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AffordableCareAct 20 - 29 Jan 2012 - Main.RohanGrey
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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 | | | "taxes" within the meaning of the IRC). [Oh, did we miss
something?] | |
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< | Eben, i didn't miss that - perhaps i misinterpreted though. The decision to use the words "penalties...shall be paid upon notice...and assessed and collected in the same manner as taxes" is different in my opinion to saying "are taxes", in the same way as me saying "steak shall be eaten with a knife and fork in the same manner as pork" does not make a cow identical to a pig. Moreover, the second half of the phrase "Except as otherwise provided, any reference in this title to “tax” imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter." does nothing to suggest that the two concepts are necessarily identical in their legal usage outside of the IRC (such as the Constitution), or even within this particular subchapter (which would constitute the "as otherwise provided" exception) - rather, merely that they should be functionally treated as such when interpreting and applying other sections of the IRC. The reason i focused on the other sections were that they addressed how the penalties were intended to function in relation to other taxes in the code, and i thought it may be possible to distill from those functions some distinction between how, when and why the two classes of liabilities were imposed (which it turned out the answer was no). Of course, even if it had, that doesn't necessarily provide us with any direction as to how a court may choose to interpret the constitutionality of a particular liability - as is clearly demonstrated by Taft's opinion - however it may help to identify how and why the word is interpreted and used by different branches of government. | >
> | Eben, i didn't miss that - perhaps i misinterpreted though. The decision to use the words "penalties...shall be paid upon notice...and assessed and collected in the same manner as taxes" is different in my opinion to saying "are taxes", in the same way as me saying "steak shall be eaten with a knife and fork in the same manner as pork" does not make a cow identical to a pig. Moreover, the second half of the phrase "Except as otherwise provided, any reference in this title to “tax” imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter." does nothing to suggest that the two concepts are necessarily identical in their legal usage outside of the IRC (such as the Constitution), or even within this particular subchapter (which would constitute the "as otherwise provided" exception) - rather, merely that they should be functionally treated as such when interpreting and applying other sections of the IRC. The reason i focused on sections that I did were that they addressed how the penalties were intended to function in relation to other taxes in that subchapter that were still called taxes, and i thought it may be possible to distill from any differences in function between the liabilities named "taxes" and those named "penalties" a concrete distinction between the two words when they are used concurrently, (which it turned out the answer was no). Of course, even if it had, that doesn't necessarily provide us with any direction as to how a court may choose to interpret the constitutionality of a particular liability - as is clearly demonstrated by Taft's opinion, which essentially says that a tax is a tax until it becomes a penalty - however it may help to identify how and why the word is interpreted and used by different branches of government. | | | | |
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< | is that the penalty carries the option of being supplemented by additional liabilities above the originally determined tax liability as determined by the particular piece of legislation that authorized the particular penalty - which in itself is i guess a form of "non-compliance" tax. Taft's attempt to associate "penalties" with executive regulation power (as opposed to legislative taxation power) seems counter to the actual examples of penalties as described in that part of the tax code - all of them lay out specific rules and amounts for determining what penalties to impose, rather than leaving it to regulatory discretion (with a few exceptions for possible waivers). This might be an attempt to ensure that the "penalties" are dispersed uniformly as articulated by the Constitution, which would go towards the case that it is merely another form of tax. | >
> | is that the penalty liability may be a higher amount than the original tax liability whose non-payment triggered it - which in itself is i guess a form of "non-compliance" tax. Taft's attempt to associate "penalties" with regulatory or punitive power beyond the scope of the sovereign's enumerated powers seems counter to the actual examples of penalties as described in that part of the tax code, since they appear to function merely as second-tier taxes designed to ensure enforcement of the original tax liability. Moreover, the penalties identified are all specific formulas and fines - there is little regulatory discretion (with a few exceptions for waivers). This might be in order to comply with the Constitution's requirement that taxes be dispersed uniformly, which would go towards the case that a penalty is merely a subcategory of taxes. | | | -- RohanGrey - 25 Jan 2012 |
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