Tuesday, October 26, 2004

Is It Any Wonder? 

Readers know that neither major party presidential candidate impresses me when it comes to taxes and tax policy. Though it is almost too easy to guess at why the incumbent doesn't get it, it had been troubling that a challenger eager to discredit the incumbent's policies wasn't reaching back and throwing his best stuff. A recent report on the Senator's facile agility with numbers suggests that tax law isn't easily grasped by anyone running for office. With an exception, perhaps, for Senator Byron L. Dorgan. He was Tax Commissioner of North Dakota from 1969 through 1980. I know nothing about his baseball score reporting abilities.

Too Much Sarcasm, If Any? 

My recent post concerning John Kerry's to the recent tax legislation contained a statement that could be interpreted in ways not intended. So here's an attempt to clarify.

I stated, "The spokesman [for Kerry] (or perhaps the person for whom he speaks) levels promises of obliteration against "unwarranted international tax breaks" but refrains from promising similar treatment to unwarranted domestic tax breaks, which far outnumber the handful, if any, of international tax breaks in the bill." The "if any" modifier struck one reader as amazing. He explained that there are some "really, really bad" international provisions in the legislation, and I'm not about to disagree. Another reader joined in by describing the "if any" as puzzling, and he shared the conclusion that most of the international provision are terrible policy, and have a revenue cost far more than what has been asserted.

My original comment was part of a larger question for John Kerry: why criticize bad international tax provisions while keeping quiet about the bad domestic provisions? One of the readers noted that Kerry hasn't paid much attention to domestic corporate tax reform, whereas he has shown much interest in changing international tax rules. The provisions to which Kerry hasn't addressed himself (e.g., lower rates on dividends and capital gains) don't seem to be getting any attention at all.

Here's my attempt at clarification, which might just go to show that my sarcastic style can at times be too effective at the literal level: The "if any" is a backhanded challenge to the person making the allegation [about the tax bill having bad international tax provisions in it]. Simply stating that there are unwarranted provisions is stating a conclusion. I made the same assertion with respect to domestic provisions and I gave examples. Did I list all of them? No. I would expect that there would be something in the way of an explanation. I appreciate readers stepping in to do someone else's job. So my "if any" can be seen as sarcastic.
So be it. (Note I didn't say, "Oh, there are none." and that wasn't what I was trying to imply.) Perhaps it is silly to be socratic with politicians and their spokespersons?

The Value of a Job 

The National Association of Colleges and Employers has released the results of the salary survey it conducted in teh summer of 2003. Here's a sampling:

Chemical engineering - $51,853
Electrical engineering - $49,946
Computer science - $47,419
Accounting - $40,546
Information sciences - $39,718
Marketing - $34,628
History - $32,108
English - $30,157
Psychology - $27,454

I'll let readers draw their own conclusions.

The Never-Ending Quest? 

A reader sent me this (which I post somewhat belatedly):

Your latest blog reminded me of a Jefferson quote: "I think it an object of great importance... to simplify our system of finance and bring it within the comprehension of every member of Congress." --Thomas Jefferson to Albert Gallatin, 1802. ME 10:306

Wouldn't it have been better had Jefferson seen to it that his idea was memorialized in the Constitution? Wouldn't it be fun seeking to toss out tax litigation on the grounds that a member of Congress couldn't understand it? It would take only one. That's not difficult. Cross-examination would be a delight.

Jefferson said nothing about the President being required to understand a tax act. Too bad. Franklin Roosevelt seemingly did his own tax returns. Nothing is so honorable as subjecting one's self to the same obligations as one tries to subject one's fellow citizens.

More on Tax (Act) Names 

In a recent post about the need for tax authorities to approve children's names in Sweden, I mentioned some of the names that had been give by tax "authorities" (or at least tax drafters) to tax acts. I've since been reminded of some bits of trivia that are worth mentioning in connection with the names of tax acts:

The Technical Amendments Act of 1958 contained substantive tax law changes, including the enactment of Subchapter. I should add that it is not unusual for an amendment buried in a "technical corrections" portion of a tax act to contain changes that are far more than technical.

The Tax Reform Act of 1969 was the first major tax act to be called something other than the "Revenue Act of 19xx." And now, in recognition of the person who reminded me of this, take a moment to read Mark Cochran's epic poem on that act (25 St. Mary's Law J. 355 (1993)). Proof that tax people can be artistic. I refrain from diverting into a "tax poetry" discussion. At least not now. Perhaps later.

And if tidbits of trivia about tax act names are going to get full attention, I must repeat the complaint I first made 25 years ago: There have been several tax acts with "simplification" in the title.... and ha ha simplify they did not.

And my favorite: The name of at least one tax act has included the phrase "tax reduction", but the legislation in fact raised taxes.

Blue Screen of Death on the Road? 

According to a report written by By Declan McCullagh for CNET News.com, Microsoft is putting serious effort into making its "Windows Automotive" the software used in tomorrow's automobiles. It would control almost everything, including mapping out directions, finding the closest fuel station, making phone calls that the driver wishes to make, and overseeing radio and other entertainment systems.

Microsoft is making this move principally for economic reasons. It has not grown during the past few years, its stock price hasn't changed much, and the market for personal computers is filling quickly.

Though Windows Automotive is based on Windows CE and not Windows 9x, NT, and XP, I cannot help but wonder whether another success by Microsoft in its marketing focus will bring yet another mess in its product performance. Could Windows Automotive be the operating system that finally brings literal meaning to "blue screen of death?"

Declan reports that the Windows Automotive system will not be connected to the brake system. Whew! That's a relief.

Sunday, October 24, 2004

More Discussion of the Limited Attorney Fee Deduction 

Ronald B. Schwartz, an attorney with the firm of Hedberg, Tobin, Flaherty & Whalen, P.C. in Chicago, shared his thoughts about my criticism of Congress' failure to provide to all plaintiffs the same special attorney fee deduction that it provided to plaintiffs in civil rights lawsuits. (See Save a Few, Let the Rest Drown.) He has graciously consented to let me post our dialogue.

