Posts tagged ‘IRS’
As background, I live in a town called Paradise Valley, Arizona. This town is perhaps most famous recently for installing surveillance cameras all over town hidden in fake cacti. Here is the one on my block. There are at least two others within walking distance of my house.
These cameras apparently have license plate reading ability and perhaps the ability to do facial recognition, and likely are funded by Homeland Security for the purposes of feeding data into a national tracking database. I say "likely" because the town of Paradise Valley under Mayor Michael Collins somehow appropriated these things secretly without any public discussion or debate.
So in this context, it was hilarious to see none other than Mayor Michael Collins piously intoning about the importance of privacy in the town of Paradise Valley:
Paradise Valley is considering an ordinance that would make it illegal to fly drones in town without a permit. Backyard hobbyists and law-enforcement agencies that may need to use drones during emergencies would be excluded from the proposed ban.
"Our residents move to Paradise Valley because they like the privacy," said Mayor Michael Collins, who presides over a community that counts celebrities, sports stars and Discount Tire founder Bruce Halle, the richest person in Arizona, among its residents.
What Mr. Collins apparently means is that he wants the government to maintain a monopoly on surveillance technologies. Libertarians like myself cringe at the notion that a monopoly on privacy-invasion should be granted to the government, the only institution in the country that can legally jail you, take your money, and even shoot you. Conservatives, who dominate this community, tend to be blind to this danger, saying that "if you aren't doing anything illegal, you have nothing to fear from surveillance." I will say, though, that some Conservatives have woken up a bit over the last several years on this with the IRS non-profit harassment and the Wisconsin John Doe investigations.
By the way, extra credit to the Arizona Republic for gratuitously publishing where a wealthy citizen lives in a sentence about privacy.
One can build a very good predictive model of government agency behavior if one assumes the main purpose of the agency is to maximize its budget and staff count. Yes, many in the organization are there because they support the agency's public mission (e.g. protecting the environment at the EPA), but I can tell you from long experience that preservation of their staff and budget will almost always come ahead of their public mission if push comes to shove.
The way, then, to punish an agency is to take away some staff and budget. Nothing else will get their attention. Unfortunately, in most scandals where an agency proves itself to be incompetent or corrupt or both (e.g. IRS, the VA, more recently with OPM and their data breaches) the tendency is to believe the "fix" involves sending the agency more resources. Certainly the agency and its supporters will scream "lack of resources" as an excuse for any problem.
And that is how nearly every failing government agency is rewarded for their failure, rather than punished. Which is why our agencies fail so much.
Note that organizations in the private world are not immune to similar incentives. A company's marketing staff will work hard to get more people and resources for marketing, and in good times their staff and budget may balloon. The difference is that in the private world, there is competition. Other companies are trying to sell similar products and services. And if the marketing department is screwing up a lot, or those resources spent on it are not being used productively, the company is going to lose sales and thus resources. To survive, massive changes will be made, including likely some deep cuts and large restructurings in marketing.
It is frustrating to work in corporations that seem to lurch from growth periods to cutbacks in an endless cycle. But it beats the alternative where the organization always grows and never is forced to confront the value of how it spends its resources.
A while back I wrote a long article about all the ways the government is making it nearly impossible to employ low-skilled labor. I worried that because it is getting harder and harder to profitably employ low-skill labor, the country would soon sort itself into those with skills and jobs and those on government assistance, with little or no opportunity for people in the second category to move to the first.
As part of that article, I observed that much of the capital in this country is flowing to new business models that use minimal numbers of employees. I wrote:
Is it any surprise that most entrepreneurs are pursuing business models where they leverage revenues via technology and a relatively small, high-skill workforce? Uber and Lyft at first seem to buck this trend, with their thousands of drivers. But in fact they prove the rule. Uber and Lyft are very very careful to define themselves and their service in a way that all those drivers don't work for them. I would go so far to say that if Uber were forced to actually put all of those drivers on their payroll, and deal with they myriad of labor compliance issues, their model would fall apart.
The California labor commission has ruled that an Uber driver qualifies as an employee, not a contractor, of the company. As a result Uber will have to reimburse a driver for expenses accumulated in the line of duty. That includes $256 in tolls and the IRS rate of $0.56 per mile for use of a personal vehicle for business purposes.
The actual issue in this case of reimbursement of expenses is pretty narrow, and actually kind of stupid. Uber is already paying drivers effectively by the mile by giving them a percentage of the mileage-based fee customers pay. All this will do is cause Uber to reduce the share of revenues drivers get by something like 56 cents a mile and then hand the $0.56 to them in a separate check. Its an extra accounting and paperwork hassle, but business people deal with mitigating such government-imposed stupidity 10 times a day.
No, the real danger of this ruling lies far beyond expense reimbursement. A few top of head thoughts
- This would obviously make Uber drivers subject to minimum wage. How does one even figure that out? Now that there are local minimum wages (e.g. LA soon to be $15 an hour) how do you compute minimum wage for a trip that begins outside of LA but ends inside the city? Or vice versa?
- Uber drivers currently only get paid for transporting passengers, but what about their time driving around waiting for a passenger? Will that be classified as standby time for which the employer must pay for? You can expect the standby time class action in California in 3..2..1..
- This changes the whole relationship between Uber and its drivers. Currently, Uber does not have to worry about driver productivity or work ethic, as long as they get good customer ratings when they do drive. Why? Because Uber is not paying them except when they haul a passenger. Now, if they have to pay them by the hour, Uber suddenly must police them for productivity and set minimum revenue generation targets for drivers. The flexibility that drivers love will be gone.
- And then there is Obamacare. If drivers drive more than 29 hours a week, Uber would have to provide health care or pay really expensive penalties. Will Uber find it necessary, as my company has and many other service businesses have, to cap driver hours at 29 hours a week max?
