Friday, March 27, 2009
First comes this quotation from Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803 (2009):
American legal scholarship today is dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period. ...To this responded Daniel R. Ortiz in Get a Life?, 97 Geo. L.J. 837 (2009):
Now it’s true that we’re producing at a vastly faster rate than ever before. More papers. More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster. Over seven thousand American legal academics—and all of them cranking out those talks and papers as fast as possible. The speed of legal scholarship is just off the charts right now.
And yet, nothing’s happening.
How could this possibly be? The short answer is that, all around us, there is more, vastly more, of nothing happening than ever before.
What a depressing prospect! Many years short of retirement, I’m condemned, Schlag says, to generate necessarily (but, I hope, excellently) mediocre “legally cognizable material” at an ever-increasing pace. Like a hamster spinning on a wheel, my only hope is that my audience—and that’s probably only my dean—will applaud my display of energy as I move ever more quickly nowhere.And to that lament came Richard Posner's proposed remedy, in The State of Legal Scholarship Today (A Comment on Schlag), 97 Geo. L.J. 845 (2009):
Might it not be a good idea for law schools, just as they have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the “regular” faculty, to have a department of legal analysis? The members would be legal doctrinalists, and their salaries would probably exceed those of the other professors in the law school (because lucrative private practice would be a close substitute for what they would be doing in law school, which is not the case for more “academic” law professors), but they would have somewhat higher teaching loads and the school would have different and lower expectations with regard to their scholarly publication. The practice of law has become a team effort—so has medicine— so why not legal education? Already regular law professors and clinical law professors work side by side in general amity. Why not have a third group of specialists, the legal analysts, working alongside them?Posner's suggestion deserves attention, not only because it presupposes some conditions that are questionable but also because it raises serious questions that need to be addressed. His suggestion deserves attention because, as Mike Livingston points out in his comment to Paul Caron's posting, law schools seem to be heading in that direction, but haphazardly and not deliberatively, creating an arrangement different in critical respects from the one envisioned by Posner.
The first concern is Posner's assertion that "law schools … have separate clinical departments, with clinical faculty whose credentials, job descriptions, and career tracks differ substantially from those of the 'regular' faculty," which may be true at some institutions but certainly isn't the case at all institutions. That fact proves the axiom that it need not be the case at any institution. Faculty at my law school are treated in the same way regardless of whether they are teaching a clinic or not. The hiring process may focus a bit more on certain credentials, namely, practice experience in a clinic's substantive area, but clinic faculty are not relegated to some "second class" membership in the faculty. They vote, they are subject to the same tenure review standards, they are not on a different pay scale, etc. There are faculty who teach both a clinic and a "regular" course, which would compound the many problems that would arise from separating clinicians from non-clinicians. Posner's point, though, survives despite the seeming universality of his assertion. His point is that separating law faculty into two (or more) groups would solve a problem.
My second concern is the idea that creating another "class" of law faculty is, in some way, a solution to the problem that threatens to transform law schools, and to do so in ways beyond the schools' control if their administration and faculty don't start focusing on the realities of the current recession and its long-term impact on legal education, as I discussed in How A Transformative Recession Affects Law Practice and Legal Education. It's not just the creation of a separate class of faculty that is disturbing. It's the proposed disparity in treatment, and, worse, the economic justification for the proposed dichotomy.
Posner suggests a "department of legal analysis" that would hire or take over "legal doctrinalists." Presumably, these would be the faculty who teach legal doctrine to law students. Law students, however, need more than legal doctrine. They need the ability to interview clients and dig out relevant facts. They need to learn how to negotiate and bargain. They need to learn compliance and planning techniques. They need to learn how to write, how to teach themselves, how to organize their thoughts, and how to express their reasoning and conclusions. They need to learn how to react to ever-changing legal landscapes. Posner describes what these faculty would be doing as something for which "lucrative private practice would be a close substitute." Yet not all great practitioners are in lucrative practices, because some great practitioners toil in public service organizations, in prosecutors' offices, or in government agencies, serving well their constitutencies and clients and yet not becoming the second coming of Midas. Ideally structured, most law faculty would be teaching clinics and other courses, making the divide between clinician and non-clinician a thing of the past. But that issue distracts from the chief problem with Posner's idea.
Posner suggests that the legal doctrinalists would earn higher salaries than the "'academic' law professors" and would have higher teaching loads than would the "academic law professors." This could mean two things. It could mean that legal doctrinalists would teach, for example, 16 credits during the year, and earn, let's say, $140,000, whereas the academic law professor would teach 8 credits during the year, and earn $70,000. Presumably, that would give the academic faculty more "free time" to devote to "legal scholarship." But it also could mean that that legal doctrinalists would teach, for example, 16 credits during the year, and earn, let's say, $140,000, whereas the academic law professor would teach 8 credits during the year, and earn $125,000. The former interpretation means that academic faculty would be compensated economically for their scholarship only if they found someone willing to pay for it, a proposition extremely unlikely to materialize. The latter interpretation means that law student subsidization of legal scholarship would continue. If that is what Posner envisions, I disagree with his proposal.
To ask the critical question is to ask why law students should subsidize legal scholarship. The replies from the defenders of this practice are interesting. They argue that the legal scholarship done by faculty at Law School A enhance the reputation of that school and thus enhance the employment prospects of its graduates. Yet graduates of law schools that have generated significant increases in "scholarly output" by their faculties haven't gained in the marketplace because those increases in scholarly output haven't diminished the employment prospects of Law School A's graduates. Advocates of student subsidization of legal scholarship also argue that the scholarship contributes to the development of the law, in the legislative arena, through administrative pronouncements, and in judicial decision making. Yet that is far more the exception than the rule. Members of Congress rarely, if ever, read the academic journals. Administrative agencies rely on those practicing in front of them or submitting comments, and rarely does a law review article turn up as an agency submission. Judges turn to the law reviews with ever-decreasing frequency. Practitioners subscribe to services that keep them current in the law, which means that their subscriptions to academic journals has withered away to de minimis numbers. It may be sad from the wider perspective of legal philosophy, but clients pay for what solves and prevents their problems today, and aren't all that interested in how things would turn out for them if Professor X were the czar of the legal world.
How did this come to pass? Years ago, the Supreme Court, in Griswold v. Connecticut, 381 U.S. 479 (1965), cited a law review article written by a law school professor and dean, Erwin N. Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. (1960). No, I don't think the two Griswolds were related, at least not in terms of considering themselves members of the same family. The appeal of being cited by the Supreme Court resonated with the egos of many a law school faculty member and many more wanting to be law school faculty. And so the race was on to pen the definitive analysis that would lift its author, and the author's school, into prominence when it was cited by the Supreme Court. The irony is that Erwin N. Griswold tackled a practical problem and dealt with it in practical ways that made it useful to the court. So much of today's "dead" legal scholarship plays upon a theoretical landscape offering impractical ideas that it's no wonder the judiciary finds less and less value in the pages of the academic journals. In contrast, practical writing that guides lawyers as they seek to assist their clients also gives judges a good road map to working through a case. When I do write what is considered "true legal scholarship," and I do that from time to time, I focus on practical problems and address a question that has come up in practice and that is near or already in litigation. My practical writing, which is what principally author, ends up being cited with some regularity, particularly in judicial briefs. I doubt the Supreme Court ever will cite me, and yet that in no way diminishes my conclusion that I've been helpful with my writing. My point is that one can both teach and write, in ways that are harmonious, without needing to wander into the places legal scholarship has taken itself during the past twenty or thirty years, apparently, according to some, to places where it will die or already has died.
And that brings us to yet another argument made by those who support the idea that law faculty should be cranking out scholarly article after scholarly article. They claim that these articles will contribute to the betterment of society, by influencing the development of law in a beneficial direction. Yet, as I've pointed out, they're more likely to achieve this result if they focus on practical problems in practical ways rather than trying to justify positions on abstract conceptualizations. Not long ago, a professor from another school came here to present a paper. The issue was important, the analysis was interesting, but for me the paper ended too soon. I asked the author if the goal was to produce something to guide legislatures in framing a statutory solution, to help judges decide the seemingly inevitable case, or to provide practitioners with arguments and planning approaches to use in litigation and planning work. The answer floored me. "I'm not writing for them. I'm writing for other scholars." I bit my tongue. I wanted to ask, "On whose dime?" Why should law students undertake debt in order to fund this sort of production? The answer, of course, is that they are easy targets, riding on a bubble of education debt that made it a no-brainer to increase law school tuition every year to fund more and more faculty scholarship as average teaching loads declined, made possible by expanding the size of law school faculties.
Mike Livingston, in his his comment to Paul Caron's posting, notes that law schools already are "substituting non-tenure track (and primarily nonscholarly) faculty for the more traditional variety" and he characterizes that as a ruse. Indeed it is. These non-tenure track faculty, cost law schools far less than do "regular" faculty and yet their increasing presence doesn't yield tuition discounts or rebates for law students. Why? Because more and more regular faculty demand reduced teaching loads, in order to generate legal scholarship, law schools end up needing to hire non-tenure track faculty, and even adjuncts, to teach courses, including core courses. Here's the catch. These non-tenure track faculty and adjuncts earn less, not more, than the "academic law professor." Law schools have it backwards. They're slip-sliding into an inversion of Posner's suggestion. They will end up, if the trend continues, as institutions paying high salaries to academicians writing legal scholarship and lower salaries to faculty doing the teaching. And law students will continue to borrow money to pay for this experience, why?
