Why is it legal for a state to differentially tax muni bonds?

#36 05-13-2005, 06:18 AM

wjbjr[at]webtv.net (William Brenner) wrote:
- quote -

> Stuart Bronstein responded, in part:

> > Note that the statute doesn't say you have to
> > be a Florida citizen, just that you have made it
> > your permenant (sic) residence.

> Stu-- I don't want to beat this into the ground. (The thread
> has been going on so long that I forget the original
> question.<g> ) But the following is extracted from the site
> cited in my previous post. It refers to questions asked
> first time applicants for the Florida homestead exemption:
> "How long have you been a legal resident of the State of
> Florida? (A Declaration of Domicile or Voter's Registration
> will be proof of date before January 1.)
> I believe that qualifying responses would indicate the
> establishment of Florida citizenship.

I agree. My point is this: You can have only one permanent
residence, you can be the citizen of only one state at any
given time. While those things will generally coincide,
there may be circumstances when they do not.

In any case, anyone who is a US citizen has the right to
move to Florida, take up residence there and get the benefit
of its homestead exemption.

Stu

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#35 05-10-2005, 12:35 PM

Stuart Bronstein responded, in part:

- quote -

> Note that the statute doesn't say you have to
> be a Florida citizen, just that you have made it
> your permenant (sic) residence.

Stu-- I don't want to beat this into the ground. (The thread
has been going on so long that I forget the original
question.<g> ) But the following is extracted from the site
cited in my previous post. It refers to questions asked
first time applicants for the Florida homestead exemption:

"How long have you been a legal resident of the State of
Florida? (A Declaration of Domicile or Voter's Registration
will be proof of date before January 1.)

"Do you have a Florida license plate on your car and a
Florida driver's license?"

I believe that qualifying responses would indicate the
establishment of Florida citizenship.

Bill

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#34 05-06-2005, 06:34 PM

Frederick Jorden <knowtax[at]bigfoot.com> wrote:
- quote -

> Stuart A. Bronstein wrote:
> > "Bernard S" <berniesa[at]pacifier.com> wrote:

> > > I was referring to why Muni interest is NOT taxed by the
> > > Feds and why US Government interest is NOT taxed by the
> > > states. Taxation of a US Government instrumentality
> > > (Second Bank of the United States) by Maryland was the issue
> > > in the 1819 case. If the bond holder is taxed then that is
> > > effectively taxing the issuer too.

> > I haven't researched this recently, but my recollection is
> > that muni bonds are not taxed by the federal government
> > because there is a statute exempting them. The feds could
> > tax the bonds if they wanted to.

> Prior to the passage of the provision exempting municipal
> interest the taxability was an unsettled issue in the
> federal courts. Should the exemption in the code be
> withdrawn the issue as a constitutional question will most
> definitely come up again given the wealth of the
> bondholders.

The most interested parties would probably be the states and
other municipalities. Without the tax exemption they could
not sell their bonds at rates below that of taxable bonds
and similar investments.

--
Vic Roberts
Replace xxx with vdr in e-mail address.

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#33 05-06-2005, 05:56 PM

wjbjr[at]webtv.net (William Brenner) wrote:
- quote -

> Stuart Bronstein replied:

> > Homestead means that you have to live there.
> > If a non-citzen (sic) of Florida actually resides
> > there, he should be entitled to the homestead
> > exemption.

> The following excerpt from the Florida regulations clearly
> indicates that resident citizens of other states who have a
> second home in Florida are not eligible for the homestead
> exemption. Even Florida permanent residents with multiple
> Florida homes qualify for only one exemption.

You can have only one homestead, and it's your principal
residence. It's the same rule all over the country.
Everyone is treated equally.

Note that the statute doesn't say you have to be a Florida
citizen, just that you have made it your permenant
residence.

Stu

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#32 05-04-2005, 06:01 AM

Stuart Bronstein replied:
Homestead means that you have to live there.
- quote -

> If a non-citzen (sic) of Florida actually resides
> there, he should be entitled to the homestead
> exemption.

The following excerpt from the Florida regulations clearly
indicates that resident citizens of other states who have a
second home in Florida are not eligible for the homestead
exemption. Even Florida permanent residents with multiple
Florida homes qualify for only one exemption.

