Well, in this case the IRS isn't passing a retroactive law, they are clarifying the interpretation of an existing law.
Not to mention that there is solid precedent that retroactive taxes are not, in general, ex post facto laws in the first place, such that even if this was Congress adopting a retroactive tax law, it still wouldn't fall afoul of the ex post facto prohibition.
> IRS actions under the current interpretation, the law which
> would be controlling is not retroactive.
This is to me a very weak argument (not that I disagree that this may be the standard that is applied in practice). If the Congress passed a law saying "the IRS can set tax code as it sees fit" and the IRS proceeds to levy taxes all the way back to 1980 on people as however it so desires, you should not be allowed to use that law as grounds for not having violated the ex post facto requirement. If this is the current understanding of what is allowed, I must vigorously object to whichever judgement left this precedent.
Then this would be an unconstitutional delegation of legislative authority to the executive. [0] Rendering the consideration of whether any executive action under it would constitute an ex post facto law moot -- if Congress purports to delegate enough power to the executive that retroactive executive action under it would be an ex post facto law, than the whole scheme is an unconstitutional delegation of legislative power whether or not it is applied retroactively.
Heck, even though retroactive taxation isn't generally ex post facto law (which is retroactive criminalization or enhancement of criminal penalties), the law you propose would be an unconstitutional delegation.
> If this is the current understanding of what is allowed
Its not, its just the prohibition that prevents it has nothing to do with (and is much broader than) the ex post facto law prohibition.
[0] See, e.g., https://en.wikipedia.org/wiki/Nondelegation_doctrine#United_...
And yet this is what we seem to be experiencing in this case, where the IRS can make a policy interpretation retroactively to the tune of $6 billion for a single taxpayer. Your source indicates that congress allows the IRS to decide tax policy, but since tax evasion is itself a crime it seems to indirectly violate the ex post facto law prohibition.
No, Congress passing a law saying that "IRS can set taxes at any level they want" is not what we are seeing.
If you want to argue that the actual laws Congress has passed are unconstitutional delegations, please, point to the specific laws, and make that argument.
> but since tax evasion is itself a crime it seems to indirectly violate the ex post facto law prohibition.
Evasion is a different thing than non-payment. No act that occurred in the past that was not evasion when it occurred becomes evasion as a result of this change in application.
Incorrect, but I can see how you might think so. It is the same because if I disagree with the IRS and refuse payment then according to https://www.law.cornell.edu/wex/tax_evasion, I have committed tax evasion.
So yes, since the IRS can adjust my tax burden retroactively, tax evasion is involved. Suppose in 2012 I filed my tax returns and was fully honest. The IRS agreed, but now in 2015 they change the 'interpretation', and if I disagree with the new tax they are levying on me, presto chango! I can now be convicted of tax evasion for refusing to pay this arbitrary retroactive tax.
Nonpayment and refusing payment are different things. The act of refusal would happen after the policy change, therefore, the only act that might even arguably be criminalized is an act that would occur after the change, and no retroactive criminalization has occurred.
No act before the policy was adopted is criminalized, even by your characterization.
Now, if the actual law allows arbitrary changes to tax calculation by the IRS, you could argue a nondelegation doctrine violation, rather than an ex post facto violation. But to argue that, you'd actually have to point to the provision of law at issue.
Or you could argue that the policy change is inconsistent with the law Congress has adopted. But, again, you'd have to actually point to the specific provisions that are violated to do that.
If, finally, the IRS simply failed to correctly apply the law as Congress wrote it previously, and the change in guidance is simply closing a gap between IRS policy and the law written by Congress, then you can maybe fault what the IRS was doing before (though, of course, no taxpayer would challenge an overly lax application of the law -- or even have standing to do so), but not what they are doing now.
The NYT even called it a retroactive policy change!
You can ignore whatever you want, but it doesn't change what the words in the Constitution meant in the context they were written, and have been consistently been interpreted by the courts to mean. Arguing that something is unconstitutional just because you've invented an entirely ahistorical set of definitions of the words used is, well, not all that unusual, but still not particularly interesting.
