Monday, December 05, 2005

The Whys of Blawgs 

With things slow on the tax news front, as Congress spins its wheels trying to deliver tax legislation, I get a chance to dig into my "save this for the blog" pile and pay some attention to items that had to take a back seat to other news when they first came to my attention. One is a New York Times Article by Jonathan D. Glater about the recent proliferation of blogs by and about lawyers. They've acquired the name "blawg" .... which I suppose adds a word to the list of words that rhyme with "dog," an observation that might come in handy writing poetry. Poetry about blawgs.

After reading Glater's article, though, I have the impression that blawgs are not simply blogs by and about lawyers. They're blogs about the law, written not only by lawyers, but also law students, law faculty, paralegals, and folks with law degrees no longer actively involved in the legal profession.

How prolific are blawgs? The article cites a Blogads survey that reveals lawyers in fourth place among those maintaining blogs. Almost one-fifth of bloggers identify themselves as educators, the largest such group. Slightly behind them are computer software professionals, and in third place, slightly above one-twentieth, are people working in the media. In fourth place? Legal professionals, just 3/10 of one percent behind the media folks. I didn't participate in the blog. Are law professors who blog a tiny fraction of the group in first place or a slightly larger fraction of the group in fourth place? Who knows? Who cares? I do, because the statistics indicate that a larger percentage of lawyers are blogging than are law faculty. It seems to me that it should be the other way around. After all, there's certainly an audience for blawgs.

Who's reading blogs? Another survey by Blogads puts lawyers and judges in fourth place among blog readers, behind computer professional, students, and retirees. The first two groups aren't a surprise. One would expect computer professionals and students to have the incentives to wander the blogosphere. But retirees? Aren't most retirees among the demographic cohort that is stereotyped as left behind by the computer technology revolution? Apparently retirees have not only the time to explore blogs, but I'm guessing also the interest in the many interesting and important topics that are discussed in blogs.

It's not that difficult to figure out why lawyers enjoy blogging. Lawyers work with words, and blogs offer a place to share them with others. Lawyers find all sorts of things to discuss, and blawgs certainly reflect that phenomenon. Lawyers' blogs touch not only on black letter law, but on just about everything. It has long been said, even before the Internet came into being, that lawyers were frustrated writers and actors. How true. After all, lawyers love to talk, and a blog in many ways is simply another outlet for words. I've been writing for a very long time, and looking back, I realize that those who encouraged me to write were in some ways trying to introduce me to a quieter way of generating words. For their peace and quiet. It worked to some extent, but not entirely!

Even though they constitute less than one percent of the population, lawyers appear to publish a disproportionate number of the influential blogs. Perhaps it is because most lawyers not only like to talk and write, but they speak and write well. According to one source in the article, unlike most people, who are shy about making arguments in public and risking the inevitable attack, lawyers seem to delight in conflict and argument. Lawyers tend to be people with high levels of talent and ambition. Perhaps lawyers caught in mundane practices find blogging to be a nice outlet for their interests with no role in their daily work.

Is it as easy figuring out why people read blawgs? Explaining why lawyers read blawgs is simple enough, but more than 99% of the population aren't lawyers. So what brings the non-lawyers to the world of blawgs? Needless to say, the answer to this question matters to me, because I write in a style not specifically tailored to lawyers as an audience. One answer is that the law fascinates everyone, because it is omnipresent in modern culture. After all, law and lawyers tend to dominate the news, if not in direct ways, such as headline-grabbing trials, in indirect ways relevant to most topics making today's news. Perhaps blawgs are popular among non-lawyers because lawyers have something worthwhile to say about the legal system. To paraphrase Denise Howell of Reed Smith, blawgs demystify the law, spawn discussions about politics, law, and morality, and "break down barriers" between the legal profession and the people it should be serving.

Law faculty blogs are beginning to increase in number. Though it varies from school to school, the percentage of law faculty who blog appears to be catching up to the percentage of other legal professionals who blog. Within the past several weeks, four of my colleagues have sought my advice, and help, in starting blogs. All four will have something to offer that fills a gap in the subject matter of blawgs. If all four bring their plans to fruition, it would triple the number of blogs maintained by Villanova law faculty.

Ultimately, though, the best explanation comes from Ann Althouse, a law professor at the University of Wisconsin. "Compared with spending a year writing a law review article, she said, blogging is fun."

She is so right!

Friday, December 02, 2005

Tax, Marriage, Step-Siblings, and Dependency Exemptions: Sometimes It's Life That Is Complicated 

Once more I can demonstrate why it is true that one can learn much by teaching. The recent changes in the definition of dependent for purposes of the personal and dependency exemption deduction required me not only to provide the new statutory language to the students in the basic federal tax course but also to revise the answers to the problems that we tackle as part of the statutory interpretation process. As we worked our way through several different hypothetical fact situations, I noticed something and pointed it out to the class. Two weeks later, when it was time to administer another in-class graded exercise, I presented the students with four questions (to be answered using their student response pads ("clickers")). Here is one of those questions:
Exer #10(F05) Ques #3. F marries W1, and they have a child C. W1 dies. F marries W2, who has a child S from a prior marriage. Later, when both are over 25, C marries S and they have the same abode. S has gross income of $670, and otherwise is entirely supported by C. If C files a separate return ....

A. C can claim a personal exemption for S.
B. C can claim a dependency exemption for S.
C. C cannot claim a personal or dependency exemption for S.
Go ahead. Try to answer the question. You can evaluate your performance by continuing to read.

Of course, the question drew snickers just as my observation two weeks earlier had raised eyebrows. I'll get back to that in a moment.

Here's the analysis that I expected students to do, that would take them to the correct response. In this sort of question, they would be thinking through this process and selecting an answer rather than writing out a full explanation. And so here's another example of why working with the law is not much different than working through a puzzle, which is why I am startled when some law students tell me they detest doing puzzles, a phenomenon I discussed in a Law School newsletter column several years ago in "Doing Puzzles While Learning & Practicing Law".

First, with respect to any possible personal exemption, a taxpayer cannot claim one for his or her spouse unless three conditions are satisfied. Quoting section 151(b), "a joint return is not made by the taxpayer and his spouse," "the spouse ... has no gross income," and "the spouse ... is not the dependent of another taxpayer." In the hypothetical, the spouse has gross income, and that precludes the taxpayer C from claiming a personal exemption. Choice A must be discarded.

Second, with respect to any possible dependency exemption, the taxpayer cannot claim one for his or her spouse unless the spouse is a "qualified child" or a "qualified relative." Let's look at each in turn.

Now before jumping to instinctive conclusions and gasping at the thought of a spouse being a qualifying child, consider the definition. Under section 152(c)(1), "a qualifying child ... with respect to any taxpayer ... [is] an individual (A) who bears a relationship to the taxpayer described in paragraph (2), (B) who has the same principal place of abode as the taxpayer for more than one-half of [the] taxable year, (C) who meets the age requirements of paragraph (3), and (D) who has not provided over one-half of [the] individual's own support for the ... year." As to the first condition, the individual qualifies under section 152(c)(2) if the individual is "(A) a child of the taxpayer or a descendant of such a child, or (B) a brother, sister, stepbrother, or stepsister of the taxpayer or a descendant of any such relative." The spouse is taxpayer C's stepsister, so the first condition is met. We'll come back to this a little later. As to the second condition, the facts state that C and the spouse share the same abode, so it is met. As to the third condition, the individual does NOT qualify under section 152(c)(3) because the individual has attained the age of 24; to satisfy this condition, the individual must either have "not attained the age of 19 as of the close of the ... year ... or be "a student who has not attained the age of 24 as of the close of [the] year." So the spouse in this case is not a qualifying child. Can it happen? A momentary tangent. Suppose the spouse were 18, or a full-time student not yet 24. The third condition would be satisfied, leaving us with the fourth condition to analyze. The facts tell us that C provides all of the spouse's support, which means the spouse does not provide half of his or her own support, and thus the fourth condition would be satisfied. Yes, had I set the age of S at 18, or made S a full-time student with an age under 25, the outcome would be different. But, giving a peek into the design of questions, I didn't want S to be a qualifying child because I wanted students to go further in their analysis.

