Murphy Flunks "Federal Taxation 101"

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LPC
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Murphy Flunks "Federal Taxation 101"

Post by LPC »

In their brief to the DC Circuit, lawyers for Ms. Murphy once again confused "basis" with "value," which is a common law school mistake in introductory taxation classes.
Significantly, the Government's citing § 1001 and other authorities to argue that there is "no basis" in human capital, and thus no value to human life, does not change the binding "long history" of Departmental rulings and cases cited above. The Government's tax basis argument misses the point and diverts attention from the central holding of Glenshaw Glass, that in order to tax Ms. Murphy's damages the Government must show that her damages award was an "accession to wealth." This the Government has not done. Rather, Ms. Murphy raised the human capital analogy, that was relied on by the Treasury Department in 1918 and 1922, as a means to demonstrate that her "make whole" compensatory damages are not an "accession to wealth," and therefore do not fall within the definition of income under § 61(a) and the Sixteenth Amendment.
"Reply Brief of Appellants," Marrita Murphy et al. v. IRS et al., 2007 TNT 59-11, No. 05-5139 (DC Cir. 3/14/2007).

So the government can tax the money we receive from our labor or our time only if our labor and our time have no value?
Dan Evans
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Re: Murphy Flunks "Federal Taxation 101"

Post by Imalawman »

LPC wrote:In their brief to the DC Circuit, lawyers for Ms. Murphy once again confused "basis" with "value," which is a common law school mistake in introductory taxation classes.
I saw that, and I wondered if the attorneys really believe that basis is equal to value. I find it hard to believe that you're engaged in a high profile tax case and you absolutely butcher such an elementary concept of taxation. It almost seems as though they're being a little intellectually dishonest here.
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SteveSy

Re: Murphy Flunks "Federal Taxation 101"

Post by SteveSy »

Imalawman wrote:
LPC wrote:In their brief to the DC Circuit, lawyers for Ms. Murphy once again confused "basis" with "value," which is a common law school mistake in introductory taxation classes.
I saw that, and I wondered if the attorneys really believe that basis is equal to value. I find it hard to believe that you're engaged in a high profile tax case and you absolutely butcher such an elementary concept of taxation. It almost seems as though they're being a little intellectually dishonest here.
I think the intention was to demonstrate that to only rely on basis ignores value. Just because you have no "basis" in something doesn't mean you haven't lost something. You had it, it was yours to do with as you please and someone destroyed it or diminished it so now you have less than you had before. Returning what was lost or diminished is not an increase it's simply making you whole again. The government wants to focus on basis in order to escape the obvious, you lost something, they want to pretend you lost nothing and you gain by simply receiving compensation for what you lost.

Whatever, I realize many on her want to claim "but, but basis is the determining factor that's the way it is, the IRS said so". Murphy is simply making the point that it's nonsense and devoid of common sense. Anyone who hasn’t been fallen down the IRS rabbit whole would reject the IRS’s nonsense. Basis has it's purposes, compensation for damaged property is not one of them.

I’ve given an example before of how nonsensical the basis argument is by using the baseball card example. You find a baseball card worth 10k and you trade it for someone else’s baseball card having the exact same qualities. They paid 10k for it, using basis alone the person who originally found the card now has 10k in income though he’s gained nothing and had no accession to wealth, it’s absurd.

I know, I know I’m an idiot. I don’t know tax law and I’m not a CPA or tax attorney…..thank God I’m not, if being one of those means you’re must unplug from reality and accept IRS reprogramming.
Last edited by SteveSy on Tue Mar 27, 2007 3:58 pm, edited 1 time in total.
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Re: Murphy Flunks "Federal Taxation 101"

Post by Imalawman »

SteveSy wrote:I’ve given an example before of how nonsensical the basis argument is by using the baseball card example. You find a baseball card worth 10k and you trade it for someone else’s baseball card having the exact same qualities. They paid 10k for it, using basis alone the person who originally found the card now has 10k in income though he’s gained nothing and had no accession to wealth, it’s absurd.
Let's say in your example that the IRS said you didn't have to pay taxes on your gain of $10,000 right away. But instead waited until you sold the baseball card for $10,000 cash. Would you agree that the $10,000 is income?
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SteveSy

Re: Murphy Flunks "Federal Taxation 101"

Post by SteveSy »

Imalawman wrote:
SteveSy wrote:I’ve given an example before of how nonsensical the basis argument is by using the baseball card example. You find a baseball card worth 10k and you trade it for someone else’s baseball card having the exact same qualities. They paid 10k for it, using basis alone the person who originally found the card now has 10k in income though he’s gained nothing and had no accession to wealth, it’s absurd.
Let's say in your example that the IRS said you didn't have to pay taxes on your gain of $10,000 right away. But instead waited until you sold the baseball card for $10,000 cash. Would you agree that the $10,000 is income?

