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Well, in this case the IRS isn't passing a retroactive law, they are clarifying the interpretation of an existing law.

by jeremyt 11y ago

tanderson92 11y ago
The need to clarify the point implies that it was interpreted differently in the past. So this change in interpretation being applied retroactively is what the OP is concerned with.
- dragonwriter 11y ago
  Interpretation isn't law, so in any legal dispute over the IRS actions under the current interpretation, the law which would be controlling is not retroactive. Not to mention that there is solid precedent that retroactive taxes are not, in general, ex post facto laws in the first place, such that even if this was Congress adopting a retroactive tax law, it still wouldn't fall afoul of the ex post facto prohibition.
  - tanderson92 11y ago
    > Interpretation isn't law, so in any legal dispute over the > IRS actions under the current interpretation, the law which > would be controlling is not retroactive. This is to me a very weak argument (not that I disagree that this may be the standard that is applied in practice). If the Congress passed a law saying "the IRS can set tax code as it sees fit" and the IRS proceeds to levy taxes all the way back to 1980 on people as however it so desires, you should not be allowed to use that law as grounds for not having violated the ex post facto requirement. If this is the current understanding of what is allowed, I must vigorously object to whichever judgement left this precedent.
    - dragonwriter 11y ago
      > If the Congress passed a law saying "the IRS can set tax code as it sees fit" Then this would be an unconstitutional delegation of legislative authority to the executive. [0] Rendering the consideration of whether any executive action under it would constitute an ex post facto law moot -- if Congress purports to delegate enough power to the executive that retroactive executive action under it would be an ex post facto law, than the whole scheme is an unconstitutional delegation of legislative power whether or not it is applied retroactively. Heck, even though retroactive taxation isn't generally ex post facto law (which is retroactive criminalization or enhancement of criminal penalties), the law you propose would be an unconstitutional delegation. > If this is the current understanding of what is allowed Its not, its just the prohibition that prevents it has nothing to do with (and is much broader than) the ex post facto law prohibition. [0] See, e.g., https://en.wikipedia.org/wiki/Nondelegation_doctrine#United_States https://en.wikipedia.org/wiki/Nondelegation_doctrine#United_...
      - tanderson92 11y ago
        > Then this would be an unconstitutional delegation of legislative authority to the executive And yet this is what we seem to be experiencing in this case, where the IRS can make a policy interpretation retroactively to the tune of $6 billion for a single taxpayer. Your source indicates that congress allows the IRS to decide tax policy, but since tax evasion is itself a crime it seems to indirectly violate the ex post facto law prohibition.
        dragonwriter 11y ago
        > And yet this is what we seem to be experiencing in this case No, Congress passing a law saying that "IRS can set taxes at any level they want" is not what we are seeing. If you want to argue that the actual laws Congress has passed are unconstitutional delegations, please, point to the specific laws, and make that argument. > but since tax evasion is itself a crime it seems to indirectly violate the ex post facto law prohibition. Evasion is a different thing than non-payment. No act that occurred in the past that was not evasion when it occurred becomes evasion as a result of this change in application.
        tanderson92 11y ago
        > Evasion is a different thing than non-payment. No act that occurred in the past that was not evasion when it occurred becomes evasion as a result of this change in application. Incorrect, but I can see how you might think so. It is the same because if I disagree with the IRS and refuse payment then according to https://www.law.cornell.edu/wex/tax_evasion https://www.law.cornell.edu/wex/tax_evasion, I have committed tax evasion. So yes, since the IRS can adjust my tax burden retroactively, tax evasion is involved. Suppose in 2012 I filed my tax returns and was fully honest. The IRS agreed, but now in 2015 they change the 'interpretation', and if I disagree with the new tax they are levying on me, presto chango! I can now be convicted of tax evasion for refusing to pay this arbitrary retroactive tax.
        dragonwriter 11y ago
- gohrt 11y ago
  but OP's concerns don't matter. The Constitution's concerns matter. "Battery" is a crime. If the state decides that "smacking someone's back" meets the definition of battery, they can prosecute people who committed that act before the clarification, as long as a judge finds their interpretation to be consistent with the wording of the law. Law is not computer code that fully specifies a simulation in advance.
  - deleted 11y ago
    [deleted]
  - mahyarm 11y ago
    So rule decider type B (judges) can effectively create retroactive laws/policies. An interpretation that is enforced is as good as a law.
    - ForHackernews 11y ago
      Yes, obviously. How did you think courts worked?
  - tanderson92 11y ago
    I would set up the situation more like the state passing a law saying that an agency, call it the Battery Protection Agency (BPA), can decide what constitutes battery. Then the BPA decides in 2015 that verbal abuse and insults constitutes battery, and prosecutors proceed to arrest people for insults going back 5 years before the BPA's 2015 decision. The parallels to the IRS case should be obvious, and the above hypothetical scenario is very much what the constitution was meant to protect against.
    - dragonwriter 11y ago
      > The parallels to the IRS case should be obvious Please point the specific provision(s) of law parallel to the one in your hypothetical, both as to the unlimited discretion and as to the discretion to decide what constitutes criminal punishment. Because I don't think the parallels are at all obvious.