Ron begins:
Dear Prof. Maule,

I believe your analysis of sec. 703 of the Job Creation Act of 2004 is missing some key points. First, "unlawful discrimination," as used in sec. 703 is defined very broadly. See http://www.workplacelawyer.com/CRTRA_HR4520Provision.pdf Sec. 703 certainly applies to legal claims other than employment law claims. It is defined so broadly that I am not ready to concede that defamation claims are not covered. I consider the right to be free of defamatory comments a civil right. See page 346, lines 14-18.

Second, after the August 1996 amendments to the Internal Revenue Code, personal injury recoveries continue to be non-taxable, which means that attorney's fees are not taxable to the client in personal injury cases. Consequently, Sec. 703 has nothing to do with personal injury trial lawyers.

Third, Rep. Pryce (Rep.) has sponsored the Civil Rights Tax Relief Act on behalf of NELA for four or five years. In addition to eliminating double taxation of attorney's fees, that bill would have once again made emotional anguish in non-physical injury cases non-taxable. In addition, that bill would have allowed income averaging because recoveries typically include back pay for two or more years.

Fourth, Sen Grassley (Rep.) recognized early on the inequities of double taxation. Also, Sen. Grassley is a champion of the False Claim Act. Double taxation of attorney's fees had a huge impact on relator recoveries in qui tam cases. Sen. Grassley was on the Conference Committee for the Jobs Creation Act. The House version of the bill did not have CRTR. Grassley insisted that CRTR be part of the final bill. The only part of the Senate version which did not survive the Conference Comm. was that the Senate version was retroactive to 1/1/2003. The final bill has no retroactivity for sec. 703.

Many lawyers from NELA and Taxpayers Against Fraud worked tirelessly to end double taxation of attorney's fees. Their efforts, including those of Sen. Grassley and Rep. Pryce, should be celebrated.
My reply:
Dear Ron,

I think that underlying your argument is the premise that everyone benefits from this legislation, so let's be happy. I do not agree with the premise.

First, the definition of civil rights case is spelled out in a very long, statute-specific provision that leaves no room to bring a common law tort within its ambit. Defamation has never been considered a "civil right" for purposes of the statutes, cases, marches, movements, and civil rights legislation that has been enacted. In fact, if defamation is covered, there's not much in the way of compensatory damages not covered. If that is the intent of Congress, apply the provision to ALL taxable damages, not just a select list.

Second, punitive damages in personal injury cases are taxable. Thus, the problem exists with respect to the attorney fees related to them. Of course, the sympathies are not as strong, because cutting back on net punitive damages isn't as brutal as cutting back on net compensatory damages. Punitive damages have a windfall quality whereas compensatory damages may be needed to reimburse expenses necessitated by the tort.

The bottom line question remains, "What's so special about civil rights litigants and workplace plaintiffs that isn't so special about other plaintiffs? In other words, why not provide relief to everyone?" The answer so far seems to be, "Those with good lobbyists get better protection of the laws than those without lobbyists (who may end up with no protection)." I know squeaky wheels get grease, but good civic prevention dictates that all wheels be greased before they get squeaky, for then it's sometimes too late.

I'd like to quote your comments, in full, if you agree, along with my thoughts. Attribution anonymous or identified, as you wish. If you don't wish to be quoted, I will paraphrase your arguments, because I think your view adds to the database on which the debate proceeds.

Thanks for writing,
Ron's reply to my reply:
>>>Dear Prof. Maule,

When you write "what's so special" about employment and civil rights recoveries, I can't tell whether you favor no income tax on any personal recoveries or to only exempt actual damages for P.I. Regarding punitive damages, of course you are correct that they are taxable in P.I. cases, as well as in all other civil cases. However, in allocating damages in a settlement, lawyers for plaintiffs will do their best to minimize the allocation of punitives to reduce income taxes for their clients.

To answer your question: First, employment is pervasive in our society. Second, the August 1996 tax code amendments set the stage for employment laws and civil rights laws not being enforced because of the tax consequences. Prof. Richard Epstein at the U of C law school may have seen that consequence as a good thing.
(Forbidden Grounds: The Case Against Employment Discrimination Laws). I disagree.

You have my permission to quote my comments in full on your blog, for attribution to me.
I clarified my previous reply:
Dear Ron,

I wasn't addressing the question of whether (or which) damages should be taxed. In the long run, taxing damages that presently are untaxed would probably cause an increase in damage awards, as juries would take the taxation into account.

I was addressing the question of how attorney fees should be treated, which is what the legislation addresses. (The other proposals, dealing with inclusion of damages in gross income, did not "survive" into the legislation).

My position is that attorney fees paid by the plaintiff, whether fixed fee or contingent, should be deductible in computing adjusted gross income. This solves the problems caused by the 2% floor on miscellaneous itemized deductions, the 3% phaseout of itemized deductions, and the alternative minimum tax effect.

The legislation solves these problems for certain awards but not all awards. Even if you persuade the IRS that attorney fees in defamation cases are within the legislation (though I doubt you do but if you do succeed would be a better result than if you fail), it doesn't change the fact that Congress could have and should have simply made attorney fees in ALL damages cases deductible in computing adjusted gross income if the damages are included in gross income.
Many of us continue to wait, in hope that someone involved in the drafting and decision making with respect to this provision will explain why Congress and its staff did not step forward and provide relief to those taxpayers who don't happen to have lobbyists working for them on Capitol Hill. After all, a democracy in which only the folks with money can get things done is not so much a democracy but an oligarchy of the monied. Public officials should do what is right, and not simply that which is brought to their attention by lobbyists.

Friday, October 22, 2004

Sign? What Sign? Did you see a sign? 

