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AffordableCareAct 11 - 25 Jan 2012 - Main.EbenMoglen
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| | Discussion of statutes
begins always with the statutory language. Much water has been
flowed under the bridge below before Arlene even mentions the | | | Please note that the text of Act refers to the mandate as a penalty, not as a tax. See PPACA Sec. 1501(b). Further complicating the government's desire that the mandate be classified as a tax is that the legislative history of the Act indicates that the mandate was called a "tax" in earlier congressional drafts, but that the term "tax" was replaced with "penalty." (See Florida v. U.S. Department of HHS, 716 F.Supp.2d 1134 for a discussion about this.) | |
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> | How does that
"complicate" anything? Isn't Holmes' point that the words mean what
they do, and that the doing is not affected by the naming, because
in the end there are no operative distinctions between "tax,"
"penalty," and "tax penalty"? Surely no one will seriously argue
that it's unconstitutional to use the word "penalty" but
constitutional to use the word "tax." In which case, why does the
name matter at all? | | | -- HarryKhanna - 24 Jan 2012 | | | "The difference between a tax and a penalty is sometimes difficult to define, and yet the consequences of the distinction in the required method of their collection often are important. Where the sovereign enacting the law has power to impose both tax and penalty, the difference between revenue production and mere regulation may be immaterial, but not so when one sovereign can impose a tax only, and the power of regulation rests in another. Taxes are occasionally imposed in the discretion of the Legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty, with the characteristics of regulation and punishment. " | |
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> | Source of quotation? | | | -- RohanGrey - 24 Jan 2012
tax n. a governmental assessment (charge) upon property value, transactions (transfers and sales), licenses granting a right, and/or income. (http://legal-dictionary.thefreedictionary.com/tax). | | | Then again, maybe this doesn't matter. Maybe taxes don't have to be tied to positive transactions. Does anyone know of other taxes that are based on a non-action? There is the estate tax, for instance. Dying isn't usually a choice, but the estate still gets taxed, regardless. Then again, death is definitely an event, as opposed to a non-event. | |
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> | So in your judgment
there would be something different about the situation in which
Congress says "Everyone (with the following exemptions) must pay the
following amount in additional income taxes, but we rebate the tax to
you if you maintain adequate minimum health coverage for your
family?" Then the tax would be on the income, and the choice about
whether to qualify for the rebate would determine the incidence of
the tax?
On the question of
taxes based on non-actions: If I sell my house for more than I paid
for it (or in some other cases, for more than the amount I am
imputed to have paid for it, even I did didn't do anything to
acquire it, which would be known as my "basis") I owe capital gains
taxes on it. But if I "roll over" by buying another house within 18
months, I am not required to pay capital gains taxes at all. Does
that mean that the capital gains taxes are based on my inaction in
not buying another house? Or was I penalized for not buying another
house? How, from a Holmesian point of view, could one tell?
| | | If we determine that money exacted on the basis on a non-event can't be termed a "tax," and that the Affordable Care Act falls under this head, then we'd have a problem with arguing in favor of the Act under the taxing power. Can we make solid determinations on these questions? | |
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> | Does a piece of
legislation have to use the word "tax" in order to be based on the
taxing power? If Congress passes a statute that amends the Internal
Revenue Code to set higher or lower penalties for particular taxpayer
actions, and it doesn't use the word "tax" but only "penalty," does
that statute not take its constitutional basis from the power to lay
and collect taxes? | | |
-- RyanBingham - 25 Jan 2012 |
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