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Ever since President Obama raised the idea of taxing health care benefits, I’ve been asked what I think about the plan. Specifically, I’ve received a number of emails which more or less ask three questions:

  1. How would it work?
  2. Do I think it’s fair?
  3. Do I like it?

I’m happy to oblige. But first, some history.

This idea of taxing health care benefits is nothing new. In fact, Senator John McCain put forth a similar proposal when he was running for President. At the time, the idea was widely criticized as damaging to working Americans. But, of course, even last summer, most Americans were blissfully (or perhaps not so much) unaware of the economic crisis that was brewing.

Jump ahead to today’s economic climate. Unemployment is up. Tax revenue is down. Government expenditures are up. The percentage of employers offering full benefits, including health insurance, is down.

And suddenly, that idea from more than a year ago doesn’t look so bad to many Congressional officials. Go figure.

So now, the proposal is not only back on the table, it’s back in a big way: it’s actually making its way through Congress.

So what’s the basic idea? Put simply, it would characterize employer-provided health insurance benefits as taxable. So, for example, to the extent that your employer pays a portion – or all – of your health insurance benefits, that portion would be reportable as taxable income on your form W-2 at the end of the year. To the extent that you pay a portion – or all – of your health insurance costs yourself, that portion is not taxable.

Sounds pretty simple, right?

That’s the answer to the first question.

Now, to the second: do I think it’s fair?

Actually, I do. Health insurance is a massive benefit not provided to all employees. It’s a perk. And a substantial one. If taxed, health care benefits are estimated to be worth nearly $246 billion in revenue – that’s nearly ten times the entire revenues of the state of Pennsylvania alone.

Let’s compare two employees, each nearly identical. One employee makes $50,000 per year and receives health insurance benefits of $4,700/year paid by her employer. The other employee makes $50,000 per year and pays her own health insurance costs of $4,700/year.

(Those figures are based upon the following statistics: In 2008, the annual premium for an employer health plan covering a family of four averaged nearly $12,700. The annual premium for single coverage averaged over $4,700. Median income in the US was approximately $50,000.)

What’s the difference?

Assuming a 20% tax rate (for easy math), here’s the breakdown:

The first employee has $4,700 health insurance benefit tax-free and walks away with $40,000 in cash ($50,000 – 20% tax on $50,000).

The second employee walks away with $35,300 in cash ($50,000 – 20% tax on $50,000 = $40,000 – $4,700 in health insurance). Even worse, the employee may not be able to fully deduct the cost of the health insurance because she must first satisfy the medical expenses floor and then only if she itemizes. And, complicating matters, the cost of that insurance is likely much higher for the employee – individual rates are statistically much more expensive than corporate rates (I can personally attest to this – my husband and I save several hundreds of dollars per month by buying coverage through our firm).

Is that fair?

If employees were taxed on the health care benefit, here’s the breakdown:

The first employee now walks away with $39,060 ($50,000 – 20% tax on $54,700, the cost of salary plus benefits).

The second employee still walks away with $35,300 ($50,000 – 20% tax on $50,000 = $40,000 – $4,700 in health insurance).

Remarkably, in both examples, the first employee is better off than the second employee. In the second example, however, there’s a wee bit more parity. So, do I think taxing health benefits is fair? Yeah, I do. Because getting health insurance benefits tax free is, quite simply, the same as being paid more to begin with.

But almost everyone gets health insurance as a perk, right?

Actually, no. Nearly 80% of all businesses in the US are self-employed. (Source: US Census) That means that at least 80% of the US workforce provides their own health care benefits; it is not a company-sponsored benefit. Additionally, most small businesses are overwhelmingly sole proprietors, partnerships, LLCs, LLPs, or S corporations, each of which has restrictions on tax deductibility for health insurance.

Of the remaining businesses in the US who report having paid employees, 78% have fewer than 10 employees. (Source: US Census) The US is still very much driven by small business. And small business is paying a lot for health care. Many small businesses have been priced out of quality employees because of the cost of health care. Interestingly, making health care insurance taxable would make compensation packages as between smaller and larger businesses much more balanced.

So do I think taxing benefits is a fair proposal? Actually, I do.

Do I like it? That’s a totally different question. I’m not sure. I like the idea of it in theory but I think that the imposition of the tax would be akin to a slap in the face for many taxpayers. As a society, we’ve come to rely on those benefits as something that we’re entitled to, a perk that we deserve, something that no one should be able to touch. I think of it like the mortgage interest deduction, something that inherently and unfairly benefits a disproportionately small percentage of the population but something that US taxpayers have come to rely on when making lifestyle choices. The imposition of a tax on health care benefits might be an unexpected and unwelcome addition for taxpayers who have made choices about employment based on a benefits package that, up until recently, would have been tax advantageous.