The President has signed the American Jobs Creation Act. It happened earlier today.

There was no signing ceremony. As a tax practitioner pointed out, that means no souvenir pens, no opportunity for a few (un)lucky folks representing the targeted beneficiaries of the legislation to have a basis for telling their grandchildren, "I was with the President when he signed the American Jobs Creation Act." He also sent a link to this example of how it could have been but wasn't. And he reported that when President Reagan signed the Economic Recovery Tax Act of 1981, he went out and purchased new cowboy boots to wear for the occasion.

So, why the "quiet signing"? Is the bill an embarrassment? After all, I'm not alone in criticizing all the "goodies" tacked onto the bill by Congressional incumbents seeking re-election.

It surely took a while for the bill to emerge from the Congress in its enrolled state. That's one reason I was going in circles (and making mistakes) trying to get the final text from the Library of Congress "thomas" web site.

BNA Today reported that the House Republicans timed the enrollment of the bill so that the President would have the option to delay signing the bill until after the election if he thought that would be advantageous politically. Yet the President didn't let it sit. Speculation runs rampant about what was happening.

The one-sentence, 6-line White House press release about the signing says very little (and nothing about the partnership tax provisions, oh, my, ha ha). There is a miniscule reference to revenue-raising provisions, which may explain another tax practitioner's earlier comment that perhaps a delay (until after the election) was planned so that the President could deny raising anyone's taxes (though the only folks whose taxes will be raised are those whose tax shelter scams are cut down by the legislation).

Another suggestion, by yet another tax practitioner, was that the delay was intended to let people purchase SUVs before the deduction restriction took effect. The deduction restriction takes effect on the day after enactment, that is, tomorrow.

Now for some fun.

A spokesman for John Kerry stated, "George Bush filled the bill up with corporate giveaways and tax breaks for multinational companies that send jobs overseas. In his first budget, John Kerry will call for the repeal of all the unwarranted international tax breaks that George Bush included in this bill."

Guess what?

1. The spokesman (or perhaps the person for whom he speaks) fails Civics. The President cannot put anything into a tax bill. I think the President cannot even enter the House chamber without an invitation (but I'm not certain of that). The most the President can do is to "persuade" members of Congress to put things in a tax bill. But this time around, members needed no persuading. They were so busy, on their own, attaching "goodies" to the legislation that I doubt the President could have reached them on the phone had he wanted to do so. Most of the "goodies" in the bill are targeted to specific persons or companies within specific Congressional districts.

2. The spokesman (or perhaps the person for whom he speaks) levels promises of obliteration against "unwarranted international tax breaks" but refrains from promising similar treatment to unwarranted domestic tax breaks, which far outnumber the handful, if any, of international tax breaks in the bill. Why? Could it be a reason not unlike the reason Kerry wants to raise taxes on incomes over $200,000 but doesn't say anything about removing the favorable tax rates on dividends and capital gains or the tax-exempt interest exclusion enjoyed by certain, almost always wealthy, individuals? Hmmm.

3. The spokesman's statement hints at the same antipathy that Kerry has previously voiced for the legislation intended to bring U.S. taxation into compliance with the World Trade Organization standards, and to stop the European Union's ever-increasing penalties that it has been imposing on American companies selling goods and services in Europe (and which surely have reduced the funds available to those companies to hire workers). As I previously explained, I don't think John Kerry understands the issue. In fact, he has gone so far as to praise the very provisions in the tax code which had to be (and were) repealed because they violated WTO agreements. Now, I can understand someone taking the position of "to heck with the WTO, we're on our own" but how could it be Kerry who takes that position if he is, in fact, the global consensus seeker and holds unilateralism in such distaste. Is he planning to ask European countries for cooperation on other matters while repealing the legislation that brings U.S. taxation into harmony with European Union and our agreements with the WTO? It make absolutely no sense. None whatsoever. It's almost as though the candidates have exchanged brains and intellectual prowess.

Pop quiz: So which candidate, if any, has read the legislation that was just signed?

Bonus points: Which members of the House and the Senate have read the legislation that was just signed?

Superbonus points: Which of the preceding individuals who have read the legislation, if any, understand it?

Hey, Halloween is almost here. Have a nice weekend.

They Never Stop 

I'll be back soon with a substantive posting. I'm immersed in "must be done now" projects triggered by the newest tax bill. Oh, by the way, it was signed today.

I've been slowed by the surge of spam flooding my email inbox. Ninety percent of it falls into one of these four categories: trying to sell me drugs, trying to sell me watches (mostly Rolex), trying to give me a free mortgage calculator, and trying to procure my investment in one or another variant of the Nigerian internet scam.

Are the people sending this stuff as stupid as they appear to be? Or are they banking on the existence of even less intellectually gifted individuals who will fall for this garbage? Oops, almost sounds like a question about the campaign. I guess that answers it.

Think about it. Trying to sell me drugs is like trying to sell alcohol to a Prohibitionist. Why would anyone respond to chrydld.4dld88730d@jrtwehfdkejx.weirdcountry.whatever to buy a Rolex watch (right, it's genuine, hahahaha) or to get something that is readily available on many websites? And the Nigerian scam has been so outed that only people who have been living under a rock for the past five years would be susceptible.

If I had the time, I'd engage in the sort of spammer-baiting that others have pursued. I don't have the time. The only interesting aspect of this entire stupidity is that some South Koreans have jumped on board, so we now get a new group of interesting names, positions, and companies.

I guess common sense, integrity, thrift, industry, and diligence aren't taught to some folks. But they do seem to learn a lot about persistence, entitlement, manipulation, and greed. Gotta love the post-modern world.

How about a tax credit of $1,000 for each taxpayer who identifies and assists in the prosecution of Nigerian scam spammers? Oh, wait, what would we do with them?

Oh, well, it could be worse. They could be writing blogs and charging an access fee. Payable by credit card and requiring ATM PINs.

