The Income Tax Paradox

Blog: The Grumpy Economist

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Abstract

The Supreme Court is hearing a case with profound implications for the income tax. WSJ editorial here and good commentary from Ilya Shapiro here. This issue is naturally contorted into legalisms:  What the heck does "apportioned" mean? How is "income"  defined legally? I won't wade into that. What are the economic issues? What's the right thing to do here, leaving aside legalisms?Three general principles underlie taxation. The most important is: The government taxes what it can get its hands on. The economists' analysis of incentives comes much later: The government tries to tax in such a way that does not set off a rush to avoidance, either legal (complex structures to avoid taxes) or economic (don't do the thing that gets taxed, like earn income). So why does the government tax income? Because, circa 1913, income was easier to measure than sales, value added, consumption, or other economically better concepts. When money changes hands, it's relatively for the government to see what's there and take a share.  Tariffs really start from the same concept. It's relatively easy to see what's going through the port and demand a share, Adam Smith, David Ricardo and free trade be damned.  But the government wanted more money than tariffs could provide. So, even if it were a good idea to tax wealth, the problem is that there is not neceassarily any cash around where there is wealth or unrealized capital gains. When you sell an asset, you get some cash, and it's easy for the government to demand it. When you do not sell an asset, you have no extra cash. It's a "paper profit." What are you going to pay the government with? This comes up in practical terms with estate taxes. Yes, we have a 40% top marginal rate wealth tax right now. (If wealth taxes are unconstitutional, why isn't the estate tax number one on the chopping block? OK, I promised not to delve in to law, but I wish someone would answer it.)  But private businesses, family farms, and the like don't have 40% of their value sitting around in cash. Unless you carve out a Swiss cheese of loopholes, and complex legal structures, you have to break up or sell the business to get the cash. That's why the estate tax has said Swiss cheese. It also has happened in the news lately with internet titans who got big stock grants at the top of the market. The market crashes. They still owe tax on the value of stock when granted. Property taxes are another case. Yes, we have wealth taxes, in the form of property taxes. (They are state and local, not federal, and the issue is federal wealth taxes.) People sometimes can own a house but not have the money to pay the tax. Wealth and unrealized capital gains are also troublesome because in many cases it's hard to know exactly how much there is. Just what is the value of a house, a building, or a privately held business? Accountants can differ, especially if taxes are at stake. The minute you tax it,  accountants also can get creative about corporate structure to game valuation rules -- voting vs. non voting shares, debt with embedded options, options to buy that are never exercised, interlocking trusts, and so forth. See above estate tax Swiss cheese.Moreover, market values change. If I pay tax on unrealized appreciation this year, do I get my money back when the value goes down next year?So you can see it makes sense: If one wants to include "investment income" as "income." then tax it when there is a definite value -- the market sale price -- and  tax it when there is some cash around to grab; when it is realized. But now trouble perks up. It's reasonably easy to turn actual income into an unrealized gain. Suppose you have some income stream, and you don't plan to spend it right away. You want to reinvest it. Rather than pay income tax on the income, then additional income tax on the interest or dividends over time, and then more income tax on the appreciation of the final sale, create a corporation or other entity; let the income flow into the corporation which reinvests it. The "corporation" could just be a shell to receive income and put it in a mutual fund. Yes, you'll still pay capital gains tax when you sell, but that's a lot less. And delay is always great. Now you know why we have a corporate income tax at all. There is no economic point to corporate taxes, and "corporations pay their fair share" is nonsense. Every cent of corporate income tax comes from higher prices, lower wages, or lower payouts to stock and bondholders. We should tax those people. And if you want redistribution, taxing the "right" people, that's a lot easier to do when you tax people. But if there is no corporate tax, lots of people will incorporate to avoid income taxes. So, we tax corporate income and then your payout. Thousands of pages of tax law and regulation follow to plug one hole after another.  