Friday, September 8, 2017

Tax Brackets and Why You Shouldn't Fear a Raise

I enjoyed a few seconds in the national spotlight this week when Adrienne Hill interviewed me for a piece on tax brackets for National Public Radio's Marketplace: Tax brackets and why you shouldn't fear a raise

For more on the history of the U.S. income tax system, tax brackets and rates, see my 2014 article, Brackets: A Historical Perspective.

Wednesday, August 30, 2017

100+ Years of the Income Tax: Putting Income Tax Reform in Context

This year I donned my suffragette
outfit in honor of the 16th
Amendment, ratified in 1913.
At the beginning of the semester, my students and I take a stroll through the 100+ years of the Federal Income Tax.

As we walk through the changes in rates over time, I ask my students to explain what was happening in U.S. history during each decade and consider how those events may have affected the tax system.

This gives us an opportunity to talk about the federal budget, budget deficits, the federal debt, fairness, efficiency, complexity and incentives. This is especially fun when tax reform is part of the Congressional agenda.

Fortunately, the history of the income tax holds some surprises. . . . 
  • Marginal Rates. The highest marginal income tax rate was 94% (during WWII) and the lowest marginal rate was 1% (during the first few years of the income tax).  

    Today our bottom rate is 10% and our top rate is 39.6% on ordinary income. The top capital gains rate is 20%. There is also a separate 3.8% rate applied to net investment income.

  • Level of Income to which Top Rates Applied. Just prior to WWII, the top rate, 81%, was applied to incomes in excess of $80 million (in today's dollars). Today, the top rate of 39.6% is applied to ordinary income in excess of  $418,400 (for unmarried individuals) or $470,000 (for couples who are married filing jointly).
  • Number of Brackets. We have had as many as 56 rates and tax brackets (during WWI and WWII) and as few as 3 (after the Tax Reform Act of 1986).

  • Personal Exemption and Standard Deduction. We have always exempted some income from the scope of the income tax. For the first few years The income tax was levied only against incomes in excess of $70,000 (in today's dollars). This year the standard deduction plus the personal exemption is $10,400 for an unmarried individual.
  • Inflation. We have a system of graduated rates. In general, an unmarried individual will not pay income tax on his first few dollars of earnings because the standard deduction and personal exemption shield that income from tax. The next $9,350 is taxed at 10%, the next $28,625 is taxed at 15%, the next $53,950 is taxed at 25%, and so on for the 28%, 33%, and 35% rates until 39.6% is applied to individual income in excess of $418,400.
  • The downward curves show the
    impacts of inflation.
    The brackets are adjusted for inflation each year.  However, that hasn't always been the case. Before 1981, Congress set the rates at specified dollar amounts. As inflation reduced the purchasing power of the dollar each year, higher rates were levied against lower and lower amounts of real income. 

    In 1965 the top rate of 70% was applied to incomes in excess of $784,000 (in today's dollars). By 1981, the rates and brackets had not been changed significantly, but because of inflation the top rate of 70% was being applied to real incomes of only about $281,000 (in today's dollars).

    Congress enjoyed an annual tax increase without having to pass tax legislation. Yikes!  Fortunately, with the Tax Reform Act of 1981, we began adjusting the brackets and rates to reflect inflation.
  • War. During wars we have always increased rates, except for 2001, when we began the war in Afghanistan, and 2003, when we began the war in Iraq. Instead of increasing rates, Congress passed tax cuts in these years.
For more, see 103:3 Northwestern University Law Review 925 (2014).  For information about U.S. tax history before the Income Tax, visit Tax Analysts' Tax History Museum.

Saturday, April 8, 2017

Legal Executives at Tech Firms Promote Federal Funding for Legal Aid

Top legal executives at Cisco, Juniper Networks, Hewlett Packard Enterprise, Microsoft, Google,, Symantec, Verizon, Comcast, Yahoo, LinkedIn, NetApp, Adobe, Facebook and Twitter speak out against the defunding of Legal Services Corporation, the government organization that provides funding for civil legal services for low income Americans.

