The Illogic of Tax Cuts Based on Supply-Side Theory

It amazes me how difficult it is for those sucked into the now-discredited trickle-down, supply-side theory of tax cuts to let go of their deep attachment to a failed approach. Is it simply because this bad theory is used to justify tax cuts for wealthy individuals and businesses and that’s all that matters to them? Is it an inability to understand some basic principles of economics?

On more than a few occasions I have explained why demand-side economics makes much more sense, and why supply-side economics makes no sense. In The Expensing Deduction is an Expensive and Broken Idea, I reacted to a proposal “to deduct all expenditures related to the operation of their business in the United States” with this explanation:

However, it nonetheless amounts to nothing more than a windfall tax break for those businesses, chiefly large enterprises that are buying equipment. Giving a tax deduction for an expenditure that already is being made surely is not an incentive to make that expenditure. The solution to job creation is not supply-side, but demand-side. Some members of Congress understand this. Others don’t, continuing to drop raw eggs on the concrete floor from three stories up, in the belief that the eggs won’t break.

In Does Repealing the Corporate Income Tax Equal More Jobs?, I explained why repealing the corporate income tax does not create jobs. I explained:

There currently are corporations drowning in cash, and they aren’t hiring. Why? A business does not hire unless it needs employees. Acquisition of cash is not a reason to hire. A business hires if it needs employees. It needs employees if it has more work to do than its current employees can handle. Those situations arise when the gross receipts of the business increase. That happens when customers spend more. Customers do not spend more unless they have both resources and either a need or desire for the goods or services being sold by the business. That happens when money is infused into the hands of consumers. In other words, what works is demand-side economics. Eliminating the corporate income tax does not increase demand.

In Tax Perspectives of the Wealthy: Observing the Writing on the Wall, I reacted to a letter written by almost four dozen New York millionaires supporting an increase in New York state income taxes applicable to millionaire income. I wrote:

What motivates these millionaires is the realization that, in the long run, insufficient tax revenue erodes the infrastructure on which the economy rests, an economy that generate the income and wealth held by the millionaire and billionaires. Similarly, as the number of “New Yorkers who are struggling economically” increases, there is a decrease in the amount of purchased goods and services, in turn harming the overall economy. Put simply, though these millionaires did not articulate it in this manner, a healthy state economy, just like the national and global economies, depends on demand-side activity. The death of supply-side, trickle-down economic theory is a slow one, but its final breath draws nearer.

In Kansas Demonstrates Again Why Supply-Side Economics Fails, I reviewed my earlier commentaries on the supply-side disaster in Kansas, and noted. “Apparently belief in failed supply-side economics dies hard.”

So it was disappointing to see that, once again, Tom Giovanetti of the Institute for Policy Innovation has continued to support making business expensing permanent. In his latest essay, written in support of Senator Pat Toomey’s “Accelerate Long-Term Investment Growth Now (ALIGN) Act,” he repeats Tax Foundation claims that this massive tax cut “would increase GDP by $172 billion and add an additional $1 trillion to the nation’s capital stock” and “create an additional 172,000 jobs and grow wages by an additional 0.8 percent.”

Giovanetti writes, “But how, exactly, do tax cuts stimulate economic growth? By encouraging businesses to invest in new plant equipment, research & development, employee training and the like, tax cuts can help make the economy more productive.” In a general sense, that’s true. But generalities don’t answer specific questions. Realizing that, Giovanetti continues, “But it has to be the right kinds of tax cuts—that is, tax cuts that encourage businesses to invest.” He adds, “Tax cuts that are simply designed to ‘put more money in people’s pockets’ may help those individuals, but they don’t necessarily stimulate economic growth because they don’t encourage investment and productivity growth.”

The flaw in this reasoning is easy to discern. First, many businesses already pay little or no taxes, so a tax cut doesn’t generate much in the way of cash flow. But let’s set that problem aside. Second, in what will the businesses invest? Employees? To do what? Equipment? To be used for what? Giovanetti explains, “The idea is simple: If you need a new fleet of trucks, a new warehouse, a new manufacturing plant or a piece of equipment in order to become more productive, the tax code shouldn’t hold you back.” If the business has those needs, it’s because it has revenue arising from demand for its goods and services, so it can make the necessary purchases, which should be deductible over time as depreciation. The idea that the purchase cannot be made without a total, immediate tax write-off suggests either that the business lacks the necessary cash to make the purchase, which in turn suggests that the business doesn’t have enough revenue, and demand, to justify the need for the purchase, or that the business owners see the tax-cut argument as another way to boost cash flow that already is more than sufficient.

The flaw is magnified by the claim that putting “more money in people’s pockets may help those individuals, but they don’t necessarily stimulate economic growth because they don’t encourage investment and productivity growth.” Of course they do. The 99 percent of Americans not drowning in cash and other wealth would not keep the money in their pockets because they have needs. They need to pay for food, for health-care, for transportation, for housing, for clothing, for education, and for everything else needed to survive. And if they’re just getting by, that extra cash inflow will be spent on wants, such as vacations. Or perhaps it will be put in the bank, where it can be loaned out to people who, despite having money “put in their pockets” continue to struggle. When these people begin spending on what they need, and perhaps on what they want, demand will increase, and the businesses supplying those needs, and wants, will experience revenue increases, of such magnitude that they will have plenty of cash, without the need for tax breaks, to purchase equipment and hire workers.

Giovanetti responds by arguing, “Productivity growth is what leads to higher personal income, because rising productivity means creating more output for roughly the same amount of input. The benefits flow to employees, shareholders, and throughout the entire economy.” As has been pointed out by numerous economists, almost all of the 2017 tax cuts and most of the recent productivity growth has flowed into the stock market, into dividends, into stock buy-backs, and into the hands of the shareholders and economic elite. Nearly half of U.S. workers earn less than $30,000 annually. Making expensing permanent isn’t going to jack their salaries up by any meaningful amount, particularly when inflation is taken into account.

It's tough watching people go back for seconds and thirds at the buffet table when other people aren’t even getting a decent meal. Claiming that heaping more food onto the buffet table will solve the problem is clever by too much. In Tax Perspectives of the Wealthy: Observing the Writing on the Wall, I also wrote, “The concern is not that the writing is on the wall for outdated trickle-down economic theory. The concern is that some people are unable to read that writing or to understand what it means or why it is there.” It’s time for Tom Giovanetti to let go of ideas that have enriched the rich, impoverished the poor, and pretty much destroyed the middle class.

Gross Income or Taxable Income: Does It Matter?

Last week, reader Morris contacted me with a question. He pointed me to several stories about an IRS ruling on the taxability of grants funding improvements to the septic systems of some Suffolk County, N.Y., residents. For example, this Newsday article explained that grants from the county used to upgrade septic systems “count as taxable income,” even if the money goes directly to the contractor doing the work. Reader Morris wanted to know if it mattered that the grant was characterized as taxable income rather than gross income.

It does matter. Putting the amount of the grant directly into taxable income would almost certainly increase the taxpayer’s tax liability, as perhaps some otherwise unused credits would be available to offset the increase. Putting the amount of the grant into gross income would increase tax liability for many taxpayers, but others could have enough itemized deductions or standard deduction to offset the income. In other words, it depends on the numbers. The bottom line is that gross income and taxable income are two totally different concepts.

The manner in which the articles were written seemed to suggest that the IRS had ruled that the grants were taxable income. If that were indeed the case, it would be quite a big goof by the IRS. So I tried to find the ruling. What I found were even more articles describing the grants as taxable income. So I contacted reader Morris, told him why I wanted to find the IRS document, but that I could not find it. Reader Morris replied that he had also been looking, with no luck, and had noticed what I had. But he this directed me to this online video with the advice to stop at the 0:58 mark. In the video is a still photo of part of the ruling, and it clearly indicates that the IRS concluded that the grant should be included in gross income.

Later, reader Morris alerted me to this article, which included a screen shot of the top of the ruling. The ruling is PLR-108847-19, issued January 15, 2020, but its full text apparently is not yet online.

