the Philadelphia Inquirer, Ken Greiff argued that “Ad pollution on Philadelphia’s municipal architecture is a tax.” He explains that “It’s a tax on our peace of mind and a tax on our consumer autonomy.” It’s not a tax. Greiff makes several good points. Plastering advertisements on public property is, as he puts it, “a defilement,” something similar to “graffiti, litter, blight, or unmaintained schools.” It ruins our “clear vistas.” It is caused by corporations getting more out of the advertising than they are paying the municipality. Many of the ads are for products that, in the long run, aren’t beneficial. It is, as he puts it, “a sign that no one cares, that you have been sold out.”

What is a tax? As I explained in A New Insult: Don't Like It? Call It Taxation:

A tax is a financial imposition levied by a government or government entity, or a non-governmental organization acting on behalf of or under specific revenue-collecting authority of a government or government entity. To be more specific, this definition from Lectric Law Library's Lexicon will help a lot of people doing crossword puzzles: “This term in its most extended sense includes all contributions imposed by the government upon individuals for the service of the state, by whatever name they are called or known, whether by the name of tribute, tithe, talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other name."

So why does Greiff use the word “tax”? I answered that question when I explained my objection to the use of the word “tax” by Michael Silverstein to describe parking fines, in Please, It's Not a Tax:

Why does Silverstein use the tax label for something that is not a tax? The answer is simple. The anti-tax crowd does a knee-jerk reaction to the word, so that announcing that a "curb tax" has been increased will bring out the anti-tax zealots in far greater numbers and with far more intensity than the more mundane, but more truthful, announcement that parking meter charges and parking ticket fines have been increased. I wonder what the anti-tax crowd would do if someone started referring to the cash register total in a grocery store as a grocery tax, the invoice from People Magazine as a reader tax, and so on. Putting the label of tax on a fee or charge that one doesn't like is a very misleading way of making a point.

In the long run, Greiff would do better to call the corporate advertising invasion what he understandably thinks it is, a defilement, a blight, an eyesore, a menace, a threat to health, a sign of greed run amok. In the long run, this focuses the debate on the substance of the issue, rather than tossing the outcome to the consequences of using a word as an intended insult. Calling it a tax lets the advocates of this unattractive phenomenon reply, “It’s not a tax.” Calling it an eyesore focuses the discussion on the essence of the matter.

Yet Another Reason Taxes and User Fee Increases Are Cheaper

One of my many disagreements with anti-tax arguments is that they are so focused on the short-term that they miss the present value of the long-term. My favorite illustration of this point is the infamous pothole. 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 shared news from the United Kingdom that the cost of damage caused by potholes exceeds the tax or user fee necessary to fix the pothole, and news from Los Angeles that potholes cause $750 of damage annually for each vehicle. Finally, in When Tax and User Fee Increases are Cheaper, I tried to drive the point home with these words: “There are times when it makes sense to increase taxes or user fees in order to prevent even higher costs. Given the choice between paying an additional $150 in highway user fees or $750 in pothole repair costs, rational people would choose the former.”

Now comes even more evidence of how fiscal short-sightedness can have long-term disadvantageous consequences, both for public financial health and for individual safety. According to this report, a woman who was severely injured when the tourist bus she was riding hit a pothole, throwing her out of her seat, has settled her claim against the company for $450,000. The pothole responsible for the damage apparently had been unrepaired for a long time. For all I know, it might still be unrepaired. It’s clear that the reason it is unrepaired is that the city of Philadelphia lacks the funds to repair the pothole. Whenever it discusses raising taxes, or increasing transportation-related fees, or whenever someone suggests a reform of motoring fees by the state so that resources can be made available for repairing potholes and doing other maintenance, a howl of protest arises. These protests often are described as advocacy for business enterprise, and far too often, they succeed.

So how did this work out for the company? Whether or not it spoke up for or against tax increases to repair highways, it ended up not paying increased taxes. Instead, it now must shell out almost half a million dollars, surely far more by orders of magnitude than what it would have paid under any of the transportation tax reforms that have been proposed. My guess is that the company will be reimbursed for much, if not all, of the payment by its insurance carrier. But I’m also going to guess that its premiums will go up, and it’s not unlikely that the premium increase also will exceed the additional taxes the company would have paid under the proposed reforms.

So are those anti-tax folks who pretend to be advocating on behalf of business doing much good for businesses? Hardly. And it appears that at least smaller business owners are beginning to realize that what’s good for the huge enterprises is bad for Main Street, which generates most of the new jobs created in this country. So the true job creators are being hurt by those who pretend to be job creators but who are nothing more than greedy people who think they are entitled to own everything.

The anti-tax resistance to appropriate funding of public enterprise is turning out to be one of the biggest Ponzi schemes in history, in which increasing amounts of American wealth fall into the hands of the elite few at the top of the pyramid. It’s going to come crashing down, one way or another. The choice for America is whether it is dismantled safely, brick by brick, or collapses on top of everyone, crushing them into oblivion.

When Subtracting Isn’t the Opposite of Adding

The federal budget deficit exists because expenditures exceed revenue. Revenue increases reduce the deficit. Spending cuts reduce the deficit. Revenue decreases increase the deficit. Spending increases increase the deficit.

So one would expect that those opposed to enlarging the federal budget deficit would favor reducing spending, increasing revenue, or both. One would expect that those who passionately fight for spending cuts are determined to reduce the budget deficit, especially when they advance cutting the federal budget deficit as the primary reason for the spending cuts.

So imagine how confusing it must be to Americans to learn that advocates of federal budget reduction through spending cuts have voted, according to this report, to INCREASE the federal budget deficit by approving revenue decreases. Does it seem a bit hypocritical? Of course it does. Does it make sense? Yes, it does, if one understands that reducing the federal budget deficit is not a serious concern of at least some of those who use deficit reduction as an excuse to cut spending. How does it make sense? Reducing the budget deficit is “important” to the extent it justifies cutting spending that benefits those not favored, but has no meaning when it comes to reducing revenue by dishing out tax breaks to the favored.

Who is favored? Who is not favored? That one is easy. Spending that benefits the economically disadvantaged is cut while tax breaks the help the wealthy are approved. It’s just another piece of the plan to shift wealth to the favored elite and subject the masses to, at best, peasant treatment. At what point will the 99 percent wake up?