What law schools, and their parent universities, need to do is to become honest. The law school is a school. Its tuition should fund teaching, and by teaching I mean not only doctrinal pedagogy but also clinical and other experiential classes, planning courses, practical writing exercises, and all of the other skills that lawyers need. The university, if it so chooses, can establish institutes, or think tanks, that hire people who want to ponder and engage in discourse on topics of interest, to themselves, to the university, to the institute, to whomever, as the university chooses to support. Funding? Consult the think tanks and learn how they obtain money. Think tanks aren't charging tuition. A person who wants to teach and write could be given the opportunity to take a part-time appointment in the law school and a part-time appointment in the think tank, with salary set accordingly. A person who wants to write, and there are law faculty who would invest all their time writing if they could and who view teaching as a necessary distraction, could seek an appointment in the institute. A person who wants to teach, and who doesn't want to engage in the academic scholarship game, could seek an appointment in the law school. None of this would prevent the law school faculty member from writing practical material. None of this would prevent the law school and the institute from collaborating on programs of interest to law students and the practice world, though I predict there would be much experimentation before these organizations figured out how to do it in a way that works.
If law schools don't make these adjustments, they will continue on the slip-slide until the day the faculty wakes up, realizes students are heading for those much less expensive educational organizations established by the practice world, a possibility I suggest in How A Transformative Recession Affects Law Practice and Legal Education, and notices that the revenue required for their incomes has shrunk considerably. The law school will have become the institute, after dismissing most of the faculty, its building will be taken over by the university, to be rented to the new law teaching organization, in some sort of cooperative venture with the practicing bar and perhaps the state judicial system. The outcome will be far less pleasant than the one that can be obtained by a careful and deliberative process of reforming and re-forming legal education. The post-2010-recession economy will not be hospitable to the current arrangement. It truly is a simple choice. What will happen to it?
Wednesday, March 25, 2009
A different perspective on the challenges of tax administration highlights a similar problem. The problem in this instance is the inability of state, local, and national governments, and even international agencies, to curtail or even eliminate the "tax phishing" that infects life in this digital age. It's a problem for the people who fall victim. It's a problem for the IRS, because it must shift resources to dealing with the problem and helping victims. It's a problem for the robustness of the internet, because the backlash against these outlaws could end up restricting innocent internet users. Why is this problem similar to the bonus taxation problem? In both instances governments struggle to find ways to deter in appropriate behavior, and to fix the consequences of that behavior, without affecting adversely those who are not among those who think law is nothing more than a distraction to their unflinching pursuit of money in total disregard of what is right and wrong.
There is a difference, though, between the two problems. In one case, the arrangements were crafted carefully, and the ability of fact finders to ascertain the truth was impeded by cunningly disguised implementation. In the other case, the sloppiness betrays the incompetence of the money chasers, even though there are, unfortunately, people who don't know enough to recognize the obvious and almost comical attempt to prosper through greed.
So here's a chance to experience what it's like to face a quiz, or more accurately, a semester exercise, in a tax course. You can pretend to be an associate in a law firm who is asked by a partner whether an email received by a client should be ignored or given a response. If that thought is too disturbing, pretend that a relative or friend has approached you to ask how they should react to this email. Your task is easier than it could be, because I will tell you the first part of your response. You would tell the partner to tell the client to ignore the email, just as you would tell the relative or friend to delete it and move on. Your responsibility is to identify the clues in the email that suggest it's not the IRS message it claims to be.
Here's the email, which is a verbatim replication of one that I received very recently:
From: Department of The Treasury [mailto:email@example.com]
Sent: Friday, February 27, 2009 8:48 AM
Subject: Tax return (Message ID: JN34534362)
After the last annual calculations of your fiscal activity we have determined that you are eligible to receive a tax refund under section 501(c) (3) of the Internal Revenue Code. Tax refund value is $189.60.
Please submit the tax refund request and allow us 6-9 days in order to IWP the data received. If u don't receive your refund within 9 business days from the original IRS mailing date shown, you can start a refund trace online.
If you distribute funds to other organization, your records must show wether they are exempt under section 497 (c) (15). In cases where the recipient org. is not exempt under section 497 (c) (15), you must have evidence the funds will be used for section 497 (c) (15) purposes.
If you distribute fund to individuals, you should keep case histories showing the recipient's name and address; the purpose of the award; the maner of section; and the realtionship of the recipient to any of your officers, directors, trustees, members, or major contributors.
To access the form for your tax refund, please click here
This notification has been sent by the Internal Revenue Service, a bureau of the Department of the Treasury.
Director, Exempt. Organization
Rulings and Agreements Letter
Internal Revenue Service
Don't read further in this post until you try to identify the clues. Some are very obvious, and you should be able to collect enough of them to earn a decent grade. Some take a bit more thought, and finding those can bring the grade up to a very good level. A few of the clues are a bit oblique, but they provide a chance for the A students to stand out.
So don't peek at the list that follows. So to push those clues further down the page I will provide two more bits of information.
First, it would not be surprising to discover that you have identified a clue that I don't identify. The outcome of collective effort on client problems usually exceeds the output of a single attorney. That's why professionals work as teams. The tax lawyer sometimes brings in one or more other tax experts, and when the matter warrants, an accountant, an appraiser, an actuary, an engineer, or some other professional who brings a special expertise.
Second, here's how in my "score against a standard" grading approach you would do with this problem (roughly, because there are insufficient total points to generate a course grade and cut-offs are adjusted to prevent one point from making a difference in a course grade):
16 to 20 clues: A
15 clues: A-
14 clues: B+
12 or 13 clues: B
11 clues: B-
9 or 10 clues: C+
7 or 8 clues: C
6 clues: C-
4 or 5 clues: D
3 or fewer clues: F
Ready for the clues? Here they are, in the order they appear in the phishing email
1. The email address associated with the Department of the Treasury is not from a Department of the Treasury internet domain.
2. Tax refunds are not issued under section 501(c)(3). Section 501(c)(3) is the definition of organizations that are tax-exempt on account of being organized and operated for religious, charitable, scientific, and other specific purposes.
3. If a tax refund has been determined, there ought be no need to request it.
4. The acronym IWP makes no sense in the context of the message, and even if one could come up with words that would fit those letters, it is highly unlikely that a message with respect to a tax refund would use the term as an infinitive form of a verb.
5. It is patently absurd to think that a government message sent by email would be written using text messaging shortcuts, as is the case with "If u don't receive."
6. There is no "IRS mailing date shown."
7. The email is purportedly sent by the Department of the Treasury, and thus one would expect a reference to "the original Department of the Treasury mailing date"?
8. The grammar in "If you distribute funds to other organization" suggests that the message writer does not use English as a primary language, and is the sort of error that would not persist in a form letter of the sort that goes through multiple levels of review.
9. Even more incorrect grammar shows up in "If you distribute funds to other organization" because either organization should be in the plural or the word other should be another.
10. The misspelling of "wether" corroborates the thought that this email originates with someone who does not use English as a primary language, and is yet another type of error that would have been caught, as described in #8, above.
11. There is no section 497, so there surely is no section 497(c)(15) and there are no such things as section 497(c)(15) purposes.
12. Yet another misuse of the English language shows up in the phrase "If you distribute fund to individuals."
13. The meaning of the phrase "the maner of section" can be guessed only by making the assumption that the word "selection" was intended but ended up as "section."
14. The word "maner" must come from the same dictionary as does the word "wether" and corroborates the point made in #10, above.
15. If "maner" and "wether" aren't enough to raise suspicions, perhaps "realtionship" does.
16. The URL that shows up under "click here" surely is not a Department of the Treasury or IRS web site.
17. If the notification was sent by the Internal Revenue Service, why is it packaged as a message from the Department of the Treasury?
18. The IRS does not appoint people to be the Director of a Letter.
19. The placement of a period after the word Exempt is yet another grammatical error demonstrating that the email is a deception.
20. Anyone who reads the paper knows that the IRS does not use email to initiate contact with a taxpayer concerning refunds.
Sadly, somewhere someone has clicked on the link in hopes of getting a few dollars, and ended up providing a criminal with sufficient information to permit the criminal to steal the person's identity or to use some other nefarious technique to acquire funds to which the criminal is not entitled. Is it not time to being teaching high school students how to identify phishing emails? Surely that is as important a life skill as are most of the others that are taught in our school systems? Hoping that someone's common sense would be sufficient is asking too much.
So how many clues did you identify?
Monday, March 23, 2009
An excellent example of concept-turned-statute is H.R. 1586, which passed the House of Representatives on Thursday. This is the legislation that imposes income tax on bonuses at a 90% rate. That's the concept. "Tax those AIG bonuses" was a cry heard throughout the land, even though, as I pointed out in Taxing Bonuses, the tax would do nothing to undo the economic mess created in part by the bonus recipients. The tax passed by the House isn't the 100% tax that was being touted, but a tax scaled back to 90%, presumably to avoid constitutional challenges.
Setting aside the wisdom and efficacy of the tax, what needs to be done to implement the concept of imposing a tax on the bonuses? Let's look at H.R. 1586.
