Monday, December 13, 2004

Misers, Tax Deductions, the Economy and Children 

What? No chocolate chip cookies in this mix? No.

A friend and reader of the blog passed along this link to a Slate column advocating unlimited income tax deductions for individual retirement account contributions. Though the purpose of the various limitations on IRA deductions is to prevent the wealthy from taking disproportionate advantage of the deduction, perhaps on the theory that the wealthy would be investing their discretionary income in any event, the writer of the Slate piece, Steven E. Landsburg, makes the point that saving, no matter who does it, is good for the economy and good for society.

Landsburg rests his argument on the premise that misers do the world a favor. I wish Landsburg had written this column 40 years ago, because it would have been even more useful then, but I'll take what I can get, and that's having this column now.

Without revealing the entire plot, I highlight several points that Landsburg makes that put my brain into gear:

-- The most "generous" person is the miser -- one "who could deplete the world's resources but chooses not to."

-- "The only difference between miserliness and philanthropy is that the philanthropist serves a favored few while the miser spreads his largess far and wide."

-- "If you earn a dollar and refuse to spend a dollar, the rest of the world is one dollar richer—because you produced a dollar's worth of goods and didn't consume them."

-- If the unspent dollar goes into the bank, it reduces interest rates to the benefit of borrowers (but, I counter, that works to the detriment of other savers).

-- If the unspent dollar is put in the mattress, it drives down prices.

Landsburg reminds us that Ebenezer Scrooge lent his unused dollars at interest but that his "less conventional namesake Scrooge McDuck" stashed the unused dollars in a vault. I really do like the intersection of cartoons, taxes, and the economy. Go read the full column to get the total effect.

Landsburg then points out that if saving and philanthropy accomplish the same thing, both should be favored by the tax system. I don't think most English literature majors would agree with Landsburg that "the primary moral of A Christmas Carol is that there should be no limit on IRA contributions."

A tax deduction for savings is almost, though not quite, the same thing as a tax on consumption. A tax on consumption, though, is regressive unless structured in some way that frees those most needful of philanthropy (the poor) from the tax. If that happens, the consumption tax becomes regressive as to those not poor and yet lacking in discretionary dollars to save. If those folks decide to forego some consumption in order to save, doesn't that hurt the economy by driving down demand? No, the saved dollars will be loaned to those who need to borrow, and they will in turn drive demand back up. Well, that's a bit too simplistic an explanation in a globalized economy, in a marketplace where debt is used as leverage, and in a world where natural and human-caused catastrophes destroy wealth, sometimes faster than people can create it.

Well, I'll need to keep Landsburg's column handy for another purpose. I'll share its URL with parents who need to counter the ever increasingly sophisticated pleas of their children for expendable dollars, children who add to "I need it" the not-so-subtle-tug-at-the-emotions argument "But if you let me spend this money it will help the economy."

Sunday, December 12, 2004

Social Security Means Test? 

My recent posting about the latest chapter in social security reform brought a question about how the means test I suggested would be implemented. How and where would the lines be drawn?

Most means tests analyze a person's financial condition, and most have evolved to a sophisticated level that examines previous transfers, attempts to hide assets, and the like. Some means tests require that a person demonstrate an inability to generate additional (or sufficient) resources from other sources.

For social security, the "can you get a job?" requirement found in most social welfare programs makes no sense. At some point in life (62? 65? 70?) the decision to retire is reasonable and ought not be challenged. So long as there is a disability element, I favor higher retirement ages because I think older people have much to offer that younger workers can't provide. Wisdom comes to mind. This has nothing to do with the fact I am getting older, because I don't bring much in the way of wisdom to the table.

There exist means tests for Medicare. It ought not be difficult to adapt those tests to social security. Over the years, the Medicare means tests have been refined, and need more refinement, to prevent the "pretend to be poor" schemes that some people delight in pursuing and selling to clients.

Would a means test, though, encourage people to squander their resources, pass up saving for retirement, and make bad investments? Yes, if the Social Security program offered more to a retiree than a retiree could provide for himself or herself through a prudent "save some of the income and don't spend all of it" lifestyle.

Thus, any social security reform with a means test needs to be accompanied by incentives for retirement savings. Those exist in the current tax law, but are complicated, unduly restricted, and to some extent ineffective. After all, there are tens of millions of working Americans with little or no retirement savings, and many workers are not covered by retirement plans.

Tax incentives for saving, with perhaps an exclusion from taxation for certain amounts of retirement withdrawals, would be part of the picture. Another would be an incentive that rewarded social security recipients who did save and invest, were hit with an Enron-type problem, and were left adrift, in contrast to those who didn't bother saving even though they had the means. This might require some interest financial analyses of a person's lifetime earnings, but much of that information already exists and is held by the Social Security Administration. This element of the plan would reflect the notion of "helping those who help themselves."

Some might argue that distinguishing between the "deserving needy" and the "undeserving needy" is wrong. Perhaps the fact that it is done with respect to many existing social assistance programs doesn't make a difference. Some who so argue claim, with solid support, that from a theological or moral perspective one does not differentiate among those in need. Doing so involves making a judgment, and there is an argument for refraining from making judgment. Yet that argument falls short because taken to its logical extent, that is, removing all judgment making from life, would probably lead to the physical extinction of the species within a decade. Judgment in the sense of "are you truly in need or trying to con the system?" is different from judgment in the sense of "you are evil and a pox upon your house." One can judge without being judgmental. That is what lawyers, judges, public servants, and well, all of us, are supposed to learn. It's not easy but it can, and should, be done.