What struck me about these articles is the ease with which journalists decided to use “taxable income” in place of “gross income.” Surely it was not to save space. Instead, it reflects either a lack of knowledge concerning the difference between gross income and taxable income, or a disregard of the difference despite knowing the difference exists and matters. My guess is that it is the former, as very few journalists writing about tax are experts in tax. Did multiple journalists independently change “gross income” to “taxable income” as they wrote their stories? Or did one journalist do so, with others then picking up on that journalist’s story?

It’s not just the journalists who don’t get it right. Upset with the substance of the ruling, New York politicians are complaining about the outcome and suggesting or requesting that the IRS revisit the question. According to several articles, including this report, Senator Chuck Schumer described the IRS position as “in effect double taxation” because the “contractors pay taxes on the installation” and the IRS wants the homeowners to “show the grant as part of their personal income.” It’s not double taxation. If the grant had been paid directly to the homeowner, the homeowner would have gross income. When the homeowner then paid the contractor, the contractor would have gross income. That’s not double taxation. It’s no different from a person receiving wages included in gross income, and then paying a lawn care contractor to mow the person’s lawn. The contractor has gross income, and the fact that two people have gross income from the same dollars moving through the economy does not constitute double taxation. Then Schumer asserted, “The IRS should not tax people when they get help from the state or the county to improve their homes. Plain and simple.” Here’s news for the Senator. The determination that the grant constitutes gross income is based on the Internal Revenue Code, which is the product of the Congress. As a matter of policy, perhaps the grant should not be taxed. But that’s a decision for the Congress, of which Senator is a member.

It’s Not a Tax, It’s Not a Fee, It’s a . . . Yeah, OK.

Reader Morris directed my attention to this article and asked me if a surcharge the same thing as a fee. I know that reader Morris has been following my commentaries on the use and misuse of the terms “tax” and “fee,” including Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, Sometimes It Doesn’t Matter If It Is a Fee or a Tax, It’s Not Necessarily a “Tax” Just Because It’s an Economic Charge You Don’t Like, Court of Appeals for the First Circuit: Tolls Are Fees, Not Taxes, The “Tax or Fee” Discussion Gets a New Twist, Is It a Tax? Is It a Fee? Does It Make Sense?, and Can the Proper Use of the Terms “Tax” and “Fee” Be Compelled?

The story from Hawaii is yet another example of how difficult it is for some people to face, accept, and speak the truth. Gene Ward is the Republican minority leader in the Hawaii House. He has a very long history of resisting tax increases and fee increases, no matter the purpose for which the increase is designed. Recently, Ward has become concerned about a statewide police shortage, and supports proposals to recruit and retain police officers. That sort of project requires money. Ward’s response to getting the money is to impose a $5 “surcharge” on all air flights to and from Hawaii. Interestingly, Ward justified the proposal not only because of the police shortage but because of crime increases, even though the most recent information shows that Hawaii’s crime rate has been dropping for the base few years.

Ward is misusing the term “surcharge.” A surcharge is an addition to something. So a surcharge on a tax is an additional tax. A surcharge on a fee is a fee. A “surcharge” on something not a fee or tax, if collected by a government, is a tax or fee depending on the factual circumstances. What is being proposed by Ward is a tax because it’s imposed on flights, and the revenue it generates would be used for something unrelated to flights. If the $5 went into a fund that financed airport maintenance or expansion, improved flight safety, airport health screening, or airport security, then it would be, and should be called, a fee.

It’s obvious that Ward wants to preserve his anti-tax persona while yet proposing a tax. Apparently he thinks calling it a surcharge will deflect opposition from anti-tax groups because the word “tax” doesn’t appear in the proposal. Though there are people who fall for that sort of mischaracterization, most people should be able to identify what it is that Ward is proposing.

So when someone claims that the $% is not a tax, not a fee, but a surcharge, my response is, “Yeah, ok. You can call it a surcharge but it’s a tax. Have the courage to be truthful and to call it what it is.”

Car Purchase Case Delivers Surprise Tax Stunt

Readers of MauledAgain know that when I have the time, I watch television court shows because I never know when a tax issue will pop up. I know I’ve seen only some of the many television court show episodes that have been filmed, and I know that tax rarely is the focus of the dispute, yet I’ve managed to comment on a long list of television court show episodes, including Judge Judy and Tax Law, Judge Judy and Tax Law Part II, TV Judge Gets Tax Observation Correct, The (Tax) Fraud Epidemic, Tax Re-Visits Judge Judy, Foolish Tax Filing Decisions Disclosed to Judge Judy, So Does Anyone Pay Taxes?, Learning About Tax from the Judge. Judy, That Is, Tax Fraud in the People’s Court, More Tax Fraud, This Time in Judge Judy’s Court, You Mean That Tax Refund Isn’t for Me? Really?, Law and Genealogy Meeting In An Interesting Way, How Is This Not Tax Fraud?, A Court Case in Which All of Them Miss The Tax Point, Judge Judy Almost Eliminates the National Debt, Judge Judy Tells Litigant to Contact the IRS, People’s Court: So Who Did the Tax Cheating?, “I’ll Pay You (Back) When I Get My Tax Refund”, Be Careful When Paying Another Person’s Tax Preparation Fee, Gross Income from Dating?, Preparing Someone’s Tax Return Without Permission, When Someone Else Claims You as a Dependent on Their Tax Return and You Disagree, Does Refusal to Provide a Receipt Suggest Tax Fraud Underway?, When Tax Scammers Sue Each Other, One of the Reasons Tax Law Is Complicated, An Easy Tax Issue for Judge Judy, Another Easy Tax Issue for Judge Judy, Yet Another Easy Tax Issue for Judge Judy, Be Careful When Selecting and Dealing with a Tax Return Preparer, Fighting Over a Tax Refund, Another Tax Return Preparer Meets Judge Judy, Judge Judy Identifies Breach of a Tax Return Contract, When Tax Return Preparation Just Isn’t Enough, Fighting Over Tax Dependents When There Is No Evidence, If It’s Not Your Tax Refund, You Cannot Keep the Money, Contracts With Respect to Tax Refunds Should Be In Writing, Admitting to Tax Fraud When Litigating Something Else, When the Tax Software Goes Awry. and How Not to Handle a Tax Refund.

Usually, something in the episode’s description, which I check when I tune into the show, suggest that a tax issue is looming. That wasn’t the case for episode 104 of Hot Bench’s sixth season. The description simply stated, “What begins as an argument over a $3,500 car ends with ex-friends reportedly committing government fraud.” Though various fraud possibilities zipped through my brain, tax wasn’t one of them. So I wasn’t paying close attention until, as by now you can guess, the phrase “tax return” popped up. I tried to figure out how to re-watch the first several minutes of the episode, but was unable to do so. Fortunately, I had paid enough attention to get the gist of the dispute, and because it was not germane to the tax aspect of the episode, I had enough to describe the situation.

The plaintiff and the defendant met at a wedding vow renewal ceremony of mutual friends. At some point, the defendant purchased a car for $3,500, borrowing the money from a bank. The defendant claimed that he bought car for himself, but let the plaintiff use it. The plaintiff claimed she bought the car with the defendant’s help. The plaintiff paid the defendant $500 toward the cost of the car.

Later, when the defendant wanted to use the car one day, the plaintiff borrowed his truck. While driving the truck, the plaintiff was rear-ended, and received $1,000 in damages. She deposited the $1,000 into the defendant’s bank account. The defendant agreed that the plaintiff had made the deposit she described, but claimed that he then transferred $960 back to the plaintiff. The plaintiff denied receiving the $960. Plaintiff sued defendant for $3,500.

The defendant testified that when he was doing his taxes, the plaintiff asked what he was doing, and when he said he was doing his taxes, the plaintiff told him to claim her as a dependent, so that his expected refund would be increased, and to use that increased refund toward payment of what the plaintiff owed the defendant for the car. The plaintiff testified that she did not file a tax return because she was claimed by the defendant on his tax return. In response to a question from the court, asking if he paid other monies to the plaintiff, the defendant testified that he paid for the gas and other costs of the car, and for the utilities and other costs of his house, where the plaintiff had been living. One of the judges suggested perhaps the defendant was justified in thinking that the plaintiff was his dependent, but noted that the issue was not material to the case. The defendant then testified that when he received the refund he planned to set aside some of it for the plaintiff. It turned out that the defendant and the plaintiff used the tax refund for a trip to Las Vegas. That is when the plaintiff told the defendant that she had a boyfriend and was going to move in with him. This news upset the defendant and thus the plaintiff and defendant broke up. The defendant took possession of the car, and the plaintiff sued to get back the $3,500 she claimed she paid for the car.

