Some Modern Principles of Taxation
Adam Smith Revisited
Ian T.G. Lambert
[A paper delivered at the Third Annual Convention of
the Congress of Political Economists in Rio de Janeiro, Brazil, in
January 1992. Ian Lambert is a graduate in Mathematics and Law from
Trinity College, Cambridge. At the time of this paper, he practised
law in the Cayman Islands]
INTRODUCTION
Is taxation just democratic theft? There is a modern tendency to
think that it is and that any tax is just, provided it is levied by a
democratically elected government and is impartially enforced.
However, the mere fact that the rules are the same for everyone is no
guarantee that they are just. We do not make murder and theft just,
merely by allowing everyone to commit such acts on the same terms.
The search for justice in taxation has been virtually abandoned,
except by those who seek to use the tax system as a means of
redistributing wealth and promoting what they call "social
justice", i.e., as an attack on property rights. It seems to be
readily conceded by everyone that all taxation must be an attack on
property, in the sense that the government (if democratic) is entitled
to take without giving anything in return. We need a tax system that
embodies the ideas of economic justice and genuinely respects property
rights.
At the outset, I should emphasise that by "taxation" I mean
the funding of government expenditure where that expenditure cannot
properly be funded through any market mechanism, because it is for an
essentially intangible service. There are many tangible services which
the government provides and which can be put on a proper contractual
basis. Typical examples include nationalised or state-owned
industries, from telecommunications to coal and steel. These are
tangible services and products, which the consumer directly receives
and uses. Why, therefore, do governments make it hard for themselves?
Surely it is easier to provide the consumer with a service or product
for which he is charged a price, and is happy to pay it, than to take
a tax begrudgingly handed over to pay for the same service, which is
consequently not properly understood or valued by either the producer
or the consumer. Throughout the world, such services and products are
(rightly) the subject of privatisation programmes, where the consumer
is once again made sovereign and dictates the product and its quality,
through the market.
However, there are other services which government provides that are
essentially intangible and from which the citizen indirectly benefits,
such as defence, police, embassies in foreign countries, parliament
etc. The provision of these cannot be put on the same market basis as
for tangible services and products directly consumed. They must
therefore be funded by a levy on the citizen which is necessarily
compulsory, and is therefore properly termed "taxation".
This paper considers the principles according to which such taxation
should be levied. It uses Adam Smith's four maxims of taxation (put
forward over two hundred years ago) as a starting point for sixteen
modern principles of taxation which will form the basis of a tax
system which is simple, just and lasting.
These principles are founded on a philosophy which does
not accept the theory of the "social contract" as
the basis for society. Under that theory, every citizen is deemed to
have contracted with the state to become a member of society and
assume the benefits and burdens of such membership. Under that theory,
the taxpayer is already deemed to have agreed to pay the taxes levied
on him; and there are consequently no natural limits on the power of
the state to tax him.
By contrast, Lambert's Modern Principles of Taxation are
founded on the long hallowed principle of restitution -- the moral
obligation to restore to another -- in the case of taxation it is the
community -- the property or value conferred on him by that other
(otherwise than by way of gift or contract). He who takes the benefit
must take the burden, but only to the extent and measure of the bent
it conferred. On this theory, taxation is not theft (democratic or
otherwise); it is a means of restoring to the community, the value
bestowed upon the taxpayer by the community.
ADAM SMITH'S FOUR MAXIMS
Adam Smith is generally considered (certainly in the English speaking
world) to be the father of modern political economy. In "The
Wealth of Nations" (1776)[1] he set forth four maxims, or canons,
of taxation, saying that "the evident justice and utility of
(these) maxims have recommended them more or less to the attention of
all nations.[2] The maxims were as follows:-
I. The subjects of every state ought to contribute
towards the support of the government, as nearly as possible, in
proportion to their respective abilities; that is, in proportion to
the revenue which they respectively enjoy under the protection of
the state.
II. The tax which each individual is bound to pay ought to be
certain, and not arbitrary. The time of payment, the manner of
payment, the quantity to be paid, ought all to be clear and plain to
the contributor, and to every other person.