- What about California break law? Employers have an affirmative duty to make sure employees take a 30 minute unpaid meal break after X hours. And just allowing for it (ie allowing drivers to put themselves in unavailable status) is not enough - employers have to have processes and documentation in place to make sure the employee takes their break (I kid you not).
- What about CalOSHA? Is Uber suddenly responsible for working conditions and safety in the vehicle? And how does it do that if it does not own the vehicle?
- Every employee is essentially his or her own manager. Does that now make Uber subject to ensuring every driver has all state-mandated manager training, such as sexual harassment training?
- Employers are typically liable for actions by their employees, even if those employees are breaking the rules and ignoring the employer's wishes. Is Uber now liable for a driver who, say, verbally harasses a passenger? In the past, that gets sorted out pretty fast by the rating system, but does Uber have to take a more direct hand now do avoid a deluge of lawsuits?
- As of July 1, California employers must provide paid sick leave to employees. They must provide unpaid leave under the family and medical leave acts. In fact, California requires employers provide and track literally dozens of forms of mandatory paid and unpaid leave (including leave for victims of stalkers, just as one example of the scope of these requirements)
- The taxes and required fees owed by employers for each employee are myriad. State and Federal income tax must be withheld, Social Security and Medicare taxes paid, California state disability tax paid, unemployment tax paid, and workers compensation premiums paid.
- Unemployment could be real nightmare. Can drivers choose to drive for a while, then take unemployment for a while, maybe while tourist season in San Francisco is slow, then go back to driving? You think that can't happen? A number of my seasonal employees work in the summer, then take unemployment all winter despite having no intention of trying to find work in the winter. I pay 7% of wages in California as unemployment taxes and would pay more except that scale is capped and I can't get in a worse category than my current F-.
- Then there are a myriad of smaller issues that probably can be solved but consume bandwidth of a company's management that would otherwise be innovating. As one small example, one has to post about 20 different state and Federal labor posters in CA where all employees can see them. Where would that be for Uber drivers?
Between 2009 and 2012, the Clinton Foundation raised over $500 million dollars according to a review of IRS documents by The Federalist (2012,2011, 2010, 2009, 2008). A measly 15 percent of that, or $75 million, went towards programmatic grants. More than $25 million went to fund travel expenses. Nearly $110 million went toward employee salaries and benefits. And a whopping $290 million during that period — nearly 60 percent of all money raised — was classified merely as “other expenses.”
Now it may be that the "other"expenses are directly benefiting someone but the numbers here are not encouraging. There are a number of sham charities out there whose income goes mostly to supporting the lifestyle of their directors and employees so that they can make good money but simultaneously be self-righteous. I do not know that this is the case here but I think you can be pretty sure the reason they get most of their donations is to curry favor with the Clintons rather than because the organization is particularly efficient or adept at deploying charitable resources.
I had no problem assuming the "lost" IRS emails were incompetence rather than criminal evidence tampering. After all, how hard is it to believe the government is incompetent?
But it may be in this case it really was fraud. Suddenly the emails have been found, and they were apparently always there -- despite all protestations to the contrary, no one in the IRS had even asked for them. From the WaPo:
The Treasury Inspector General for Tax Administration testified at a House Oversight and Government Reform Committee hearing on Thursday that it tracked down nearly 33,000 emails from ex-IRS official Lois Lerner.
The records date back to 2001, which is 10 years beyond what the IRS has said it could access for investigators.
The inspector general’s office said it is working to identify any messages that the IRS has not already sent to congressional investigators, who are examining the Lerner’s involvement in the IRS targeting scandal.
The watchdog agency found the backed-up emails by consulting with IRS information-technology specialists, according to TIGTA Deputy Inspector General for Investigations Tim Camus.
“They were right where you would expect them to be,” he said at the rare late-night hearing, which lasted until about 10 p.m.
IRS Commissioner John Koskinen testified before Congress last year that the backups were no help in recovering Lerner’s lost emails, in part because the IRS overwrites them every six months.
Camus said the IRS’s technology specialists told investigators that no one from the agency asked for the tapes, raising doubts about whether the agency did its due diligence in trying to locate Lerner’s emails, or possibly greater troubles.
In the Fast and Furious and IRS scandals, the Administration has purposefully dragged its feet on disclosures. The strategy is to let as much time pass so that when bad revelations eventually come out, the heat from the original scandal is gone. Defenders of the Administration will then argue the revelations are "old news", as if there is some statute of limitations on outrage. This strategy has driven Republicans crazy.
So what do Conservatives do when the torture report comes out after months and months of foot-dragging trying to prevent its release? You got it, they scream "old news". Scott Johnson:
I confess that I do not understand the rationale supporting the publication of the Democrats’ Senate Select Committee study of the CIA’s detention and interrogation program. On its face, it seems like ancient history (of a highly tendentious kind) in the service of a personal grudge. It is not clear to me what is new and it is not clear that what is new is reliable, given the absurd limitations of the committee’s investigation.
By the way, I want to make one observation on this line from attorney John Hinderaker:
Similarly, the report confirms that the Agency’s enhanced interrogation techniques were used on only a small number of captured terrorists, 39 altogether. These enhanced techniques include the “belly slap” and the dreaded “attention grasp.”
Most important, it appears that waterboarding really was the most extreme sanction to which any of the terrorists were subjected (and only three of them, at that). Given all the hoopla about CIA “torture,” one might have expected to learn that far worse happened at the Agency’s dark sites. But, as far as the report discloses, the Agency stuck almost exclusively to its approved list of tactics, all of which the Department of Justice specifically found not to be torture.
Were some of the captured terrorists treated roughly? Absolutely. Their lives must have been miserable, and deservedly so. Some of the 39 were placed in stress positions for considerable lengths of time, doused with water, fed poor diets, left naked in cells. In one instance, a terrorist was threatened with a power drill. In another case, an interrogator told a terrorist that his children may be killed. There were two instances of mock execution.