Ultimately, the case involved the fact question of how much, if anything, the plaintiff had paid the defendant for the car now possessed by the defendant. One of the judges asked the plaintiff if she understood that the additional refund received by the defendant by claiming her as a dependent was, in effect, a reimbursement to the defendant for the monies he spent supporting the plaintiff. The plaintiff replied in the affirmative. The court noted that the refund did not belong to the plaintiff and should not be considered by her to be a payment on the amount owed to the defendant. AS for the $500 that she had been able to prove she transferred to the defendant, the court treated it as a payment equivalent to renting the defendant’s car for the several months she had use of it. So judgment was entered for the defendant.

The tax twist in this case was irrelevant because the plaintiff was unable to prove that the increased tax refund received by the defendant by claiming her as a dependent should be treated by her as a payment for the car. It’s unclear from the facts provided at the trial whether the plaintiff qualified as a dependent of the defendant. If she did, there was no evidence that the increased refund received by the defendant was related to the purchase of the car. If she did not, then she, and perhaps the defendant, engaged in tax fraud. Imagine a borrower who owes money to a lender telling the lender that the way to get repayment of the debt is to claim the borrower as a dependent. If it can be established that the borrower knew that such a claim was unjustified, the risk of fine or prison time becomes very real. And the lender faces similar dire consequences unless the status of dependent exists, which is highly unlikely, or the lender declines the borrower’s foolish stunt.

Definitely a Misleading Tax Headline

The headline, showing up on another page with a link to the article, caught my eye. The headline was a simple one, “Tax season 2020 tips: How to avoid an IRS audit.” The promise that it offers is simply too extreme. It reminds me of the investment commercials that guarantee what can’t be guaranteed, that no matter what happens, the investment will not be at any risk and will provide a positive return in all events. Perhaps the fine print is a bit more accurate.

The article in question offers suggestions that, at best, reduce the chances of being subjected to an IRS audit. They are good suggestions, and it makes sense to follow them. The article suggests it is better to “blend in” than to report amounts that are “outside the norms.” Avoid deductions that “don’t make sense.” Don’t omit amounts that are being reported to the IRS on Forms W-2 or 1099. Be certain to check the math, look again at names, addresses, and social security numbers, confirm that the numbers on Forms W-2 and 1099 match what is on the return, and file on time.

The notion, as suggested by the article, that doing these things permits a taxpayer to “remain under the radar” is wrong. Though few in number, there are returns pulled for audit randomly. If a legitimately claimed deduction of credit is on the IRS watch list for a particular audit season, all the accuracy in the world isn’t going to prevent the return from being audited. More than a few returns that are audited are accepted “as is,” and even a handful of audits bring taxpayers the presumably good news that their tax liability is lower than they had calculated.

White reading the article, I noticed a teaser with a link to another article from the same source. The teaser stated, “IRS AUDITS MORE POOR TAXPAYERS BECAUSE IT'S EASIER, CHEAPER THAN TARGETING THE RICH.” My brain yelled, “Wait! Didn’t the article I was reading tell me that “Although taxpayers with incomes in excess of $1 million are more likely to be audited, there are a number of ways taxpayers across all income levels can decrease their chances of being screened.” Indeed, the headline of the referenced article claimed, “IRS audits more poor taxpayers because it's easier, cheaper than targeting the rich.” So which is it? It’s this sort of “say one thing, say the opposite” approach, unfortunately prevalent throughout society, that reduces the credibility of what’s being stated.

The headline to the article in question ought not be, “Tax season 2020 tips: How to avoid an IRS audit.” It ought to be “Tax season 2020 tips: How to reduce the chances of being audited by the IRS.” The existing headline gets people’s hopes up and puts them at risk of seeing those hopes dashed.

Tax Misinformation So Easily Goes Viral

It was just a bit more than a month ago, in Indeed, In Tax, as in Most Everything Else, Precision Matters, that I wrote about a recent article titled, “Tax Deductions: Is College Tuition Tax Deductible?”. That article featured a serious error, specifically, the following assertion: “However, you can still help yourself with college expenses through other deductions, such as the American Opportunity Tax Credit and the Lifetime Learning Credit.” Reader Morris, who had pointed me in the direction of the article, commented to me, “The AOTC and LLC are tax credits not deductions.” I explained that he would get an A and the writer of the article would not.

Three years ago, in Credit? Deduction? Federal? State? Precision Matters, I wrote:

One of the core principles that students need to learn in a basic federal income tax course is the difference between a deduction and a credit. Deductions are subtracting in computing taxable income. Credits are subtracted in computing tax. A one-dollar credit reduces tax by one dollar. A one-dollar deduction reduces taxable income by one dollar, ignoring limitations, floors, ceilings, and other complexities, and a one-dollar reduction in taxable income reduces tax by something between a penny and perhaps 40 cents. In other words, in most cases, credits are more valuable than deductions.

I suppose it would have been expecting too much to discover that my commentary of a month ago would go viral, making certain that a large segment of the population would understand the difference between credits and deductions. Well, it was.

Several days ago, I came across an AOL article, “9 things you didn't know were tax deductions. One of those “things” is described under the heading, “Lifetime Learning,” as follows: “The tax code offers a number of deductions geared toward college students, but that doesn’t mean those who have already graduated don’t get a tax break as well. The Lifetime Learning credit can provide up to $2,000 per year, taking off 20 percent of the first $10,000 you spend for education after high school in an effort to increase your education. This phases out at higher income levels, but doesn’t discriminate based on age.”

Goodness. The Lifetime Learning credit is not a deduction. It’s a credit. What shocked me is the identity of the author. The article was written by “Turbotax staff.” But in all fairness, perhaps an editor removed “and credits” from the article’s title. I can see that sort of thing happening because of concerns about word limits and space. But would an editor have objected to replacing the word “deductions” in the quoted portion with “credits”? I doubt it, but perhaps that happened.

I wonder if the misinformation in the article that reader Morris shared with me a few weeks ago influenced the article I found a few days ago. Is there some third article that in turn influenced both of these two articles? At what point in the dissemination of information is a error-detecting filter imposed? Without filters, misinformation goes viral, and does at least as much, if not more, damage than biological viruses do. So sad.

A Lesson in Tax Legislation Drafting

Reader Morris alerted me to a story from Fulton, Missouri about a use tax ordinance that was quickly redrafted after ambiguities in its language were brought to the attention of the city council. The ordinance proposes a 2.5 percent tax on purchases made online from out-of-state sellers, but only after $2,000 in purchases have been made. The use tax would change to match any changes in the city’s sales tax.

As originally drafted, the first $200,000 in annual revenue would be used for “public safety.” Apparently the drafters considered that phrase to be an adequate description of police and fire department expenses. But after communicating with other towns that had enacted similar ordinances using that term, city council learned that spending revenue on “public safety” could mean spending the revenue to fix potholes or build bridges.

So council redrafted the ordinance, removing the words “public safety” and inserting the phrase “police and fire capital expenditures.” That phrase is even more narrow than “police and fire department expenses” because the new language would not permit the revenue to be used for operating expenses.

It is wonderful how legislation can be improved when those drafting it reach out to as many people as possible to discover possible pitfalls in the language. In this instance, officials in other towns, the police chief, the head of the firefighters’ union, and others, were given an opportunity to offer suggestions before the proposal went on the ballot. It is so much easier to get things right when planning rather then when litigating after the fact. There’s a lesson here for legislatures that are less welcoming of pre-enactment suggestions.