One must begin by identifying those to be taxed. Section 1(a) of the bill applies the tax to any "employee or former employee of a covered TARP recipient." This requires a definition of that phrase. Section 1(c)(1) of the bill defines a "covered TARP recipient" as anyone that fits within one of four possible descriptions. The first is any person who, after December 31, 2007, received "capital infusions under the Emergency Economic Stabilization Act of 2008 which, in the aggregate, exceed $5,000,000,000." The second is the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation. The third is any person "who is a member of the same affiliated group" as a person in either of the first two descriptions. The fourth is any partnership "if more than 50 per cent of the capital or profits interests of such partnership are owned directly or indirectly by one or more persons in any of the first three descriptions. In the usual game of defining terms in a definition, the provision defines "affiliated group" as it is "defined in section 1504 …, determined without regard to paragraphs (2) and (3) of subsection (b)." For terms such as employee, former employee, partnership, capital interest, profits interest, and others that are used elsewhere in the Internal Revenue Code, section 1(d) of the bill provides that they are to be given the same meaning they have when used elsewhere in the Code. I haven't checked, but there are more than a few terms in the Internal Revenue Code that have different meanings for different purposes, so there may be more analysis that must be done before one can determine if the tax would apply.
As written, section 1(a) would apply even if the TARP recipient repaid to the government an amount of money equal to the amount used for the bonus. Considering the purpose of the provision, that would not make sense. Accordingly, section 1(c)(2) of the bill provides for an exception with respect to repayments. It tells us that a person "shall be treated as described in paragraph (1)(A)," that is, subject to the tax, "only if the excess of the aggregate amount of capital infusions described in paragraph (1)(A) with respect to such person over the amounts repaid by such person to the Federal Government with respect to such capital infusions, exceeds $5,000,000,000." In other words, the test isn't whether the capital infusions exceed $5 billion, but whether the NET capital infusions exceed $5 billion. As a practical matter, this means that the bonus recipient does not know whether or not the bonus is taxable at 90 percent until and unless the employer makes a determination that the employee cannot make, namely, the amount of the net capital infusions, and shares that information with the employee. That, of course, is true for determining the tax status of all sorts of benefits provided by employers to employees.
Having identified those who are to be taxed, the next step is to provide for the taxation of the bonus. But before the bonus can be taxed, it needs to be defined. That seems to be a simple proposition, but hang on, it's not. Section 1(b) of the bill begins with a general rule. It defines a TARP bonus for any taxable year, which is what section 1(a) taxes, as the lesser of two amounts. The first amount is the "aggregate disqualified bonus payments received from covered TARP recipients during such taxable year." The second amount is the excess of the taxpayer's adjusted gross income over $250,000, or $125,000 for a married individual filing a separate return. This has the effect of sparing taxpayers with adjusted gross incomes of $250,000 (or $125,000) from being taxed on the bonus at a 90 percent rate. It also has the effect of limiting the portion of the bonus taxed at 90 percent for taxpayers whose adjusted gross income exceeds $250,000 (or $125,000) by a relatively small amount. This makes little sense, and it presupposes that adjusted gross income is a good measure of the taxpayer's relative economic position. That presupposition is questionable because the people receiving these bonuses include people who manipulated financial instruments in ways that suggest they very well may have manipulated their adjusted gross incomes.
The definition of a TARP bonus depends on the term "disqualified bonus payment." Section 1(b)(2) of the bill takes on the task of defining that term. A disqualified bonus payment is any "retention payment, incentive payment, or other bonus which is in addtion to any amount payable to such individual for service performed by such individual at a regular hourly, daily, weekly, monthly, or similar periodic rate." The term does not include "commissions, welfare or fringe benefits, or expense reimbursements." The term also does not include "any amount if the employee irrevocably waives the employee's entitlement to such payment, or the employee returns such payment to the employer, before the close of the taxable year in which such payment is due," but this exception does not apply "if the employee receives any benefit from the employer in connection with the waiver or return of such payment." Guaranteed, if this is enacted, there will be questions, debates, rulings, and litigation over the extent to which someone "receives any benefit from the employer in connection with the waiver or return of such payment." Finally, to preclude abuse, a disqualified bonus payment includes any reimbursement of the employee by a covered TARP recipient of the "tax imposed under subsection (a)." The "tax imposed under subsection (a)" is the employee's regular income tax, and not simply the 90-percent portion of the tax. Accordingly, income tax reimbursements plans in effect with respect to other income would be caught if the employer is a TARP recipient, even if the employee did not otherwise receive a bonus. At least that's how I interpret the provision.
Actually computing the tax on the bonus is more complicated than simply stating that it must be taxed at a rate of 90 percent. Tracking the language of section 1(a) shows why this is so. The regular income tax imposed on the bonus recipient is described as "not less than the sum of" two amounts. The first amount is the regular income tax that would be computed if the taxpayer's taxable income did not include the TARP bonus. The second amount is 90 percent of the TARP bonus. What this means, of course, is that even if the taxpayer's taxable income is very low or zero because there are deductions offsetting the gross income generated by the TARP bonus, those are not taken into account when computing 90 percent of the bonus.
Nor is this sufficient. Section 1(e) of the bill provides that any "increase in the tax imposed under chapter 1 of the Internal Revenue Code of 1986 by reason of subsection (a)," which means the 90-percent portion, "shall not be treated as a tax imposed by such chapter for purposes of determining the amount of any credit under such chapter or for purposes of section 55 of such Code." In other words, the 90-percent portion of the tax cannot be used to increase the tax liability limitation that applies to most credits. Similarly, it is not treated as a regular income tax in computing the alternative minimum tax.
Is this all? No. It is possible that something has been overlooked. It is possible that application of the provision in the context of existing tax law will create ambiguities or interpretational conflicts. Here comes section 1(f) with the solution: "The Secretary of the Treasury, or the Secretary's delegate, shall prescribe such regulations or other guidance as may be necessary or appropriate to carry out the purposes of this section." I wonder if Congress will appropriate funds so that the IRS can hire one or two bright law school graduates to write those regulations and guidance. That would be a wee bit of economic stimulation. It certainly would be intellectual stimulation for whomever was hired. The problem is that there are no law school graduates who have taken a course in taxation of TARP bonus payments because no such course exists.
Finally, there is a question as to whether this tax should apply to bonuses paid in previous years. The answer is found in section 1(g). It makes the provision effective for disqualified bonus payments received after December 31, 2008, in taxable years ending after December 31, 2008.
That is an example of how a simple concept becomes several pages of Internal Revenue Code text. As codified concepts go, it's a fairly simple one, as difficult as it may be to accept that proposition considering the length of this posting. Some tax concepts require dozens or more pages. Ask someone who has studied Partnership Taxation how many regulation pages are dedicated to the concept of "substantial economic effect." Ask someone who has done a tax return for a Social Security benefits recipient how many pages of instructions and computations are required to handle the concept of "taxing social security recipients on some of their social security benefits." The list of such examples could go on for many more paragraphs but I'll stop. I have some Senate bonus taxation legislation to read.
Friday, March 20, 2009
The outrage has sparked a variety of proposals. Members of Congress have proposed a 100% tax on the bonus, as reported, for example, in this story, this one, and this one. When asked if the tax would be an excise tax, or an income tax on the recipients, or both, staffers replied that they did not yet know. Others have proposed that AIG be denied income tax deductions for the bonuses, as reported here. The Senate Majority Leader suggested that the recipients return the bonuses, though he has also signed on to other reactions. Still other proposals include revealing the identities of the recipients unless they return the money to AIG and requiring the recipients to donate some or all of the bonuses to charity. There are those who think that the government should have let, and should let, AIG go into bankruptcy. One Senator put forth the idea that the bonus recipients should resign or kill themselves, though he later recanted. The Secretary of the Treasury has explained how the Treasury intends to recoup the amounts that were paid.
Yet there are those who defend the payment of the bonuses. In his Dealbook column, Andrew Sorkin explains that AIG must abide by the employment contracts providing for the bonuses, and that failure to pay the bonuses would encourage departure of employees whose talents are required to unravel the mess in which AIG finds itself. Others have pointed out that perhaps the bonus payments went to people who performed well and whose divisions showed a profit, though as the facts trickle out from behind the AIG curtain, it appears that the bonus payments are going to people who are responsible for the mess and whose decisions generated losses.
The flurry of suggestions and the continued defense of the bonus payments in some quarters indicates the turmoil and uncertainty surrounding the transactions. Piled onto this cacophony of commentary are reactions from radio talk show hosts, blog visitors leaving comments, and others who appear to lack an understanding of how the tax system works.
It is to that tax issue that my attention turns. For those who think that a 100% excise tax is unprecedented, check out what happens when a tax-exempt organization or qualified retirement plan engages in a prohibited transaction and fails to take corrective action. Yes, there is imposed a 100% tax. Though the tax has the quality of being punitive, it has an even stronger characteristic of being a deterrent. The downside to imposing a 100% tax on the AIG bonuses is that it would not serve as a deterrent. We are paying the price for decades of ineffective controls on inappropriate executive compensation and decades of weak enforcement of what restrictions are in place. There also is a risk that the tax could be challenged on the grounds it is an impermissible taking and confiscatory.
Taxing the recipients makes no sense unless the proposal envisions imposing a higher rate of tax than otherwise already applies. As it stands, the bonus payments are subject to income tax. There's nothing but symbolic value in the imposition of an addition 10 or 20 percentage points of income tax. The proposal makes sense only if it anticipates a 100% tax rate on the payment, but that in turn raises the same issues that afflict the imposition of an excise tax on AIG.