So we turn to the question of whether the spouse can be a "qualifying relative." Under section 152(d)(1), a "qualifying relative ... with respect to any taxpayer ... [is] an individual (a) who bears a relationship to the taxpayer described in paragraph (2), (B) whose gross income for the ... year ... is less than the exemption amount ... (C) with respect to whom the taxpayer provides over one-half of the individual's support for the .. year ..., and (D) who is not a qualifying child of [the] taxpayer or of any other taxpayer for [the year]." Having already determined that S is not a qualifying child of C, and knowing that C provides all of S's support, we know that the third and fourth conditions are satisfied. What about the first? The individual qualifies under section 152(d)(2) if the individual is "any of the following with respect to the taxpayer: (A) A child, or a descendant of a child, (B) A brother, sister, stepbrother, or stepsister, (C) The father or mother, or an ancestor of either, (D) A stepfather or stepmother, (E) A son or daughter of a brother or sister of the taxpayer, (F) A brother or sister of the father or mother of the taxpayer, (G) A son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law, (H) An individual (other than an individual who at any time during the taxable year was the spouse ... of the taxpayer) who, for the taxable year of the taxpayer, has the same principal place of abode as the taxpayer and is a member of the taxpayer's household." Because S is C's stepsister, S satisfies the third condition. Note that the prohibition against spouse only applies to persons trying to qualify under subparagraph (H) and not those, like S, who qualify under any of subparagraphs (A) through (G). What about the second condition? S satisfies it because S has gross income of $670, which is less than the exemption amount.

Wow! S is a qualifying relative. So the correct response is choice B.

How did you do? Good guess? Good reasoning? No clue? Or, as is the case for many, no way this is possible?

It does seem strange, doesn't it? Interestingly, the possibility existed under the statute as it existed before last year's changes, but I didn't notice it. What caused me to pay close attention was the change in the definition of child, for the idea that a child could include a sibling or step-sibling for dependency exemption purposes was counter-intuitive. Last year, I shared a detailed explanation in the post, "Redefining Children (at least in the Tax World)". There is a good reason for the change. To accomplish the legislative goal of creating one definition of child for purposes not only of the dependency exemption but also the child credit, the earned income tax credit, and other provisions, the language needs to reach beyond child and include those other close relatives who are eligible for purposes of those credit and other provisions.

But wait. Isn't the hypothetical a bit bizarre? People don't marry their step-siblings. Two anecdotes not only are helpful but probably will end up being retold. Some years ago I happened upon a television movie starring, among others, Dermot Mulroney, whose father is one of my colleagues and who is director of the Graduate Tax Program. Knowing almost nothing about Dermot, I figured I'd watch the movie just to see who he was, whether he looks like his father (yes, the resemblance is apparent), and whether he was good at acting. This was long before he became the well-known star he is today. Well, the movie, "Sin of Innocence" (1986) turned out to be about a step-brother and step-sister who fall in love with each other. The next morning I'm in Michael's office. "Hey, I saw your son in a tv movie last night and he played the part of a guy who fell in love with his step-sister." Michael replied something to the effect that this was the sort of part Dermot had been getting. "Young Guns" and "My Best Friend's Wedding" were yet to come. Suddenly, as Michael and I were discussing the "tawdriness" of the film's plot, a light bulb went on. I looked at Michael and quietly said, "Wait a minute. My great-great-great-great-great grandfather Daniel Maule married his step-sister Hannah Brown. Whoa!" Michael just stared at me, as he sometimes does when I blurt out some startling fact. "Yep, and it's no big deal. We're talking four different grandparents for each of them. It's not a problem. It's not illegal. It's not morally unacceptable. It's not theologically prohibited." After I administered the graded in-class exercise, I explained the answer but still noticed some very suspicious looks. So I described another scenario, a bit different from the facts of the problem, but raising the same possible issue and based on a true life story. Two people, let's call them H and W, who are unrelated (at least in the sense they are not closely related) meet, fall in love, and decide to marry. The families meet. H and W get married. In the meantime, H's mother, whose marriage isn't so wonderful, and W's father, whose marriage is likewise falling apart, end up falling for each other, divorce their respective spouses, and marry. Does this not make H and W step-siblings? It also makes for a bunch of other things, such as really interesting Thanksgiving dinner seating arrangements, but I'm not going there.

But one more nagging hesitation exists. When C married S, did that terminate their step-sibling relationship? Yes, I researched this. No, there is no direct authority. What I did find, though, is some regulatory guidance with respect to other relationships. Working from another problem we do in the class, what happens under the following circumstances? H marries W. W has a brother B, who is supported by H and W. B has no gross income. So H and W, on their joint return, properly claim a dependency exemption for B. But then, sadly, W dies. H, a nice fellow, continues to support B. Does B meet the relationship condition for being a qualifying relative? Is B the brother-in-law of H? Well, yes, surely before W died. Does W's death end that relationship?

Regulations section 1.152-2(d) provides that "the relationship of affinity once existing will not terminate by divorce or the death of a spouse." I call this the "once an in-law, forever an in-law" rule, and it's yet another instance in which teaching tax can be fun, notwithstanding what some may think. Surely, this sort of rule makes this part of tax fun to teach. "You can divorce your spouse but apparently the tax law doesn't let you divorce the in-laws." The looks on their faces are priceless. But then I explain that in order for the tax question to exist, the person must be supporting their ex-spouse's sibling, suggesting that an amicable relationship between the taxpayer and the sibling-in-law exists. It could be, as one student pointed out, a case of a taxpayer who married a friend's sibling, perhaps against the friend's advice, and when things fell apart between the taxpayer and the spouse, the taxpayer and the friend maintained their friendship, along with a tax-eternal designation of siblings-in-law.

Anyhow, next question is whether a similar rule exists or should be inferred for step relationships, namely, "once a step-sibling always a step-sibling." It seems to me that just as a brother-in-law relationship is a relationship of affinity, so to a step-sibling relationship is one of affinity, caused by a marriage, in this instance, the marriage of a parent. After making inquiries, I learned from the lawyer who drafted what he calls the "rule that a relationship once acquired stays on forever" that it was raised by his boss, who knew of someone who supported a step-grandchild. So I'm even more confident that "once a step-sibling always a step-sibling" is the rule for tax purposes.

One last point. If Congress wanted to preclude spouses from being qualifying relatives under all circumstances, it would have put the "(other than an individual who ... was the spouse)" language in the introductory phrase of section 151(d)(2). Instead, it is in subparagraph (H), leaving subparagraphs (A) through (G) free of that limitation.

Whew! And people wonder why tax law is complicated. There are all sorts of reasons, and sometimes the complexity of life will be reflected in the complexity, not of the law, but of the application of the law to the facts. Sections 151 and 152 aren't all that complex. In fact, they're fairly easy to handle, as demonstrated by the adeptness with which students who have been in the basic tax course for all of 12 weeks deal with these issues. Life itself is complex.

A few may have noticed how, once again, I managed to bring together tax law, legal education, theology, and genealogy. All that's missing are the model trains, the music, and the chocolate chip cookies. Don't tempt me!

Thursday, December 01, 2005

MauledAgain Featured in Blawgworld 2006 

This blog has been selected as one of 51 blawgs (law-related blogs) featured in TechnoLawyer's new e-book, "Blawgworld 2006: Capital of Big Ideas."

I'm delighted. In an internet world where 80,000 new blogs appear every day, any spotlight is valuable. I'm hoping that at least a few members of Technoworld stop by for a visit and decide to return or to add MauledAgain to their RSS feeds.

I've browsed Blawgworld 2006 and have discovered that most of the blawgs featured in the e-book are ones I had not previously seen. I must confess that as much as I am immersed in law blogging, I was unaware of how pervasive law blogging has become. Perhaps I was concentrating a bit much on law faculty blogs and ignoring what the practitioners have been sharing?There are blogs on a wide variety of legal subjects, many acting as news providers with respect to cases and developments that otherwise would not come to the attention of lawyers and law professors because they end up in a disposition other than an appellate opinion. There are blogs topics dealing with patent law, medical malpractice, securities law, trial practice, electronic evidence, intellectual property, contracts, family law, the Fair Trading Act, environmental law, law office practice management, employment law, legal research, corporate law, First Amendment law, and other areas of law.

Knowing that tax practitioners have, and must have, a keen interest in other areas of the law, for those are the places where our tax issues germinate, I recommend that you visit TechnoLawyer, sign up (it's free), and get your copy of "Blawgworld 2006: Capital of Big Ideas." You'll also receive free newsletters from Technolawyer. Tell them I sent you. Tell them thanks for featuring a law blog that you read. And rather than tell you which of my postings was featured, I'll let you find out when you browse through your copy of the e-book.

