Thursday, April 14, 2005

Some Tips for Tip-Collecting Bloggers 

What can get me to post more frequently than the habitual Monday, Wednesday, Friday pattern? Among other things, it includes reading an article about the tax treatment of cybertips and noting that some tax misinformation is being delivered by someone quoted in the article. The article about bloggers relying on cybertips in this morning's Philadelphia Inquirer had a dual effect. It brought back memories of a discussion of this topic a few months ago among tax law professors, and it caused me to think that perhaps there is some truth to my theory that the closer we get to April 15 the more tax myths circulate among the citizenry. I'd have been on here sooner with this, but I was detoured for a few hours by an emergency dentist visit to get initial treatment for a broken tooth. No, I was not in a fight. It just broke. Well, what was left of it broke. Maybe it's age. Seriously, I think it is a leftover from the incident that caused the first broken tooth. Anyhow, be happy I spare you the gory details as I'm sure you don't want to hear about the ROOT cause (or effect). And be happy I'm not asking for tips.

Back in February, Paul Caron raised the question on the TaxProfBlog, and also brought it directly to the attention of the tax law professor community. When we had finished sharing our thoughts, Paul compiled the comments in a follow-up post, that, surprise, quoted, among others, yours truly. I'll return to those comments in a moment, but first, the facts.

What triggered Paul's initial post was an inquiry from a law professor who set up a tip jar on his blog. He had the good sense to ask about the tax consequences. Today's Philadelphia Inquirer article not only mentioned Eugene Volokh, who made the tax inquiry, but also introduced me to a few of the many other bloggers who have set up cybertip jars.

There is Susie Madrak, a fraud investigator and former journalist, who picked up $1,500 from her readers when her car died. She begged for the money. She posted a photo of a kitten and threatened to kill it if people didn't send money. Brad DeLong, a professor at the University of California, intends to use his tip proceeds to hire research assistants. John Aravosis, a writer and political consultant, has seen tip proceeds generated at least in part by requests made by his friend Duncan Black, an economist, on Black's blog. Black urges blog readers to send money to their favorite bloggers and asserts that wealthy readers should send amounts in the thousands. Black, though, has turned from seeking tips himself to selling ad space on his blog, and generates about $6,000 a month in revenue. Andrew Sullivan gave up soliciting for tips because when he did his third "beg-a-thon" after raising $79,000 and $120,000 on the first two, and claimed that he had bandwidth expenses, people began to raise questions, considering that bandwidth costs far less than tens of thousands of dollars. So, instead, he is trying to get readers to subscribe for $20 a year.

Now to the law. There is no question that employee tips constitute gross income, and thus are taxable. Some bloggers, though, think that cybertips are not taxable because they claim the tips are gifts. Gifts, of course, are excluded from gross income and thus are not subject to income taxation (though large gifts are subject to federal gift tax). Madrak states, "A gift is not taxable. You don't pay taxes on your birthday presents."

Madrak's statement, taken alone, is correct. In context, it is incorrect. It is relevant only if cybertips are gifts. Are they?

A gift is a transfer for which the donor has no expectation of receiving something in return. There needs to be, to borrow words of the Supreme Court that it warned was not the test but that courts have used as the test ever since, "detached and disinterested generosity." A cynic, of course, can point out that rarely is there detached and disinterested generosity, other than perhaps, when it comes to parents making gifts to children. Is there a gift when transferors think they are buying the survival of a kitten? Is there a gift when transferors think they are ensuring the continuation of a blog? Some tax commentators suggest that if the transferor isn't looking for something in return that there is a gift, and that this approach requires analyzing the motives of each individual transferor. Some of the cybertips could be gifts, and some might not. With the burden of proof on the taxpayer, how does a blogger prove the "detached and disinterested generosity" of transferors? Surely when a kitten's life is seemingly at stake, or the continuation of the blog is said to be at risk, the taxpayer's burden is near impossible.

Some of the difficulty arises from the fact that these contributions are called tips. There is an ironclad rule for "tips." Tips must be included in gross income. The IRS regulation in question (Regs. section 1.61-2(a)(1)) sets forth that interpretation of section 61 very clearly. Section 61 provides that gross income includes all income, unless an exclusion applies. Tips are income. There is no denying that conclusion. Tips make the recipient economically wealthier. So unless an exclusion applies (and the exclusion for gifts is the only one with any chance of being in play), tips are included in gross income, and thus end up in taxable income. When the question has been posed to the courts, the decisions are unanimous. The courts have held that gross income includes tokes left with casino dealers, and side money left for dealers. Gross income includes tips by bridegrooms to city marriage license clerks. Offerings and fees left for clergy members are treated as tips. One case involved money sent to a clergyman by listeners of his radio program. It's very difficult to find a tax-significant distinction between the cybertip jar and the radiotip jar. Different medium, same process, same result.

Here's what I said when Paul Caron first circulated Eugene Volokh's question, in response to an argument that cybertips are similar to amounts spontaneously handed to preachers after an inspiring sermon: "The blogger puts 'if you like this and want more, drop me a few bucks' tag on the web site. Most preachers, I think, do not end sermons with 'if you liked it and want more, drop a twenty in the collection plate when it comes around.' Does the 'fishing' for the money make a difference?" [Ignore the fact that money transferred directly to the church (rather than to the minister) would be non-taxable to the church because it is a tax-exempt entity, because most, if not all, bloggers are NOT tax-exempt entities.]

I think the "fishing" makes a difference. It takes away the spontaneity that characterizes a gift. It gives the transaction overtones of business activity. Surely, considering that the transfers are called tips and have the same characteristics as do gifts, it's quite a stretch to call them gifts.

Ultimately, when the issue is litigated (and it will be considering the amounts involved), the IRS will rely on the case involving the radio preacher. I doubt any taxpayer or taxpayer advocate will find a plausible, reasonable, successful factual distinction that will persuade the court to reach a different conclusion. To think otherwise not only puts the blogger who fails to report this income at risk for an audit, it also puts that blogger at risk for interest and penalties. Perhaps readers will follow-up with cybertips for the "I'm in tax trouble" cybertip jar. Let's just hope no more innocent kittens are put at risk.

And, please, worry not about the cost of the tooth repair. The temporary repair has made it possible for me to talk without scraping my tongue on the exposed razor-sharp filling. With pain-free talking having been restored to yours truly, perhaps the temptation will be to send money to shut me up. DON'T. It's been tried. It doesn't work.

Wednesday, April 13, 2005

A CPA Tax Monopoly? Hardly 

Last Friday I addressed the quesion of Do I Really Need to "Take" Tax?" and shortly thereafter this question to me from a law student at another school arrived:
As you know, I am very interested in tax and I plan on taking federal income tax next year. However, a few of my professors have discouraged me from going the "tax route" because I don't have a CPA. I do have a graduate degree in economics, but they insist that I'll be disadvantaged because I don't have an accounting background. Even after I tell them that I get the numbers - I had to take accounting and finance for my graduate degree - I am told that the CPAs will get jobs before me, so don't bother.

I say hogwash. The economist in me says that they are trying to artificially limit the market for tax attorneys by discouraging would-be students from entering the market! OK, I'm just joking about that. I think my professor's are genuinely concerned with my future. What say you? Do you think an accounting background is essential to being a good tax attorney?
My reply is that I think that these law professors, like many, many law students, don't understand what tax practice involves. They see it as a numbers thing in which CPAs dominate the arena. They think it's about preparing tax returns. They think April 15 is the most important day in the tax practitioner's year (hint: why is it tough for tax lawyers to get to New Year's Eve parties on time?) Nothing could be further from the truth.

The tough questions in tax practice, which is what tax attorneys are paid to handle, require analysis and communication skills that are sharpened in law school. That's not to say that there aren't CPAs who can read statutes, engage in legal analysis, and write well-crafted memoranda and opinion letters, but there is enough truth to the stereotype that CPAs are not in the habit of "starting with the Code" and don't set the world on fire with their writing to preclude a world in which CPAs own tax practice. Whether it is problem prevention (planning) or problem solving (compliance), tax attorneys, most without accounting backgrounds, populate areas of the tax practice world into which few, if any, CPAs have ventured (or should venture).

