Monday, February 27, 2017
According to the story, Philadelphia had expected to collect $2.3 million in January, based on the assumption that businesses would delay registering with the city and the assumption that businesses had increased inventory during the last months of 2016. Instead, the city announced it had collected $5.7 million. Though it might appear wonderful, from the perspective of revenue officials, that a tax brought in more than twice as much revenue as expected, there is a problem. The city has already committed to spending $91 million per year from soda tax revenues. A monthly collection of $5.7 million won’t generate $91 million in a year. Though some think that January collections getting off to a good start bodes well for the rest of the year, I wonder whether the increasing publicity about Philadelphia residents doing more grocery and beverage shopping outside the city limits will encourage more city residents to do likewise. Another factor to consider is that the city based its revenue estimate on an assumption that sales of items subject to the tax would decrease by 27 percent. Yet since the beginning of the year, some sellers are reporting larger decreases in sales, and layoffs are expected. Layoffs, of course, will reduce other city tax revenue, as will decreasing profits for the businesses losing sales of items subject to the tax. At least one individual has suggested that the city’s $2.3 million estimate for January was low based on what distributors had been reporting they had paid to the city. I wonder if the low guess was designed to produce precisely the “tax revenues exceed expectations” headline that appeared, in an effort to make the tax seem wildly successful.
All of this, of course, is tentative, because the challenge to the tax is on appeal in Commonwealth Court. What happens if it is struck down? Spending money that the city might be required to refund is unwise, as I discussed in Gambling With Tax Revenue. And even if the city prevails, it still appears to be a huge gamble, considering the likelihood of revenues falling short of $91 million.
Friday, February 24, 2017
Why does it matter? Who cares? It matters because decisions are made based on the facts people think exist. For example, in California, voters are given the opportunity to approve or reject propositions that directly affect taxation and spending. Advocates of more spending for a particular area of the budget strive to convince voters that the particular area in question is underfunded. Those seeking to cut spending on particular areas try to convince voters that those areas are overfunded.
Six years ago, in The Grand Delusion: Balancing the Federal Budget Without Tax Increases, I pointed out:
A month and a half ago, the Kaiser Family Foundation released poll results revealing that 40 percent of Americans “think that foreign aid is one of the two biggest areas of spending in the federal budget.” This, of course, is totally incorrect.Yet this piece of tax misinformation persists. How can good decisions be made when reality is different from perception? Imagine what happens if surgeons, electricians, auto mechanics, and engineers made decisions based on misinformation rather than on actual facts. Just imagine.
Wednesday, February 22, 2017
Walker resided fulltime with his girlfriend, Tiffany Clark, and her son, S, in a two-bedroom apartment on Maine Street in Vallejo, California. Walker paid part of the rent and a government subsidy paid the rest of it. Walker is not the father of S, nor did he adopt S. Walker provided financial support for S, which allowed Clark to stay at home to take care of S. Walker provided more than one-half of S’s support for 2013 and 2014. During those years, S was enrolled at a local elementary school. The school’s records show S’s home address as the apartment rented by Walker on Maine Street, and show Walker as one of S’s guardians.
On his 2013 and 2014 federal income tax returns, Walker filed as head of household and claimed, among other things, a dependency exemption deduction for S. He also claimed a child tax credits with respect to S. The IRS disallowed the deduction and the credits. It also denied Walker head of household filing status.
The Tax Court explained that although S was not a dependent of Walker on account of being a qualifying child, because S did not meet any of the relationship tests, S was a dependent of Walker on account of being a qualifying relative. For the years in issue, S had the same principal place of abode as did Walker and was a member of Walker’s household, Walker provided more than one-half of S’s support, S’s gross income was less than the exemption amount, and S was not the qualifying child of Walker o any other taxpayer. The court noted that testimony given at the trial, along with the records at the elementary school attended by S, supported the conclusion that S resided full time with Walker at the apartment.
However, because S was not Walker’s qualifying child, Walker was not entitled to child tax credits with respect to S. The court then concluded that because S was a dependent of Walker for 2013 and 2014, Walker was permitted to file using head of household status. However, because S was a dependent under section 152(d)(2)(H), S does not qualify as a dependent for purposes of section 2(b)(A)(ii). My guess is that no one noticed the provision that is at the end of section 2(b).
The key to Walker’s success with respect to the dependency exemption deduction for S rests on the evidence that Walker presented. The school records, as insignificant as they might otherwise seem, corroborated the testimony with respect to S’s residence in the apartment. Fortunately, Walker was able to obtain copies of those records. Had the school disposed of them before Walker realized he needed them for his Tax Court litigation, the outcome might have been different. At the risk of enabling those who accumulate clutter, I suggest that taxpayers consider keeping copies of documents held by others but affecting the taxpayer if there is any serious chance of those documents not being available a year or two later. Sometimes it’s all about the documentation.
Monday, February 20, 2017
About half of the state’s municipalities, a number that continues to grow, are given full-time police coverage by the state police. Thus, in effect, the burden of local policing for the entire state falls on roughly half of the state. Advocates of the proposed tax claim that this situation is unfair. They point out that the state police budget has grown by almost 50 percent during the past ten years. Five years ago, the state police determined that it spent more than half of its budget providing local police services to towns without police departments. To accommodate the state police need for funds, money has been taken from the road and highway safety fund to finance to help finance the agency.