Wednesday, November 30, 2005

I Sing a Song of Taxes, a Pocketful of Cries 

The feeding frenzy at the tax trough continues unabated. The latest "we're special" provision was added to H.R. 4297, the Tax Relief Extension Reconciliation Act of 2005. Under section 204 of the Act, income from the sale of musical compositions or copyrights would be taxed at the lower capital gains rates. [Note: If the link does not work, go to the main Library of Congress Thomas web site page and search for HR 4297. Then, when getting the page that informs us that there are TWO House bills with that same number, choose the Tax Relief Extension Reconciliation Act of 2005. Don't ask how they ended up with two bills with the same number. Something about left hand, right hand....]

This amendment, procured by Representative Ron Lewis of Kentucky, who according to this Wall Street Journal story, is a country-music fan and guitarist, is not in the Senate version of the bill. Yet. Advocates for this tax break plan to have it inserted during the Conference when the House bill is reconciled with the Senate bill (S. 2020). The text of the amendment is oh so innocent:

(a) In General- Subsection (b) of section 1221 (relating to capital asset defined) is amended by redesignating paragraph (3) as paragraph (4) and by inserting after paragraph (2) the following new paragraph:

`(3) SALE OR EXCHANGE OF SELF-CREATED MUSICAL WORKS- At the election of the taxpayer, paragraphs (1) and (3) of subsection (a) shall not apply with respect to any sale or exchange before January 1, 2011, of musical compositions or copyrights in musical works by a taxpayer described in subsection (a)(3).'.

(b) Limitation on Charitable Contributions- Subparagraph (A) of section 170(e)(1) is amended by inserting `(determined without regard to section 1221(b)(3))' after `long-term capital gain'.

(c) Effective Date- The amendments made by this section shall apply to sales and exchanges in taxable years beginning after the date of the enactment of this Act.
As I tell my students, the story is in the details.

The proposed new paragraph (3) of subsection (b) would block paragraphs (1) and (3) of subsection (a) (of section 1221) from denying capital gains tax rate treatment to income from selling the results of one's song-writing efforts. Paragraphs (1) and (3), as they presently exist, are designed to prevent the following approach to obtaining low tax rates. "I built a machine. When I sell the machine I ought to be treated as having sold a capital asset, and be taxed at low rates." Paragraphs (1) and (3) in effect say, "No, the proceeds from the sale of the machine that you bought reflect compensation for the services you have performed. Otherwise people whose services create products would get those capital gains low rates that are intended for investors."

Put aside for the moment that investors ought not get preferential tax treatment. After all, if there were no distinction among types of income there would be no section 1221 and the issue would not arise in the present context. The point is that song writers have decided that their compensation income ought to be taxed at rates lower than folks whose services are rendered working in factories, mowing lawns, bagging groceries, sweeping floors, tending the sick, fighting fires, etc. The song writers think they are special. Note that even other artists, such as novelists, painters, sculptors, and designers, aren't covered by this proposed legislation. They, it appears, aren't special.

So how did the song writers sell this to the House of Representatives? How do they hope to persuade the Senate? According to the Wall Street Journal story, it works like this:

Begin with Bart Herbison, executive director of the Nashville Songwriters Association International (NSAI). He describes the current tax law, which taxes the compensation earned by song writers in the same manner as the compensation earned by other workers, as follows: "This is just such a glaring injustice." Herbison claims that because the average annual income of song writers who belong to the NSAI is $4,700, it is "fair" to give them more advantageous tax treatment. Excuse me, Bart, but someone whose income is only $4,700 has no taxable income and the tax rate is irrelevant. I don't buy your argument. Try again. Oh, I see, that income is added to income from the "day job." And if the day job generates a tidy sum, what's unfair about taxing the $4,700 added to taxable income from the moonlighting song writing efforts in the same way as the $4,700 earned by a middle-aged working mother from a second job who is trying to scrape up more income so she can pay her child's school bills? Nah, Bart, you haven't sold me on this one. Pun intended.

Apparently song writers think that when they sell a song they should be taxed just as if they sold a stock. The logic fails, however, because the same argument can be made by a book author. Or a furniture maker. Or a person who grows fruits and vegetables and sells them at a truck stop. The fact that the services are embodied in a self-produced item or an item into which a person's services have been injected does not make the sale a sale of an investment.

The song writers and the NSAI point out that the lower rates would not apply to royalties earned when the songs are played, but only to sales of the song itself (which transfers royalty rights to others). In other words, the special low tax rates would apply to sales of what are called "song catalogs." But this distinction is somewhat facetious. Suppose a person writes a book. Or makes a bunch of hand-made rocking horses. When the person sells a book, or a rocking horse, the income is taxed at the regular rates because the person is being paid for his or her services. Should it make a difference if the person sells all of the horse or all of the books in a bulk sale? No. Should it make a difference if the person sells the right to manufacture more horses or to print more books? No. True, sale of a building generates capital gain taxed at the lower rates whereas the rental income from the building is taxed at the regular higher rates, but this distinction does not involve embodied services. And it demonstrates, of course, why a policy of treating capital gains as "different" is such nonsense.

Songwriters also argue that because their income comes in spurts they end up with a few taxable years in which their incomes are high, and subject to the high end regular rates, and many years in which their incomes are low, and subject to lower regular rates. They claim that unlike book authors they cannot arrange for the spreading of the payments over a number of years. Oh? There's a law against negotiating for longer contractual payouts? Professional athletes (another group that can experience wide income swings) manage to do so. And those book authors pay a price. If they wait for their royalties they don't have the use of the money. Hey, song writers, get a spreadsheet and factor in time value of money against probability-adjusted future tax rates. Use those numbers in your negotiations. And if you can't get what you want, don't ask the taxpayers to subsidize your negotiation table failures.

The very examples used to illustrate the "plight" of the song writers actually proves my point. One writer sold 200 songs for a "mid-six-figure" amount. She paid "more than $100,000 in taxes." Ok, $500,000 maybe $600,000 of income, $100,000+ in taxes (federal AND state?) seems to fit with current regular rate structures. That leaves $380,000? $450,000? Another writer, who has had 10 hits out of his collection of 800 songs, sold his songs for an amount in the "high six-digits" and claims he paid 39% in taxes. Guaranteed, he did NOT pay taxes at a rate of 39%. The rate on the top end of his taxable income was 39%. The average would have been closer to 20%. Clever, isn't it? Trying to get people to think he paid $320,000 of federal income taxes on $800,000 of income when in fact it's more likely he paid $200,000. Oh, how those rolling in money can plead poverty. Of course, the song writers are doing nothing more than taking good lessons from the multimillionaire "investors" who claim the right to be taxed at the lowest of rates. A third song writer claims that she must work in a department store selling handbags because "high taxes" prevent her from selling her songs. Excuse me, some good contract negotiations, taking advantage of what is known as installment sale tax treatment, spreading the payments over a period of years, will leave you with taxes no different than those encountered by the rest of us who work for a living. Apparently some song artists also do well as drama queens.

One song writer notes that because she hasn't had a hit in five years she has to make that money last, "When the hits do come, we have to be like squirrels and bury the money." Of course. So do all the other folks whose incomes peak and sag. Folks like farmers who deal with drought and floods, computer programmers and video game authors who hit the big time one year and then watch other designers' efforts get the attention of the game players, authors who have one great book followed by years of writers' block, professional athletes who rarely earn in middle age what they pulled down in their twenties, and so on. Yeah, it's called planning and budgeting. The fact you need to do this doesn't mean you deserve a tax break. Unless, of course, all taxpayers who need to plan and budget get the same tax break. Fat chance.

Interestingly, the NSAI does not have any paid lobbyists working on its behalf. It claims it does not make political donations or shower legislators with trips. Instead, Herbison has made more than 400 visits to Washington, bringing song writers along to plead their special status to "every member of the tax-writing committees in the House and Senate," according to the Wall Street Journal story.

So the NSAI has drummed up support from legislators representing southern states. Or perhaps I should say they have plinked and plunked and warbled up support, as they did the troubadour thing on the Hill. The song writers helped create a Songwriting Caucus in the House. Two Senators created one in the Senate. Iraq war. Terrorism. Starving children. Flooded out city. Storm damage across the nation. Energy crisis. Peak oil. Nuclear weapons in North Korea and Iran. Impending shortages of fresh water. And our legislators are creating songwriting caucuses? It's nice they have so much spare time.