It’s a politically dangerous – and potentially complicated – proposal. I happen to think it’s a step in the right direction, though. What do you think?

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At least the excuses keep getting more entertaining… Read on!

The New York Times has reported that another Obama nominee, Capricia Penavic Marshall, has tax issues. And yes, folks, this one is a doozy.

Capricia Penavic Marshall, together with her husband (who happens to be a cardiologist, stay with me on that one), failed to file their 2005 and 2006 federal income tax returns. Marshall is the Obama nominee for chief of protocol for the State Department (I’m not sure, but isn’t that the position that Goldie Hawn filled in the movie, Protocol? If so, Hawn may still be available. Just saying.)

Marshall isn’t claiming some run of the mill excuse. She has a good one: it’s the fault of the Post Office and, of course, her husband. You see, first, her accountant gave them to her husband and he forgot to mail them. And when he finally did get it together, they somehow didn’t get where they needed to be (insert awkward throat clearing here). Marshall claims that an agent “advised us that there were a large number of tax returns misplaced by the D.C. post office for the 2006 tax year.”

And of course, the problem was miraculously resolved in November 2008, a couple of years after the due date. You know, once Obama was in office – not that I’m implying that Marshall somehow believed that she had to get things right all of the sudden… According to Marshall, the IRS generously advised that in the fall of last year that the Service had not received their returns.

Oh those silly Marshalls. They can’t seem to get it together. But when it comes to where the salad fork goes, apparently, we can count on her.

As it turns out, the Marshalls were actually better off filing those returns since the couple was entitled to more than $37,000 in tax refunds for the two years. But that’s not the point. It doesn’t absolve you of the requirement to file.

Yet, a spokesperson for Secretary of State Hillary Clinton seemed to think that made it okay. She said: In the end, only two American taxpayers were adversely impacted by this inadvertent lapse.

Ummm… no.

It affects a lot of American taxpayers. We count on the agents of our government to do the right thing. And not just when it’s convenient. All of the time.

And just to clear up any confusion, the general rule is that a couple who is married filing jointly when both are under the age of 65 must file a return if their gross income is at least $17,900 (that’s the number for the 2008 tax year). In this case, I’m guessing, though I haven’t seen the returns, that much of the refund is due to a combination of withholding and significant credits and deductions, the extent of which would not be known until the return is actually prepared. And clearly, they had the foresight to get an accountant to prepare the return. They just didn’t mail it on time or notice that their $37,000 refund never came.

It doesn’t take a brain heart surgeon to determine that doesn’t look all that great on paper.

I won’t be so hypocritical as to say that I’ve never made a mistake, never missed a filing deadline… I have. See, it’s out there. I don’t claim to be perfect.

But this is the thing. During the Democratic primary, then Senator Clinton knocked Obama as “elitist” and implied that he was “better” than the average American. On the Daily Show, Jon Stewart remarked in response, “I want somebody that’s better than me. If they don’t think they’re better than me then what the hell are they doing running for President? I want someone that’s embarrassingly superior to me.”

And as I’ve said before, that’s kind of the way that I feel about folks in the highest realms of our government. If they’re going to represent our country, I want them to be great people. Because one of the truths about this country is that it is filled with amazing people. Why can’t we seem to find any?

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On April 20, President Obama put forth Mary L. Smith as his nominee to be the Assistant Attorney General for the Tax Division. A hearing to consider the nomination was held last month, on May 12. The report on the hearing was sent to the Senate for consideration earlier this week. And that’s where things got ugly.

As an attorney, Smith has a pretty impressive resume. She graduated from the University of Chicago School of Law, cum laude, where she was a member of the Law Review. She had previously received a B.S., magna cum laude, in mathematics and computer science from Loyola University of Chicago.

Smith served in the Clinton White House as Associate Counsel to the President and Associate Director of Policy Planning before heading to Skadden Arps. She eventually moved on to Schoeman, Updike & Kaufman, where she is now a partner.

She’s a member of the Board of Managers for the Chicago Bar Association, a member of the Council of the American Bar Association’s Section of Individual Rights and Responsibilities and Co-Chair of the District of Columbia Bar’s Section of Litigation Steering Committee.

And just look at this list of “Areas of Concentration” from her web site bio: Securities Enforcement and Compliance, Corporate Governance, SEC Defense and Investigations, Complex Litigation, Government Enforcement Litigation, Class Action Litigation, Securities Litigation, Appellate Practice, and Government Contracts Litigation.

You can read more about Smith by checking out her questionnaire relating to her nominations (it downloads as a pdf).

Some cool stuff in her background. But there’s something oddly missing from these lists… Oh, say, tax?