A Much Bigger Forward-Moving Step for the Mileage-Based Road Fee

There’s news on the mileage-based road fee front. I’ve been explaining, defending, and supporting that fee for more than 15 years, 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, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, Mileage-Based Road Fees: Privatization and Privacy, Is the Mileage-Based Road Fee a Threat to Privacy?, So Who Should Pay for Roads?, Between Theory and Reality is the (Tax) Test, Mileage-Based Road Fee Inching Ahead, Rebutting Arguments Against Mileage-Based Road Fees, On the Mileage-Based Road Fee Highway: Young at (Tax) Heart?, To Test The Mileage-Based Road Fee, There Needs to Be a Test, What Sort of Tax or Fee Will Hawaii Use to Fix Its Highways?, And Now It’s California Facing the Road Funding Tax Issues, If Users Don’t Pay, Who Should?, Taking Responsibility for Funding Highways, Should Tax Increases Reflect Populist Sentiment?, When It Comes to the Mileage-Based Road Fee, Try It, You’ll Like It, Mileage-Based Road Fees: A Positive Trend?, Understanding the Mileage-Based Road Fee, Tax Opposition: A Costly Road to Follow, Progress on the Mileage-Based Road Fee Front?, Mileage-Based Road Fee Enters Illinois Gubernatorial Campaign, Is a User-Fee-Based System Incompatible With Progressive Income Taxation?. Will Private Ownership of Public Necessities Work?, Revenue Problems With A User Fee Solution Crying for Attention, Plans for Mileage-Based Road Fees Continue to Grow, Getting Technical With the Mileage-Based Road Fee, Once Again, Rebutting Arguments Against Mileage-Based Road Fees, Getting to the Mileage-Based Road Fee in Tiny Steps, and Proposal for a Tyre Tax to Replace Fuel Taxes Needs to be Deflated.

Reader Morris alerted me that the Washington State Transportation Commission had just released its Road Usage Charge Assessment Final Report. The report was almost eight years in the making, as it was in 2012 that Washington’s legislature charged the Commission with the task of determining “the feasibility of transitioning from the gas tax to a road user assessment system of paying for transportation.” During some of those years, a voluntary pilot mileage-based road fee system was implemented. Getting information from empirical field tests is commendable, because in this sort of situation it surpasses simple theoretical analysis.

It’s in three volumes, and it makes for quite a bit of reading. However, it’s not so much designed as a cover-to-cover reading opportunity than as a bundle of resources available to any jurisdiction examining the feasibility and benefits of a mileage-based road fee. Much of what is in the report addresses issues I have discussed in my commentaries on the fee, and so I will not repeat those analyses. Instead, I will share the executive summary from the Washington State Transportation Commission:

The Washington State Transportation Commission (WSTC) recommends that the Legislature enact a per-mile road usage charge (RUC) now on a small number of vehicles, including alternative fuel vehicles and state-owned vehicles, as the first step in a 10- to 25-year transition away from gas taxes to fund the state highway system. With the gas tax already declining, adoption of cleaner and alternative fuel vehicles accelerating, and RUC systems and technologies ready for implementation, the State must act now to avoid a predictable transportation funding crisis later. Starting small and transitioning gradually affords the Legislature and state agencies time to make necessary system refinements and policy adjustments to a RUC system in a deliberate, controlled manner.

Whether this happens, as the Commission points out, is up to the legislature.

According to the Commission, “The Federal Highway Administration (FHWA) is also a sponsor and recipient of this report. The information contained in this report takes into account national level interest in road usage charging. Therefore, the intended audience for this final report includes the US Department of Transportation, the US Congress, and other states that are considering road usage charging as a potential transportation revenue alternative to the gas tax.” Let’s hope members of that audience, as well as their staff assistants and other affiliated individuals, take a good look at the report, especially if they have been unaware of the many articles, studies, pilot projects, and commentaries dealing with the mileage-based road fee or, worse, ignoring them. It’s time to acknowledge that it’s time for change.

The Soda Tax “War” and a Pathway to Tax Peace

The soda tax has been the subject of MauledAgain commentaries since 2008, though it has been about a year since I last wrote about it. I have written about the soda tax in posts such as What Sort of Tax?, The Return of the Soda Tax Proposal, Tax As a Hate Crime?, Yes for The Proposed User Fee, No for the Proposed Tax, Philadelphia Soda Tax Proposal Shelved, But Will It Return?, Taxing Symptoms Rather Than Problems, It’s Back! The Philadelphia Soda Tax Proposal Returns, The Broccoli and Brussel Sprouts of Taxation, The Realities of the Soda Tax Policy Debate, Soda Sales Shifting?, Taxes, Consumption, Soda, and Obesity, Is the Soda Tax a Revenue Grab or a Worthwhile Health Benefit?, Philadelphia’s Latest Soda Tax Proposal: Health or Revenue?, What Gets Taxed If the Goal Is Health Improvement?, The Russian Sugar and Fat Tax Proposal: Smarter, More Sensible, or Just a Need for More Revenue, Soda Tax Debate Bubbles Up, Can Mischaracterizing an Undesired Tax Backfire?, The Soda Tax Flaw in Automotive Terms, Taxing the Container Instead of the Sugary Beverage: Looking for Revenue in All the Wrong Places, Bait-and-Switch “Sugary Beverage Tax” Tactics, How Unsweet a Tax, When Tax Is Bizarre: Milk Becomes Soda, Gambling With Tax Revenue, Updating Two Tax Cases, When Tax Revenues Are Better Than Expected But Less Than Required, The Imperfections of the Philadelphia Soda Tax, When Tax Revenues Continue to Be Less Than Required, How Much of a Victory for Philadelphia is Its Soda Tax Win in Commonwealth Court?, Is the Soda Tax and Ice Tax?, Putting Funding Burdens on Those Who Pay the Soda Tax, Imagine a Soda Tax Turned into a Health Tax, Another Weak Defense of the Soda Tax, Unintended Consequences in the Soda Tax World, Was the Philadelphia Soda Tax the Product of Revenge?, Did a Revenge Mistake Alter Tax History?, What’s More Effective? Taxing and Restricting Soda or Educating People About Healthy Lifestyles?, If Sugar Is Bad And Is Going To Be Taxed, Tax Everything That Contains Sugar, Time for a Salt Tax to Replace a Soda Tax?, and Soda Taxes: So It’s Not So Much the Soda, Is It?.

One of the reasons that the soda tax hasn’t been popping up in this blog for the past 12 months is that there has been much less activity and fewer attempts at enacting soda taxes across the nation. One reason, perhaps the principal reason, for this pause is explained in a Philadelphia Inquirer article from a few days ago. According to the article, the prediction that many localities would follow the soda tax legislation enacted in Philadelphia has not come to fruition because the soda industry expanded its fight against the tax from Philadelphia and other local jurisdictions to state legislatures. Despite public health officials predicting that dozens, if not hundreds, of cities and towns would enact soda taxes or some variant of soda taxes, only seven cities have one in place. It has been two years since a city has enacted a soda tax.

What the beverage industry has been doing is to lobby state legislatures to enact legislation prohibiting local governments from enacting soda taxes, and in some instances, other taxes as well. There are a variety of reasons state legislatures are easily persuaded to prohibit local governments from adding new taxes. State legislatures find it convenient to hold taxing power, because it provides leverage with respect to other issues. State legislatures can be cognizant of the “border crossing” issue, as exemplified by the number of Philadelphia residents taking their beverage, and even grocery shopping, across the city’s boundaries into adjacent suburban towns.

Though Philadelphia was not the first city to enact a soda tax – Berkeley, California was – its legislation and experience became a model for subsequent enactments and Philadelphia became the focal point of the dispute between soda tax advocates and the beverage industry. Though six other cities have a soda tax – Seattle, Boulder, Colorado, San Francisco, Oakland, Berkeley, and Albany, California – attempts to enact a soda tax in Santa Fe, New Mexico, was voted own, and Cook County repealed the one it had enacted. Seven proposals pending elsewhere have not been enacted.

Philadelphia’s mayor Jim Kenney, the leading advocate of soda taxes in Philadelphia, reacted to the hiatus in soda tax enactments by expressing this thought: “It’s a shame, because that money could be going to really good purposes in many communities.” It’s interesting that his focus was on the revenue, and not on the alleged public health benefits. Throughout my commentaries, I have stressed that the soda tax was motivated more by the quick and simple increase in revenue that it presents rather than a true concern for public health, because a genuine public health motivation would extend the tax to all sugar-containing foods and beverages, and would not reach, as some of these taxes do, beverages that do not contain sugar.