A few observations:
- The fact that they were "terrorists" seems to justify the mistreatment for him. But how do we know they were terrorists? Because the Administration said so. There was no due process, no right of appeal, no ability to face witnesses, no third party review, none of that. A branch of the Administration grabbed the guy, said you are a terrorist, and started torturing them. I am not saying that they did this without evidence, but I am sure Mr. Hinderaker know from his own experience that every prosecutor thinks every person he or she tries is guilty. That is why both sides get to participate in the process.
- "Terrorist" is an awfully generic word to give us automatic license to torture people. My sense is that there are all kinds of shades of behavior lumped under that word. Conservatives like Mr. Hinderaker object, rightly, to a wide range of sexually aggressive actions from unwanted kissing to forced penetration being lumped under the word "rape". But my sense is we do the same thing with "terrorists".
- In my mind the casualness with which he can accept these kinds of treatments for people he does not like is morally debilitating. It is a small step from accepting it for one to accepting it for many. It is like the old joke of a debutante asked if she would have sex for a million dollars and saying "yes", then getting asked if she would have sex for $20 and responding "what kind of girl do you think I am?" We've already established that, we are just haggling over price.
- For those on the Right who say that all this stuff about due process does not apply because the "terrorists" were not citizens, then welcome to the Left! Individual rights are innate -- they are not granted by governments (and thus by citizenship). The Right generally says they believe this. It is the Left whose positions imply that rights are favors granted by the state to its citizens.
A lot of discussion has gone into the costs of the employer mandate.
These costs certainly were potentially high for my company. If we had to provide health care for all of our employees, it would cost us an annual sum between 3 and 4 times our annual profit. As many of your know, my company runs public parks and campgrounds. Already, we have struggled to get government authorities to approve fee increases driven by local minimum wage increases. Most of these authorities have already told us that they would not allow fee increases in most cases to offset the costs of the PPACA employer mandate. So we have spent a lot of time converting between 90 and 95% of our employees to part-time, so the mandate would not apply to them. I have gotten a lot of grief for my heartlessness on this in the comments, but I have zero idea what else I could have done short of simply shutting down the business.
Yesterday I was in an information session about the employer mandate and saw that the other shoe had dropped for companies -- the reporting requirement. Despite the fact that the employer mandate was supposed to kick in almost 9 months ago, until recently the government had still not released the reporting requirements for companies vis a vis the mandate. Well, apparently the draft reporting requirements was released a few weeks ago. I may be missing something, but the key requirement for companies like mine is that every employee must receive a new form in January called an IRS 1095-C, which is parallel to the W-2 we all get to report income.
I know that many of you have probably been puzzled as to what some of those boxes mean on the W-2. Well, you are going to love the 1095C
Everyone is scratching their heads, wondering what this means. For someone like me who has seasonal and part time workers, this form is a nightmare, and I have no idea how we are going to do this. Just to give you a flavor, here are the code choices for line 14:
1A. Qualified Offer: Minimum Essential Coverage providing Minimum Value offered to full-time
employee with employee contribution for self-only coverage equal to or less than 9.5% mainland
single federal poverty line and Minimum Essential Coverage offered to spouse and
1B. Minimum Essential Coverage providing Minimum Value offered to employee only.
1C. Minimum Essential Coverage providing Minimum Value offered to employee and at least Minimum Essential Coverage offered to dependent(s) (not spouse).
1D. Minimum Essential Coverage providing Minimum Value offered to employee and at least Minimum Essential Coverage offered to spouse (not dependent(s)).
1E. Minimum Essential Coverage providing Minimum Value offered to employee and at least Minimum Essential Coverage offered to dependent(s) and spouse.
1F. Minimum Essential Coverage not providing Minimum Value offered to employee, or employee and spouse or dependent(s), or employee, spouse and dependents.
1G. Offer of coverage to employee who was not a full-time employee for any month of the calendar year and who enrolled in self-insured coverage for one or more months of the calendar year.
1H. No offer of coverage (employee not offered any health coverage or employee offered coverage not providing Minimum Essential Coverage).
1I. Qualified Offer Transition Relief 2015: Employee (and spouse or dependents) received no offer of coverage, or received an offer of coverage that is not a Qualified Offer, or received a Qualified Offer for less than all 12 Months.
Completing lines 14-16 will require an integration of our payroll provider with our health insurance information that I have no idea how we are going to pull off.
In Halbig, the DC Circuit argued that the plain language of the PPACA should rule, and that subsidies should only apply to customers in state-run exchanges. I am going to leave the legal stuff out of this post, and say that I think from a political point of view, Obamacare proponents made a mistake not sticking with the actual language in the bill. The IRS was initially ready to deny subsidies to the Federal exchanges until Administration officials had them reverse themselves. When the Obama Administration via the IRS changed the incipient IRS rule to allow subsidies to customers in Federal exchanges, I believe it panicked. It saw states opting out and worried about the subsidies not applying to a large number of Americans on day 1, and that lowered participation rates would be used to mark the program as a failure.
But I think this was playing the short game. In the long game, the Obama Administration would have gone along with just allowing subsidies to state-run exchanges. Arizona, you don't want to build an exchange? Fine, tell your people why they are not getting the fat subsidies others in California and New York are getting. Living in Arizona, I have watched this redder than red state initially put its foot down and refuse to participate in the Medicaid expansion, and then slowly see that resolve weaken under political pressure. "Governor Brewer, why exactly did you turn down Federal Medicaid payments for AZ citizens? Why are Arizonans paying taxes for Medicaid patients in New Jersey but not getting the benefit here?"
Don't get me wrong, I would like to see Obamacare go away, but I think Obama would be standing in much better shape right now had he limited subsidies to state exchanges because
- The disastrous Federal exchange roll-out would not have been nearly so disastrous without the pressure of subsidies and the data integration subsidy checks require. Also, less people would have likely enrolled, reducing loads on the system
- Instead of the main story being about general dissatisfaction with Obamacare, there would at least be a competing story of rising political pressure in certain states that initially opted out to join the program and build an exchange. It would certainly give Democrats in red and purple states a positive message to run on in 2014.