"Every person who has legal or equitable title to real
property in the State of Florida and who resides on the
property on January 1 and in good faith makes it his or her
~permanent home~ (emphasis added) is eligible for a
homestead exemption."

http://www.myflorida.com/dor/property/exemptions.html

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#31 05-04-2005, 05:42 AM

Stuart A. Bronstein wrote:
- quote -

> "Bernard S" <berniesa[at]pacifier.com> wrote:

> > I was referring to why Muni interest is NOT taxed by the
> > Feds and why US Government interest is NOT taxed by the
> > states. Taxation of a US Government instrumentality
> > (Second Bank of the United States) by Maryland was the issue
> > in the 1819 case. If the bond holder is taxed then that is
> > effectively taxing the issuer too.

> I haven't researched this recently, but my recollection is
> that muni bonds are not taxed by the federal government
> because there is a statute exempting them. The feds could
> tax the bonds if they wanted to.

Prior to the passage of the provision exempting municipal
interest the taxability was an unsettled issue in the
federal courts. Should the exemption in the code be
withdrawn the issue as a constitutional question will most
definitely come up again given the wealth of the
bondholders.

--
Frederick E. Jorden http://Tax-Accounting-Payroll.com
7825 Midlothian Tpk - 207 Richmond, VA 23235-5247
EMAIL knowtax[at]bigfoot.com
(804) 320-6210 FAX (804) 320-6211

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#30 05-03-2005, 08:42 AM

MTW wrote:
- quote -

> Katie wrote:

> > Certainly the exemption of interest on the state's
> > own bonds, while taxing interest on bonds issued by other
> > states, encourages the state's residents to invest in their
> > own state's bonds in preference to others, and thereby
> > discriminates against the other states. The question would
> > be whether a state or local government agency's offering
> > bonds for sale to nonresidents as well as residents
> > constitutes "commerce between the states."

> It has been quite a while since I've looked at commerce
> clause issues. However, I seem to recall decisions noting
> that the purpose of the commerce clause is NOT to protect
> citizens from taxes imposed BY THEIR OWN STATE. With that
> thought in mind, it would appear that states are free to
> craft taxation schemes that favor in-state activities. The
> sole question would thereafter be whether such favorable
> treatment is denied to non-residents who fall subject to the
> state's tax.
> So, if this theory holds water, then I suspect it would be
> OK for a state to exempt its own municipal bonds from
> taxation so long as it does not try to deny that exemption
> to non-residents.

That's true, Mike, as far as it goes. However, I think
you're really thinking of the privileges and immunities
clause more than the commerce clause. I don't think P&I has
much relevance here, because as you suggest, a nonresident's
interest income is taxed in exactly the same way as the
resident's.

The commerce clause inquiry is whether *INTERSTATE* commerce
is treated less favorably than *INTRASTATE* commerce. The
"nondiscrimination" prong of Complete Auto Transit (USSC
1977) refers to discrimination against interstate commerce,
not necessarily discrimination against the taxpayer. The
plaintiff in Fulton was a North Carolina-based corporation.
Fulton didn't argue that IT was the victim of
discrimination; it argued (successfully) that the tax
discriminated against out-of-state businesses and in favor
of in-state ones by taxing the value of the former and
exempting the latter. It was the issuers of the securities
that were the victims of discrimination, not Fulton itself.
(In fact, Fulton itself would arguably have BENEFITED from
the exemption scheme if it had offered shares for sale to
the public.)

Exempting the state's own obligations while taxing income
from those of other states seems to discriminate, on its
face, against the other states. The Court's analysis in
Fulton makes it clear that the only defense of a facially
discriminatory tax scheme is that the tax is compensatory,
i.e., that it compensates for some other tax burden that is
borne by in-state commerce but not by out-of-state commerce.
The best example of a valid compensatory tax is the use
tax, which is imposed on the buyer in order to prevent
out-of-state sellers from gaining a competitive advantage
over in-state sellers (whose sales are subject to sales
tax). Is there a good compensatory tax argument to support
the differential treatment of state and local bond interest?
I don't know; I'd have to think about it some more.

Of course application of the commerce clause hangs on the
determination that the issuance of bonds by state and local
governments, which make the bonds available and actually
promote them for sale to residents and nonresidents alike,
constitutes "commerce." It's certainly interstate, but is
it commerce? Maybe ... maybe not.

Katie in San Diego

The foregoing is intended for educational purposes only and
does not constitute legal or professional advice.

