Wednesday, October 31, 2012
In Taxing "Snack" or "Junk" Food (2004), Halloween and Tax: Scared Yet? (2005), Happy Halloween: Chocolate Math and Tax Arithmetic (2006), Tricky Treating: Teaching Tax Trumps Tasty Tidbit Transfers (2007), Halloween Brings Out the Lunacy (2007), and A Truly Frightening Halloween Candy Bar (2008), Unmasking the Deductibility of Halloween Costumes (2009), Happy Halloween: Revenue Department Scares Kids Into Abandoning Pumpkin Sales (2010), and The Scary Part of Halloween Costume Sales Taxation (2011), I have aimed for the light-hearted, the ridiculous, or the goofy when describing how Halloween and taxation can intersect. My habit of playing with words found a ready environment when writing about tricks and treats.
This year, Halloween and its eve (which, yes, I know, grammarian friends, is redundant) have brought the worst sort of reason to explore the tax side of Halloween events. It’s not a time to play word games. It’s no fun to consider what the great storm of 2012 has done in terms of deductions for disaster losses, casualty losses, medical expenses, and the tax consequences of business interruption insurance payments and property insurance receipts. This sort of event puts candy and costumes into the background. Tax, of course, doesn’t go away. Nor will the anxiety, the pain, the sadness, the disappointment, and the sorrow that has descended on so many people. There are no deductions for those. Just prayers.
Monday, October 29, 2012
A good bit of commerce and traffic flows between Detroit, Michigan, and Windsor, Ontario. Most of the travel between the two cities goes across the Ambassador Bridge. The Ambassador bridge is owned by billionaire Matty Moroun. The bridge is in terrible condition. The pathway for bicyclists and pedestrians, required by the charter authorizing the bridge, has been closed. Twice in the last three years, a state court has held Maroun’s bridge company in contempt for failing to update access roads and make other improvements required by state and federal law, and put him in jail for one night. Moroun also has been ordered to take down a duty-free shopping complex built on public land on the Detroit side of his bridge. And he faces a new set of fines for selling bad gasoline at that complex and disregarding orders to stop selling the noncompliant gasoline.
To deal with the deficiencies of the privately-owned bridge, authorities in Michigan and Ontario agreed to build a new bridge. Moroun proposed building a second privately-owned bridge, and sued sued to prevent the construction of the proposed public international bridge. Under the agreement, Canada would pay for the construction. The incentive for Canada is that the Canadian end of the privately-owned bridge terminates in local Windsor streets. The proposed new public bridge would connect directly to Canada’s limited access highway system.
Stymied in his litigation efforts to prevent the construction of the new public bridge, Moroun paid more than $4 million to put a proposed Michigan state constitution amendment on the ballot. The amendment would prohibit the building of public international bridges unless approved by two-thirds of the Michigan legislature. Moroun then shelled out more than $9 million to purchase ads supporting his proposed constitutional amendment, falsely claiming that the cost of the proposed bridge would fall on Michigan taxpayers. These misleading, to use a gentle adjective, have been roundly criticized, yet polls show that the proposed amendment is favored by Michigan residents 47 percent to 44 percent. A substantial number of Michigan residents do not live or work within 25 miles of the proposed bridge location, and thus presumably see no direct personal interest in its construction. Moroun’s ads don’t mention the fact that the new bridge would add 12,000 jobs during the first four years of the construction, and 8,000 jobs permanently.
So enter Grover Norquist, king of the anti-tax movement. About a year ago, in Tax Policy, Elections, and Money, If the Government Collects It, Is It Necessarily a Tax?, and Debunking Tax Myths?, I explored the unwarranted and excessive influence that the unelected Norquist holds over federal, state, and local tax policy and decision making, described the adverse effect of his efforts on the American people and the nation’s economy, and concluded, based on his own words, that his anti-tax stance is simply part of his strategy to destroy government.
Norquist, who does not appear to have any connections to Michigan other than his desire to eliminate its taxes, showed up at a press conference to support the billionaire’s proposed constitutional amendment to block a public bridge so that he can maximize his profits while failing to maintain his private bridge properly and failing to comply with court orders. Legal experts are debating whether the constitution amendment would apply to a project already approved, with some concluding that courts would reject retroactive application.
So a so-called billionaire job creator uses his tax cut money to fund opposition to the creation of jobs. People fall for the billionaire’s misrepresentations, and fail to understand what is in their own best interests. An anti-tax, anti-government crusader joins forces with the ultra-wealthy in an effort to continue a privatized bridge that has brought fortune to its billionaire owner and troubles for its users and the neighborhoods of Windsor through which its traffic flows. Will it take another catastrophe, such as a collapse, or a vehicle falling through a pothole, for the public to rise up in indignation? Will the cry then be the familiar “How did the government let this happen?” If so, my response will be, “How did you people let this happen?” I know the answer. You voted the wrong way, and you got what you voted for.
Friday, October 26, 2012
There are the padded invoices funneling tax dollars to someone’s cronies. That’s wrong. There are the expenses that bring no return, or a benefit less than what has been spent. When dealing with public funds, that’s wrong. There is the spending that would not be necessary but for the negligence of someone whose inattention causes damage to public property. Though the spending is necessary, the cause of the spending is wrong, and ultimately reimbursement should be sought.
And then there is the foolish spending. I first met foolish spending when I was a child, and I listened attentively as my father and his siblings complained about a decision of the Philadelphia School Board to install carpet in an elementary school. I remember one of my uncles commenting, “We don’t need our schools to be Taj Mahals.” Someone else opined that a contractor was getting some sort of deal. One of my aunts pointed out that it is foolish to install carpet in a building where most of the occupants are prone to throwing up, and that cleaning tile floor is much easier than cleaning carpet. Looking back, perhaps I should have said, though surely I would have been admonished for interrupting the adults, that perhaps some contractor running a carpet cleaning business was in on the deal.