Legal Services Corporation (LSC) 
is an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid programs that help low-income Americans. Legal aid programs ensure access to justice by providing free legal help to households with annual incomes at or below 125% of the federal poverty guidelines. Clients include the working poor, veterans and military families, homeowners and renters, families with children, farmers, the disabled, and the elderly.

Wednesday, March 29, 2017

18th Global Conference on Environmental Taxation
Tucson, Arizona, U.S.A. - September 27-29, 2017
Call for Papers/Abstracts
Please plan ahead for the 18th Global Conference on Environmental Taxation! The deadline for submitting abstracts in response to the Call for Papers is May 1, 2017 and early submissions are welcome. For information about the conference and the Call for Papers, click here

This year the conference's focus is: Innovation Addressing Climate Change Challenges: Local and Global Perspectives

We are in a pivotal and defining time for global discourse on public/private sector response at all levels of government (national, state, indigenous, provincial, municipal, city, and local), to the impacts of climate change. And, GCET18 is well-positioned in its role as the leading global forum for innovative exchanges on principles, practices, and policies with respect to environmental taxation and market-based instruments.

The conference will explore various topics :
  • Climate change policy, biodiversity protection, environmental stewardship, pollution control, water conservation, land degradation, renewable energy, mining and rehabilitation
  • Market instruments such as carbon pricing, emissions trading schemes, other environmental taxes, subsidies, direct action or spending programs and tax concessions both positive and perverse.
Selected papers from the Global Conferences are published in Critical Issues in Environmental Taxation.

The conference this year will be hosted by the University of Arizona, James E. Rogers College of Law, and the Conference Chair is Mona Hymel. If you have questions, please contact her at

We hope to see you in Tucson!

Tuesday, February 14, 2017

Announcing TaxJazz: The Tax Literacy Project!

TaxJazz: The Tax Literacy Project has launched its new website.  TaxJazz provides individuals with non-partisan, non-technical, and accessible tax information to help people participate in discussions about tax policy and problems facing the nation. TaxJazz already addresses basic tax questions, such as: Why do we have taxes? Are there any legal constraints on taxation? What can be taxed? How do we decide what is a fair tax?

The TaxJazz readings, worksheets, dialogues and other materials have been used by individuals between the ages of 12 and 80 and groups in a variety of different settings including high schools, a city recreation department’s after-school program, and community senior centers. With its website, TaxJazz will now be able accessible to anyone who has a computer.

For more information, contact us!

Saturday, January 14, 2017

Tillerson Errs on Tax Subsidies for Fossil Fuels

On Thursday, as part of the confirmation hearings for Secretary of State for the Trump Administration, Rex Tillerson, CEO of Exxon Mobil, appeared before the Senate Foreign Relations Committee.

Jeanne Shaheen (D -New Hampshire) asked Tillerson whether he thought subsidies given to the oil and gas industry were still necessary, given the record profits that the industry is now earning: "At this time, when many of our oil companies, particularly large oil companies like Exxon, are reaping very good profits, do we really need to continue these subsidies?"

Shaheen noted that in 2009 the G20 (the Group of 20 industrialized nations) had pledged to phase out fossil fuels and asked if Tillerson and the Department of State would fulfill that pledge.

Tillerson denied that oil, gas and coal receive tax subsidies, responding, "I'm not aware of anything the fossil fuel industry gets that I would characterize as a subsidy. It's simply the application of the tax code broadly — tax code that broadly applies to all industry. ... So I'm not sure what subsidies we're speaking of."

Fossil fuels have enjoyed a continuing infusion of special tax subsidies for over 100 years. 