But apparently the song writers knew better than to try to limit the special tax break to country music song writing. That would have been too obvious. So they generously included other genres. But not other forms of art. Or other forms of earning a living by rendering services.

What's at stake? About $4 million of annual tax revenues. Amounts that could be used to lower all taxpayers' tax bills. Or to reduce the deficit.

Sadly, one legislator predicts, "The chances are very good for this staying in the final bill." In a representative democracy, it amazes me that tens of millions of Americans will end up on the short end of yet another "we're special" stick and not even realize that they're getting ripped. We live in an information age, drowning in data, and somehow some people think they can slip this one by us.

This entire saga is raw material for a country song. So how long until we see "My Taxes Are So High I'm Stuck Behind a Store Counter" or "When You Write Country Music You Get Muted by the Tax Man"? Perhaps, "I'm Too Special and Maule Won't Admit It."

Tuesday, November 29, 2005

Tax + Maule = Not Fun? 

Rick Telberg's column this week on CPA2BIZ reviews tax and accounting blogs. Of this one, he says:
"www.mauledagain.blogspot.com isn't as much fun as "mauled again" might imply, but if you're the type who needs to know about section 164(b)(5) of the Tax Reform Act 1986 or IRS Form 4868 and its "companion" Form 7004, then Villanova Prof. James Edward Maule's blog is the place for you."
I guess all I can do is to try harder with the puns and the jokes. :-)

The thought that being mauled again can be fun leaves me almost at a loss for words. Oh, well. :-)

Monday, November 28, 2005

Planning: It Can Be Taxing 

Andy Cassel's column in yesterday's Philadelphia Inquirer set forth yet another early warning about the impending pension deficit crisis. Putting the almost inevitable crisis in the context of an "old vs. young" competition for insufficient resources, he outlined the problem in his usual clear and concise style. The problem is that the governments and businesses who promised old-age and health care benefits to workers and taxpayers have failed to fund those promises. In order to pay these pensions and health care costs, governments will need to raise taxes and businesses will try to shift their unfunded liabilities onto government, creating even greater revenue needs. Of course, as Andy points out, the younger generations asked to pay these costs will be far from thrilled and honored to do so.

Absent tax increases, or in some instances price increases for the products and services offered by companies with unfunded or underfunded retirement plan obligations, companies will go under. Governments will be forced to cut back on services, including, as Andy points out, hiring teachers and fixing potholes. This is not some "way in the future" problem, because the very early signs of the upheaval are already crossing the news wires. Andy mentions General Motors and the airlines, but these are but a few of the companies in deep trouble. The gap? It could be as much as $450 billion.

There are two huge lessons that America, Americans, American business, American politicians, and American governments need to learn before anyone attempts to solve the problem. After all, what's the point in repainting the foyer walls if the ice dam problem on the roof hasn't been fixed?

The first lesson is simple. Don't make promises that you cannot keep. That's at the core of the advice I gave on how to avoid being bashed by a blog. It's advice that's been favorably quoted by a broad spectrum of web sites, including The Big Picture, WFMU blog, The Center for Realtor Technology, Boing Boing, Undernews, the online report of the Progressive Review, Germany's Blogbiz, Blogzerk, Germany's Blogging Tom, Learn to Trade Futures, Wicked Word Craft, Crain's Cleveland Business on the Web, Gandalf23, Blogaritaville, Peter's Reviews, and the Head Lemur's Raving Lunacy. Apparently I hit a very responsive chord.

The second lesson is the flip side of the first. If you make a promise, focus resources and energy on keeping it. In other words, plan. If retirement pensions are promised to workers, set aside the appropriate amounts of money, in a secure pension trust, so that the pensions can be funded. Of course, with the decades-long Social Security ponzi scheme serving as a role model, private companies have adopted the same "what? me worry? (about tomorrow)" attitude that has come home to roost.

In all fairness, the Social Security arrangement is but a reflection of American culture. It's tough, isn't it, to set aside funds for a child's college education or a possible period of disability or job loss, when so many "needs" compel immediate spending. And spending is good for the economy, isn't it, almost patriotic? After all, when tomorrow arrives, and a college tuition bill looms or a pink slip is received, someone, somewhere, somehow will step to the rescue. It's not just financial matters that manifest this attitude. People go off hiking in the wilderness without appropriate supplies. Students seem shocked when December 1 arrives and there are examinations to take that require far more preparation than there is time, because not much has been done during the semester. War planners are befuddled by the need for post-invasion planning. Gasoline shortages and accompanying price hikes come as big surprises to those not able or willing to think or see beyond the horizon of the evening's last call. The long-standing Boy Scout motto, "Be Prepared," is about as popular as are the Boy Scouts.

The pension and social security shortfalls are magnificent illustrations of the planning deficiencies afflicting American culture. These aren't theoretical issues. These are real, hit-the-pockets, lifestyle-disrupting crises. These hit very close to home. These scare people. These bring out emotions. Andy's right. Dealing with these problems poses a real possibility of getting downright ugly. And nasty.

How did we get here? Does anyone care? Does it matter? Ought we not let the past be bygone and move forward? Why cry over spilt milk? How does casting blame fix things? Figuring out how we got into this mess is valuable, not for pointing fingers, which does nothing to solve the problem, but for identifying the deficiencies in thinking and the flaws in character that permeate culture and that need to be expunged before solutions can take hold. Remember, I'm not going to repaint the entrance hall until I know that there won't be more ice dams on the roof. (Good news: I finally found a roofer, who was willing to deal with the job, and who found the problem. Yep, construction errors.)

What happened is this. Promises were made to pay pensions. The amount required to fund the pension should have been calculated and set aside. I can't say that no one did this, for surely there must have been people who computed the cost, and even called for funding the promises. It's likely they were ignored, seen as Jeremiahs intent on taking the fun out of the party. So companies, awash in cash, chose to hire executives at salaries 10, 100, 1,000, even 10,000 times the salaries of the rank-and-file (or should I say, the rank-and-fodder?) who face pension-free retirements. Why? The standard defense is that these are the salaries commanded by these executives. And hindsight tells us that many of these highly compensated business geniuses didn't do much to rescue or improve the companies. They simply grabbed what they could grab, stock optioned themselves into low-taxed gains, and skipped town. Are we to believe that there were no competent, worthy, sensible managers willing to work for a fraction of what the "elite" were demanding who could have done no worse and probably a much better job? Why did no one say, "Look, the CEO can be paid $40 million instead of $60 million and we'll sink the difference into the pension fund"? Perhaps someone did ask that question so the inquiry should be: why did no one listen?

All pensions, including Social Security, ought to be funded, and that's a place to start. Existing unfunded or underfunded pensions need to be made secure. The question is, "Who pays?" Why not a user fee on corporate executives and shareholders whose failure to fund, and whose mismanagement of, pension promises and pension accounts has imposed a cost on society much like the cost imposed on infrastructure by the vehicle crossing the bridge and appropriately charged a bridge toll? Before the "it's a free market" object is raised, let's examine the market and see how "free" it is. Is it a free market when the same folks sit on corporate boards, playing round-robin games with executive appointments, as insiders move from boardroom to boardroom? Is it a free market when labor and management conspire to portray a pension plan soothing to the union but in reality a paper configuration? Is it a free market when pension plans fall short of funding goals because the accounts are not invested consistent with secure long-term pension funding growth?

A market is not, and cannot be, free in the absence of truth and candor. Otherwise the market is deceptive, and deception is not free. That's the truth of this entire mess. And truth hurts. In this instance, it's going to hurt a lot. The debate will be intense, shrill, and frightening. Let's hope it gets straightened out before American industry crashes and tens of thousands or even millions of retirees are left on the very short end of a poorly planned stick.

Friday, November 25, 2005

So Where Do (Tax) Laws Come From? 

The recent news about the guilty plea entered by a former aide to Representative Tom DeLay is most troubling. Michael Scanlon apparently conspired to bribe public officials, and has agreed to pay damages to Indian tribes whose interests were adversely affected by the attempts of Scanlon and his associates to "persuade" members of Congress to block those tribes from opening casinos. Not surprisingly, Scanlon and his crew were trying to prevent these tribes from competing with other tribes who had paid tens of millions of dollars to Scanlon et al.

It appears, according to this story, that this lobbying group had at least three dozen members of Congress on board in its Indian tribe casino efforts. Another member of the group has been indicted on fraud charges involving casino fleet boat purchases. Trips, tickets, and campaign donations flowed from the lobbyists and their clients into the coffers of politicians.