Opponents of Philadelphia’s soda tax want its repeal, though some seem willing to accept a modification. The biggest complaints are the high rate of the tax and the application of the tax to beverages that are far from unhealthy. The solution, of course, is what I have been proposing all along, that is, to expand the tax to include all items containing sugar and to lower the rate. Properly drafted, the revenue would be unaffected but the rate would be reduced to a level sufficiently low that it would not have the negative collateral effects that the current tax generates.

The so-called “war,” as the article describes the political jockeying, will continue, both in Philadelphia and across the nation. It will end only when the two sides find a way to meet in the middle, as I propose. Unfortunately, the likelihood of that happening is low, because at the moment whatever issue is being considered across the nation, the two sides line up in such a way as to make the middle a dangerous, and thus unattractive, place. Until the zealots on both sides find a way to understand the long-term disadvantages of zealous partisanship, not just on taxes or soda taxes or any issue, “war” and its adverse consequences will continue to thwart human progress.

Proposal for a Tyre Tax to Replace Fuel Taxes Needs to be Deflated

No, it’s not a misspelled word. Though in the United States and Canada we spell those rubber things attached to vehicle wheels as “tire,” in Australia and the United Kingdom, it’s “tyre.” And as referenced in this letter to the editor brought to my attention by reader Morris, Australia shares with the United States, and other places that rely on liquid fuel taxes, the ever-increasing threat of diminished revenue as vehicles become more fuel efficient and switch to energy sources other than gasoline and diesel.

The writer of the letter, Graham Downie of O’Connor, suggests that the solution is to impose a tax on tyres based on a sliding scale reflecting tyre sizes. His rationale is that the larger the tyres and the more the number of tyres, the more damage the vehicle does to the road. I completely disagree. For example, there are a variety of vehicles that use four tires but that weigh anywhere from 1,000 pounds to 10,000 pounds. The difference in tire size, if any, is small. The size and number of tires provides insufficient information. For example, weight is a better indicator of stress put on transportation infrastructure by a vehicle.

Mr. Downie suggests that a tyre tax would “avoid the infrastructure required to collect a tax retrospectively, based on odometer readings, as suggested by Infrastructure Partnerships Australia.” He adds that “It would also avoid the possibility, indeed likelihood, of odometer tampering to avoid the tax.” Though odometer tampering has become increasingly difficult over the years because of new technology, and increases in the criminal penalties for engaging in odometer tampering, the device used in mileage-based road fee programs does not rely on the odometer, and it also identifies the type of road used by the vehicle, something that neither tires nor odometers can do.

Mr. Downie points out that in Australia, a tyre tax would need to be imposed by the Federal government, because otherwise states and territories could and would set varying amounts of tax, tempting vehicle owners to make cross-border purchases. Each state or territory has different policies with respect to highway development, maintenance, and repair, and faces different levels of burden depending on climate, population, and other factors. Thus, each state or territory justifiably would set different tyre tax rates. One advantage of the mileage-based road fee system is that the charge not only can be set to reflect a vehicle’s weight but also the number of miles driven in each state or territory. This issue is not unique to Australia, because its state-Federal structure is not unlike the one in the United States.

I agree with Mr. Downie that whatever system replaces the liquid fuel taxes must take into account the damage caused by vehicles, and thus should adjust for weight. I simply disagree that tyres are a reasonable proxy for that measure. I also agree with Mr. Downie that whatever system is adopted should encourage greater use of railroads for the shipment of heavy goods.

Readers of MauledAgain know that I am a strong supporter of the mileage-based road fee. Anyone interested in my commentaries, in which I have explained, defended, and advocated the mileage-based road fee can take a look at 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, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, Mileage-Based Road Fees: Privatization and Privacy, Is the Mileage-Based Road Fee a Threat to Privacy?, So Who Should Pay for Roads?, Between Theory and Reality is the (Tax) Test, Mileage-Based Road Fee Inching Ahead, Rebutting Arguments Against Mileage-Based Road Fees, On the Mileage-Based Road Fee Highway: Young at (Tax) Heart?, To Test The Mileage-Based Road Fee, There Needs to Be a Test, What Sort of Tax or Fee Will Hawaii Use to Fix Its Highways?, And Now It’s California Facing the Road Funding Tax Issues, If Users Don’t Pay, Who Should?, Taking Responsibility for Funding Highways, Should Tax Increases Reflect Populist Sentiment?, When It Comes to the Mileage-Based Road Fee, Try It, You’ll Like It, Mileage-Based Road Fees: A Positive Trend?, Understanding the Mileage-Based Road Fee, Tax Opposition: A Costly Road to Follow, Progress on the Mileage-Based Road Fee Front?, Mileage-Based Road Fee Enters Illinois Gubernatorial Campaign, Is a User-Fee-Based System Incompatible With Progressive Income Taxation?. Will Private Ownership of Public Necessities Work?, Revenue Problems With A User Fee Solution Crying for Attention, Plans for Mileage-Based Road Fees Continue to Grow, Getting Technical With the Mileage-Based Road Fee, Once Again, Rebutting Arguments Against Mileage-Based Road Fees, and Getting to the Mileage-Based Road Fee in Tiny Steps.

Tax Withholding Comes as a Surprise

A little more than 12 years ago, in Tax Relief = Return to Serfdom?, I shared my thoughts about an arrangement adopted in more than a few states to help people on fixed incomes deal with rising local property taxes. Under this arrangement, localities permit people on fixed incomes, often limited to “senior citizens,” to pay some or all of their real property tax by doing work for the locality. The work can be as simple as sweeping sidewalks or as intricate as programming software for the town. My chief concern with the arrangement is that it opens the door to a restoration of serfdom, a goal of the oligarchy becoming increasing apparent every passing day.

In my commentary, I pointed out that the amount of real property tax treated as paid on account of the services would be treated as wages subject to income taxation. I noted that unless the state changed its tax laws, those taking advantage of these arrangements would incur higher state income taxes. I also noted that federal income taxes would increase for these individuals.

Recently, reader Morris pointed me in the direction of a report from the Daily News of Newburyport. According to the report, nine senior citizens who worked for the town of West Newbury in Massachusetts “were surprised to learn they would have to pay federal withholding taxes on their earnings.” Although the Massachusetts Department of Revenue concluded that the amount of the property tax treated as paid on account of the work would not be treated as income or wages for state income tax purposes, the amount is treated as wage income for federal income tax purposes and for social security tax purposes.

The town, unfortunately, had not been withholding any tax on the amounts in question until this past June, when several township officials learned at a seminar that withholding of federal income tax and social security tax was required. They did not tell those participating in the work-to-reduce-property-tax arrangement that the town would begin withholding the taxes.

Clearly, in the absence of legislation to the contrary, as enacted, for example, by Massachusetts, the amount of taxes deemed paid on account of the work constitutes gross income. The logic is simple. The locality is, in effect, paying wages to the individuals participating in the arrangement, and then the individuals are paying their real property tax. The fact that the money goes directly from one town account to another and doesn’t pass through the hands of the individuals is irrelevant. Over the decades, there have been cases involving employers paying debts of employees directly to the creditors, and the courts have consistently held that the amount in question constitutes wages included in gross income even though the money goes directly from the employer to the creditor and does not pass through the hands of the employee. The best example is the withholding of taxes by an employer, paid directly by the employer to the taxing authority on behalf of the employee. The employee’s taxable wages are not reduced by the amount of the withheld taxes.

These principles are addressed early in a basic federal income tax course. The outcome in West Newbury is not a surprise to tax professionals or students who are or have been enrolled in a basic tax course. Understandably, when these principles were applied to the individuals participating I the work-to-reduce-property-tax arrangement without advance notice, it must have been quite a surprise.

