Thursday, February 05, 2009

Geithner, Daschle, Killefer, and Me

With the tax troubles of President Obama's cabinet nominees dominating the headlines these days, even tax professors are having their moments in the media cycle. For no obvious reason, I found myself being interviewed on San Francisco's KCBS radio yesterday morning. The interviewers were very well informed and asked good questions, and their first question best captured the mood of the moment: "Does everyone in Washington have tax problems?"

Of course, I am not "in Washington," even though I am in Washington. I could do my job in, say, Newark or Greenwich Village. (In fact, I have.) Moreover, despite my training in economics and law, I am (happily) on no lists for possible appointment to government office. Still, I could not help but wonder what would happen if my tax situation were to become a matter of public debate.

I actually have recently become aware of an issue that might raise an eyebrow or two. My employer provides me with a laptop computer (in addition to my office desktop computer), which I use while traveling to conferences, etc. I also, of course, keep it at home when I am not on the road, using it for everything that I do on a computer. Since much of what I do is not job-related, I am using the computer (that the university owns) for personal as well as professional matters. As a matter of tax law, the question is whether the professional use is enough to prevent this from being counted as income to me, in the same way that use of my desk chair at work is excluded from my income. If so, this would be a deviation from consistent income tax rules, because my employer's provision of this computer makes it unnecessary for me to spend my own money on a laptop computer (which I surely would otherwise do). If I get to use this computer tax-free, I am being treated better than people who pay taxes on their salaries and then use their after-tax income to buy a laptop computer to use at home.

Stated this way, it becomes obvious that the only way I should be able to exclude the value of this benefit from my income is if the Internal Revenue Code explicitly allows me to do so. Otherwise, the default is for me to pay tax on the value of what I am receiving. The thing is, I had never even thought about this until a couple of weeks ago, when the issue was raised on the TaxProf blog (linking to an article from the Chronicle of Higher Education). As it turns out, there is no provision in the Code that excludes university-provided laptops from being taxable. Since I received the computer on Jan. 1, 2007, I need to amend my 2007 taxes and to get this right when I do my 2008 taxes on April 14 of this year.

Why did I not get this right in the first place? It simply never occurred to me. Once I thought about it, it was obvious that this was presumptively taxable and that I should do a bit of checking. Still, I made an error in my favor on my taxes; and if this had come up during a vetting process, the natural thing to do would be to verify that I had made an error and then to pay the unpaid taxes. If asked, my only defense would have been, "I never thought about it until now."

Granted, we are dealing with very small sums of money, not the tens of thousands that Timothy Geithner paid years after the fact or the $140,000+ that brought down Tom Daschle. Even Nancy Killefer's situation is different from mine, because her continued failure to pay a couple of hundred dollars in employment taxes resulted in a lien being placed on her property. Still, when the economy is in shambles and people are worried about losing their jobs, homes, and life savings, any statement that I "only" underpaid by a hundred dollars or so (I haven't done the computations yet) would surely be met with derision. "Wouldn't it be nice if everyone could decide to knock a hundred dollars or so off their taxes?"

One positive outcome from all of this is that I now have removed any doubt about my eligibility for government service. Everyone can breathe easier. Beyond that, though, the current tax controversies are troubling to a large degree because those KCBS interviewers are right to think that everyone -- in Washington and elsewhere -- might have "tax troubles." This is not, however, a persuasive argument that the tax code is too complicated or that these employer-provided benefits should be untaxed. The tax code is too complicated, but even a perfectly stripped down tax code must deal with the messy realities of life. Many forms of compensation are not paid in cash. I very explicitly negotiated to receive a laptop as part of my compensation, and I accepted a lower cash salary in return. If this type of thing is excluded from taxes because "it's too complicated" or "people would never think about that," we open up yet another loophole allowing people to avoid taxes by being paid in things rather than in dollars.

On the other hand, there are still plenty of people who are guiltlessly non-compliant. We can do as much as is reasonably possible to let people know about the things that might not seem obvious to them that must be included in income, but life is too rich and varied to cover all of the possibilities in advance. When errors are discovered, they should be rectified. I hope that we have not reached the point where every tax error is disqualifying. I also hope, however, that the current situation does not encourage Congress to undermine still further the consistent application of tax principles.

-- Posted by Neil H. Buchanan


Michael C. Dorf said...