This is NOT how government should work. Years ago, when I studied civics, we were given the impression that legislators were public servants. They served the public. They made decisions based on the best interests of the nation as a nation. Of course, growing up brings all sorts of broken dreams and disappointing realities, but it is indefensible to accept government as a plaything of the moneyed interests. But that is what it has become.

How long until investigators discover what many of us already think we know? How long until we discover that what's in the tax law has been no less tainted than what's happened to native American casino enterprise efforts? Will the Republic endure? Or will the legislature follow the example of the Roman Senate, acquiescing to the wishes of an emperor and his elite? I know this sounds dramatic and exaggerated, but the bribing of legislators, overt or discreet, is thoroughly unacceptable. No law, tax or otherwise, ought exist for any reason other than the public good.

Perhaps that is why Civics disappeared from K-12 curricula. Teachers just couldn't bring themselves to set up more children for inevitable disillusions. Perhaps they came to understand that given the choice between answering the question "Where do tax laws come from?" and "Where do babies come from?" it would be easier and less uncomfortable to answer the latter.

It would be nice to think that 2,000 years of history brought some moral progress to match the technological progress achieved by the species. Somehow, it just hasn't happened. That's sad. Very sad.

Thursday, November 24, 2005

A Tax Thanksgiving 

Thanks for reading this blog, for without readers it wouldn't be much.

Thanks for sending informative and thought-provoking comments, for without feedback it wouldn't be as much fun.

Thanks for the Internal Revenue Code, for it provides so much material.

Thanks for good tax practitioners, for without them taxpayers would be adrift.

Thanks for diligent tax students, for without them the tax lore would die.

Thanks for the good that sometimes is done with tax revenues, for without those achievements it isn't worth collecting the tax.

Thanks for the First Amendment that lets criticism of tax law and its author Congress be expressed, for without it they'd be knocking at the door.

Thanks to all the folks who introduced me to the world of taxation and mentored me through my tax growth, for without their sage advice and patience I'd be doing something else and THAT is a worrisome thought.

Happy Thanksgiving to all.

Wednesday, November 23, 2005

Stereotypes in the Tax World 

It is so true that a great way to learn things is to teach. Although the principal reason for that seeming paradox is the need for the teacher to be prepared, and thus to learn what is to be taught, another reason is that students ask interesting questions that inspire teachers to do research in a hunt for a sensible response.

I had one of those moments recently in the basic federal income tax course that I teach. While examining the standard deduction, students asked why there was an additional standard deduction for the blind and for those who had attained age 65. Why not an additional standard deduction for the deaf? What is it about attaining age 65 that justifies an income tax reduction?

A bit of research turned up a fairly consistent explanation of the additional standard deduction for those who have attained age 65 or who are blind. Quoting from Jeffrey H. Kahn, "Personal Deductions - A Tax 'Ideal' or Just Another 'Deal"?," 2002 Law Rev. of Michigan State Univ. - Detroit College of Law 1 (2002), "[T]hese additional deductions ....reflect the fact that when a person or her spouse is blind or aged, she has greater subsistence expenses than do those who are sighted or young." According to Thomas D. Griffith, "Theories of Personal Deductions in the Income Tax," 40 Hastings L.J. 343 (1989), "The difference between these two interpretations of the principle of taxation according to material well-being can be illustrated by the treatment of a special tax preference for the blind. Under the egalitarian principle of taxation according to overall well-being, a tax preference for the blind can be justified simply on the grounds that a blind individual is worse off than an individual with sight, even if the tax reduction benefits the blind person less than an identical reduction would benefit a sighted person. In contrast, under the utilitarian principle of taxation according to the marginal well-being created by income, a tax preference for the blind is justified only if the blind person has greater needs than a sighted person, so that the tax reduction would be more valuable to the blind than to the sighted."

In other words, the Congress presumes that blind people and persons who have attained the age of 65 face higher costs of living and thus deserve a tax break. This sort of thinking is nonsense. Yes, there are blind people and older people whose expenditures increase because of blindness, aging, or one of thousands of other reasons one's expenses can increase. Yet there are blind people and older people whose financial resources are more than sufficient to defray those presumed additional expenses. Again quoting Thomas D. Griffith, "Theories of Personal Deductions in the Income Tax," 40 Hastings L.J. 343 (1989), at footnote 65, "For example, the additional personal exemption for the blind and the blind and the aged, now replaced with an additional standard deduction, each provided over 10% of their benefits to individuals with incomes in the top 1.4% of the population. See Emerging Issues, supra note 3, at 366-67 (citing 1977 Treasury Department figures)."

Notice that as one student pointed out, there are no tax breaks specifically directed to people who are deaf, or, I will add, suffering from any other debilitating or challenging condition, such as paralysis. What of persons who have not yet attained age 65 whose costs of living increase at rates outstripping increases in income? Answers in a moment.

A properly designed income tax system measures a person's ability to pay by measuring taxable income. If it is appropriate to consider the impact of medical or other conditions that impede ability to pay, a deduction reflecting those costs will reduce taxable income. For a wealthy person, the resulting taxable income will be higher than it would be for a similarly-afflicted poor person. Wealthy senior citizens don't need the benefit of an additional standard deduction. Nor do poor senior citizens. Citizens of any age, subtracting deductions from gross income, will establish ability to pay.

It's worth noting that the additional standard deduction for those who have attained the age of 65 is not the only goodie in the federal income tax law, state income tax law, or in federal and state law generally, that caters to the elderly on the principle that elderly are presumed to be financially needy. Extensive lists and descriptions of these benefits can be found in Jonathan Barry Forman, "Reconsidering the Income Tax Treatment of the Elderly: It's Time for the Elderly to Pay Their Fair Share," 56 Univ. Pittsburgh Law Rev. 589 (1995); Gail Levin Richmond, "Taxes and the Elderly: An Introduction," 19 Nova Law Rev. 587 (1995); and Louis Alan Talley, Congressional Research Service, Federal Income Tax Treatment of the Elderly (March 5, 1991), to cite but a few. Gail Levin Richmond alerts readers to the fact that the age at which various tax and other benefits kick in range from the mid 50s into the early 70s. In other words, there are almost as many definitions of "elderly" as there are senior citizens.

Nor is my criticism original or special. The title of Jonathan Barry Forman's article, "Reconsidering the Income Tax Treatment of the Elderly: It's Time for the Elderly to Pay Their Fair Share," 56 Univ. Pittsburgh Law Rev. 589 (1995), says it succinctly. The article, though, is worth the read. Only so much can be packed into a title. For example, the facts matter. Using the government's own information, Forman points out, "Indeed, the median incomes of families age 60-64 and 65-69 are greater than the median family incomes of families age 20-24 and 25-29. All and all, there can be little doubt that many elderly families have incomes greater than a significant portion of younger families[,] .... [and that] on average, the elderly are twice as wealthy as the nonelderly." He also explains that "The elderly are also less likely to be poor than are other demographic groups. For example, in 1992, when the overall poverty rate was 14.5 percent, only 12.9 percent of the elderly were poor. 6 In contrast, almost 22 percent of children were poor that year. 7 It is worth noting, however, that among the elderly, the poverty rate goes up as people get older. For example, while just 10.7 percent of those age 65 to 74 were poor in 1992; 15.3 percent of those age 75 to 84 were poor, and 19.8 percent of those age 85 and over were poor."

So how has it come to be that the elderly are in front of the line for tax breaks? Simple. For years, the elderly have been portrayed as the nation's neglected poor. Perhaps that was true at one time, but it no longer is, and once the problem is ameliorated, the remedies ought to be cut off. Unfortunately, politics being what it is, the late Claude Pepper made his career by championing the cause of the elderly, whom he portrayed to the nation as a cast-off segment of the population abandoned to widespread disease, early death, and all other sorts of evils. The reasoning deficiencies in claiming that finding a poor old person means all old people are poor somehow were overlooked as Pepper was re-elected time and again, even though similar reasoning in other areas of life would bring the political correctness police swat team within moments of its utterance.

If any age segment in American society is in need of special attention, it's the children. But they don't vote, even though sometimes they are taxed (another law review article in the making here), so apparently they don't matter as much except as pawns in the chess game of politics.