Getting to the Mileage-Based Road Fee in Tiny Steps

Anyone who reads MauledAgain knows that I am a strong advocate for the mileage-based road fee, recognizing the need to find a replacement for the ever-increasingly inefficient and ineffective liquid fuel tax, reflecting the continuing growth in the use of vehicles operating without liquid fuels. I have written about this topic for many years, 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, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, Mileage-Based Road Fees: Privatization and Privacy, Is the Mileage-Based Road Fee a Threat to Privacy?, So Who Should Pay for Roads?, Between Theory and Reality is the (Tax) Test, Mileage-Based Road Fee Inching Ahead, Rebutting Arguments Against Mileage-Based Road Fees, On the Mileage-Based Road Fee Highway: Young at (Tax) Heart?, To Test The Mileage-Based Road Fee, There Needs to Be a Test, What Sort of Tax or Fee Will Hawaii Use to Fix Its Highways?, And Now It’s California Facing the Road Funding Tax Issues, If Users Don’t Pay, Who Should?, Taking Responsibility for Funding Highways, Should Tax Increases Reflect Populist Sentiment?, When It Comes to the Mileage-Based Road Fee, Try It, You’ll Like It, Mileage-Based Road Fees: A Positive Trend?, Understanding the Mileage-Based Road Fee, Tax Opposition: A Costly Road to Follow, Progress on the Mileage-Based Road Fee Front?, Mileage-Based Road Fee Enters Illinois Gubernatorial Campaign, Is a User-Fee-Based System Incompatible With Progressive Income Taxation?. Will Private Ownership of Public Necessities Work?, Revenue Problems With A User Fee Solution Crying for Attention, Plans for Mileage-Based Road Fees Continue to Grow, Getting Technical With the Mileage-Based Road Fee, and Once Again, Rebutting Arguments Against Mileage-Based Road Fees. In these posts, I have explained, defended, and advocated for the mileage-based road fee. Occasionally, I share good news, such as Oregon’s adoption of a system reflecting a mileage-based road fee. Now, thanks to a heads-up from reader Morris, I have learned that another state has taken a big step in the correct direction.

According to this report, owners of electric and hybrid vehicles registered in Utah will have the option to pay a “road user charge” based on miles driven rather than a fixed fee that otherwise must be paid by owners of those vehicles. The mileage is recorded by a device that plugs into the OBD port. A few months ago, I used one in a pilot program in the area where I live and it was very easy to install and activate the device.

A spokesperson for the Utah Department of Transportation explained, “We’re falling behind right now, and so this is preparing for the future. We believe in the next 15 to 20 years, the gas tax is losing its connection from the amount of people who use the roads. That’s a key principle we believe in Utah — we believe people should pay for what they use, and people will make better decisions if they understand the impacts of their use. We have to fund the roads somehow. We’re all for clean air and clean vehicles — we think that’s definitely the future for us ... but if I drive 10 miles I should pay for 10 miles.” Legislatures in the other 48 states and the District of Columbia need to make similar, timely progress. Too often, legislatures are way behind the times. Playing catch-up ultimately takes a toll. See what I did there?

Utah has set the mileage-based road fee so that it will not exceed the alternative fixed fee that otherwise must be paid. Thus, no one loses by opting into the program, and the possibility of saving money looms large for many vehicle owners. Why is Utah setting it up this way? The spokesperson explained, “We understand there’s a lot for us to learn, so we want people to sign up and experience it. So we wanted to make sure if they choose to participate, it’s not going to cost more money if they just pay the flat fee.”

In 2019, there were almost 2.6 million vehicles registered in Utah. About 52,000 were electric or hybrid (or other alternative fuel) vehicles. From 2015 to 2019, there was a 49 percent increase in registration of electric vehicles and a 14 percent increase in registration of hybrid vehicles. The future is obvious to those who look, and so is the need for states, and the federal government, to wean themselves off of liquid fuel taxes.

Kudos to Utah on this small step. Hopefully it is not the last but the first of many, throughout the nation. And also hopefully, those future steps happen sooner than later. Time is running out for finding ways to fund highway, bridge, and tunnel maintenance, repair, and improvement.

Killed Over a Tax Refund

As I have told students in my basic federal income tax course over the years, tax is everywhere. It pops up in every area of the law and pretty much every area of life. Unfortunately, it now appears to have popped up as an incentive to murder. Specifically, as reported in this story, brought to my attention by reader Morris, a tax refund prompted a killing.

The story, from back in July of last year, is not the first chapter in the series of events. The story describes the sentencing of two people who entered guilty pleas in connection with the murder, but it contains enough information to relate things from the beginning. A third person lost a plea opportunity because he fired his attorney and will go to trial.

According to the story, Laya Whitley worked with Keiauna Davis at a Dollar General store. Somehome, Whitley learned that Davis had received a $3,000 tax refund. Whitley arranged for Dane Taylor to rob Davis when Davis left work later that day. When Davis left work, and was walking along the road, a car driven by Kaijin Scott stopped in front of Davis, and Taylor emerged from the passenger side and knocked Davis to the ground. Unbeknownst to the perpetrators, a video camera recorded the events. Davis refused to surrender her purse, so Taylor shot and killed her. Whitley and Taylor were the two who offered guilty pleas. Whitley was sentenced to 20 to 50 years in prison, and Taylor to 30 to 60 years in prison.

It is unclear how Whitley learned about the tax refund received by Davis. Did Davis say something? Brag about the amount? Did Whitley overhear Davis talking on the phone with a friend or relative or even her tax return preparer? It also is unclear whether she was carrying cash, a debit card, or a check. It even is unclear whether she had the refund with her or Whitley simply assumed that she did.

There are two lessons to be learned. The first one is obvious. Don’t rob. Don’t steal. Don’t, as the judge in the case put it, love money more than people. The second one should be obvious but might not be, at least for some people. Don’t discuss tax or financial information in public. Don’t talk about those things where others can overhear. Don’t brag about tax refunds, lottery winnings, casino jackpots, or other things that are tempting to those whose need for, or desire for, money exceeds their ability to behave appropriately. Be careful.

Tax Breaks Done Correctly in Indiana

Readers of MauledAgain know that I am opposed to tax breaks that are based on promises of future action, and support tax breaks that are made available only after the action desired by the legislature has occurred. It’s too easy to promise something, take the tax break, break the promise, and then laugh all the way to the offshore bank. It makes much more sense to require delivery on the promise.

I’ve described my proposal in a series of posts, including How To Use Tax Breaks to Properly Stimulate an Economy, How To Use the Tax Law to Create Jobs and Raise Wages, Yet Another Reason For “First the Jobs, Then the Tax Break”, When Will “First the Jobs, Then the Tax Break” Supersede the Empty Promises?, No Tax Break Until Taxpayer Promises Are Fulfilled, When Job Creation Promises Justifying Tax Breaks Are Broken, Why the Job Cuts By Tax Cut Recipients?, and Broken Tax Promises Should No Longer Be Accepted.

My focus has primarily been on the broken promises of job creation made by businesses and wealthy individuals who end up failing to create jobs, and worse, in some instances, eliminating jobs. What is the proposal? I described it in Broken Tax Promises Should No Longer Be Accepted:

It’s this easy to understand:

Employers could be allowed to deduct not only compensation paid, but, in addition, a percentage, perhaps 25 or 30 percent, of the excess of the compensation paid during the taxable year and the compensation paid during the previous taxable year, perhaps leaving out of the computation increases in compensation paid to individuals earning more than a specific amount, such as $150,000, $200,000 or some similar figure in that range. This incentive would, or at least should, encourage employers to raise the pay of their low compensation employees rather than CEOs and other highly compensated employees. As for employers that would have no use for these deductions, encouraging failing businesses or successful businesses that use tax shelters to mask taxable income, they ought not be encouraged to continue on those paths. In this way, tax breaks would be tied to performance. People who don’t create jobs ought not get to share in tax breaks held out as job-creation inducements.

What motivated my proposal? As I explained in How To Use Tax Breaks to Properly Stimulate an Economy:

The worst way to use the tax law to encourage behavior is to hand out tax breaks without requiring anything in return other than promises. Promises too often are made to be broken. This is why the legislation enacted in December is proving to be a long-term failure. It came with promises of increased pay and increased production, but it did nothing to require those things. So a few bonus crumbs of several hundred dollars were handed to a small fraction of the work force, an even smaller group picked up a $1,000 bonus, and tens of thousands of individuals lost their jobs.

