Tag: energy

IRS Can’t Manipulate Tax Code to Generate More Revenue for Itself

This blogpost was co-authored by Cato legal associate Matt Gilliam.

An American energy company called PPL bought one of many state-owned British utilities privatized in the 1980s. In 1997, PPL thus became subject to the UK’s new “windfall tax,” which was based in part on “profit-making value”—the utility’s average annual profit multiplied by an imputed price-to-earnings ratio.

Various American energy companies subject to this tax filed claims with the IRS for a “foreign income tax” credit, which the IRS denied in 2007, asserting that the British tax was not a creditable one under the “foreign income tax” provision of the Internal Revenue Code (Section 901). The IRS claimed that the windfall tax did not satisfy the “predominant character” standard (was not predominantly an income tax) because the British statute used the term “profit-making value” instead of “net income” and “gross receipts,” and the tax rate was defined “as a percentage of an imputed value … rather than directly as a percentage of net income.”

After the federal tax court held that PPL was entitled to the foreign tax credit, the U.S. Court of Appeals for the Third Circuit reversed. Explaining that a tax exemption is a privilege extended by legislative grace, the appellate court held the tax not to be creditable because it reached beyond realized profit and did not tax actual gross revenue. In a different case last year, however, the U.S. Court of Appeals for the Fifth Circuit held that the British windfall tax was indeed creditable because (1) it reached realized income and (2) gross revenue was an inherent part of the calculation. The Fifth Circuit explained that the form and label of the foreign tax are not determinative and that the predominant character standard requires the IRS to analyze the history and intent of a tax to assess whether it tries to reach some net gain.

Cato now joins Southeastern Legal Foundation and Goldwater Institute on an amicus brief in urging the Supreme Court to take PPL’s case because it implicates fundamental issues of property rights, free markets, and the arbitrary exercise of government power—and the circuit split creates uncertainty for American businesses overseas. We argue that taxpayers have the right to be free from double taxation and that here the IRS and Third Circuit improperly disregarded the substance of the windfall tax and applied an overly rigid construction of its terms.

Ultimately, a foreign tax’s form or label cannot mask its substantive character and intent for legal purposes. American businesses operating overseas should be able to rely on a stable, substantive application of U.S. tax law instead of arbitrary interpretations and constructions manipulated to generate payments to the IRS.

The Supreme Court will decide this fall whether to hear PPL Corp. v. Commissioner of Internal Revenue.

Pielke’s Problem

I generally admire the work of Roger Pielke Jr., a political scientist in the University of Colorado-Boulder’s Center for Science and Technology Policy Research. His new book on climate change is refreshingly honest and non-ideological, if a bit overly technophilic. His broader work offers the important insight that science alone cannot direct public policy, but rather it can only lay out possible results of different policy choices.

Given the quality of his work, I was disappointed by Pielke’s op-ed in today’s NYT defending Congress’s legislated obsolescence of the incandescent light bulb. He argues that government standard-setting is an important contribution to human welfare, and the light bulb standard is just part of that standard-setting (though he does suggest some minor policy tweaks to allow limited future availability of incandescents). 

To justify his argument, Pielke points out the great benefit of government-established standard measures, as well as quality standards:

Indeed, [in the United States of the late 19th century] the lack of standards for everything from weights and measures to electricity — even the gallon, for example, had eight definitions — threatened to overwhelm industry and consumers with a confusing array of incompatible choices.

This wasn’t the case everywhere. Germany’s standards agency, established in 1887, was busy setting rules for everything from the content of dyes to the process for making porcelain; other European countries soon followed suit. Higher-quality products, in turn, helped the growth in Germany’s trade exceed that of the United States in the 1890s.

America finally got its act together in 1894, when Congress standardized the meaning of what are today common scientific measures, including the ohm, the volt, the watt and the henry, in line with international metrics. And, in 1901, the United States became the last major economic power to establish an agency to set technological standards.

 Alas, this argument doesn’t support Pielke’s light bulb standard.