One of the great dangers of historical analysis is applying our modern standards and ex post facto knowledge to analysis of historical decisions. For example, I see modern students all the time assume that the Protestant Reformation was about secularization, because that is how we think about religious reform and the tide of trends that were to follow a century or two later. But tell John Calvin's Geneva it was about secularization and they would have looked at you like you were nuts (If they didn't burn you). Ditto we bring our horror for nuclear arms developed in the Cold War and apply it to decision-makers in WWII dropping the bomb on Hiroshima. I don't think there is anything harder in historical analysis than shedding our knowledge and attitudes and putting ourselves in the relevant time.
Believe it or not, it does not take 300 or even 50 years for these problems to manifest themselves. They can occur in just four. Take the recent Halbig case, one of a series of split decisions on the PPACA and whether IRS rules to allow government subsidies of health care policies in Federal exchanges are consistent with that law.
The case, Halbig v. Burwell, involved the availability of subsidies on federally operated insurance marketplaces. The language of the Affordable Care Act plainly says that subsidies are only available on exchanges established by states. The plaintiff argued this meant that, well, subsidies could only be available on exchanges established by states. Since he lives in a state with a federally operated exchange, his exchange was illegally handing out subsidies.
The government argued that this was ridiculous; when you consider the law in its totality, it said, the federal government obviously never meant to exclude federally operated exchanges from the subsidy pool, because that would gut the whole law. The appeals court disagreed with the government, 2-1. Somewhere in the neighborhood of 5 million people may lose their subsidies as a result.
This result isn’t entirely shocking. As Jonathan Adler, one of the architects of the legal strategy behind Halbig, noted today on a conference call, the government was unable to come up with any contemporaneous congressional statements that supported its view of congressional intent, and the statutory language is pretty clear. Members of Congress have subsequently stated that this wasn’t their intent, but my understanding is that courts are specifically barred from considering post-facto statements about intent.
We look at what we know NOW, which is that Federal health care exchanges operate in 37 states, and that the Federal exchange serves more customers than all the other state exchanges combined. So, with this knowledge, we declare that Congress could not possibly meant to have denied subsidies to more than half the system.
But this is an ex-post-facto, fallacious argument. The key is "what did Congress expect in 2010 when the law was passed", and it was pretty clear that Congress expected all the states to form exchanges. In fact, the provision of subsidies only in state exchanges was the carrot Congress built in to encourage states to form exchanges. (Since Congress could not actually mandate states form exchanges, it has to use such financial carrots and stick. Congress does this all the time, all the way back to seat belt and 55MPH speed limit mandates that were forced on states at the threat of losing state highway funds. The Medicaid program has worked this way with states for years -- and the Obamacare Medicare changes follow exactly this template of Feds asking states to do something and providing incentives for them to do so in the form of Federal subsidies). Don't think of the issue as "not providing subsidies in federal exchanges." That is not how Congress would have stated it at the time. Think of it as "subsidies are not provided if the state does not build an exchange". This was not a bug, it was a feature. Drafters intended this as an incentive for creating exchanges. That they never imagined so many would not create exchanges does not change this fact.
It was not really until 2012 that anyone even took seriously the idea that states might not set up exchanges. Even as late as December 2012, the list was only 17 states, not 37. And note from the linked article the dissenting states' logic -- they were refusing to form an exchange because it was thought that the Feds could not set one up in time. Why? Because the Congress and the Feds had not planned on the Federal exchanges serving very many people. It had never been the expectation or intent.
If, in 2010, on the day after Obamacare had passed, one had run around and said "subsidies don't apply in states that do not form exchanges" the likely reaction would not have been "WHAT?!" but "Duh." No one at the time would have thought that would "gut the whole law."
Postscript: By the way, note how dangerous both the arguments are that opponents of Halbig are using
- The implementation of these IRS regulations are so big and so far along that it would be disruptive to make them illegal. This means that the Administration is claiming to have the power to do anything it wants as long as it does it faster than the courts can work and makes sure the program in question affects lots of people
- The courts should give almost unlimited deference to Administration interpretations of law. This means, in effect, that the Administration rather than the Courts are the preferred and default interpreter of law. Does this make a lick of sense? Why have a judiciary at all?
If you were getting investigated by the IRS, and you gave the IRS the answers that they have been giving the public over Lois Lerner's and others' lost emails, do you think that the IRS would accept your answer?
By the way, a system crash that makes a hard drive totally unreadable is just vanishingly rare nowadays. It is possible to corrupt certain system files in the root that will make it impossible to log on to the computer or access the hard drive files normally, but they are still there. Something with the hard drive's motor or read heads could fail, but the data is still there. Even if you highlighted every file in your hard drive and hit the delete key, they are still there. When you hit delete they are taken out of the file directory and may get overwritten if you add new data to the computer, but without special software, it is actually hard to totally delete files (this is why you have to be careful when you donate or dispose of computers). It actually can take the better part of an hour to really remove all files from a hard drive so that they are unrecoverable.
Given all this, I think the odds are that 6 or 7 computers of a group of senior leaders in the same office all crashed at roughly the same time in a way that wiped out all the data from their hard drives such that all data would be unrecoverable is simply beyond credulity.
Ken White at Popehat offers some useful insight to non-lawyers among us about compelled testimony (in the context of the Louis Lerner/IRS saga)
Some people have argued that Lois Lerner should be compelled to testify, either by court order or by grant of immunity. Lerner and her lawyers would love that, as it would make prosecuting her for any suspected wrongdoing incredibly difficult.
Compelled testimony is radioactive. If a witness is compelled to testify, in any subsequent proceeding against them the government has a heavy burden to prove that no part of the prosecution is derived from the compelled testimony, which is treated as immunized. This is called theKastigar doctrine:
"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 378 U.S. at 378 U. S. 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
If I read this right, if the House were to compel her to testify, they might as well grant her immunity and be done with it.