Oil, gas and coal industries *do* receive many subsidies that are shared with other industries. They include provisions under Sections 167 and 168, for accelerated depreciation, and Section 199, the domestic production deduction. They share the benefit of tax-exempt bonds for certain public energy-related projects under Section 103, and for certain private energy-related projects under Sections 141 and 142 with renewable energy developments. Several tax credits are shared with other groups in the energy sector, such as the Energy Research Credit under Section 41, and the Gasification Credit, under Section 48B, which provides a benefit to qualified projects to convert coal, petroleum residue, biomass, or other materials into a synthetic gas.

Fossil fuel companies also enjoy a special exemption from the corporate tax. While, generally, publicly traded entities are subject to the corporate tax, section 7704(c) and Section 851 permit fossil fuel investors to enjoy pass-through taxation, avoiding the corporate “double tax.” Public trading makes the investments highly liquid and minimizes information and transaction costs. The structures are permanent and lend significant legislative certainty to investors about the tax benefits they are to receive. The fact that this special subsidy is also enjoyed by those with timber interests and the financial services industry does not make it any less a subsidy.

Others sometimes suggest that deferring or delaying the payment of tax does not provide a benefit. For example, a contributor to Forbes, Tim Worstall, recently argued that deferring or delaying paying taxes is not really a subsidy. Most businesses understand the time value of money and use it to their advantage. In the simplest terms, if I pay taxes today, those are funds gone from my pocket and I cannot spend them on anything else. On the other hand, if I can defer paying a sum for five or ten years, I can invest the sum, enjoy gains from compound interest (or better yet capital gains), and still pay the tax at a later date. Delaying and deferring can result in substantial tax savings. Plus, firms that use loans finance their investments gain an even higher return and pay even lower taxes, since they enjoy the tax benefits today, but delay any actual outlays of cash to make these investments until they repay their loans. By using debt financing to purchase equipment that is subject to accelerated depreciation or expensing, a firm can enjoy a negative tax rate.

There are also many tax subsidies that are exclusive to fossil fuels. Oil, gas and coal may claim deductions in excess of their investment through percentage depletion under Sections 611-613A and 291. They may deduct certain expenses immediately when they would otherwise be required to capitalize and recover their investments over time. These include a deduction for tertiary injectants (fracking fluids) under Section 193, and an election to expense intangible drilling costs (under Sections 263(c) and 291). Certain coal royalties enjoy reduced tax rates under Section 631(c). The fossil fuel industry is allowed to treat royalty payments as foreign taxes paid, applying the foreign tax credit to offset U.S. income taxes. They also benefit from special credits, such as the advanced coal project credit (Section 48A), the Indian coal credit (Section 45), the enhanced oil recovery (EOR) credit (Section 43), the marginal wells credit (Section 45I), and the carbon dioxide sequestration credit (Section 45Q)  Fossil fuels enjoy exemptions from the application of certain rules. Working interests in oil and gas property enjoy an exception to the passive activity loss rules under Section 469. There is a safe harbor from arbitrage rules for prepaid natural gas contacts under Section 148. Finally, they receive subsidies to support environmental compliance. There is a safe harbor from arbitrage rules for prepaid natural gas contacts under Sec. 148. Finally, they receive subsidies to support environmental compliance. All of these subsidies are explained in more detail in my 2016 article "Picking Winners and Losers: A Structural Examination of Tax Subsidies to the Energy Industry."

While occasionally people will suggest that tax benefits are not really subsidies, this notion has been long discredited. As Dan Shaviro is fond of saying, Congress can give a grant of $2 million to the aerospace industry to design a fighter jet or it can grant a $2 million tax credit for that fighter jet. The benefit to the industry is the same. Congress appears to prefer tax subsidies to direct spending because people succumb to the "tax benefit is not a subsidy" fallacy, because the subsidies are less visible and because they are not scrutinized and fought over each year the way the federal budget is.