The weights-and-measures and product standards that he cites are examples of government response to market failures—instances where private action is unable to reach efficient results. Concerning weights and measures, a type of market failure known as the collective action problem can make it difficult to establish standard measures privately. Getting everyone to agree can be like herding cats, and there is ample incentive to secretly defect from that standard — e.g., a gas station would love to sell you a 120-ounce “gallon” that you assume is a standard 128 ounces. (OTOH, there are plenty of examples of private action overcoming this problem, such as the standardization of railroad track gauges in the late 19th century.) Likewise, quality standards can be understood as a response to a kind of market failure known as the information asymmetry problem— e.g., a producer of low-quality goods may knowingly try to pass them off as high-quality goods. (Again, there are plenty of examples of private action overcoming this problem.)

As libertarians, we recognize that there are market failures, and that government can sometimes mitigate them. (That’s why we’re not anarchists.) Also as libertarians, we recognize that government intervention can result in outcomes even less efficient than the original market failure. (That’s why we’re not run-of-the-mill Democrats or Republicans.)

But where is the market failure with incandescent bulbs? After nearly 125 years of use, people know the drawbacks and advantages of incandescents—that they use more electricity than other types of bulbs and have a shorter lifespan, but they cost very little and work much better in certain applications—from dimmer switches to Easy-Bake Ovens—than other bulbs. Besides, CFL bulbs were widely available before Congress’s 2007 legislation, and LED lights were already in the R&D pipeline.

Perhaps Pielke would argue that there is a market failure with incandescents: the negative externality of air pollution, including greenhouse gas emissions. But incandescent lighting is only one of many, many electricity-using devices, and electricity generation is just one of many, many sources of air pollution. So why the focus on just this one externality source instead of advocating a policy that broadly addresses emissions? And why devote his op-ed to discussing technology standards, and make no mention of air pollution?

Gingrich & Woolsey on Energy

The other day, The Wall Street Journal provided a public service by lambasting Newt Gingrich for his absurd speech to the ethanol lobby in Des Moines last month (money line:  ”Obviously big urban newspapers want to kill it because it’s working, and you wonder, ‘What are their values?’”).  Today, Gingrich and fellow ethanol-maven James Woolsey struck back in those very same pages.  In doing so, Gingrich provided yet more evidence that he’s intellectually unfit for office.

“It is in this country’s long-term best interest,” he said, ”to stop the flow of $1 billion a day overseas.”  Really?  So money sent overseas is gone forever.  News to me.  The only thing you can buy with dollars earned from oil sales to the U.S. is to buy things denominated in dollars or to exchange them so that someone else can.  And we sell a lot of stuff to foreigners that are denominated in dollars (treasury bills for one) and that money comes right back to the good old U.S. of A.

But put that aside.  If Gingrich really believes this, then why not just ban all imports all together?  Is that what the GOP is about these days - rank gooberism on trade?

And one other thing; the U.S. does not spend $1 billion a day on foreign oil.  It spends about half that; $530 million a day (in 2009 anyway).

“[I] co-produced a movie with my wife, Callista, ‘We Have the Power,’ that argued for an ‘all of the above’ energy strategy which would maximize all forms of domestic energy production.”  Apparently, being a pol means that one doesn’t have to pick and choose between investments a, b, or c.  We’ll just mandate everyone invest in everything that can attract a lobbyist. 
When you hear this stuff about an ”all of the above” energy strategy, what you’re hearing is a complaint that the Democrats aren’t subsidizing enough of the energy industry.  They are too tight-fisted with the public purse.  They are not ambitious enough in their planning.  And while Republicans bang the table for more, more, and more handouts to private corporations, liberals like Amory Lovins (prominent left-of-center energy guru) and Carl Pope (former head of the Sierra Club) call for zeroing out everyone’s subsidies and leaving the energy market the heck alone (at least when it comes to this matter).  It’s a mad, mad world.
 
“Nevertheless,” says Gingrich, ”the Journal attempts to equate my career-long commitment to increased American energy production with the anti-energy agenda of President Obama. This is a laughable charge, especially considering I have been one of the most vocal opponents of the president’s energy policies since he took office.”  Perhaps, but on this matter, Gingrich is attacking the administration from the Left.  
 
Even more amusing was James Woolsey’s lecture to the editorial board over what it means to be a conservative.   “We could not help wondering,” he asked along with his co-author, Gal Luft, ”why the Journal, despite its commitment to free enterprise, chose to attack Newt Gingrich for his call to open vehicles to fuel competition, which would cost auto makers under $100 per new car.”  Well Jim, a commitment to free enterprise is a commitment to allow enterprises to be free to produce whatever they want.  Of course, if Woolsey had read Gingrich’s speech to the ethanol lobby, he would not need to wonder - it’s about their sick, twisted values.
 