For those who think that denying a deduction to AIG for the payments that are made, that approach is not unlike denying radio access to a deaf person. AIG does not need tax deductions. It is drowning in losses. It's not even clear that denying the deduction for the bonus payments would have any long-term impact on AIG's loss carryforwards, because those carryforwards might expire in any event.
Letting AIG enter bankruptcy is an argument that has its merits. It's too bad that huge amounts of taxpayer dollars already have been dumped into what would be a black hole. The argument against letting AIG go bankrupt is proof that the American corporate system must be gutted and rebuilt. Opponents of an AIG bankruptcy claim it is "too big" to fail. Its failure, they argue, would bring down the economy in some catastrophic way. That could be true. Either way, it's absurd that any private organization is permitted to become so big that it cannot fail. An organization whose owners know it will not be permitted to fail have, in effect, a blank check to do all the unwise and misguided things that the owners and managers of large entities are tempted to do. There was no good reason to permit AIG, or any of the other conglomerate multinational giants, to become "so big" that they are beyond the restraints of a properly operating free market. In a free market, those who make foolish decisions should pay a price. The mega-sizing of corporate America put yet another nail in the "free" market, creating a situation in which a group of wealthy and wealth-manipulating self-selected "elites" hold everyone else hostage. For those who have suffered on account of the oligarchy's irresponsible behavior, is economic slavery any less life-destroying and spirit-sapping than physical slavery?
The safeguards that ought to have protected America from rapacious entrepreneurs are the provisions that never found their way into state law, or that were installed into state law by legislators anxious to appease the folks who purchase for them their position in the legislature. It's not a tax issue. It's an issue of corporate law. The nominal owners of these modern-day goliaths aren't in a position to exercise their ownership rights. Devices of all sorts dilute their voting power. Votes with respect to stocks owned through mutual funds may or may not be cast in ways that conform to the principles and views of the mutual fund investors. State corporate law has failed America.
What's left? The answer is a deeply troubling one. The enterprises that have been mismanaged, pillaged, and used as money-grabbing machines need to be nationalized, at least for some interim period. The folks who are responsible for the mess need to be removed from any further opportunities to do damage. Who cares if they have some particular skill? They're not the only people in the world who have those skills. They lack something that at least some of those other people have, and that is a respect for justice, a bit of empathy, an appreciation of wisdom, and a grasp of why the pursuit of money at all costs is a short-run mirage burdened by long-term disaster.
But it cannot end there. It's not enough to pull out the weeds, for surely more weeds will grow until the soil is modified. The culture that spawned these self-absorbed, greedy, and defiant captains of industry must be ripped apart. Years of affirming bad behavior by trying to see its good side, decades of accepting the "blame others" response to failure, year after year of being more concerned about offending wrong-doers, and days and days of pretending that things are other than they truly are because the truth is unwanted have filled America's boardrooms with creatures who come up short when it's time to account for understanding the difference between right and wrong.
While held in trust for the nation by the government, these huge dinosaurs of business activity need to be cut down to size. Corporations that become so big that no one knows what's happening throughout the company are destined to fail. The idea that an enterprise should have its hand in everything is nothing more than a reach for world domination. Instead of perfecting products and services in its original line of business, corporations shift attention to each new activity that comes down the road, jumping from bandwagon to bandwagon, unwilling to let anyone else prosper by doing well in some other line of business. The nation and the world end up with corporations that do all sorts of things and none of them very well. Investment banks wanted to be commercial banks, Microsoft wanted and wants to be Google (and Apple and Intel and.. and .. and), brokerages want to be investment banks, and without a doubt this list could be expanded for pages.
Imagine a middle school playground. One student says to another, "I'm cool and you're cool." The other student returns the favor. Together they chime, "Yeah, we're cool." The culture of the school becomes one of self-selected "cool" kids ostracizing the majority of the students in attendance at the school. Now fast-forward to the world of corporate boardrooms, high finance, wheeler-dealers, and the other "players" in the money game. "Yeah, you're cool and what you're doing is ok," says one to another. And the affirmation is returned in kind. "Yeah, we're cool, and what we're doing is ok," they chant in unison, as they not only ostracize but take advantage of everyone else. In the schoolyard, responsible adults can, and should, step in to prevent a bad situation escalating into one infused with bullying and its dangerous consequences. Who steps into the financial and corporate playground to restore order? Who takes over that playground? Surely a tax on "coolness" or on "we're ok" won't get the job done. It's too late for deterrent taxation. It soon may be too late, period.
Wednesday, March 18, 2009
You can get to the animations here. Give yourself a few minutes to go through them. I expect that Andrew will create more of these animations. For those who want to learn some basics or brush up on some basics, they provide an educational experience that is more effective than mere text.
I also expect that these animations will evolve into, and become part of, something more elaborate. I can see the rudiments of an on-line CLE program, and a study aid for law students. The challenge will be keeping them up-to-date, as the Congress continually fiddles with the tax law and as the IRS and the courts bestow regulations, rulings, and cases on taxpayers and tax practitioners. But that challenge exists no matter the medium through which the instructional endeavor is undertaken.
For those needing cross-references to my previous commentary on Andrew's chart work, look here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.
Monday, March 16, 2009
Though surely there are others who can offer predictions with respect to these and other industries, there is one area of the economy to which my professional life is very connected. I speak of law, in two manifestations, law practice and legal education. Specifically, it is the relationship between those two segments of law that need to be examined. I predict that because one is changing rapidly, the other needs to, and will, change dramatically.
By the middle of the current decade, the practice of law had evolved into a profession that dished out salaries north of $150,000 to law graduates with little or no practice experience, coming out of schools that may or may have not provided a clinic experience opportunity and that often emphasized courses focusing on philosophy, sociology, and other disciplines taught by academicians who found a home in law school by adding "Law And" to the course title. Law students continued to sit in classes set apart by doctrinal divisions with little relevance to legal practice. As the gap between law school and practice started to widen during the latter decades of the twentieth century, state and local bar associations initiated a variety of "Bridge the Gap" programs and similar efforts to ease the transition from law school to law practice. In the meantime, law firms found themselves with new associates in greater need of training but with decreasing opportunities to do the training. Not only did the need for partners and senior associates to increase their own billable hours reduce the time they could devote to mentoring recent graduates, they provided a more efficient personnel resource for doing client work because even though their hourly rates were higher than those of new hires, the reduction in the number of hours they required to accomplish a client task more than offset that difference. First-year associates making six-figure salaries need to be billed out at very high hourly rates in order for the firm to avoid losing money. Unfortunately, because they are so unprepared to do much of what need to be done, young associates end up taking two, three, or more times as many hours to do the task because of the steep learning curve that they face. Because of client complaints, billing partners often chopped a good chunk of these hours out of the invoice.
The onset of the current economic tailspin accelerated client concerns about invoices reflecting charges that were higher than they would have been had the work been done by someone not requiring additional hours of time because of inadequate preparation for practice. Other clients, for business reasons, scaled back recourse to legal advice. Still other clients went out of business. Law firm revenues have dropped, and massive layoffs have rippled throughout the law practice world. In turn, this has caused law firms to do one or more of several things with respect to hiring law graduates.
Some law firms aren't hiring. They have barely enough work to feed their current employees. Some firms are cutting out summer associate positions, while others are scaling the summer associate program back, in some instances by reducing the number of summer associates and in other instances by reducing the number of weeks. In one instance, the number of weeks has been cut 40 percent. Some law firms are withdrawing offers, causing hindsight distress for students who had turned down offers at other firms that might not have been withdrawn. More and more firms are telling 2009 graduates to show up in September 2010, and the rumor mill has it that these firms plan to tell any 2010 hires to show up in 2011. That, of course, assumes there will be hiring in 2011. Several firms have offered to pay small monthly stipends to these "suspended" hires if they work pro bono for an appropriate agency. Some firms are eliminating the hiring of law school graduates, choosing instead to hire lawyers with several years of practice. The reasoning is sound. Why pay to educate and develop an attorney when it's cheaper to let someone else take the economic loss of doing so? For students who can find positions as law clerks and government agency employees, this change won't be a significant one, but the number of students who will find such positions likely will not increase. As budget cuts ripple through governments, it is more likely that the number of these positions will decrease.
So why does this matter to legal education? It matters because it is one more nail in the coffin of legal education as we know it. The current economic downturn affects three segments of law school revenue. Schools that receive state funding have already faced big cuts, and will encounter more. Schools that use endowment income are suffering as are other institutions that rely on endowment income, and the bad news is that available endowment income will continue to fall, because the income determinations lag behind the market value changes. Schools that rely on tuition, which pretty much is every law school, must deal with the very real prospect of dwindling applicants. Applications will continue to decline because the impact of the recession, and its effect on law practice economics, will change the results of applying the financial equation that is a major component of the decision to attend or not attend law school. At best, law schools will be competing for fewer qualified applicants, and where those applicants end up studying will reflect not only law school reputation but the tuition charged by particular law schools.