III. Every tax ought to be levied at the time, or in the manner, in
which it is most likely to be convenient for the contributor to pay
it.
IV. Every tax ought to be contrived as both to take out and to keep
out of the pockets of the people as little as possible over and
above what it brings into the public treasury of the state.
These four maxims have been summarised in four words: Equity,
Certainty, Convenience and Efficiency. If we measure our existing tax
systems against these four maxims arid according to these criteria, we
can see just how far they fall short of the ideal.
Maxim IV provides grounds alone for condemning our tax systems on the
grounds of efficiency. Not only does the government have to employ
armies of inspectors and assessors, investigators, prosecutors and
other officials (including judges), the poor taxpayer is forced by
economic circumstances -- to stay competitive he must take full
advantage of the tax system -- to engage teams of tax managers,
advisors, accountants and lawyers at his own expense. The costs of all
these people mean that there is a large difference between the revenue
to the government (net of administration expenses) and the total
outlay by the taxpayer.
Maxim III is self-explanatory, but universally ignored. It is somehow
presumed that inconvenience in payment is legitimised by the fact that
the government is democratically accountable - as if this gives the
government carte blanche to do what it likes.
Maxim II makes it clear that the requirement of certainty means
certain to the man in the street -- to all of us, not just to the "tax
profession". If any society is to cohere, its members must know
and be capable of understanding their basic rights under the society's
constitution. Likewise, a society's tax system must be known and
understood by all its adult members; otherwise, they cannot play their
part to the full, and we are all the worse for it.
Maxim I, I have deliberately left to the last. It is the most
controversial. It appears to be justifying the "ability to pay"
principle; but whoever heard of taxing people according to inability
to pay? In fact the ability to pay principle gets us no further
forward. Does it, for example, require a proportional income tax or a
progressive income tax?
Levying a tax on existing riches according to their amount is not
taxing someone according to his ability; it is merely expropriating
existing wealth. To look at tax in these terms is, as Henry George
pointed out, to fail to see that production and distribution are
inseparable; they are two sides of the same coin. Taxation falls on
and necessarily affects, future production and distribution, and
distorts it. Taxing someone truly according to their "ability"
requires taxing them according not to the income or wealth which they
do in fact enjoy but according to the income or wealth which they have
the capability of enjoying.
There is a danger in interpreting Smith outside the context of the
society in which he lived and about which he wrote. Upon a more
detailed consideration of Smith's maxims, in the context of their
time, it is clear that he considered that under Maxim I taxation
should be levied mainly on economic rent (the rental value of land in
its unimproved state -- ground rent). In Smith's day, "Rent"
and "Revenue" were virtually synonymous. Certainly, the term
"Revenue" only covered income from an investment and did not
include wages and salaries; and in eighteenth century Britain most
investment was in landed property. So when Smith proposed in Maxim I a
tax on the subjects of a state "in proportion to the revenue
which they respectively enjoy under the protection of the stale",
he was not advocating the modern proportional or progressive income
tax, but really a tax on economic rent. This would be tax on private
property in land according to its annual value, being the creation of
and protected by the state. Most state expenditure at that time was on
civil and national defence, which largely meant securing landowners in
their privileged position. (A tax on economic rent is something to
which I shall return later.)
It is time to revisit Smith's Maxims, for they were relevant to a
simpler life, but their simplicity should be applied to the depressing
complexities of modern taxation. Lambert's Modern Principles of
Taxation serve as a foundation for a tax system which is simple,
just and lasting.
LAMBERT'S MODERN PRINCIPLES OF TAXATION
- Taxation must be simple.
- Taxation must be certain, both now and for the future.
- Taxation must be neutral to production, to consumer spending
and to saving.
- The costs of determination and collection of taxation should be
the lowest possible.
- Net tax beneficiaries should not pay tax; net taxpayers should
not receive benefit payments from the government.
- There must be no double taxation.
- AH taxation should be levied at source.
- Taxation should be legally levied on the persons by whom it is
economically borne.