Any suggestion to repeal these special tax breaks based on stereotyping by age or affliction, relying instead on measurement of financial condition and ability to pay, has met and will meet stiff resistance. When the former additional personal exemption for those aged 65 and older was changed to an additional standard deduction, thus making the break unavailable to taxpayers who itemize deductions, the outcry was widespread and intense. In at least one instance a reporter described the affected taxpayers as "feeling cheated." I guess that's how a bank robber feels when the police take back the bank's money bags. Cheated. Oh, that poor millionaire retiree. Deprived of an additional personal exemption and not getting an additional standard deduction because there's all those real estate taxes on the resort condos to deduct.

Excuse my sarcasm. I just happen to appreciate the frank inquiries made by my students.

As I pointed out, when someone stops to pay a bridge toll, they're not asked their age (unless there is some "senior citizen bridge toll discount" of which I am unaware). And if bridge tolls were based on ability to pay, the questions would be about income and expenses, not about age or eyesight. Of course, bridge tolls aren't based on ability to pay but on user fee principles, so there's no way to prove that an ability-to-pay bridge toll would not be infected by all sorts of extraneous factors.

Now I'll sit back and brace myself for the response. I'm confident I'll be getting an email from Mom. Uh-oh.

Monday, November 21, 2005

Anyone Want to Count the Words in the Internal Revenue Code? 

Some things, like taxes, never die. For example, talking and writing about taxes seems to be a perpetual activity. Specifically, commentary about the length of the Internal Revenue Code or the size of the tax law resurface periodically as though it was a newly discovered topic.

A few weeks ago, Paul Caron posted an abstract of a Wall Street Journal article [subscription site] about the tax code:
Taxing Words:

So, just how long is the U.S. tax code? Long enough that it's hard to answer that question. These columns have recently used two different numbers -- nine million and 2.8 million words -- in two different editorials, prompting alert readers to ask which number is correct. The answer is both, and therein lies a story. The latter number comes from John Walker, who runs the Web site www.fourmilab.ch, where he has created a cross-referenced and searchable database of Title 26 of the U.S. Code -- the section of federal law that deals with taxes. Since we published that number in August, Mr. Walker has updated his site and now puts the number of words at 3.4 million.

The nine-million-word figure is arrived at by combining Title 26 with all the regulations that have been written to implement the law. The regulations are estimated to run to nearly six million words, giving us the oft-quoted nine million total. Last year, the White House noted conservatively that the tax code ran to "over one million words." Mr. Walker arrives at a figure of approximately 1.3 million words if one excludes "all the auxiliary and supplementary material (lists of amendments, cross-references, transitional rules, etc.)," which is close to the White House figure.
In September of 2004, I commented on the President's assertion that the tax code was a million pages long. I pointed out that:
As of 2000, the last year for which I have a count, the Code contained 1,669,514 words. In 1954, when its predecessor (the Internal Revenue Code of 1954) was enacted, there were "only" 409,421 words. * * * * * As of 2000, tax regulations contained 7,307,000 words. In 1954, tax regulations had already crossed the million-word mark at 1,033,000.
Clearly there are discrepancies. Either the counting methodologies differ, errors have been made, or somehow in the past five years the code has almost doubled from 1,669,514 words to 3,400,000 words, and the regulations have (gasp!) DECREASES from 7,307,000 words to 6,000,000 words.


At about the same time that I was posting my commentary on the President's observation about Internal Revenue Code length, Bob Wells of Tax Notes published "The Urban Legend That Will Not Die, 105 Tax Notes 31 (Oct. 4, 2004). Bob noted a Washington Post editorial that had corrected the President by asserting that the code was 17,000 pages in length. What Bob published was a re-run of a story published in 1997 and in 2001, and which my friend, mentor, and LL.M. thesis advisor Tom Field at Tax Notes and one of my favorite editors, Bob Wells, promise to republish every time code length nonsense gets reported elsewhere. See why I admire them? Willing to set the record straight when gross hyperbole threatens to invade our minds. Not that I have ever engaged in gross hyperbole, ha ha. Think Tom let me squeeze gross hyperbole into the thesis? NOOoooo.

What Bob's report explains is that people apparently guess at the page length by looking at the last numbered page in commercial editions of the code. Using a 1997 edition of RIA's version of the Code, they determined that the page numbering was not continuous. Pagination is not unlike the numbering of Internal Revenue Code sections, which also "skips" some numbers. After removing the gaps in numbering, the index, the amending acts table, and the table of sections, Bob and his co-counters determined that as of January 1, 1997 there were 2,434 pages in the Code. Until the explanations of amendments that follow each code section are removed. Then the count decreases to about 2,000 pages.

Of course, within days, I wrote a letter to the editor of Tax Notes on the matter, "Page Counts, Word Counts, Urban Legends, and Cookies, 105 Tax Notes 425 (Oct. 12, 2004):
I noted with interest Bob Wells's valiant attempt (Tax Notes, Oct 4, 2004, p. 31) to slay the code-size urban legend (or is that code-sized?). Urban legends (tax or otherwise) are tough to kill, something that Professor Jan Harold Brunvand, professor emeritus of English at the University of Utah knows well. He made a professional career out of debunking urban legends. I don't recall reading about the code-size legend in any of Professor Brunvand's books, but keeping such taxing material out of his books surely helped him sell book after book. I am confident that despite Bob's efforts, within four years at least one more politician will characterize the code as having a million pages.

When I read that the president had made the million-page claim, I grinned, because he did me a favor by providing fodder for one of my September 27, 2004, MauledAgain blog postings (http://mauledagain.blogspot.com/2004_09_01_mauledagain_archive.html #109629125299439055). You'll note I used the adverb "supposedly" to describe the 17,000-page claim, because I had my doubts. I thank you for sharing your research that establishes a page count in the vicinity of 2,000.

But, as I point out, perhaps the president's mistake with respect to tax size was the use of the word "pages." Perhaps he meant "words." Interested readers can visit the cited URL to read about word counts. Considering the source of my information and the exaggeration of the page count, the word count might also be inflated. But it's huge, nonetheless.

Word counts make more sense in measuring the quantity of written work product. Font size, kerning, line spacing, margins, indentation, and a variety of other variables can affect page count. Why am I telling you this? You're an editor. So this bit of trivia will come as no surprise: I use different code books for different courses, and a code subsection requiring 7 lines in one book consumes 11 in another. My appreciation for the latter could have something to do with the fact I'm nearing the event horizon for reading glasses.

You and your readers are invited to visit MauledAgain. Described as "Prof. James Edward Maule's more than occasional commentary on tax law, legal education, the First Amendment, religion, and law generally, with sporadic attempts to connect all of this to genealogy, theology, music, model trains, and chocolate chip cookies," it may provide a few more legends, urban or otherwise, for you and your readers to ponder. It surely has some tax commentary that may be of interest.

Thanks for publishing this less-than-one-page, surely not 1 million or even 2,000 word, letter. I haven't counted the words. I'm sure someone will.
Yes, indeed, I could not resist so I didn't.

Can 2,000 pages contain 1,669,514 words or 3,400,000 words? That's roughly 830 words or 1,700 words per page. Even teenagers with magnificent eyesight would need microscopes to read the words on such a page. We may be getting there, according to this report about printing an encyclopedia on a pinhead, but, please, don't let this news reach Washington.

So how many words ARE there in the Internal Revenue Code? Rather than counting the words manually, I figured there must be some way to get a digital copy of the full Code, paste it into a word processor, and do a word count. Well, finding a full copy of the Code is difficult. Most web sites, including Lexis and Cornell's Legal Information Institute, provide only section by section access, which would require a tedious process to recompile the Code. The House of Representatives makes available what it calls the complete Code title, but it includes all of the annotated explanations of previous amendments. It is roughly 25 megabytes in size. That's a lot of words, but many of those words are not part of the code. Again, it would be a tedious task to remove the annotations.

So, at the moment, my best guess is that the Code contains about 400,000 words. Anyone who can provide more specific results, with a description of the methodology that removes any guesswork, earns a free subscription to MauledAgain.

Friday, November 18, 2005

"They" May Be Reading the Tax Analysis, But Are "They" Listening? 

It's getting a bit weird. As I noted last Friday, my previous posting about whose ox would be gored by the Tax Reform Panel's recommendations was followed by a refutation from the chair of the House Ways and Means Committee who claimed that "everybody's ox gets gored." A reply to my post? Coincidence? At the time, I figured it was the latter.

Then, two days ago, I noted that the arguments I had made against having or extending special low tax rates for capital gains and dividends had been advanced by Senator Snowe, with sufficient effect, because the provision extending those low rates was dropped from the Senate Finance Committee's tax bill. More coincidence? Perhaps. Or could members of Congress be reading this blog, or having their staffers do so for them, because they've heard I'm one of the harshest critics of what Congress has been doing and not doing with tax legislation? Again, I voted for "most likely it is a coincidence."

