Inquiring Minds Want To Know

Most of the questions surrounding the President’s payments to Ms. Clifford could be answered if the President would only provide us with copies of a few documents:

  1. Copies of the cancelled checks used to pay Mr. Cohen.  We would then know the amounts and dates of all payments and the identity(ies) of the payors, e.g., Mr. Trump or one or more of his business entities.
  2. Copies of those portions of Mr. Trump’s income tax returns and/or those of one or more of his business entities reflecting the payments.  We would then be able to determine whether the payments were considered business deductions or were treated as non-deductible personal expenses.  We don’t need to see all of the returns, only those portions that reflect the payments.
  3. Copies of the written retainer agreement(s) or engagement letter(s) between Cohen, on one side, and Mr. Trump or one or more of his business entities on the other.  In this regard, in New York the Rules of Professional Responsibility, § 1212.1, requires, in pertinent part, that: “[A]n attorney who undertakes to represent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter (i) if otherwise impracticable or (ii) if the scope of services to be provided cannot be determined at the time of the commencement of representation.”  If this (or these) agreement(s) were disclosed, we would then be able to determine the identity(ies) of Mr. Cohen’s client(s) and various other relevant information.  (Section 1212.1 requires that the engagement letter “shall address the following matters: 1. Explanation of the scope of the legal services to be provided; and 2. Explanation of attorney’s fees to be charged, expenses and billing practices.”)
  4. Copies of Mr. Cohen’s invoices.  We would then be able to determine whether the payment to Ms. Clifford was specifically disclosed to Mr. Trump and, if so, when that disclosure was made.
  5. Copies of any Forms 1099 reflecting payments to Mr. Cohen, his law firm, or Ms. Clifford.  This would provide confirmation of the amounts of all payments and the identity(ies) of the payors, e.g., Mr. Trump or one or more of his business entities.

I rarely instruct other professionals (in this case, journalists) as to how to practice their professions.  But here it would seem obvious that one gains little insight by journalists continually phrasing and rephrasing questions to spokespersons and surrogates for Trump.  Just demand that Trump show us the evidence.

High Crime and Misdemeanor

The second article of impeachment against Richard Nixon provided, in pertinent part:

Using the powers of the office of President of the United States, . . . , in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies.

* * * * *

5. In disregard of the rule of law, he knowingly misused the executive power by interfering with agencies of the executive branch . . . in violation of his duty to take care that the laws be faithfully executed.

 

In the last two days, Trump has unleashed a Twitter-storm directed against Amazon.com. Today, Amazon’s stock declined by 5.12%, representing a loss of market cap of over $34.6 Billion.  As reported by Gabriel Sherman of the Atlantic:

[A]ccording to four sources close to the White House, Trump is discussing ways to escalate his Twitter attacks on Amazon to further damage the company. “He’s off the hook on this. It’s war,” one source told me. “He gets obsessed with something, and now he’s obsessed with Bezos,” said another source. “Trump is like, how can I fuck with him?”

* * * * *

Even Trump’s allies acknowledge that much of what’s fueling Trump’s rage toward Amazon is that Amazon C.E.O. Jeff Bezos owns The Washington Post, sources said.

There is no longer any question that we have now crossed into impeachment territory.  One needn’t rely solely on Sherman’s reporting.  After all, Trump’s actions are the same as a mobster extortionist who says:  “Nice business you got here.  It’d be a shame if something happened to it.”  Yet, the media is strangely silent on the connections between Trump’s actions in the last two days and impeachment. Could it be that many simply view Trump as the bloviating crazy uncle that no one takes seriously?  Sherman’s reporting calls into serious question this response:

Advisers are also encouraging Trump to cancel Amazon’s multi-billion contract with the Pentagon to provide cloud computing services, sources say. Another line of attack would be to encourage attorneys general in red states to open investigations into Amazon’s business practices. Sources say Trump is open to the ideas.

Now, regardless of any further turn in the Mueller investigation, it is time to remove Trump from his office.

Deflection, Part III

Earlier, I commented on the NRA’s first non-response to Sen. Ron Wyden’s inquiry about possible Russian financial contributions.

Sen. Wyden persevered and followed up with another request.  The NRA was somewhat more forthcoming in its second response, but was still somewhat evasive.

I have, as a single file, posted Sen. Wyden’s second request, the NRA’s response thereto, and, finally, Sen. Wyden’s most recent follow-up, here.

