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Amity Shlaes: Wrong Target: Republicans and the IRS



When it comes to taxes, the interesting thing about presidents is not that they are celebrities or deities on earth. AOC nearly got it right.

The Democratic lawmaker recently chastised her Republican colleague, Andy Biggs of Arizona, for praising IRS whistleblowers. It is hypocritical to call on these folk while also stripping the resources they need to do their job, Ocasio-Cortez charged.

Before this summer, Biggs indeed had built up a formidable record of challenging the Internal Revenue Service, including demanding that staff return to work more quickly during Covid-19 and likening staff additions to a new Stasi, a reference to the East German secret police. In July, however, Biggs lauded two IRS veterans for going public with the allegation that the Justice Department has been blocking felony charges against Hunter Biden for tax fraud. If you've got honest agents you can rely on, Biggs said, they're going to tell us about the dishonest folks.

Why Biggs switched is clear. Given the intensity of the assault on former president Trump, praising IRS agents who may have serious evidence of tax abuse by President Biden's son is high-stakes tit for tat. Still, there is a problem here, and it does have to do with both parties' preoccupation with the IRS. The real trouble is not the revenuers. It is a tax code so perverse, ambiguous, and complex that it cedes to those IRS agents unwarranted power to interpret the law and, along with that, power to neglect, pester, or tyrannize citizens. Especially presidents, would-be presidents, and their families.

Since, contrary to rumor, 2023 is not a presidential election year, it might be worthwhile to take a step back to analyze how this all came to pass. All the timelier then is a new book that traces both the code history and the manner in which leading political families attempt to navigate the tax thicket: All the Presidents' Taxes, by Charles Renwick.

Renwick commences his account with the original enforcer, George Washington. Though we associate Washington with the Revolution — a tax revolt, after all — Washington later personally led 13,000 militiamen in suppressing America's first domestic Tea Party, the Whiskey Rebellion.

This action by our first chief, according to Renwick, demonstrated the effectiveness of our representational democracy in creating a tax code. Moving forward quickly, Renwick soon arrives at the Income Tax of 1913, which he likewise praises as proof that overall support for income tax and its implementation was incredibly strong.

Perhaps, however, that was because the top rate on the original Form 1040 amounted to only 7 percent. Or perhaps it was because the new federal levy did not apply to most Americans. Nonetheless, even that original income-tax schedule was, in tax terms, progressive, which means the last dollar that top earners made was taxed more heavily than the rest of their earnings. The progressivity introduced to many Americans the then-mostly-foreign notion that the rich should pay more, not just proportionally, and that they somehow deserved such punishment. At the same time, Treasury also began publishing a chart that divided earners by classes, fortifying the likewise then-still-unsolid notion of class. This official recognition of economic classes was especially important to a political group, which, not entirely by accident, bore a name similar to the tax term: the Progressives.

That chart, the Treasury Income Distribution table, made clear for all to see what share of the tax burden was shouldered by the wealthy. The answer was plenty. But armed with this document, the Progressives demanded that the rich pay yet more.

The fatal part of the new income-tax law was its power to criminalize: Those who filed returns rated false, or no returns, might be prosecuted as frauds. From the beginning, the new law seemed to undermine the principle of presumption of innocence. The new revenue authorities moved with an authority more common to Prussia than to the open American West: Income Tax Dodgers to Be Smoked Out, read one 1914 headline. Indeed, as the New York Times reported in the same story, one of first moves of the Treasury, post passage, was to direct 400 new assistants in the Internal Revenue office to do their utmost to detect fraudulent returns.

Of course, within minutes — well, a few years, and a real war, World War I — Congress pushed the rate up to 77 percent. The great tax-class battle was on.

The institutionalization of class war via tax gave reformers enormous power and, with that, the arrogance to impugn the motives of those who challenged it. Taxes are what we pay for civilized society, said Supreme Court Justice Oliver Wendell Holmes, a line so conveniently prim that the Internal Revenue Service engraved it on the new headquarters it was constructing at the time. To underscore his point, Holmes even left a large share of his estate — $263,000 — to the federal government in the form of an unrestricted gift, then the largest such gift ever made to the government.

The president at the time, Franklin Roosevelt, praised Holmes's action as a noble bequest. But Congress, naturally, didn't know what to make of such a virtue-signal. And as author Stephen Budiansky reports, fate punished Holmes for his sanctimony. Confused lawmakers left the cash to waste away for years in a non-interest-bearing account.

Other presidents moralized differently: Calvin Coolidge, an early and perspicacious critic of the Deep State, recognized that the basis of civilized society lay, mostly, outside government. Coolidge also recognized that public officials were just as capable of mischief as any robber baron. Coolidge labelled overtaxation legalized larceny.

The legalized larceny however quickly proved unstoppable, and within a few years, intimidated taxpayers retreated from moral arguments to pragmatic self-defense. Gangsters such as Al Capone might be caught in tax fraud, and that fraud would provide authorities opportunity to probe for all their other crimes. But such misfortune would not befall good citizens. Or so Americans told themselves.

In a case that went the government's way, Judge Learned Hand of the Second Circuit did drop a line that subsequently provided a redoubt for countless tax defendants: Anyone may so arrange his affairs that his taxes shall be as low as possible; . . . there is not even a patriotic duty to increase one's taxes.

That redoubt became less secure over the decades as the tax code increased in complexity, deepening and spreading the tax thicket. By the 1970s, the moralizers — or progressive moralizers, at least — had returned, rendering the tax challenge even rougher for regular citizens. Renwick reports that Jimmy Carter as a new president in 1977 supplied his tax data to the public, revealing that his peanut farm received credits generous enough to ensure he owed no income tax. Matching Justice Holmes in the sanctimony department, Carter made a voluntary payment of $6,000, 15 percent of his income in the year in question, because of my strong feeling that a person should pay some tax on his income.

Renwick himself does what he can to shore up the old Learned Hand defense, laying out, in a great effort at exactitude, the difference between tax evasion — illegal action — and tax avoidance, which is legal. Structuring transactions in a way that isn't taxable is completely legal — as long as you follow the rules. Of course, not all of presidents' returns are public. But from the details he can glean, Renwick supplies plausible analyses of politicians' efforts to legally lower their tax bills.

These make for amusing reading. Senator John Kerry opted to class himself in the less-used tax category Married Filing Separately, presumably in order to sequester from public scrutiny the fortunes of his wife, Theresa Heinz Kerry. Senator Ted Cruz published the first two pages of his own return, even though other schedules and forms were prominently referenced. From patriarch Fred on down, the Trump family seems to have reduced both income and estate-tax bills by employing their children. President Biden and the First Lady created S Corps, one per spouse, perhaps, as Renwick surmises, to reduce their Medicare payments. Alas, at least for tax gossips and partisans, the book was published in February, and so features scant detail on Hunter.

Yet as Renwick elsewhere concedes, following the rules is indeed now often a bootless errand, since the rules are even vaguer than they were say, half a century ago. President Trump's famous tax deduction for hair care may have been illegal, Renwick concludes, but was not necessarily so.

As Renwick also notes, a new arbiter in the case of presidents has emerged: the media. And the media work on their own floating standard of fairness. The extent of this power first emerged in the early 1970s when Richard Nixon claimed I am not a crook, and, technically, Nixon did not commit tax fraud. Still, sins by Nixon's lawyers — White House aide Edward Morgan was sentenced to four months in prison for backdating a document — did add fuel to the Watergate fire that immolated Nixon.

What's more, Renwick cannot resist going along with the mob some of the time, though he clothes his criticisms as arguments for transparency. He praises President Biden as if Biden were a school boy for releasing documents that show the President slightly amended his tax returns after accidentally (the quotation marks around accidentally are Renwick's) taking the same $3,000 tax deduction twice. And Renwick places Senator Cruz under a shadow for not detailing almost a million dollars of income from Schedule E.

The author's own philosophical contradictions emerge most clearly in the four tax questions he proposes all Americans ask every presidential candidate: The first, Are they a cheater?" irritates not only because of Renwick's surrender to the woke pronoun they but also because cheater is such an ambiguous noun. The second question Renwick proffers is simply disingenuous: Is there a conflict of interest? In business there are almost always conflicts. The third is just as bad: Are they paying their fair share? Who determines what is fair? Federal agents, presumably, or their allies, professional accountants.

The exonerating reply to Renwick's fourth question, Do they have any foreign business dealings? would exclude from presidential races anyone who worked in international business, a counterproductive criterion at a point when we all wish our commander in chief knew more not less about, say, oil deals in Moscow or the level of padding that goes into official GDP numbers in Beijing. Whenever he gets too close to acknowledging such inconsistencies Renwick, both a certified public accountant and a chartered financial analyst, retreats to his own redoubt, that of tax advisement. He counsels citizens to ask of presidents: What can we learn and borrow from them?

Renwick's personal recommendation is that we require, even by law, that all candidates publish their tax returns. If the public can see their tax returns and answer these questions, we can be a better judge as to whether or not our leaders are doing anything unscrupulous that could cause harm to the country.

This is an admirable thought, but one that, in the current litigious, investigative storm would merely stoke more audits, and yes, more indictments. Our trouble these days is not holding lawmakers of good will to a higher standard. It is that becoming a lawmaker, or even a lawmaker's lawyer, is so fraught with legal peril that people of good will choose not to serve.

The flaw in the entertainment of All the Presidents' Taxes is that Renwick treats presidents like royals, the kind the public simultaneously despises and longs to resemble. But when it comes to taxes, the interesting thing about presidents is not that they are celebrities or deities on earth. It is that the electorate has situated them in the best position of all to lead the country in mowing down the thicket. Some presidents — Coolidge, John Kennedy, Ronald Reagan — have understood this, and they got out the mowers, leading Congress in broad tax reform. The beleaguered President Trump understood it as well, managing smaller changes to the code that strengthened the economy into the Covid-19 period.

Working out a tax overhaul of the scale of President Coolidge or Reagan is today regarded as a risible proposition. So the party of tax reform, the Republicans, instead fusses around about adding more child-tax credits to the already long list of those on the books, or alternatively, baits and polices the IRS. This disappointingly modest approach stems partly from helplessness: Crafting a grand overhaul requires colleagues across the aisle willing to compromise, and today such colleagues are in short supply. The failure also comes because a vast endeavor like reform requires good will and peace of mind. Both are hard to muster on a day you suspect you are about to be indicted.

Renwick, Charles, All the Presidents' Taxes: What We Can Learn (and Borrow) from the High-Stakes World of Presidential Tax-Paying, Lioncrest Publishing, 2023.

Budiansky, Stephen, Oliver Wendell Holmes: A Life in War, Law, and Ideas, W.W. Norton, 2019.

Amity Shlaes, a National Review Institute fellow, is the author of Coolidge and the chairwoman of the board of the Calvin Coolidge Presidential Foundation.


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Posted: August 23, 2023 Wednesday 06:30 AM