The law school attendance decision financial equation, in English rather than mathematical terms, is simply this: Does it make sense to give up three years of salary and pay out law school tuition, either up front or through debt repayment, in exchange for the increased income expected to be earned by reason of having a law school education? When students in the now defunct Digital Legal Practice Skills course created spreadsheets to answer this question, the results surprised them. Unless they had a realistic prospect of earning significantly more income through having a law school education or unless their other employment opportunities offered rather low income prospects, law school made no sense financially. The transformation of law practice suggests that the financial advantage of a law school education will diminish, because law firms cannot sustain the huge salaries that have been paid in recent years to law school graduates, for the simple reason that the client revenue sources have shrunk and are being more carefully stewarded. Compounding the problem is the credit crunch, which puts at least some would-be law school applicants into a position of financial impossibility.
When prospective law school students begin to realize that the chances of getting a job upon graduation have fallen to the levels faced by college graduates with degrees in those majors that have persistently not been rewarded by the economy, even some of the more idealistic of them will view a J.D. degree as an over-priced ticket for admission to what at best is an employment lottery. When they learn that fewer and fewer law firms are hiring law school graduates because clients are not willing to pay for what little law school graduates bring to the table, some will turn away from the idea and others will join in the increasing chorus to reform legal education. Who else will be singing? Perhaps those law school graduates and current law students, who already have invested $150,000 or more in their education, only to find that they would have done better investing that money in the stock market.
Ultimately, the outcome will be some combination of a reduction in the number of law schools and a transformation of what transpires at those that survive. To make the financial equation work for applicants, law school tuition must be reduced. For that to occur, law schools must cut their biggest expense, which is total faculty salaries. Total faculty salaries can be cut through some combination of a reduced number of faculty positions and reduced salaries. The former approach would require an increase in the number of credit hours taught by each faculty member. The trend of cutting faculty credit hours, chiefly for purposes of permitting faculty to write scholarship "for the benefit of other scholars," as one visiting faculty member put it, will need to be reversed. This is not a new thought from me, for I have been asking why students should subsidize faculty scholarship ever since the rankings chase heated up several decades ago.
One other possibility remains. Bar associations and bar admissions committees, and perhaps state supreme courts, will question the wisdom of limiting bar applicants to graduates of accredited law schools. Enterprising practitioners, perhaps law firms joining together in collaborative and creative efforts, will form schools focused on preparing people to practice law. Properly operated, they need not charge the tuition rates currently being charged. Wise organizers will hire people with law teaching experience and ability, who have more attachment to teaching and less concern about scholarship, to administer and teach in these new institutions. They should be able to provide more experience in the nature of clinics, practical writing, transactional courses, and marketable post-graduation skills. With sufficient clout, they and their practitioner organizers should be able to persuade bar admission authorities to accept their graduates as bar exam candidates. By hiring bright, accomplished law graduates to team teach with experienced practitioners, they will foreclose the expected arguments from the law school monopoly that only faculty at law schools of the present kind know how to teach law. Ultimately, universities will see this development as a threat to their law school revenue sources, and seek to imitate or take over these institutions, at a far greater cost than would have been the cost of reforming their own law schools. Despite that disadvantage, it would provide the benefit of returning law schools to their principal mission, and like other industries, cause legal education to emerge from this transformative recession in a new and more robust form as will happen in other professions and areas of business.
Even if it does not come to pass in precisely this way, the possibility should compel legal educators, including law faculty, to think seriously about where they've been, where they are, and where they might be going, voluntarily or involuntarily. The threat of change ought be considered not as a risk but as a welcomed encouragement.
Friday, March 13, 2009
This story would be an excellent tax policy object lesson, but for the fact that within days, Nutter withdrew the proposal. His rationale was insufficient time to draft language for "the complex program." Where he will come up with funds to reduce the city's projected 5-year $1,000,000,000 budget deficit remains to be seen.
The notion of paying a separate user fee for trash and garbage collection is not a new one, nor is it an uncommon one. I live in a township that includes basic trash pickup as a service rendered in exchange for the township property taxes that I pay. However, if I want to dispose of large items, I must file and application and pay a special fee. This is the first home in which I have lived, and I have lived in ten of them, where there was not a separate fee for trash pickup. As best as I can recall, all of the fees were paid to private contractors. What I don't know is whether these fees where in place from the beginning or were the outcome of a township or city deciding that it would no longer collect trash. The answer to that question matters, because once people become accustomed to a service as part of a menu of benefits obtained from paying a general property tax, they will object strenuously, as, for example, did the writers of these letters, to the withdrawal of what they perceive as a right. The only practical way to make the change is to reduce the general tax and then to add a trash collection user fee. In an era of fiscal crisis, that isn't going to happen.
Studies indicate that where per-bag or other measured trash fees exist, recycling increases. But studies also show that in some localities, trash fees cause increases in littering and illegal dumping. Whether it is cost-effective to hire people to police landfills and other areas in search of illegal dumpers is an unanswered question. It probably would require some fairly steep fines to make such a program worthwhile, although the concept of a user fee justifies slapping these folks with a substantial penalty.
The suggestion that it would be better to cut back on the number of trash pickups as a way of saving money is deceptively simple. The only way it would reduce the city's budget deficit is by reducing the number of city employees who pick up trash. Because it is unlikely that these employees can step in as police, fire fighters, librarians, or city swimming pool staff, the outcome almost certainly would be an increase in the unemployment rolls. In the short-term that doesn't save the city any money. With reduced trash pickups, the city will become dirtier, as bags of garbage and other debris pile up on the streets. If that happens in the tourist areas, even a marginal reduction in the number of visitors would curtail city tourism revenue and worsen the deficit.
Charging by the bag makes sense. Why should someone who puts out one bag of trash a week pay the same amount as someone who puts out five bags of trash a week? Is not the latter person imposing a greater burden on the environment, on society, and on the public good? Treating trash pickup as a service funded by property taxes assumes that the environmental and other burdens generated by a person is proportional to the assessed value of the property. And that simply isn't so. Trash pick-up is very different, for example, from snow removal, the benefits of which cannot be allocated to individuals with any degree of rationality, and which arguably have some sort of relationship to property values. Not that Philadelphia does much in the way of removing snow from its streets, but that's a different story.
The tax policy lesson is that nothing is free. The days of South Jersey pig farmers driving their carts through Philadelphia collecting garbage are long over. The people to whom Philadelphia's trash has any value aren't, for the most part, close enough to come around to pick through it. What does have value is, for the most part, already being separated and collected, specifically in the form of recycling. The costs of collecting trash, of hauling it to a landfill, and of operating the landfill have increased. Have property taxes increased sufficiently to cover these costs? At some point, citizens must figure out that it is not possible to freeze or cut taxes and maintain increasingly expensive services. Something must give.
In addition to the tax policy lesson, some excellent drafting challenges would have been presented had the per-bag proposal advanced through the city's legislative process. What is a bag? If a poor person puts trash out in several of those rather small ubiquitous plastic bags used by grocery stores, because they cannot afford to purchase new trash bags, would that person be charged several times as much as a person who puts trash out in one of those 90-gallon almost-as-tall-as-I-am superbags? Would there be a bag equivalency chart?Who would count the bags? Would the proposal shift to a per-pound charge or a per-cubic-foot-of-landfill-space charge, both of which make more sense, environmentally, than a per-bag fee? What if someone puts out trash in something other than a bag? Then what?
For the moment, at least in Philadelphia, these questions do nothing more than provide some fodder for speculation. But they ought not be dumped or thrown away. Mayor Nutter says that the idea of a trash collection fee might pop up again in the future. That's good news, because it means that this blog post isn't a waste of time, effort, and brain cell exercise.
Wednesday, March 11, 2009
Tax ignorance disease afflicts both the general public and politicians. It knows no bounds, and can be curtailed only through reform of high school and undergraduate education, coupled with an effective public service campaign by the apppropriate authorities.
Turning first to the general public, consider this letter to the editor of the Philadelphia Inquirer with respect to taxation:
A letter-writer Wednesday ("Whose taxes to cut?") has a fundamental misunderstanding of what taxation is. Income belongs to those who've earned it. The government doesn't give tax cuts to people; it simply takes away less of their earnings.The analogy fails, because unlike the writer of the letter to whom the writer in question is responding, the writer in question has a fundamental misunderstanding. The schoolyard bully who steals the lunch money gives nothing in return. In contrast, the government provides something in return for taxes that are paid. Though it is possible to argue about the value of what is taken and given, on both a macro and micro level, the letter writer in question surely cannot think that when he pays taxes he gets nothing in return. He, like most other Americans, don't necessarily see what they are getting in return. Their homes have not been invaded by foreign nationals because the military provides a deterrent. When they fly on an airplane, ride a train, drive a car, or jump into a taxi, tax dollars make it possible. Airplanes don't collide because the FAA supervises and cares for airspace. Trains operate because they receive tax subsidies in the absence of which they would cease running. Tax dollars provide resources to ensure that the gasoline purchased at the pump is unadulterated, that the pumps properly record quantity and price, and that the roads on which the car is driven are maintained. By paying taxes, the citizen funds the commissions that oversee taxi drivers, with the goal of keeping bad drivers from behind the wheel and protecting the rider from being cheated on fares. Taxes fund the CDC's monitoring of sickness outbreaks to fend off epidemics. These are but a few examples of what people are getting for their tax dollar without being conscious of the benefit.
The left wing's conception of income and taxation often seems more like the actions of the schoolyard bully who steals $4.50 of your lunch money while leaving 50 cents in your pocket, and then asks for your thanks because you can still buy milk.