Deflection

One of my pet peeves is that newspapers will publish stories about some court opinion or other public document, but not provide any link to the documents themselves.  As a consequence, readers will walk away with only the reporter’s view of why the document was of significance, which view is likely further circumscribed by an editor who is hard put to limit the amount of information in the story due to space considerations.

Sen. Ron Wyden sent a letter to the NRA.  His letter was prompted by his interest in determining “the possibility that Russian-backed shell companies or intermediaries may have circumvented laws designed to prohibit foreign meddling in our elections by abusing the rules governing 501(c)(4) tax exempt organizations.”  Sen. Wyden asked for material relating to four specific areas of inquiry.  He received from the NRA only  a partial response to the four specific requests.  I have posted, as a single file, Sen. Wyden’s letter and the NRA’s response with my markups.

The response is, at best, an attempt to deflect the inquiry.   For instance, the NRA was asked:

  • To “identify any remuneration, transaction, or contribution that involved any of the 501(c)(4) entities associated with your organization and any entity or individual associated with any Russian official, Russian national, or Russian business interest.”  The NRA simply ignored that request; and
  • To provide “all documents related to any remuneration, transaction, or contribution” and to identify all such documents that “have already been turned over to United States authorities.”  Both requests were ignored.

Without being specific, the NRA assured Wyden that it always complied with federal election laws. Ultimately, it offered this: “As a longstanding policy to comply with federal election law, the NRA and its related entities do not accept funds from foreign persons or entities in connection with United States elections.” (Emphasis supplied.)

In other words, the NRA did not deny that it was, in terms of its lobbying and “educational” efforts, a mouthpiece of the Russians, but merely that Russian cash had not found its way into any direct political contribution fund.

Nothing to see here.

The Death of Irony

The following are two sequential paragraphs from the obituary in the Baltimore Sun of Kingdon Gould Jr., a great-grandson of robber baron Jay Gould:

When asked in 2014 by a Howard County Times reporter what he had learned from his great-grandfather’s life, Mr. Gould said: “So-called financial success is relatively short-lived, and depending on the quality of the people that inherited it, it can all evaporate.”

As a child he lived in a triplex apartment of 20 rooms and eight baths in Manhattan. He attended the Millbrook School and went off to Yale University to major in English literature.

Sales Tax

Last week, the Supreme Court issued cert in the case of South Dakota v. Wayfair, Inc.  The question before the Court is whether it should abrogate its holding in Quill Corp. v. North Dakota which re-affirmed the Court’s holding in Nat’l Bellas Hess, Inc. v. Dep’t of Rev. of Ill. that the dormant commerce clause prohibits a state from requiring retailers to collect sales taxes on sales into a state unless the retailer is “physically present” there. In Quill, the Court held that “Congress is now free to decide whether, when, and to what extent the States may burden interstate mail-order concerns with a duty to collect use taxes.”

Given the massive shift to online purchasing since Quill, it would seem to be sensible to all interstate sales even if the sellers lack a physical presence in the taxing state. Whether this is sufficient to change the Constitutional doctrine set forth in Nat’l Bellas Hess and Quill is a question that I won’t opine on here. However, there would seem to be no question that, without a national framework, there will be practical problems in imposing and collecting sales taxes on interstate sales.

There are about 10,000 different jurisdictions that impose sales taxes.  Thus, sellers are likely to face problems in effecting compliance. As noted by Avalare:

ZIP codes are commonly believed to be the basis of a sales tax jurisdictional boundaries and rates. . . .Sales tax is imposed by local and regional governments and have no direct correlation between ZIP code boundaries and tax jurisdictions.

However, without a national framework, taxing authorities will have to deal with significant enforcement problems:

We can assume that large retailers will do their best to honestly comply with sales taxes imposed by any of those 10,000 jurisdictions. But what about smaller retailers?  Take a look at this story as to how easily one one can become a “drop-ship” entrepreneur.  Absent some uniform system of compliance enforcement, smaller retailers will simply ignore the collection of sales taxes on their sales. (While there are provisions in most sales tax statutes that impose liability for sales taxes on so-called “responsible persons,” the practical ability to collect from responsible persons who are outside of the taxing authorities’ actual location is zero.)

There is no uniformity among sales tax statutes as to what items are taxable and what items are exempt. To cite a fairly trivial example, some states exempt their own state flags, but not the flags from other states.  More significantly, grocery items are sometimes taxed and sometimes exempt.  (At one time, bibles and other religious articles were often exempt, but these exemptions have been successfully challenged on First Amendment grounds.)