Yes, and I realize you're going to probably present some regulation or law. It would be a red herring because using the IRS's understanding of income it's actually realized at the point of the trade. Waiting until a sale takes place is merely being nice, it's not a requirement, at least not as far as I can tell. I realize things can get complex, like what happens when the card was damaged and there is no card to replace it with so you get cash. Is that income? I don’t think so, if anything the point of finding it is income, that’s when you had an accession to wealth clearly realized.

I’m not saying basis isn’t necessary in some circumstances, it is but it’s ridiculous to make it a blanket rule. It makes replacement of capital income in some circumstances.
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Post by Demosthenes »

I went to a lunch seminar a few months ago in DC where the speaker was Ms. Murphy's attorney. When one of the tax attorneys in the audience wanted to know why the basis issue was being mangled, the attorney said he specialized in whistleblower and civil rights litigation and knew nothing whatsoever about tax law.
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Re: Murphy Flunks "Federal Taxation 101"

Post by LPC »

SteveSy wrote:I’ve given an example before of how nonsensical the basis argument is by using the baseball card example. You find a baseball card worth 10k and you trade it for someone else’s baseball card having the exact same qualities. They paid 10k for it, using basis alone the person who originally found the card now has 10k in income though he’s gained nothing and had no accession to wealth, it’s absurd.
Sorry, but the fact that he choose to use his $10,000 of value to obtain a slightly different baseball card, instead of cash or some other form of property, is his problem and not mine. He found a baseball card and could have kept it on his mantle and admired it for the rest of his life without any tax consequences. Instead, he chose to exchange it for a different card, which means that he realized gain equal to the different between the basis of what he gave up and the value of what he acquired.

In every tax and legal issue, you seem to have no standards other than your personal and purely subjective knee-jerk reactions. In the example above, you label something as "nonsensical" and "absurd" without any explanation, so I can only speculate about why you "think" the way you "think." Perhaps you think that there is something absurd about trying to tax the gain on something you think is a like-kind exchange. Perhaps you think that there is something absurd about taxing gain on baseball cards. Or perhaps you think that there is something absurd about taxing gain realized in an exchange of property for property. Who knows? And who cares?

Don't bother to respond to me, because I don't really care what you think you think. Others might be willing to trade words with you, trying to find some sense in your blathering, but I think it's like trying to find a unicorn's horn in a septic tank.
Dan Evans
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Re: Murphy Flunks "Federal Taxation 101"

Post by webhick »

LPC wrote:but I think it's like trying to find a unicorn's horn in a septic tank.
Absurd. :) Every septic tank has a unicorn's horn in it. That's where the bylaws say we need to store them. And next time you get a rectal exam, ask the doctor to find the unicorn. He's obligated to tell you that it's not there, but trust me, LIES. ALL LIES. Anyone's who's managed to shove their head up there can tell you that they've seen it with their own two eyes! And that's why they don't just drop us in the ground as is when we die. They have to extract the unicorn first so they can transport it to the hospital - where it can make a new home in a newborn. That's why you see those "organ" couriers walking around with little biohazard coolers. He doesn't have a kidney in there, it's a small colony of unicorns!

They're not extinct or "mythical". They're just hiding in the one place we'd never look.

EDIT: I just realized that I never explained why we store the unicorn horns in septic tanks.... Unicorns can only exist in the rectum. In the beginning, we did in fact keep the unicorns and their horns together, but unfortunately it was quite painful. So we removed the horns so that we didn't have to walk around like we have severe hemorrhoids. The horns are kept alive separate from the unicorn by way of the unicorn's secretion - which obviously have only one exit point.
Last edited by webhick on Tue Mar 27, 2007 5:02 pm, edited 1 time in total.
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Post by Cpt Banjo »

Actually, the finder of a $10,000 baseball card (or any other treasure trove) would have income recognition as soon as it's reduced to undisputed possession. See Reg. Sec. 1.61-14(a); Rev. Rul. 61, 1953-1 C.B. 17; Cesarini v. U.S., 428 F.2d 812 (6th Cir. 1970).
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Re: Murphy Flunks "Federal Taxation 101"

Post by Imalawman »

webhick wrote:
LPC wrote:but I think it's like trying to find a unicorn's horn in a septic tank.
Absurd. :) Every septic tank has a unicorn's horn in it. That's where the bylaws say we need to store them. And next time you get a rectal exam, ask the doctor to find the unicorn. He's obligated to tell you that it's not there, but trust me, LIES. ALL LIES. Anyone's who's managed to shove their head up there can tell you that they've seen it with their own two eyes! And that's why they don't just drop us in the ground as is when we die. They have to extract the unicorn first so they can transport it to the hospital - where it can make a new home in a newborn. That's why you see those "organ" couriers walking around with little biohazard coolers. He doesn't have a kidney in there, it's a small colony of unicorns!

They're not extinct or "mythical". They're just hiding in the one place we'd never look.
Wow. :shock: Now that's "out there". :)
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SteveSy

Re: Murphy Flunks "Federal Taxation 101"

Post by SteveSy »

LPC wrote:
SteveSy wrote:I’ve given an example before of how nonsensical the basis argument is by using the baseball card example. You find a baseball card worth 10k and you trade it for someone else’s baseball card having the exact same qualities. They paid 10k for it, using basis alone the person who originally found the card now has 10k in income though he’s gained nothing and had no accession to wealth, it’s absurd.
Sorry, but the fact that he choose to use his $10,000 of value to obtain a slightly different baseball card, instead of cash or some other form of property, is his problem and not mine. He found a baseball card and could have kept it on his mantle and admired it for the rest of his life without any tax consequences. Instead, he chose to exchange it for a different card, which means that he realized gain equal to the different between the basis of what he gave up and the value of what he acquired.
How did he realize anything? He had a card worth 10k and traded it for another card worth 10k, he gained nothing.
In every tax and legal issue, you seem to have no standards other than your personal and purely subjective knee-jerk reactions. In the example above, you label something as "nonsensical" and "absurd" without any explanation, so I can only speculate about why you "think" the way you "think."
It seems absurd to me to claim you have a gain when in fact you gained nothing. I don’t understand why that needs explanation. If I handed you a hundred dollar bill and you gave me 20 5’s did I gain anything? If I traded one hundred dollar bill for 20 things that cost $5 did I gain anything? If I found a hundred dollar bill and traded it for another $100 bill did I gain anything? Why is it if I find an item worth a $100 and trade it for another item of the exact same type worth $100 I’ve gained a $100?

Don't bother to respond to me, because I don't really care what you think you think. Others might be willing to trade words with you, trying to find some sense in your blathering, but I think it's like trying to find a unicorn's horn in a septic tank.
No worries Dan I wouldn’t expect you to have common sense; it's been thoroughly eviscerated from your brain. I do have a deal for you though. I think I can find something you have that was given to you, I'll purchase the exact same item and we'll trade. I'll gladly split amount you'll gain from the transaction. I mean why not, you're into increasing you wealth aren't you? You’ll even have the same type and quality of the item back. After all if it's really a gain we could both make out like bandits....or at least I'll be doing well, I'm not so sure you'll come out ahead in the deal. But then since I'm so stupid I wouldn't see your gain. Really no sweat off my back, let's trade! :roll:

Oh...and I have a few bridges to sell you too, I heard you're gullible enough to believe anything.
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Post by LPC »

Cpt Banjo wrote:Actually, the finder of a $10,000 baseball card (or any other treasure trove) would have income recognition as soon as it's reduced to undisputed possession. See Reg. Sec. 1.61-14(a); Rev. Rul. 61, 1953-1 C.B. 17; Cesarini v. U.S., 428 F.2d 812 (6th Cir. 1970).
This has come up before, and I think that's the wrong result, because there are lots of situations in which people acquire valuable property without realizing income. A few examples:

1. Commercial fisherman do not realize income when they catch fish, but only when they sell the fish.

2. Prospectors do not realize income when they find ore, stake a claim to the ore, or even take the ore from the ground, but only when they sell the ore.

3. Hunters do not realize income when they shoot animals, but only when (and if) they sell the meat, skins, heads, or other valuable animal parts.

The "treasure trove" regulation makes sense when what is found is money, but the application is more dubious when what is found is property, in part because there are some many other occasions when the acquisition of property is NOT considered income.
Dan Evans
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Re: Murphy Flunks "Federal Taxation 101"

Post by natty »

LPC wrote: So the government can tax the money we receive from our labor or our time only if our labor and our time have no value?
The confusion is not with Ms. Murphy but with the govt. The govt has confused 'basis' with 'cost'. That because her human capital cost her nothing, she had no basis.

The "human capital" argument is an analogy, and like all analogies, they break down. With most capital, you can set the definitive cost of that capital and thus set its basis. However, neither your own labor, your time nor your person has a "cost". That does not mean they have no basis which Ms. Murphy equates with value.

The entire basis argument is a strawman. Her compensatory damages merely made her whole. Of course she had a "basis" in her human capital. That basis was priceless.
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Post by LPC »

Demosthenes wrote:I went to a lunch seminar a few months ago in DC where the speaker was Ms. Murphy's attorney. When one of the tax attorneys in the audience wanted to know why the basis issue was being mangled, the attorney said he specialized in whistleblower and civil rights litigation and knew nothing whatsoever about tax law.
Nice to know they are being consistent, because it looks like they still don't.

In another part of the brief they announce that any tax on any income would be a "capitation," citing Adam Smith, which means that the Supreme Court had it completely wrong for more than 100 years.
B. The Tax On Ms. Murphy Is a "Capitation" or Other Direct Tax.

Alternatively, the tax on Ms. Murphy is a direct tax on the source and more direct than the tax declared to be invalid in Pollock.18 The Government makes many errors in its effort to counter Amici's argument, joined by Ms. Murphy, that the tax on Ms. Murphy's damages is a direct tax subject to apportionment under the Constitution.

1. The Federalist has a great deal to say about the nature of direct and indirect taxes, all of it unfavorable to the Government's case. The Government's response is to ignore the Federalist completely.

The Government draws from a secondary source its sole reference to a primary source: a passage from James Madison's notes of The Debates in the Federal Convention on August 20, 1787.19 Madison records that Rufus King asked the convention "what was the meaning of direct taxation" and that "[n]o one answd." Appellees' Br., pp. 59-60. The Government implies that the other delegates were baffled by the question and had no answer. This is both disingenuous and illustrates the folly of attempting Constitutional analysis without reference to The Federalist. It is obvious the delegates already had clear ideas about the meaning of direct and indirect taxation.20 Madison himself, as one of the three authors of The Federalist, wrote specifically in No. 54, about "direct taxes" and their relationship to apportionment of representatives. The Federalist Papers, No. 54 (Madison), pp. 336-7 (Mentor ed. 1961). It is overwhelmingly likely that the future President, knowledgeable and attentive, simply joined the others in ignoring King whose comment came close to the end of a hot August Monday in Philadelphia during a discussion of apportionment of taxes among the states pending an initial census. King was likely ignored because the delegates wanted to get on with the issue at hand, not because they didn't know what was meant by "direct taxation." "No one answd" was thus essentially equivalent to "No one bothered to answer."

2. The Government overlooks that the tax it seeks to impose upon Ms. Murphy is in fact a capitation tax or other direct tax. Contemporaneous authoritative explanation of the term "capitation" shows that the term was meant to encompass, among others, income taxes. Albert Gallatin, Secretary of the Treasury under Presidents Jefferson and Madison, May 14, 1801 to February 9, 1814, thus wrote as to the meaning of the term:
The remarkable coincidence of the clause of the Constitution with this passage [in Adam Smith's "Wealth of Nations"] in using the word 'capitation' as a generic expression, including the different species of direct taxes, in acceptation of the word peculiar, it is believed, to Dr. Smith, leaves little doubt that the framers of the [Constitution] had [Adam Smith] in view at the time, and that they, as well as he, by direct taxes, meant those paid directly from and falling immediately on the revenue . . ." 3 Gallatin's Writings, (Adamis's ed.) 74, 75. [Quoted in Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, 570 (1895), vacated on rehearing 158 U.S. 601 (1895).]
Of course, direct taxes in the Constitution are not limited to capitation taxes. See Article I, § 9, cl. 4 ("No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."). Also see, Jensen, 97 Columbia Law Review at 2389-2397. A definition of direct taxes based on the historical record is: "Direct taxes are taxes that are not indirect taxes and that are imposed by the national government directly on individuals, generally without the states' serving as filters of the national power." Id., at 2402. On the basis of this definition, a tax on Ms. Murphy's damages is a direct tax. It was Ms. Murphy who paid the tax now at issue. The tax was both measured by the amount of Ms. Murphy's damages to make her whole for personal injury loss and clearly fell, directly, upon her. As a result, the tax the Government seeks to impose is thus clearly and inescapably direct.

3. The Government's heavy reliance on Hylton v. United States, 3 U.S. 171 (1796), is both over-stated and misplaced. First, in fact, only two of the justices -- William Patterson and James Wilson -- not four, were delegates to the Constitutional Convention.21 The lead opinion in Hylton was written by Samuel Chase, who was not a delegate. Second, there no reason to prefer the personal recollections of Messrs. Patterson and Wilson to the extent reflected in Hylton over the more immediate ones set forth in The Federalist -- rather the reverse. Third, Mr. Justice Chase's theory of direct and indirect taxation corresponds neatly to the principles set forth in The Federalist and Gallatin's Writings -- that direct taxes are measured by the taxpayer's revenue and indirect (consumption) taxes by the taxpayer's expenses:
I think an annual tax on carriages for the conveyance of persons, may be considered as within the power granted to Congress to lay duties. The term duty, is the most comprehensive next to the generical term tax; and practically in Great Britain, (whence we take our general ideas of taxes, duties, imposts, excises, customs, &c.) embraces taxes on stamps, tolls for passage, &c. &c. and is not confined to taxes on importation only.

It seems to me, that a tax on expence is an indirect tax; and I think, an annual tax on a carriage for the conveyance of persons, is of that kind; because a carriage is a consumeable commodity; and such annual tax on it, is on the expence of the owner. [3 U.S. at 175.]
Mr. Justice Patterson's views in Hylton are drawn even more directly from The Federalist and Gallatin, and cites to Adam Smith's Wealth of Nations, 3 Vol. pp. 331 and 341 (1776), which likewise supports that the tax on Ms. Murphy's damages are direct. Hylton., 3 U.S. at 180-81. Hylton thus supports Ms. Murphy's position in the instant case.
I find it telling that the lawyer writing the brief thinks that, by demonstrating that a tax on an expense is indirect, that he has also demonstrated that a tax on income could *not* be indirect, and therefore must be direct. This is completely illogical and borders on tax protester gibberish.
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Re: Murphy Flunks "Federal Taxation 101"

Post by natty »

SteveSy wrote: How did he realize anything? He had a card worth 10k and traded it for another card worth 10k, he gained nothing.
stevie, your analogy sux because he FOUND the card.
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Re: Murphy Flunks "Federal Taxation 101"

Post by Imalawman »

SteveSy wrote: How did he realize anything? He had a card worth 10k and traded it for another card worth 10k, he gained nothing.
Ok, but this is a like kind exchange, so I would argue there has been no realization yet, (if 1031 has been met). But let's look at this separate from taxes.

If you found a $10,000 baseball card, aren't you a $10,000 baseball better off? Isn't this an accession to wealth?

If you agree here, then why shouldn't the gov't tax it, if its income as an accession to wealth?
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Post by Cpt Banjo »

LPC wrote:This has come up before, and I think that's the wrong result, because there are lots of situations in which people acquire valuable property without realizing income. The "treasure trove" regulation makes sense when what is found is money, but the application is more dubious when what is found is property, in part because there are some many other occasions when the acquisition of property is NOT considered income.
There are honest differences of opinion on this. Compare Zelenak and McMahon, Professors Look at Taxing Baseballs and Other Found Property, 84 Tax Notes 1299 (August 30, 1999) with Dodge, Accessions to Wealth, Realization of Gross Income, and Dominion and Control: Applying the "Claim of Right Doctrine" to Found Objects, Including Record-Setting Baseballs, 5 Fla. Tax Rev. 685 (2000).

I can’t recall – was there ever any definitive account of whether the fans who caught any of the home run balls hit by McGwire, Sosa, or Bonds realized income upon catching the memorable orbs?
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Post by grixit »

Demosthenes wrote:I went to a lunch seminar a few months ago in DC where the speaker was Ms. Murphy's attorney. When one of the tax attorneys in the audience wanted to know why the basis issue was being mangled, the attorney said he specialized in whistleblower and civil rights litigation and knew nothing whatsoever about tax law.
In the tp world, that's considered a plus. I bet he puts it in his brochures.
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Post by Imalawman »

CaptainKickback wrote:Actually you are only POTENTIALLY better off once you find the card.

Only when the card is sold or used as collateral for a loan does the potential become the actual.

Until you actually realize a benefit from the card, it only POTENTIALLY makes you better off.
\


I would disagree. You are actually better off when you have that card. If you don't use it to your advantage, that's your problem. But you were still better off at the point you gained ownership over that baseball card.

You seem to be thinking in terms of cash and realization. But realization doesn't mean that you weren't better off until you realized money. Realization is a tax principle designed to tax people as they have the ability to pay. But you can have a realization without actually receiving any money. Phantom gains can be a really big problem in flow through entities. So, in short, I cannot agree that cash received is the only means becoming "better off".
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SteveSy

Re: Murphy Flunks "Federal Taxation 101"

Post by SteveSy »

natty wrote:
SteveSy wrote: How did he realize anything? He had a card worth 10k and traded it for another card worth 10k, he gained nothing.
stevie, your analogy sux because he FOUND the card.
Ok he found it, a best that's when there was a gain. There was no gain when you traded a card for an equal value card.