How difficult is it to understand the proposal? I answered that in Yet Another Reason For “First the Jobs, Then the Tax Break”:

it’s time to stop with the “here’s a tax break, now create the jobs you promised and if you don’t, oh well, see you at my next campaign fund raiser” approach to tax legislation, and to implement the “create jobs, get a short-term tax break, don’t cut those jobs next year, get another short-term tax break” style of holding tax break recipients’ feet to the fire. When a child says, “Give me a cookie and I’ll behave properly,” sensible parents reply, “Show me you can behave properly and then you’ll get a cookie.” It’s that simple, really.

I noted that my proposal would probably not get much attention “[b]ecause it is highly unlikely that members of Congress read this blog.” But perhaps someone in Indiana did. Why do I think that? Reader Morris directed my attention to this report from WISH-TV in Indianapolis. According to the story, SoChatti, a chocolate manufacturer, plans to open a food production and research center in Indianapolis, expecting to create 71 jobs by the end of 2023. The Indiana Economic Development Corporation, which administers tax credits under the state Community Revitalization Enhancement District Tax Credit Program, will grant SoChatti up to $500,000 in tax credits, provided SoChatti actually hires workers. Presumably those job positions would need to remain in place for some reasonable period of time.

Kudos to the folks in Indiana who arranged for these conditional tax credits. Whether or not they got the idea from reading MauledAgain, and I doubt it though it is possible, they are demonstrating to other legislatures how tax breaks should be handled. Simply tossing money at one’s friends, as has happened too often at the federal, state, and local levels of government, is simply and totally unacceptable. Here’s hoping what has happened in Indiana goes viral, and here’s even hoping that the tax break giveaways based on broken promises are repealed and the tax breaks repaid to the governments that granted them.

Can the Proper Use of the Terms “Tax” and “Fee” Be Compelled?

It is not unusual for people to misuse the terms “tax” and “fee,” sometimes inadvertently, sometimes deliberately. Usually, when something is wrongly called a “tax,” it is because the person misusing the term wants to appeal to people’s limbic systems because the word “tax” is so emotionally charged for some people. I have written about the confusion created by misuse of the terms in posts such as Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, Sometimes It Doesn’t Matter If It Is a Fee or a Tax, It’s Not Necessarily a “Tax” Just Because It’s an Economic Charge You Don’t Like, Court of Appeals for the First Circuit: Tolls Are Fees, Not Taxes, The “Tax or Fee” Discussion Gets a New Twist, and Is It a Tax? Is It a Fee? Does It Make Sense?.

A reader reacted by letting me know that a few days ago, while driving home in Colorado, he heard a state legislator announce that he wants to “push through a bill that would stop all his colleagues from using the words [tax and fee] incorrectly.” My attempts to find this bill, assuming it has been introduced and isn’t still something being drafted, have been futile. But even without seeing the language, it is possible to consider the idea.

My first reaction was one of curiosity. Is the effort an attempt to compel legislators to use the terms correctly when drafting and enacting legislation? If so, then the legislator in question might be onto something. But does a legislature need legislation to deal with these issues or can it be handled with a rule or a style guide for staff who do the drafting of statutory language? Either way, the legislation or rule would need to contain definitions and guidance with respect to use of the terms. On the other hand, if the effort is an attempt to control the speech of legislators beyond the use of language in legislation, other concerns arise.

My second reaction considered the possibility that the proposal was an attempt to deal with use of the two terms beyond legislative drafting issues. In that case, there surely is a First Amendment problem. Legislators, like all Americans, have a right to use language incorrectly without interference from a government. Of course, the rest of us have a right to expose the error, explain the error, and attempt to educate the person misusing language. As absurd as it might seem that misuse of a term is protected, it is helpful because it lets the rest of us know that the person misusing the term not only lacks understanding about the proper terminology but probably also lacks understanding about the deeper substantive issues involved.

My third reaction focused on enforcement. Enforcing a statute or rule focused on legislative drafting ought not be too challenging. Someone simply is given the authority to edit the language. But enforcing a statute compelling proper use of the terms “tax” and “fee” beyond the legislative chamber, such as in campaign speeches or editorials written by legislators for their hometown papers, is a daunting task. What would be the penalty? Certainly not banishment from the legislature? Jail time? A fine? Some sort of public denunciation? I suppose it would be helpful to see the text of the proposed bill, if it exists, to see what the legislator proposing this idea has in mind.

If anything more on this idea develops and I learn about it, I’m confident I will have more reactions. In the meantime, it gives us something to ponder.

Apparently It’s a Fee But It Still Doesn’t Make Sense

On Monday, in Is It a Tax? Is It a Fee? Does It Make Sense?, I wrote about a proposal in Milwaukee, Wisconsin, to require third-party delivery services to collect a 60-cents-per-order charge imposed on their customers, and to use the revenue to fund street maintenance and public transportation in Milwaukee, Wisconsin. The question was whether it was a tax or a fee, a question that arose because the headline called it a tax, the subheadline referred to it as a fee, and both terms were used in the article.

I noted that answering the question, is it a tax or fee, was impossible without access to the actual language of the proposal. I confessed that I could not find the language, and did not see a link in the story to the proposal. Somehow reader Morris dug up the language. It’s in this Milwaukee Record article. The word “tax” does not appear in the language of the proposed statute. The word “fee” is used consistently to refer to the proposed charge.

Interestingly, several of the six comments to the article refer to the proposed charge as a tax, one refers to it as a fee, and the others use the word tax in a manner suggesting that the proposed charge is a tax. Is this surprising? Not really. Recall that in several of my commentaries on taxes and fees, I have shared my belief that people often deliberately use the word “tax” to describe any amount paid to a government because of a desire to appeal to emotions rather than reason. On the other hand, does designating the proposed charge as a fee mean that it is a fee? No. It is a fee because it is a charge for using roads.

The glitch in this proposed fee isn’t that it is called a fee. It is the manner in which it is imposed. Consider a township that collects residents’ trash, and charges a trash fee. Would it be appropriate to impose the fee only on houses with even street numbers, or on properties with sheds, or on homeowners whose surnames begin with vowels? It’s not just delivery vehicles that put wear and tear on the streets, and so a “street maintenance fee,” which is what the charge is called in the proposed statute, should be imposed on everyone within the city’s jurisdiction who uses or benefits from someone else's use of the streets. Of course, a mileage-based road fee would make more cents than a 60 cents per delivery charge, though the latter probably is easier and cheaper to administer.

I return to the questions I posed on Monday, and answer once again. So is it a fee? Is it a tax? It’s a fee. Does it make sense? No, it still makes no sense.

Is It a Tax? Is It a Fee? Does It Make Sense?

The “tax or fee” issue is getting even more interesting. Is it a tax? Is it a fee? What’s the appropriate term to use? I have written about these issues in Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, Sometimes It Doesn’t Matter If It Is a Fee or a Tax, It’s Not Necessarily a “Tax” Just Because It’s an Economic Charge You Don’t Like, Court of Appeals for the First Circuit: Tolls Are Fees, Not Taxes, and The “Tax or Fee” Discussion Gets a New Twist.

Once again, somehow reader Morris found another interesting story and shared it with me. I struggle to describe the subject of the story because the headline, “Delivery Tax Could Help Fix Potholes” suggests what’s being considered is a tax, and yet the subheadline, “Ald. Dodd's proposal imposes 60 cent fee on third-party deliveries like Uber Eats” suggests what’s being considered is a fee. Both words are used throughout the story to describe the proposal. Wow. Of course, there is no link in the story to the actual proposal, nor can I find it. If I could, perhaps it would clarify whether Alderwoman Nikiya Dodd is proposing a tax or a fee. I found another story, again without a link to the text of the legislation, but also in which the proposed exaction is described as a fee and as a tax. I found yet another story, again without a link to the legislative text, but describing the proposed amount as a fee. The portions of the legislation quoted in the stories don’t answer the question.

The proposal is to require third-party delivery services to pay 60 cents per order, and to use the revenue to fund street maintenance and public transportation in Milwaukee, Wisconsin. Whether it is a tax or a fee, why impose the burden of fixing the streets on only some of the people who use the streets? The answer seems to be the proponents’ description of third-party delivery services as a “fast growing market segment,” but there’s no mention of what percentage of miles driven on Milwaukee’s streets are attributable to third-party delivery services.