- Continuous variations in circumstances should not result in
discontinuous variations in the amounts of tax levied.
- The points at which taxation ceases or starts to be payable
should be drawn along borders of economic substance not legal
form.
- The action by reference to which taxation is levied must
correspond with reality.
- Taxation should be payable at times convenient to the
taxpayers.
- The taxpayer should be entitled to free and unlimited advice on
his tax position from and at the expense of the government.
- Since the government has neither the duty nor the power to be
generous, no discretions should be vested in its revenue
officials; likewise, taxation should be strictly enforced by the
courts.
- Since the government has neither the duty nor the power,
through taxation, to destroy anything, taxation must be
distinguished from criminal fines and penalties.
- Since there is no contractual basis for taxation, taxation
should be based on the principle of restitution, and should
therefore restore to the taxing community the value bestowed on
the taxpayer by that community.
In the rime allotted to me here, I can only very briefly outline each
Principle, and must leave you to consider their practical applications
and implications.
1. Taxation must be simple.
This means "simple" to you and me, not just to the tax
profession. It should be noted that in his second maxim, Adam Smith
specifically requires that "the time of payment, the manner of
payment, the quantity to be paid, ought to be clear and plain to the
contributor, and to every other person." If we take this
principle seriously it requires the abolition of most of our tax
legislation. There are some simple taxes (not many) -- for example,
duties on the retail sale of gasoline or petrol, the UK. Community
Charge (poll tax); perhaps best of all is the Cayman Islands departure
tax (of CI$6 per person), collected at the airport.
2. Taxation must be certain, both now and for the future.
This means what it says, and is one of the reasons why tax reform
should be more of a constitutional issue, commanding cross-party
support, than a party political football. The government must be
prepared to commit itself more than a year in advance, it is, for
example, grossly hyprocritical of the Chancellor in Britain to condemn
"short-termism" in the investment markets when the British
government never commits itself to a revenue budget (which is
necessarily part of the private sector's expense budget) more than a
year in advance. And what is true of Britain is true of America and
other countries.
3. Taxation must be neutral to production, to consumer spending
and to saying.
This may sound like an ideal, but nevertheless it is an ideal we must
aspire towards. If we believe in a truly free market economy, we must
get government out of the market and stop it disrupting and distorting
the market. This principle probably require; the abolition of more tax
legislation than any other. Even the (seemingly innocuous) Cayman
Islands departure tax is a tax on tourism and therefore on
international trade.
4. The costs of determination and collection of taxation should
be the lowest possible.
This is a reiteration of Adam Smith's fourth maxim, which was even
preceded by Jean Baptiste Colbert's famous maxim that "The art of
taxation consists of so plucking the goose as to obtain the largest
possible amount of feathers with the smallest possible amount of
hissing."
It should be noted, however, that included in the equation must be
the taxpayer's private costs, of a whole army of tax managers,
advisors, accountants and lawyers, whom he has to employ at his
expense. The major costs of the tax system lie hidden here, not in the
Inland Revenue's or IRS's operating budget. (Moreover, the demand for
such private services necessarily takes talent away from other
industries and professions.)
5. Net tax beneficiaries should not pay tax; net taxpayers should
not receive benefit payments from the government.
This means abolishing the lunacy of paying taxes and then claiming
refunds, and the taxation of grants, subsidies and benefits (such as
the taxation of social security payments). But it also means such
things as abolishing income tax on government employees' salaries.
(When the British government purports to deduct PAYE income tax from
its employees' wages, who does it pay it to?) It means combining the
existing tax and welfare legislation.
6. There must be no double taxation.
Double taxation occurs where you pay (or bear) tax twice in respect
of the same asset or sum of money. For example, if you own a house
through a company, upon disposal of the house the company may pay tax
on the capital gain; when you subsequently dispose of the shares in
the company, you have to pay tax on the net capital gain, this time on
the shares. Effectively, you pay tax twice on the same profit (the
profit arising upon a sale of a house).