The $25 per-person tax is pretty much a token amount. Municipalities with their own police departments calculate that the cost of police protection ranges from $300 in Lancaster and $320 in Pittsburgh to $403 in Philadelphia. Though the proposed tax would be computed based on the number of residents, it would be imposed on the municipality, which presumably would recover it through existing taxes or a new tax, or through reductions in spending.
Some legislators, including Republicans opposed to raising taxes, noted that residents of local towns, preferring to avoid local tax increases, have eliminated police departments as a means of shifting police protection costs to the state, that is, residents of the other municipalities in the state. One of them called the proposal one “whose time has come,” and explained, “We are coming into the reality zone now.”
Legislators also argue that even if the proposed tax is enacted, state police ought not be doing local police work. They should be doing “the things the local municipal police department cannot do.” A township supervisor in a large municipality that has no police department argued that state police help local police departments, with assistance in crime lab work, backup, and SWAT team deployment. What was not mentioned is the fact that residents of municipalities with local police departments pay state taxes that help fund the state police.
Local officials in towns without police departments suggest that “everyone pays for what they use.” That sounds like a user fee. How would it be implemented? Would crime victims be charged for police assistance while those fortunate enough to escape being mugged don’t pay? To what extent is police patrolling of a neighborhood like insurance, and thus, how would a “police patrolling user fee” be computed? Who pays for use of the state crime lab, the victim or the criminal? Or is this another instance of where the benefit of policing accrues to everyone, and thus should the entire policing system in the state, local and state-wide, be financed with a flat per-person user fee?
Friday, February 17, 2017
During 2012, the taxpayer maintained a household in which her adult son, his wife, and their two children resided. The taxpayer provided all the financial support for the home and those living in it. Her son did not work and dealt drugs, and her daughter-in-law was a stay-at-home mother. When she filed her 2012 federal income tax return, she claimed the two grandchildren as dependents. As filed, her return would generate a refund of the taxes withheld from her pay, plus refundable credits arising from claiming the grandchildren as dependents. The taxpayer claimed the two grandchildren as dependents after her son told her that he and his wife were not going to file an income tax return for 2012. He suggested that she should claim the two grandchildren so that she could “get back some of the money she had spent supporting his family.” The IRS rejected her refund claims because it determined that she was not permitted to claim the grandchildren as dependents. It reached this conclusion because the taxpayer’s unemployed son had already filed a federal income tax return for 2012, on which he claimed his two children as dependents, received a refund check based on refundable credits, and cashed it to spend on drugs. The IRS described this outcome as required by the law, though it did not purport to defend it as a just result.
The IRS determined that the two grandchildren were not the taxpayer’s qualifying children for purposes of the dependency exemption deduction. When the taxpayer received the notice from the IRS, she thought she was an identity theft victim but then realized that someone else had claimed the grandchildren as dependents. Eventually her son admitted that he and his wife had done so. Her son then offered to provide an affidavit in support of her claim and prepared an amended 2012 return that omitted his claim that the children were his dependents, but he did not file the return. A copy of this amended return was given to IRS counsel two weeks before trial.
The basic definition of a qualifying child made the two children qualifying children of both the taxpayer and her son. Why? To be a qualifying child, the child must be a child or grandchild of the taxpayer, share a home with the taxpayer for more than half the year, be less than 19 years old, not provide more than half of his or her own support, and not file a joint return. There was no dispute that the two children were grandchildren of the taxpayer and children of her son, shared a home with the taxpayer and with her son, were less than 19 years old, did not provide more than half of their own support, and did not file joint returns. When, as in this instance, two or more taxpayers “tie” when it comes to an individual being a qualifying child, special tie-breaking rules apply. Section 152(c)(4)(A) provides that if the tie is between the child’s parent and someone not a parent, the parent “wins the tie” and treats the child as a qualifying child, and the others do not, unless the parent does not claim the child as a dependent. In that case, another taxpayer with respect to whom the child is a qualifying child can claim the child as a dependent if that other person has an adjusted gross income higher than that of either of the child’s parents, which was indeed the situation in this case.
The IRS argued that because the son claimed the children as dependents, it did not matter than the taxpayer’s adjusted gross income was higher than that of her son. The taxpayer argued that her son didn’t file an original 2012 return and that, even if he did, he filed an amended return in which he and his wife relinquished any dependency claim with respect to her grandchildren. The court concluded that the taxpayer’s son had filed a 2012 return, that the taxpayer did not prove otherwise, and that her son did not file an amended return. The court explained that hand delivering a return to IRS counsel does not constitute filing a return or amended return because the law requires that it be delivered to “any person assigned the responsibility to receive hand-carried returns in the local Internal Revenue Service office.” IRS counsel is not the service center nor a person assigned by the IRS to receive returns for the local IRS office. The court also noted that even if the son had filed the amended return, it was unclear if this would be sufficient to constitute a relinquishment of the claimed dependency exemption deductions on the original return. Accordingly, the taxpayer was not only barred from a dependency exemption deduction for her grandchildren, she also did not qualify for the earned income credit because her adjusted gross income was too high for someone who had no dependents, she did not qualify for the child credit, and she did not qualify for head of household filing status.