After all, FICA is insurance. Any insurance company makes judgments about the validity of a claim, about the cause of the catastrophe, and about the value of the loss. This is done without casting judgmental aspersions on the claimant.

On a related note, shortly after the President stated that he rejected the idea of raising social security taxes, which brought my question of whether that meant not raising the salary cap, a spokesperson for the Administration stated that raising the salary cap was an open question. Well, that's not something I oppose. In fact, it makes senses. However, it takes us back to semantics. If a tax rate is not increased but a tax base is widened, can one truly say taxes are not being raised? NO. The tax rate is not being raised. That's all. And if the base is increased, taxes are increased even if the rate is not being raised. Adminstration apologists would respond that it was an off-the-cuff response to a question, was intended to mean "no increase in rates" and that I ought not be so critical. Okay. I'll cut the man some slack but suggest he get a little more facile with the words.

But I'm not so sure I'm willing to offer my help if he wants someone to teach him how to talk about taxes. It might be a bit stressful.

Thursday, December 09, 2004

The Social Security Choices Narrow  

"We will not raise payroll taxes to solve this problem."

That's what the President said this morning in response to a question as he took questions from reporters after meeting with advisors with respect to Social Security reform. Up to that point, the President had emphasized the need to publicize the scope of the problem (something like $11 trillion of unfunded liability), had spoken favorably of opitonal participant investment alternatives, and had emphasized that he "would not prejudge any solution."

Well, he prejudged the "raising payroll taxes" solution. Does that mean he will oppose removing the cap on the retirement portion of the payroll tax as it was years ago removed for the medicare portion? Or is he simply advocating no increase in the tax RATE?

Well, if raising taxes is precluded, what's left?

1. Decreasing the absolute dollar amount of benefits.

2. Changing the benefit cost-of-living increase from one based on wage increase percentages to one based on the consumer price index.

3. Postponing retirement age.

4. Decreasing benefits for those who retire before a selected age, such as 70 or 72.

5. Trying to find a way to increase the rate of return earned by the investments made by the program's trustees with the excess funds generated by taxes exceeding payouts, for the short period of time during which those excess funds will continue to exist before being used to deal with the shortfall that will arise when payouts exceed taxes (which is expected to happen in about 10 years or so).

Each of these choices has disadvantages and the first four will deeply antagonize current beneficiaries and those nearing retirement. The fifth is appealing, but unrealistic. It had its origins in the 1990s when stock market return rates eclipsed safer investments such as certificates of deposit and, of course, government bonds (the rates on which pretty much indicated the rate of return earned by the investment of the excess social security funds, as the government pretty much borrowed from social security to solve its cash flow and deficit problems). But the bubble of the 1990s is over, it was transitory, illusionary, and misleading, and getting similar returns involves what all high returns require: acceptance of risk. Once that is understood, the fifth choice will find itself no less opposed than the first four.

There is a sixth choice. Maybe this is where things will go. I call it "LET'S PUT THE I BACK IN FICA." That's right, social security is an insurance program. That's what the I in the acronym FICA represents. Most Americans do not know this. They've been sold the "entitlement" theory on social security just as they have been sold the entitlement theory on everything else (such as "interstates are free, so end the tolls on the turnpike" idea I discussed yesterday). Once the program is accepted as the insurance program it was intended to be, that is, a program designed to assist retirees whose pensions were lost in the Great Depression, then it is easy to fix things. A needs test is imposed, which would remove from the social security benefits rolls those folks whose pension and other income is more than sufficient to meet their needs.

The "it's my money" perspective, sold for decades by politicians as a means of gaining elective office, is incorrect. Taxes paid into social security are no more the payor's money than are insurance premiums paid to the insurance company. Other than life insurance, which is designed as an investment, people don't want to collect from their insurance company (at least not in the absence of fraud). Social security has not been managed as an investment, and thus the comparison to life insurance is inappropriate. Social security has been managed as one big PONZI scheme. If you or I did that, we'd be committing a crime. As with all Ponzi schemes, push has come to shove. Party's over.

It's not going to be easy to sell the correct fix. Those for whom social security was a windfall (because they didn't need it) will be perceived as "lucky" by those who will be denied the opportunity for the same sort of windfall. The destruction of the "it's my money" argument, resting on the proposition that for all but those who die shortly after starting to receive benefits the amount received exceeds the amount paid in, won't sit well with the entitlement crowd. The advertising motto "I want it, I deserve it" reflects a philosophy that permeates post-modern culture, and sells us short because it leaves out "I earned it."

Ironic that social security could become the force that destroys post-modern culture and perhaps the nation that, at least in part, has embraced it. The theories crash on the rocks of reality. So, difficult as it will be to sell the correct fix, failure to do so poses risks far beyond those presented by dishing out some honest and tough talk from the high halls of federal government.