Eliminating the tax subsidies to fossil fuels would save approximately $26 billion in tax revenues over five years. This sum may seem rather modest in the context of budgetary spending. However, when we take into account all of the extensive health and other social and environmental impacts, giving subsidies to fossil fuels is not only wasteful, but ludicrous.

Saturday, October 29, 2016

Making It Stick II

I wrote an article last week about advice for students in Make It Stick: The Successful Science of Learning, by Peter C. Brown, Henry L. Roediger III, and Mark A. McDaniel.

The book also contains sage advice for teachers, much of which is especially pertinent to law school educators and administrators. With declining law school enrollments and falling bar passage rates, the American Bar Association in 2014 revised its Standards and Rules of Procedure for Law Schools relating to learning outcomes, credit hours (including provisions for student out-of-class coursework) and objective policies and procedures for determining the credit hours to be awarded for coursework. Making It Stick describes dozens of practices to help legal instructors remove obstacles to learning, facilitate understanding, and promote success in achieving student learning outcomes.

They advise teachers to (1) explain to students how learning works, (2) teach students how to study, (3) create desirable difficulties and provide a high level of structure in the classroom, and (4) be transparent. I incorporate all of these practices into my classes.

1. Explain to Students How Learning Works.

Students often arrive at law school with the belief that you either have innate talent or you don’t. This fixed mindset is generally reinforced by the first year curriculum. Most first year first semester courses involve a steep learning curve that requires students to learn to read cases, extract legal rules, reason by analogy, identify legal issues in complex fact patterns and write coherent, persuasive analyses about those issues. While the first year student may get feedback in her legal writing class, most first year classes are taught in lecture format or using the Socratic method. The students have no interim assignments and receive no feedback to help them evaluate whether they are on track. Only with the release of the first semester grades do students receive any concrete information about whether they have learned the material to the necessary standard, mastered the essential skills to succeed in law practice, or even attain the knowledge base pass the bar exam. At that point they are often well into the next semester with its new demands and feel like they do not have the time to re-hash their past performance even though this is the most important part of the learning process.

At this point, their perceptions of themselves as either the ones who have “got it” or the ones who “don’t” begins to harden. The ones who have “got it” sometimes begin to avoid challenges that would draw into question whether they have “got it” (or negatively impact their GPA) and the ones who believe that they “don’t” sometimes lose faith that hard work will get them anywhere.

As the authors of Make It Stick explain, students need to be taught at the very beginning of classes that:
Learning requires that chemical changes take place in the brain. The more effort and the more challenge, the more effective the learning process.
When learning is easy, it is often superficial. It is also easily forgotten.
We learn more effectively when we wrestle with new problems before being exposed to the solution. Even though it’s emotionally unsettling, it’s also more effective to think hard about how you’d answer a question before you have access to the answer.
Learning necessarily involves setbacks and failures. This feedback is often precisely what we need to adjust our strategies and to achieve mastery.
To achieve mastery, we must surpass our current levels of ability.

Therefore, I share excerpts from The New Science of Learning and Make It Stick with my students at the beginning of the semester and connect that information about how we learn with the organization of the assignments, the graded exercises and exams, and the learning outcomes identified in my syllabus. I especially encourage students to adopt a growth mindset. As Henry Ford said, “Whether you think you can or you think you can’t, you’re right!” I explain that struggle increases your intellectual abilities in the same way that exercising or lifting weights increases your physical strength.

2. Teach Students How to Study.

Students may arrive in law school with the belief that re-reading the texts and highlighting or underlining key material is sufficient engagement for them to remember and use the material. They may have habits of procrastinating and then pulling an all-nighter and cramming to meet a deadline. These practices are, of course, ineffective in professional education. First, cramming doesn’t last. The material is not retained for the long term. Second, rote memorization does not help students apply the material, which is what they’ll be asked to do for their course exams and for the bar exam. Third, distributed learning is far more effective. Student recall and mastery improves when questions are asked several times over increasing periods from the date the material was first presented and when different topics or problem times are alternated. Fourth, interacting with the material is the key to learning. When students are required to perform some task associated with the material they are more likely to remember it. If the practices are identical to key skills they will be using in a professional capacity, then the students can see their progress over time and master practices that will ensure their long-term success.