The court admitted that it was “sympathetic to [the taxpayer’s] position.” It explained, “She provided all of the financial support for [the children], had been told by her son that she should claim the children as her dependents, and is now stuck with a hefty tax bill. It is difficult for us to explain to a hardworking taxpayer like [the taxpayer] why this should be so, except to say that we are bound by the law.” The court also noted, “And it is impossible for us to convince ourselves that the result we reach today--that the IRS was right to send money meant to help those who care for small children to someone who spent it on drugs instead--is in any way just.”
Most people would agree that the outcome is unfair. Most people would point to the taxpayer’s son and his behavior as the cause of the taxpayer’s plight. Yet it is the Congress that enacted the dependency exemption rules, the definition of qualifying child, and the tie-breaking rules. What recourse is there for the taxpayer? Even if there were deemed to be a contract between her and her son, it is unlikely that she could recover any damages. So how can taxpayers prevent themselves from falling into the mess that this taxpayer encountered? What sort of safeguards could be applied? Amending the tax law would only make it more complicated, and more than likely would not eliminate most of these unfortunate outcomes. Years ago I proposed replacing the current personal and dependency exemption arrangement with one in which each individual be granted an “exemption amount” to be used on that person’s return, or granted to one or more other taxpayers, or some combination thereof, under an assignment. A child’s exemption amount would be assigned by the child’s parent, custodial parent, or legal guardian. In this case, under this arrangement, the taxpayer’s son and his wife would be required to assign the children’s exemption amounts to someone, or they would be lost. If they assigned them to the grandmother, then that assignment would prevail against any subsequent assignment. If they assigned it to themselves, then they could not assign it to the grandmother. If they attempted to do so, the validity of the assignment could be verified by cross-checking it against an assignment database. Yes, this would be a bit complicated but surely not as complicated as the current law, and it would reduce the number of unfair or unjust outcomes. I doubt the Congress will take this approach, for a variety of reasons, including the fact it is different.
Wednesday, February 15, 2017
Exhibit A stated in relevant part that the taxpayer would maintain his current health insurance coverage or its equivalent for the benefit of his children as long as each child was “unemancipated as that term is defined herein,” but Exhibit A did not include a definition of the term “unemancipated”. Exhibit B, originally titled “ALIMONY”, was revised to read “Unallocated Support,” stated in part that the taxpayer would “pay to * * * [his future former wife] the sum of $900.00 per week commencing forthwith by implemented wage assignment. (See Exhibit J),” and stated in part that “[a]ny alimony payments shall terminate” upon the earlier of the death of the taxpayer or his former wife or the former wife’s remarriage. Exhibit B further stated that the parties “acknowledge that husband anticipates that the above payment is deductible to him and includable to wife”.
Exhibit J was titled “CUSTODY, SUPPORT, VISITATION”. Although exhibit J originally referred to the taxpayer’s obligation to make child support payments, that statement was lined through and was replaced with the phrase “See Exhibit B implemented wage assignment forthwith.” Exhibit J included a statement acknowledging that, as a result of disabilities, two of the couple’s children might never become self-sufficient or emancipated and defined the term “emancipation” of the minor children generally as occurring on the child’s death, marriage, entering into military service, or graduation from high school or a four-year college program. Exhibit J further stated, “Support as to the child as termed in this agreement shall end upon emancipation. In accordance with Section 71(b)(1)(B) of the Code, the Husband and Wife expressly agree to designate and hereby do designate all payments required in this Exhibit as excludable and non-deductible payments for purposes of Sections 71 and 215 of the Code, respectively. It is expressly agreed and understood that the payments made by the Husband to the Wife for support under this Article shall terminate upon his death and shall not constitute a charge upon his estate in that there are to be life insurance trusts established to provide for the needs of the children.” The remainder of exhibit J established the terms for custody of and visitation with the children.
The state family court entered a Judgment of Divorce Nisi which incorporated the separation agreement and terminated the couple’s marriage effective January 28, 2010. On October 22, 2014, the family court filed a stipulation for judgment in response to the former wife’s complaint for modification and the taxpayer’s counterclaim. The stipulation for judgment, which was incorporated into the final judgment, stated in relevant part, “That the Father pay to the Mother $900 per week as child support for the parties’ three children.”
The taxpayer filed federal income tax returns for the taxable years 2011, 2012, and 2013, and on each return he claimed a deduction of $46,800 for alimony paid to his former wife. She, however, did not report the payments as income on her tax returns.
The IRS argued that although the payments satisfied subparagraphs (A), (C), and (D) of section 71(b)(1), that is, they were made under a divorce or separation instrument, that parties were not members of the same household, that the obligation to make the payments ended at the former wife’s death, and there was no obligation to make payments as a substitute for the payments after the former wife’s death, the payments ran afoul of the requirement that the divorce or separation instrument not designate the payment as non-deductible and non-includable. The IRS pointed to the language in Exhibit J that stated, “In accordance with Section 71(b)(1)(B) of the Code, the Husband and Wife expressly agree to designate and hereby do designate all payments required in this Exhibit as excludable and non-deductible payments for purposes of Sections 71 and 215 of the Code, respectively.” Alternatively, the IRS argued that, because the unallocated support payments are subject to contingencies involving the taxpayer’s children, they are considered payments made for the support of his children in accordance with section 71(c)(2), and thus cannot qualify as deductible alimony.