Moderator: I get educated by reading Katie's posts

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#29 05-03-2005, 08:42 AM

Bernard S <berniesa[at]pacifier.com> wrote:

- quote -

> I was referring to why Muni interest is NOT taxed by the
> Feds

Some Muni interest _is_ taxed by the Feds. (Not only are
there taxable munis, there are rules about non-taxable munis
that if violated make them taxable.)

Seth

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#28 05-03-2005, 08:23 AM

"Bernard S" <berniesa[at]pacifier.com> wrote:

- quote -

> I was referring to why Muni interest is NOT taxed by the
> Feds and why US Government interest is NOT taxed by the
> states. Taxation of a US Government instrumentality
> (Second Bank of the United States) by Maryland was the issue
> in the 1819 case. If the bond holder is taxed then that is
> effectively taxing the issuer too.

I haven't researched this recently, but my recollection is
that muni bonds are not taxed by the federal government
because there is a statute exempting them. The feds could
tax the bonds if they wanted to.

Stu

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#27 05-03-2005, 08:23 AM

wjbjr[at]webtv.net (William Brenner) wrote:
- quote -

> Stuart Bronstein stated, in part:

> > And when a state discriminates against
> > citizens of other states and in favor of its
> > citizens, that is generally illegal.

> How then do they legally justify higher tuition charges for
> out of state college students attending state schools?

It's the citizens of the state who subsidize in-state
tuition. So since the courts figure it's fair to say they
don't have to subsidize citizens of other states who have
not paid taxes in the state.

- quote -

> Also, Florida ~resident~ home owners receive a homestead
> exemption on their real estate taxes. Non resident Florida
> home owners do not -- at least not legally.

Homestead means that you have to live there. If a
non-citzen of Florida actually resides there, he should be
entitled to the homestead exemption.

Stu

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#26 05-02-2005, 04:56 AM

"D.F. Manno" <dfm2a3l0t2[at]spymac.com> wrote:
- quote -

> "Bernard S" <berniesa[at]pacifier.com> wrote:

> > State are not bound in their relations with other states
> > and in fact are barred from compacts with other states.

> No, they're not, as long as they get the OK from Congress.
> Article I, Section 10:

> > No State shall, without the Consent of Congress, lay any Duty of
> > Tonnage, keep Troops, or Ships of War in time of Peace, enter
> > into any Agreement or Compact with another State, or with a
> > foreign Power ...

What part of "consent of congress" do you not understand. In
McCulloch v Maryland, it was held that the power to tax is
the power to destroy.

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#25 04-30-2005, 10:41 PM

Stuart A. Bronstein wrote:

- quote -

> It is a constitutional question because Article IV, section 2 of
> the Constitution says,
> "The Citizens of each State shall be entitled to all Privileges and
> Immunities of Citizens in the several States."
> If citizens of California are required to pay income tax on MA
> bonds while citizens of MA are not, they are not being treated
> equally.

Andy replies:

Well, I take that as meaning that if a citizen of Texas is
allowed to pack a gun in Texas, he is entitled to that
privilege in New York. Obviously that is not correct. But
it is a literal translation that all citizens shall have the
same priveleges, regardless of their state.....

I am sure that these state laws (taxation) have been
repeatedly challenged and the matter has been settled by
case law.

"Law" is what the legislators pass. It is "law" until it is
repealed, either by legislators or nullified by higher
courts. Many lives have been ruined by "unjust" laws that
are later changed, but for a period of time they are LAW.

This is good advice : " If you think a law is unjust, don't
tell anybody about it when you break it. Let some other
fool rot in jail , or have his property confiscated, until
the ACLU makes it right".

Law is a fluid, changing commodity. As soon as the
government runs out of money, they will tax munis, IRAs ,
and small gifts just as soon as enough legislators decide
that is a good thing for them to do........ We should plan
our lives accordingly.

Just an opinion,

Andy

PS: Stuart, I have been reading your stuff for a long time and
value your contributions very highly. Thank you.

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#24 04-30-2005, 10:22 PM

Katie wrote:

- quote -

> Certainly the exemption of interest on the state's
> own bonds, while taxing interest on bonds issued by other
> states, encourages the state's residents to invest in their
> own state's bonds in preference to others, and thereby
> discriminates against the other states. The question would
> be whether a state or local government agency's offering
> bonds for sale to nonresidents as well as residents
> constitutes "commerce between the states."