A CPA is a person who is a certified public accountant. CPAs have the edge on public accountants because they are certified, which means they can certify audited financial statements. That has little to do with tax as such. In the employment arena, yes, CPAs will get the edge in some jobs (e.g., in large accounting firm tax departments or for slots that focus on highly technical stuff such as the tax rules for inventory, or OID computations), but there are huge numbers of tax attorneys who not only lack CPAs but don't have accounting backgrounds. Many tax attorneys (and, yes, some tax law professors) did not "turn to the light" of taxation until second or third year of law school, or at some point early in their legal careers.

Granted, a person who has a JD degree and who is a CPA has an edge, just as a person who has a JD degree and an MBA degree has an edge, assuming all the other factors are equivalent. Likewise, the combination of LLM (Taxation) and CPA status moves a person into a small group, but doesn't guarantee the top jobs or the highly prized positions. After all, that person with the JD and CPA, who carries a 3.1 GPA from college and a 2.8 GPA from law school just might be the second choice if the other candidate is a JD from a top 25 law school, carrying a 3.9 GPA and a newly acquired burning desire to wrestle with the words of the Code.

I've taught the basic tax course 24 times (big anniversary party next time around?). I don't think there's been a semester in which at least one person did not come to my office, nervous, perhaps physically shaking, sometimes in tears, frantic because they want to take tax because it's on the bar exam but are convinced they are "no good at math." Before I can address this concern, they then tack on what may be a bigger fear, namely, the wreckage of their GPA as "the accountants will take all the As." Here we go......

Though tax involves numbers, there is very little mathematics involved, even if one treats arithmetic (addition, multiplication, etc.) as mathematics. Most of the time the numbers are far easier to manipulate than those tossed about by these students when they go shopping and are compelled to figure out which purchase opportunity is the best deal. Too often, the "math phobia" is claimed by female law students who have been told all their life that women aren't good with math and science and who have internalized that claim. That claim, of course, is a bunch of malarkey, because even with biological differences in the brain, gender difference doesn't make women arithmetically illiterate. The surprise, to me, is that this nonsense is still being spread about in our K-12 and undergraduate schools and elsewhere, in the face of data that disprove this silly notion. Usually, I get that out of the way with little difficulty.

Then I turn to the "accountants own the As" claim. The first problem is the assumption that there are a finite number of As available to be owned. Actually, for many courses, that's true, when faculty hold to artificial curves, but if one grades against a standard, there theoretically is no limit to the number of As. As a practical matter, reinforced by experience, not every student earns an A. In fact, most don't. But surely if a person does A work, there isn't, at least in my grading, some mechanism that says, "Sorry, you don't get an A because they ran out and you're not an accountant."

Then I point out to them what they, and many others, find incredible. As a group, accountants, namely, those with accounting degrees, who may or may not be CPAs and who may or may not have accounting practice experience, do not do as well as the rest of the class. "What?" you may exclaim in unison with the other non-believers. I have a theory. I think that many of those with accounting backgrounds or degrees figure they can breeze through the course because they "know" the law, or at least know how to get compliance-focused answers. And they do. But, that ability doesn't serve them well in my courses, where the emphasis on understanding as superior in importance to mere knowledge discounts the value of their abilities to crank through computational stuff (which isn't as pervasive in the course as they, or others ignorant of what the course involves, think). They end up not reading the Code. They are the ones who complain on the evaluations that I should be using "the West book because it lays out the rules nicely." Sure, but it doesn't teach them to THINK and to ANALYZE and to COMMUNICATE WELL. And I can usually spot an answer written by an accountant, because their answers very often omit ANY reference to a Code section or other source of law. Of course, because they "know" the rules they can do well enough to avoid very low grades, but that's no guarantee of an A. That's not to say all of the accountants fail to adjust, because those that do demonstrate that the JD-CPA combination can be powerful. It's just that many of them don't make the effort to adjust and lose out on an opportunity to excel.

In the meantime, those frightened and distraught students decide they have no choice but to take my advice (unless they want to skip the course, which, as I explained in Friday's post, is unwise). They become ideal students. They do what I want them to do. Sure, there's a fear factor at work. What happens? By the end of the semester, not only have they come to realize they can do the work and do well, they begin to LIKE tax. Some of them decide at that stage in their law school careers to become tax attorneys. Incidentally, I'm not the only tax law professor who has this experience and I don't take credit for what we call the "tax converts" because it is the nature of the material itself that pulls in these folks. And most of my tax teaching colleagues throughout the country indicate that they, too, don't view themselves as some sort of pied piper guru on this matter, though most, like me, will milk the situation for every joke, smart aleck comment, or pun that they can find.

So why are other law professors telling the student who emailed me to avoid tax because of the absence of CPA status? Simple. They don't have a clue as to the nature of tax practice. Some don't have much of a clue as to the nature of law practice, period. They heard similar rumors when they were students, very possibly didn't take the tax course, tuned out or didn't circulate with those who arrived with a commitment to, or "converted" to, tax as a practice area, and see tax only as the agonizing experience they pass off to a spouse or a paid preparer come tax filing time. These are the ABT of the law faculty, a term given to those laywers who, when applying for a teaching position and asked what they want to teach, reply "anything but tax," amusing not only because of the inclusion but also because of the idea that a person could teach securities law OR environmental law OR land use planning OR domestic relations law OR civil procedure OR admiralty OR trademarks....true renaissance folks, but, ah, not tax!!!! Toss in the fact that most tax law professors can and do teach non-tax subjects and the renaissance lawyer identification picture becomes rather fascinating.

That's not to say that ALL law professors give such misguided advice as was dished out to the student who emailed me. I have more than a few colleagues here, including several who profess to know little about tax (perhaps to avoid getting roped into teaching the course), who know and understand a lot of tax, incorporate bits into their courses, do their own tax returns, and give good course selection and career choice advice to students. Others, though fending off tax as a pit bull thwarts intruders, will send the inquiring student to one of the tax faculty to get sound advice. Yes, I and my tax colleagues have been around here long enough and have brought up the issue enough times that the message has been sent and received, with few, if any, exceptions. That it is not so at some of the other law schools is both surprising and yet, not surprising.

The bottom line answer to the student's question is, "No, an accounting background is not essential to being a good tax attorney. You can be a great tax attorney even if you don't have an accounting degree or a CPA certificate. The list of prominent tax practitioners, Tax Court judges, government tax officials, and other lawyers involved in taxation, who lack 'accounting backgrounds,' is long and inspiring. Of course there are those who DO have accounting backgrounds who have done well. And some who haven't. So the accounting background not only is not a prerequisite, it also fails to be a guarantee."

Monday, April 11, 2005

The New Red Scare 

The news in this report on ink colors used for grading gets my nomination for top prize in the Warped Impact of Political Correctness Contest. And if it can be nominated for more than one award, then an entry for it should be made in the Coddling Oversensitive Student Test Takers Competition. But perhaps it deserves the We Want Everyone to Coddle Our Little Darlings the Way We Do As Parents Grand Prize.

According to the story, parents (but apparently not students) objected to the use by teachers of red ink to point out errors in student responses and to give guidance for improvement. Parents claim that the use of red ink is "stressful." News alert, dear parents, so, too, is life. Try getting your child ready for it instead of teaching your child that the world will accommodate his or her every whim and desire.

One school surrendered to the parents (who apparently know so much more about education than do the teachers) because the school administrators decided that they "need... the parents' understanding." Understanding of what? Dear teachers, take your teaching skills and teach the parents to understand what good teaching involves. Explain that red is a color that gets people's attention, which is what good teachers need from their students. Point out that the traffic signal for stop is RED. Oh, wait, don't. That might just encourage these progenitors of specialness to campaign against the use of red lights because they, too, make their children stressed. Their children, you see, would be better off with devices in their cars that turn lights green for them as they approach so that they will never, ever be stressed in their lives. Pardon the sarcasm, but the world already suffers from the existence of too many people who think the world, one way or another, should bow to their demands and wishes and too few people who keep the phrase "my responsibilities" parked in their brain next to the phrase "my rights."