The taxpayer argued that Exhibit B, expressly provided for “unallocated support” payments rather than alimony or child support. Noting that Exhibit J did not expressly require any form of payment, the taxpayer argued that the statement in Exhibit J on which the IRS relied was not relevant to the question of whether the payments constituted alimony. The taxpayer also argued that the parties’ last-minute negotiations and revisions to the agreement were intended to ensure that the payments would be treated as alimony for purposes of sections 71 and 215.
First, the court rejected the taxpayer’s reliance on the intent of the parties. The court explained that when section 71 was revised, Congress eliminated any consideration of intent in determining whether a payment was deductible. Instead, the objective tests in section 71 are determinative.
Second, the court acknowledged that Exhibit J did not expressly require any payment or otherwise fix an amount to be paid as alimony or child support. The court then noted that the taxpayer’s narrow focus on this aspect of exhibit J gave no effect to the cross-references in Exhibits B and J. The court reasoned that a proper consideration of the
agreement required a construction of the document as a whole, including the Exhibits and the cross-references within the Exhibits. When reading the agreement as a whole, the court concluded that Exhibits B and J must be read in tandem and that the unallocated support payments prescribed in Exhibit B were subject to the provisions of both that Exhibit and Exhibit J. The court observed that “the handwritten revisions to the settlement agreement were poorly conceived.” It added, “Specifically, although Exhibit B was revised to state that the parties ‘acknowledge that husband anticipates that the above [unallocated support] payment is deductible to him and includable to wife’ * * * Exhibit J states more definitively: ‘In accordance with Section 71(b)(1)(B) of the Code, the Husband and Wife expressly agree to designate and hereby do designate all payments required in this Exhibit as excludable and non-deductible payments for purposes of Sections 71 and 215 of the Code, respectively,” and decided that the latter, more definitive statement controlled. Accordingly, the payments did not satisfy the definition of deductible alimony.
One of the challenges in making revisions to a document is the need to reconsider how each provision interacts with every other provision in the document. Though this can be a tedious process, it is absolutely necessary. The challenge increases as the number of changes increase. The need to be careful is exceedingly high when the changes are being made at the last minute, under time pressure, with two or more people providing input at the same time. As I tell my students, “Before writing, think, and help the clients decide, what it is that they want to do. Then write. And be certain to write what was decided, and avoid trying to write language that is murky in an attempt to make each party think that they are getting what the wanted even though what they wanted is different from what the other party wanted.” The advice given to youngsters to “avoid talking out of both sides of your mouth” applies no less forcefully to writing. Aside from enduring the cost and aggravation of an audit and litigation, the taxpayer may have ended up with an outcome he did not think was the outcome he was going to get.
It is unclear whether the parties had assistance from attorneys when drafting the agreement or when making last minute changes to the document. The references in the agreement to specific Internal Revenue Code provisions and state law statutes suggests that attorneys were involved at the outset. It would not be surprising to learn that the last minute changes were made without the help of lawyers. But it also would not be surprising the learn that lawyers were responsible for those changes. Either way, it’s no way to draft a document. And it’s certainly no way to generate the best tax outcomes.
Monday, February 13, 2017
A fellow named William Atzinger, age 35, refused to pay the $3 tax that Montana imposed on bachelors. In his protest communicated to the county assessor, he claimed, “Spinsters are responsible for my not being married in their refusals of my wooing in the past.” He then expressed a willingness to pay the tax if the state also imposed it on spinsters. He refused to get married simply to avoid jail and he refused to pay the tax to avoid jail. Soon thereafter, the Supreme Court of Montana held that the tax was unconstitutional. At the same time it also invalidated a poll tax imposed only on men.
Two years ago, in The Single-People Tax Is Not Working, Allison Schrager, writing for Bloomberg, points out the threat posed to economic growth and the ability to pay for social services and pensions when the fertility rate falls below the population replacement rate, as has happened in parts of Europe and recently in the United States. She points out that, throughout history, nations have had a vested interest in “family-making” for the same reason. She notes that the ancient Romans imposed a tax on bachelors, and in the twentieth century, towns in Germany and Italy did the same.
Discussing failed attempts to enact a bachelor tax in Michigan in the early twentieth century, Le Roy Barnett, in The Attempts to Tax Bachelors in Michigan, explains that not only the ancient Romans, but also the ancient Greeks, taxed unmarried men. And in the late seventeenth century, countries in Europe, needing to replace the people killed in the continent’s constant warfare. In addition to population replacement, the tax provided funds for the treasuries of nations and local governments. Another goal was to find husbands for war widows, who otherwise would require public subsidies. The tax on unmarried men also popped up in South Africa and Argentina. Did you know that in 1913 a bill was introduced in Congress to tax unmarried men in order to fund pensions for widows and children? I didn’t, probably because it failed to pass and thus did not make it into the history books or into tax courses. Nor was Montana the only state to tax bachelors. Georgia, Maryland, and Wyoming got in on the action. Michigan tried to enact a bachelor tax, but the proposal never made it past legislative discussion.