That’s right: she has no tax experience. She has never written a paper on tax, spoken on tax or even taken a CLE on tax.

She also has no experience as a prosecutor.

And yet, she’s been asked to serve as one of the highest ranking attorneys in the Tax Division of the judiciary.

I agree with Sen. Jeff Sessions (R-AL) who spoke out against Smith’s nomination, saying, “Tax law is very specialized and it’s certainly not an area where you learn on the job.” Sen. Jon Kyl (R-AZ) noted that there must have been “thousands of highly experienced tax lawyers who would love to have a job like this.”

Um, yeah.

So why Smith? Clearly, it’s a political move. No Democrats offered clear support for Smith but still voted to send her nomination to the Senate. The committee vote was 12-7 in favor.

Surprisingly, there were a number of letters of support for Smith. You can read many of the letters here.

Of course, nobody asked me to serve…

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Wanted: Assistant Treasury Secretary for Tax Policy. Must love taxes and be willing to undergo grueling nomination process. Also important to demonstrate understanding that everyone will hate what you do.

As it turns out, nobody seems to want that job.

Funny, at a time when the public is highly critical of the Treasury – clearly linked to our sucky economy – job applicants to fill some of the highest positions have been few and far between. Several key positions remain empty and Assistant Treasury Secretary for Tax Policy is one of them: earlier today, Helen Elizabeth Garrett withdrew her nomination for the job, citing “aspects of my personal family situation.” I think those aspects involved her family screaming, “What could you possibly be thinking?!”

Garrett is not a stranger to DC politics, despite serving as faculty at USC. She likely would have had bipartisan support, having worked as a tax aide for former Sen David Boren (D-OK) and sat on former President George Bush’s 2005 tax advisory panel. Mark Weinberger, Bush’s first Assistant Treasury Secretary for Tax Policy, believed that Garrett was well regarded by Democrats and Republicans.

There is no disputing that Garrett’s withdrawal leaves a big hole at the top of the Treasury. Obama has recently publicized a series of aggressive tax positions, including targeting multinational corporations and high net worth individuals utilizing tax havens, which have made tax policy a hot button item in this administration. Additionally, the administration is expected to announce tax-related initiatives in the health care and energy industries. All of this comes at a time when the feds and most states are facing massive budget shortfalls and revenues are expected to decrease.

The Assistant Secretary for Tax Policy would be the public face for the administration’s tax policies. In other words, Obama’s tax policy wonk. It’s a job that apparently nobody wants (can you blame them?).

Jeff Trinca, a tax policy lobbyist and friend of Garrett, says, “The nomination process has gotten so harsh that good people like Beth are unwilling to put them and their families through the wringer.”

So who does that leave?

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Fix the Tax Code Friday: Bailing Out the Government

15 May 2009

It’s Fix the Tax Code Friday!
Remember that study that I cited from the Tax Foundation earlier in the week? That same report offered another statistic. In 2007, the cost of balancing the budget would have cost each taxpayer an additional $1,789 in taxes. This year, due to “the bailouts and the Troubled [...]

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Obama Set to Shake Up Corporate Tax “Loopholes” Today

4 May 2009

The Obama administration is planning to announce a steps towards his promised “massive overhaul” of international financial regulations this morning. Administration officials do not expect the announcement to be popular.
So, the good news first. Obama will announce plans to make permanent a research tax credit that was to expire at the end of [...]

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White House Releases Tax Returns

16 April 2009

No extensions necessary for President Obama and Vice President Biden. Both have their tax returns for 2008.
Here’s the scoop:
President Obama and his wife reported $2.7 million in 2008, about $1.5 million less than they reported in 2007 (I guess the recession has hit everyone). A majority of their income came from royalties from [...]

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Ask the taxgirl: How Much Money Will I Get Under Obama’s Stimulus Plan?

4 April 2009

Taxpayer asks:
I was told that I would receive all my federal tax withholding for April, May & June. However, I just heard on the local news that it would only be $12 to $15, is that true?
Thanks for your advise,
Taxgirl says:
The Making Work Pay Credit will decrease the amount withheld from your paycheck by the [...]

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Federal Estate Tax Makes News Again

4 April 2009

Remember years ago when there was a lot of buzz about the federal estate tax “repeal” set to take place in 2010? It’s still law. But the thing that Congress didn’t make quite so public is that the repeal only lasts for one year. One. After 2010, the federal estate tax [...]

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Will Obama Make Employee Health Benefits Taxable?

12 March 2009

Senator Max Baucus (D-MT) isn’t a fan of limiting the itemized deductions for higher wage earners. I’ve said before that I’m not a fan of the idea and I don’t think it will pass in Congress.
But Baucus has another idea. He’s asked Treasury Secretary Geithner whether the Obama administration would consider changing the [...]

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