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Comment by basseq | Hacker News Reader

I did a quick google and found a discussion of retroactive tax laws (applying to gift taxes in 2010):

http://www.assetprotectionsociety.org/the-likelihood-and-enf...

Potential arguments include due process, "wholly new tax", lack of notice, ex post facto (with the same caveat as mentioned here about applicability only to criminal cases), and the fifth amendment taking clause.

Conclusion: it's hard to fight.

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Some things about the US still surprise me. In "socialist Sweden" (as it's sometimes called) retroactive taxation is unconstitutional.

On the other hand capital gains is 20-30%, and most entrepreneurs actually have their gains taxed as income. That means you're lucky if you get to keep 13%. ;) I'm exaggerating a bit, but not much.

> Some things about the US still surprise me. In "socialist Sweden" (as it's sometimes called) retroactive taxation is unconstitutional.

The difference between the US and postage-stamp-sized European countries like Sweden is that there is great political and cultural variation between different parts of the US. California is chock full of socialists/liberals.

postage-stamp-sized European countries like Sweden

At 174K mi^2, Sweden is larger than California's 164K mi^2.

Population-wise, Sweden is about the same as new york city.

You're being intentionally obtuse. As is immediately apparent if you look at a population density map of Sweden[0], the vast majority of the population is concentrated in the southern part of the country.

0: http://upload.wikimedia.org/wikipedia/commons/b/b2/Swedishpo...

If you meant population, you should have said population. The phrase "postage-stamp-sized European countries" is pretty broadly understood and used to mean things like Andorra, Lichtenstein, Luxembourg, Malta, Montenegro, &c.

By no stretch of the imagination is interpreting a widely-used phrase as it's widely used "being intentionally obtuse."

I'm a socialist/liberal who lives in California and I think the idea of retroactive taxation on anything (be it person or business), is nightmareish and should be abolished.

Given that Sweden is about 10% larger than California, albeit with less than a third the population, it's hardly "postage-stamp-sized". Given that we elected Reagan, Schwarzenegger, and David Dreier, California's chock full o' wingnuts as well as socialists/liberals.

> Given that Sweden is about 10% larger than California, albeit with less than a third the population, it's hardly "postage-stamp-sized".

I already addressed this point below in response to another reply: http://news.ycombinator.com/item?id=5062138

> Given that we elected Reagan, Schwarzenegger, and David Dreier, California's chock full o' wingnuts as well as socialists/liberals.

I'm not familiar with Dreier, but there's no doubt that Californians have a soft spot for actors.

It's not retroactive taxation. The Supreme Court pointed out that a tax break enacted several years ago was unconstitutional.

most tax bills have a severability clause in them, meaning that is one part is struck down, the rest remain in force. I don't know that was the case with this particular law.

It's technically unconstitutional in Italy as well, but it keeps happening over ad over... "Emergency measures".

> applicability only to criminal cases

Where do you get that? The Constitution says simply:

"No Bill of Attainder or ex post facto Law shall be passed."

Period, end of story. Just because someone on the Internet says this applies only to criminal law doesn't make it so.

How about the US Supreme Court:

See Carpenter v. Pennsylvania, 58 U.S. 456 (1854):

"The debates in the federal convention upon the Constitution show that the terms "ex post facto laws" were understood in a restricted sense, relating to criminal cases only, and that the description of Blackstone of such laws was referred to for their meaning. 3 Mad.Pap. 1399, 1450, 1579.

This signification was adopted in this Court shortly after its organization in opinions carefully prepared, and has been repeatedly announced since that time. Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch 87; 33 U. S. 8 Pet. 88; 36 U. S. 11 Pet. 421."

The Court gets things wrong occasionally. They got this wrong. Legislative intent does not trump the clear unambiguous wording of the law. This is why, for example, minting the trillion dollar coin would be legal despite the fact that this was clearly not the intent of the legislation.

"Ex post facto law" was a well-established legal term of art referring to a class of criminal law either imposing new prohibitions or increasing punishments for crimes committed before the law was enacted well before the Constitution was written.

Legislative intent doesn't trump the clear and unambiguous wording of the law, but the clear and unambiguous meaning of "ex post facto law" is the particular class of criminal law that the phrase "ex post facto law" has always referred to.

ex post facto isn't English, it's not even really Latin. It's a legalism. The go to source of meaning for Anglo legalism in the late 19th century was Blackstone's "Commentaries on the Laws of England" . It's the Blackstone definition that the Court adopted.

I stand corrected. Wow, this sucks.

> Period, end of story.

Despite flailing politicians on both sides of the aisle, the Constitution is not as clear-cut as that.

See Calder v. Bull (1798).

Unfortunately our law is not only the constitution, but also hundreds of years of decisions surrounding it. Makes it hard for any layperson to actually know what the law is!

The Supreme Court pointed out that the law was unconstitutional. So the effects of the law over the past 5 years were illegitimate, and should probably be fixed.

Note that the part of the law that restricted its applicability was unconstitutional. The ability to offer this tax break, period, is not.

Thus, the logical resolution would be to allow those unconstitutionally barred from receiving the benefit to file for retroactive benefits. However, this would allow pretty much any company located anywhere to file for the benefit (at least to my reading; IANAL), completely defeating the purpose of a tax law that encouraged CA businesses and potentially bankrupting the state.

So: someone ignored the spirit of the law and exploited a loophole to get themselves a bigger tax break and instead broke the entire system for everyone. California was stuck between a rock (allowing for pretty much everyone to file for retroactive benefits) and a hard place (nullifying previous year benefits for those who received them).

Nice job, guy.

This isn't a retroactive tax law, its the implementation of a court striking down as unconsitution a statute allowing for a certain set of exemptions and deferrals from a pre-existing tax.

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