Further on in the post, Ken points out an issue that I have been wondering about myself -- Those who want Lerner to testify are concerned with government arbitrary abuse of power for political purposes. Given that, how can these same folks have any doubt as to why Lerner might plead the Fifth in front of a hostile and partisan House committee
I've been seeing a lot of comments to the effect of "why should Lois Lerner take the Fifth if she has nothing to hide?" Ironically these comments often come from people who profess to oppose expansive government power, and from people who accept the proposition that Lerner was part of wrongdoing in the first place — in other words, that there was a government conspiracy to target people with the machinery of the IRS for holding unpopular political views. Such people do not seem to grasp how their predicate assumptions answer their own question.
You take the Fifth because the government can't be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn't do anything wrong your statements can be used as building blocks indishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.
Pardon me: if you accept the proposition that the government targets organizations for IRS scrutiny because of their political views, and you still say things like "why take the Fifth if you have nothing to hide", then you're either an idiot or a dishonest partisan hack.
If you want to get bent out of shape about something, you are welcome to wonder why Lerner is being investigated, apparently, by the hyper-partisan civil rights division of Justice rather than the public integrity section. That, combined with President Obama's pre-judging of the DOJ's conclusions, is more of a red flag than Lerner's taking the Fifth.
Remember, Martha Stewart did not go to jail for securities fraud of any sort. She went to jail for statements she made during the government investigation.
This is just sick, via Fox News and Bryan Preston
Consider what administration officials announcing the new exemption for medium-sized employers had to say about firms that might fire workers to get under the threshold and avoid hugely expensive new requirements of the law. Obama officials made clear in a press briefing that firms would not be allowed to lay off workers to get into the preferred class of those businesses with 50 to 99 employees. How will the feds know what employers were thinking when hiring and firing? Simple. Firms will be required to certify to the IRS – under penalty of perjury – that ObamaCare was not a motivating factor in their staffing decisions. To avoid ObamaCare costs you must swear that you are not trying to avoid ObamaCare costs. You can duck the law, but only if you promise not to say so.
As I have written about before, our company closed some California operations in December and laid off all the employees. As with most business closures, we had multiple reasons for the closure. The biggest problems were the local regulatory issues in Ventura County that made it impossible to make even simple improvements to the facilities. But certainly looking ahead at costs soon to be imposed due to looming California minimum wage increases and the employer mandate contributed to the decision.
So, did I fire the workers over Obamacare? If Obamacare were, say, 10% of the cause, would I be lying if I said I did not fire workers over Obamacare? Or does it need to be 51% of the cause? Or 1%? Or 90%. Business decisions are seldom based on single variables. I am just exhausted with having my life run by people whose only experience with the real world was sitting in policy seminars at college.
Update: The actual effect of this will not likely be to change business behavior, but change how they talk about it. Worried that there will be too many stories next election about job losses due to Obamacare, the Administration is obviously cooking up ways not to limit the job losses, but to limit discussion of them.
Faulting the IRS for attempting to “unilaterally expand its authority,” the D.C. Circuit today affirmed a district court decision tossing out the agency’s tax-preparer licensing program. Under the program, all paid tax-return preparers, hitherto unregulated, were required to pass a certification exam, pay annual fees to the agency, and complete 15 hours of continuing education each year.
The program, of course, had been backed by the major national tax-return preparers, chiefly as a way of driving up compliance costs for smaller rivals and pushing home-based “kitchen table” preparers out of business. Dan Alban of the Institute for Justice, lead counsel to the tax preparers challenging the program,called the decision “a major victory for tax preparers—and taxpayers—nationwide.”
The licensing program was not only a classic example of corporate cronyism, but also of agency overreach. IRS relied on an 1884 statute empowering it to “regulate the practice of representatives or persons before [it].” Prior to 2011, IRS had never claimed that the statute gave it authority to regulate preparers. Indeed, in 2005, an IRS official testified that preparers fell outside of the law’s reach.
Perhaps a first indication that the Obama Administration strategy to pack the DC Circuit with Obama appointees may not necessarily protect his executive overreach.
PS - you gotta love the IJ.
PPS - The IRS justified its actions under "an obscure 1884 statute governing the representatives of Civil War soldiers seeking compensation for dead horses"
This is a pretty amazing chart from Jed Graham and IBD which I have annotated a bit
Note first that the diversion between high and low-wage** industries did not occur during the recession, and in fact through the recession the two groups tracked each other pretty closely until early 2010. Then, in early 2010, something made the two lines start to diverge and in 2012-2013 they really went in opposite directions.
Well, my suggestion for the "something" is Obamacare. In March 2010, the PPACA was passed. Looking at the jobs data, one can date the stall in the economic recovery almost precisely from the date the PPACA was passed (e.g. here).
The more important date, though, is January 1, 2013. This is a date that every business owner was paying attention to at the time but which seems entirely lost on the media. All the media was focused on the start-date of the employer mandate on January 1, 2014. Why was the earlier date important? Let's go back in time.
At that time, the employer mandate had yet to be delayed. The PPACA and IRS rules in place at the time called for a look-back period in 2013 where actual hours worked for each employee would be tracked to determine whether the employee would classified as full or part-time on the Jan 1, 2014 start date. So, if a company wanted to classify an employee as part-time at the start of the employer mandate (and thus avoid penalties for that employee), that employee needed to be converted to part-time as early as possible, preferably before 2013 even started and at worst by mid-year 2013 [sorry, I typo-ed these dates originally].