It has been quite a while since I've looked at commerce
clause issues. However, I seem to recall decisions noting
that the purpose of the commerce clause is NOT to protect
citizens from taxes imposed BY THEIR OWN STATE. With that
thought in mind, it would appear that states are free to
craft taxation schemes that favor in-state activities. The
sole question would thereafter be whether such favorable
treatment is denied to non-residents who fall subject to the
state's tax.

So, if this theory holds water, then I suspect it would be
OK for a state to exempt its own municipal bonds from
taxation so long as it does not try to deny that exemption
to non-residents.

MTW

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#23 04-30-2005, 10:22 PM

"Stuart A. Bronstein" <spamtrap[at]lexregia.com> wrote:
- quote -

> Harlan Lunsford <hlunsford[at]bellsouth.net> wrote:
> > Andy wrote:

> > > It is NOT a constitutional question, since the power of the
> > > FEDERAL government does not extend into those areas which
> > > are reserved to the states.

> It is a constitutional question because Article IV, section 2 of
> the Constitution says,
> "The Citizens of each State shall be entitled to all Privileges and
> Immunities of Citizens in the several States."
> If citizens of California are required to pay income tax on MA
> bonds while citizens of MA are not, they are not being treated
> equally.

Except that citizens of California are NOT subject to tax on
those bonds in Massachusetts just as the citizens of
Massachusetts are similarly not subject to tax on them in
Massachusetts. Conversely, a Massachusetts citizen will not
pay California tax on a CA muni bond, nor will a California
citizen. I see no disparity here.

--
David M. Woods, EA, ChFC, CLU
Woods Financial Services
Norwood, MA 02062
www.woods-financial.com

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#22 04-30-2005, 10:22 PM

"Katie" <katiej_1958[at]yahoo.com> wrote:
- quote -

> Bernard S wrote:
> > "Rich Carreiro" <rlcarr[at]animato.arlington.ma.us> wrote:

> > > Why is it not considered a constitutional violation for a
> > > state to exempt from its income tax interest on bonds issued
> > > by that state and its political subdivisions but not exempt
> > > from tax the interest on bonds issues by other states and
> > > their political subdivisions?
> > > > > In many other areas where a state treats "in state" income
> > > more favorably than "out of state" income, there have been
> > > successful Commerce Clause-based lawsuits overturning the
> > > practice. Is it because state (and muni) bonds aren't
> > > consider part of interstate commerce?

> > I previous referenced the wrong case. The refernce should be
> > McCulloch v. Maryland (1819) Taxing the interest on state
> > sponsored bonds would be the equivalent of taxing the state
> > itself or a federally run banks taxed by the state. State
> > are not bound in their relations with other states and in
> > fact are barred from compacts with other states.

> Gee. There are LOTS of multistate compacts. Start with the
> Multistate Tax Compact (http://www.mtc.gov/ABOUTMTC/compact.htm),
> to which about 20 states are parties. Many states have entered
> into reciprocal agreements with respect to the taxation of
> nonresidents' earnings, collection of other state tax
> liabilities, exchange of confidential taxpayer information,
> and so on.
> McCulloch v. Maryland is the foundation of the
> intergovernmental immunity doctrine, which seems so far to
> have been applied only to protect the federal government and
> its instrumentalities from taxation by the states. It
> hasn't been invoked to protect states and their
> instrumentalities from taxation by one another, but maybe it
> could be.
> The more I think about it, however, the more I think the
> most likely successful challenge would be under the commerce
> clause. Black's Law Dictionary defines "commerce" as "the
> exchange of goods and services, esp. on a large scale
> involving ttransportation between cities, states, and
> nations," and "interstate commerce" as "trade and other
> business activities between persons located in different
> states; esp., traffic in goods and travel of persons between
> states."
> The sale of bonds and other financial instruments by state
> and local governments to purchasers located in other states
> seems to me to fit that definition. The U.S. Supreme Court
> has held that a nonprofit organization can be engaged in
> interstate commerce even though it is not operated for
> pecuniary gain (Camps Newfound/Owatonna, U.S. Supreme Court,
> 1997). In that case the Court said, "For purposes of
> Commerce Clause analysis, any categorical distinction
> between the activities of profit-making enterprises and
> not-for-profit entities is ... wholly illusory. Entities in
> both categories are major participants in interstate
> markets." State and local governments, as well, arguably
> are "major participants in interstate markets" when they
> place their bonds and other obligations for sale to
> residents and nonresidents alike.
> So -- if I were going to challenge the taxation of
> out-of-state bond interest, I think that's the main argument
> I'd make. Whether I'd win it, of course, is unknown <G> .