Reaction to the tax, at least during the past century or so, was unsurprising. People argued that unmarried women also should be taxed. Others suggested that a tax be imposed on any woman who turned down a marriage proposal. Yet, in Michigan, on several occasions some citizens petitioned the legislature to tax bachelors in order to support poor women, widows, and orphans. As late as the 1910s, pressure persisted in Michigan for a bachelor tax. One police chief claimed that “90 percent of the criminals” in his town were bachelors. One proposal would have exempted widowers and men who had obtained divorces. One version even provided a bonus to be paid to men who married. The effort in Michigan fizzled out in the 1930s, chiefly because of the economic impact of the Great Depression.
Barnett explains that exemptions existed in many of the bachelor taxes in Europe. Men with physical disabilities, men suffering from mental illness, and men in prison were not taxed on account of being unmarried. Exceptions also existed in some laws for men who could prove that their marriage proposal to a woman had been rejected.
Using taxes to encourage or discourage behavior is an inefficient approach to solving problems. The bachelor tax is yet another example. For one thing, it is unadministrable, particularly when there are exceptions. Barnett explains that the exception for rejected suitors created a job for women who were called “professional lady rejectors,” who, for a fee or other compensation, agreed to testify that they had rejected a marriage proposal from a man trying to fit within the exception.
If the principal goal of a bachelor tax is to increase a nation’s or state’s birthrate, would it not be better to find a way to encourage people to have children? Rather than paying people to do so, or charging them a tax for failure to do so, why not create a society and culture in which people want to have children? In the current climate, it is understandable that some people are reluctant to bring new lives into the world. Consider the reasons provided in this article for why people choose not to have children. Whatever the solution to maintaining a population replacement rate might be, it surely isn’t a tax. That’s been tried. It didn’t work.
Friday, February 10, 2017
One particular bit of ignorance illustrates how misinformation can go viral in an instant. For more times than I care to remember, I have tried to hold back the ridiculously erroneous claim that there are 74,000 pages in the Internal Revenue Code. I have explained why this claim is wrong in posts such as Bush Pages Through the Tax Code?, and continuing with Anyone Want to Count the Words in the Internal Revenue Code?, Tax Commercial’s False Facts Perpetuates Falsehood, How Tax Falsehoods Get Fertilized, How Difficult Is It to Count Tax Words, A Slight Improvement in the Code Length Articulation Problem, and Tax Ignorance Gone Viral, Weighing the Size of the Internal Revenue Code, Reader Weighs In on Weighing the Code, Code-Size Ignorance Knows No Boundaries, Tax Myths: Part XII: The Internal Revenue Code Fills 70,000 Pages, and Not a Surprise: Tax Ignorance Afflicts Presidential Candidates and CNN. Despite my efforts, this false claim is repeated over and over, and accepted as true by millions of people, few if any of whom bother to pick up a copy of the Internal Revenue Code and discover for themselves that it is far from 74,000 pages. So to some extent, the spread of ignorance is in part attributable to laziness, just as it is in part attributable to the malicious motives of those who invent false stories, fake reports, and foolish lies.
During the Super Bowl, H&R Block aired a commercial touting its partnership with IBM’s Watson, and saying to the world, “Imagine being able to understand all 74,000 pages of the U.S. tax code.” Aside from erroneously calling the Internal Revenue Code the U.S. tax code, the writers of the commercial decided to hype their product by exaggerating the size of the Internal Revenue Code. Why is this not only wrong but dangerous? First, it strengthens a falsehood. Second, it makes it easier for people to become comfortable with falsehoods. Third, it changes the attitudes of those who understand the need to reform the tax law, because it misleads people into thinking that the problem is different from, and on a scale much larger than, actual reality. Once people lose their grip on actual reality, they slide into delusion. When people are delusional, they do dangerous, stupid, and often fatal things.
As I wrote in Ignorance, Tax or Otherwise, Is Dangerous, when people are ignorant, they “do things that harm themselves because they are unaware that what they are doing is harmful. That is the price paid for ignorance. It’s only a matter of time, given the current cultural climate, for collective ignorance about something existential to exact an ultimate price.” When attacking a culture of ignorance, every instance of ignorance must be rebutted, because every instance of ignorance, no matter how small, is not unlike every cancer cell, no matter how small. Instances of ignorance, if not stamped out, will grow, and metastasize, destroying everything in its path, including those who created, nurtured, enabled, and tolerated ignorance and its consequences. Unfortunately, too many people are ignorant of this reality.
Wednesday, February 08, 2017
reporting requirements mandated by law.”
So, in other words, a taxpayer who files correctly year after year does not earn a pass when misreporting one or more items in a subsequent year. A student who has perfect attendance from grades one through eight does not escape the consequences of having unexcused absences in grade nine. Even if Congress decided to reward, in some way, taxpayers who filed correct tax returns for a stretch of some particular number of years, administering this sort of system would be a nightmare. It would require an audit of each of the years in question. It would require some sort of mechanism to prevent the excused error from costing too much revenue. And it would invite the begging of taxpayers who claimed to have been “off” by only a few dollars.