Unlike the government, which apparently waits until after the start-up date to begin building large pieces of major computer systems, businesses often tackle problems head on and well in advance. Faced with the need to have employees be working 29 hours or less a week in the 2013 look-back period, many likely started making changes back in 2012. Our company, for example, shifted everyone we could to part time in the fourth quarter of 2012. I know from talking to the owners of several restaurant chains that they were making their changes even earlier in 2012. One employee of mine went to Hawaii in October of 2012 and said that all the talk among the resort employees was how they were getting cut to part-time over Obamacare.
Yes, the employer mandate was eventually delayed, but by the time the delay was announced, every reasonably forward-looking company that was going to make changes had already done so. Having made the changes, there is no way they were going to switch back, and then back yet again when the Administration finally stumbles onto an actual implementation date.
If this chart gets any traction over the next few days, expect to see a lot of ignorance as PPACA defenders claim that the fall in low-wage work hours can't possibly have anything to do with the PPACA because the employer mandate has not even started. Now you know why this argument is wrong. The PPACA, and associated IRS implementation rules, drove companies to convert full-time to part-time jobs as early as 2012.
Usual warning: Correlation is not causation. However, I will submit that I was predicting exactly this sort of result years before it occurred. This is not a spurious correlation that is ex post facto blamed on whatever particular bete noir I might have. I and many other predicted that Obamacare would drive down work hours per week in lower-wage industries, and now having seen exactly that correlated with key Obamacare dates, it is not going to far to hypothesize a connection.
** Why could low-wage industries be impacted more than high-wage? Two reasons. One, low-wage industries are far less likely to offer a full Obamacare-compatible health plan to employees than high wage industries. Second, the fixed penalties ($2000 and $3000 per employee) for lack of insurance plans are obviously a far higher percentage of the total pay in low-wage vs. high-wage industries. A penalty that is 15% of annual pay is much more likely to cause employers to shift or reduce work than a 3% penalty.
Glen Reynolds brings us this bit from a letter to the WSJ about the IRS and 501c4's:
For example, if an IRS official subjects citizens to incredibly burdensome demands for irrelevant information just to harass them for their political or religious beliefs, no 501(c)(4) group could later criticize that official’s nomination to be IRS commissioner, without engaging in restricted activity. That’s because the IRS’s proposed regulation defines even unelected government officials, like agency heads and judges, as “candidates” if they have been nominated for a position requiring Senate confirmation. The IRS’s proposed rules are an attack on the First Amendment that will make it easier for the government to get away with harassing political dissenters and whistleblowers in the future.
The part about classifying Senate-confirmed officials as "candidates" seems to be part of the same initiative as the changes to the filibuster to make it easier for the President to confirm controversial judges and administrators. I wonder if this is a general effort or battlespace preparation for a specific confirmation battle.
I try to read a couple of team-politics blogs from both the red and blue side, to stay in touch with what they are saying and stay out of an echo chamber. Also, of course, libertarians make common cause with both parties on various issues. But the mindless team politics angle can really be a bore.
One of the reasons I like to read Kevin Drum on the left is that his initial reactions to things often seems pretty honest. When his side really screws up, like the IRS scandal or failing Obamacare exchanges, his initial reaction will generally be to honestly critique a bad situation. And then about 3-5 days into the scandal or crisis or discussion of an issue, he will catch on to and adopt the party line on an issue and then become incredibly tedious (for example, on the IRS scandal, he was honestly critical for a while and then adopted the silly "leftish groups were equally targeted meme" and has stuck to it by rote since). But at least there are those few days of honesty, which separates him from a lot of the left and right team politics blogs.
So the timing is just about right for the Left to pick a meme to explain away the millions of people who are getting their policies cancelled despite being told that they could keep their health insurance. Mainstream outlets like CBS and NBC are pushing the story, not just right-wing and libertarian blogs, so the Ezra Klein's of the world must be working diligently to pick a meme and then enforce it. It will be interesting to see what they choose.
FACT: Nothing in #Obamacare forces people out of their health plans. No change is required unless insurance companies change existing plans.
This is hilarious. Technically true, since my cancellation came from Blue Cross and not the government, but obviously the Blue Cross decision to cancel me was forced by the terms of the law. This is obviously absurd, but is it too absurd for the media? I don't know, and of course it gets extra lefty bonus points for blaming government-caused problems on private businesses. Next up, Exxon to blame for gasoline taxes!
Normally this would be a good Friday story, but you can't always control when Washington is going to bring the crazy.
The Obama administration on Tuesday defended its effort to regulate the tax return preparation business for the first time in U.S. history, basing its case largely on a 19th century law dealing with horses lost or killed in the Civil War....
[the Obama Administration attorney] explained that the administration sees the "Horse Act of 1884" as providing ample authority for the U.S. Internal Revenue Service to regulate the tens of thousands of preparers who fill out millions of Americans' federal tax returns.
Here is the logic, such that it is
A post-war industry emerged of agents who would press war loss claims for a fee, usually a percentage of the claim collected. Soon, claim values were being fraudulently inflated.
In response, the government started regulating these intermediaries, barring unscrupulous ones and certifying honest ones as "enrolled agents," a title that is still used today by people who represent clients in matters before the IRS.
The IRS is arguing that tax return preparers represent their customers in much the same way that enrolled agents do, so the agency should be able to expand regulation to include preparers.
Note that tax preparers are not actually IRS enrolled agents, they just argue they are kind of sort of like them (in that they both deal with tax returns, I suppose). But enrolled agents explicitly act as an intermediary between citizens and the government in disputes and claims. This is not the role of tax preparers. They merely charge a fee to fill out time-consuming and confusion paperwork. My tax accountant has never once had any conversations with the IRS on my behalf, nor should he. I would engage an attorney for that.
I checked out the government web site today that supposedly offers advice to small businesses on Obamacare compliance. Of course, I found nothing on my main question, in part because the IRS cannot figure out what it wants to do (my question is on requirements and penalties vis a vis seasonal workers).