The flaw in the letter writer's reasoning is the notion that "Income belongs to those who've earned it." That statement is correct only if "income" means income net of the cost of producing the income. One reason I support user fees is that it highlights the cost of services, benefits, privileges, and protections that otherwise go uncharged against the person earning income. Without user fees or taxes, a person's income is overstated because the person is shifting costs to the general public. There may be administrative reasons that make it impractical to get the charges measured down to the penny, but the refusal to accept taxation as a cost of civilized society is not so much the cause of the ignorance but a symptom of a deeper culture of self-centeredness. Where in our educational systems do we teach that so many things that are taken for granted indeed have a cost, and that someone will bear that cost?
Turning now to the politicians, consider this snippet from the latest Kevin Ferris Back Channels column, in which he summarizes the economic and budget plan put forth by Paul Ryan, ranking Republican on the House Budget Committee. According to Ryan, one alternative is to "Simplify the tax code down to two lower rates, 10 and 25 percent, depending on income." Setting aside the "same old, same old, tried-and-failed" qualities of this nonsense, let's turn to the thoroughly ignorant notion that reducing the number of tax brackets to one or two somehow "simplifies" the tax law. It's a simple sound bite for simple minds. It thrives on tax ignorance. A closer examination of the tax law illustrates the misleading quality of the proposal.
The number of tax brackets affects the computation of tax liability, a task undertaken after taxable income has been computed. It is purely computational. It is built into tax software. It has been done for most taxpayers by the IRS, so that a person not using tax software merely looks at a tax table, finds the row with his or her taxable income and easily spots his or her tax liability. That process is awfully simple. Even creating the tax table isn't rocket science.
What's complicated is the determination of taxable income. Determining taxable income requires determining gross income, adjusted gross income, and deductions. Whereas determining regular tax liability is a one-step matter, determining gross income requires dozens, hundreds, and even thousands of steps. The same, or worse, can be said of determining deductions. It is in the gross income inclusion provisions, the exclusion provisions, the deduction provisions, the deduction limitation provisions, and the deduction denial provisions that one finds thousands of exceptions, thousands of defined terms, and hundreds, if not thousands, of complex computations. The flow charts for each provision can fill multiple pages in fine print, and there are thousands of provisions. Further complicating the tax law are timing issues, questions with respect to identifying the taxable year in which a particular item of gross income must be reported or in which a particular deduction is allowable. More complications arise when dealing with the identification of the taxpayer obligated to report a particular item of gross income or entitled to a particular deduction. Changing the number of tax brackets or adopting a so-called "flat tax" does absolutely nothing to reduce this complexity. But it sounds good and suckers in the tax ignorant.
There are several things that could be done with tax rates that would simplify tax liability computation, but they have nothing to do with the tax brackets. One would be elimination of special low rates for capital gains and qualified dividends. Eliminating these rates would not only jettison multiple-page capital gains tax liability worksheets, it would also permit ditching the numerous Internal Revenue Code provisions that define capital gains and qualified dividends or focus on attempts to make something that is not a capital gain or qualified dividend appear to be eligible for special low tax rates. Eliminating these rates would reduce tax compliance costs, IRS audit expenses, tax litigation, and taxpayer confusion. It is estimated that eliminating these preferences would remove one-fourth to one-third of the substantive provisions in the Internal Revenue Code. Yet the "nice sounding" two-rate sound bite completely ignores these special low rates, because there is no intention whatsoever on the part of flat taxes or two-rate taxation advocates to repeal the good deal put in place for those with sufficient wealth to benefit from special low rates for capital gains.
Another change that would reduce complexity is the elimination of the alternative minimum tax. It has its own rates, designed to take away the tax-lowering benefits of particular deductions and exclusions. Why the game? Why not one tax system, instead of two, with rates, deductions, exclusions, and credits structured in a sensible way? The answer is that by clearing away the tax underbrush, there are fewer places in which to hide special interest tax breaks. Someone benefits from complexity, and it isn't the tax return preparer, and it isn't the majority of tax planners. It's the tax camouflager.
So long as steps are not taken to eradicate tax ignorance, one must ask why it is permitted to exist. The answer is simple. Tax ignorance benefits those who are trying to pull the tax wool over the revenue eyes of the nation and its honest taxpayers. The advocates of reduced taxation manage to gather together people who get their hopes up thinking that their taxes will be reduced, when in fact what happens is a wicked combination: (1) their taxes are reduced ever so slightly, (2) their incomes are reduced significantly, especially in real-dollar terms, leaving them worse off net of taxes, and (3) the proponents of lower taxes see to it that taxes are reduced for themselves and their friends. Now that the truth is being uncovered, the culprits are stepping up their efforts to take advantage of others' tax ignorance, making them think that it is the tax of the working-class laborer or middle-income manager that will be hiked. They make this effort in order to strike up a chorus of petitioners seeking relief from tax hikes that don't threaten them, so that in the end, the repeal of unwise tax reductions for the wealthy will be blocked.
Perhaps the time is nigh for a coordinated attack on tax ignorance. The nonsense that is being circulated, as evidenced by the letter to the editor and the two-rate sound bite but including many more foolish items, is a rerun of claims made in years past. Those claims found buyers, those buyers cried for adoption of the plan, and then their worlds collapsed while the designers of the tax nonsense pocketed their tax breaks. While the wealthy gambled the money in a variety of high risk markets, and while the people who wanted to be wealthy or simply tried to stay upright on the economic treadmill borrowed money in a futile attempt to get the promised benefits of the plan, the economy tanked. What further proof is there that the nation was fleeced? Why would anyone continue to support the policies and tactics that promised jobs and delivered unemployment, that promised home ownership and delivered foreclosures, that promised prosperity and brought economic disaster? The answer is simple. Ignorance persists. So long as it does, we're in for a horrific economic ride.
Monday, March 09, 2009
Be it enacted by the Legislature of West Virginia:So where's the tax angle?
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §47-25-1, to read as follows:
ARTICLE 25. BARBIE DOLLS.
§47-25-1. Unlawful sale of Barbie dolls. It shall be unlawful in the state to sell "Barbie" dolls and other similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.
NOTE: The purpose of this bill is to ban the sale of Barbie dolls and other similar dolls.
The tax angle is this. People do all sorts of things that are detrimental to the development of important skills and traits. Unless the behavior infringes on another person's rights, it is not the practice in this country to criminalize the behavior, though surely some exceptions to that general principle exist somewhere. Instead, there is a long tradition of imposing taxes, or user fees, on behaviors or materials that contribute to detrimental consequences. Smoking eventually destroys brain cells, directly or indirectly, and thus impairs intellectual skills. Excessive drinking has the same effect. Gambling poses a variety of risks to intellectual and emotional development. Certain foods, for example, those heavy in transfats, damage circulatory systems so that nourishment provided to brain cells declines, ultimately triggering diseases that cause intellectual decline. Proposals have been circulated to impose "sin taxes" on fast food, carbon-based fuels, and ammunition, and furs.
So why not deal with this concern with a tax on Barbie dolls? Imagine the stimulus to the economy when Mattel brings out the "Barbie the Enrolled Agent" line of accessories. Undeniably, such a tax would make Barbie dolls less affordable for children in families with lower incomes. Yet somehow lower-income families figure out how to purchase tobacco and alcohol, so perhaps a Barbie doll tax would compel some people to give up smoking so their children can have Barbie dolls.
Experience teaches us that when a state imposes a user fee, sales tax, or other imposition on a product, consumers will seek to make their purchases elsewhere. For example, tales abound of Pennsylvania Liquor Control Board agents watching for vehicles with Pennsylvania license plates parked outside major beverage stores in the District of Columbia and elsewhere. A tax on Barbie dolls might encourage West Virginians to shop in neighboring states. I'm sure the neighboring states would appreciate the economic stimulus, for when people head out to find a cheaper Barbie, they'll surely make other purchases outside of West Virginia that otherwise would have been made in-state. But this effect is no different from the effect of the proposed bill, which would compel West Virginians to seek Barbie dolls by making purchases in adjacent states or through the internet. The proposed statute does not ban possession of Barbie dolls. Wouldn't that be amazing? Imagine someone being denied permission to sit for the bar exam because when they were 8 years old they were convicted of possessing a Barbie doll. Perhaps possession of multiple Barbie dolls would bring longer prison terms?
Pardon my not-so-disguised sarcasm. Doesn't the West Virginia legislature have more important things to do? But lets' suppose for a moment that the notion of banning the sales of Barbie dolls because they presumably warp the minds of girls with respect to beauty and brains is a good one. What about Ken dolls? Ought not boys be protected from dolls that warp their minds with respect to brains and looks? What about items other than dolls? Perhaps the sale of mirrors could be outlawed because they encourage people to check themselves out before heading out, all in the interest of looking good to get attention. What about the sale of cosmetics? Don't they exist simply to alter a person's appearance in order to improve looks? And why the emphasis on the supposed conflict between beauty and brains, a conflict that has been disproven time and time again. Ought not Delegate Eldridge be more concerned about violence? How many people have killed or been killed with a Barbie doll or on account of a Barbie doll? Ought not there be a ban on the sale of action figures that encourage violence? How about "It shall be unlawful in the state to sell items that promote or influence people to place an undue importance on fisticuffs and other violent physical approaches to solving problems to the detriment of the development of negotiation and compromising skills."