Wednesday, October 20, 2004

Thoughts about the Rescue Boats 

After posting yesterday about the selective tax relief Congress provided to successful plaintiffs, I read some comments that illuminate the issue. I asked Maxine Aaronson, a tax attorney in Dallas, for permission to share her thoughts, and she graciously assented. These are her observations:

* * * * * * * * * * * * * * * * * * * *

I hate to rain on the parade of all of you who'd like to accuse the political party in power of buying votes in an election year, but as a follower of this particular debate for several years (and as a part time lobbyist myself) let me address a few facts:

1. The overwhelming number of legislative contacts on this issue came from the employment bar, NELA [JEM note: National Employment Lawyers Association] and to some extent the unions and civil rights organizations. The punitive damage and defamation claims simply did not have any one out there speaking up for them. Most of the tax cases are civil rights or employment cases, some are whistle blower cases (they're pretty organized too). They had the visibility and worked hard to get it. Ergo, the squeaky wheel got the grease. This is a legislative truism, as any lobbyist will confirm.

2. There is a serious policy issue that underpins the civil rights claimants. We have a strong bias in this country to protect civil rights -- which as it should be. (I'll leave to another day whether some of the things that are protected should or should not be on the list -- that's a political argument for a different list serv, not this one). Look at the list in the bill of what's covered -- civil rights, whistle blowing etc. are all lawsuits with strong public policy arguments behind them. These are cases where Congress has already singled them out for fee shifting, in contrast to the usual American rule that each party pays its own lawyer. Punitive damages are a different kind of animal. Yes, I took torts and know the arguments on the policy behind them, but punitives do not rise to the same level as constitutional rights. As for the defamation damages, I don't think anyone really thought of it, and there's no congressionally created fee shifting there either or constitutional right there either. And defamation damages were the among the first tort claims to be determined taxable under Section 104, long before the Supreme Court decision in Schleier.

3. Many of the cases covered by the bill are cases where there is little or no monetary recovery other than the statutory attorneys fees. If you are limited in your recovery to injunctive relief and reinstatement, forcing you to come out of pocket for AMT based on your lawyer's fees seems particularly unfair. This may also explain why the list is selective.

4. I don't know the answer to this question but raise it in case someone does -- what was the difference in revenue effect of the provision as enacted and a broader provision? I suspect it was significant, which would have been another factor if that was the case.

5. The disparity between the tax treatment of contingent fees and hourly fees still exists. An hourly fee is a Section 212 expense, subject to AMT unless you can figure out a way to report it on Schedule C or unless you have to capitalize it. I know that changing that had a big price tag, and the argument regarding dominion and control are very different. You can't exercise dominion and control over your attorneys' contingent fee. The fee you pay from your check book you can.

6. Finally, a pragmatic comment from the lobbyist side of me. What's in the bill may be all they could muster the votes for. it could be that simple. Not having been there when it was done, I can't really say for sure on this provision. But it is a common enough explanation for many pieces of legislation that seem inexplicable to the rest of us. This phenomenon is of course not just limited to tax legislation. Sometimes you take what you can get and keep working on trying to get the rest later.

Any one on the list who was actually there when the decision was made (and
wants to talk about it [grin])? If so, care to enlighten us?

Just my two cents, guys and gals. You know what we lobbyists like to say -- There are two things you never want to watch them make: sausage and laws. It's very true.

* * * * * * * * * * * * * * * * * * * *

Maxine has provided some thought-provoking speculation about what happened. She makes several good points. And she joins me in an invitation to someone who "was there" to tell the story. I continue, though, to consider it Congress' obligation to fix problems of its own making without requiring a lobbyist to represent those who are afflicted with the outcome of Congressional lack of foresight.

Tuesday, October 19, 2004

Save a Few, Let the Rest Drown 

Suppose a ship were sinking, and 3000 passengers needed to be saved. Suppose 100 rescue boats show up, each capable of taking 50 passengers. Any reason not to save all 3000?

That's the sort of question that enters my mind when I study the latest excursion by the Congress into the tax treatment of damages. I'll spare the long and complex history, in which the Supreme Court and Congress took turns trying to provide answers. Suffice it to say that when everything settled down, compensatory damages received on account of personal or physical injuries or sickness are excluded from gross income, that is, they are not taxed. All other damages are included in gross income.

Most plaintiffs who seek to recover damages must pay an attorney to represent them. Usually the attorney agrees to take a percentage of an award, and thus claims a contingent fee. If the plaintiff loses, the attorney is not compensated for her efforts.

The plaintiff ends up with a net award. The question of how to treat the plaintiff has brought about a split among the Circuit Courts of Appeal.

One view is that the gross award is included in gross income, and that the plaintiff is allowed an itemized deduction for the attorney fees. If the income tax were rational, that would pretty much increase the plaintiff's taxable income by the net amount of the award. The problem is that the itemized deduction is subject to a 2% floor, and then as part of itemized deductions generally it is limited if adjusted gross income exceeds a threshhold amount, which surely will happen because the gross damages award is in gross income. Rubbing salt into the wound, the alternative minimum tax denies the itemized deduction, thus taxing the plaintiff on an amount much closer to the gross award. So a plaintiff who recovers $500,000 may end up paying the attorney $175,000 and the federal government $150,000. That doesn't leave much, even before state and local governments come calling. There are reports of plaintiffs whose gross damage awards were insufficient to cover the attorney fees, the federal taxes, and the state and local taxes. You can lose by winning.

There is a problem here. It's called Congressional remiss. So clever tax attorneys crafted several arguments in favor of including only the net award (that is, net of the attorney fees) in gross income. It requires some stretching, such as arguing that the plaintiff and attorney are in a partnership such that the plaintiff never has any right to the portion of the award that the attorney takes as a fee.