Similarly, you may be liable to pay two different governments (one
local and one national, or two national). A US citizen working in the
UK is liable to pay tax to the US and the UK governments. Such double
taxation is alleviated (in part) by complex double tax treaties, but
these only add to the bureaucracy and expense of international trade.
Far better to have a tax which (if universally adopted) would preclude
the possibility of double taxation.
7. AH taxation should be levied at source.
There are many reasons for this, but the most important is to enable
the taxpayer to carry on the tranactions of daily life secure in the
knowledge that the government has already been paid and therefore has
no further claim and will not disrupt or distort the market. PAYE
income tax deducted from wages, and taxation of interest at source are
typical examples. If w. believe in taxing wages and interest, this is
the way to tax them. Moreover, we now have sophisticated technology
which enables us to deduct tax and issue tax invoices relatively
painlessly, reducing deduction of tax to a mere by-product of the
tranaction.
8. Taxation should be legally levied on the persons by whom it is
economically borne.
Governments tend to prefer to put taxes on intermediaries, such as
banks, employers or retailers. However, such taxes merely become
hidden costs and the taxpayer is really misled about the tax he is
bearing, if people really knew the true amount of the taxes they were
suffering, they would be much more committed to tax reform and economy
in public expenditure and would take a much greater interest in
politics generally (surely a feature of a healthy democracy). The
prime example in recent years has been the UK Community Charge, levied
on each individual citizen. Everyone Lad to pay this personally, and
it hurt all the more - provoking violent reaction. That is precisely
why governments do not like taxing the persons who in the end have to
suffer the tax. So they substitute indirect taxes (e.g. VAT) for
direct taxes (such as the Community Charge). In the absence of
knowledge and understanding by the taxpayer, direct taxation is often
a vote loser. However, if indirect taxation is reversed and the
reasons for it demonstrated, governments could win elections by
demonstrating that direct taxes actually impose a lesser burden in
real terms.
At first sight, it may be thought that this principle conflicts with
Principle 7, for much taxation paid or deducted at source is not
legally levied on the persons by whom it is economically borne. The
challenge lies in devising taxes that cannot be "shifted" by
the persons on whom they are legally levied; and I believe there are
such taxes.
9. Continuous variations in circumstances should not result in
discontinuous variations in the amount of tax levied.
The great majority of all tax cases (certainly in the UK) involve a
dispute between the Revenue and the taxpayer about some borderline
transaction. If the government puts a different tax on red wine from
that on white, inevitably someone will end up in court arguing about
whether or not a bottle of rose or blush wine is for these purposes "red"
or "white". Such cases involve all sorts of mental
contortions by our judges in an effort to make sense of what is
intrinsically nonsensical. The problem can only be solved by the
government arbitrarily drawing the line, by legislation. But, while
this provides certainty, it also interferes with the natural operation
of the laws of supply and demand, and distorts the market.
Moreover, it is precisely these sorts of case which spawn the myriad
anti-avoidance legislation which gives the Revenue draconian powers to
tax the taxpayer according to a transaction which he never actually
carried out. (For example", m the UK a contractual provision by a
company to pay interest variably according to profits can be treated
by the Inland Revenue as a dividend, even though it clearly is not).
This apparently quite innocuous principle has some devastating
effects. For one thing, it means the abolition of all taxes levied
according to residence or domicile in the taxing jurisdiction (i.e.
how long you spend in the country). It also means abolishing any
differences between the taxation of investment income and the taxation
of capital gains. In economic terms, all income from capital is a
capital gain.
10. The points at which taxation ceases or starts to be payable
should be drawn along borders of economic substance (not legal form).
This is similar to Principle 9, above, but not quite the same. It
certainly requires not levying different taxes on wines according to
their colour. But it also requires, for example, the abolition of all
taxes on employment as such. In economics there is no intrinsic
difference between the labour that is applied through services,
employment or self-employment. Accordingly, a proper tax system should
not levy taxes differently according to such distinctions of form. (A
vast number of legal cases in the UK have originated from a dispute
about whether or not someone was employed or technically engaged on a
contract for services.)