Then this morning comes news that late last night the Senate approved the Finance Committee's bill, and an amendment rejected by the Senate on a procedural vote, offered by Senators Byron Dorgan and Chris Dodd, would have imposed a temporary windfall-profit tax of 50% on windfall profits not reinvested in increasing domestic oil and gas supplies. It was only four days ago that I had written:
If there's going to be a windfall profits tax, add a new wrinkle. Without getting into the details, or "marking up" the previous version, I would allow a deduction for investment in energy exploration, including alternative sources other than oil and gas, that exceed the company's average investments for the past five years. Such a tax would encourage alternative energy development, and to the extent a company chose not to invest its profits in such a manner, it would pay what I prefer to call a user fee to offset the economic market disruptions that can arise by failure to develop additional and alternative energy resources.
Well, I suppose it's just another coincidence. But I'm beginning to wonder. After all, if "they" indeed are reading this blog, here's my chance. Oh, wait, I already did that when I responded to Nakul Krishnakumar's "President for a Day" challenge. So, if "they" are reading, "they" know.

The Senate's passage of the bill is worth noting for several other reasons:

1. Other windfall profits proposals offered as amendments to the bill were defeated. One would have funneled the proceeds of such a tax to funding energy costs for low-income individuals. Attempts to remove existing tax law incentives for engaging in exploration and development of energy sources were defeated.

2. The bill contains a provision that requires oil companies to change the method in which they account for their inventories. Stating the matter simply, perhaps too simply, the question is whether, in computing profits, an oil company can use the cost of its most recently acquired inventory as an offset to revenue, or whether it should use the cost of the earliest acquired oil. The former method, last-in-first-out (LIFO), tends to reduce profits (and taxable income) when prices of purchased inventory are rising, whereas the latter method, first-in-first out (FIFO) attaches cost directly to the items that are purchased and resold. Most companies, not just oil companies, use LIFO for tax purposes. The provision would require use of FIFO, the effect of which would be to increase oil company taxes when the switch over occurs. This provision brought a veto threat from the White House.

3. The bill was passed "early Friday" shortly "after midnight." Is it any wonder that tax legislation is far from ideal? Though it may be noble and courageous to pull an all-nighter, admiration of such an approach should be reserved to matters of national emergency, and not instances in which good time management would foreclose the need to be dealing with technical tax issues and tax policy matters during a person's 19th or 20th waking hour. The advice I shared with student's in last week's law school Gavel Gazette newsletter about the risks of working through the night when it's not an emergency, and of managing time so that emergencies are minimized, would be good reading for Congress and its staff.

4. Senator Rick Santorum added yet another quote to his growing inventory: "I call this bill the 'Tax Increase Prevention Act.'" Is removal of a tax decrease, especially when that decrease is unjustified, an increase? Are tax increases per se prohibited? No matter increases in government spending? What ever happened to the Balanced Budget movement, once a favorite goal of the group that now seems wedded to "no tax increases."

5. The special lower tax rate on capital gains and dividends is in place, unfortunately, until 2009. So why the effort at this point to extend those rates? The stock answer is that taxpayers need certainty? Certainty? The only certainty is that there are TWO Congressional elections between now and 2009, and not only will all seats in the House be up for grabs (theoretically) twice, but two-thirds of the Senate will be determined. The Congress elected in 2008 will do whatever it wants to do with the tax rates, and whatever extension enacted in 2005 will not present a legal obstacle. Of course, as a practical matter, it's a lot easier to reject an extension than to repeal an existing tax break, so the real answer to my question of why the effort at this point is a political stratagem. My preference for repealing immediately the special low tax rates for these types of gross income surely is not much more than a desire that can be shelved in the same place I put my hopes for the Philadelphia Eagles winning the Superbowl early next year. Yes, miracles can happen. But I'm not holding my breath.

6. The Secretary of the Treasury defended the low special rates by pointing out not only the taxpayers whose taxes are lowered but also those who get "new and better jobs and greater economic security for families." Huh? New and better jobs? What new and better jobs? The ones in China and India? The ones terminated at fertilizer, plastics and other factories that have been moved abroad because of the high price and possible shortages of natural gas? The ones that pop up in headlines almost every day as yet another company trims its workforce? And as for greater economic security, when's the last time the Secretary looked at the consumer confidence index? (Check out the graph from the the Conference Board that illustrates yet another drop in the consumer confidence index, now down to 85 from 106 in June). Why not impose the same rate on all income, which would permit lowering the rate on wages? The answer that we never hear, because it would be too revealing and thus too uncomfortable for the advocates and beneficiaries of these special low tax rates, is that the folks who derive their income from capital gains and dividends are in a better position to use their tax savings and are wiser about what to do with money than are wage earners. Well, at this point, even if there had been any empirical evidence supporting such an elitist outlook, the track record demands that the wage earners be given a chance. All things considered, how much worse could it be?

7. The other provisions, which I described two days ago, remain in the bill.

And, so the 2005 tax legislation story continues. Yes, there will be more.

Thursday, November 17, 2005

A Cornucopia of Tax Charts 

In time for Thanksgiving, TaxChartMan has delivered again. Andrew Mitchell has stuffed some more tax law graphics into his tax charts web site. This time around, to use his words, he has added:
1. Bashford (Remote Continuity of Interest)
2. Groman (Remote Continuity of Interest)
3. Nissho (Foreign Tax Credits: Legal Liability for Withholding Taxes)
4. Southwest Consolidated (Warrants are not voting stock)
5. Turnbow (If No Tax Free Reorg Exists, Then Full Gain Is Recog'd)
6. Rev. Rul. 57-465 (Downstream Merger of Fgn Corp. was a D Reorg)
7. Rev. Rul. 68-261 (Merger with Drops into Multiple Subsidiaries)
8. Rev. Rul. 68-285 (Dissenting Shareholders Paid Cash in B Reorg)
9. Rev. Rul. 68-349 (Failed 351 Exchange - Lack of Control)
10. Rev. Rul. 68-562 (Shareholder Purch'd 50% of Target Prior to B Reorg)
11. Rev. Rul. 70-107 (Parent Assump'n of Liab.s is Boot in Triang. C Reorg)
12. Rev. Rul. 72-197 (S/H's Liable for Fgn Taxes of Rev. Hybrid Entity)
13. Rev. Rul. 72-354 (Sale of Recently Purch'd Stock to Qualify as B Reorg)
14. Rev. Rul. 72-522 (Equity for Working Cap. Does Not Disqualify B Reorg)
15. Rev. Rul. 73-102 (C Reorg with Cash to Dissenting Shareholders)
16. Rev. Rul. 74-564 (Merger of Transitory Entity Treated as B Reorg)
17. Rev. Rul. 76-223 (Voting Rights Added to Qualify as a B Reorg)
18. Rev. Rul. 79-4 (Acquiror Repayment of Debt Gtd by Target S/H is Boot)
19. Rev. Rul. 79-89 (Acquiror Repayment of Debt Gtd by Target S/H is Not Boot)
20. Rev. Rul. 87-89 (Cross-Border Lending Intermediary Disregarded)
21. Rev. Rul. 98-10 (B Reorganization with Exchange of Securities)
22. Rev. Rul. 2001-26 Situation 1 (Two Step Reverse Triangular Merger)
23. Notice 2005-74, Example 1 (Tax Free Reorg Impact on GRA - Transferor)
24. Notice 2005-74, Example 2 (Tax Free Reorg Impact on GRA - Transferee)
25. Notice 2005-74, Example 3 (Tax Free Reorg Impact on GRA - Transferred)
There are three ways to access the charts:
By Topic
Alpha-numeric order
Date uploaded
If you haven't read my previous accolades for Andrew's charts (see here, here, here, here, here, and here), take a look. As those who have followed my endorsement of Andrew's tax law visualization efforts know, I and others (e.g.,here) hold them in high regard. So in the spirit of the upcoming holiday, on behalf of tax practitioners, tax students, and tax law professors, everywhere, thanks, Andrew. I'm sure we're going to gobble them up.

Wednesday, November 16, 2005

A New Dawn Flickers on the Tax Horizon 

A small flicker of a new dawn twinkles on the tax horizon. Gathering clouds threaten to plunge the sky into darkness.