Recently, a reader brought to my attention to what I think presently holds the prize for Taj Mahal spending at a school. According to this story, the school district in Allen, Texas, opened a $60 million high school football stadium. The funds came from a bond issue for which 63 percent of those voting gave approval. School district officials explained that it was not their intention to recoup the costs, and that it is not practical to do so.” Although it is expected that revenues will exceed the cost of operations, it is very unlikely that the bond issue will be paid back with anything other than taxpayer dollars.
The stadium in question has a 38-foot wide high-definition video screen, spacious weight rooms, separate practice areas for the wrestling and golf teams, and concrete rather than aluminum stands. The absurdity of the cost is highlighted by the fact that in today’s dollars, the Cotton Bowl cost $4.5 million, and the stadium currently being built by the University of North Carolina-Charlotte is tagged at $45 million. Someone’s making money on this deal, and it isn’t the taxpayers and it isn’t the students.
The absurdity of the decision to spend $60 million on a football stadium is exacerbated by the fact it was done during a bad economy, at a time when school districts are laying off teachers, working with outdated textbooks, enlarging class sizes, and producing students whose world ranking in core subjects continues to drop. It raises questions about priorities. As Ross Perot put in thirty years ago, when there was outrage at the spending of $5.6 million for a high school football stadium, also in Texas, “Do we want our kids to win on Friday night on the football field or do we want them to win all through their lives?” The father of one football player provided a comment that could be considered a response: “There will be kids that come through here that will be able to play on a field that only a few people will ever get the chance to play in.” So it’s good to fork over tens of millions of taxpayer dollars to benefit a few kids? In return, what do the taxpayers get? A more educated nation? A nation whose citizens are competitive in a global marketplace? A healthier citizenry? Or just another version of taxpayer-funded entertainment for the benefit of a select group? What about facilities for the debate team? The language clubs? The science fair? The math contestants? Do they not matter?
The report that I read, one of dozens, used two phrases to describe this use of taxpayer money. One was “monumentally stupid.” The other was “pathetically ridiculous.” I’m having difficulty deciding which is the better description. What I can choose is the report’s final two sentences: “The voters of Allen, Texas ought to be ashamed of themselves, look in the mirror, and ask themselves what’s more important, a cool football stadium or their children’s future? So far, they’ve answered that question incorrectly.” Indeed they have.
Wednesday, October 24, 2012
Over the past few years, particularly during the most recent twelve months, opposition to the mileage-based road fee has become more strident. Today I want to address the objections that have been raised.
One objection that comes up constantly is the claim that the mileage-based road fee is an unwarranted invasion of privacy. This assertion is made, for example, by Anthony Gregory, Felix Salmon, and Ed Morrissey. There are several responses to this concern. First, even though implementation of a mileage-based road fee could provide some information that otherwise would not be available, the jurisdictions that have implemented the fee have not done so, as explained, for example, by James M. Whitty and by the Oregon Department of Transportation. Second, even if the GPS or other system put in place to implement the fee revealed where a vehicle was driven, it would reveal nothing that is within the realm of a reasonable expectation of privacy. It would not disclose who is in the vehicle, what items, legal or otherwise, are in the vehicle, what the people in the vehicle are saying, or what music they are playing. Third, the system put in place to implement the fee would provide little or no information that isn’t otherwise collected by road cameras, traffic light cameras, existing electronic tolling systems, credit card records, the eyes and ears of traffic enforcement officers, and similar technologies and practices currently in place.
Another objection is that people won’t accept a mileage-based road fee or the systems adopted to implement it. For example, Felix Salmon explains that New York taxi drivers went on strike in opposition to the insertion of GPS devices in their cabs. Those devices, however, were intended to be used solely for the tracking of the taxis, in response to complaints about coverage, refusal to pick up passengers, taking unnecessarily longer routes to jack up fares, and similar problems. The drivers were objecting because they knew that the plan would put an end to their shenanigans. It’s not surprising they objected. On the other hand, Brad Plumer reports that after trying the system, 70 percent of drivers had a favorable reaction, thus negating the claim of widespread opposition.
Yet another objection is that the mileage-based road fee would encourage increased fuel consumption because the gasoline tax would be reduced or eliminated. In fact, as indicated, for example, in this report, where the fee was implemented on a trial basis, drivers subject to it decreased fuel consumption. The Oregon Department of Transportation gives an example of why the fee does not encourage the purchase of less fuel-efficient vehicles:
Consider the example of a Prius that gets 48 miles to the gallon and an SUV that gets 15. If gas is selling for $3.30 a gallon (including the 30 cent state gas tax), the Prius will pay 6.9 cents per mile, and the SUV will pay 22 cents per mile in fuel costs and user fees. Taking out the gas tax and adding in a 1.5 cent per mile fee, the Prius will pay 7.8 cents for every mile it drives. Because it’s unlikely that lower mileage vehicles will transition to a VMT fee anytime soon, the SUV will remain on the gas tax and continue to pay 22 cents for every mile driven—nearly triple what the Prius pays, providing plenty of monetary incentive to buy a fuel efficient vehicle.Although the mileage-based road fee can be adjusted so that fuel-efficient vehicles get a discount, Anthony Gregory claims that doing so would be a consumption tax and a “new invasion of privacy.” The gasoline tax is a consumption tax. The mileage-based road fee is a user fee, and to adjust a user fee to reflect the environmental and energy burden imposed on society by a vehicle is within the bounds of reasonable approaches to paying for vehicle transportation. As for it being a “new invasion of privacy,” that is simply is not so, because for decades state motor vehicle departments have been aware of which vehicles have been purchased, and the fuel-efficiency classification of vehicles is about as public as information can be.
Still another objection is that the mileage-based road fee fails to take into account the fact that some roads are costlier than others. This, too, can be managed through the mileage rate imposed when a vehicle travels a particular road.
Even another objection is that mileage-based road fees do not take into account the fact that vehicles have different weights and cause different amounts of damage to highways, bridges, and tunnels. Again, the mileage rate can be adjusted based on the weight of the vehicle, much like existing tolls are scaled to reflect the weight of, and number of axles on, a vehicle. However, Anthony Gregory, for example, claims that making such an adjustment in the fee would make the system “more invasive and arbitrary.” More invasive and arbitrary than what? Existing toll systems? What is arbitrary about the weight of a vehicle or the number of its axles?
There are two objections to the mileage-based road fee, implicitly raised by Stephen Frank, that present serious concerns. One is that some jurisdictions are not following appropriate procedures as they consider implementing the fee. I agree. No fee or tax should be adopted without the appropriate process being followed. The other is that some jurisdictions propose using the revenues from the fee to fund things other than roads, bridges, and tunnels. Again, I agree. I have addressed the inappropriateness of diverting user fees in posts such as Soccer Franchise Socks It to Bridge Users, Bridge Motorists Easy Mark for Inflated User Fees, Restricting Bridge Tolls to Bridge Care, Don't They Ever Learn? They're At It Again, A Failed Case for Bridge Toll Diversions, DRPA Reform Bandwagon: Finally Gathering Momentum, When User Fee Diversion Smacks of Private Inurement, Toll Increases Ought Not Finance Free Rides, Infrastructure, Tolls, Barns, Jackasses, and Carpenters, and Using Tolls to Fund Other Projects.
At least one critic, Felix Salmon, thinks that the mileage-based road fee is all about reducing congestion, and claims that national implementation of such a fee is difficult, offering little marginal upside compared to charging fees to enter cities. The problem with this perspective is that it treats traffic congestion in cities as imposing a social cost but ignores the social costs generated by vehicles used outside of cities.
Perhaps it is Anthony Gregory who raises the curtain on where much of the opposition to the mileage-based road fee is originating. He advocates a “free market in road maintenance” and asserts that government cannot mimic the market, and can only distort it. What distorts the free market is the flood of cheating, Enron-style management, defective and dangerous products, misleading warranties, planned obsolescence, monopolistic practices, and other unacceptable behavior that infects the “free” market, and would destroy it but for the intervention of society as a whole through its instrument, government regulation. Gregory admits that he wants government out of roads, and a return of roads to the private sector. Anthony, we’ve been there, done that. I discussed the history of private highways, and the eventual abandonment of that inefficient system, in Are Private Tolls More Efficient Than Public Tolls?
The short version of the attempts by private money-seekers to discredit the mileage-based road fee and push for privatizing highways is instructive. The same crowd that blasts any transfer of public funds to private individuals to save lives, protect health, provide food and clothing for the needy, or otherwise benefit anyone not part of the ruling oligarchy turns right around and looks for any edge, valid or otherwise, to divert public resources into their own private pockets. A mileage-based road fee, necessary because of the impact of declining liquid fuels use and reduced revenues from liquid fuels taxes, thwarts the effort to incorporate the nation into a private fiefdom. For that reason, it will be subjected to criticism, and for that very same reason, it must continue to be supported until it fully replaces the liquid fuels tax.
Monday, October 22, 2012
As I discussed in The Failure of Tax Policy Deductions: Specific Evidence, a Congressional Research Service study demonstrated the futility of using expensing to stimulate the economy. The report did not surprise me, as I had previously criticized expensing as an inefficient and misdirected approach to dealing with the problem. Existing expensing focuses on expenditures for equipment, not jobs, as I noted in Who’s More Important in the Tax World? People or Machines?. Previously, I had examined the flaws of equipment expensing in Just Because It Didn’t Work the First 50 Times Doesn’t Mean It Will Work Next Time. About a year later, I criticized the Obama Administration for proposing a change in the tax law that would allow full expensing for equipment, in If At First It Doesn’t Work, Try, Try, Try Again. A few months later, in When the Bonus Depreciation Tax Deduction is Not a Bonus for the Economy, I took apart the argument that letting businesses deduct equipment expenditures won’t help the economy. Because businesses already have deductions for compensation paid to employees, a proposal to permit expensing for all expenditures essentially is a proposal to permit expensing for expenditures made for buildings and equipment. We’ve been there, done that.
An example might help demonstrate why the jobs problem needs to be solved from the other direction. Consider a typical small business owner, almost all of whom generate taxable income that puts them below the top rate. Many of them do not benefit from the expensing proposal because they do not have the funds to spend, nor are the banks willing to lend money to them. Many of those that might have some funds or loan resources available do not need to spend money on equipment or to hire employees because their business receipts are not growing or are growing very slowly. When asked why their business is stagnating, the answer almost always is that their customers are buying less, are eating out less, are doing more work for themselves rather than retaining a business, for example, to mow their lawns or paint their living rooms. Why is that? Because the usual and potential new customers of these businesses have lost their jobs, have been the target of pay cuts, are dealing with increased health care costs, or have decided to build up nest eggs because they fear they are next on the list of jobs outsourced to some other country. Until these people resume spending, return to paying businesses to mow their lawns and paint their living rooms, the economy will stagnate.
The proponent of the proposal says that the issue is determining “what it takes to get people and businesses to invest their money and create jobs.” I disagree. As the analysis in the preceding paragraph shows, the question is not how to encourage businesses to spend money, but how to encourage customers to patronize businesses. The answer is to get money flowing back into the hands of the vast middle class and those living near or below poverty so that they can pump money into businesses at a level sufficient to entice businesses to hire people. No business is going to hire someone simply because the compensation is deductible, as it has been for decades. No business is going to buy equipment simply because the expenditure is brought within the scope of deductible expenses.
The proponent of the proposal also suggests that by making a company’s investments and expansion costs deductible, it reduces the percentage of its income that is taxed. That’s true, but as I’ve pointed out many times, in posts such as Spreading the Wealth: Not Necessarily Inconsistent with Growing the Economy, Taxing Capital to Help Capital, Job Creation and Tax Reductions, and Why the Tax Compromise is a Mistake, under existing law any business, and any taxpayer in a high bracket, can reduce their income tax liabilities by hiring people and deducting the compensation. They don’t do that, and for a good reason. They don’t have anything for these would-be employees to do, because not enough people are coming into their stores or buying their services.
The Tax Foundation blog post suggests that the proposal is on the right track. To the extent that the proposal eliminates the on-again, off-again inconsistency of existing expensing provisions, and shoves aside the ever-changing prerequisites for qualification, thus eliminating some of the uncertainty that contributes to business decision hesitancy, it is not as problematic as current and previous expensing provisions have been. However, it nonetheless amounts to nothing more than a windfall tax break for those businesses, chiefly large enterprises that are buying equipment. Giving a tax deduction for an expenditure that already is being made surely is not an incentive to make that expenditure. The solution to job creation is not supply-side, but demand-side. Some members of Congress understand this. Others don’t, continuing to drop raw eggs on the concrete floor from three stories up, in the belief that the eggs won’t break.
Friday, October 19, 2012
A recent case, Blakeney v. Comr., T.C. Memo 2012-289, presented this sort of situation in the context of a provision designed to assist rehabilitation of the areas affected by Hurricane Katrina. Section 1400N(d)(1)(A) of the Internal Revenue Code allows a special depreciation deduction for “qualified Golf Opportunity Zone property.” In turn, section 1400N(d)(2)(A) defines that term as property that satisfies five conditions. The IRS agreed that four of the conditions – dealing with the type of property, when its original use began, when it was acquired, and when it was placed in service – had been met. The parties disputed whether the taxpayer met the requirement that “substantially all of the use of [the property] is in the Gulf Opportunity Zone and is in the active conduct of a trade or business by the taxpayer in such Zone.”
The taxpayer owned and operated two businesses. One was an electrical contracting enterprise and the other was a charter fishing operation started in 1999 and based in Orange Beach, Alabama, which is in the Gulf Opportunity Zone. On November 5, 2005, the taxpayer contracted for the purchase, at a cost of roughly $4,000,000, of a 68-foot yacht to be used in the charter fishing business. On February 10, 2006, the taxpayer took possession of the yacht in Palm Beach, Florida, which is not in the Gulf Opportunity Zone. Because of mechanical problems, the yacht did not arrive in Orange Beach until October 2006. After taking possession of the yacht, the taxpayer and the yacht’s captain took the yacht on a shakedown cruise, to the Bahamas, near the repair yards of the seller. A variety of mechanical and other problems plagued the yacht, which was required to stay in the Bahamas until repairs were made. After repairs were made, other problems developed. Eventually the yacht left the Bahamas and headed towards the U.S. Virgin Islands. In mid-May 2006, while approaching St. Thomas, the yacht’s generators began to fail, and several appliances stopped operating properly. The boat was moored in St. Thomas for repairs, and during that time it began to sink because of a hole that let water into the engine room. With the leak temporarily fixed, the yacht had to be taken to another marina to be lifted out of the water for permanent repairs. While the repairs were underway, the technicians caused additional damage. When additional electrical problems developed, the seller, who had warranted the yacht, directed the taxpayer to take it to Puerto Rico. In September, 2006, the taxpayer was told that the yacht was ready to be taken to Orange Beach, but its captain unexpectedly died. Eventually another captain was hired who took the yacht to Anna Maria, Florida, for more repairs. The yacht arrived in Orange Beach in October 2006. The yacht was made available for charter but there were no customers because the fishing season had ended. During the February –September 2006 period when the yacht was having its difficulties, it was chartered for five fishing trips in the Caribbean.
On the 2006 tax return, the taxpayer deducted almost $2 million of depreciation under the special provision in section 1400N(d)(1)(A). The IRS disallowed the deduction, concluding that substantially all of the yacht’s use during 2006 occurred in the Caribbean, resting its analysis on its decision that every day after the taxpayer took possession of the yacht was a day of use. The taxpayers argued that a day of use cannot occur unless the yacht is in condition to serve its intended purpose, and that the yacht was virtually inoperable during most of the time that it was in the Caribbean, thus causing substantially all of its use to occur after it arrived in Orange Beach.
The Court first determined that the yacht was used in Orange Beach, and thus in the Gulf Opportunity Zone, for the 74 days from when it arrived there until the end of the year. The fact that no one chartered the yacht did not mean that it was not being used in the sense of being available for charter.
When faced with determining how many days the yacht was used outside of the Gulf Opportunity Zone, the Court concluded that it was not being used when it was so broken that it could not leave the dock. However, because it was chartered on five occasions totaling 43 days, there were at least 43 days of use in the Caribbean, days for which the yacht generated income. Though the Court concluded that days of use in the Caribbean should also include days when the yacht was available for charter but not chartered, it noted that it could not tell from the record whether there were any such days, or, if so, how many.
The Court then turned to whether a use of 74 days in the Gulf Opportunity Zone and at least 43 days outside the Gulf Opportunity Zone constituted use that was substantially within the Gulfo Opportunity Zone. Though the Code and the regulations do not define “substantially” for this purpose, Notice 2006-77 defines “substantially all” as 80 percent. Notices, however, do not carry the force of law, are not accorded deference under the Chevron decision, and may be entitled to deference under the Skidmore decision, but the Court decided it did not need to determine whether Notice 2006-77 should be given deference. Instead, because at most 63 percent of the yacht’s use was in the Gulf Opportunity Zone, the court was “unable to say” that substantially all of its use was in that Zone. Because 63 percent is not substantially all, according to the Court, there was no need to decide if 80 percent is the correct test.
The word substantially is used in many places in the Internal Revenue Code. For example, regulations provide that the requirement of leaving in place substantially all of a building’s exterior walls as a condition for the rehabilitation credit is met if 75 percent of the surface square footage of those walls remain. It would be helpful if Congress, when using the word substantially in contexts that permit the application of a number, would make the effort to provide a number.
The Court did not reach an issue that was not present in the case but that could arise for a subsequent year. When customers chartered one of the taxpayer’s vessels, it went to fishing locations dozens of miles offshore set up and known only to the taxpayer. Would the days that the yacht is far offshore count as use within the Gulf Opportunity Zone? Had the yacht had been offshore for some of the 74 days, the taxpayer’s Gulf Opportunity Zone use percentage arguably would have been even lower.
Wednesday, October 17, 2012
Eight years ago, in Killing the Geese, I analyzed a similar proposal, one that would eliminate school district real property taxes and replace the revenue with local income taxes, local earned income taxes, increased real property taxes, and business receipts taxes. I explained that the problem with real property taxes is not the tax itself, but the application of the tax to people “whose incomes are fixed and whose homes continue to increase in value.” I pointed out that the real property tax is not a hardship for people with large amounts of income of any sort, and that tagging the real property tax as a tax on the elderly is misleading because many elderly do not own homes and thus do not pay the real property tax, some elderly are awash in income and do not experience hardship on account of the real property tax, and many people who are not elderly do experience difficulties because of the real property tax.
I then argued that if the real property tax is to be replaced, an equitable tax is what needs to be enacted. I explained that that Pennsylvania state income tax, though not necessarily the most efficient tax, is the most equitable tax available. I pointed out that the earned income tax is a terrible tax, one that burdens workers while letting the landed gentry off the hook. My advice with respect to the earned income tax, which clearly has not been heeded by the drafters of the latest legislative proposal on the issue, was simple: “Get rid of it. Do not encourage its proliferation.”
Five years ago, in Taxes and School Funding, I commented on the electoral defeat of the local school district income tax proposal discussed in A Perplexing Tax Vote Decision. I noted that with the defeat, attention would turn to possible sales tax increases to fund education, possible state income tax increases for the same purpose, and cuts in school spending. I pointed out that the sales tax is no less regressive than the property tax, income tax increases encounter the widespread “people don’t want taxes increased, period” obstruction, and cutting school spending revives the decades-old debate about WHAT to cut, and often causes cuts that have adverse long-term consequences for the country. I concluded that the “tax question is not the problem but a symptom,” that the discussion “needs to focus on the tension between what people want schools to do and what people are willing to pay for whatever it is that schools do,” and that disclosure of the cost of “each program, each mandate, and each activity” is necessary.
At least this time around, the drafters of the most recent proposal took my advice on another point. I suggested that school districts be permitted to piggyback onto the state income tax. The most recent proposal includes a provision not quite a piggyback but close enough. It also includes an increase in the state income tax.
The proposal faces all sorts of challenges. According the the Department of Revenue, eliminating the school district real property tax takes away about $12.5 billion in revenue. The proposed increases in other taxes and the enactment of new local income or earned income taxes would raise about $9 billion. Do the drafters of the legislation intend to make up the $3 billion shortfall by cutting education funding? Or by increasing other existing taxes? Or by proposing other new taxes? Is that what the “reserved” provisions are for?
Opposition also comes from the Pennsylvania Budget and Policy Center. It claims that the school district real property tax works well, and that the number of people facing hardship because of that tax constitute only two-tenths of one percent of home owners. That number, however, reflects the number of homes lost because of delinquent tax payments, and thus is both an understatement and an overstatement. There are people who manage to hang onto their homes while cutting back on necessities such as health care in order to make their real property tax payments. And some of the homes that were lost were taken from financially well-to-do people who thought ignoring real estate tax bills was a legitimate tax planning device.
Interestingly, one of the proponents of the legislation claims that if enacted, she would save more than is possible through a mortgage modification. But the risk is that, if enacted, the replacement tax revenue might be much more than the proponents claim or think. As I warned in Killing the Geese,
The impetus for all of this legislative busy-ness is the public dislike of real property taxes. Of course, the public dislikes all taxes, so don't expect a parade down Harrisburg's main street when one bad tax is replaced by another bad tax. Expect another decade of maneuvering to get rid of the replacement tax. To the advocates of real property tax repeal I have these words of advice: Be careful what you wish for. You might get it. And then being pining for the "good old days."Ultimately the issue isn’t what sort of tax, but who pays. I guarantee that those with the resources to do so are maneuvering into positions that will permit them to escape some, most, or even all of the burden of school funding.
Monday, October 15, 2012
At a time when state and local governments are strapped for cash, funneling resources into profitable private sector businesses is not in the best interest of the vast majority of Americans. Some of the staunchest critics of government spending, and their financiers, line up for government goodies when their own personal pockets are waiting for taxpayer money. It’s simply wrong, on many counts.
In Putting Tax Money Where the Tax Mouth Is, I offered two solutions. One is to reject outright pleas for welfare from the wealthy. The other is to hold these entrepreneurs to their promises, and to impose substantial contract breach damages on them when their promised trickle-down economic benefits fail to materialize.
It turns out another possible solution exists, and has been implemented. According to this story, when the Florida legislature appropriated public money for the financing of private sports facilities, it imposed a requirement that any sports arena receiving government funding is required to open its doors to the homeless on any evening that the facility is not hosting an event. In terms of “give back,” this approach is an interesting variant on the contract damages option I proposed. Has it worked? Apparently not. According to two Florida legislators, American Airlines Arena, SunLife Stadium, and an undetermined number of the other sixteen professional sports facilities that have received Florida tax dollars have failed to comply with the law for the twenty years since it was enacted. Another commentator thinks that none of the facilities have complied. The legislators have introduced legislation to compel the owners of these arenas and stadiums to return the money. According to this commentary, some opponents argue that in some instances the owners are governments, which would make the payback requirement counterproductive. Others argue that at least some of the facilities are in areas impractical for use as homeless shelters, and still others claim that homeless advocates do not think the homeless should be given shelter in these places. Yet according to this report, there are homeless advocates who think that enforcing the law makes sense, provided it is done in ways logistically compatible with providing shelter.
It is not surprising that, although they come at the problem from different angles and propose different solutions, both this commentator and the writer of this report consider taxpayer financing of private sector sports enterprises to be a very bad idea. What’s even a worse idea is taking the money, agreeing to provide a public service in return, and then breaking that promise. But, these days, that’s standard operating procedure, isn’t it?
Friday, October 12, 2012
Campbell is correct that general revenues are insufficient to deal with the country’s deteriorating roads, bridges, and tunnels. He is correct that user fees are being diverted. He is correct that the gasoline tax is dropping in real dollars. But his solution treats those problems as unsolvable, opening the path for him to argue for enriching the private sector at the expense of public commonweal.