11. The action by reference to which taxation is levied must
correspond with reality.
This should be enshrined in any country's constitution. It requires
the abolition and prohibition of all anti-avoidance legislation that
seeks to levy tax on the taxpayer according to a transaction which
never took place. (Imagine how you would feel if you were prosecuted
for murder on the basis that, although everyone knew you had not
killed someone, nevertheless you would be deemed to have done so.)
12. Taxation should be payable at times convenient to the
taxpayer.
This is a reiteration of Adam Smith's third maxim. It is almost
universally breached. Far from trying to accommodate the taxpayer's
business concerns better, governments tend to be very inflexible about
payment. Other creditors of businesses are prepared to extend credit
or vary payments; not so the government. A prime example is the
British VAT system, which now has harsh financial penalties for late
payers. Not only is the government rarely prepared to require payments
of tax at times which accord with the taxpayer's actual cashflow, and
where appropriate extend credit to the taxpayer, in many cases the
government borrows from the taxpayer on an interest-free basis (for
example where lax is deducted at source from interest and must be
reclaimed by the non-taxpayer at the end of the year).
It is only the government's monopoly of the tax system that enables
it to abuse its consumers in tins way. We must move to a position,
where as with other services, the consumer (i.e., the taxpayer) conies
first.
13. The taxpayer should be entitled to free and unlimited advice
on his tax position from and at the expense of the government
If the taxpayer owes money to the government, absolutely or
contingently in the future, he must surely be entitled to be fully
informed of the amount and how it can be reduced. If new businesses
are to thrive, they must be allowed to compete on equal terms with
existing ones. It is large businesses that can afford lo indulge m
expensive but highly rewarding tax planning, much of it wholly
artificial. We need to move to a system where everyone has equal
access to proper legal advice on taxation and where there are no
loopholes to be ruthlessly exploited by the better off. After all,
there are many other areas of law in which the government funds free
legal advice and assistance (in the UK under Legal Aid). Moreover, if
the government were to provide the taxpayer with free and unlimited
tax advice, it would receive vital feedback from the private sector
about the economy; for it would rapidly realise just how much time,
money and talent is dissipated in the economy by the whole tax
industry, which could be put to more productive use by making the tax
system simpler.
14. Since the govcnmient has neither the duty nor the power to be
generous, no discretions should be vested in its revenue officials;
likewise, taxation should be strictly enforced by the courts.
This means the abolition of all "extra -statutory concessions",
which are the Revenue's method of making a tax system which is
inherently nonsensical and unfair at least a little more sensible and
fair, thereby doing parliament's job for it. It also means overruling
a large body of case law in which judges have taken upon themselves
the responsibility for ending artificial tax avoidance schemes.
15. Since the government has neither the duty nor the power,
through taxation, to destroy anything, taxation must be distinguished
from criminal fines and penalties.
This means, for example, that the Chancellor in Britain must make up
his mind whether he is raising revenue through taxing the sale of
leaded petrol or fining it. It also means rejecting the US Supreme
Court maxim that "the power to tax is the power to destroy".
No government has the right to destroy using the tax system; that is
the province of the criminal justice system.
16. Since there is no contractual basis for taxation, taxation
should be based on the principle of restitution, and should therefore
restore to the community the value bestowed on the taxpayer by the
community.
The equitable principles of restitution are embedded in the law of
most common jurisdictions. Restitution is the remedy awarded to
someone who claims that another has been unjustly enriched. For
example, a person may not profit from his crime; and property or money
paid over under a contract which is void cannot (lawfully) be
retained. In the context of taxation, which ipso facto cannot be
levied on a contractual basis, the application of this principle means
that the taxpayer cannot take the benefits of government expenditure
without taking their burden. He must must restore to the taxing
community the value which it has bestowed upon him.
This principle forms the basis of a whole political economy, indeed a
whole political philosophy. It rejects the fiction of the "social
contract". It restores equality to the dealings between the
taxpayer and the slate. It places limits on the state. It makes
justice a central feature of a proper system of taxation. It
translates into action the Christian principle that we should render
unto Caesar the things which are due to Caesar.