After 100 years of patchwork, including some taxing of unrealized gains, it sort of kept a balance, but people keep inventing new ideas. The case before the court involves domestic owners of a foreign corporation and the treatment of the income received into that corporation abroad. So, as revealed by the pro-tax arguments before the court, we have already stepped over the grab-it-while-it's-hot line and taxed a good deal of unrealized income. There was some sort of equilibrium of not overdoing it. But not overdoing it, obeying norms and gentlepersons's agreements, is going out of style these days. From WSJ:The Ninth Circuit's opinion opened up a freeway to tax wealth and property. And wouldn't you know, President Biden's budget this year includes a 25% tax on the appreciation of assets of Americans with more than $100 million in wealth....Justice Samuel Alito asked: "What about the appreciation of holdings in securities by millions and millions of Americans, holdings in mutual funds over a period of time without selling the shares in those mutual funds?" Ms. Prelogar replied: "I think if Congress actually enacted a tax like that, and it never has, that we would likely defend it as an income tax."Well, it's also called an estate tax, and we have it now!  There you have it. The Biden Administration believes the Sixteenth Amendment lets Congress tax the unrealized appreciation of assets. As Justice Neil Gorsuch noted, when the Supreme Court opens a door, "Congress tends to walk through it." The Justices should close the wealth-tax door. But it is also true that would upset the delicate balance above that allows the government to collect a lot of taxes. Someone has to pay taxes, so other rates would have to go up a lot. When one side overdoes it, the gentleperson's agreement explodes. Like corporate income, taxing investment income also makes no sense. You earn money, pay taxes on it, and invest it. If you choose to consume later rather than now, why pay additional tax on it? One of the main don't-distort-the-economy propositions is that we should give people the full incentive to save, by refraining from taxing investment income.So why take investment income? Again, because once you tax income, many people can shift labor income to investment income. If you run a business, don't take a salary, but pay yourself a dividend. If you're a consultant, incorporate yourself and call it all business income. In the 1980s even cab drivers incorporated to get lower corporate tax rates. The income tax is the original sin. Taxing income made no sense on an economic basis. The government only did it because it was easy to measure and grab, at least before people started inventing a century's worth of clever schemes to redefine "income."  It leads inescapably to more sins, the corporate tax and the tax on investment income. And now the repatriation tax on accumulated foreign earnings. What's the solution? Well, duh. Tax consumption, not income or wealth. Get the rich down at the Porsche dealer. Leave alone any money reinvested in a company that is employing people and producing products. Now we can do it. And we can then throw out the income tax, corporate tax, and estate tax. Income is really meaningless. You earn a lot of income in your middle years, but little early and late. The year you sell a house, you're a millionaire, but then back to low income the rest of the time. Yet our government hands out more and more benefits based on income as if it were an immutable characteristic. It is not. Consumption is a lot more meaningful! The case brings up another uncomfortable question. The couple invested their money, and then the IRS changed the rules and told them to pay taxes now on decades worth of past earnings. While we're playing lawyer, laws generally cannot penalize past behavior. Surely if they knew this rule, the couple would have arranged their business differently. Here there is an uncomfortable principle of taxation. Unexpected, just this once and we'll never do it again wealth taxes are economically efficient. The problem of taxation is disincentives. If you announce a wealth tax in the future, people respond by not accumulating wealth. Go on round the world private jet tours instead. (I hear UAE is nice this time of year, and all the smart people are there.) But if you tax existing wealth, and nobody knew it was coming, there is no disincentive. This is, however, one of the most misused propositions in economics. That promise never to do it again isn't credible. If the government did it once, why not again? And it feels horribly unfair, doesn't it? Grabbing wealth willy nilly unpredictably is not something responsive rule-of-law democracies can or should do. (This  issue came up with the corporate tax cut. There was a lot of effort not to reward past investment. That's the same principle as trying to tax that past investment now that it is made. I prefer stable rules.) Thus, I actually hope that the Supreme Court does blow up the tax system. It's a bloated crony-capitalist mess. Most people suspect that others with clever lawyers are getting away with murder, which is corrosive to democracy.  If the friends of the court are right that the tax system will not survive a narrow definition of income, that  might force a fundamental reckoning. We need a ground up reform. Not every decision taken in 1913 has to last forever. Let the income tax implode, and bring on a consumption tax. (Instead, not as well as!) I doubt it will happen though. The court is really good at constitutional law, but not at first-principles economics. With the continued political assault on their legitimacy, they will surely find a way to decide this narrowly, and wait to strike down the wealth tax when and if it is enacted.  But who knows, it's interesting that they took it in the first place.