Straightening Out the Routes 

In yesterday's post aboutturnpike tolls, I described the turnpike as I-76. Former student, Graduate Tax Program adjunct, and friend Ryan Bornstein was on it in minutes. After joining in singing the praises of E-Z Pass, he noted that the Turnpike is I-276 (east-west) and I-476 (Northeast Extension). I-76 is the Schuylkill Expressway. A few years ago, they redesignated the numbers. I-76 had been the Turnpike from the Ohio border to the Expressway Interchange and then it followed the Expressway, leaving the rest of the turnpike as I-276 (from Valley Forge to the New Jersey border). When the "Blue Route" was designated I-476 they extended that designation through the Northeast Extension (which had been Route 9).

Wow, it's almost like the amendment of the tax law. So I should have gotten it right. I drive those roads often enough.

Ryan's email inspired me to reflect why I wasn't "up" on the route numbers the way I am with tax code sections. Simple. I deal with local route numbers the way some folks deal with tax law: forget the numbers. Locals call the Schuylkill Expressway by that name, or just Expressway (or some others, the only one of which I can print is Surekill Crawlway). The Blue Route is so-called as it has been so designated on the planning books since before my late father was born (and the Green, Yellow, and Red Route alternatives didn't make it). Some people even call Lancaster Pike "the Pike" (which is very confusing even to locals who aren't very local, because in my hometown 10 minutes away "the Pike" is West Chester Pike).

It gets tough for the visitors who listen to traffic reports that talk about places such as the Blue Route, or things like backups near the Conshohocken Curve. I had a taste of this some years ago when I went to visit my sister and brother-in-law in North Quincy, just south of Boston, and heard traffic reports about a backup near the tank. WHAT TANK? My brother-in-law explained, "That tank," as he pointed out the window of their condominium to an artfully painted storage tank. "Everyone knows the tank." Well, I do now. And, of course, I didn't know how to get around the backup at the tank. Now, with GPS, well, that's another topic. Someday.

So I suppose that the same energy that compels me to require students to cite Code sections ought to encourage me to remember route numbers, especially when giving directions to out-of-towners. As for the traffic reporters, who have 30 seconds in which to provide 3 minutes of information, how else to describe the Conshohocken Curve? Oh, for those interested, its a place on the Expressway where the road curves almost 90 degrees in a short distance. It has a mile marker, but I have no idea what it is, and most folks aren't aware of mile markers in urban areas.

Leave it to two tax lawyers to get all numbered up about routes. Anyone want to guess where I-676 is? (And, hey, notice that the interstates near Philadelphia have "76" in the number, as in 1776, as in Declaration of Independence? Almost as good as tax trivia!)

Symptom Solved, Problem Remains 

I've devoted several postings to the "mistake" involving the insertion into the appropriations bill of language permitting staff of the appropriations committees to examine tax return information without privacy safeguards. First, I described what happened, then I described how it became a major problem, and finally I described the post-mortem analysis of the problem. The bill finally has been signed, after the Congress passed a resolution negating the inserted language.


Does that mean this is the last posting on the subject?


The particular incident probably won't be the subject of any more in-depth discussion. But the incident, first described as a "mistake" and then as a problem, isn't a mistake and isn't a problem. IT IS A SYMPTOM.

The problem remains.

The problem is how Congress conducts its business. The incident was a symptom.

A problem is not solved by alleviating the symptom. Treating a symptom without treating the problem not only makes additional incidents likely, it can let the problem grow until the symptoms are worse and ultimately untreatable.

But, in the ways of Washington, now that the "problem" has been fixed, oops, I mean, now that the symptom has been alleviated, there's little spotlight value in the issue. So the talk of "the system is broken" will fade into the soundbite archives, until the next time.

One of these days the next time could be the last time. And I don't mean in terms of "problem solved." I mean in terms of problem so bad that its ultimate impact is catastrophic.

Congress, do your duty. Fix it. Now.

As if Congress will listen to me. Hah.

Raw Deal for Social Security Beneficiaries? 

In his Philadelphia Inquirer column this morning [free subscription site], Jeff Brown gives some advice on the timing of retirement, and then notes that his examples omit other factors, such as working while pulling down social security benefits and taxes. He notes: "It seems like a raw deal, but Social Security benefits are subject to tax if....." He describes the "if" clause well enough and sensibly suggests consulting a "good tax guide."

I am pleased Jeff used the verb "seems" because it does SEEM to be a raw deal. But it isn't, at least for those other than the unfortunate folks who die before getting any benefits or who die shortly after starting to receive benefits (assuming that they leave no survivors who get something).

Here's why. For the typical social security beneficiry, benefits exceed what the person has contributed. The amounts contributed by the employer were not taxed when the employer paid the employer's share of the social security tax. Earnings were not taxed. To the extent someone receives more than he or she has paid in, the person has gross income that is taxed just as the portion of a pension that represents what the person has not paid into the pension plan is taxed.

The current tax law computation for social security is inaccurate, in contrast to the pension computation, which is pretty precise. But even with the drawbacks of the "rough estimate" approach of section 86, and aside for the few folks who don't have survivors and who get little or nothing from social security because they die "too soon," the taxation of social security is NOT a raw deal.

Wednesday, December 08, 2004

Turnpike Tolls? At the End of Their Road? 

Yesterday, John Grogan's Philadelphia Inquirer column [subscription site, free] addressed the fallout from the Pennsylvania Turnpike toll collectors' strike. The Turnpike Commission switched to a flat fee toll, and for a few hours on the day before Thanksgiving, waived all tolls. Otherwise the traffic tie-ups would have been paralyzing.