The point is that, even if the Supreme Court overturns existing precedent, there will have to be Congressional legislation to relieve sellers from compliance burdens and to give state and local jurisdictions the tools to enforce their tax impositions.

 

Dissed

In three sentences in the same paragraph of the interview that Donald Trump gave to the NYT, he managed to first deprecate the technical abilities of some of my best friends and then a good number of the contributors to this blog.

First, he said “I know the details of taxes better than anybody. Better than the greatest C.P.A.”  While I’m not a CPA (note to the NYT editors:  the three letters of that professional designation are not supposed to be separated by periods), I do have an LL.M. in Taxation from Georgetown University Law Center.  I work every day with CPAs and I take it personally when the President of the United States attacks their professional abilities.  I have to assume that the only reason that he did not boast that he knew taxes better than any lawyer with a LL.M. in taxation was that he simply did not know that such an academic degree even exists.

But here’s the worse news for this blog.  In the very next sentence he said “I know the details of health care better than most, better than most.”  Take that Keith Humphreys, Miriam Laugesen, Harold Pollack, and Don Taylor.

I haven’t read the entire transcript.  I assume that if Trump goes after drug policy experts, the blog will have to cease publication and Mark will be forced into retirement.

Ripple Effects

Tonight, Fox News will undoubtedly be highlighting the report by the CBO and the JCT that the passage of the Dream Act “would increase budget deficits by $25.9 billion over the 2018-2027 period, boosting on-budget deficits by $30.6 billion and decreasing off-budget deficits by $4.7 billion over that period.” At least in part, the calculations are clearly incorrect because the report does not take into account the provisions of the new tax bill.

Here’s the pertinent portion of the report that deals directly with the tax effects (pages 15-16 of the pdf):

Higher revenues, according to JCT’s estimates, would largely stem from increased reporting of employment income by people who would legally be allowed to work under the legislation. That increase in reported wages would cause increases in receipts, mostly in the form of Social Security taxes, which are categorized as off-budget. In addition, CBO and JCT estimate that an increase in the number of people paying penalties associated with not having health insurance would increase revenues by $0.7 billion over the 2018-2027 period.

Those increases in revenues would be mostly offset for two reasons. First, increased reporting of employment income would result in increases in tax deductions by businesses for labor compensation, including those businesses’ contributions to payroll taxes. As a result, corporations would report lower taxable profits and pay less in income taxes. Noncorporate businesses, such as partnerships and sole proprietorships, also would report lower taxable income, which would decrease individual income taxes paid by the partners and owners. The decrease in income tax receipts would total $3.8 billion over 10 years. Second, CBO and JCT estimate that there would be a $1.2 billion decrease in revenues over the 2018-2027 period associated with increases in the nonrefundable portion of the premium assistance tax credit provided through the health insurance marketplaces established under the Affordable Care Act.

The new tax bill would increase the bottom line cost because it does away with the heath insurance penalties (an increase of $0.7 billion), but decrease the bottom line cost because, by lowering the tax rates on businesses, the tax decreases the $3.8 billion that the CBO/JCT estimates will be lost if the Dream Act is past due to increased business tax deductions.

Going one step further, the CBO/JCT estimates that the Dream Act will cost the federal government $11.8 billion in subsidies for health insurance purchased through the marketplaces. (Pages 10-11 of the pdf.) Of course, this assumption is incorrect, since it does not factor in the reduction of the subsidies anticipated as a result of the tax bill.

Finally, the report anticipates that passage of the Dream Act “would increase outlays for the . . . child tax credits, which are refundable, by $5.5 billion over the 2018-2027 period.”  (Page 12 of the pdf.) Of course, this is now incorrect since the tax act first increases the amount of the child tax credit, but then lowers the threshold when it phases out.

I will update this posting when I can get better numbers from the CBO on the tax bill. Suffice it to say, however, the headline numbers on the CBO/JCT report on the Dream Act are simply wrong.

Junior’s Claim of Attorney-Client Privilege

Donald Trump, Jr., has claimed that the attorney-client privilege allows him to dummy up before a Congressional committee concerning a meeting with Daddy because there was an attorney in the room at the time.  Quite apart from being laughable on its face, there appears to be a more fundamental problem that Junior faces with respect to his assertion of attorney-client privilege.  It seems that the attorney-client privilege may not be a bar to a Congressional inquiry in the same way that it is in the context of a judicial proceeding.  See The Attorney-Client Privilege in Congressional Investigations.  That is, even if the communication was a legitimate attorney-client communication, Junior could still be compelled to testify.