Whatever one's personal philosophy or religion may be, fairness and
justice are international objectives, understood in every language of
mankind. Justice must be a paramount objective in devising a system of
taxation, and such justice lies in the application of the principles
of restitution.
I have left Principle 16 to the last, although it is the most
important of all the Principles; for Principles 1-15 outline how not
to tax; they indicate the problem, whereas Principle 16 tells us how
to tax, and gives us the solution.
ARE THERE ANY ALTERNATIVE EQUITABLE TAXES?
If we use these Principles as a critique of our existing tax system,
it will be readily seen that most of our taxes ought to be repealed
forthwith. After reflecting on the scope of these Principles, one
might doubt whether there is
any tax that would satisfy all these criteria, and be
attempted to agree with Winston Churchill when he said "There is
no such thing as a good tax".[3]
However, there is one tax which does meet all these criteria: a tax
charged on the annual rental value of every piece of land within the
taxing authority's jurisdiction, levied on the value of land without
improvements (or in its unimproved state) at a rate of up to 100%.
Such a tax (a "site value tax") would be simple (Principle
1).
It would be certain both now and for the future (2).
It would be neutral to production, to consumer spending and to saving
(3), for most political economists agree with Ricardo that "a tax
on rent would affect rent only; it would fall wholly on landlords, and
could not be shifted to any class of consumers".[4]
The costs of determination and collection ought to be quite low (4)
-- you cannot hide land!
There would be no question of taxing benefits or giving benefits to
taxpayers (5), assuming the site value tax was accompanied by a
commitment to free trade.
There would be no scope for double taxation (6), since the tax would
be levied once only, at source, and only levied on land within the
taxing authority's jurisdiction-It would be the ultimate tax levied at
source (7), for all taxation must ultimately be paid out of
production, and all production takes place on land.
It would be legally levied on the persons by whom it was economically
borne (8).
Continuous variations in circumstances should not result in
discontinuous variations in the amount of tax levied (9). The tax
would not be charged according to residence or domicile, but according
to land ownership.
The points at which taxation would start to be payable would be drawn
along borders of economic substance (10) -- the distinction between
land, labour and capital.
The action by reference to which taxation was levied would correspond
with reality (11) -- land ownership.
The tax could be made payable at times convenient to the taxpayers
(12) by making it payable in arrears (annually or quarterly).
The taxpayer could quite easily be given free and unlimited advice on
his tax position from and at the expense of the government (13),
precisely because of the simplicity of the site value tax.
No discretions need to be vested in the government's revenue
officials, and the tax could be strictly enforced by the courts (14).
Such a tax would be clearly distinguishable from criminal fines and
penalties; (15).
Finally, and most importantly, the site value tax would be based on
the principle of restitution (16), for as Henry George said:
"The tax upon land values is the most just and equal
of all taxes. It falls only upon those who receive from society a
peculiar and valuable benefit, and upon them in proportion to the
benefit they receive. It is the taking by the community, for the use
of the community, of that value which is the creation of (he
community. It is the application of the common property to common
uses. When all rent is taken by taxation for the needs of the
community, then will the equality ordained by nature be attained."
Such a tax would be nigh impossible to avoid. Its introduction would
see the rapid decline of complex and artificial tax avoidance schemes.
Any country that introduced it would become its own tax haven,
overnight, and gain a significant edge over its competitors.
Such a tax would also abolish the need for complex double tax
treaties (6). Each state would tax the land within its jurisdiction,
and the tax would be levied on both citizens and aliens. Likewise,
each state would not tax its citizens in respect of foreign land
ownership, the economic rent thereof and thereon being due to the
state where the land was located.
The tax would therefore promote economic justice within a nation
state and between nation states. If universally adopted it could form
the basis for lasting harmony and give great encouragement to
international trade.
CONCLUS1ON
We need a tax system that is simple and just. Contrary to the belief
of many politicians, these are not incompatible objectives. If we are
to create a tax system that meets these objectives, then before we
consider the fine detail of the legal drafting we must first consider
the basic principles according to which such a system should be
devised.