In yesterday's column, Grogan shared reader reaction to a previous column in which he suggested that making E-Z Pass mandatory for all Turnpike users would let traffic flow more smoothly and permit the Turnpike commission to pay workers to do other things. Several toll collectors wrote to defend their jobs as necessary for them to make ends meet. Other readers feared the privacy intrusion of E-Z Pass, convinced that the "government" would be tracking their every move. Other readers praised E-Z Pass. Had I written to Grogan, I would have shared the same sentiment. I've shared my positive E-Z Pass experiences in an earlier post.

The comments that got my attention were the ones that advocated repeal of the tolls. These readers, who consider the turnpike inferior to the "free" interstates (though how anyone can consider I-80 superior to the turnpike baffles me), think that tolls are a roadblock in a competitive world market. Do they really think that Pennsylvania's economic woes are attributable to the turnpike tolls? One of these readers at least suggested raising the revenue by increasing gasoline taxes or one-time registration fees. Another reader claimed that tolls aren't necessary because they are used to fund "excess appointments made by the party in power." Another reader suggested that making the turnpike toll-free and firing the toll collectors would be cheaper. Cheaper? Goodness, I guess those turnpike snow plows and salt trucks don't cost anything.

In a recent posting, I shared some information about the "per mile charge" technology now under consideration in places like California, Oregon, and the UK. I explained why it has advantages with respect to gasoline taxes, and I shared some of the questions that its use would present. Now that one-time registration fees have been mentioned, I need to explain that a one-time registration fee is inequitable because it is not tied to use, and use is the best correlation marker for impact of driving on a road's need for maintenance.

Of course, underlying the argument that the turnpike should be "turned over to the Feds" is the notion that it would become a "free" Interstate. Of course, the Turnpike is already an interstate highway (I-76). And interstates aren't free. They're financed with taxes that aren't as visible as user fees. That's why I like user fees. The user encounters an "in your face" charge that ought to raise the "do I want to do this?" question that isn't as obvious when filling up the tank and paying a gasoline tax.

But until the "per mile technology" is polished and ready for prime time, I do like the "make E-Z Pass" mandatory idea. It's efficient, it's sensible, and even without it the "government" can track people's movement, so it really doesn't pose any meaningful threat to privacy. But it won't happen, of course. Most of my ideas never do. That's why my blog is free, as I just explained.

Free? Yes. 

A subscriber to the tax law professors list passed on a question from an anonymous blogger:
Lawprof John Jones writes a daily blog. Lately, he's been putting out a on-line tip jar, administered by Paypal, that collects small donations. To his surprise, readers have been donating money, for a total this year in the neighborhood of $1000. Must/Should Lawprof Jones report the $1000 as income? No explicit quid pro quo is offered, although Prof. Jones does send the donors an email saying thanks. He does not, for example, plug the donor's law firm or otherwise offer the donor some kind of advertising. Separately, Jones sells advertising on his site, the proceeds of which he duly reports as income (I hope). I would imagine that some donors give because they enjoy reading the blog and want to continue to enjoy it in the future. Some might hope for increased access to the author or perhaps to increase the likelihood that the author will read their own blogs or offer some free legal advice. But this is speculation.
LawProf John Jones is a fictional character, and I am guessing that the blogger who asked the question is not a law professor nor a lawyer.

The tax question, for me, and for everyone who has contributed a response as of this moment, is "there is gross income." Need a citation? Try the Olk case, which held that tips are gross income. Tips are not gifts. There was a bit of discussion about the deductibility of the blogger's expenses (whatever they may be). The consensus is that blogging would fall under the hobby loss provisions of section 183, limiting the expense deductions to gross income and triggering the 2% limit on miscellaneous itemized deductions. One person pointed out that the deductions could be trade or business expenses if the blogger was making a living by blogging, but I doubt that someone could prove, factually, that one can make a living by blogging.

Of course, when I read the question I thought, "A tip jar? Why did I not think of that?" And I answered myself, "Because I don't think like that." I'm not into blogging for the money, even if there were any. So rest easy. No tips requested, no user fees, no taxes. Yes, some things in life are free.

Monday, December 06, 2004

How Not to Argue for Repeal of a Deduction 

Thanks to Paul Caron and his TaxProf blog for pointing out the Washington Post [free registration site] story about the emergence of economic theory as the principal rationale for anticipated Administration plans for tax law changes. I am particularly fascinated by the discussion with respect to the income tax deduction allowed to employers for employer-provided health care insurance. The rumor mill suggests that this deduction is one of those that the Administration will suggest repealing in order to pay for additional tax savings benefitting those who save rather than spend. Generally, those who save rather than spend are of two types: those who have run out of things to buy and invest the remainder of their income, and those who sacrifice and do without so that they adhere to the discipline of setting aside something for the future even though there are pressing present needs and wants.

To justify repeal of the deduction, the Administration is introducing us to economists who argue that the deduction favors employees of companies that pay for health care, and that the deduction encourages payment of premiums for health care insurance covering expenses for routine care rather than only catastrophic problems. The chair of the White House Council of Economic Advisors refers to "standard economic theory," "textbook economic theory" and "scholarly literature in economics" when advocating this and other changes.