So the schools now use blue, and purple, and green, and all other sorts of colors. Allegedly, children are scared of red. Could it be they are scared of the consequences of not paying full attention to their academic tasks because they're caught up contributing to the high national daily television viewing average or the corporate profits of videogame manufacturers? Sooner, rather than later, the same parents, or their successors in spirit and values, will complain that their children's papers have too many comments on them. How amazing that people not only want to pretend toward the unrealistic but want everyone else to join them in doing so.

Another principal told his teachers to use colors that exhibit more "pleasant-feeling tones." A classic example of post-modern politically correct culture at its best. The idea that life and all that one encounters in it will be pleasant-feeling is a subscription to a hedonistic culture that cannot sustain itself. The question is whether it brings down everything around it. The chances of that happening increase when that distorted value set invades the education system. By definition, the tag "postmodern" has no end, and thus it is time to coin a phrase for what passes today as "postmodern" and "politically correct" and that manifests itself in such inanity as this new "red scare." I propose "antiauthoritarian culture" because that's what it is. Pyschologically, deep underneath the protests about the use of red is a rejection of the authority of teachers to evaluate the shortcomings of the efforts put forth by the students whose parents measure their own worth by the success of their children.

Yet one "color specialist" with a psychology background claims it is good to change colors because people tune out when the color is the same. OK, let's change traffic light colors every week. Surely THAT would alleviate boredom, if nothing else. This specialist's concern with the negative reactions of students who have too many red markings on their work product week in, week out distract us from a focus on why some students habitually underachieve and get those red markings. It probably has something to do with the existence or non-existence of home support for education as a noble goal and diligence as a worthy personality trait.

As for the teachers who claim that the goal is to remove the impact of red as a negative messenger, why not continue or resume the practice of awarding GOLD stars for good work? My guess is that some parents would scream that their child deserved gold stars simply because their child is, well, their child. We know what happens when some parents show up at their children's sporting events and don't think their child is being treated as the star that he or she unquestionably is. The fun begins when those parents meet other parents who make the same claim about THEIR children. So why don't we simply conclude that 100% of the population is in the top 10%, give them all As, let them buy medical degrees on the Internet for $10, and then let them perform brain surgery. It will be fun putting together their patient lists.

Continuing with the sarcasm, it is so reassuring to know that as much as I have expressed frustration with the shortcomings of the K-12 and undergraduate education system in general, that steps are being taken to make things worse. The world isn't going to sugarcoat its rejection of failure, and there's no point in misleading children into thinking that they're going to grow up and live in Never-Never Land.

Well, when they get to law school they'll discover that they get their comments in Blackboard classroom postings that are in black. Their grades are reported by the Registrar using black ink or through digital media using black. When I grade examinations, I use red. When I make comments and editorial changes to papers submitted in digital format, I use red. After all, purple is too close to the black that is used by the student in typing the paper, or to the blue or black used in writing the examination.

I've yet to hear a graduate tell me that my use of red stifled their legal career. Quite to the contrary.

Friday, April 08, 2005

Do I Really Need to "Take" Tax? 

Earlier today, someone who is planning to teach a tax course for law students not intending to practice tax law asked advice about leading off the course with a fact situation that might get their attention, specifically, one related to tax issues affecting baseball players that has been under some discussion. Some schools, but not mine, offer such courses, and often they are called "Tax for the Uninterested" because the students who enroll intend to practice personal injury law, domestic relations law, or in similar so-called "non-tax" areas. Often, these courses exist because tax is a required course or because tax is on the bar exam of the state(s) in which the students intend to practice. Otherwise, as is the case at my school where tax is not a required course, there would be (too) many students who would avoid the course for all sorts of reasons, none of which make sense if carefully analyzed.

Someone asked, "How can you be a PI lawyer if you don't understand the tax aspects of structured settlements and the issues of coordinating you fees with your clients collections? How can you be a domestic relations lawyer if you don't understand property settlements, not to mention rearranging the closely held corporation?"

I couldn't resist, and so I rejoined, "How can you be a lawyer if you don't understand tax?"

And as soon as I sent the email, I thought, "BLOG TOPIC!!!!!"

Blog topic indeed.

Tax is everywhere. I'll let you play with the theological implications, even though it is mathematics and physics that are seen as the universal cosmic construct. I also teach a course in Decedents' Estates and Trusts, so I joke that if law were to shrink (imagine!), I'd be the one to turn off the lights, because as the end approached, we'd be left with the law affecting the two certain things: death and taxes.

And that's the point. How, indeed, does someone practice law without understanding tax? I've played this game many times, with students, other law professors, other academics, and even family members who (somehow) aren't lawyers. It's not just domestic relations law and personal injury law. It's corporate law. It's bankruptcy law. It's environmental law. It's immigration law. One of the tougher retorts is "How about criminal law?" The answer? First, there are the cash receipts reporting requirements, putting lawyers, including and as a practical matter, chiefly, criminal attorneys under an obligation to report payments received in cash that exceed $10,000. Second, when negotiating agreements, whether something is cast as restitution, a penalty, or a fine may have adverse or beneficial tax consequences to the defendant depending on how the arrangement is structured.

Each way we turn, there's a tax provision or two or three or dozens or more waiting to "get in the way." Though easily brushed aside in a law school course, those provisions are waiting for the law graduate. Practitioners cannot brush aside the things that are uninteresting, challenging, or complex. Yes, tax is everywhere.

And here is the clincher. Today I had a question from a law student almost identical to a question that I've been asked way too many times during my professorial career. Essentially, what does a law student who works for an attorney do for tax purposes when the attorney treats the relationship as one of independent contractor when in fact it is one of employment? I'll analyze that question in an upcoming post, but the upshot is that, absent very unusual facts, the student is an employee. Years ago many attorneys (and others) thought they had discovered a tax-savings plan and treated their law student employees as independent contractors. The IRS stepped in, audited some attorneys, and sent a powerful message. The practice almost died out, as indicated by the ever-dwindling number of hands raised when I asked students each year when section 164 was on the table if they had been treated as independent contractors. Now, it seems, over the past year or so, the practice has resurfaced. At least a dozen students have raised the issue with me during the past 15 months, as many as had raised it during the past 6 or 8 years.

So.... are tax lawyers doing this? Noooo. It's, well, mostly personal injury lawyers, several domestic relations lawyers, and a few others. And they wondered why, when the IRS announced the first four groups it would scrutinize when it adopted its industry-focused audit programs, lawyers were among the four groups. Yes, that's how bad tax compliance is among lawyers.

So, if for no other reason than the fact lawyers are going into a professional business, they need to take tax when they are law students. Even if their law faculty fails to compel them to do so, they need to take tax. There's no escaping it. And if they're going to get bitten, it's better to miss a few points on an early-in-the-semester exercise than to go down in practice, either on one's own, or taking a client or an entire law firm down with them.

And no, I'm not grubbing for students. My courses are usually full or close to full.

And don't get me started on the comparison of the percentage of lawyers doing estate planning and the percentage of law students who enroll in the tax courses essential to doing estate planning. It's scary.

And I'll leave it at that for now.

Wednesday, April 06, 2005

Babysitting Cooperatives and the Income Tax 

Yesterday during an on-line discussion someone raised a question concerning the tax consequences of babysitting cooperatives. I didn't know such things existed until a few years ago when the same question was raised during a similar on-line discussion. One can learn many things teaching or practicing tax law. Someday I'll make a list of "Non-tax Tidbits Learned While Teaching Tax" and I'll share them with my readers.

When the babysitting cooperative issue popped up a few years ago, I wrapped it into an exercise for students in the J.D. Program Introduction to Federal Taxation course. I posted the question, gave them roughly 5 days to respond by email, and then shared with them a model answer accompanied by comments reacting to things they had written. I'm going to share the exercise and the model answer so that people outside the law school (and perhaps people inside the Law School) can comprehend more easily how I try to put law into a practice context rather than in a more abstract or theoretical setting.