The good news: As reported by Reuters, CCH (pay subscription site with variable URL), and other press sources, the Senate Finance Committee approved a version of the "Tax Relief Act of 2005" that does NOT extend the expiration date for those low special tax rates on capital gains and dividends that I, and others, so firmly disdain. Making arguments similar to those I have advanced, Republican Senator Olympia Snowe pointed out that the impact on the federal budget of recent disasters changed priorities. Coming days after it another member of the Congress appeared to respond to my comments about the Tax Reform Panel proposals, I'm beginning to wonder if this is all coincidence or if somehow a few members of the Congress (or their staff) are reading this blog.

Well, as quick as I am to criticize the Congress, I'll be just as quick to congratulate Senator Snowe for taking the stand she has made. One of the few remaining progressive Republicans, a dying species to which fewer and fewer of us belong, she had the courage to stand up to the special interests that dominate the Republican tax agenda. With no other practical choices open to him, Senator Charles Grassley dropped the low rate extender, and the bill was sent by a 14-6 vote to the Senate floor for debate.

Of course, advocates of limiting high taxes to wages have announced "confidence" that the extension of the low rate for capital gains and dividends would be restored by the House of Representatives and somehow survive the Conference. Last night, the Ways and Means Committee approved, by a 24-15 vote, its "Tax Relief Extension Reconciliation Act of 2005," the acronym for which, TRERA, sound a bit too much like terror for my liking. This bill DOES include the extension of reduced tax rates on capital gains and dividends, so the Conference is going to be interesting, to say the least.

Senator Crapo called the omission of the special low capital gains and dividend tax rate extension a "very serious mistake." Hardy. The mistake is requiring wage earners to bear a disproportionately higher rate of taxation than do investors, trust fund beneficiaries, and the ultrawealthy. We've had more than a few years of this bifurcated tax rate scheme, and the economic position of most Americans surely has not flourished as it has for the beneficiaries of these special low tax rates.

The Senate Finance Committee bill would make other changes to the tax law. It extends the soon-to-expire research and development credit, the state sales tax deduction, the work opportunity credit, and some minor alternative minimum tax relief for middle income taxpayers. It makes changes in the New York Liberty Zone deductions and credits, and modifies the taxation of S corporation excess passive investment income. The bill also makes modifications to the charitable contribution deduction, the most significant being the allowance of a deduction in computing adjusted gross income for charitable contributions exceeding $210 ($420 for married couples). Ah, more complexity. The Committee also approved a Republican-sponsored deduction for mortgage insurance premiums. The House Ways and Means Committee bill also extends the state and local sales tax deduction, the work opportunity credit, and the research and experimentation credit, so bank on those being in the final legislation. It also extends a long list of other expiring provision, which are listed in the Ways and Means Committee news release.

Stay tuned. This story isn't finished.

Monday, November 14, 2005

Proposed Water Tax in Maine Almost All Wet 

Tens of thousands of voters in Maine have signed petitions to place on the ballot a referendum on a proposal to tax the withdrawal of water from Maine's aquifers that is bottled. According to this Portland Examiner story, the initiative, led by Jim Wilfong, a former legislator who served in Clinton's Small Business Administration and who specializes in international trade, reflects several concerns. One is the traffic that the bottling plants bring. Another is fear that the aquifers will dry up.

Wilfong's correct that access to clean, fresh water is an emerging issue. I've noted, on several occasions (for example,here and here ) that disputes over the supply of fresh water, not oil, may well be the cause of the next world war. Wilfong, who is not alone in contemplating the shipment of water in ways not unlike present-day shipment of oil and gasoline, explains that the underlying questions of who will own the water, who will control the water, and will fresh water supply be sustainable are the root questions. But is a tax the right way to go?

If the tax passes, it could backfire. The largest water bottler in the state, Poland Springs, has threatened to pack up and leave if the 20-cent-per-gallon tax is enacted. Already, the company has put on hold its plans to add another bottling plant.

A small portion of the tax would be used to protect aquifers, enhance the water environment, and otherwise remediate the impact of withdrawing the water. Most of the revenue would be set aside for small business development. Income from the trust holding the unspent revenues would be paid to state taxpayers.

The proposed tax would cost Poland Springs each year more than it currently earns in profits each year. Does the word "confiscatory" pop into anyone's head?

Wilfong denies that Poland Spring is a target. He explained, "We don't have it in for anybody. We just think this is something that's fair and ought to be done."

There are two serious issues to consider. One is the appropriate purpose of a tax and use of its revenues. The other is a question about the ownership of natural resources.

To the extent a water bottler, like Poland Springs, is imposing a cost on society by using roads, increasing traffic, contributing to pollution, or damaging the aquifer environment, a user fee (even if called a "tax") is appropriate. Perhaps a one or two cent per-gallon fee makes sense. It might even make business sense to the bottlers, because it would contribute to the sustainability of supply.

But the idea of soaking the companies (sorry) to generate money for small business development or windfall dividend income for state residents is a not-well-camouflaged money grab. Why should water bottlers or, in effect, their customers, subsidize small businesses in Maine? Maine taxpayers and Maine small businesses did not subsidize Poland Springs. It is worth noting that Poland Springs was at one time in bankruptcy, and emerged after being purchased by Perrier. If there are entrepreneurs with ideas that would make a small business go, then have at it. That's what Poland Springs did. If the idea is a good one, the business will grow. If it's not, it will stumble. Grabbing one's neighbor's income simply because, well, they have it, is short-term greed guaranteeing long-term failure. This approach to revenue generation and use surely isn't going to be interpreted as a welcome mat by businesses thinking of carrying on activities in Maine, and will be seen as an eviction notice by many of the businesses already working in Maine.

And that leads to the second issue. Wilfong and his supporters appear to treat the water as taxpayer property that it can sell to bottlers for 20 cents per gallon. If the water is owned by the state, that is a sensible approach but for the fact that such a price is so high that there will be no purchasers. Perhaps that is what Wilfong prefers. But if the water is owned by private individuals, is it permissible for the state in effect to seize that property? States do have the right to condemn property for public purposes after paying just compensation. Unfortunately, the Supreme Court also thinks it's ok for states to seize private property to assist other private citizens who claim their private development somehow helps the state, another barely camouflaged arrangement that has the word "bribe" smeared all over it. But the idea of a state seizing property simply because its value has increased is so close to how totalitarian regimes operate that any sensible voter, in Maine or elsewhere, ought to be shaking in fear as they contemplate the logical end of their approach to the issue.

User fee for actual damage? Yes. Confiscatory tax? No. The Wilfong proposal is almost all wet.

If the proposal gets onto the ballot in November 2006, and there's some question about the validity of all the signatures, the rest of the nation ought to pay very close attention to the outcome. A small ripple of confiscatoriness could swell to a flood of state usurpation of private businesses involved in natural resource development. We could soon be drowning in a nation of five-year plans and collectives.

If There Must Be a Windfall Profit Tax, Then .... 

Someone asked me to comment on the various windfall profits tax proposals. As several commentators have noted, this issue was debated thoroughly several decades ago when the oil embargo caused market prices to increase, in turn causing increases in oil company profits. And as anyone who paid attention to the outcome knows, the effect was a downturn in oil company investments in exploration. After all, if the money is being sent to Washington, it isn't going to be spent paying engineers to prospect for oil.

One thing that a windfall profits tax does not do is to reduce the cost of gasoline, heating oil, or any other petroleum or gas product. The market sets the price, and oil companies would be sued by their shareholders if they simply reduced retail prices to less than wholesale prices. Profits surge, temporarily, because of the lag time between price changes and oil and gas shipments.

However, it seems that some degree of faith is required to accept present-day claims by oil companies that they will invest their current cornucopia of profits in exploration. True, such assertions make sense. But shareholder pressure for dividend increases is also a reality. What to do?

Here's my proposal. If there's going to be a windfall profits tax, add a new wrinkle. Without getting into the details, or "marking up" the previous version, I would allow a deduction for investment in energy exploration, including alternative sources other than oil and gas, that exceed the company's average investments for the past five years. Such a tax would encourage alternative energy development, and to the extent a company chose not to invest its profits in such a manner, it would pay what I prefer to call a user fee to offset the economic market disruptions that can arise by failure to develop additional and alternative energy resources.

Until I see windfall profits tax proposals making headway in the Congress, I'm not going to belabor this topic. But I will return to it and hammer home my proposed energy development windfall profits tax deduction if the situation warrants more intense advocacy of my proposal.

Newer Posts Older Posts

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