People who know me know what I think of theory: it is useful as an incentive to creativity, so that people are encouraged to try things. If it works, fine. If it doesn't, hopefully no one has been killed or maimed. The difficulty is that some theories, such as those affecting tax and the economy, are a wee bit trickier to test than is, for example, the theory that traffic circles are safer than four-way-stop-sign intersections. The latter can be tested by fooling with one intersection. Tax law doesn't permit disallowing the deduction for a few random companies, and the closest one comes to a tax laboratory is the experience of a state with a comparable tax system that tries out someone's idea.

Let's think about the theoretical arguments raised in favor of repealing the employer deduction for providing health insurance to employees. Does it favor employees of companies that pay health insurance premiums? Yes, it does. The deduction reduces the net cost to the employer of the health insurance premium. To offset this advantage, however, the tax law contains deductions for individuals who are not covered by employer health care insurance. One question thus becomes one of determining, through empirical analysis, whether the savings achieved by the employer who pays for health insurance premiums passes those along to the employees in the form of higher salaries or other benefits. Another question requires empirical analysis of salary and other benefits earned by employees of companies paying for health insurance and employees of companies not paying for health insurance. Has any such study been conducted? Are its results being publicized to support the claims made by the advocates of repeal and the advocates of retention?

Does the deduction encourage the payment of higher premiums? It depends on what sort of theory one applies. The theory that is advanced answers in the affirmative. But another theory says that employers seek to reduce costs. That theory, by the way, has been proven. A deduction saves an employer a fraction of the cost. Thus, if the premium is $100, the employer continues to seek identical coverage for $90. Why? Because even with a deduction, the net cost of the $90 premium is less than the net cost of the $100 premium. The "employers spend more because of the deduction" theory makes sense if the government were fully reimbursing the employer, directly or through an unlimited and refundable tax credit, because then, and only then, would the employer (at least in theory) conclude that price is no object because someone else is paying.

The theory advanced in support of repeal suggests that deductions for the cost of routine medical care are somehow less beneficial to the economy than deductions for the cost of catastrophic illness. The Economic Report of the President states:
If automobile insurance were structured like the typical health policy, it would cover annual maintenance, tire replacement, and possibly even car washes....health insurance markets can be improved . . . [to] focus on large expenditures that are truly the result of unforeseen circumstance [and] to provide a more standardized tax treatment of all health care markets.
What nonsense.

Automobile insurance covers theft and collision. If automobile insurance were structured like health insurance it would pay for the cost of the annual safety inspection, medical examinations for drivers similar to those given to airline pilots, and anti-theft devices. Well, guess what? Although automobile insurance companies don't pay for the annual safety inspection (perhaps because the cost is so low it can be considered comparable to a co-pay or deductible), automobile insurance companies invest in the development of safe vehicles, road improvements and hazard removal, anti-theft device research and development, and a wide array of programs designed to reduce the frequency and severity of automobile accidents. Of course they don't pay for car washes, and health insurance companies don't pay for nail clippers. Likewise, automobile insurance companies don't pay for auto maintenance, such as changing engine oil and transmission fluid, because automobile insurance companies don't pay for the replacement of engines or transmissions that fail because of lack of care. In other words, the comparison made by these theoreticians sounds nice and makes a nice sound bite but it is so flawed that I wonder where they learned to develop analogies. Surely not in one of my law courses, where the ability to make good analogies enhances teaching and learning and bad analogies do so much damage that one quickly learns the difference and avoids the latter.

From the perspective of doing what is best for the economy and for people, the ideal approach is to minimize the need for, and the cost of, medical care. The best way of doing this is to consider that "an ounce of prevention is worth a pound of cure" and to understand that the dollars expended on annual physicals are cheaper dollars than those spent on surgery. If health insurance pays for some or all of the cost of preventive care, people are more likely to get that care than they are if they must pay the entire cost. This isn't theory, it's been empirically demonstrated. Of course there are people who don't get preventive care even when it is covered by insurance, but their reasons for avoiding the doctor visit aren't economic and require some other incentive.

Any argument or theory that considers payment for preventive care to be less deserving of subsidy than payment for catastrophic injury is an argument or theory destined to saddle the economy with even more health care costs. Discouraging preventive care will increase health care costs because health problems will be discovered at later stages, when cures are more expensive, care is more expensive, and adverse impact on life is more expensive.

This, too, is empirically clear. Repeal of the deduction would cause employers operating on the margin to terminate health care coverage for employees, unless the subject of collective bargaining. And in that case, the next round of negotiations would be even more combative than they've become recently as employers try to balance health care cost allocation.

Perhaps the theoreticians believe that people will seek preventive care simply because it makes sense to do so no matter who is paying. That's true. People will seek preventive care but some won't get it because they won't have the economic resources. Unlike those who would simply dip into the "leftover" income that otherwise would be invested, these folks would need to cut back on something. Perhaps they would cut back on the dollars spent for DVDs and X-box cartridges for the children. Perhaps they would cut back on food for the children.

Critics of the crtics claim that the critics tend to dismiss the intellectual merit of the Administration economic policies, and that the criticism ignores how well the economy is doing. The health care segment of the economy is not doing well, and anyone who sees intellectual merit in the horrendously flawed analogy between health care insurance and automobile insurance is....well, I'll let readers of this blog finish the sentence.

Friday, December 03, 2004

The Problem That Will Not Die Gets a Biopsy 

And someday, when all is done, an autopsy will follow.