THE PROBLEM: You are working as a law clerk in a small law firm. A partner encounters you and asks: "You're in a tax course, right?"

You reply, "Yes."

Partner: "Good. I need your help. We have a client who expects to be nominated to the federal bench. As you know, when a person is nominated a significant background check is conducted, including a review of tax returns and interviews with co-workers, supervisors, neighbors, colleagues at clubs and houses of worship, and others. It turns out that when the investigators were talking with the neighbors, they all spoke highly of our client. They especially admired the way our client and her spouse had raised, and I quote, wonderful children who are great babysitters. It turns out that many of the people in the neighborhood had made arrangements to share babysitters. In other words, A's oldest might watch B's younger children one night while B's oldest was rehearsing a school play. Then B's oldest might watch C's children another night. C, in turn, would take F's kids in during the day if F had errands to run. There were about 15 to 20 families involved in this. No money exchanged hands"

While the partner takes a breath, you respond, "I've heard of these so-called neighborhood babysitting cooperatives, but I never saw one up close."

Partner: "Nor have I. But I grew up in a different world. Anyhow, there's some concern among the partners here that there's going to be some problems when our client's tax returns are audited."

You: "Why?"

Partner: "Well, nothing was reported as income on account of this exchange of babysitting and child care services. And if there's unreported income, that's a death knell for a judicial nominee."

You: "Was there much involved?"

Partner: "From what we know, each family ended up with 4 to 5 hours of help every other week, and each family provided about the same. We hear that babysitters can earn as much as $10 an hour, or more, so that works out to about a thousand dollars, give or take."

You: "Hmmmm."

Partner: "OK, I know that means you're stuck, but do you think this is going to be a problem? Do these sorts of arrangements generate gross income? Because if they do, our client may be in the same mess as several nominees several years ago who weren't paying employment taxes. The Congress really dislikes nominees who don't pay their taxes. Can our client's return, as filed, be justly criticized?

You: [Your turn. Give the partner a brief, conversational reply, and no, you cannot say that you need to go do research and will get back to the partner.]


Here is the model answer:



The client's judicial candidacy will be challenged. Whether that challenge will cause the nomination to fail is a difficult question. Theoretically, the candidate has unreported gross income, because the receipt of value in exchange for providing services through the children caused the candidate to be economically wealthier. The resulting income was clearly realized because the candidate took the benefit of the babysitting services that were provided. However, as a practical matter, the IRS does not challenge taxpayer who fail to report gross income from bartering transactions that are small in scope, unrelated to the taxpayer's professional or commercial activities, and modest in amount. Had the candidate been exchanging tomatoes for zucchini, without reporting the gross income arising from such a transaction, the IRS would not have challenged the return and no one, other than an opponent searching for the slightest thread of noncompliance, would make an issue of the matter. In this instance, though, the bartering of services was not small in scope; in fact, it was organized and involved dozens of people. It was more than modest in amount, generating thousands of dollars of value per participant. Nonetheless, none of the participants, including the candidate, operate babysitting services as a professional or commercial enterprise.

I suggest that the candidate be told of the situation so that the decision to withdraw or go forward can be made with full understanding of the risks. Keep in mind that there are thousands of these babysitting arrangements in place throughout the nation and the IRS has yet to make an issue of the matter.


And here are some of the comments which I made in reaction to what students wrote. They illustrate not only the sorts of pitfalls that await those exploring the application of tax law to a set of facts, but also some basic tenets of tax law that might come as a surprise to some taxpayers who haven't studied tax law:


An analogy between an attorney performing legal services for a landscaper who provides year- long grounds keeping for the attorney and the babysitting situation ignores the distinction that arguably exists between bartering professional and commercial services and bartering services that are not professional or commercial. The better analogy is the one that involves friends who help each other move.

Amounts received for providing babysitting services constitute gross income. There is no factual basis to conclude that the amount of income derived from babysitting does not generate sufficient income to cause tax liability is incorrect, because it is possible for a person to earn thousands of dollars from babysitting. Consider, for example, the adult who babysits children 40 - 50 hours per week at $15 or $20 per hour.

A person's status as a minor does not affect whether or not a receipt is gross income. None of the gross income concepts or exclusions that we have examined refer to the age of the taxpayer. None of the exclusions or inclusions we have yet to examine or will not examine refer to the age of the taxpayer.

Unquestionably, when people exchange services, they are wealthier. There is no way to defend the client's tax return by asserting that the babysitting services did not make the client wealthier.

It does not matter that the services are being provided by the neighborhood children, because the focus is on the clearly realized increased wealth of the client and the other adult neighbors. Whether the children have gross income depends on facts that the exercise did not disclose. For example, did the parents arrange to provide additional allowances or items in kind to the children in exchange for the children providing services to other neighbors?

The personal exemption ($3,050 for 2003, not the unadjusted $2,000 amount) is not available to children who can be claimed as dependents by another person on that other person's return. Even if a taxpayer has sufficient deductions and exemption amounts to make taxable income zero, that doesn't change the analysis with respect to the existence and reporting of gross income.

There is no debt involved in the transaction. If people agree to exchange services, the "obligation" of the second-to-perform is not a debt that offsets the increase in wealth realized by the first-to-perform. Taken to its logical end, this analysis would negate all income as gross income. For example, under this approach, the "obligation" to perform services would offset salary as gross income. That is one reason this "debt" approach is inappropriate.

No cash exchanged hands. Be careful with facts.


When people tell me that "tax is not law because it's simply mechanical application of accounting rules" it's easy to find examples of why their perception is, to put it nicely, misinformed. The babysitting cooperative issue is one such example. There are many others.

Monday, April 04, 2005

The Tax Gap: BIG. Wonder Why? 

The IRS has released information on the tax gap. According to the report, based on a sampling of 46,000 tax returns for 2001, the gross annual tax gap is between $312 billion and $355 billion. With the IRS tracking down about $55 billion, the net annual tax gap is between $257 billion and $298 billion, for a noncompliance rate of 15% to 16.6%.


Perhaps I need to change what I tell my students, which is that there is more "room" for noncompliance with respect to deductions and credits because the law with respect to gross income is much less fuzzy and withholding makes it difficult to avoid taxes. Yet, despite withholding rules, between $14 billion and $18 billion of taxes attributable to gambling winnings, awards, and similar items go unreported and unpaid each year. Somehow, and this suggests that some employers are conspiring with employees to avoid taxes, enough wages go unreported each year to cause between $14 billion and $18 billion of taxes to go unpaid. Sole proprietors operating businesses other than farms fail to report enough income to reduce tax collections by something between $59 billion and $65 billion each year, a finding that is consistent with the "pay cash pay less" anecdotes and which speaks volumes about public attitudes toward taxation. Perhaps folks not qualifying for all those special interest provisions such as those buried in last fall's tax legislation (which I blogged here, here, here, here, here, and here) are engaging in some "do it yourself tax cuts." Partners, S corporation shareholders, and trust beneficiaries are failing to report items that would generate between $16 billion and $24 billion of taxes.

From a percentage perspective, the results are very enlightening. Topping the list is alimony income that would generate income tax, of which 21% to 23.8% goes unreported. It is followed closely by credits (17.1% to 22.1%), which is not a surprise, because the earned income tax credit has been a compliance problem since it was first enacted. Unemployment compensation income and state income tax refund income follow.

When this news was posted on the ABA-TAX listserv, one subscriber suggested that there are "two culprits for non-compliance," namely complexity and burden of compliance, which in turn encourage people to play games with tax planning. Another subscriber pointed out that some complexity arises from efforts to shut down such game playing, giving as an example the at-risk deduction limitation rules, and that the problem is a cultural one, namely the acceptance of potentially abusive tax avoidance and the re-definition as aggressive of what was once considered to be abusive. I share my reply:
If the at-risk rules were so successful, why, then, the need to layer on the complexities of the passive loss rules? I think there is a difference between complexity arising from the non-tax complexities of life and complexities arising because the tax law creates complexities that otherwise would not exist and that in turn encourage further complexities that taxpayers try to make appear as complexities of life.