Nonetheless, Woolsey claims that such a mandate ”is perfectly in line with conservative economic principles.”  That may be true given what conservatives believe about economics.  But it’s not consistent with a principled support for a free market.
 
Finally, “Challenging Mr. Gingrich’s conservative bona fides based on his support for breaking oil’s virtual monopoly over transportation fuel is not only myopic but also the best gift the Journal can give OPEC.”  But … oil dominates the transportation market because it is a heck of a lot cheaper than any other fuel.  If it weren’t so much cheaper than ethanol, then we would have no need for such massive subsidies for the same.  The same goes for electric cars.  If and when that changes, oil’s “monopoly” will crumble.  Until then, taking oil out of transportation markets simply takes cheap fuel out of transportation markets.  It would be fun to watch a Gingrich/Woolsey ticket run on that.

Preparing for Life as a Light Bulb Black Marketeer

 I’ve decided the time has come to become an entrepreneur – as a black market operator.

Come next January, 100-watt incandescent light bulbs will be illegal, courtesy of Congress and President George W. Bush.  Lower wattages will be banned the following year.  As usual, politicians in Washington believe they know best and are determined to inconvenience the public in the name of saving energy.

No matter that incandescent lights offer a softer light and are a better value than fluorescent bulbs if turned on only briefly.  And no matter that breaking a fluorescent light will spill mercury, creating what in any other circumstance would be considered to be a biohazard.

There are other consequences of the coming prohibition.  Notes Tim Carney of the Washington Examiner:

  • Citing this law, GE has closed its incandescent light plant in Virginia. For the coming years, while they’re still legal, Americans will be buying their GE incandescents from Mexico. This probably means less efficient manufacturing and more shipping.
  • GE makes its CFLs in China. The factories are likely dirtier and less efficient, and certainly there will be more shipping costs.
  • Because of the warm-up time for CFLs and the knowledge that they use less energy, people are more likely to leave them on for longer, I imagine.
  • In northern latitudes, incandescents’ inefficiency is not wasted. Think about it: in Alaska, summer nights are very short and winter nights are very long. That means a vast majority of light-bulb time happens in the winter. The incandescents waste energy in the form of heat, but if it’s cold, that added heat slightly reduces your need to use a furnace.
Of course, it’s hard to decide how many bulbs to buy.  What would be a lifetime supply of 100 watt lights?

And why stop there?  I could become an incandescent bulb pusher once the prohibition takes effect.  I don’t think drug prohibition makes any sense, but I have no desire to get into that market.  Customers and competitors are an ugly lot and I really don’t want to go to prison.  But selling light bulbs – now there’s something I could do!

I’d be even happier, however, if the new Congress dropped the coming prohibition.  Fluorescent bulbs often are a wise choice, but not always.  A supposedly free society should leave at least a few choices to people – like deciding which light bulbs to use.

Kerry and Lieberman Unveil Their Climate Bill: Such a Deal!

I see that my colleague Sallie James has already blogged on the inherent protectionism in the Senate’s long-awaited cap-and-tax bill.  A summary was leaked last night by The Hill.

Well, we now have the real “discussion draft” of  “The American Power Act” [APA], sponsored by John Kerry (D-NH) and Joe Lieberman (I-CT).  Lindsay Graham (R-SC) used to be on the earlier drafts, but excused himself to have a temper tantrum.

So, while Sallie talked about the trade aspects of the bill, I’d like to blather about the mechanics, costs, and climate effects. If you don’t want to read the excruciating details, stop here and note that it mandates the impossible, will not produce any meaningful reduction of planetary warming, and it will subsidize just about every form of power that is too inefficient to compete today.

APA reduces emissions to the same levels that were in the Waxman-Markey bill passed by the House last June 26.  Remember that one – snuck through on a Friday evening, just so no one would notice?  Well, people did, and it, not health care, started the angry townhall meetings last summer.  No accident, either, that Obama’s approval ratings immediately tanked.

Just like Waxman-Markey, APA will allow the average American the carbon dioxide emissions of the average citizen back in 1867, a mere 39 years from today.  Just like Waxman-Markey, the sponsors have absolutely no idea how to accomplish this.  Instead they wave magic wands for noncompetitive technologies like “Carbon Capture and Sequestration” (“CCS”, aka “clean coal”), solar energy and windmills, and ethanol (“renewable energy”), among many others.