According to a report released this morning, the person who inserted into the appropriations bill the now infamous and highly spotlighted provision giving staff of the appropriations committees the right to see tax returns without being subject to the privacy restrictions that apply to members and staff of the revenue committees has stepped forward and identified himself. Richard Efford, who has been on the staff of the House Appropriations Committee for almost two decades, explained what happened.

Efford is the senior staff member of the House Appropriations subcommittee with oversight responsibility for the IRS budget. Congress has appropriated more than $1 billion for IRS computer system upgrades. Efford claimed that his responsibility included the need to inspect the IRS use of its upgraded computer systems, and that to do so he had to visit IRS facilities to see how computer systems were being used and whether there was a need for continued increases in funding of tax collection efforts.

But when Efford tried to visit IRS facilities, the IRS objected. IRS officials explained to Efford that if a taxpayer's return information was on a computer monitor when he was in the room there would be a violation of privacy safeguards. The officials suggested that Efford get authorization from one of the revenue committees that has regulated access.

Efford explained that he thought there was no reason for a member of Appropriations Committee staff to "have to go beg" a revenue committee for permission to visit a facility where taxpayer returns were visible. When Efford told his story to other members of the staff, from both parties, one replied that he had encountered the same IRS objections.

Efford's solution? He wrote an amendment that would give him and the other staffers the same IRS inspection rights as the staffers on the revenue committees. Except that it left out the privacy protection provisions. That proposal went nowhere because of the risk that the chair of the Ways and Means Committee would react adversely to intrusions into his areas of responsibility.

Efford then turned to the IRS and asked for a statutory amendment that would resolve the objections that the IRS had to visits by Appropriations Committee staffers. The IRS changed "one or two words" in the language that Efford had drafted. The IRS did not add any privacy protection provisions.

Efford then inserted the language into the appropriations bill. It gave the chairs of the appropriations committees the power to designate committee staff who could "access ... Internal Revenue Service facilities and any tax returns or return information contained therein."

No one noticed the insertion because members and staff were busy negotiating and drafting other parts of the appropriations bill, one of the few pieces of legislation to challenge tax legislation for the "humongous" award, as it contains more than 3,000 pages. When asked about the provision, Efford and other staffers simply said that it was good because the IRS provided it. Apparently nothing was said about the fact it was Efford's language that had been run past the IRS with almost no changes.

Because of lack of sleep brought about by the need to work until the wee hours of the morning, no one noticed any problems. They thought it would be covered by standard language in the bill that states "the Internal Revenue Service shall institute and enforce policies and procedures that will safeguard the confidentiality of taxpayer information."

Yet at least one staffer saw a problem and sent an e-mail suggesting that a clarification made sense because otherwise someone would read the provision as letting staffers go look at other people's returns just "for grins." So they put into a separate report an explanation that the provision was intened to "streamline oversight" of the IRS.

Efford did not inform any member of Congress before he put the provision into the bill. He told Representative Istook, to whom he reported, about the provision, but after it was too late to change anything. Efford explained that the staffers saw the provision as "housekeeping" that would help members of Congress but that did not need to be brought to their attention. Efford also claimed to be "dumbfounded" by the controversy.

The story has several salient features that deserve highlighting and that corroborate accusations that the legislative process in the Congress is a mess.

1. What is so wrong with a staff member of the Appropriations Committee having to ask for permission from the Ways and Means committee chair to inspect IRS facilities? The point of asking permission is to bring the staff member within the privacy provisions. Why is asking permission such a problem? Concern that it would be denied for a good reason? Even more proof that asking permission makes sense. Concern that it would be denied for a wrong reason? At that point the member of the Appropriations staff could approach the chair of the Committee and let the matter be decided as it ought, in a dialogue between the elected representatives chairing the respective committees. Could it be that the problem is one of ego or convenience? Certainly. It is inconvenient to ask permission, but we learn as children (or should learn) that when it is necessary to ask for permission we do so, and we give the person being asked sufficient time to consider the request so that the response is timely. In an e-mail world, it really isn't inconvenient to ask permission. What it comes down to is ego, and that is a huge problem in the operations of Congress and much of the rest of the government. Concern over "saving face" or protecting ego too often ends up trumping doing the right thing. I speak from experience when I make the assertion that personality intrudes way too much into the decision making processes in the government. Public servants are supposed to serve the public.

2. The wickedly bad habit of leaving things go until the last minute, a trait shared by too many people inside and outside of government, generates mistakes, carelessness, and bad judgment fueled by stress, time shortages, and lack of sleep. The need for an Appropriations bill isn't a surprise. Legitimate emergencies happen, and those who need to deal with them do the best that they can even if there is a time shortage, a ton of stress, and sleep deprivation. The blame here lies with the Congress. Perhaps because a majority of the members of Congress are lawyers they bring with them the bad procrastination habit that law students demonstrate and that I find the most challenging to break. The "cram at the end" syndrome, encouraged by faculty who don't shift grade-contributing work into and throughout the semester, fails to teach the lesson that procrastination is bad far more often than it lucks out as a good choice. Cramming at the end fails to teach the lesson because most examinations aren't designed to exact a grade price from the procrastinators. Toss in the manipulators, those who delay the process in the hope that the time shortage late in the year will get others to cave in to the demands of the manipulators, and it's easy to see why something everyone knew needed to be done suddenly needs to be done yesterday. So by the time they get to the Congress, the procrastinators, joined by the manipulators, overwhelm the few members that want to approach government the way successful business entrepreneurs approach business, and turn the legislative process into an inefficient, and in this instance, dangerous process.