Perhaps a better way to think about the request for relief is to consider traffic rules. Should a driver who has stopped at every red light for thirty years be permitted to run one or more red lights without bearing the responsibility for the consequences of doing so?
Monday, February 06, 2017
The word fear, as well as its companion word afraid, often pops up in the context of taxes. Some students entering the basic tax course claim that they are afraid of the course. Many people claim to be afraid of taxes. Most people fear being the subject of a tax audit. There are people who are afraid of doing tax returns, though doing a tax return is more a matter of tedium and frustration, conditions that generally don’t trigger fear though they can trigger other emotions. Perhaps what people fear is the ultimate bottom line of the amount of tax still owing.
One antidote to fear is to prevent situations that can trigger fear. People who are afraid of heights tend to avoid standing on the edge of a cliff. People who are afraid of loud noises and darkness turn down opportunities to see an action movie in a theater.
Yet something about tax that has made some people fearful and that should frighten everyone is the new twist in the tax theft game. For some time, scam artists used a person’s name, address, and social security number to file tax returns on which, by using fake income amounts, these wrongdoers would generate refunds for themselves based on false earned income tax credit claims. Eventually the IRS engineered ways to identify at least some of these false returns, by comparing information to the previous years’ returns and looking for inconsistencies. For example, if the person whose social security number was being used improperly had been filing returns showing income in the $100,000 range and claiming five children as dependents and suddenly files a return showing a much lower income and only one child, the odds were very high that the latest return wasn’t really from that person.
So the scam artists stepped up to a more sophisticated approach. To circumvent the IRS safeguards, they needed to make their fake returns look like they came from the person whose social security number they were inappropriately using. To do that, they needed to know the person’s income. What better way to do that than to get their hands on the person’s W-2? So the scammers started sending fake emails to corporate employees, pretending to be a high level executive, asking for the W-2 forms for all employees. They also have targeted businesses that prepare income tax returns, both through hacking and phishing.
In an important security report from Brian Krebs, this W-2 information, which could include YOUR W-2 information, is now showing up on what he calls cybercriminal shops. These are web sites where people can purchase stolen credit card data, usernames and passwords for accounts at financial web sites, and similar data. When once it was the case that a scammer had to find a way to get the information using hacking or phishing, the less energetic but no less greedy scammers can now purchase the information they need. Why? For one thing, a hacker who gets a hold of 10,000 W-2 forms doesn’t need that many, so they sell most of them. This dark market is going to increase exponentially the number of fraudulent tax returns sent to the IRS, and it’s anyone’s guess as to how many are blocked.
In his report, Krebs explains the economics of this dark market, explains where some of the stolen W-2 forms were obtained, and how they were obtained. Every American ought to read this report. The principal reason is to understand how to block scammers from getting information. Smaller businesses are more at risk, because they are less likely to have a sufficiently sized IT department to guard the store, so to speak. Krebs also provides guidance on what to do after one’s information has been used to file a tax return using the person’s name, something that is discovered when the person tries to file their actual, genuine return. He also provides tips on how to reduce the chances of a scammer filing a fake tax return using another person’s name. Most involve common sense practices that have been the subject of advice for the past two decades. Sadly, some people end up afraid because they neglected to let themselves learn. And, by the way, that’s not a problem just in the tax world.
Friday, February 03, 2017
Later that day, a reader contacted me, providing a link to a deadline calculator website, and asking, “Would this website help the lawyers in your article today?” My answer is, “Generally, no.” It would help lawyers and anyone else dealing with a deadline compute a deadline when it is a particular number of days after a specific date. That, however, is rarely the problem. The problem is that people know that something must be done by a specific date, and for a variety of reasons, wait until the last minute to deal with the matter. Sometimes it is a matter of being too busy. Sometimes it is a matter of priorities. Sometimes it is oversight. And often, it is simply a pattern, reaching back into childhood, of letting things go as long as possible. A calculator that tells someone when something is due is of no help to someone who already knows when something is due.
Wednesday, February 01, 2017
A different reader contacted me to share his experience with this question. Here is what he wrote:
“Are there people who make financial decisions based on astrological guidance?”I learned several things. First, there are people who seriously consider astrological, or similar, guidance to be valuable, and use it. Second, nothing in law school prepares lawyers for how to interact with clients who bring this sort of advice into their discussions, though it seems to me that the reader sharing these experiences handled them deftly. Third, there may be, at least in the investment world, advantages to approaching decisions from a different and not-so-common perspective. Fourth, every client is different and we learn something new from each one.
They aren't common, but I've had at least three of them as clients. One in a litigation case, one in a probate matter, and one in an estate planning case.
In the litigation case, every setting of a hearing, trial date or deadline demanded intense client involvement as it was evaluated astrologically. It was a real pain and the ultimate outcome of the case was nothing special.
In the estate planning matter, the client would draw elaborate drawings that looked like magical runic circles full of symbols out of some witch's spell book, or the Masonic symbolism on a dollar bill, which he consulted during office conferences as we presented choices to him for estate planning document options. He basically wanted to us to translate these diagrams into Wills and Trusts as sincerely as possible, and we made a half-hearted attempt to do so. The resulting choices, filtered through our experience as estate planners, were a bit quirky and unconventional, but not horribly bad ones.