Just like Waxman-Markey, no one knows the (enormous) cost.  How do you put a price on something that doesn’t exist?  We simply don’t know how to reduce emissions by 83%.  Consequently, APA is yet another scheme to make carbon-based energy so expensive that you won’t use it.

This will be popular!  At $4.00 a gallon, Americans reduced their consumption of gasoline by a whopping 4%.  Go figure out how high it has to get to drop by 83%.

Oh, I know. Plug-in hybrid cars will replace gasoline powered ones. Did I mention that the government-produced Chevrolet Volt is, at first, only going to be sold to governments and where it is warm because even the Obama Administration fears that the car will not be very popular where most of us live.  Did I mention that the electric power that charges the battery most likely comes from the combustion of a carbon-based fuel? Getting to that 83% requires getting rid of carbon emissions from power production.  Period.  In 39 years. Got a replacement handy?

Don’t trot out natural gas.  It burns to carbon dioxide and water, just like coal.  True, it’s about 55% of the carbon dioxide that comes from coal per unit energy, but we’ll also use a lot more more electricity over the next forty years.  In other words, switching to natural gas will keep adding emissions to the atmosphere.

Anyway, just for fun, I plugged the APA emissions reduction schedule into the Model for the Assessment of Greenhouse-gas Induced Climate Change (MAGICC – I am not making this up), which is what the United Nations uses to estimate the climatic effects of various greenhouse-gas scenarios.

I’ve included two charts with three scenarios. One is for 2050 and the other for 2100.  They assume that the “sensitivity” of temperature to a doubling of atmospheric carbon dioxide is 2.5°C, a number that many scientists think is too high, given the pokey greenhouse-effect warming of the planet that has occurred as we have effectively gone half way to a doubling already. The charts show prospective warming given by MAGICC.

The first scenario is “business-as-usual”, the perhaps too-optimistic way of saying a nation without APA.  The second assumes that only the US does APA, and the third assumes that each and every nation that has “obligations” under the UN’s Kyoto Protocol on global warming does the same.

As you can plainly see,  APA does nothing, even if all the Kyoto-signatories meet its impossible mandates.  The amount of warming “saved” by 2100 is 7% of the total for Business-as-Usual, or two-tenths of a degree Celsius. That amount will be barely detectable above the year-to-year normal fluctuations.  Put another way, if we believe in MAGICC, APA – if adopted by us, Europe, Canada, and the rest of the Kyotos – will reduce the prospective temperature in 2100 to what it would be in 2093.

That’s a big if.  Of course, we could go it alone. In that case, the temperature reduction would in fact be too small to measure reliably.

I’m hoping these numbers surface in the “debate” over APA.

So there you have it, the new American Power Act, a bill that doesn’t know how to achieve its mandates, has a completely unknown but astronomical cost, and doesn’t do a darned thing about global warming.  Such a deal!

Earth Day Links

Today is the 40th anniversary of Earth Day, a time to highlight and discuss ways to work toward a cleaner planet. Cato’s energy and environment research promotes policies that would help protect the environment without sacrificing economic liberty, goals that are mutually supporting, not mutually exclusive.

  • Why we should thank capitalism for environmental gains: “It is businessmen — not bureaucrats or environmental activists — who deserve most of the credit for the environmental gains over the past century and who represent the best hope for a Greener tomorrow.”
  • Finding the right balance: “Today, America’s environment is cleaner—and Earth Day has indeed helped ensure that. …We should renew our promise to keep the environment clean—without adding to human misery or stalling improvements in the human condition.”

Washington Rakes in the Money

The Washington Post launches a new weekly today, Capital Business, covering business in the Washington area. The cover of the first edition is striking:

As the cover line exults, “There’s a wave of government money headed our way – bringing opportunities in health care, green energy, cybersecurity and education.” Of course, it’s not actually “government money” – it’s money taxed or borrowed from those who produce it in the 50 states and then sprinkled liberally around the Washington area, which now contains 6 of the 10 richest counties in America.

If the Capital Business cover image had a few more arms, it would look like the logo for this year’s Cato University, “Confronting Grasping Government”: