Monday, August 29, 2005

What a surprise

From today's New York Times:

ARMY CONTRACT OFFICIAL CRITICAL OF HALLIBURTON PACT IS DEMOTED

A top Army contracting official who criticized a large, noncompetitive contract with the Halliburton Company for work in Iraq was demoted Saturday for what the Army called poor job performance.

The official, Bunnatine H. Greenhouse, has worked in military procurement for 20 years and for the past several years had been the chief overseer of contracts at the Army Corps of Engineers, the agency that has managed much of the reconstruction work in Iraq....

The demotion removes her from the elite Senior Executive Service and reassigns her to a lesser job in the corps' civil works division.

Ms. Greenhouse's lawyer, Michael Kohn, called the action an "obvious reprisal" for the strong objections she raised in 2003 to a series of corps decisions involving the Halliburton subsidiary Kellogg Brown & Root, which has garnered more than $10 billion for work in Iraq.

Known as a stickler for the rules on competition, Ms. Greenhouse initially received stellar performance ratings, Mr. Kohn said. But her reviews became negative at roughly the time she began objecting to decisions she saw as improperly favoring Kellogg Brown & Root, he said....

Sunday, August 28, 2005

Culture wars of the past

It's funny how culture battles of the past smolder on even years later. I have in mind here a battle between factions on the same side, not a divide on the level of Jerry Falwell versus Jerry Garcia, say. Rather, Beatles versus Stones, that staple of the late 1960s.

The dying embers of this ancient dispute were revived by a NY Times op-ed about the Beatles and their lasting impact. I didn't personally think the op-ed added a whole lot or said much of enormous interest, so I figured the Times' internal op-ed selection politics must have been at work in some unknown way. But judging from the volume of letters about the op-ed that the Times published in today's Week in Review, it must have been a real audience pleaser.

Anyway, two of the letters revive the Rolling Stones fans' side of the dispute. The op-ed had obtusely cited the Beatles' "Revolution" as indicative of the revolutionary political spirit of music at the time, so the first letter rightly points out that "Revolution" is anti-political activism, and indeed "the Beatles' declaration of blissed-out withdrawal," whereas the Stones sang that "the time is right for fighting in the streets."

Yes, and (showing my age) I actually remember how much the radio stations played "Revolution" even though it was the "Hey Jude" B-side, a fact that my brother and I attributed to the quietistic message radio stations hoped people would glean from it. But on the other hand, "Revolution" is intense and heartfelt (certainly not a "blissed-out" song), reflecting taking the violent emotions of the time seriously, whereas the Stones' "Street Fighting Man" comes off in retrospect as phony and insincere playing to the audience (albeit with a great riff). Showing once again one of the Beatles' chief advantages over the Stones. Perhaps because they were provincials who had to make things up for themselves rather than (until they made it big) plugged-in London hipsters, they were less prone to just do the cool thing rather than their own thing.

The second letter dismisses the Beatles as a "kid's band, perfect for daydreaming and first romances, but not for the long haul, where only the blues and the toughest rock 'n' roll [a la the Stones] can help see you through." Yes, it certainly is easier to keep going if you don't need fresh inspiration but can just keep on doing the same thing with less and less energy and originality for decades on end.

For almost all of the great 1960s bands that kept going (e.g., Stones, Who, Kinks) I greatly prefer what I call the "before the bombast" phase of their work, meaning the early stuff before they got too grandiose and/or rigidified. Making their more inspired work pretty much coterminous with that of the Beatles, leaving aside the Stones' Exile on Main Street and Some Girls.

But of course the real dichotomy of the 1960s, identified once in a Brian Eno interview that I read, was Beatles versus Velvet Underground. With all due respect to the Stones' great early work, this one is a tougher call. Interestingly, while Eno of course endorsed the VU side of this divide, both he and John Cale (of the VU's first two albums) have done a fair amount of work that sounds more like a thoroughly de-sillified Paul McCartney than like "Heroin" or "The Black Angel's Death Song."

I have been listening in the last few days to a 1970s Cale album (Paris 1919) as well as the Eno-Cale album from 1990, both of which are pretty and melodic. So who needs the great divides eventually.

Thursday, August 25, 2005

Alan Auerbach on consumption taxation

Alan Auerbach's Wall Street Journal op-ed (subscription required) concerning the consumption tax option in fundamental tax reform is, of course, excellent and well worth reading. But his analysis reflects some underlying assumptions that I have for a long time questioned.

Though not a consumption tax advocate (his aim is simply to explain the main dimensions of the choice), Alan cites studies from his academic work suggesting that a consumption tax could increase GDP, in the long run, by as much as 9 percent (though perhaps only half as much - still not a trivial gain - if current progressivity is maintained).

Although I am more of a consumption tax advocate (assuming retained progressivity) than he is, I question these studies due to an important underlying assumption that he is entirely straightforward about. A key component of the GDP (and efficiency) gain that he finds is the wealth levy on holders of existing assets that would arise upon enactment without transition relief. Since this is ostensibly a one-time-only wealth tax, he models it as lump-sum (i.e., as having no effect on future behavior because people do not expect their wealth to be taken again).

My objection, spelled out at length in my book When Rules Change, is twofold. First, an ostensibly one-time wealth levy will not necessarily be viewed as such, since it may show a political predilection or at least willingness to use wealth levies, hence potentially affecting people's expectations, given in particular that its logic is infinitely repeatable. (Take wealth once with the solemn promise never to do it again, then repeat complete with fresh promise.) This is not necessarily to condemn the wealth levy, but to suggest that it might have similar distortionary effects to a standing wealth tax. Who is right on this depends on how people's expectations actually end up being affected, a tricky empirical question that would likely depend on the context. Alan's view, presumably, is that the wealth levy's being a kind of byproduct of the dramatic change in tax base makes the claim that it is being levied once and once only more politically credible. Certainly not a silly view, but consider that rate increases in a consumption tax can have the same wealth levy effect as introducing the tax (which is itself merely a rate increase from 0% to whatever is the starting rate or set of rates). And consider that the plea for transition relief would presumably have been made and consciously rejected by Congress, adding to the likelihood of its affecting expectations.

Second, I think of the wealth levy as conceptually and practically distinct from the shift from an income tax to a consumption tax. As I discuss in When Rules Change, it results, not from the change in tax base itself, but from the change in what I call "accounting methods." That is, it results from shifting from a system with income tax style accounting, where certain expenses are capitalized and allowed only over time, to a system with cash flow accounting or expensing of all business-related outlays. Yet one could have a consumption tax with income tax-style accounting (deferred deductions but interest on basis to make them expensing-equivalent in present value). Indeed, David Bradford actually proposed this in his later X-tax refinements because he didn't like the transition hit that Alan relies on. In theory, moreover, though making it work would be tricky, one could have an income tax with expensing-style accounting (e.g., you are allowed up front the present value of the entire future stream of deductions for economic depreciation).

If you like the ostensibly one-time capital levy, you could have it without switching tax systems. As Bradford showed, wiping out income tax basis, once and once only, while otherwise retaining the current system would impose a comparable transition hit, although admittedly it might be trickier to make people believe the "once and once only" claim. Or we could enact, say, a one-time 25% wealth tax, plus a constitutional amendment to stop us from doing it again.

At the least, the merits of the wealth levy seem to me analytically separate from the income to consumption tax change, since it results from a conceptually distinct "accounting" change and could be done without the broader change (or not done while doing the broader change).

The 9% GDP growth finding must therefore be viewed in the context of its including the impact of a wealth levy that is distinct from the change of tax base as such (even if brought about thereby), and that is assumed to be credible to prospective investors as a one-time-only event.

Alan and I have discussed this issue in the past, and I think we agree about the basic analytics. Perhaps we will have a chance to discuss it further. For those who follow the NYU Tax Policy Colloquium, which I co-taught with David Bradford until the tragedy last February, I will be co-teaching it with Alan in winter/spring 2006, which he will spend at NYU as a visitor.

Wednesday, August 24, 2005

Back from vacation

I'm just back from vacation with the fam on Montauk, LI, jumping waves at the beach on the ocean side when not grilling various ocean or land meats or playing either miniature golf with my kids, or else Scrabble or the highly recommended Blokus (which ought to be called "Lebensraum") with my wife. She thinks my playing style in these games is too ruthless (I think it's simply the logic of how to play the games), but has become persuaded that she has to match it. Tit for tat, the oldest rule in the book.

Beachtime reading:

(1) Levitt & Dubner, Freakonomics - a fun read though not much that is new for people who already know about the economics of information and about Levitt's often very interesting research.

(2) Carl Hiassen, Skinny Dip - delightful genre fiction, with a wonderful comic writing touch.

(3) Kang Choi Hwan, The Aquariums of Pyongyang - chillng look inside the North Korean gulag (sorry for the cliched adjective, but it's too apt to change).

(4) Mary Cantwell, American Girl - well-written memoir of a quiet childhood.

(5) John M. Barry, The Great Influenza - horrifying story, albeit with some standard nonfiction bestseller genre touches, of the 1918 horrors that may have killed 50 to 100 million people worldwide, aided by US government decisions of such chilling stupidity [less of a cliche to use the word here] as to bring to mind, well, the present. Writing style is a bit tired and annoying sometimes - lots of one-sentence paragraphs that might as well have exclamation points - but worth reading for the content.

Sunday, August 14, 2005

Cindy Sheehan

One interesting thing about the Cindy Sheehan story is that it is potentially such an easy opportunity for Bush to score political points. The big focus is on why he won't meet with her. Well, it would be pretty darned easy for him to meet with her. A lot easier than, say, making any headway in the Iraq debacle. So it is a politician's dream: he is facing growing demands that he do something that would be incredibly easy for him to do.

Maybe that is where we're headed. But between Bush's mania for showing that he never gives in or changes his mind, and, I am guessing, a feeling of terror about having to leave his protective bubble for a few minutes and meet a woman who is angry at him because she lost (he lost) her son, perhaps this incredibly easy thing is more than he can do. We will see.

Saturday, August 13, 2005

A story for Krugman?

I heard an interesting tale about Bush Administration numbers fakery today, actually from my parents (who certainly have no inside information). They noticed that lately, whenever you hear about the Administration's inflation figures, for example on news radio, it is always about something called "core inflation."

Core inflation is an inflation calculation minus information about food and energy.prices. These are excluded from the measure on the view that they are more volatile, presumably because they are subject to such shocks as a hurricane or drought that destroys crops, or an international oil market disruption. This may distinguish them from structural factors in price movements that might be considered more likely to just keep going on a particular path.

Anyway, core inflation has been around as a measure since 1957. But it was not until now being treated by a U.S. Administration as the main inflation measure to discuss publicly.

Especially with this Administration's track record on - well, just about everything - it is natural to be more than a bit cynical about its reasons for emphasizing core inflation. I am reminded of their totally shifting attention from the on-budget deficit, which excludes the Social Security surplus, to the unified budget deficit, which is smaller by reason of including it.

In short, the obvious reason that comes to mind for their emphasizing core inflation, rather than the CPI, is that it gives a lower number.

I have an even better measure to propose - the "sample consumer product inflation measure." For short, we could call this the SCPIM, to be pronounced Sick-Pim. This new measure determines the inflation rate based on a single consumer product that has been picked to stand for the rest. (Kind of like polling.) The product we will use first is televisions, or maybe flat screen TVs or some such thing. And don't whine about the need (as with polling) for a broader sample - heck, there are hundreds of thousands if not millions of TVs being sold each year.

Given how TV prices have been going in real terms (adjusting for features and quality) for at least 20 years, basing the Sickpim on TV prices is likely to show that what we really have is a deflation problem. Meaning that we need lots more tax cuts in order to stop it from getting out of hand.

On a more serious note, this shift to using core inflation, if sufficiently demonstrable, looks like a story that Paul Krugman ought to consider covering.

Wednesday, August 10, 2005

The cure for partisan bickering

Evidently, the best cure around is billions of dollars worth of debt-financed pork.

From today's New York Times, describing the miracle in which Bush actually left his ranch to go to Illinois for a public signing of the supposedly $286.4 trillion (but actually higher than that) transportation bill:

"The transportation bill includes money for thousands of projects across the country. To put it another way, it has something for every state and just about every Congressional district, as reflected in the votes that enacted it in late July: 412 to 8 in the House and 91 to 4 in the Senate.

"Critics of the bill have complained that it is wasteful. But the president, who flew to Illinois from his ranch in Crawford, Tex., rejected that view. 'It accomplishes goals in a fiscally responsible way,' he said.

"Mr. Bush heaped praise on Speaker J. Dennis Hastert, whose district includes Montgomery and who introduced the president today. Mr. Bush also had warm words for other Republicans who helped to fashion the bill and who accompanied him today: Senator James M. Inhofe of Oklahoma and Representatives Bill Thomas of California, chairman of the House Ways and Means Committee, and Tom Petri of Wisconsin, who is on the House Transportation and Infrastructure Committee.

"But in a striking example of friendliness across the political divide, Mr. Bush said he was proud to be with Gov. Rod R. Blagojevich, Senators Richard J. Durbin and Barack Obama of Illinois, and Representative Rahm Emanuel of the Chicago area - Democrats all."

This is followed by several more paragraphs of nauseating bipartisan encomiums.

Friday, August 05, 2005

The Kotlikoff tax and entitlements reform plan

The cover story in the latest New Republic is an article by the economist Laurence Kotlikoff and the author Niall Ferguson describing what they call the "New New Deal," ostensibly a plan the Democrats should advance in lieu of Bush's idiotic Social Security "reform" to show that they have constructive ideas to eliminate the fiscal gap. Early Democratic blogger responses, such as by Matthew Yglesias in tpmcafe.com and Kevin Drum in washingtonmonthly.com are not encouraging, to say the least. Apart from disliking the substance, they note that Kotlikoff and Ferguson would have to be quite mad to think the plan had possible political appeal for the Democrats at the current juncture. I myself would cut Kotlikoff and Ferguson a large break on this point, since they are trying to get the ideas out there rather than to make practical short-term political suggestions to the Democrats. So what about the substance of their plan as a longer-term objective?

A word of disclosure here: the only one of these individuals whom I know personally is Kotlikoff, with whom I am on friendly terms. I feel that if I have learned a fair amount from him, although I certainly have many disagreements with him. (For example, I see no basis for his definition of "inter-generational equity" as having all age cohorts pay the same lifetime net tax rates.) So I am predisposed to be at the least much less hostile, and all the more so because, despite my intense anti-Bush sentiments, I am certainly no conventional Democrat or even New Democrat and would be bipartisan or non-partisan if the Republicans were still sane, adult, and in favor of constitutional democracy.

Anyway, the Kotlikoff plan, as I will call it since he is evidently its main designer, has three components that I will comment on in turn:

1) REPLACE THE INCOME AND PAYROLL TAXES WITH A 33% RETAIL SALES TAX (RST) PLUS A REBATE. I'll start with the good news. The rebate is like a zero bracket but better. To illustrate, suppose we had an income or consumption tax with a $20,000 exemption and a 40% rate above that. Someone who earned or spent $20,000 would get an $8,000 benefit from the zero bracket, but someone who earned or spent zero would get no benefit, as she wouldn't have paid tax anyway. Kotlikoff gives everyone the $8,000 in effect (using my numbers). To put it another way, Kotlikoff has a demogrant instead of a zero bracket, which I would certainly say is better assuming proper integration with the welfare system (a subject I don't have space for here).

The bad news is that just about everyone with serious institutional knowledge realizes that the RST is a terrible idea administratively. A value-added tax (VAT) can be substantively equivalent, but leaves much more of a paper-matching and audit trail for compliance purposes. And existing RSTs at the state and local level have horribly pockmarked tax bases, leaving out lots of things and double-taxing others due to screw-ups with the business-level exemption. A really bad model to follow, I would say.

Also, as a business-level tax, the RST has no adjustment for personal or household circumstances, other than the amount spent on consumption. So we have the Graetz problem (from my earlier posts on Michael's idea) all over again, although at least the credit side is more spelled out.

2) PHASE OUT CURRENT SOCIAL SECURITY AND REPLACE IT WITH A COLLECTIVE "PERSONAL SEECURITY SYSTEM" - Everyone would pay what is in effect a 7.15% payroll tax up to the Social Security ceiling - so the payroll tax isn-t really repealed in full - and notionally deposit it in a personally owned "account." But the Social Security Administration would invest all the money, on everyone's behalf, in a market-weighted global index fund. So everyone would have the same portfolio and get the same rate of return (at least if they retired in the same year). Plus the government would guarantee no loss to contributors (i.e., a real return of no less than 0%).

Unlike the Bush plan, this one is fully funded - assuming Congress ignores the revenues because they are deemed to be in individual accounts - and it achieves risk-sharing among participants and economies of scale. I am liking it better as I think about it a bit more. Essentially it amounts to forcing everyone to save 7.15% of their first $90,000 of earnings and invest it prudently, assuming that Congress doesn't undo the saving by spending more and/or taxing less in the rest of the budget, which the ownership of the accounts is supposed to accomplish.

3) REPLACE MEDICARE AND MEDICAID WITH RISK-ADJUSTED VOUCHERS THAT GIVE EVERYONE THE SAME BASIC HEALTH INSURANCE COVERAGE FROM PRIVATE INSURERS - For example, you might get a $150,000 voucher if you are 75 and have colon cancer, as opposed to a $3,500 voucher if you are a healthy 30-year old single (their example). Again this raises issues I can't discuss in this already-long entry, but this is a serious idea. One question it raises is whether the government could get the pricing sufficiently well-adjusted and what would happen if it couldn't. A second is whether market forces, which the plan relies on after socializing health risk, work well enough in this particular consumer market. Medicine is a pretty bad market no matter what (consumers don't know much, those who do the diagnosis have an interest in selling more services, etc. - think of auto repair mechanics but with higher stakes). So market solutions may not work very well here, although one can be confident that non-market solutions won't work very well either.

Anyway, this is a serious plan apart from the retail sales tax. Why not make that a VAT, or better still an X-tax so there can be brackets, if desired, not limited to the better-than-zero-bracket aspect of having a demogrant?

Thursday, August 04, 2005

Presented without comment

From today's New York Times:

President Bush has never exercised his veto power, but he brandished it over major transportation legislation for two years, threatening Congress with the V-word should lawmakers break the bank in pursuit of home-state road and bridge work.

So when Congress delivered transportation legislation with a price tag put at $286.4 billion, the administration claimed victory, noting the final amount was just $2 billion above the White House's limit and far below what senior members of Congress wanted.

But as details of the measure came under closer inspection this week, the spending picture got a bit blurry. In a piece of legislative legerdemain, Congress managed to stuff an extra $8.5 billion into the highway bill and still meet Mr. Bush's demands by requiring that the added money be turned back to the Treasury on Sept. 30, 2009, the day the bill expires....

Budget watchdog groups, already upset at spending they equate to highway bill robbery, say the maneuver is the crowning offense perpetrated by a profligate Congress and exposes the administration as co-conspirators.

"They have this paper tiger approach of holding down the total cost when in reality Congress got its way," said Steve Ellis, vice president for programs at Taxpayers for Common Sense. "Everyone gets to walk away happy."

He and other critics portrayed the maneuver, known in federal budget parlance as a rescission, as a classic example of using the calendar to mask spending excess. They doubt the money will ever be seen again, noting that Mr. Bush and many of the lawmakers responsible will no longer be in office when time runs out on the new highway plan….

President Bush is apparently not disturbed, telling an audience in Texas on Wednesday that he intends to sign the highway measure soon. "We had a little problem getting that bill done over the last couple of years because we had a disagreement about the right number," he said. "I felt that the number ought to be a fiscally responsible number. We worked hard with members of the Senate and the House. I'll be proud to sign a fiscally responsible highway bill next Wednesday in the state of Illinois."

Friday, July 29, 2005

Fiscal language watch

Senator Jim DeMint, sponsor of the Senate bill that would divert annual Social Security operating surpluses into newly created private accounts, is quoted in this week's Tax Notes Magazine as saying that Congress should act on his bill first. Then, once the annual surpluses have thus been "saved," there will be plenty of time to worry about long-term solvency.

This is certainly an interesting use of the word "saved." He proposes to create new benefits, apparently without any financing whatsoever until participants' traditional benefits are ostensibly cut back later on to pay back the implicit loans, and thinks or at least says that money is thereby being "saved."

If the plan passed, Congress would no longer be "spending" the Social Security surplus. True, so far as we can tell it would be spending just as much as previously, and borrowing to replace the diverted funds. But at least it wouldn't be spending those very dollars. It would instead be spending other dollars with different serial numbers printed on the front.

I have an even better idea. Congress could "save" the Social Security surplus by giving it to me. I promise to make good use of it.

Thursday, July 28, 2005

Peculiar analogies

I am reading "Harry Potter & the Half-Blood Prince," which my children of course devoured immediately upon its publication and were eager to share with me, not that I resisted. (Too bad for Ian MacEwan's "Atonement," which I kept finding myself reluctant to pick up and keep reading even though I liked or at least respected it.)

Somehow volume 6 of Harry Potter is reminding me of Anthony Powell's "Dance to the Music of Time," of all things, relating to how you get glimpses of a given character at different times, when he or she is at very different stages, and it builds a composite portrait. Somehow I doubt that many other readers, even of both J.K. Rowling and Anthony Powell, have considered this an apt analogy.

The Potter books are undeniably a compulsive read, however one rates them ultimately, and they certainly have considerable virtues as well as limitations. I was amused a couple of years back by a pompous and ponderous essay by Harold Bloom, basically, "the great man of literature reads Harry Potter to tell us whether it is any good." Somehow that essay made me think of Emil Jannings in "The Blue Angel."

By the way, has anyone heard about the upcoming sequel to Bloom's recent best seller? It's called "Where to Read and When."

Thursday, July 21, 2005

New York Times coverage of the Roberts nomination

I feel reasonably tolerant of the Roberts nomination for the Supreme Court, all things considered. He is probably similar to some conservative legal academics I know, whom I basically trust and consider reasonable even where I might disagree with them on some issues.

But does the New York Times really need to have such breathless, servile, fawning coverage? Here are some of their front page headlines on Roberts over the last two days:

"Court Nominee's Life is Rooted in Faith and Respect for Law" [Did the White House write this headline?]

"Bush's Supreme Court Choice Is a Judge Anchored in Modern Law" [I guess it's a good thing Bush didn't name a medievalist]

"An Interview By, Not With, the President" [Golly gee!!]

Even with Judith Miller in jail, the Times doesn't seem to have gotten the hang of this thing called "reporting."

Wednesday, July 20, 2005

Customer service at its best, a.k.a., DON'T USE DHL

A popular consumer item was due to arrive at our house, delivered by DHL, but they had come by twice and no one was home. So I decide to trudge to their facility at 40th Street and 12th Avenue in NYC, miles (it seemed in the glowering heat) from the nearest subway stop.

For a few precious seconds, I held the item in my hands. But then I had to give it back to them. The problem: the package is addressed to my wife, not to me. Okay, different last names, I can understand that. But what about the fact that my driver's license shows that I have the same address? And that presumably I would have been allowed to sign for it at our house?

Not good enough? What about the fact that my health insurance card has both our names?

Not good enough either. I kept my temper, and trudged the long blocks back to the subway empty-handed.

UPDATE: My strong advice to all readers is DON'T, UNDER ANY CIRCUMSTANCES WHERE YOU HAVE A CHOICE, USE DHL. The supervisor at their whimsically named "Customer Service Department" promised me a home delivery of the item the next day. I had to be home specially for several hours when this was mildly inconvenient, but I figured why not to get things resolved.

Needless to say, the delivery did not come. Presumably it will sent back to the shipper, and the comedy will have to begin all over again.

I am trying to decide what "DHL" stands for. "DH" is pretty clearly "Don't Help," but what about the L?

Monday, July 18, 2005

Possible tax angle to the Supreme Court appointment

Amid reports that President Bush may well choose a woman to fill Justice O’Connor’s Supreme Court slot, the New York Times today says that Judges Edith H. Jones and Edith Brown Clement, both of the United States Court of Appeals for the Fifth Circuit, are considered the two leading prospects among women. The Times further says that Jones is a prominent abortion foe, while Clement’s views on abortion are considered uncertain in White House and conservative circles. Gee, I wonder which of the two this leaves out in front, if this particular tea leaf is indeed the right one to examine.

While tax jurisprudence is hardly the most important issue raised by the appointment, those in the tax field may be interested to recall that Jones was the author of an egregious opinion upholding a corporate tax shelter that the Tax Court had struck down. The case was Compaq v. Commissioner, involving the purchase and immediate, pre-arranged resale of a foreign company’s stock, at a huge loss pre-U.S. tax, as a way of in effect purchasing foreign tax credits (from foreigners who could not use them) to offset other U.S. income tax liability. University of Chicago law prof David Weisbach and I criticized Judge Jones’ decision in a short piece, “The Fifth Circuit Gets It Wrong in Compaq v. Commissioner,” published at 94 Tax Notes 511 (January 28, 2002).

Views about how best to respond to corporate tax shelters may reasonably differ, and I know some good tax lawyers who are anti-shelter and yet who thought the government should have lost in Compaq under the set of arguments that it made. But Jones’ opinion was noteworthy for its misinterpreting (or, less charitably, misrepresenting) the factual record of the case, which clearly showed how completely “pre-wired” the deal was, and for its taking an extremely crabbed view of the economic substance doctrine in income tax law (a key IRS tool in combating new shelters). For example, Jones’ opinion seemed to take the view that economic substance is demonstrated whenever taxpayers either (1) bear economic risk in a deal, or (2) arrange not to bear economic risk in a deal. That doesn’t leave a whole lot of room for ever finding a lack of economic substance.

In light of the unspoken attitudes that Jones’ Compaq opinion suggests, appointing her to the Supreme Court would probably mean that there were at least three votes (with Scalia and Thomas) for scrapping the entire economic substance doctrine, which has been a central and widely accepted part of the common law of income taxation since the 1930s. Rehnquist, or his replacement if he retires, might make four, and my sense in Supreme Court tax cases is that, if a few Justices feel strongly about an issue, one or two others may be inclined to go along, as they do not care so much.

A Jones appointment would therefore seem to raise the odds of a major victory for tax shelter promoters, albeit one that Congress could call off (at least prospectively) by passing a statute endorsing the economic substance doctrine. That, by the way, would have its own ironic twist. Once the Supreme Court had changed the revenue estimators' baseline by eliminating the economic substance doctrine, Congress might be able to credit itself with billions of dollars of revenue-raising by simply restoring the prior status quo. This, in turn, might be used to “pay” for new tax breaks of some kind. A true happy ending.

UPDATE: Speculating in complete ignorance now that it's Roberts, the fact that he appears to be an establishment type rather than a bombthrower would seem to me to reduce the likelihood that he would want to throw 70 years of settled tax law into disarray.

Did Bush blink on this one, considering his usual rage-filled drive to create maximum distress? Lucky for the rest of us if he did.

Thursday, July 14, 2005

Thank goodness for honest men

I was startled some time back when the Republican leadership on the Hill picked, or at least did not veto, Douglas Holtz-Eakin to head the Congressional Budget Office and George Yin to head the Joint Committee on Taxation. They are not only highly qualified individuals, but honorable and honest.

At some point I assume the leadership will switch gears to picking hacks. But we might as well appreciate it while it lasts.

Holtz-Eakin on the favorable budget news: It should be taken "with a grain of salt. There's simply no question if you take yourself to 2008, 2009 or 2010, that vision is the same today as it was two months ago."

Goofus and Gallant

Our own Goofus and Gallant are Buddy, the cat who escaped for 4 days recently and has been on house arrest (much to the backyard bluejays' relief) ever since, and Shadow, the 14-year old exemplar who makes me proud to be a fellow mammal.