For example, if any sort of tax (income, sales, consumption) has an exception, complexity arises when people try to make something that is not in the exception appear to be in the exception. Thus, every special rule in taxation that reflects a tax break rather than a distinction based on something other than tax ought to be repealed, or not put into the law in the first place. That's why bridge tolls are far from complex, even though one could make all sorts of arguments to reduce the toll for car-poolers (environmental policy), or to increase it for extra passengers or weight (less stress on bridge), etc. The latter is at least closer to the purpose of the toll (finance the operation of the bridge) and the latter is the intrustion of non-revenue purposes into the tax law/ bridge toll law. Implementing either would involve complexity (including logistical complexity).

Most complexity in the tax law arises from the insane flurry of legislation enacted during the past 15 years that reflects the "I'm special" (or "my project is special") bleatings of the lobbyists and their clients. The "it would be nice/just/fair/smart/wise/sensible/good/ to create this special rule" argument too often is "it would be expedient to enact this special rule because it gets us votes" politics. Taxpayers know this, and thus feel justified in creating for themselves
the equivalent of the exception for which they did not have the money or connections to get for themselves directly.

Thus, I think that noncompliance increases in direct correlation to the extent taxpayers perceive the tax law as unfair. The more disporportionate a tax law's complexity is to the complexity of the context in which the law applies, the more unfairness will be perceived by more taxpayers.

And I agree, the answer is not simply a matter of changing the type of tax. It's a matter of changing the mentality that spawns the tax law.
I'm a tax teacher. I'm supposed to have the ability to change people's tax mentalities. I'm working on it.

So Who Can See Your Tax Return? 

Apparently, a lot of people, if you use P2P (peer to peer) file sharing and have it configured to access files on the same computer drive on which you keep your tax return. And they can see just about everything else on the computer, unless you take steps to isolate the files open to the P2P program.

This isn't my discovery. It was publicized by Michelle Malkin.

And this isn't my discovery of the discovery. It was brought to my attention by the ever-eagle-eyed Paul Caron of the TaxProfBlog.

This is not an urban legend. It isn't all that much of a surprise to those who know how P2P works when it isn't configured properly and files on the hard drive aren't protected from the prying eyes of those peers using the P2P software.

I'm posting this because I think it's something everyone needs to know. Your computer on a home network with a child's computer on which P2P is running? Yes, then this is something you need to know. And do something about.

Friday, April 01, 2005

Gasoline Prices: Not the Only Thing on the Increase 

My recent post about gasoline price increases brough not only a response from one of my students, Nakul Krishnakumar, posted here, but also a response to that exchange by another student, Anand Dash, with whom I had this dialogue:
Regarding your Blog article from March 23 on Gasoline Prices and solutions and my friend Nakul's response:

I will begin by saying that because of my lack of thorough knowledge and information on gasoline taxes and how they would affect consumption, I do not propose a tax related solution to the current high gas prices. But regarding your comment that we are "oversensitive and insufficiently illogical when it comes to the environment", I respectfully disagree.

First, specifically, as to drilling in the ANWR, I understand after speaking to Prof. Dellapenna that many of the major oil digging companies have refused to accept drilling contracts because the amount of oil that could be extracted is simply not worth their time and investment.

But more importantly even if there was a large amount of oil to be found there, I still cannot see how we could justify digging in the ANWR. My reason is that say that we do dig and in the process we get enough oil for the time being to lessen our dependence on foreign sources and thereby ultimately reduce the gas prices. But in the meantime we have destroyed the natural habitats of animals native to the area and moreover left the place as an eyesore. But the oil that we take from the ANWR is only so limited that it will eventually run out, i.e. oil is a finite natural resource. And when it runs out, we will have left parts of the ANWR as a waste land and the problem of oil supply and high prices will resume.

As to being oversensitive about the environment and against anti-roads bans, I can only pray that you really don't mean that:
Last summer I took a solo road trip to Baxter State Park in the remote mountains of Maine, and I remember distinctly asking myself after being just overwhelmed by the smell of pine trees, the immense beauty of the mountains, and the single lonely dirt road running through the remote wilderness area, how can anyone who has ever truly experienced the wonders of nature think to take a metal chain saw and massacre one of the greatest gifts that God has given us: Natural beauty and a wilderness that is a sanctuary from our technology-driven and hectic lives. Personally, if ultimately I couldn't afford to pay the gas prices I would walk or ride a bike to school or the store or where ever I needed to go, rather than see the natural wonders of the Earth destroyed.

I admit that in posting these lines, I have not fully thought through many of the logical consequences of my plea and of course of the well crafted and well-argued counter responses that may follow by you...

And I admit that this posting may come across as being sentimental, but if you have ever experienced the indescribable feelings that I did in Maine in your own travels, whether in Europe or in the States, I hope that you will see that my feelings are genuine and that we can never be too oversensitive when we only have one Earth. I think we would be insulting the intelligence of human beings if we are to say that in light of our material needs we have no solution but to demolish and destruct the true and natural beauty of our Home.
Anand raised some important concerns, and prompted me to think about how I had articulated my views. To that end I replied:

I do think too many environmentalists get carried away. I have been a conservationist since I was a child. I enjoy the outdoors and I object to unmanaged sprawl or the building of resorts in remote wilderness areas. What's being done to the Amazon rain forest is horrible.

Yet it is embarrassing to watch opposition to dam construction because of a fish (snail darter) that turns out not to exist in the river in question. Or to watch a highway reduced to 2 lanes each way to appease anti-highway forces (some of whom proudly announce their use of the highway), only to see traffic sit and spew pollution and gobble gasoline because the highway capacity is outdated before it is built.

As for ANWR, I like the idea of leaving it alone until everyone else runs out of oil. But I don't think that doing work on a hundred acres of a million acre area is going to be a problem. The same fears were expressed with respect to the pipeline, and yet it turned out to be an environmental plus. The notion that drilling would create a wasteland isn't supported by experience or the facts.

The real problem is something people don't want to discuss. It's overpopulation. At 6.5 billion, and growing, overpopulation threatens every single resouce. Long before the forests are gone, we will run out of fresh water. Long before the oil is gone, we will run out of food. A report issued last week by a panel of experts maps out the resource problem. Almost every environmental problem (and some others, such as urban decay, violence, and war) can be traced to overpopulation. Yet attempts to have intellectual analysis override emotional reaction fail time and again. There are people who claim the planet can support 10 or 15 billion people (the estimated population by mid century), yet even at 6.5 billion there are shortages of steel, lumber, oil, concrete, fresh water, medical services, and all other sorts of things. No home, even a mansion, can remain beautiful if 750 people are living in a 12,000 square foot palace.

* * * * *

Thanks for writing.
Anand in turn followed up on my comments:
Perhaps unlike a good lawyer, I have no rejoinder but to honestly say that I fully agree with you that many environmentalists do get carried away and that population certainly is a major and most critical issue.

The population issue especially strikes a chord with me because somewhat unrelatedly, I believe population also to be the single greatest impediment to the societal and environmental progress of my parents's homeland, India. In India, the country has most of the modern comforts and amenities in their big cities as we have in ours, their computer and software technology as you may know is equal if not superior in many respects to the States, and they are a strong and stable democracy. Sadly, however, it is primarily their population that is severely holding them back in almost every aspect of conservation, development and progress. India's population I believe will soon surpass China's because of the fact that as a democracy India is not currently able to limit the births per family.

One further note on the population issue is that I had a professor at William and Mary who posed a question as to whether human beings should be viewed strictly like any other species of animals who are susceptible to the natural law of survival. And following this premise, if eventually the human population vastly exceeds food supply and natural resources, should the strong and fittest of the population in order to stablize the population "squeeze" out the weak, as would occur in the animal kingdom? Clearly, I recognize that there are basic moral and ethical issues involved, but from a purely biological and scientific viewpoint, perhaps the theory makes sense and may turn out to be the only solution to a overcrowded world with finite resources. But in light of the Schiavo case, and with all due respect and sympathy, I imagine that there would be critics who would jump all over this natural law theory as applied to human beings.

Thank you for taking the time to respond. * * * * *
The population issue is not going to go away. It will move to the forefront. It will get more attention not only on account of end-of-life issues such as those currently making headlines but also on account of beginning-of-life issues that will get increasing attention as medical and scientific developments present even more challenges to each and every person on the planet. Whether the population issue takes center stage because of conferences, articles, discussions, and legislative debate, or whether it takes center stage because it triggers the sorts of problems that are percolating under the surface (wars, violence, crime, and economic disorder) is a question that will be determined by the decisions each person makes. From the perspective of tax policy, which cannot avoid entanglement with environmental issues, population is an ingredient in the analysis that often gets taken for granted. Will the connection between tax law and population also move into the spotlight? We will see.

Wednesday, March 30, 2005

Another Setback for the Telecommuting Nonresident Taxpayer 

Back in January I shared my analysis of a case involving New York's insistence on taxing a Tennessee resident, who is not a New York resident, on the income he earns in Tennessee doing computer work for a New York organization. He lost at the trial court level. He appealed.

Now comes news that by a 4-3 vote the New York Court of Appeals has rejected the taxpayer's appeal. The taxpayer's attorney is considering taking the case to the Supreme Court.

I hope they decide to do that, and I hope the Supreme Court gets it right.

After all, the taxpayer spends 25% of his time in New York, so it's tough to argue with New York taxing 25% of his income. But, no, New York wants to tax all of it. The Court of Appeals noted that perhaps if the taxpayer spent 1% of his time in New York, a tax on 100% of his income would be disproportionate but a 100% tax on someone spending 25% of their work time in New York isn't. Excuse me, did anyone study arithmetic? OK, maybe I can be sold the idea of 100% taxation when the time spent in New York is 99% or even 95% (though there's no reason not to multiply the total income by 99% or 95%). But 25% is NOT proportionate to 100%. Not on this planet.

The fact that most states do the right thing and apportion should be even more proof that New York is out of line. It's tough to give up that $100 million annual revenue stream, especially for a state that is so addicted to collecting and spending money. Money from people who do not vote in New York, who impose far less burden on New York services than do New York residents, and who might begin pressuring businesses to move their operations to other states. Finding a state with open arms of welcome will not be difficult for businesses who want out of the tax revenue siphon.

When New York argued that it had a right to tax 100% of the employee's income because the employer received benefits from New York all the time, the red flags began to fly. That theory would permit New York to tax all the employees, no matter where located and no matter where working, of employers with offices in New York. The flaw in the reasoning is serious. That four judges bought the argument is discomforting.

The good news is that even the four judges who voted in favor of New York's Department of Revenue suggested that there is a limit, and taxing nonresidents with "remote" connections to the state would not fly. I predict that when New York goes after the person with a 5% or 10% connection its reach for everything will be a reach too far. If New York officials cast their eyes 90 miles to the south, they can see their future, a place that shows the consequences of insisting on tax policies that drive businesses out. It's called Philadelphia. And it's in a state that doesn't set much of a good tax policy example for that city.

Ultimately, if a person or state does not play fair, that person or state will discover that no one will play with them. Even if they are the biggest on the block.

Tuesday, March 29, 2005

The First Ten Tax Urban Legends 

It may be time to begin collecting Tax Urban Legends. It's not so much the quantity, but the quality of the misinformation. Thanks to the alert eyes of Paul Caron over at the TaxProf blog, I found myself reading an AP story about the taxation of income earned through selling items on eBay.

A woman who sells household items wanted to know if she was required to report her income for federal income tax purposes. Somehow she ended up unable to get a clear answer. Perhaps it's because she posted her question to an online discussion forum operated by eBay for its sellers.

eBay is big business. Had I guessed, I would have been far off the mark, because $34 billion would not have been on my radar screen. That's $34 billion of sales, to at least some of the 135 million people registered on the site. And to think someone once told me the Internet really wouldn't make much of a difference in the lives of most people. Almost half a million people derive all or substantially all of their income from selling things on eBay. Wow.

Well, here's the answer: Gross income includes income from whatever source derived, unless there is an exclusion. A person who sells property on eBay has gross income equal to the sales proceeds reduced by the adjusted basis of the property, which in most instances will be what the person paid for the property. These principles appear in sections 61, 1001, and 1011 of the Internal Revenue Code. There are no exclusions available, unless the person sells their principal residence and meets the requirements of section 121. I doubt that has happened, but I'm not ready to write off the possibility.

What happens if the item is sold for less than its adjusted basis? I have no doubt that this happens frequently, when people sell for a few dollars some old no-longer-needed household item that they purchased for more than the selling price. The answer is that there is a loss. Is it deductible against other income? It depends. If the person is in the business of acquiring and selling these sorts of items, yes, according to section 165(c), but how long can one stay in business if one keeps incurring losses? The deductible loss will occur for the business entrepreneur who unloads a few items for less than cost to clear out the warehouse. But if the sale is not a business transaction, or is not a sale of property held for investment, the loss is not deductible. By definition, hobbies are not businesses nor are they for-profit activities. There are dozens of tax cases so holding.

Time for the urban legends?

Not quite. The AP story is filled with quotes that taken out of context appear to qualify. I'll let those go. After all, it's unclear whether the person was responding to a question about deductions (allowable for businesses but not for hobbies), losses (same), or gross income (no distinction).

The one quote that withstands criticism is the comment by one veteran eBay vendor that many sellers overlook taxes. Indeed. The comment by an eBay spokesperson that eBay is simply a venue like the mall or flea market is unsettling, because it's very likely that the flea market vendors are swimming in the same tax urban legend infested waters. Another is the comment that if you are selling on eBay and making a profit, it's taxable.

Here's eBay tax urban legend #1: One person commented that people think they're not a business if they're selling on eBay. Not only is that not so, it doesn't make a difference when it comes to the matter of reporting income. Of course some of the vendors on eBay are operating businesses, and operating on eBay doesn't preclude being a business. But, business or not, the income is gross income and must be reported. At that point, what matters are deductions, and for deductions, it's better to be a business. It's easy to see that people are very confused.

Here's eBay tax urban legend #2: The woman who asked the question that triggered the discussion went to lunch with a friend, and the friend told her that because eBay is not regulated there's no need to file. Guess what, friend? You are flat out wrong. Read sections 61, 1001, and 1011 of the Internal Revenue Code. When you're finished, I'll point you to the penalty provisions.

Reports from other tax professors disclose that the AP story ended up in a variety of newspapers, where re-writing and editing ended up adding more urban legends:

eBay tax urban legend #3: Gains on personal use property are not taxed. Wrong. Just because losses on personal use property are not deductible under section 165(c) does not mean that gains are not taxed under section 61.

eBay tax urban legend #4: Capital gain rates apply to the income. True, if the item is an investment item or a personal use item, but if it's inventory, that is, merchandise purchased with an intent to resell, the income is not capital gain and is subject to ordinary income tax rates. Take a peek at section 1221.

eBay tax urban legend #5: The limitations on the deduction of hobby losses creates an exclusion for hobby income. Wrong. Hobby gross income can be offset by hobby expenses, but if hobby gross income exceeds hobby expenses, the excess is taxed. Section 183 is the place to go to read about this rule.

It gets better. Inevitably, when tax professors discuss these sorts of practice world questions, good stories emerge.

One story tells of a high school teacher and coach who concluded that money earned during the summer as an umpire was not taxable because umpiring was a hobby. When challenged by a very bright and experienced tax lawyer turned tax professor, the teacher-coach dismissed the explanation because, get this, the commissioner of the baseball league had explicitly told the umpires that their income was not taxable. Amazing. Get your tax advice from a baseball commissioner, and have your surgery done by a lumberyard sales clerk.

Apparently this is not an unusual situation. Another experienced, able tax lawyer turned tax professor reported that a basketball referee he knows claimed that HIS fees were not taxable. Apparently steroids aren't the only problem in the sports world.

silly tax urban legend #6: Income from pursuing a hobby is not taxable. WRONG. Do I need to repeat the Code cites?

Along comes another story. Referees at a Special Olympics don't want their paperwork for having officiated events so that they can report their income, they want them so that they can take a charitable contribution deduction. Maybe they plan to donate their fees. Or perhaps they're thinking of....

tax urban legend #7: It is permissible to claim a deduction for doing work for a charity. Absolutely not. The charitable contribution deduction requires a donation of money or property. See section 170.

It continues. A tax professor who is a basketball referee tries to educate his colleagues who are discussing the possiblity of incorporating. Despite the tax professional's attempt to refute them, not one, but TWO, urban legends emerge:

tax urban legend #8: Incorporation would make officiating fees that are not taxable subject to tax. Duh, the fees are taxable whether or not there is an incorporation. It's that pesky section 61 again.

tax urban legend #9: Unless you receive a Form 1099, the fees aren't taxable. NO! A Form 1099 is required only under certain circumstances, and its absence does not change the character of compensation as includible in gross income.

All of this led another tax professor to suggest what may become the next mantra of the tax protestor crowd:

tax urban legend #10: My income is not taxable because I enjoy my work.

At that point, I had to comment that as I get my students to understand that income analysis begins with the search for an increase in economic wealth, they realize that non-economic riches, such as a kind stranger's warm smile, isn't subject to federal income taxation, generating the truism that "happiness is not taxed."

Now these matters don't involve the complicated part of the tax law. What's complicated about "gross income includes income unless there is an exclusion"? Nothing. The exclusions may be complicated, but simply reading a list (gift, scholarship, fringe benefit....) is enough to learn that there is no exclusion for hobby gross income.

No, this has nothing to do with complexity. It has to do with an "ignore the tax law" culture that runs rampant not only among eBay vendors and amateur sports officials, but even among some personal injury and domestic relations attorneys. "Simply ignore the tax consequences" is a scary (and stupid) motto. The damage done to the clients can be overwhelming, as illustrated by a no longer common practice of tax-savvy domestic relations attorneys foisting burned out tax shelters onto their clients' ex-spouses in property settlement agreements when they realized the other attorney was clueless. The tax bar rode to the rescue on that one, educating domestic relations lawyers one-on-one and at seminars almost a decade ago. And they wonder why as a practical matter the pervasive role of taxation in legal matters commands that every law student take the basic tax course while in law school. And yet many law schools do not require the course. How unwise.

Of course, if tax principles were taught in the K-12 world, both at school and at home, along with checkbook balancing, identity theft prevention, flat tire changing, the value of doing good deeds, the long-term disadvantage of greed, and a variety of other life skills and values that ought not be restricted to the college-educated, the tax urban legends could be starved of the nutrients on which they feed, namely, ignorance and greed.

Oh, did I mention sales taxes on eBay transactions? Or state and local income taxes? Or business registration taxes? Whew. I've had enough for the evening and other things to do.

Monday, March 28, 2005

More on Gasoline and Free Markets 

Larry Staton, referring to the gasoline and free markets post asked:
Are these two statements contradictory?

"Any method we can employ to increase production of oil in the United States and decrease dependence on foreign oil should be a top priority for our government."

"I don't think the government needs to interfere with the price of gasoline to achieve what it deems as a socially desirable goal"

BTW, I agree with the first statement and agree with you that we should increase user fees on gasoline. The user fee income should then be used to subsidize alternative energy sources, such as biodiesel and solar.

* * * * * gasoline companies are and have been heavily subsidized. Perhaps the gasoline companies can return/forgo those subsidies and then the market will reflect the true price of gasoline!
In my reply, I noted several things and identified a follow-up posting:
Yes, there is some inconsistency, unless one considers the second statement to reflect a view that interference with price via taxes would not cause increased oil production in the U.S. In other words, it's an argument that the government should use any method but not one that won't work and thus is not needed. That's how I read it.

There are a lot of strange subsidies in the tax law for oil and gasoline. Depletion deductions can aggregate to more than the amount paid (causing a weird "negative basis" concept that is not called that). Offshore drilling platforms qualify as "intangible drilling costs" but since I've never touched an offshore drilling platform I can't vouch that they're not intangible, ha ha. There also are subsidies for certain alternative energy sources, but in a hodgepodge mishmash conglomeration of piecemeal bits and pieces. In other words, incoherent.

I sense a follow up posting that goes over the income tax impact on energy. Could be a book. I had best be careful.
Well, this morning, I did a quick run through the Internal Revenue Code (class coming up in a few minutes, so no time to do extensive research), and identified these energy incentives in the tax law:

Section 29 provides a credit for producing fuel from a nonconventional source.

Section 30 provides a credit for qualified electric vehicles.

Section 40 provides a credit for alcohol used as a fuel, but section 87 provides that the credit must also be included in gross income.

Section 40A provides a credit for biodiesel used as a fuel, but section 87 provides that the credit must also be included in gross income.

Section 43 provides a credit for enhanced oil recovery.

Section 45 provides a credit for electricity produced from certain renewable resources.

Section 45H provides a credit for production of low sulfur diesel fuels.

Section 45I provides a credit for production of oil and gas from marginal wells.

Section 48 provides that the energy credit portion of the investment credit is available for certain equipment using solar energy to generate electricity, to heat, cool, or provide hot water for a structure, or to provide solar process heat, and for certain equipment used to produce, distribute, or use energy derived from a geothermal deposit.

Section 136 provides that gross income does not include direct and indirect subsidies from public utilities to customers for the purchase or installation of equipment designed to reduce consumption of electricity or natural gas.

Section 142 provides that exempt facility bonds, which qualify as tax-exempt bonds, the interest on which is not taxed, even though they finance private activity, include bonds issued to provide facilities for the local furnishing of electric energy or gas, to provide local district heating or cooling facilities, or to provide environmental enhancements to hydroelectric generating facilities, and then provides extensive and detailed definitions of these types of facilities.

Section 179A provides a deduction for clean-fuel vehicles and certain refueling property.

Section 193 provides a deduction for qualified tertiary injectant expenses.

Sections 611 through 613A provide a deduction for depletion, computed in a manner that in some instances allows the taxpayer to deduct more than what was paid for the natural resouce subject to depletion.

Section 616 provides a deduction for certain costs of developing a mine or other natural deposit, other than oil or gas wells.

Section 617 provides a deduction for certain costs of ascertaining the existence, location, extent, or quality of any ore or other mineral deposit.

Eventually I'll find time to identify some of the provisions that give special tax breaks on the disposition of energy property.

Being a tax practitioner without understanding energy is somewhat limiting. Of course, being a tax practitioner requires a lot of energy, but that's another tale for another day.

Friday, March 25, 2005

Tax License Plates Resurface 

Saw a license plate the other morning, just a mile from home. RAD TAX was on a car parked in front of the offices of Radnor Tax Services. Easy guess is that the vehicle, and the plate, belong to the owner. Radnor is the township in which I live, and in which Villanova University is located.

I wonder if someone in adjacent Haverford Township has HAVE TAX or HAVER TAX on a license tag. Or if someone in another adjacent township, Newtown, where I grew up, has NEW TAX. Want more? Yet another adjacent township is Lower Merion. Would a plate with LOWER TAX on it fly? Not in that township.

If you didn't get a chance to follow the tax license plate posts some months ago, you can take a look here.

Wednesday, March 23, 2005

Gasoline and Free Markets 

My recent comments about the increase in gasoline prices brought a reply from one of our students, Nakul Krishnakumar, who is no stranger to my taxation outlook, as he has been in my courses. He says:
I just read your very interesting blog on the rise in oil prices. I have to say that I respectfully disagree with your analysis on a few points.