I was presented with a number of other government blog posts and articles, including "8 Ways Your Business Can Get Ready for the 2013 Tourist Season." Curious what the government would counsel on this topic, I clicked through. Obviously, there is a paragraph break and carriage return sequester. I cannot get the energy to read this kind of unformatted text. The advice is actually OK, and ironically one of the eight is that one should consider getting into the business I am in.
Well, it certainly comes as happy news to this correspondent that the Administration announced this week it will delay health insurance mandates on businesses. Our company has spent a ton of time since last November trying to minimize the expected cost of the mandates -- the initial cost estimates of which for our business came in at three times our annual net income. Our preparation has been hampered by the fact that the IRS still has not finalized rules for how these mandates will be applied to a seasonal work force. Like many retail service businesses, we have studied a number of models for converting most of our work force to part time, thus making the mandates irrelevant for us.
I know this last statement has earned me a fair share of crap in the comments section as a heartless capitalist swine, but the vitriol is just absurd. Many of the folks criticizing me can't or don't want to imagine themselves running a business, so let's say you have an annual salary of $40,000. Now, on top of all your other expenses, the government just mandated that you have to pay an extra $120,000 a year for something. That is the situation my business is in. Are you just going to sit there and allow your savings to become a smoking hole in the ground, or are you going to do something to avoid it? Unlike the government, I cannot run a permanent deficit and I cannot create new revenues by fiat. Congress allowed business owners a legal way to avoid the health insurance mandate, and I am going to grab that option rather than be bankrupted. So are every other service business I know of, which is why I have predicted that full-time jobs are on the verge of disappearing in the retail service sector.
Anyway, it appears that the IRS and the Administration could not get their act together fast enough to make this happen. Not a surprise, I suppose. You and I have both been in committee meetings, and have seen groups devolve into arguments aver useless minutia. This is not a monopoly of the government, it happens in the private sector as well. But in the private sector, in good companies, a leader steps in and says "I have heard enough, it is going to be done X way, now go do it." In government, the incentives work against leaders cutting through the Gordian knot in this way, so the muddle can carry on forever.
There are at least two more shoes that are going to drop, one bad, one good:
- On the bad side, while companies like mine complain about the cost of the PPACA, they are going to freak when they see the paperwork. My sense is that we are going to be required to know in great detail what kind of health insurance policy every one of our employees have, even if it was not obtained through our company, and will have to report that regularly to the government. In addition, there are gong to be new reporting requirements to new agencies for wages and hours. It is going to be a big mess, and my uneducated guess is that someone in the last week or so looked at that mess and decided to hold off announcing it.
But readers can expect a Coyote freak out whenever it is announced, because it is going to be bad. Wal-mart will be fine, it has the money to build systems to do that stuff, but companies like mine with 500 employees but only 2 staff people are going to get slammed. There is a reason government agencies, even government schools, have more staff than line personnel -- they live and breath and think in terms of complex reporting and paperwork. They love it because for many it is their job security. Swimming every day in that water, it is no surprise they impose it without thought on the private sector. This makes it hard for companies like ours that try to have 99% of our employees actually serving customers rather than pushing paper.
- The individual mandate is toast for next year. No way it happens. If the Administration cannot get the corporate piece done on time, there is no way in hell it is going to get the exchanges up and running. And even if they do, some prominent states with political influence with this President, like Illinois and California, likely will not get their exchanges done in time and will beg for a delay.
The Obama administration on Thursday acknowledged that it is collecting a massive amount of telephone records from at least one carrier, reopening the debate over privacy even as it defended the practice as necessary to protect Americans against attack.
The admission comes after the Guardian newspaper published a secret court order related to the records of millions of Verizon Communications customers on its website on Wednesday.
A senior administration official said the court order pertains only to data such as a telephone number or the length of a call, and not the subscribers' identities or the content of the telephone calls.
Such information is "a critical tool in protecting the nation from terrorist threats to the United States," the official said, speaking on the condition of not being named.
"It allows counter terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States," the official added.
The revelation raises fresh concerns about President Barack Obama's handling of privacy and free speech issues. His administration is already under fire for searching Associated Press journalists' calling records and the emails of a Fox television reporter as part of its inquiries into leaked government information.
A few thoughts:
- I have no doubt that this makes the job of tracking terrorists easier. So would the ability to break down any door anywhere and do random house searches without a warrant. The issue is not effectiveness, but the cost in terms of lost liberty and the potential for abuse. The IRS scandal should remind us how easy it is to use government power to harass political enemies and out-groups
- The FISA court is a bad joke, as it seems willing to issue "all information on all people" warrants. I think there is little doubt that similar data gathering is going on at all the other carriers.
- Luckily, Susan Rice is now the National Security Adviser. I am sure with her proven history of not just being a political puppet but really digging in to challenge White House talking points that she will quickly get to the bottom of this.
I am not sure the WSJ has the law right (I don't really trust the media any more to get basic facts correct), but assuming for a moment they know what they are talking about, this caught my attention vis a vis the IRS scandal:
Officials explained that the unit had made the change [to their targeting criteria] because it was receiving many applications for groups that focused on lobbying, which is a permitted activity, and that weren't involved in political activity, which is restricted.
So its OK to kiss a Senator's ass but not OK to advocate for his defeat in the next election? They may screw everything else up, but Congress is really good at making sure it takes care of itself.
I have had hard time parsing exactly what the intelligentsia means by "incivility." On the one hand, they often call for more civil discourse and lament the lack of incivility in government nowadays. But on the other hand, people like Obama very frequently argue by ad hominem attack, preferring to question the motives of the NRA or climate skeptics rather than engage their criticisms of gun control or CO2 limitations.
This has confused me, because I have always defined civility in discourse as the willingness to accept your opponent as a person of good will who merely disagrees or is misguided. But if this is civility, why the frequent "othering" of political opponents by the same folks calling for civility?