I was referring to why Muni interest is NOT taxed by the
Feds and why US Government interest is NOT taxed by the
states. Taxation of a US Government instrumentality (
Second Bank of the United States) by Maryland was the issue
in the 1819 case. If the bond holder is taxed then that is
effectively taxing the issuer too.

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#21 04-30-2005, 10:22 PM

Steve Pope wrote:
- quote -

> Seth Breidbart <sethb[at]panix.com> wrote:

> > I can't see how a resident of NY buying a CA bond is not
> > interstate commerce. It's clearly commerce, and it's
> > clearly interstate.

> And this differs from a resident of CA web-ordering
> something from Amazon exactly how?

Because you buy something from Amazon, but one never "buys"
a bond, which is merely evidence of a loan. If you counter
by saying that, IRS considers the transfer of said debt to
another, or the redemption by the issuer a "sale",
remember, schedule d is used for "sales AND/OR exchanges".

ChEAr$,
Harlan Lunsford, EA n LA

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#20 04-30-2005, 10:03 PM

Stuart Bronstein stated, in part:

- quote -

> And when a state discriminates against
> citizens of other states and in favor of its
> citizens, that is generally illegal.

How then do they legally justify higher tuition charges for
out of state college students attending state schools?

Also, Florida ~resident~ home owners receive a homestead
exemption on their real estate taxes. Non resident Florida
home owners do not -- at least not legally.

Bill

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#19 04-30-2005, 10:03 PM

"Stuart A. Bronstein" <spamtrap[at]lexregia.com> wrote

- quote -

> But in general states must treat their citizens and
> non-citizens alike.

They do. California doesn't tax a Massachusetts citizen on
their California muni bond income, nor do they tax a
California citizen on their California muni bond income.
Sounds like the same treatment for the same type of income
regardless of the status of the entity that earns it -
Constitutional in every way.

--
Paul A. Thomas, CPA
Athens, Georgia
taxman at negia.net

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#18 04-27-2005, 12:59 PM

Harlan Lunsford <hlunsford[at]bellsouth.net> wrote:
- quote -

> Andy wrote:

> > It is NOT a constitutional question, since the power of the
> > FEDERAL government does not extend into those areas which
> > are reserved to the states.

It is a constitutional question because Article IV, section 2 of
the Constitution says,

"The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States."

If citizens of California are required to pay income tax on MA
bonds while citizens of MA are not, they are not being treated
equally.

Of course, there are rule-of-reason exceptions. But in general
states must treat their citizens and non-citizens alike.

- quote -

> > For instance, prostitution is legal in Nevada.

And anyone who goes to Nevada, whether Nevada citizen or not,
can engage in prostitution.

- quote -

> > Screwing a goat is legal in Texas.

But not just for Texas residents.

- quote -

> > Legislators can pass any law they want, as long as they
> > don't single out a group because of race or religion (and
> > maybe a couple other things like taxing Republicans instead
> > of Democrats)....

Or state citizens as opposed to citizens of other states.

- quote -

> > So, you see, the answer is simple. Munis are excempt in
> > most states because the elected representatives passed a law
> > making it so...... They can change the law if they want to.
> > Plan your life accordingly <G> ...

If things were legal just because some legislature somewhere
passed a law, half of the job of the federal courts would be gone.

- quote -

> I've come across people before who thought that any form
> whatsoever of even alleged (in their own mind mostly)
> discrimination was against federal law. One fellow once
> demanded that I take him on as a client, saying under
> federal law I couldn't discriminate on any grounds. (I
> showed him the door while he was still fuming.)

You're right. We discriminate all the time, and it's perfectly
legal - unless it's not. And when a state discriminates against
citizens of other states and in favor of its citizens, that is
generally illegal.

Stu

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#17 04-27-2005, 09:42 AM

Seth Breidbart <sethb[at]panix.com> wrote:

- quote -

> I can't see how a resident of NY buying a CA bond is not
> interstate commerce. It's clearly commerce, and it's
> clearly interstate.

And this differs from a resident of CA web-ordering
something from Amazon exactly how?

Steve

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