First, I think you are right in stating that oil prices, like everything else in the economy, are subject to supply and demand. Nonetheless, I don't think the meteoric rise in oil prices in the last year is solely due to a serious change in supply and demand (although I would certainly concede that this is part of it). I think one main reason (which you mention) is the relative weakness of the dollar as of late (due to mild increases in inflation) and also the war in Iraq (which is having a temporary affect on oil supply). Once these problems are rectified, if indeed they do become rectified, I imagine that oil prices will stabiize.

More importantly, I disagree with your assessment that we should INCREASE the taxes on gasoline. I believe that is unnecessary. I don't believe that tax incentives, or quite frankly, tax disincentives will solve the problem. The fact is that oil and gas, as compared to other forms of energy are relatively cheap. If this were not the case, the market simply would have shifted to another form of energy that is less expensive.

I once had an economics professor in college who asserted that we will NEVER run out of oil! While that seems chimerical at first, it makes sense when one thinks about it. All else being equal, as the availability of oil starts to decrease, it will become more expensive to drill, refine, and convert oil into energy. As such, the price of oil, relative other forms of energy such as solar, nuclear and wind will increase. Once this happens, it will be cheaper to provide the world's energy needs through other forms of energy, and the use of oil will become relatively obscure. In essence, we will stop USING oil long before we actually RUN out of it.

Whether this happens in my lifetime or not is immaterial. The point is that at the current point in time, oil is still the predominant energy source because it is inexpensive when compared to other forms of energy (taking into account transition costs). Moreover, I don't think adding another tax to gas prices, as an incentive to FORCE people to use other forms of energy, is a proper solution. The invisible hand of the market will eventually lead to a shift in the energy sources we use, we don't need politicians meddling even more in the workings of the market.

In the meantime, we should relax environmental laws that prohibit drilling oil off of Lake Michigan, Texas and other oil rich areas in the United States. Drilling in Anwar would also be helpful. Any method we can employ to increase production of oil in the United States and decrease dependence on foreign oil should be a top priority for our government.

I look forward to your comments.
And, of course, I was more than willing to share comments:
You're right that there are other factors, as speculation is contributing to the price increases. Yet speculation is part of the market, and if the market "sees" future shortages the speculators drive up the prices. If the market does not agree, the speculators don't have much, if any, effect.

Experts who analyze oil production and demand have projected shortages. Currently production barely exceeds demand, and OPEC has no more capacity. True, Iraq's production is down, but it will be quite a while before things stabilize enough to bring back pre-1991 levels of production. Future production estimates count on oil flowing through the still unfinished Caspian pipeline, which is in yet another unstable area of the world. China and India will double their demands during the next 5 years, and by 2020 will be "demanding" more than the U.S. uses.

Because taxes on gasoline are generally fixed in amount rather than set as a percentage, they have been falling over the past few decades. I blogged that point in an earlier post and failed to (forgot to) link to it. [It's here.] Taxes such as a gasoline tax are really a user fee, and ought to compensate society for the cost of using gasoline (pollution, cancer, leaks, etc.) Americans pay too little gasoline tax, compared to, for example, Europe. Americans are wasteful of oil, and now sit on the edge of disaster. One refinery fire and there will be long lines at the pumps.

I don't see tax as a way to compel using other energy sources. People could choose to reduce energy consumption. There is a price to be paid for the sprawling developments built out in the middle of nowhere because the land is cheap, and that price is a price shifted by the developers to the home buyers who are many miles from work, and in one instance with which I am familiar, 5 miles from the nearest store or anything other than a farm. In other words, artificially low user fees insert irrationality into the market, or at least subsidize it.

I agree that we are oversensitive and insufficiently logical when it comes to the environment (hence my criticism of the anti-road lobby). There are all sorts of areas where oil can be extracted with far less harm to the environment than would have taken place using the technologies in place when the environmental restrictions were imposed. Yet I wonder if there is truth to the accusation that the U.S. is deliberately "using up" OPEC oil rather than its own so that someday OPEC will have very little oil and then we will open up our taps and become the OPEC for China and India. If that's true, it's conspiratorial. And devious. But very clever. It could work. By the way, the really HUGE oil resources are in areas you didn't mention: off the coast of California. Dwarfs even the Arctic according to some experts.
And, of course, as all good lawyers-in-training do, Nakul rejoined:
* * * * * In general, I'm uncomfortable with "user fees" for gasoline or any other product. The price of gasoline, set by the market, is a user fee. As oil becomes less abundant, that user fee will increase in accordance with the dictates of the laws of supply and demand. When that user fee becomes too much, or if India and China begin demanding more oil, that will only accelerate the demise of oil and the emergence of a new form of energy. I don't think the government needs to interfere with the price of gasoline to achieve what it deems as a socially desirable goal (which usually means a couple of politicians thinking they know more than everyone else).

One more point. I don't believe that the market for gasoline is irrational. In order to believe that prices for gasoline are irrational, one has to buy into the idea that there is some inherent value to gasoline separate and apart from the actual price that the market sets. The price of gasoline that exists today (minus taxes and other transaction costs) is the socially objective value, determined by supply and demand. I would be opposed to any action by the government to cure the " irrationality" of gasoline prices in the same sense that I would be opposed to the Federal Reserve or any other monetary authority curing the "irrationality" of the stock market.

As you can probably tell, I'm a free market capitalist, so I am looking at this problem from that vantage point. Nonetheless, I'm a dying breed, so I suspect, most people will disagree with my assessment of this problem.
Speaking of user fees, there's an interesting article in today's Philadelphia Inquirer about TerraPass, which could be characterized as a voluntary user fee. Creative idea, more on it later. In brief, a fascinating way to encourage grass roots self-regulation instead of waiting for the government to step in.

Tax Return Filing Advice: Request Return Receipt 

It really is sad to learn that a problem that should have been solved wasn't solved. Some years ago, IRS employees were discovered to have trashed incoming tax returns in order to keep up with daily quotas. It was a huge mess, and the lesson learned by tax practitioners and even by others who were paying attention was to send tax returns as certified mail, return receipt requested. Then if the IRS notifies the taxpayer that the return was not filed, there is proof that it was filed, and the IRS has to deal with the problem internally.

Apparently the IRS decided to "outsource" the receipt of tax returns. Whether that is permissible or even a good idea is one thing, considering the privacy issues that are implicated. Worse, it turns out, according to this story, that an employee at Mellon Financial, which the IRS paid to receive tax returns and process tax payments, told five co-workers to "hide and destroy" about 80,000 tax returns and $1 billion in payments. EIGHTY THOUSAND? ONE BILLION DOLLARS?

Yep. This happened back in the spring of 2001. Now a grand jury has indicted the six Mellon Financial employees. Check out the charges: conspiracy to commit major fraud against the United States, theft of government property, and theft of mail matter.

The excuse is that the employees "felt swamped by the amount of work." Too bad. Join the world. Choose another option. Report the problem to the supervisor. Let the stuff pile up. Then the executives hauling in salaries in the upper six and seven digit range can hire a few more people. Good for the economy, too.

So I guess a lot of tax practitioners are going to be getting phone calls from at least some of the 80,000 taxpayers whose returnes disappeared. I really do hope they knew to send the returns by certified mail, return receipt requested, that they kept the return card from the postal service, and that they have a copy of their return.

Tuesday, March 22, 2005

Speaking of Gasoline 

On the heels of yesterday's post about gasoline prices and the environment comes news that the Senate has approved H.R. 1270, which extends the financing rate for the Leaking Underground Storage Tank Trust Fund from April 1, 2005 until October 1, 2005. The House had passed the measure by a 431 to 1 vote, and so now the bill goes to the White House for an expected signature.

This fund assists states and the EPA pay the expenses of cleaning up environmental damage caused by underground oil and gasoline tanks that leak. A leak from an underground tank pollutes the groundwater, and sometimes the leaking product can travel miles underground. Messy stuff.

The fund is financed with a tax under section 4041(d). It's the Leaking Underground Storage Tank tax. And, as tax practitioners aren't ones to shy from acronyms, this one does take the prize. It's the LUST tax.

Explain that to your friends visiting from abroad.

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