The gasoline tax revenue problem is easily solved, even though free riders will not like the solution. Adjust the per-gallon rate to reflect inflation that has taken place since the per-gallon fixed rate was last changed. The overwhelming number of taxpayers and politicians who push for inflation-adjusted dollar amounts in the Internal Revenue Code and state revenue acts ought to be delighted to have the opportunity to make yet another tax provision subject to the same adjustment. The objection that gasoline already is expensive enough ignores the reality that the true cost of gasoline exceeds its current pump price when externalities are taken into account. But even if the gasoline tax is left alone, there is yet another solution, one that would permit repealing the gasoline tax. Repealing a tax ought to get some attention and much support.
The user fee diversion problem is very real. See, for example, this recent report on the diversion of federal highway funds based on political considerations rather than actual need. I have discussed it in posts such as Soccer Franchise Socks It to Bridge Users, Bridge Motorists Easy Mark for Inflated User Fees, Restricting Bridge Tolls to Bridge Care, Don't They Ever Learn? They're At It Again, A Failed Case for Bridge Toll Diversions, DRPA Reform Bandwagon: Finally Gathering Momentum, When User Fee Diversion Smacks of Private Inurement, Toll Increases Ought Not Finance Free Rides, Infrastructure, Tolls, Barns, Jackasses, and Carpenters, and Using Tolls to Fund Other Projects. Campbell accepts user fee diversion rather than attacking it as the unwise, morally incorrect, and dangerous practice that it is. As I have pointed out repeatedly, in those posts, it is an easy thing to stop funneling tolls and other user fees to purposes unrelated to the collection of the fee. In some respects, treating user fee diversion as an unsolvable problem makes it easier to advocate turning public assets over to private enterprise. Calls for resisting these diversions are increasing, and allegedly are beginning to cause a backlash at the state level.
The solution, as I have pointed out many times, is the mileage-based road fee. I have explored this twenty-first century alternative in Tax Meets Technology on the Road, and thereafter in Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, and Is the Mileage-Based Road Fee So Terrible? The technology makes it possible to match use with cost in ways that present-day tolling can only approximate. The technology makes it possible to eliminate the nonsense of using tolls imposed on certain drivers to provide free rides to other motorists. When Campbell claims, “I wish that it was possible to do this some other way,” he is demonstrating either an ignorance of mileage-based road fees – for shame – or an opposition based on a dedication to enriching the private sector enterprises at the expense of taxpayers – again, for shame.
Campbell’s perception of private sector takeovers reflects an ongoing delusion among those who think that failed private-sector trickle down somehow surpasses government protection of citizens from the avarices of the not-so-free marketplace. This is a canard I have criticized repeatedly. Among my various posts that examine and de-bunk the myth of private sector superiority when it comes to dealing with public assets are Selling Off Government Revenue Streams: Good Idea or Bad?, Are Citizens About to be Railroaded on Toll Highway Sales?, Turnpike Cash Grab Heats Up, Selling Government Revenue Streams: A Bad Idea That Won't Go Away, Turnpike Lease: Bad Policy and Now a Bad Deal , How Do Toll Road Lessees Make a Profit?, The Pennsylvania Legislature Gets It Right, Killing the Revenue Idea That Won't Die, Are Private Tolls More Efficient Than Public Tolls?, More on Private Toll Roads, and Tax Profiteers Resume Takeover Attempts. Campbell is from southern California, so he cannot possibly be unaware of the private highway failures in San Diego and Orange County. He knows it doesn’t work for the benefit of the public, but for some reason – guess – that doesn’t stop him from begging for a repeat of the same failed policies. Sound familiar?
Campbell is correct that “infrastructure is important” and “essential.” Infrastructure that serves the public must be controlled by the public, through government, must be protected by the public, through government, must be funded by the public, through government, and must be available to the public, through government. Making it the private fiefdom of the private sector nobility, especially when most of the companies making a grab for public money are international and foreign entities, is a deep threat to the survival of American democracy and even the nation itself.
Wednesday, October 10, 2012
But according to a case from a few months ago that has just now come to my attention, the Supreme Judicial Court of Massachusetts looks at the issue differently, as it must. In Murphy et al v. Massachusetts Turnpike Authority, the court held that the Massachusetts Turnpike Authority was permitted to use tolls collected from toll roads under its control to fund roads, bridges, and tunnels for which tolls are not charged. According to the plaintiffs, 58 percent of toll revenues were expended on roads, bridges, and tunnels not subject to tolls.
The plaintiffs sued, claiming that the diversion of the toll revenue violated article 2, section 7 of the Massachusetts Constitution, part II, chapter 1, section 1, article 4 of the Massachusetts Constitution, article 30 of the Massachusetts Declaration of Rights, and the commerce clause of the United States Constitution. The court rejected all of these claims, and also denied the plantiffs’ request for an injunction barring future diversion of toll revenues.
In rejecting the claim that the diversion was an unconstitutional tax violating article 2, section 7 of the Massachusetts Constitution, the court explained that the fees were not a tax, that if they were a tax they were valid because the legislature had authorized the Turnpike Authority to collect tolls and to expend the receipts on all roads, bridges, and tunnels under its care, whether tolled or not. To be unconstitutional, the tax must be one that exceeds the authorized power of the taxing authority, and in this instance, the tolls, even if considered to be taxes, were within the Authority’s power to impose.
In rejecting the claim that the diversion was a disproportionate and unreasonable assessment under Part II, chapter 1, section 1, article 4 of the Massachusetts Constitution, the court concluded that if the tolls were taxes, they would not be taxes on real property subject to the requirement of being proportional and reasonable assessments, and that if they were excises, the legislature has the power to impose them and to use excess tolls for maintenance of public roads, bridges, and tunnels, and for mass transportation, including those that are untolled.
In rejecting the claim that the Authority was an executive department exercising legislative powers in violation of article 30 of the Massachusetts Declaration of Rights, the court concluded that the delegation by the legislature to the Authority of the power to collect tolls did not give the Authority power to impose tolls in excess of those necessary to pay the Authority’s costs, and that the Authority had followed appropriate procedures in giving notice and opportunities to comment, and in filing reports with the governor and legislature.