Lambert's Modern Principles of Taxation provide such a basis.
A site value tax would comply with all of these Principles, and could
be used gradually to replace all our existing taxes, without reducing
the total revenue to government. Of course, a land value tax raises
other questions. Could such a tax raise sufficient revenue to enable
all other taxes to be abolished? Would such a tax be fair, given that
it discriminates against the person who invests in land rather than in
capital? Is such a tax really compatible with property rights? These
are important questions. Many political economists, including myself,
have no hesitation in answering all these questions in the
affirmative; but the arguements are beyond the scope of this
particular paper.
Lambert's Modern Principles of Taxation constitute the bedrock of a
system of taxation which is simple, just and lasting, for it should
command the support of everyone, all parties and all nations. The
adoption of such a system of taxation on an international scale is
essential to the promotion of economic justice and harmony across the
globe.
FOOTNOTES
- More correctly, "An
Enquiry Into The Nature And Causes Of The Wealth Of Nations".
- P.P. 206-308 of J.M. Dent &
Sons ltd., "Everymans Library" Edition 1975.
- Observer Sayings of the Week,
1937.
- The Principles of Political
Economy and Taxation
APPENDIX I
EIGHT WAYS TO FAIL TO MAKE TAX LAW
How often have you known people in Britain or America say that their
tax system is basically pretty fair? "Fair" by reference to
what? Unless you have some standard to measure it against, how can you
assess it at all? The fact that the tax rules are internally coherent
(i.e. not self-contradictory) is no guarantee, for example, that they
are fair -- or even that they are a system of law at all.
In his famous work "The Morality of Law" (1964), Professor
Lon Fuller described eight ways to fail to make law, saying that "a
total failure in one of these eight directions does not simply result
in a bad system of law; it results in something that is not properly
called a legal system at all, except perhaps in the Pickwickian sense
in which a void contract can still be said to be one kind of contract."
These eight ways to fail to make law provide interesting criteria for
the critical analysis of our present tax systems. They are as
follows:-
Eight ways to fail to make law:
- Failure to achieve rules at all -- so that every issue must be
decided on an ad hoc basis.
- Failure to publicise, or at least to make available 'o the
affected party, the rules he is expected to observe.
- The abuse of retroactive legislation, which not only cannot
itself guide action, but undercuts the integrity of rules
prospective in effect, since it puts them under the threat of
retrospective change.
- Failure to make rules understandable.
- The enactment of contradictory rules.
- Rules that require conduct beyond the powers of the affected
party.
- Introducing such frequent changes in the rules that the subject
cannot orient his action by them.
- Failure of congruence between the rules as announced and their
actual administration.
Fuller maintained that a failure on any one of these grounds would
totally undermine a legal system. Yet our systems of tax law tend to
fail on every one of these grounds.
Take the UK as an example:-
1. Failure to achieve rules at all.
In certain areas, such as the distinction between "income"
and "capital", or between "trading" or "dealing"
and "investment", it is arguable that there are almost no
rules and that decisions are made on an ad hoc basis.
2. Failure to publicise.
Certainly, the government makes the legislation available,
eventually; but in practice the taxpayer needs a whole army of
advisors to keep him informed as to developments. Further, certain
changes introduced in the Budget (typically March/April) are often not
clarified for months until the Finance Act is passed (in August) and
made publicly available (in the Autumn), by which time the current tax
year is well under way.
3. The abuse of retroactive legislation.
Retroactive finance legislation is not unknown. In 1974 the
Chancellor Denis Healey introduced a tax on capital transfers in
March, but it was not until the Autumn that the legislation was
produced, even in draft form. During the intervening period, the
taxpayer was subject to an unknown tax. In the nineteen twenties the
Conservative government abolished Lloyd George's land value lax
retrospectively (and refunded taxes already paid!).
4. Failure to make rules understandable.
This hardly bears comment. There are parts of the UK tax code which
even the most emminent tax counsel do not understand, let alone the
poor taxpayer.