3. Create Desirable Difficulties and Provide a High Level of Structure in the Classroom.

As the authors of Make It Stick explain, high structure classes with weekly and daily low-stakes exercises provide students with opportunities to practice their skills. The best book I have read on classroom structure was written for elementary school teachers. Nevertheless, The First Days of School: How to Be an Effective Teacher, by Harry K. Wong and Rosemary T. Wong, provides a succinct and valuable set of guidelines for anyone who has begun their teaching career without any prior formal training.

Other effective classroom practices promoted in Make It Stick include requiring the students to generate answers to problems they do not currently know how to answer, and asking them to elaborate, to remember older material and connect it to new material. Finally, spacing out the material, interleaving the material, and varying the topics and the problems has been very effective in enhancing student learning. All of these practices reinforce the neural pathways of learning.

In my classes, I have weekly assignments. In a class like Income Taxation, students must learn several essential skills as well as learn key material. I have divided the course into units based on the types of material to be learned. I assign sections of the tax code and regulations that the students must read. This is challenging, especially for students who have completed only the first year curriculum, which case-based and seldom involves statutory reading and interpretation. To facilitate this work, I have developed worksheets that ask students specific questions about each code section or regulation and direct the students’ reading. By the end of the course students often express surprise at how much their skills have improved in reading the code and the regulations. It’s gratifying for them (and for me) to see how daily practice can so quickly lead to accomplishment.

I also assign tax problem sets each week. I ask the students to attempt the problems and I give them credit for giving the homework a good faith effort and turning it in. As the authors of Make It Stick explain, students learn more effectively when they attempt to do the problems before they’ve been shown how to solve those problems. They are also more attentive when I go over those problems in class.

Finally, as the authors of Make it Stick indicate, while high stakes tests can be stressful and anxiety provoking, students accept quizzing when the stakes are low and when they know in advance the dates the quizzes are going to occur. I give multiple choice clicker quizzes either at the end of a unit in class or in review sessions I provide every other week. When the technology is available, clicker quizzes give students anonymous feedback about their performance. Students want to see how they are doing, but not at the expense of embarrassing themselves in front of their professor or before other students. Clicker quizzes also allow the students to contextualize their performance by giving them feedback about how the rest of the class is doing as a whole.

Spacing out the material, interleaving the material, and varying the topics and the problems has also been very effective in enhancing student learning. The review sessions, which I hold every other week, give the students another chance to apply what they’ve learned in prior weeks. By working through another round of problem sets or past mid-term or final exams, they reinforce their learning and develop a higher level of mastery. Occasionally, I will send students to the blackboard to let them collaborate on the review problems.

4. Be Transparent.

Finally, Make It Stick encourages teachers to be transparent. The syllabus contains the information on their weekly assignments, information on way they will be graded, and a rubric with respect to class participation and how that will be evaluated. When I give midterm examinations and finals, I post prior exams and at least one example of the rubric I used in grading that exam or a copy of the “best of” student answers that I delivered to the prior class. When I grade, I use a rubric and key the student points to the rubric. After the exam, I either go over the rubric in class or provide a copy to the students so that they can compare their answers to the rubric.

Finally, reflection is important. It’s important for professionals to use the feedback they’ve received to improve their performance over time. I ask students to spend a few minutes reflecting on what they learned from their exam and ask them “What would you do differently next time?”

These reflection questions are the most important part of every semester for me when I evaluate my own teaching. As I grade my students’ exams I ask: “What did all of the students get correctly? What did most of the students miss? How can I explain this more clearly? What problems can I assign that will help the students master this material?”

This, and the information I receive on the student feedback forms, is what sticks with me.