TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, August 1, 2017

NY Times: Is It O.K. To Protest Trump By Withholding Taxes?

New York Times Magazine:  Is It O.K. to Protest Trump by Withholding Taxes?, by Kwame Anthony Appiah:

I am increasingly distressed by many of the things that the Trump administration is, and is not, doing. The president himself has declared that not paying taxes ‘‘makes him smart,’’ and I do not trust that my federal tax dollars will be put to good use. I want to resist the president, his cronies and their destructive agenda(s) any way I can.

Assuming I am willing to bear the legal and financial risks of being audited and caught, would it be ethical for me to redirect some or all of my federal taxes to my state taxes (I trust my governor and state government much more than I trust the president and the federal government) and/or to charitable and political causes that I believe would benefit my fellow citizens? Ben, New York, N.Y.

A democratic republic like ours is a shared enterprise, in which we agree to govern ourselves under a system of rules we are all willing to respect. People who have lived under military juntas — as I did when I was young — or through a period of revolutionary anarchy will tell you that the benefits of accepting the results of democratic decision-making are almost always worth the burdens. During every administration, many people are distressed by what the president does. We owe our fellow citizens who accept election results they don’t like the respect of doing the same. That means obeying the laws, even under administrations led by people we may deplore.

Exceptions arise when the law that we are considering breaking is not just unwise but seriously immoral. Jim Crow laws (in flagrant violation of the post-Civil War constitutional guarantees) denied African-Americans the 14th Amendment’s promise of ‘‘equal protection of the laws.’’ Any citizen who cared to violate them was, I believe, morally free to do so. Indeed, decent citizens would have felt morally obliged to break them, where obeying them involved harm to others. And they would have been free as well to try to avoid the penalties for doing so.

There are also cases in which you may violate laws that are reasonable in order to draw attention to political wrongs, as when civil protesters trespass or ignore regulations on peaceable assembly. When the point of doing so is to express your moral ideas, you have to do so in plain sight, which means you must face the legal consequences. (And you should take care not to undermine the public good, especially by causing harm to others, including the police, when you do so.) This is the classic kind of civil disobedience. The two kinds of exceptions came together during the civil rights era, when Jim Crow laws were defied in public ways. Rosa Parks didn’t merely accept the risk of being caught in the white section of the Montgomery bus; being caught was the point.

Your talk of redirecting your taxes is something of a red herring. When you overpay your state taxes, the state sends you a refund. There are legal ways of reducing your federal tax burden — by giving more to charity, say — but only within set limits. What you are proposing, though, is not legal tax avoidance but illegal tax evasion, which you are hoping to get away with. That means your aim is not the public, expressive one of civil disobedience.

If you aren’t sending a message, what are you trying to achieve? Nothing practical, surely: When it comes to the federal budget, your individual tax payment isn’t even a rounding error. Perhaps, then, you want to reduce your complicity in what is going on. I am on record as thinking that these clean-hands arguments are usually exercises in moral narcissism. In any case, your taxes go to large numbers of things that you probably favor. Today nearly two-thirds of the federal budget covers so-called mandatory spending: Medicare and other health expenditures, Social Security payments, unemployment benefits, the Supplemental Nutrition Assistance Program. If secretly reducing your tax payments prevented you from being complicit with expenditures you dislike, it would also make you complicit in trying to reduce expenditures you do like....

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I thought this was a weak answer. If people really believe in "resistance" withholding of taxes would be one possible strategy. My suspicion is that the don't: that this is more of a verbal move than a political one. But if they really did this would have to be one option

Posted by: mike livingston | Aug 1, 2017 4:19:56 AM

This is analogous to holding a "protest" by occupying the dean's office from 3:00 AM to 3:02 AM in order to minimize the chance of being apprehended. And along the way stealing whatever valuables you find. It's a fake protest.

Posted by: AMTbuff | Aug 1, 2017 5:33:16 AM

AMTbuff nails it.

Posted by: Mike Petrik | Aug 1, 2017 8:17:32 AM

“Assuming [the taxpayer is] willing to bear the legal and financial risks of being audited and caught, would it be ethical [for the taxpayer] to redirect some or all of [his] federal taxes to [his] state taxes.” Well of course. We are not, after all, fascists. First, there is no restriction on how much money, in excess of that due, a taxpayer pays to his state in taxes. A question might arise, however, about how much of the excess state tax can be taken as an itemized deduction on the taxpayer’s federal taxes. Second, so long as the taxpayer is up front on his tax return about what he is doing, and willing to bear the legal and financial risks of being audited and assessed a deficiency, he can under pay his federal taxes. He likely will be assessed a deficiency, interest, and possibly one or more penalties, including a frivolous return penalty. The more ethical course would be to pay the correct amount of tax due and then sue for a refund. See, for example, a couple of Maryland cases that were filed by Quakers who disagreed with “their” taxes being used for military purposes with which they disagreed. Snyder v. U.S., 714 F. Supp. 761 (D. Md. 1989); Clark v. U.S., 630 F. Supp. 101 (D. Md. 1986).

Posted by: Publius Novus | Aug 1, 2017 11:19:43 AM

Simple solution: Taxpayer choice, should such a law ever be enacted with some guarantee that it's honored, would allow any individual who files a tax return to check boxes for which department(s) in the federal government he or she would like some or all income taxes paid to go towards. You'd also get a crystal clear picture as to what taxpayer priorities really are, which you don't get right now with how the federal budget is spent.

Posted by: MM | Aug 1, 2017 1:41:06 PM

Answer to Ben: No.

Posted by: old gunny | Aug 2, 2017 2:51:43 AM

Roughly 42%of Americans pay no federal income tax. I'm guessing the writer is in that group and simply virtue-signaling.

Posted by: Diggs | Aug 2, 2017 4:21:33 AM

And to further MM''s thesis ... taxpayer direction of taxes removes a whole lot of power from Congress to waste time trying to set priorities that arguably are better set by the people paying. Perhaps then they could focus more on their other Constitutional duties. Something tells me that the less control Congress has over the budget, the more it will attract people who truly just want to serve the country by doing something other than controlling the checkbook.

Posted by: ruralcounsel | Aug 2, 2017 4:35:46 AM

Though the writer would not like the idea of reciprocity, if the Left can do it, so can the Right. If the Left succeeds in removing Trump from office in a way the Right sees as illegitimate, the Left really doesn't want this principle established.

Posted by: Pettifogger | Aug 2, 2017 5:40:50 AM