Goofus repeatedly claws his owner's briefcase, leaving scratch marks all over it. Gallant always keeps his claws sheathed when on someone's lap.

Goofus chases other cats around the house, ignoring their signals when they don't want to play. Gallant lets other cats approach him peacefully when they want a sniff.

Goofus scratches when children play with him too roughly. Gallant meows when he wants to be let down.

Goofus struts around the house with his tail in an inverted U shape. Gallant holds his tail high in the classic friendly greeting style, or swishes it when there is something he wants.

Tuesday, July 12, 2005

Strange times

What country do we live in? It's scarcely recognizable to me. Alberto Coll, the subject of this story, is a former college classmate of mine, although I didn't know him well.

Liars and crooks (bringing back happy childhood memories)

Only a complete fool could doubt that Bush was lying when he promised to fire whoever had done the Plame leak. Obviously he knew it was Rove (and perhaps Libby as well?), and was grandstanding because he figured he would never get called on it. Even back then, of course, he tipped his hand via the breezy indifference he couldn't help showing to whether the leaker was ever found.

I'm reminded of Nixon, of whom it was said that the way to detect a lie was to see if his lips were moving.

The complete stonewall they're doing now reflects their understanding of the news business, which is that if there aren't continual new twists on the story it inevitably dies. The wild card, of course, is whether Rove gets indicted.

I'm placing some hope not just on the Intelligence Identities Protection Act, which has been the most discussed, but on the Espionage Act, which says in relevant part:

"Whoever, lawfully having possession of, access to, control over, or being entrusted with any ... information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates ... the same to any person not entitled to receive it ... [s]hall be fined under this title or imprisoned not more than ten years, or both."

Pretty open and shut if Rove had "reason to believe" that outing Plame could injure the U.S. or aid any foreign nation.

Monday, July 11, 2005

Legal niceties

The United States Constitution says: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." It would be a stretch, though perhaps not an impossible one, to say that Karl Rove is literally guilty of this.

But legal technicalities aside, outing CIA agents as part of a domestic political vendetta, at the possible cost of causing CIA contacts abroad to be murdered once foreign governments figure out who the American they had met with really was, certainly fits the spirit pretty nicely. Aid and comfort indeed.

Democrats reportedly are reluctant to turn up the rhetoric on Rove, or other Bush Administration shenanigans, too high. Thus, Howard Dean is told from time to time that he should back off.

If they studied the longstanding Republican playbook, they would rethink this a bit. What they need is someone to play the Agnew role, saying without mincing words that Rove is a traitor and that Bush knowingly tolerates traitors. Then a couple of more prominent Democrats can pooh-pooh this, saying, gee, he's not really quite a traitor, I think that's a bit too strong, etc.

Nixon, when he didn't have an Agnew, would be his own Agnew, describing some scurrilous accusation about a political foe, attributed to "some people say," so that he could then piously decline to endorse it himself.

As the saying goes, politics ain't pushpin. Since political warfare can be a tit for tat game, where you tailor your level of aggressiveness to what the other side is doing, the Democrats are right to think one generally shouldn't play ball this way. But against the Bush Administration it really is the only way to play.

Judith Miller in jail

I generally support press freedoms, whether on First Amendment grounds or otherwise, on the view that the public benefits from greater access to information, including that derived from confidential sources. Still, I can't detect in myself the slightest bit of regret that Judith Miller is currently doing hard time (or, more likely, irksome but not very hard time).

Apart from Miller's being, so far as I can tell, one of the worst journalists in America, who was grotesquely and repeatedly misled by or else complicit with official lies during the U.S. march to war in Iraq, I note, as have many others, that she is not exactly protecting a whistleblower here. Rather, she is protecting leading Administration officials who used her in their drive to punish and deter dissent that took the form of exposing truth in response to officially sanctioned lies.

I wonder if Miller has only been misled and used by the Bush Administration, or whether it is worse than that. Is the Times certain of her loyalty to its interest in presenting honest reporting and in leaving partisan hackery to the Op-Ed page?