The Tax Court and some Courts of Appeals, reading the Code for what it says, follow the first view. Other Courts of Appeals, swayed by the stupidity of the outcome, have adopted one or another of the clever arguments put forth in favor of including only the net award in gross income. So the main "split" is characterized by "splits" among the Courts of Appeals taking the minority view.

The Supreme Court jumped in. There's such disarray that it agreed to hear the case, and should do so within a few months. A decision in the spring is likely.

Congress then jumps in, inserting a provision in the recent legislation that permits plaintiffs who recover damages in civil rights actions to deduct the attorney fees as deductions allowable in computing adjusted gross income. This spares these plaintiffs from the restrictions on itemized deductions and from the alternative minimum tax mess. And the change is effective only going forward, and has no effect on civil rights plaintiffs who are dealing with this problem on, for example, their 2002 or 2003 returns.

But what of all other plaintiffs?

Congress said nothing.

Are we to infer that Congress intends that other plaintiffs not have a deduction in computing gross income and that the first view is correct? If so, why treat other plaintiffs differently?

Or did Congress intend that other plaintiffs merely include the net award in gross income? If so, since that is what is happening, in effect, for future civil rights awards, why not say so and make such a rule applicable to all plaintiffs.

I posed this question to tax lawyers and some replied. One suggestion was that the President wants to tax tort plaintiffs. But this legislation is a product of members of Congress and I don't think the President has a clue as to what's in it, at least not this provision or most of those other than the headliners. But, continues the respondent, civil rights plaintiffs were given special treatment in order to buy votes of trial lawyers and of people in groups who are traditionally civil rights plaintiffs. I'd characterize the person making this suggestion as a cynic, but considering my take on the tax world I'm the last who should make such an accusation.

But even I, the cynic, don't quite understand why someone trying to buy votes of trial lawyers would limit themselves. Go for it. Give this tax relief to all plaintiffs. The provision is complex, and would be much simpler if it applied to all plaintiffs. So if vote-buying was the objective, why such a restrictive fix?

Note that I think that all plaintiffs deserve this fix, on the merits, and regardless of their voting preferences.

I've heard that civil rights organizations lobbied for the change. Reports such as the one at the National Employment Lawyers Association website support this conclusion. The report on the ACLU website suggest that the lobbying was based on an effort to undo "mistakes" made by Congress when it amended the Code to restrict the gross income exclusion to awards for physical and personal injury and sickness.

But why would Congress or its staff pick up only certain passengers from the sinking ship. If civil rights groups had the loudest voices and attracted the attention of the rescuers, ought not all be rescued? My analogy is bad, because the "rescuers" are the ones who caused the ship to sink, so I'd need to use hypotheticals involving U-2 submarine crews rescuing passengers from ships they had torpedoed.

Nor do I see how restricting the fix or rescue will deter other plaintiffs from suing. Even if they end up with a small net award after taxes they're still better off than doing nothing.

The upshot is that those lobbying for relief in civil rights cases take a position that suggests the tax problems in their cases are somehow more serious and more of an obstacle to settlements than are the identical tax problems in cases that are not civil rights cases. That "we're special" or "I'm special" approach is what leads to division. And they wonder why the country is divided. Even on such a simple issue as allowing a deduction for the attorney fees in computing gross income, a rescue that should apply to all plaintiffs with taxable damage awards, lobbyists somehow manage to find a way to put getting a step up on others ahead of the concept of the common good, and the vote-hungry members of Congress go for it.

It's not as though the rescue boats have insufficient space. There is no excuse for Congress enacting a long complicated provision (after all, one must define "civil rights awards") rather than a simple one sentence provision that fixed the problem for everyone.

So next time I'm asked why the country is so divided, I will be tempted to respond that our lobbyists and our Congress surely contribute to the situation. The me-generation is coming of age, and it shows.

Monday, October 18, 2004

Ranking Tax Programs 

Once again, this year I received the U.S. News and World Report survey for ranking graduate school programs. Once again, I was asked to rank law schools according to their courses and programs in tax law.

This is a very ridiculous survey, even if one accepts the notion of surveying and ranking that is causing, indirectly, more degradation of legal education as law school administrators fall all over each other spending money to print glossy brochures full of self-praise and mailed to other law schools in an attempt to buy survey votes. Aside from destroying trees and filling landfills with stuff that is difficult if not impossible to recycle, especially because of the ink, the brochures essentially cancel each other out, now that all the schools are playing the game.

This is the second time I've been surveyed, and once again, instead of choosing 15 schools, I limited myself to the law schools with what I consider to be high quality LL.M. (Taxation) Programs. I can rate programs. For example, there is information on how many law clerks are hired each year by the U.S. Tax Court, and on the number of clerks with LL.M. (Taxation) degrees from a particular program who are hired. Likewise, there is information, although not as specific, that indicates the extent to which private tax practitioners hold a particular LL.M. (Taxation) program in high regard.

But the U.S. News survey wizards simply include every law school on the list. Consequently, well-known law schools that don't have much more than two or three J.D. tax courses that are necessarily generalized end up with higher ratings than some of the best LL.M. (Taxation) programs in the country. The silliness of "it's Yale [or Harvard or whomever] so therefore its program in [tax, environmental law, whatever] must be among the best" is an intellectual short-cut, and shortfall, that has law schools with excellent J.D. programs crowding out the tax programs.

Part of the problem is the request by the surveyors for ratings accoring to course. That is impossible, absent information that doesn't get collected under current practices. How can someone at another law school begin to evaluate my tax course (absent the very infrequent visit by a friend who happens to get a chance to sit in one class, and even that is not a good basis for evaluation). Even my colleagues at Villanova know very little about my course, my pedagogy, my effectiveness, my response to the challenge of teaching tax in a limited amount of time, my use of digital technology such as Powerpoint and the Blackboard classroom, and all the other aspects that make up a course. I earned tenure many years ago, and that's the last time anyone paid close attention to my course, other than the scheduling and resources attention paid by members of the administration, some of whom also are faculty.