3. The Congress, not the staff, is responsible for its legislation. The Congress is so involved in so many things, an effect of 60 years of expansion of federal roles in more and more areas of life, that members cannot keep track of everything that is moving through the legislative pipeline. Most members of Congress do not read most of the legislation on which they vote. Only the high profile stuff gets some attention, and even then, it's a few provisions and not the entire package. Members of Congress have been known to write to the Treasury Department for copies of tax legislation. In this sort of environment, who's managing the legislation? Again, unless it is a high profile provision, it usually falls to the staff of the committee responsible for the bill. Who safeguards the bill from the staff? Apparently, the staff. That's a system that opens the door to the sort of fiasco that happened with the tax return access provision under discussion. There's a reason that lobbyists not only try to buttonhole members of Congress but develop relationships with members of the staff. The lobbyists know that there's hope in trying to get a staff member to tweak the language of a provision to which a member of the Congress has agreed in general principle. The devil is in the details, and the details are under the supervision of the staff.

At least some members of Congress are aware of the problem. Whether they can get this in front of the public and bring about pressure to have the system repaired remains to be seen. Senator Kent Conrad, a Democrat has stated, "Something really seriously bad is going to happen if we let this continue." Sen. John McCain, a Republican has added, "This process is broken."

Indeed it is. Perhaps now all the folks who thought I was hyperbolizing when I predicted this (and worse) would happen can begin to understand the reality. There is a huge chasm between the theory of the Civics classes that once populated every high school and the practices in the halls of government. Chasms of that sort invite disruption and unrest.

So let's hope Congress fixes this, takes a bipartisan approach, and does a better job than it did with the campaign funding issue.

Tax=Science? In this Respect, Maybe Yes 

A story in the Chronicle of Higher Education, Weakened Role of Science Advisers Creates 'Crisis' From White House to Capitol Hill, Report Says [subscription site] begins with this lead paragraph:
The process through which Congress and the executive branch receive scientific advice to make critical decisions is in a "state of crisis" that could result in poorly designed programs and costly mistakes, according to a report released on Thursday by the Federation of American Scientists.
All one needs to do is substitute the word "tax" for "scientific" and the phrase "just about everyone who understands the tax legislative and administrative processes" for "a report released Thursday by the Federation of American Scientists." It would read as follows:
The process through which Congress and the executive branch receive tax advice to make critical decisions is in a "state of crisis" that could result in poorly designed programs and costly mistakes, according to just about everyone who understands the tax legislative and administrative processes.
Inquiries from foundations willing to fund a study to prove this proposition are welcome.

Wednesday, December 01, 2004

No IRS? Really? Uh, Guess Again. 

Here we go. According to this report, White House officials attending a Richmond, Va., meeting of Congressional Republican leaders setting the agenda for the next Congress are floating the "national sales tax" idea. Perhaps it's like any trial balloon, see if anyone pays attention before getting too deep into the project.

But here's the weird part. The report states: "President Bush and House Speaker Dennis Hastert have both said the idea of a national sales tax deserves a serious look. For many, the idea of a world without the Internal Revenue Service is very seductive."

Who said, "For many, the idea of a world without the Internal Revenue Service is very seductive." I would like to contact that person and ask the following question:

Can you identify a state sales tax that is imposed without the authority, regulation, and administration of a government tax/revenue agency or department (no matter its name)?

The answer, I already know, is "Uh, well, um, ...." That's because a national sales tax would still be generating REVENUE, and it would be INTERNAL, so the agency administering or servicing it at the federal level would be...ta da... the INTERNAL REVENUE SERVICE. Oh, they could come up with some other name, but a federal tax agency is a federal tax agency, and you can't have a national sales tax without one.

So, listen, advocates of a tax that has disadvantages and flaws worthy of discussion in the future if this thing actually gets off the starting blocks, try advocating your project by selling its strengths. Don't mislead people into thinking that the IRS (whether or not renamed) would disappear.

Perhaps the person intended to say "For many, the idea of a world without the Internal Revenue CODEis very seductive." Well, where would the statutes enacting the national sales tax go? Duh, where ALL the taxes go: the Internal Revenue Code. So, nah, even if they meant "Code" and not "Service" they still wouldn't get it.

Right, that is.

Gee, I'm picky, aren't I? No wonder my students think I'm demanding. Yes, I'm demanding accuracy and honesty. After all, life, clients, good science, common sense, they're all demanding. We, the citizens, deserve accuracy and honesty. Ask for it.

Blogging as Scholarship? Yes, Indeed 

Tyler Cowen's musings on the scholarly content of blogging are definitely deserving of the two minutes it takes to read through them. It is the best compilation I've seen to date of the reasons law blogs can, and in certain instances, ought to be treated as legal scholarship. The days of the student-controlled, student-edited, untimely, narrowly circulated, limited production, paper academic law journals hopefully are limited. And if blogging contributes to their demise, I will shed no tears.