> It doesn't have to be as complex as you make it out to be.
Its not at all complex: A government action is an ex post facto law if it criminalizes, or increases the criminal sanction for, an event that occurred before the act occurred. Even by your own characterization, the only thing this might criminalize is a refusal to pay the newly-calculated tax after the policy. So, no ex post facto law.
You can argue that it is undesirable for other reasons, but you can rest on the Constitutional prohibition of ex post facto laws to do that when its not an ex post facto law.
> The NYT even called it a retroactive policy change!
Its obviously a retroactive policy change, in that it applies to IRS assessment of taxes for prior tax years.
No act that was committed in those tax years becomes criminal because of the policy change, so its not an action which retroactively criminalizes an act or increases the criminal penalty for an act.
"Retroactive policy change" and "ex post facto law" aren't the same thing.
I guess people have different definitions of evasion, but I would probably define it as having the intent to evade taxes "from the start". As a citizen (or a corporation), you are free to decide on your own interpretation of the law. Tax authorities (around the globe) aren't always right. Hence you ask a judge, because an interpretation is just that: an interpretation. It's not the law. And the law is the only thing that counts.
The legal standard for proving tax evasion disagrees with you.
Innocent until proven guilty?
Yes, for refusing to pay. If you concede to the IRS interpretation, you just pay the amount you owe plus interest and fees.
> this arbitrary retroactive tax.
that's not what it is
"Battery" is a crime. If the state decides that "smacking someone's back" meets the definition of battery, they can prosecute people who committed that act before the clarification, as long as a judge finds their interpretation to be consistent with the wording of the law.
Law is not computer code that fully specifies a simulation in advance.
The parallels to the IRS case should be obvious, and the above hypothetical scenario is very much what the constitution was meant to protect against.
Please point the specific provision(s) of law parallel to the one in your hypothetical, both as to the unlimited discretion and as to the discretion to decide what constitutes criminal punishment.
Because I don't think the parallels are at all obvious.
I never said the discretion was unlimited; rather, I think that any retroactive decision in guidance/policy/interpretation is prohibited by the constitution. The words are just semantics.
IRS tax avoidance constitutes criminal punishment.
Thanks for the downvotes, everyone.
You keep asserting that, but you have failed to even begin to argue that.
> rather, I think that any retroactive decision in guidance/policy/interpretation is prohibited by the constitution.
You are welcome to think that, however, that's not consistent with the history of the use "ex post facto law", which was a legal term of art already in existence at the time the Constitution was written, and whose scope of meaning in the Constitution since, practically, the ink was still wet on the Constitution.
> IRS tax avoidance constitutes criminal punishment.
No, tax avoidance (which is structuring activities in awareness of the law so as not to incur tax liability) isn't something that is subject to criminal punishment; it is perfectly legal.
Nonpayment of tax isn't legal, but isn't generally criminal either.
Tax evasion is criminal, but involves things like false representation to avoid tax liability being correctly assessed. Following the then-current IRS guidance isn't evasion, and doesn't retroactively become evasion when the guidance changes, even though the change in guidance may change the IRS's computation of tax due.
There seems to be no good word for nonpayment of tax; tax evasion you take issue with elsewhere, tax avoidance is not the correct word I agree, but I don't know what word you really would like.
One thing is very clear: the IRS will take what it feels is due ('legally', or retroactively legal) and is willing to use the criminal justice system to do so. I and any freedom-loving American see this as a gross violation of the constitution.
I consider the IRS as a necessary and permitted part of governance, as a way to pay for the many benefits I enjoy for living in a (mostly) civilized nation.
I at least of course do not see the IRS proper as a gross violation of the constitution. Rather, the retroactive judgement of tax owed is a gross violation. That is the context we are having this conversation in, whether the government can retroactively decide that you owe tax to it, in apparent violation of (the spirit, anyway) the constitution.