Well, in this case the IRS isn't passing a retroactive law, they are clarifying the interpretation of an existing law.

by jeremyt 11y ago

Well, in this case the IRS isn't passing a retroactive law, they are clarifying the interpretation of an existing law.

The need to clarify the point implies that it was interpreted differently in the past. So this change in interpretation being applied retroactively is what the OP is concerned with.

dragonwriter 11y ago
Interpretation isn't law, so in any legal dispute over the IRS actions under the current interpretation, the law which would be controlling is not retroactive. Not to mention that there is solid precedent that retroactive taxes are not, in general, ex post facto laws in the first place, such that even if this was Congress adopting a retroactive tax law, it still wouldn't fall afoul of the ex post facto prohibition.
- tanderson92 11y ago
  > Interpretation isn't law, so in any legal dispute over the > IRS actions under the current interpretation, the law which > would be controlling is not retroactive. This is to me a very weak argument (not that I disagree that this may be the standard that is applied in practice). If the Congress passed a law saying "the IRS can set tax code as it sees fit" and the IRS proceeds to levy taxes all the way back to 1980 on people as however it so desires, you should not be allowed to use that law as grounds for not having violated the ex post facto requirement. If this is the current understanding of what is allowed, I must vigorously object to whichever judgement left this precedent.
  - dragonwriter 11y ago
    > If the Congress passed a law saying "the IRS can set tax code as it sees fit" Then this would be an unconstitutional delegation of legislative authority to the executive. [0] Rendering the consideration of whether any executive action under it would constitute an ex post facto law moot -- if Congress purports to delegate enough power to the executive that retroactive executive action under it would be an ex post facto law, than the whole scheme is an unconstitutional delegation of legislative power whether or not it is applied retroactively. Heck, even though retroactive taxation isn't generally ex post facto law (which is retroactive criminalization or enhancement of criminal penalties), the law you propose would be an unconstitutional delegation. > If this is the current understanding of what is allowed Its not, its just the prohibition that prevents it has nothing to do with (and is much broader than) the ex post facto law prohibition. [0] See, e.g., https://en.wikipedia.org/wiki/Nondelegation_doctrine#United_States https://en.wikipedia.org/wiki/Nondelegation_doctrine#United_...
    - tanderson92 11y ago
      > Then this would be an unconstitutional delegation of legislative authority to the executive And yet this is what we seem to be experiencing in this case, where the IRS can make a policy interpretation retroactively to the tune of $6 billion for a single taxpayer. Your source indicates that congress allows the IRS to decide tax policy, but since tax evasion is itself a crime it seems to indirectly violate the ex post facto law prohibition.
      - dragonwriter 11y ago
        > And yet this is what we seem to be experiencing in this case No, Congress passing a law saying that "IRS can set taxes at any level they want" is not what we are seeing. If you want to argue that the actual laws Congress has passed are unconstitutional delegations, please, point to the specific laws, and make that argument. > but since tax evasion is itself a crime it seems to indirectly violate the ex post facto law prohibition. Evasion is a different thing than non-payment. No act that occurred in the past that was not evasion when it occurred becomes evasion as a result of this change in application.
        tanderson92 11y ago
        > Evasion is a different thing than non-payment. No act that occurred in the past that was not evasion when it occurred becomes evasion as a result of this change in application. Incorrect, but I can see how you might think so. It is the same because if I disagree with the IRS and refuse payment then according to https://www.law.cornell.edu/wex/tax_evasion https://www.law.cornell.edu/wex/tax_evasion, I have committed tax evasion. So yes, since the IRS can adjust my tax burden retroactively, tax evasion is involved. Suppose in 2012 I filed my tax returns and was fully honest. The IRS agreed, but now in 2015 they change the 'interpretation', and if I disagree with the new tax they are levying on me, presto chango! I can now be convicted of tax evasion for refusing to pay this arbitrary retroactive tax.
        dragonwriter 11y ago
gohrt 11y ago
but OP's concerns don't matter. The Constitution's concerns matter. "Battery" is a crime. If the state decides that "smacking someone's back" meets the definition of battery, they can prosecute people who committed that act before the clarification, as long as a judge finds their interpretation to be consistent with the wording of the law. Law is not computer code that fully specifies a simulation in advance.
- deleted 11y ago
  [deleted]
- mahyarm 11y ago
  So rule decider type B (judges) can effectively create retroactive laws/policies. An interpretation that is enforced is as good as a law.
  - ForHackernews 11y ago
    Yes, obviously. How did you think courts worked?
- tanderson92 11y ago
  I would set up the situation more like the state passing a law saying that an agency, call it the Battery Protection Agency (BPA), can decide what constitutes battery. Then the BPA decides in 2015 that verbal abuse and insults constitutes battery, and prosecutors proceed to arrest people for insults going back 5 years before the BPA's 2015 decision. The parallels to the IRS case should be obvious, and the above hypothetical scenario is very much what the constitution was meant to protect against.
  - dragonwriter 11y ago
    > The parallels to the IRS case should be obvious Please point the specific provision(s) of law parallel to the one in your hypothetical, both as to the unlimited discretion and as to the discretion to decide what constitutes criminal punishment. Because I don't think the parallels are at all obvious.