The court also explained that even though the tolls would not violate state constitutional provisions if they were a tax, the tolls were, in fact, user fees. As such, the court concluded, they were valid because, first, those who paid them enjoyed a benefit, namely, driving on tolled roads, not available to those not paying the tolls, second, the plaintiffs had the option of not using toll roads, and third, the tolls were collected to fund the roads, bridges, and tunnels for which the Authority was responsible. The court pointed out that, “Where, as here, a public authority manages an integrated system of roadways, bridges, and tunnels, and chooses to impose tolls on only some of the roadways and tunnels in an amount sufficient to support the entire integrated system, its purpose does not shift from expense reimbursement to revenue raising simply because the toll revenues exceed the cost of maintaining only the tolled portions of the integrated system.”
The court dismissed the plaintiffs’ commerce clause claim because the plaintiffs, who, rather than alleging that the tolls discriminated against interstate commerce, had alleged that the were excessive and did not represent a fair approximation of the benefits provided by the Authority, failed to allege that the tolls were put to a use prohibited by the statute or that the toll revenues exceeded the cost to the Authority of maintaining the roads, bridges, and tunnels for which it was responsible. For this reason, the court did not examine the issue of whether the plaintiffs, all residents of Massachusetts, had standing to raise the commerce clause claim.
While the case was pending, the Massachusetts legislature enacted a statute the requires all revenues received from tolls to be “applied exclusively to” costs associated with the tolled road, bridge, or tunnel. The legislature also terminated the Authority and transferred its responsibilities and employees to a newly-established Department of Transportation.
Had the legislature not backed down from the practice it had authorized of limiting tolls to only a portion of the overall highway system under the care of a tolling authority, the case would have taken on even greater significance. The case was decided properly, and demonstrates that the question of how user fees should be imposed and their proceeds expended is an issue for the legislature, barring constitutional violations of the sort not present in the Massachusetts case. The case retains significance as an object lesson for voters in other states, where toll receipts are diverted to purposes other than the construction, expansion, maintenance, or repair of the tolled road, bridge, or tunnel. The danger of legislative failure to constrain the use of toll revenues is evident from the sort of abuses discussed in Soccer Franchise Socks It to Bridge Users, continuing through Bridge Motorists Easy Mark for Inflated User Fees, Restricting Bridge Tolls to Bridge Care, Don't They Ever Learn? They're At It Again, A Failed Case for Bridge Toll Diversions, DRPA Reform Bandwagon: Finally Gathering Momentum, and When User Fee Diversion Smacks of Private Inurement. This issue has resurfaced in Pennsylvania, with the Pennsylvania Turnpike system falling deeper and deeper into debt because of the tolls being siphoned off to fund other highway and mass transportation projects, as described in this article.
It’s time for voters to study what is happening and evaluate their election choices based on what legislators are doing, not on what they are saying and promising. An uneducated electorate is the playground of the corrupt and devious. One wonders whether the lawsuit in Massachusetts, though lost by the plaintiffs, triggered the change that needs to be repeated in other states.
Monday, October 08, 2012
The story begins a few months ago. According to this report, when the question of federal subsidies for air flights into and out of small towns was put in front of the House Appropriations Committee, the Republican members of the Committee had a falling out. When more moderate members attempted to cut the program, the Tea Party members objected, and eventually succeeded not only in preventing the program’s elimination but obtained an 11 percent funding increase. Wait. Aren’t these the folks who want to shrink government? How does one shrink government by expanding funding for a program by 11 percent? Incidentally, since 2001, the budget for this program has quadrupled.
What the subsidy does is reduce the cost of the ticket price for people flying to and from the towns in question. The subsidy amounts to hundreds of dollars per ticket, and sometimes reaches or exceeds $1,000. Are the people buying these tickets getting an entitlement? Are they among the 47 percent? Are they among the 1 percent? Are they flying for business reasons? Personal reasons? If anyone knows, they’re not saying. What happened to the free market? If the flights are unprofitable and otherwise make no sense for the airline, do not free market principles tell the airline to discontinue the flights? Isn’t that the argument heard whenever a program disliked by the shrink-government anti-tax crowd gets publicly trashed? Perhaps it’s not so much “shrink government” but “shrink government assistance for the people we don’t like, the slackers, the moochers, the irresponsible, but keep it for our friends”?
This isn’t the only program that the anti-tax, cut-government-spending crowd wants to preserve. Ask them about farm subsidies. To be fair, even Ronald Reagan and George W. Bush have tried to cut the airline subsidy. They failed.
Last week, news came, according to this story, that an airline with a subsidy to fly to a town in North Dakota was giving it up after two decades of taxpayer-funded assistance. The airline announced that the flights in question had become profitable. Surely this outcome will become ammunition for the defenders of the subsidy. But, if taxpayer funding to assist the airline turns out to be sensible, cannot the same be said for the government assistance to automakers? How is it that critics of keeping automakers afloat make all sorts of arguments that are inconsistent with their support of government keeping an airline afloat? Could it be that it’s not the principle but the identity of the recipient of assistance that marks the difference? What does that tell us?
Friday, October 05, 2012
Last month, another bit of good news appeared. Pennsylvania joined the 27 states mentioned in The Revenue Diversion Problem as having put the proceeds of the settlement to the uses for which they were intended. As reported in this story, the Pennsylvania legislature passed Act 70, P.L. 648, which permitted the Pennsylvania Housing Finance Agency to resume funding the Homeowners’ Emergency Mortgage Assistance Program, which had been shut down a year earlier because its funding had been cut off.
Though I don’t always agree with the decisions made by the Pennsylvania legislature, and find some of its actions bordering on the irresponsible, this decision to channel the settlement proceeds to their intended purposes deserves praise. The legislature did the right thing. Hopefully it will continue doing so.
Wednesday, October 03, 2012
The flaw in the dependency argument is the notion that those who benefit from government assistance do so for their entire lifetimes, or for most of their lives, and that 53 percent of Americans do not fall into this category. Once again, facts are being rewoven into a tapestry of innuendo, distortions, and lies. Before making statements about dependency, it is helpful to ascertain the facts.