I know there is survey voting reflecting the following "logic": Prof. X wrote a nice theoretical article about tax subject r in student-managed academic law journal J. Prof. X is intelligent. Therefore, Prof. X must be a good tax teacher. Prof. X teaches at law school L. Therefore I will vote for law school L as having one of the 15 best tax courses or programs.

Paul Caron at Cincinnati half-jokingly wondered why no one had auctioned their votes on e-Bay. Take a look at Paul's comments, because he also describes his article about the impact and utility of rankings, and gives links to the article, which is well worth reading.

If the survey was intended simply for use in another law review article, it might be near harmless. But that's not the case. Tens of thousands of potential law students and LL.M. (Taxation) students use the U.S. News survey reports as the "set in stone" guide to program status. A fun anecdote is the story about the law student who was considering extending his studies by entering an LL.M. (Taxation) program and who expressed much surprise when he discovered than there were law schools in the "top 15 tax programs" U.S. News list that did not have LL.M. (Taxation) programs.

Would it be asking too much for the wizards at U.S. News to make a list of law schools with LL.M. (Taxation) programs and ask for a ranking of the best 10? As bad as all-star voting has been at times in professional sports, I don't think that an NBA star has been selected to the NFL Pro Bowl. U.S. News surely can do better, and I invite its editors to respond. OK, I'm now getting ready to hold my breath.

Sunday, October 17, 2004

Would We All Like This Tax Rate? 

So Teresa Heinz Kerry releases part of her 2003 tax return and immediately questions jump out.

1. Why "married filing separately" status? My guess is to insulate the tax information from the full release that would occur had there been a joint return.

2. On adjusted gross income of $2,291,137, Heinz Kerry had a federal income tax liability of $628,401. That's a 27.4% rate. There are folks who earn less who pay at a higher rate.

3. On total economic income (at least the portion of which we have been made aware), Heinz Kerry had that $628,401 tax liability on $5,072,928 (an amount which reflects $2,781,791 of tax-exempt income). That's a rate of 12.4%.

I doubt my advocacy of eliminating the exclusion for tax-exempt interest and taxing capital gains and dividend income at the same rates applicable to wages and taxable interest won't get her approval. Or, apparently, his. Or the President's.

No wonder I'm disappointed that no one seems to be representing sensible tax policy.

Gasoline Prices and Taxes: Fourth Time Around 

The more people affected by an issue, the more attention it gets. So gasoline prices get a lot of attention, because almost everyone in this country purchases gasoline, mostly for trucks and automobiles, but also for lawn mowers, snow blowers, off-road recreational vehicles, leaf blowers, and other devices. This is the fourth time I've addressed gasoline prices and gasoline taxes, starting in March and twice in May (here and here.)

I'm writing this because I am puzzled. Although expert analysis tells us that gasoline prices are high because of a series of factors beyond the control of politicians (such as increased demand in China and other nations, loss of drilling output in the Gulf of Mexico due to hurricanes, technical problems at refineries, investor fears), somehow it becomes the fault of the President. This charge keeps getting repeated and spotlighted in the media, but let's face it, there surely isn't anything partisan about the huge increase in American driving mileage and gasoline demand (including demand for all those off-road vehicles and devices).

This started back in May, when John Kerry asserted that high gasoline prices are a result of the Bush administration looking out for oil interests. I'm amazed. I guess the guys who don't claim they can play God and make Christopher Reeve walk concede that the guy who supposedly has a direct line to God can stir up hurricanes and compel residents of China to purchase gasoline for their bicycles.

Sorry for the sarcasm, but it's this sort of "talk first, think later" behavior that has me wondering whether the American political system can do better than to present two candidates for one of the most important elective offices in the world who both continue to leave me totally unimpressed. There are more than enough demonstrable Bush Administration mistakes that can be paraded in front of the citizenry. There's no need to overdo it and bring one's credibility into question by laying at the feet of the Administration every unfortunate current event. Let's see and hear some discussion about the stuff that's realistically the subject of rational disagreement. We're supposed to believe that Kerry is the smart one, the thoughtful one, and the sensible one. Why, then, not take something like taxes and hammer home the mistakes? Kerry is getting his chances, but he doesn't make much of the biggest mistakes, the lower rates for capital gains taxes and dividend income. I suspect he wants to keep them in place. For a while I considered this inconsistent with Democratic tax policy. Nor does he say much of anything about tax-exempt interest, and the unintended consequences of an alternative minimum tax designed to offset the benefits of investing in tax-free bonds turning into a monster that is raising taxes on the middle class. But now I can understand why he's been so quiet and prefers to increase taxes on people earning $230,000 at the same rate as he would increase them on millionaires. That's the next post.

Thursday, October 14, 2004

More on Partnership Complexity 

My commentary on the failure of Congress to deal with partnership basis adjustments by making them mandatory rather than adding two more layers of complexity to the existing morass generated a lively discussion among tax law professors. They raised some concerns worth consideration, as they shed some light on the sorry state into which American tax law has sunk. Note my questions that are in bold.

One participant suggested that because basis adjustments can be burdensome, it is a "nice compromise" to limit mandatory adjustments to instance where failure to make the adjustment provides an opportunity to duplicate or assign losses, pointing out that "theory is oftentimes sacrificed for good administrative reasons."

I replied that the existence of section 732(d) (giving the partner the right to elect to make adjustments even if the partnership did not do so, although only with respect to distributions)made partnership avoidance of its own election worthless, because section 732(d) requires the partnership to go back in time to when it could have made its own election and then redo computations from that point up until the time that the partner makes his or her 732(d0 election. Thus, it is more burdensome to wait for section 732(d), and this is what causes most partnerships formed with professional advice to have agreements specifying that section 754 will be elected. Those not electing fall into two groups, those unaware that they're not really saving themselves from burden, and those who want to play the system. Thus, I argue, a mandatory election is not only theoretically correct, it would simplify the administration of subchapter K and reduce the burden of compliance.

I was then asked how does the 732(d) election allow a partner to "force" the partnership to do what it sought to avoid. It was argued that 732(d) puts the burden on the individual partner, not the partnership. Presumably, the argument continues, the buying partner would have calculated the basis adjustment before making the purchase, as part of evaluating the deal.

I replied as follows: The section 732(d) election requires the same computation as would be made under section 743(b). Partnership law and partnership agreements give the partners access rights to partnership books and records. Thus, the partnership, at the very least, the partnership is burdened by having to permit that access. In addition, the application of the adjustments requires the partnership to provide the information that would have been different had the adjustments been in effect. Depreciation is one significant example of an adjustment that has this spillover effect. As I noted, it is the "threat" of the section 732(d) election that contributes heavily to the decision by most partnerships (and almost all counselled by a tax advisor) to put into the agreement a requirement that section 754 be elected the first taxable year in which an event occurs that makes the election available. The "threat" simply is the unilateral nature of section 732(d) and the obligation of the partnership to generate the information that it, the partnership,
must report on its return and on the Schedules K-1.

Continuing, I explained: If the buying partner has the opportunity to access the information before the deal settles, it is more likely that the buying partner will seek partnership agreement to make the section 754 election as a condition of the deal going through. If the transfer is by reason of death, there is no examination by the estate prior to the transaction, so the estate isn't in the situation you describe. That may be the reason that the proposed legislation making the election mandatory had an "out" for death transfers (while, at the same time, repealing 732(d) for all partners, including estates that opted out of an otherwise mandatory section 743(b)). As a practical matter, one way or another most partnerships will end up having to do the computations. (Whether a partnership can charge to the partner electing 732(d) the cost of doing the computations is an interesting question, but I've never seen it done.).

In response, it was suggested that there was no point in lobbying for the exceptions that apply to investment and securitization partnerships. These partnerships rarely make the election, so if section 732(d) was forcing them to do the computations, what's the benefit of the exception and why lobby for it?

I replied: Investment and securitization partnerships benefit from avoiding the election when there are losses. So they don't want the mandatory rule. These partnerships are a small portion of total partnerships. Rather than asking for an exception to an overall mandatory rule, they convinced Congress to create a limited mandatory rule and then obtained exceptions to it, giving the impression that they weren't getting as big a break as it would otherwise appear. In other words, "it's a break from a little thing" isn't quite as offensive to those who want equitable taxation as "it's a break to a rule that applies in all other instances." I suspect that these partnerships require investors to waive their section 732(d) rights, or arrange transactions so that there are no property distributions that would trigger section 732(d). Is that so?

Another reader jumped in and agreed that it would be simpler and cleaner to make the adjustments mandatory. He expressed doubt about the impact of section 732(d). He also informed me that the proposed optins regulations would have made section 754 elections, and thus the adjustments, mandatory. He asked if the legislation will cause the IRS to rethink the proposed regulations and guessed not. My question, raised here for the first time, is this: Can the IRS make mandatory something that the Congress permits taxpayers to choose or ignore?

Another participant suggested that the basis adjustments were not desired by those who acquire partnership interests through discount purchases, such as those that arise when there are aggressive valuation discounts in family partnerships. I suppose, though, that the problems for these partnerships will start with the valuation egg and not the basis adjustment chicken. And the previous reader questioned if such a purchaser should even have the option of ignoring the adjustments.

The first respondent then explained that he would prefer the mandatory adjustment, but didn't agree with my position that the legislative solution is inappropriate. The complexity of the exceptions are a problem, he proposes, for those who qualify for the exception, and since they lobbied for it, it's their burden. He did, however, note that it makes the Code heavier for those who carry it around. Responding to another participant's comment, he noted that clean and simple can be just as bad as messy and complex. He then pointed out an issue not raised in my blog commentary, namely, that the selection of $250,000 without any finding connecting that amount to the scope of the administrative burden creates a distortion, perpetuates complexity, and appears to be the product of lobbying. He's right. I did not focus on that question, and he's right, it does have the flaws he points out. What is so bad about $251,000 that isn't so bad about $249,000? To me, of course, it's further "proof" that a clean and simple mandatory adjustment rule would provide far fewer opportunities for distortion, complexity, and favoritism.

I pointed out that the computations were more of a burden in the past, before computer software made the computations much less of a burden (other than the information retrieval issue). I know that the big accounting firms have proprietary software, so, again, it's the unadvised tiny partnerships that get into the mess of computation burden just as they might fail to make the election because of the lack of guidance.

Another professor asked how many "unadvised tiny partnerships" or even "minimally advised small partnerships" or "basically advised medium-sized partnerships" actually deal with this or any of the other complex stuff in subchapter K? 754, 734(b), 743(b), or, indeed, 751 or 755. He then posed this marvelous challenge: "If you have an idea what percentage of your law school's graduates can explain how section 751 works, take a guess as to how the percentages run in accounting programs, and then figure out who is likely to advise any but the largest partnerships and partners, my guess is that an overwhelming majority of sales of partnership interests are recorded as pure capital transactions, with no adjustments to partnership bases. (I'm not even asking whether section 752 was applied correctly to get the right amount of gain or loss.) It will be interesting to see how a mandatory section 754 election is applied in practice." He noted that figuring out compliance rates is challenging, but that anecdote suggests it is not high. I agree, and I've had the same anecdotal experience. As he pointed out, it's not bad faith but inability to understand very complicated rules that affect many people because many people are in partnerships. Almost all multimember LLCs, recall, are partnerships for this purpose.

One of the previous participants noted he had also had the same anecdotal experience. He then related his own experiences with a partnership that just didn't get the allocations right.

I then shared one of my favorite "teaching Partnership Taxation" stories that illustrates how out-of-control the tax system has become. Tonight I taught section 751. About seven years ago, as we worked through section 751 (in the LL.M. (Taxation) Partnership Tax course), a woman raised her hand and asked if I was sure that there was ordinary income. I replied I was as sure as ever, why was she asking? She replied that she had been doing partnership interest sales in her firm for 5 or 6 years (I cannot remember whether it was 5 or 6) and that no one had EVER done section 751. The following week she returned to tell me her partners were so interested that several were going to enroll in the program (I don't know if they did). I've had similar experiences at CLEs. I noted that even on the ABA-TAX list there is a lot of misinterpretation and lack of knowledge about partnership taxation, and sometimes even resistance to the rules when they get explained (usually by yours truly) as in "that just can't be because I've never done it that way." OK. :-) People who can rumble through subchapter K are in demand.

To which yet another tax law professor said, "And that's just 751(a). With 751(b), it's probably worse." Oh, how true. To which someone else replied that the consensus among many tax practitioners is that absolutely no one pays attention to sec. 751(b) even if they know about it. To me, that is scary, and very indicative of a tax system beginning to melt down. I inquired if the situation as "sort of like speed limits? Until there is an accident......." and pointed out that "The difference is that whereas most highway patrol officers understand speed limits there are very few IRS auditors and agents who understand subchapter K."

One of the participants noted he, too, had always "wondered when the tax system would implode from all of the complexity." Rumors that subchapter K compliance is a mirage seem to be true for section 751(b) as well. He commented "If this keeps up,  the only persons who will care about understanding subchapter K will be the professors who have to teach it!" I doubt it would be the first time something taught in a law school found no home in the practice world. The difference, though, is that subchapter K is not the creation of the academic world but a law enacted and imposed by the Congress. Yet it could become as respected as speed limit laws (which I've never seen or heard discussed or analyzed in law school, even though I've heard stories of engineers representing themselves and getting out of tickets by proving the worthlessness of certain radar and other speed measurement devices, causing me to think that every lawyer should have at least one engineer friend).

One of the participants then suggested that other than sales of interests, most partnerships comply with subchapter K without really trying to do so. He noted that partnerships that don't set up special allocations and keep everything proportional don't have compliance problems. He asked why partners would make disproportionate distributions (which is what triggers 751(b)). The complexity, he noted, is directed toward tax shelter partnerships. He asserted that subchapter K is "pretty recent" and that this suggests things worked well for some period of time without it.

Yet another participant noted that none of us has actual data, but that proportionate distributions on liquidation are rare. Another person made the same point. Where IS the data on subchapter K compliance? Anyone know?

I then contributed this analysis of why all partnerships get caught up in the complexity: I think it's correct that small partnerships in which each partner contributes cash, has an equal or proportionate interest, takes draws and distributions in accordance with those interests, etc, doesn't have much of a problem complying with subchapter K. I've long proposed two subchapter Ks... one for tax shelter partnerships (as already defined) and one for all others.

Yet, even the small partnership has these issues, at least one of which is likely to be the case:

1. Contribution of property (704(c))

2. Liabilities with guarantees or other shifting (752)

3. Death of a partner or sale in the middle of a year (706(d))

4. Liquidation of an interest (need to draft for and comply with 736)

5. Close down when not all assets can be distributed proportionately, so one partner takes more of the inventory/receivables and less of other stuff, and other partners take less of the inventory/receivables (sec 751(b)) Disproportionate distributions are common, because it is rare (and very difficult) to slice up the assets 10% or 25% each. Only if they do a careful trade-off within the inventory/receivables category (remembering that deprn recapture but not the rest of the depreciable property is a receivable) can they avoid a disproportionate distribution. (disproportionate does not mean the 70% partner getting other than 70% of the assets, it means getting other than 70% of each asset).

I added: Subchapter K has been around for 54 years. The tax law, before that, was around for 41 years. And for the last 15 years of that 41 years there were all sorts of problems, as evidenced by cases we no longer read, cite, or teach (with Culbertson being one of the few that survived in terms of relevance to post 1954 partnership taxation). Much of the tax law distorts what would happen in a no-tax world. True for partnerships. True for corporations, trusts, etc etc. True even for the entities that would not even exist but for a tax world (IRAs, SEPs, 403(b) plans, etc etc)

If you've made it this far, I hope you've acquired an appreciation for how the tax law becomes complex, and for how that complexity triggers noncompliance. Applied beyond this one instance where Congress, in my mind, forfeited its opportunity to simpify the Code, one wonders whether a simplified tax law would increase compliance so that the hundreds of millions of dollars in taxes not paid by those who fail to comply, wilfully or accidentally, would find their way into the Treasury, permitting the reduction of budget deficits and another round of tax cuts. After all, the accumulated unpaid taxes, which represent burdens borne by those totally or substantially complying with the tax law and by the creditors financing the deficit, also represent benefits taken against public will by those who fail to comply. And at this point, though much is uncollectible, they total at least 2 trillion when interest is taken into account. I guess that's why Congress keeps cutting the IRS budget and complaining about things the IRS does to collect taxes.

Many thanks to those who contributed to the discussion, raised good points, asked good questions, supplied me with new information, and shared their views and experiences. I didn't attach names to the descriptions because I don't have the right to do that to anyone, but I think I can identify them without tagging anyone with any specific comment so that everyone can recognize this particular group (of many) who contribute to my intellectual sanity: Jack Bogdanski of Lewis and Clark Law School, Mark Cochran of St. Mary's University, Alan Gunn of Notre Dame Law School, Darryll Jones of the University of Pittsburgh Elliott Manning of the University of Miami, Marty McMahon of the University of Florida College of Law, Walter Schwidetzky of the University of Baltimore, and David Shakow of the University of Pennsylvania Law School.

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