The clients in the probate matter talked a lot of about their views in small talk, but it didn't have much apparent influence on their decision making in a short lived case that resulted in a swift total victory via settlement in a few days, in a case that could have turned into a long, protracted, uncertain and expensive litigation. (Honestly, it was one of the most successful negotiations of my career.)
While I don't have direct evidence of the outcome of their methods on their financial success, all three clients (like most of my clients) were comfortably upper middle class, and at least a couple had risen from merely middle middle class means.
One virtue of any method other than the predominant strategies in the marketplace is that if you buy and sell at arbitrary times, rather than falling into the group think that drives a majority of the players in the market. When your timing is either due to necessity like a major unexpected expense that requires you to sell a market position when you hadn't planned on doing so, or due to astrology, your timing is effectively random. This avoids the bad but common instinct to sell low and buy high, or to read more into market trends than they deserve. It may not be optimal or a good way to beat the market, but like index funds, it prevents you from doing worse than average by overthinking the problem in a way that adds negative value. So, while it is a nutty way to make decisions, it may be better than some of the seemingly more rational approaches. This may partially explain why their reliance on astrology, at a minimum, did not leave them worse off.
Monday, January 30, 2017
The taxpayer sought reconsideration, arguing that the parties had not raised the issue of whether tracking data is equivalent to a postmark made by the postal service. The IRS agreed, abandoned its argument based on section 301.7502-1(c)(1)(B)(2) of the regulations, requested that the Tax Court apply section 301.7502-1(c)(1)(B)(1) of the regulations, and conclude that it had been satisfied. The Tax Court denied the motion, explaining that the 90-day limitation for filing petitions is jurisdictional, and thus cannot be altered by agreement between the parties.
The taxpayer appealed to the Seventh Circuit. At oral argument, the court and counsel for the parties focused on whether sections 6213 and 7502 of the Internal Revenue Code and section 301.7502-1 of the regulations create a rule that is jurisdictional. The Seventh Circuit requested supplemental memoranda on the issue. The Seventh Circuit then concluded that the provisions are jurisdictional. However, it concluded that although litigants cannot stipulate to jurisdiction, they can agree on the facts that determine jurisdiction. The court provided as an example the requirements under federal diversity jurisdiction, which require that the litigants be domiciled in different states. Though the parties cannot simply stipulate that diversity exists, they can stipulate that one party is domiciled in one state and the other party in another, and that agreement is binding unless the parties are colluding. Because the Tax Court did not suspect the taxpayer and the IRS of colluding, because the IRS conceded that the envelope was delivered to the postal service on April 21, and because there is nothing to establish that the postal service treats entry of an item into its tracking system as a postmark, the Seventh Circuit concluded that the petition was timely filed, and reversed the Tax Court.
The Seventh Circuit then shared its thoughts on what had happened:
Although the taxpayer thus prevails on this appeal, we have to express astonishment that a law firm (Stoel Rives, LLP, of Salt Lake City) would wait until the last possible day and then mail an envelope without an official postmark. A petition for review is not a complicated document; it could have been mailed with time to spare. And if the last day turned out to be the only possible day (perhaps the firm was not engaged by the client until the time had almost run), why use a private postmark when an official one would have prevented any controversy? A member of the firm’s staff could have walked the envelope to a post office and asked for hand cancellation. The regulation gives taxpayers another foolproof option by providing that the time stamp of a private delivery service, such as FedEx or UPS, is conclusive. 26 C.F.R. §301.7502–1(c)(3). Stoel Rives was taking an unnecessary risk with Tilden’s money (and its own, in the malpractice claim sure to follow if we had agreed with the Tax Court) by waiting until the last day and then not getting an official postmark or using a delivery service.That paragraph should be included in whatever materials are used in tax procedure courses in every tax law program in the country. It also should find its way into every professional responsibility course in the nation’s law schools. Does it surprise me? Not at all. In How Not to File a Tax Court Petition, I commented on a case involving a taxpayer who, after receiving a notice of deficiency, relied on a third party to mail the petition which was due by March 3, 2014. The third party printed postage from Stamps.com, added extra postage for making the mailing certified, took the petition to the post office, noticed there were long lines, and dropped the envelope in the outgoing mail slot without getting a postal service employee to stamp certified on, and postmark, the envelope. Because the petition arrived at the Tax Court on March 10, 2014, bearing a postmark of March 4, 2014, the Tax Court granted the IRS motion to dismiss for failure to file the petition in a timely manner. The postal service postmark superseded the Stamps.com postmark. Foreshadowing what the Seventh Circuit would write, I reacted with these words:
There are two major lessons to be learned from this case. First, stand in line and get that hand-stamped postmark. Second, avoid the need to learn the first lesson by treating the petition as due EIGHTY days after it is mailed. That provides a cushion of time, an allowance for unforeseen circumstances, and contingency insurance. The inability of most people to deceive themselves in this manner has its roots in childhood, when too many missed deadlines are tolerated, and lessons in timeliness aren’t taught and when taught, aren’t absorbed. More than a few law students have encountered serious academic difficulties because a variety of circumstances, some unpredicted and some to be expected, caused them to miss deadlines. People complain that law schools should be teaching time management, but, seriously, why are people arriving at law school lacking time management skills? The answer is, for the same reason people not going to law school have the same issues. Better to learn the consequences when what’s at stake is something minor and not a taxpayer’s Tax Court petition.To that commentary, I must add another lesson. “Third, at some point missing deadlines or handling a deadline in a fashion that requires one or more courts to sift through evidence and consumes the time and resources of litigants and lawyers will cause much embarrassment and consternation when an amazed, or annoyed, court takes time to use an opinion to reprimand those mishandling deadlines.”