A reader pointed me to an editorial that in turn relied on a study by the Cornell University Survey Research Institute, called The Social and Governmental Issues and Participation Study of 2008. Though I cannot find it on the Institute’s website, it is described, and some of its findings are republished, in this article by one of the study’s authors. In the study, the authors examined the extent to which Americans rely on government benefits.
The study looked at 21 benefits provided by the federal government that do not arise from activities that benefit everyone. Thus, the study set aside spending on national defense, food safety regulations, and similar programs. It included direct spending along with spending buried in Internal Revenue Code tax breaks or delivered through funding of private organizations. The study included benefits such a social security, Medicaid, the G.I. bill, unemployment insurance, the mortgage interest tax deduction, and various tax credits. It asked people who were surveyed if they had relied on any of the programs at any time in their lives.
What the authors discovered is that 96 percent of Americans have relied, at some time in their lives, on the federal government for assistance. Most of the 4 percent who did not were young adults who generally are not yet eligible for most of the benefits in question. The average American has benefitted from five of the programs, some in the form of direct payments, and some in the form of tax breaks or federal assistance to private organizations that in turn provided social benefits. Though individuals in households with income under $10,000 used, on average four types of direct benefits whereas those in households with income of $150,000 or more used only one, those in the wealthy households used three of the indirect benefits whereas those in the low-income households used, on average, only one. When analyzed in terms of partisan allegiance, though some benefits were used more by members of one party than those of another, it cut both ways, and members of both parties – 97 percent of Republicans and 98 percent of Democrats – took advantage of government assistance. There was no difference in the length of time during which a benefit was used.
Yet when asked if they had ever used a “government social program,” individuals identifying themselves as conservatives were less likely than those identifying themselves as liberal to answer in the affirmative, even though the same respondents answered affirmatively when asked about use of specific governmental assistance policies. In other words, conservatives, leading the charge against government assistance and dependency, are no less dependent on government than anyone else but somehow lack the ability to comprehend that they are using government benefits and are just as dependent as 97 percent of the population.
One can quibble whether all of the programs fall into the same category of dependency. The G.I. Bill is, in many ways, compensation to veterans for services performed. Social Security is a return to retirees for their investments, albeit mandatory, in the Social Security program. But pulling those programs out of the analysis still leaves the long list of government assistance in the form of tax breaks for both upper-income and lower-income individuals, though upper-income individuals benefit much more from government spending hidden in the tax law.
As the author of the editorial, who also is one of the authors of the study, points out, the practice of condemning one group of Americans as, to use Ayn Rand’s terminology, “moochers,” while treating others as “producers,” is misleading and counterproductive for the nation’s overall welfare. For one group of dependent Americans to attack another is absurd, especially when the attacking group thinks it can pull off this sort of nonsense because its dependency is not as visible. It is not uncommon for students in middle school to form cliques and to anoint themselves as “cool,” when, in fact, as responsible adults would note, they’re not “cool” and certainly not “cooler” than the ones they exclude from their cliques. That sort of behavior, one would hope, disappears as middle school children mature and acquire, during their 20s, fully developed frontal lobes. Unfortunately, the “attack those we think aren’t as good as us” approach that has infected one of the political parties since the early 1990s has sparked partisan warfare, Congressional impotence, political obstructionism, and distraction from attention to the problems that affect everyone and that need to be solved. It’s time to take control of the political process away from the middle schoolers who haven’t grown up.
Monday, October 01, 2012
This is a truly astounding situation. It is a problem that has existed for so long, spanning enough Administrations, that it truly can be characterized as a bipartisan problem. Problem is the nice word to use to describe this nonsense.
Perhaps I do not quite understand federal accounting practices. I have always thought that the U.S. Treasury handles money coming into the government and money leaving the government. It also, I think, handles money being moved around within the government. Of course, in most instances cash is not being transferred. Instead, debits and credits are made to the various accounts that represent the amounts appropriated to agencies and expended by agencies. But perhaps I am wrong. Perhaps it works some other way. And if so, that could be the root of the problem.
So what I think should happen, which obviously is not what is happening, is as follows. Congress appropriates, say, $100 million for Agency X. Treasury credits Agency X with $100 million. Agency X needs to pay its employees. Assume that the payroll in question is a gross payroll of $100,000, with taxes of $10,000 being withheld. What I think should happen is that Agency X orders checks or direct deposits totaling $90,000 for its employees. Treasury should write the checks or make the direct deposits only in response to Agency X’s request that includes the gross payroll and withheld tax information. Treasury not only issues the checks or makes the direct deposits totaling $90,000, charging Agency X’s account for $90,000, it also charges Agency X’s account $10,000 which it then credits to the tax accounts maintained by the IRS.
So what’s going wrong? Is Agency X writing checks and making direct deposits independent of the Treasury? That makes no sense. Is Agency X sending a request for $90,000 in checks and direct deposits for employees without mentioning withholding? That’s foolish, and ought not be permitted by the Treasury. Is the Treasury failing to ask about withholding when it receives a request to issue payroll checks or make direct deposits? Could it be that clueless? Is Agency X not even keeping a record of required withholding? That’s equally as foolish. The only thing that is clear is that Treasury is not crediting the IRS tax accounts for the taxes in question.
The federal agency tax remittance system design, both conceptually and in terms of implementation, can be and ought to be simple. But it’s not. Totally lacking are, sorry, checks and balances. Agencies ought not be issuing their own checks or making direct deposits. Treasury needs to require tax withholding information as a prerequisite to issuing checks or making direct deposits, and needs to make the transfer from the agency account to the IRS account. It’s that simple. Unfortunately, taxpayer dollars had to be expended to fund a study to determine the scope of the problem, to identify the agencies in question, and to make recommendations. Worse, the report does not explain how the agencies manage to become delinquent and instead appears to focus on what to do with delinquent federal agency accounts. Yet the more important question is how to prevent agencies from falling into delinquency in the first place. As usual, it’s almost always better, and easier, to put the effort into preventing a problem than it is to pump resources into solving a problem.