Without having checked the wording of the Code, I think this is quite complicated (and interestingly, this very example came up in a conversation about Daschle I had with a colleague yesterday). Suppose you made it a point NOT to use the laptop for personal matters. Would you still be on the hook for the taxes? Or is the key that you COULD use the laptop for personal reasons? What if a company provided some of its employees with laptops instead of desktops at their desks because these employees were expected to bring their laptops to certain meetings? Would the tax treatment differ depending on whether the company had a rule forbidding the removal of the desktops from the company headquarters? If so, what if an employee routinely violated the rule by bringing the laptop home and there using it for personal email and games? In your actual case, are you liable for tax on the full value of the laptop or only on the proportion you use for non-work activities? (By comparison, I recall that one is sometimes entitled to apportion costs for a home office in figuring deductions.) Finally, one last hypo: Suppose that a tv station provides a professional stylist to attend to the hair of its on-air news team (as I imagine most do); are the on-air staff liable for tax on the value of the haircuts they thereby avoid having to pay for, even though the tv station cuts their hair to a standard that they themselves would not seek if they had to foot the bill themselves? Are they liable only for the tax on the cost of a haircut at Supercuts?

I don't expect answers to all of these questions from Neil (although I'd be delighted to get any). I raise them simply to point out that the general principle is quite difficult and that it's impossible for the Code to provide specific rules for each possible variation.

Jamison Colburn said...

Ok. But the car/driver is a little more obvious, isn't it? And are you waving a red flag at the IRS, Neil? ;)

Sarah Lawsky said...

Mike--what's really interesting is that every single one of your hypos actually does have a specific answer. While the Code can't provide all the answers, the IRS can and does provide specific guidance for many, many factual situations, either via regulation or ruling. This is because tax law involves actual money (unlike most con law, you dirty hippie), and so most every tax hypo you or I can think of has (probably) been tried by someone and addressed by the law.

What's truly shocking, then, is that Geithner was doing his own taxes, at least for some of the years in question. A tax professional would either have known the answers or would have noticed an issue and known where to find the answers.

Sarah L.

Michael C. Dorf said...

Sarah: You give me enough time and I'm sure I can come up with a case that neither the Code nor the regs answers. But more importantly, what are the answers?!

Sarah Lawsky said...

I'm sure you could come up with a question that neither the Code nor the regs answers. And you might well be able to come up with a question that is not resolved by the Code, the regs, cases, or any IRS guidance. The latter sort certainly exists, and I came across a few of them in my five years of tax practice, but they are quite uncommon, in my experience.

As for the answers to your question--here are they are, with two caveats. First, I did the research very quickly and may have missed something (i.e., additional authority may apply, and I know for a fact that the rules get even more specific in terms of the amount of depreciation that may be taken each year, etc.). Second, this is NOT to be relied upon as tax advice, whether to avoid penalties or otherwise--for lots of reasons, but in part because some of this might be wrong in some circuits, etc.

I'm not going to bother describing the legal analysis, but here are the bottom-line answers:

The home computer question is addressed in the Code and regs, specifically Section 280F and the accompanying regulations. An employee must include the value of personal use of a computer provided by an employer (unless the amount of personal use is de minimis). To allocate between business and personal use, divide the number of hours the computer is used for business purposes during the year by the total number of hours that the computer is used during the year. Treas. Reg. 1.280F-6(e)(3). Home use of a computer also is specifically subject to increased substantiation requirements, and the value of business use of a computer may not be excluded unless the employee substantiates business use of the computer. IRC Treas Reg. 1.274-5T(e)(1); 1.132-5(c). These rules do not apply to a computer that is used exclusively in the office (e.g., a desktop). IRC 280F(d)(4)(B).

Television entertainers can deduct/exclude the entire cost of hairstyling, cosmetics, etc., e.g., Genck v. Comm'r, TC Memo 1998-105, but not of fashionable clothes worn on-camera, e.g., Hynes v. Comm'r, 74 T.C. 1266 (1980).

andy grewal said...

"And you might well be able to come up with a question that is not resolved by the Code, the regs, cases, or any IRS guidance. The latter sort certainly exists, and I came across a few of them in my five years of tax practice, but they are quite uncommon, in my experience."

Really???? Seems like 90% of my time in tax practice is spent addressing questions that have no answers.

Sarah Lawsky said...

Andy--Sorry, I should have been more clear. I was thinking of questions in the area of the business/personal borderline, which has been pretty well hashed out (though not always in a conceptually consistent way).

Overall, whether you run into unanswerable questions in practice depends, I think, on what kind of practice you have. It's definitely hard to tell what the outcome will be with fancier transactions, but I didn't do a lot of those for my (generally risk-averse) clients.

At any rate, I definitely agree that tax law overall is not certain!

Paul Scott said...

Completely off this topic, but touching on one you have written about several times before.

I complained repeatedly that your attacks on Obama's selection of Warren were nothing because it was a bit part symbolism and not policy. Well, the above link is now policy and completely inline with the Warren selection.

Obama appears to be comfortable, now that he is in office, allowing "faith-based" organizations to continue receiving government money even if they discriminate in hiring. That is a real betrayal, and one perhaps signaled by Warren's selection.

Neil H. Buchanan said...

Thanks to Paul for this update and for acknowledging that my concerns are apparently being validated. Of course, I would rather have been wrong ...

With my progressive religious background, I am hyper-sensitive to anything that smells like accommodation to the fundamentalists. They do not compromise.

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