But, perhaps there is a silver lining in this barbed cloud. Anyone who has dealt with, conversed with, or knows a lawyer understands that the phrase "other similar dolls" will open up all sorts of opportunities for lawyers. It's an economic stimulus, particularly welcome at a time when lawyers are losing jobs and law graduates are struggling to find work. There are all sorts of types of dolls. Is a Miss Piggy doll within "other similar dolls"? How about a "Chatty Cathy" doll? Whether the legislature bans "other similar dolls" or imposes a tax on "other similar dolls," the hours that need to be invested answering these sorts of questions will keep lawyers busy for quite some time. "Your Honor, my client contends that the item in question is a mannequin and not a doll, and thus is not subject to tax."
In the meantime, it's time to check out the proper legal and tax treatment of voodoo dolls. Perhaps a pin-sticking tax?
Friday, March 06, 2009
The U.S. has never been a society riven by class resentment. Yet the Obama budget is predicated on a class divide. The president issued a read-my-lips pledge that no new burdens will fall on 95 percent of the American people. All the costs will be borne by the rich and all benefits redistributed downward.Brooks laments what he sees as the " polarizing warfare that is sure to flow from Obama’s über-partisan budget." He claims the seemingly high ground of the moderate, bashing both Obama's alleged uncompromising, partisan, transformational liberalism and the "Rush Limbaugh brigades" associated with a Republican Party … currently unfit to wield …politcal power."
Brooks claims that the "U.S. has always been a decentralized nation" but that the Obama budget "concentrates enormous power in Washington." He also claims that the "U. S. has traditionally had a relatively limited central government" but that federal spending will spiral out of control.
Brooks suggests that moderates assert themselves, pushing a previously "politically feckless and intellectually vapid" centrist tendencey into "an influential force." Moderates, he says, need to provide an "alternative vision," one in which "we're all in it together -- in which burdens are shared broadly, rather than simply inflicted upon a small minority." It is wrong, he claims, to try "to build prosperity on a foundation of debt." It is wrong, he says, to put "redistribution first."
No matter how Brooks describes himself, his unhappiness is the credo of the folks who ran Washington for eight years. If it is so important to share burdens broadly, where were his objections when the tax cuts of eight years ago were being doled out to the wealthy, while phaseouts and other gimmicks were saddling the middle class with the highest applicable marginal rates? When a small minority, under the pretext of promising jobs growth that turns out to be job destruction, obtains a tax cut while supporting massive increases in federal spending to finance a war, was the foolishness of racking up debt in order to avoid repealing those senseless tax breaks for the wealthy any less horrible than is taking on debt to solve the disaster caused by the failed tax policy of trickle-down economics? In other words, why is debt acceptable to finance tax cuts for the wealthy when the promised benefits aren't forthcoming but not acceptable when undertaken to fund survival for those crushed by the financial market gambling games played by the wealthy with money generated by their tax breaks?
Similarly, Brooks' concern that enormous power will become concentrated in Washington, supposedly a turning away from tradition for a nation that "always" has been decentralized, is another shift in perspective that reflects the score at the ballot box. The United States may have been a decentralized nation in the century of its existence preceding the flowering of the industrial revolution, but it has been a very centralized nation for the past 75 years. Through the ravages of the Great Depression, a massive global war, efforts to combat poverty and deprivation of civil rights, through a technology-based narrowing of the spaces between cities and towns, the country has functioned with retirement policy, poverty relief, retiree health care, civil rights protection, food and drug approval, broadcast spectrum allocation, and many other significant aspects of life managed by the federal government. To claim that the nation's central government has been "relatively limited," implying that it would be something else under the Obama budget, is a bit too disingenuous. It was fine, apparently, when the federal government told states and localities to ease up on monitoring, regulating, and preventing wild financial excesses by those wallowing in tax break funds, but a very bad idea when the same government wants to lay down the law and take the financial toys away from those who prefer to spend their days playing with derivatives and other toxic concoctions.
The idea put forth by Brooks, that redistribution, or at least putting it first, is a bad idea, is another twist reflecting the outcome of November's elections. For eight years, tax and economic policy reflected the principle that redistributing wealth in favor of the wealthy, on the pretext that doing so was the fastest, best, and most efficient way to enrich the have nots. For Brooks and those who think as he does, putting redistribution first wasn't so horrible at that time. But when redistribution becomes implemented by steering wealth directly toward the poor and struggling middle class, redistribution becomes a terrible thing. It's ironic that the need for the latter redistribution approach was exacerbated by the deprivations caused by the previous redistribution scheme, one in which the gap between the haves and the have-nots, and have-littles, widened.
What is particularly galling about Brooks' commentary is the accusation that Obama has triggered class warfare. To be honest, Brooks isn't alone in this assertion, and almost surely is not the author of its most recent manifestation. The message from the "Rush Limbaugh brigades" flooding the airwaves, the blogs, and the unrequested emails has been unrelenting in this respect. Oh, how cruel, so the complaint goes, to dump the cost of fixing the nation on the rich. Yes, indeed, how cruel it is to dump the cost of fixing a mess on the folks who created it. Rather than thanking the nation's majority for looking forward instead of focusing on recrimination and criminal prosecution of the fraud merchants who undermined the global economy, the spokespersons for the failed fiduciaries of the nation's wealth want their game to continue unchecked. They prefer, I suppose, that the people already reeling under the consequences of Wall Street wizardry clean up the mess.
This particular class war, if that's what it is, began when the wealthy decided to widen the gap between nobility and peasant. Tax cuts for the wealthy dwarfed the few made available to the poor. Jobs were shifted overseas in an effort to maximize profits for the captains of industry. Executive pay skyrocketed, while the inflation-adjusted wages of the typical American fell. Customer service was cut back, replaced by robots in other countries and voicemail menus that played on for longer than one of my MauledAgain posts, while hapless consumers frittered away time "on hold" waiting for the sole remaining customer service employee to get to their calls. Health care and other benefits for the rank-and-file were cut, while the corporations replaced their private aircraft with bigger and more luxurious models. In all fairness, not all corporate executives and not all wealthy individuals sought, argued for, or defended the ravages of the past decade. Some even tried to re-balance the economic status of the nation through a variety of private programs, including charitable endeavors, but their efforts fell short.
When Brooks claims that "The U.S. has never been a society riven by class resentment," he not so subtly tries to suggest that class warfare and even class divide have been strangers to this nation until the current Administration took office. Hah! One need only study American history, something fewer and fewer Americans do, to find the robber baron episodes of the late nineteenth century, the class-based admissions to most Ivy League colleges that predominated higher education until the Second World War, and the 1913-1914 Colorado Coal Field Strike and War, including its Ludlow Massacre, to give but three examples demonstrating that class warfare in this country is nothing new. For example, the Pullman Strike occurred during what one historian called "the most intense period of class warfare in American history," as recounted in Robert D. Sampson's "Fight Like Hell for the Living": A Brief Sketch of Working People's History in Illinois. Not long ago, Warren Buffet, an example of a wealthy individual who disfavors the tax breaks for the rich, sardonically noted "Oh, yes, we have class warfare in America. My class is winning." It is sad, of course, that Brooks is wrong, for if he had been correct in his implication that class warfare and class divide had never afflicted this nation, it is unlikely we'd find ourselves in the mess with which we must now contend and which we must fix or perish.
Brooks makes one observation which is painfully correct. He notes that much of the current Administration's budget and tax planning " emanates from a small group of understaffed experts." Key tax policy positions in the Treasury Department, for example, go unfulfilled. Why is that? In part it's the need to find the almost-perfect appointee, and in part it's the obstructionism rearing up from the defeated, many of whom subscribe to the Rush Limbaugh prayer, "I hope Obama fails." If Obama fails, the outcome won't be Brooks' prediction of a Republican Party re-taking control of the nation. The outcome will be the very real possibility that there won't be a nation to control or worth trying to control.
We wouldn't be in this mess had more reasonable minds succeeded in derailing the radicals who tore apart the economic well-being of the people whose sweat and toil made the nation the great experiment in democracy that it has been. Surely the bad decisions need to be un-done. It is mind-boggling that the people who engineered the economic train wreck want back into the locomotive's cab, and failing that, are busy obstructing the tracks on which the rescue equipment is being brought to the scene. All the while complaining that the rescuers are responsible for creating the wreckage.
Wednesday, March 04, 2009
So it's fortunate for these people that S. Kay Bell, who blogs at Don't Mess With Taxes, and who also is a member of the Taxpayer Advocacy Panel, has come out with a book called, "The Truth About Paying Fewer Taxes." The truth is that this book is not a tax protestor tome, as the title might suggest. It's quite the opposite. Kay takes pains to explain why people ought not listen to the siren songs of the "we prefer life without any taxation" crowd, though she doesn't get to that until chapter 46. Instead, she focuses on the basic principles of federal income taxation and on some of its nuances to open people's eyes to the realities of tax law. It's a small book, and because it doesn't focus on taxes other than income taxes or jurisdictions other than the United States, one must wonder if a series of "The Truth About Paying Fewer [insert state name here] Taxes" is contemplated by the publisher.