Well, it turns out I have been using the wrong definition of civility. As Donna Brazille makes clear, "incivility" means criticizing the President or attempting to hold him accountable for missteps of those who report to him. She actually beings by defining civility in a way with which I mostly agree:
A government of, by, and for the people requires that people talk to people, that we can agree to disagree but do so in civility. If we let the politicians and those who report dictate our discourse, then our course will be dictated.
But then she goes on to say
We, the people, need to stay focused on facts, causes and solutions. Let's begin with the findings of the Treasury's inspector general who uncovered it: That it was bureaucratic mismanagement, but that there was no evidence of any political motivation or influence from outside the IRS.
And that, according to acting Commissioner Steven Miller, who just resigned, the problem started because the Supreme Court's Citizens' United decision created a surge of requests by political groups for tax-exempt status.
LOL - don't let politicians dictate our course - but everyone needs to shut up and take the word for two IRS officials that there is no scandal here (noting that we know from the IRS's own data that the last statement she urges us to accept in the name of civility is definitely false). Further, she says
Why am I alarmed? Because two "scandals" -- the IRS tax-exempt inquiries and the Department of Justice's tapping of reporters' phones -- have become lynch parties. And the congressional investigation of Benghazi may become a scandal in itself.
So let's of course all be civil, and civility means calling folks criticizing a black President "lynch mobs."
By the way, a bit off-topic, but this paragraph is a textbook example of tricks editorial writers use
The IRS scandal has sparked bipartisan outrage that should require a bipartisan solution. The director who oversaw this was a Bush appointee who was confirmed by a Democratic Congress. Even Watergate reporter Carl Bernstein says he doubts very much that Obama was involved
Each sentence here as a master-stroke of the spinmeister's pen trying to defend her guy in the White House.
- Note the effort in the first sentence to shift this to a bipartisan issue. Both sides are upset. It is a good government issue. The implication we are supposed to draw is that this no longer can be a critique of this particular administration. It has transcended. This is how red-blue team political invective works. If the outrage is coming from just one party, it should not stick to the President because because it is petty partisanship. If it comes from both sides, it should not stick because it is a larger issue for all of us that transcends this particular Administration. In fact, through the article, she actually makes both arguments simultaneously. Brilliant!
- It's Bush's fault. This is just so well-worn that Obama officials simply cannot help themselves. How can a man the Left thought to be so stupid and incompetent still be directing affairs four and half years after he left the building?
- This one is really funny. Is, as implied by the structure of this sentence and the world "even", Carl Bernstein the least likely imaginable person to excuse Obama of such a charge? I think I am going to start writing this way. Even Warren Meyer thinks climate change has been exaggerated. Even Kim Kardashian thinks its important to get a lot of PR. Even Tia Carrere says its OK to make a bad movie once in a while. Hey, this is fun.
By the way, as I wrote before, it is unlikely Obama gave a specific order to harass the tea party. However, he has created a strong culture of "othering" his political enemies and impugning their motives as evil, sending a strong signal to his supporters such that actual orders were unnecessary. No one ordered from the top that Princeton students harass Yale at every opportunity (or even better, Penn). The culture takes care of it.
The Internal Revenue Service official in charge of the tax-exempt organizations at the time when the unit targeted tea party groups now runs the IRS office responsible for the health care legislation.
Sarah Hall Ingram served as commissioner of the office responsible for tax-exempt organizations between 2009 and 2012. But Ingram has since left that part of the IRS and is now the director of the IRS’ Affordable Care Act office, the IRS confirmed to ABC News today.
What Obama most needed in the IRS ACA office was someone willing to ignore the clear language of the PPACA legislation and ram through IRS tax subsidies for insurance policies in the Federal (vs. state) exchanges -- subsidies that were purposefully and explicitly denied in the plain language of the law.
There won't be any direct order found telling the IRS to go hassle Conservative groups. That's not the way it works. Obama's style is to "other" groups he does not like, to impugn their motives, and to cast them as pariahs beyond the bounds of civil society. Such and such group, he will say, opposes me not because they have reasonable differences of opinion but because they have nefarious motives. Once a group is labelled and accepted (at least by your political followers) as such, you don't have to order people to harass them. They just do it, because they see it as the right thing to do to harass evil people. When Joe Nocera writes this in support of Obama in no less a platform as the NY Times, orders are superfluous
You know what they say: Never negotiate with terrorists. It only encourages them.
These last few months, much of the country has watched in horror as the Tea Party Republicans have waged jihad on the American people. Their intransigent demands for deep spending cuts, coupled with their almost gleeful willingness to destroy one of America’s most invaluable assets, its full faith and credit, were incredibly irresponsible. But they didn’t care. Their goal, they believed, was worth blowing up the country for, if that’s what it took...
He concludes by saying
For now, the Tea Party Republicans can put aside their suicide vests. But rest assured: They’ll have them on again soon enough. After all, they’ve gotten so much encouragement.
There are probably some deeply confused people in the IRS right now -- after all they were denying tax exempt status to terrorists, to enemies of America. They should be treated like heroes, and now they are getting all this criticism. So unfair.
Postscript: And they are racists. Racist terrorists.
But Obama, in his most candid moments, acknowledged that race was still a problem. In May 2010, he told guests at a private White House dinner that race was probably a key component in the rising opposition to his presidency from conservatives, especially right-wing activists in the anti-incumbent "Tea Party" movement that was then surging across the country.
This is totally the Obama way of fighting a political battle. He is saying, "forget their stated reasons for opposing me, such as opposition to the health care law, to Wall Street bailouts, and to rising government debt. They really oppose me because they are racists and I am black." Obama's opposition are absolutely never, ever people of good will who simply disagree.
PS#2: It's pretty hilarious the NY Times published Nocera's "Tea Partiers are Terrorists" editorial just 6 months after they editorialized against incivility in the context of the Giffords shooting, which by the way had as much to do with civility in public discourse as the Benghazi attacks had to do with a YouTube video. In fact, it sure seems like this administration has a history of falsely blaming tragedies on their political opposition's speech.