Milwaukee’s City Attorney, according to this article, has concluded that the proposed exaction is not enforceable as currently configured. The same article reports that a state senator who is running for mayor of the city disagrees. A deputy city attorney explained, “Because we do not have independent taxing authority, we rely on state enabling legislation. We can charge a fee that matches the cost of the service. For example, we are authorized by the State of Wisconsin to license taxis. That is the difference between a tax and a fee, a tax is raising revenue, a fee is paying for a service.” Well, both taxes and fees raise revenue. The difference is the nexus between how the fee or tax is measured and how the revenue is expended. The opinion from the City Attorney explains, “The proposed ordinance is not legal and enforceable because the municipal service fee is likely to be characterized as a tax requiring state legislative authorization.” If it is held to be a tax, then it’s not a municipal service fee, it’s a municipal service tax. The City Attorney helped clarify the problem by noting that by subjecting only third-party delivery services and not all delivery services to the charge, the proposal is an attempt to enact a tax. Perhaps a simple explanation is that requiring some, but not all, users of the street to pay an additional amount to maintain the streets is equivalent to imposing a tax, whereas requiring all users of streets to pay for the use would be the imposition of a fee.

The mayoral candidate who disagrees simply stated, “We have the power to make a decision on this period. I am here today to share a way that we can gather a little revenue.” Pointing out that the proposal would raise revenue does nothing to provide any deep analysis of the difference between a tax and a fee, and the authority of the city to enact one or another.

As of this writing, no decision has been made by the city’s Common Council’s Public Works Committee or by the Council. The chair of the committee noted that “the file, which contains the legislation text and any associated documents, lacked much detail.” Isn’t that too often the problem with legislative proposals and many other things? Worse, the only documents in the file were objections to the proposal. Alderwoman Dodd replied, ““I’m sorry that the file doesn’t have all that you would like to see, but if you do a Google search you would find a lot.” My google search for the text of the legislation failed.

Interestingly, when asked how she came up with 60 cents rather than another amount, a supporter of the proposal said “it was based on fees in other cities and states.” Yet when asked about the proposal in a follow-up, that supporter and another “acknowledged they did not know of any cities with food delivery fees.” Yes, details matter.

So is it a fee? Is it a tax? I don’t know. Does it make sense? No, no matter what it is.

Indeed, In Tax, as in Most Everything Else, Precision Matters

Readers of MauledAgain know that I am a fan of using correct terminology and that I dislike careless misuse of words with specific meanings. For example, in The Precision of Tax Language, I wrote, reacting to a claim that the IRS enacted tax laws:

Similar misusages of precision terminology abound in articles, discussion board postings, student exam responses, newspapers, and all other sorts of communication media. Too often, one sees sentences such as "The IRS held that . . . "

* * * * *

One of the things that might contribute to the imprecise transposition of terminology that has negative effects is the message that I received years ago in an English literature class. It is a message that I think is being repeated throughout the years and throughout education systems. I was told, “Aside from common words such as articles and prepositions, don’t use the same word more than once, especially on the same page. Buy a thesaurus.” That might be good advice for a novelist or poet, but it is atrocious advice for those who write in technical areas. Lawyers, engineers, physicians, scientists, actuaries, accountants, and those in other technically-focused professions can create confusing and even dangerous if not fatal errors when they use different words to mean the same thing. * * * * *

My rejection of imprecision, by students and by others, at times has been derided as picky or worse. But I usually quiet the complaints by asking if people want neurosurgeons operating on them, their children, or their parents to be imprecise. I wonder if people want engineers building bridges to be imprecise. I ask whether the folks making pet food, medicines, and other products should be imprecise. * * * * *

So it was no surprise to me when reader Morris directed my attention to a recent article titled, “Tax Deductions: Is College Tuition Tax Deductible?”, and pointed out a serious error. In the article, Amanda Dixon correctly noted that “The deduction for tuition and fees is not available for the 2019 tax year.” She then repeated that observation, stating, “The deduction for college tuition and fees is no longer available.” She followed that sentence with this one: “However, you can still help yourself with college expenses through other deductions, such as the American Opportunity Tax Credit and the Lifetime Learning Credit.” Whoa! As reader Morris commented to me, “The AOTC and LLC are tax credits not deductions.” He gets an A. Dixon does not. Credits reduce tax liability, whereas deductions reduce taxable income.

In Credit? Deduction? Federal? State? Precision MattersI wrote:

One of the core principles that students need to learn in a basic federal income tax course is the difference between a deduction and a credit. Deductions are subtracting in computing taxable income. Credits are subtracted in computing tax. A one-dollar credit reduces tax by one dollar. A one-dollar deduction reduces taxable income by one dollar, ignoring limitations, floors, ceilings, and other complexities, and a one-dollar reduction in taxable income reduces tax by something between a penny and perhaps 40 cents. In other words, in most cases, credits are more valuable than deductions.

* * * * *

Precision matters. Lack of precision causes misunderstandings in communication, which can lead to all sorts of problems. Lack of precision causes engineering defects, which can lead to all sorts of problems. Lack of precision causes medical misdiagnoses, which can lead to all sorts of problems. In other words, to the chagrin of those who detest details and want to live in the world of sound bites and 140-character tweets, lack of precision leads to all sorts of problems.

Indeed.

Note: The Dixon article on which I commented was written before Pub. L. 116-94 extended the termination date of the deduction of tuition and fees. Pub. L. 116-94 became law in late December 2019. So the statement, "The deduction for tuition and fees is not available for the 2019 tax year" now is incorrect. The Dixon article now carries a date of 23 Jan 2020, almost two weeks *after* the preceding commentary was published. It still contains the statement, "The deduction for tuition and fees is not available for the 2019 tax year." The description of the American Opportunity Tax Credit and the Lifetime Learning Credit as "other deductions" also remains in the 23 Jan 2020 version of the article.

The “Tax or Fee” Discussion Gets a New Twist

We’re back to the “tax” versus “fee” discussion, one that has captured my attention more than a few times. I have written about these issues in Please, It’s Not a Tax, So Is It a Tax or a Fee?, Tax versus Fee: Barely a Difference?, Tax versus Fee: The Difference Can Matter, When is a “Tax” Not a Tax?, When Use of the Word “Tax” Gets Even More Confusing, Sometimes It Doesn’t Matter If It Is a Fee or a Tax, It’s Not Necessarily a “Tax” Just Because It’s an Economic Charge You Don’t Like, and Court of Appeals for the First Circuit: Tolls Are Fees, Not Taxes.

Reader Morris is keenly aware of my efforts to encourage people to use the two terms, tax and fee, correctly, so when he spotted this article he sent me a link with a question. As soon as I looked at the headline, “Myrtle Beach rejects near-deal with Horry Co. on tax fees over attorney costs,” and read the article, I understood why reader Morris had posed his inquiry to me. In addition to “tax fee” in the headline, the term appeared in the article three times, along with two uses of “hospitality tax.”

Reader Morris had asked, “Is 'tax fees' a proper description in this article?” My answer is, “No.”

To answer the question presented to me by reader Morris, I did a bit of research. According to the City of Myrtle Beach web site, the city imposes a “hospitality tax” of 2 percent on food and beverages prepared or modified before consumption, a “hospitality tax” of 3 percent on accommodations for transients, and a “hospitality fee” of 1 percent on paid admissions to amusements. The website refers to these three exactions as “The Hospitality Tax/Fee” and describes it as “a city tax or fee that everyone who eats in a restaurant, rents a room for a week or two, goes to a show or plays golf in North Myrtle Beach will pay.”

It's not a “tax or fee.” It’s not a “tax fee.” It’s not a tax/fee.” It consists of three separate exactions, two of which are taxes and one of which is a fee. Understandably, when wanting to mention all three in as few words as possible, the temptation is to use tax/fee, which is somewhat acceptable, or “tax fee,” which is beyond oxymoronic. A better term would be “hospitality exaction.”

Of course, another question quickly pops up. Why are the exactions on food and lodging called a “tax” but the exaction on amusements called a “fee”? As best as I can figure out, it reflects what the state of South Carolina permits localities to tax and what they are permitted to subject to a fee. Why the state makes that distinction and how it has decided which items or activities localities are permitted to subject to one or the other is something I haven’t been able to determine. My guess is that it involves politics and public relations.