Tyler Cowen also makes some good points about how to read a blog, especially the benefits of treating a blog holistically rather than as a collection of separate postings. Readers of MauledAgain surely recognize that recurring themes illuminate my postings, even though I try to juggle about two dozen topics in a typically Maule pattern of multi-tasking (or is it multi-threading?). Someday I'll collect the posts on a selected topic, stitch them together, and publish it in what hopefully will be a digital journal that is timely, reaches tens of thousands of tax practitioners and others, and benefits from the comments readers of the blog have shared.

Partnership Taxation: The Quantum Physics of Law? 

Someone on a tax listserv asked for help finding a quotation from a court opinion about the challenges of partnership taxation. It was one of those "I remember having seen it but can't find it" situations. Another subscriber came through. It's worth sharing.

From Foxman v. Comr., 41 TC 535,551 (1964), Judge Raum, one of the most brilliant Tax Court judges and tax lawyers I've met, wrote in footnote 9 (long before I met him and long before tax was in my brain) the following paen to partnership taxation, the statutory provisions for which are in subchapter K of the Internal Revenue Code:
The distressingly complex and confusing nature of the provisions of subchapter K present a formidable obstacle to the comprehension of these provisions without the expenditure of a disproportionate amount of time and effort even by one who is sophisticated in tax matters with many years of experience in the tax field.
That was 40 years ago. I wonder what Judge Raum would write if he were alive and writing today. During those 40 years subchapter K has almost doubled in size and quintupled in complexity. In 1964 there was no substantial economic effect rule (nor its regulations) (section 704(b)], a much simpler and optional contributed property allocation rule (section 704(c)), no disguised sale rule (section 707(a)(2)), no rules for the characterization of gain on the disposition by the partnership of contributed property (section 724), no exception to the exception to the exception to the liquidating distribution sorting rules (section 736(b)(3)), no "marketable securities as cash" rule (section 731(c)), no mixing bowl transaction prohibition rules (sections 704(c)(1)(B), 737), and no large partnership rules (sections 771 et seq). I probably forgot something. And of course, the regulations have quintupled in size and whatevered in complexity, in part because of the additions to the statute, and in part because of IRS attempts to deal with issues Congress hasn't addressed (yet), such as the anti-abuse regulations and the check-the-box regulations.

No wonder even LL.M. (Taxation) and M.T. students in the Graduate Tax Program consider Partnership Taxation to be the most challenging course, and one that some fear and that for others generates intensive anxiety. And the J.D. students who have the courage to enroll in Introduction to the Taxation of Business Entities? They rate it the most difficult course in the J.D. curriculum.

Most difficult. To take as a student? How about to teach? My offer to swap either course for Property, Contracts, Family Law, etc., etc., remains unaccepted. That's no surprise. To be fair, I wouldn't swap for Constitutional Law, because I happen to think that course is most challenging, because it is so different from the structured arrangement of tax. Slippery slopes are dangerous, whether on skis, in a car, or in a Con Law classroom (on either side of the podium). One never knows what's at the bottom.

More on Per-Mile Road User Fees 

This from a reader on the per-mile road user fees being proposed as replacements for state gasoline taxes:
Great post on user fees:
[referring to previous post]

While generally sympathetic to user fees, I am concerned about the
impact on less wealthy persons. My concern is not that user fees are
regressive per se, but rather that less wealthy persons will bear the
burden of user fees because of other, structural, reasons including
distance traveled. As an example, my employer lives 2 miles from the
office. I live 20 miles from the office. I would have to pay 10 times
the user fee that he does, yet I do not make anywhere near 10 times the
income that he does. Indeed, he makes about 5 times my income!

What is the solution to this problem? I cannot move any closer because
I simply cannot afford housing near my job site (or any location in
between). This is also true of my 3 similarly-paid co-workers. I
suppose I could get a new job, but that's not feasible. It's not that I
*want* to drive on the roads - I'm about to purchase a road bike to
ride to and from work on the nights that I don't have law school - but
rather that I cannot afford to live close to where I work and thus have
to drive to get there! This problem seems to be a large hurdle to
implementing user fees. Why should I have to pay for the roads when
there is practically nothing I can do to avoid using them? Perhaps
there is some way to distinguish driving to work and driving for other

Your thoughts are appreciated.
My reply:
Thanks for your comments.

The gasoline tax generates the same discrepancy.... with the variable being fuel efficiency. If you and your boss get the same MPG you are paying five times the gasoline tax than he is. If he can afford a newer, more efficient vehicle then you may be paying 8, 12 , 20 times the gasoline tax than he is. Of course, if your vehicle is more fuel efficient, you pay disproportionately less gasoline tax. Studies show, though, that the lower the income, the older and less fuel efficient the vehicle. So as a general proposition it could well be that the per-mile user fee, though regressive, is less regressive than the gasoline tax. Of course, there will be individual cases where it plays out differently, but the comparison is best made in toto rather than by singling out the exceptions.

One other variable: your boss may use his car for other activities more than you use yours. He may need to drive more miles going to some place in the other direction. You may be closer to the stores than he is, or closer to you gym. How it plays out in an individual situation doesn't necessarily tell us how it plays out in toto.
I guess it was a good reply, for this shortly followed:
Yes, of course, the variable of fuel efficiency! I completely missed that step. I am now sold.

This could be an idea that catches on. I'll keep you posted.

Newer Posts Older Posts

This page is powered by Blogger. Isn't yours?