5. Contradictory rules.
The UK tax code is full of provisions which seem to contradict each
other, and which have to be reconciled by ingenious legal reasoning
and extra-statutory concessions or practice directions.
6. Conduct beyond the powers of the taxpayer.
While the UK tax code does not require any action which in theory is
beyond the powers of the affected party, nevertheless strict adherence
to them is in practice almost impossible (a good example is the
extremely onerous VAT regime). Breaches (deliberate or inadvertent)
are almost a daily occurrence - from failure to declare
benefits-in-kind on your income tax return to ommissions to charge VAT
on certain minor transactions. In practice, the taxpayer has to rely
heavily on the mercy of the Revenue, its concessions, discretions and
occasional waivers.
7. Disorientating frequency of changes.
The tax rules in the UK are up for review every year and the Treasury
and the Inland Revenue continuously review the existing legislation.
Add to this the weekly, if not daily, barrage of tax cases, Revenue
concessions and press releases, and VAT directives, and it is almost
true to say that our tax law changes on a daily basis. How the
taxpayer can ever orient his action by our tax law is a miracle. He is
often reduced to a business philosophy of "hit and hope".
8. Failure of congruence between the law and practice.
In the UK, there is a whole book, about three inches thick, of Inland
Revenue Extra-Statutory Concessions and Practice Directions. The
Revenue has no constitutional power to issue these and it has been
clarified that the taxpayer has no right to rely on these in any
litigation before the courts. This is not to criticise the Revenue,
but Parliament; for these Concessions and Directions attempt to
harmonise a motley collection of ill-fitting and most disharmonious
rules enacted by Parliament. In practice, the Revenue is doing
Parliament's job for it, and there is in the UK a great deal of
taxation without representation, by the executive branch of
government.
The UK is just one example. There are few countries that fare any
better. The United States is a tax minefield, with city, state and
federal taxes that often impose double if not triple taxation.
APPENDIX II
ADAM SMITH'S FOUR MAXIMS OF TAXATION
I. The subjects of every state ought to contribute towards the
support of the government, as nearly as possible, in proportion to
their respective abilities; that is, in proportion to the revenue
which they respectively enjoy under the protection of the state.
II. The tax which each individual is bound to pay ought to be
certain, and not arbitrary. The time of payment, the manner of
payment, the quantity to be paid, ought all to be clear and plain to
the contributor, and to every other person.
III. Every tax ought to be levied at the time, or in the manner, in
which it is most likely to be convenient for the contributor to pay
it.
IV. Every tax ought to be contrived as both to take out and to keep
out of the pockets of the people as little as possible over and above
what it brings into the public treasury of the state.
APPENDIX III
LAMBERT'S MODERN PRINCIPLES OF TAXATION
- Taxation must be simple.
- Taxation must be certain, both now and in the future.
- Taxation must be neutral to production, to consumer spending
and to saving.
- The costs of determination and collection of taxation should be
the lowest possible.
- Net tax beneficiaries should not pay tax; net taxpayers should
not receive benefit payments from the government.
- There must be no double taxation.
- All taxation should be levied at source.
- Taxation should be legally levied on the persons by whom it is
economically borne.
- Continuous variations in circumstances should not result in
discontinuous variations in the amounts of tax levied.
- The points at which taxation ceases or starts to be payable
should be drawn along borders of economic substance not legal
form.
- The action by reference to which taxation is levied must
correspond with reality.
- Taxation should be payable at times convenient to the
taxpayers.
- The taxpayer should be entitled to free and unlimited advice on
his tax position from and at the expense of the government.
- Since the government has neither the duty nor the power to be
generous, no discretions should be vested in its revenue
officials; likewise, taxation should be strictly enforced by the
courts.
- Since the government has neither the duty nor the power,
through taxation, to destroy anything, taxation must be
distinguished from criminal fines and penalties.
- Since there is no contractual basis for taxation, taxation
should be based on the principle of restitution, and should
therefore restore to the taxing community the value bestowed on
the taxpayer by that community.
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