Friday, January 27, 2017
Some American taxpayers can list at least a few of the widely applicable deductions. One or more of items such as state income taxes, local real property taxes, mortgage interest, medical expense, and charitable contributions are mentioned by a some taxpayers when asked to name deductions. When it comes to credits, some taxpayers will mention the earned income credit, the credit for taxes withheld or paid as estimates, and perhaps the investment credit.
A student in the basic federal income tax course should not describe charitable contributions as something that generates a credit. Charitable contributions generate deductions. There probably are a good number of Americans who would not recognize the difference and might mention a “charitable contributions credit.”
So one of this blog’s readers was surprised to discover, on the New Orleans Saints ticket web site, a suggestion that ticket holders can “Offer your unused tickets to charity through the Saints so that others who are not able to go to games can enjoy the Saints' experience. And remember, you'll receive tax credit on these donations.
A bit of research determined that some states provide a state income tax credits for charitable contributions. Louisiana is one of those states; two others are Arizona and Missouri, though I did not attempt to survey all the states. The Louisiana credit, however, is based on the amount, if any, by which total charitable contributions and some other deductions exceed the amount permitted for federal income tax purposes. In other words, to the extent that federal limitations eliminate a portion of the taxpayer’s deduction, a credit against Louisiana state income tax liability is permitted.
As written, the advice on the web site is confusing and ambiguous. The words “And remember, you’ll receive tax credit on these donations” should be replaced with “And remember, it is possible that making these donations will generate a Louisiana state income tax credit for you, but it is best to consult with a tax professional.” To state that a tax credit is guaranteed is ambiguous. Federal income tax credit? Louisiana state income tax credit? And even if a proper reference had been made to Louisiana state income tax credit, there is no guarantee that the computation of the excess on which it is based would generate a credit. On top of that, it is best to provide a warning of some sort that tax advice is not being offered and to suggest that a tax professional be consulted.
The reader suggested that “It is obvious that the person who wrote this would have failed your tax course by not understanding the difference between a tax credit and a tax deduction.” Fortunately for a student, failing to understand one core principle is not a guarantee of failure in the course. Failure occurs when too many core principles are misunderstood or overlooked. In addition, failure to be precise in writing something also contributes to a lower grade but one error in and of itself does not generate a failing grade.
Precision matters. Lack of precision causes misunderstandings in communication, which can lead to all sorts of problems. Lack of precision causes engineering defects, which can lead to all sorts of problems. Lack of precision causes medical misdiagnoses, which can lead to all sorts of problems. In other words, to the chagrin of those who detest details and want to live in the world of sound bites and 140-character tweets, lack of precision leads to all sorts of problems. Not all of those problems involve the risk of failing a tax course, but too many of those problems involve the risk of existential catastrophe.
Wednesday, January 25, 2017
In this episode, the defendant was a truck driver. He was described as working for the plaintiff. He also was described as having been employed by the plaintiff. While driving the plaintiff’s truck, the defendant had an accident. The insurance company covered the repair costs except for a deductible. The plaintiff sued the defendant to recover the deductible, and also to recover loans allegedly made to the defendant. When asked, the plaintiff said that the defendant was his business partner, but added, “but then we treat him as an independent contractor and provide a 1099.” Judge Judy then asked, “So he’s not a partner.” “No,” said the plaintiff, “He is a partner but gets a 1099.” One of the documents introduced as evidence describes the defendant as the plaintiff’s business partner. Judge Judy explained that either he is a partner and does not get a 1099 or he is not a partner. She added, “He worked for you, you gave him a 1099 instead of a partnership return.” Ultimately the case was dismissed because the plaintiff failed to prove other elements of his claim.
Any tax professional who has dealt with these business relationship issues should immediately spot the problem. It’s not just a question of whether the defendant was a partner or an independent contractor. There’s a third option. The defendant was described as working for the plaintiff and as having been employed by the plaintiff. The plaintiff owned the truck. If there was a partnership, would not the partnership own the truck? Probably, though perhaps the plaintiff was renting the truck to the partnership, but I didn’t get that impression. How can the defendant be an independent contractor if the plaintiff owns the truck and specifies the deliveries to be made and routes to be taken? Ought not both the 1099 and partnership return be set aside in favor of a Form W-2?
Because the plaintiff failed to prove other elements of his case, it ultimately did not matter whether the defendant was a partner, employee, or independent contractor. But had the plaintiff succeeded with the other elements of his case, the question would have been pivotal, both to liability and damages. There is no way that the question could be answered before additional facts were provided. Those facts, however, were not established in the case.