"The Truth About Paying Fewer Taxes" is divided into 52 chapters, grouped into 11 parts. Each part focuses on a particular area of life, and is captioned "The Truth About …." The topics are Filing Requirements, Taxable income, Credits and Deductions, Taxes and Your Family, Taxes and Your Employment, Taxes and Your Home, Investment Taxes, Retirement Taxes, Tax Compliance, Audits, and Special Tax Situations. Some parts have as few as two chapters, and one has as many as ten. Each chapter zeroes in on a specific transaction or issue, and explains in plain English what the implications are for federal income taxation. Both compliance concerns and planning tips are sprinkled throughout the text. The book is up to date, including, for example, the real property tax standard deduction enacted by the Congress less than a year ago. I could not find any errors, though if I were to nit-pick I could find points on which to disagree. For example, in the chapter, "Not Everyone Has to File," Kay spells out the rules that are set forth in the tax law with respect to filing requirements. She points out that people who are not required to file may want to do so if they're entitled to a refund. What she doesn't mention is something I explain to my basic tax law students, and that is, once a person has filed, the person ought to continue filing, even if not required, in order to avoid having the IRS conclude that the absence of a return means that the person died, left the country, or turned to the dark side of refusing to file tax returns for tax protest or other reasons. But because not everyone agrees with those of us who advocate the "once filed, always file" approach, Kay's omission of that issue is not a matter of inaccuracy but a concession to the seeming goal of keeping the book manageable in size and comprehensible by the ordinary reader.
"The Truth About Paying Fewer Taxes" is not for the tax professional. Anyone claiming to be a tax professional who does not know what Kay explains in the book ought not be claiming that distinction. On the other hand, people who enter into the tax return preparation field when January rolls around, and who haven't been keeping on top of tax law changes, should pick up this book and read. So, too, should people who do their own tax returns and, yes, they exist. I personally know a few individuals in that category. Even if the self-prepared return is put together with the assistance of tax software, it doesn't hurt at all to take in the view that Kay provides. Most people who prepare their own returns tend to follow the previous year's pattern, and if they have a question, turn to the software's help feature or IRS instructions or publications to obtain clarification. Unless the person has been tracking the dozens if not hundreds of tax law changes that have occurred since the previous year's filing, he or she may not even think to consider a new credit or deduction, or some other feature, that has been inserted into the Internal Revenue Code or that otherwise has modified the tax law. Tax law changes listed on the front of the Form 1040 instructions or in some other IRS or private sector software summary often do not include the changes that are likely to affect only a few people. Kay's work has things organized by transaction, and not by tax law outline, so that a person can turn to a particular part and eyeball the possibilities.
This book also should be considered by people who are entering the workforce for the first time. This includes 16-year-olds taking on a part-time job and college graduates bringing home their first full-time paycheck. Chapter 24, "Getting your withholding right" should be required reading for new employees. It probably should be explored by people who haven't modified their W-4 forms for several or more years. Chapter 22, "When a child has to file" is a good read for the teenager who starts baby-sitting, mowing lawns, or shoveling snow. Even the people who are looking for jobs without having yet found one can benefit from chapters such as "Writing off job-hunting costs," "Tax help in paying work-related moving costs," and "Self-employment tax considerations."
If I were teaching a tax policy course in an undergraduate school, I could make use of "The Truth About Paying Fewer Taxes" by having the students react to the wisdom of the tax rules that are explained by Kay in a way that an undergraduate can understand. Even high school students would learn quite a bit of useful information about the nation in which they live and the facts of tax life that they will encounter after graduation if they were assigned the book. Tax ignorance, and by that I mean total lack of knowledge and not inability to zip around the tax law as do tax experts, is inexcusable. Kay's book would do much to dispel the tax ignorance so prevalent among high school and college students, and likewise would function as a good remedial device to bring young adults, and even older folks, up to speed with respect to taxes.
The book's price would pay for several cups of expensive coffee. In other words, for what it delivers, it's a bargain. It's published by Financial Times Press, and the person to contact is Julie Phifer (firstname.lastname@example.org).
Tuesday, March 03, 2009
Monday, March 02, 2009
It took years to persuade the Congress to rid the Internal Revenue Code of these provisions, which have taken on the names Pease and PEP. The former is a unwarranted memorial to the member of Congress who shared this confidence game technique with the rest of the legislature. PEP is an acronym for personal exemption phaseout. It's technically inaccurate, but generates something that can be pronounced even though it hardly adds any energy to anything. What it does, along with its analogous Pease of junk, is to sap the energy of taxpayers trying to prepare returns, students and citizens trying to learn the tax law, and teachers trying to explain something that imposes a ten-fold time requirement on what was once a fairly simple tax topic.
As can be seen from page 123 of the President's Budget Proposal, the Administration wants to "reinstate the personal exemption phaseout and limitation on itemized deductions." Why? If the goal is to raise revenue, and I cannot think that the goal is anything but to raise revenue, why fall back to a failed mechanism? Why not have the courage to raise tax rates? Aside from the absurd complexity of Pease and PEP, it imposes a higher marginal rate on taxpayers with incomes just above the threshhold than it does on the megamillionaires who ought to be bearing the brunt of the revenue increases. I wrote about the problem in Getting Hamr'd: Highest Applicable Marginal Rates That Nail Unsuspecting Taxpayers, 53 Tax Notes 1423 (1991). I suppose if Congress is going to bring Pease and PEP back to life, I may need to put my pen to work and produce an updated version of that article. And then find a way to persuade members of Congress, the President, and his staff to read it and get a free education.
Worse, the Budget Proposal contains an even more complicated rate phaseout mechanism, designed to "limit the tax rate at which itemized deductions reduce tax liability," as summarized on page 128 of the proposal. As explained on page 29 of the proposal, the revenue raised from this mechanism would go into a reserve fund to be used for health care purposes. I can guarantee that the tax computation form on which this mechanism is worked out will be even more complicated than the one on which the special low tax rate on capital gains and dividends is computed. It is an extremely inefficient way in which to raise revenue. For example, why not convert itemized deductions into a credit equal to 28% of the amount otherwise qualifying for a deduction? That accomplishes the same goal, and actually benefits some taxpayers in the lower tax brackets.
What's missing from the proposal is any sort of forward-looking change in the way tax policy is developed and implemented. Pulling a failed idea from the trash heap is unwise. Why are taxpayers earning $500,000 a year treated in the same manner as those earning more than $5,000,000 a year? Why not a progressive rate structure that increases the rate by 1 or 2 percentage points for every $1 million or $2 million increase in taxable income? Why not total elimination of the special low rates on capital gains and dividends? Why not termination of depreciation for property that does not go down in value? Would not streamlining the tax law do more for lubricating the national economic engine than fooling around with mudflaps and exhaust pipes?
How did this happen? The answer is fairly easy. There still has not been anyone nominated and confirmed to serve as Assistant Secretary of the Treasury for Tax Policy. It is unlikely that the Secretary of the Treasury paid any attention to these matters, and even if he did, it's unlikely he has any clue as to what's going on, considering he cannot do his own tax return properly. One would think he'd be an advocate for simplification, not for more megacomplexity. My guess is that these ideas were tossed in by some young, eager staff at the White House and/or the Office of Management and Budget, perhaps influenced by some old-timers who remember the "good old days" when they were able to infect the tax law with gimmicks more reminiscent of toxic derivatives manufacturing rather than wholesome economic productivity. I'm confident none of these folks has any sort of worthwhile experience with tax compliance, tax return preparation, business planning, or even tax policy, other than having some conceptual and theoretical notions that do not translate very well from the world of philosophy to the world of real life.
It's likely that the response to my advocacy for increased rates scaled throughout the upper income ranges, rejection of complex gimmicks such as Pease and PEP, and repeal of the special low rates for capital gains and dividends is that these things are not "politically" feasible. So what? The nation, the President, the Administration, and the Congress should be doing what is right and necessary for the economic survival of the nation, and not what sells politically. Politics has become nothing more than a series of manuevers in which office holders engage in order to grab and hold power. For a moment, it appeared as though the current President wanted to rise above politics, spurn partisanship, and read the riot act where and when it needs to be read. What is emerging has too much "let's not ruffle the feathers of the powerful" and too little "let's listen to the American citizen who voted for change and step forward with those folks behind us."
Let's face it. The days of using Pease and PEP to hide tax increases are long gone. Everyone knows the score. Aside from the impropriety of raising taxes using clandestine gimmicks, there's no need to do so. There's no genuine impediment to doing what needs to be done in the way it needs to be done. The bleating from the privileged few that taking away their capital gains break or their special dividend rate will destroy the economy should fall on deaf ears. The special interest groups have cried wolf too many times.
Change is defined as "a transformation," as "novelty," as "the passing from one … form .. to another," as "the supplanting of one thing by another." To change is defined as "to transform." It is time for transformation with novel approaches, as the tax law passes from its current and past form into one that is suitable for the challenges of the twenty-first century. Running on a tax treadmill is not change. Turning back to the failed policies of Pease and PEP is no better than turning back to the failed policies of tax cuts, as I described on Friday. President Obama, you're an advocate of change. You and your crew can do better than to breathe new life into a stale, unwise, and inefficient idea. And you know that. Change means scaled progressive rates, no more special rates for capital gains and dividends, itemized deductions replaced by credits or eliminated, no more depreciation on property not going down in value. Don't back down in the face of the bullies. Don't be reluctant to propose and fight for the tax law changes that need to be made. Some wealthy folks and some powerful politicians may be unhappy, but the overwhelming majority of Americans who take the time to study and understand the realities of the current crisis will appreciate your decision and applaud your determination.