5 ms·

> 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 retro

> 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
        > It is the same because if I disagree with the IRS and refuse payment Nonpayment and refusing payment are different things. The act of refusal would happen after the policy change, therefore, the only act that might even arguably be criminalized is an act that would occur after the change, and no retroactive criminalization has occurred. No act before the policy was adopted is criminalized, even by your characterization. Now, if the actual law allows arbitrary changes to tax calculation by the IRS, you could argue a nondelegation doctrine violation, rather than an ex post facto violation. But to argue that, you'd actually have to point to the provision of law at issue. Or you could argue that the policy change is inconsistent with the law Congress has adopted. But, again, you'd have to actually point to the specific provisions that are violated to do that. If, finally, the IRS simply failed to correctly apply the law as Congress wrote it previously, and the change in guidance is simply closing a gap between IRS policy and the law written by Congress, then you can maybe fault what the IRS was doing before (though, of course, no taxpayer would challenge an overly lax application of the law -- or even have standing to do so), but not what they are doing now.

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
      > It is the same because if I disagree with the IRS and refuse payment Nonpayment and refusing payment are different things. The act of refusal would happen after the policy change, therefore, the only act that might even arguably be criminalized is an act that would occur after the change, and no retroactive criminalization has occurred. No act before the policy was adopted is criminalized, even by your characterization. Now, if the actual law allows arbitrary changes to tax calculation by the IRS, you could argue a nondelegation doctrine violation, rather than an ex post facto violation. But to argue that, you'd actually have to point to the provision of law at issue. Or you could argue that the policy change is inconsistent with the law Congress has adopted. But, again, you'd have to actually point to the specific provisions that are violated to do that. If, finally, the IRS simply failed to correctly apply the law as Congress wrote it previously, and the change in guidance is simply closing a gap between IRS policy and the law written by Congress, then you can maybe fault what the IRS was doing before (though, of course, no taxpayer would challenge an overly lax application of the law -- or even have standing to do so), but not what they are doing now.