SMU Law Review


In enacting the tax laws, Congress and others involved in the legislative process have been accused by many, including individual members of Congress, congressional aides, and the press, of employing gimmicks and sleight of hand as part of the tax legislative process. Some of these so-called gimmicks include the use of non-code provisions to benefit certain taxpayers, the use of the alternative minimum tax to scale back tax benefits (and lower revenue costs), and also the use of delayed effective dates and transition rules to lower revenue costs.

Magicians use the term gimmick quite often. In fact, the term "gimmick" comes from the magic arena. But magicians also use the term "fake," and almost all magical devices utilized by magicians can be classified as either gimmicks, which are generally secret devices, or fakes, which are generally visible yet not understood devices. Magicians utilize gimmicks and fakes to accomplish a single purpose: to deceive and thereby entertain the audience. In the world of magic, no negative (or positive) connotations are associated with the terms gimmicks and fakes - they are merely categorizations of magical props.

It appears that much (but not all) of the so-called trickery and sleight of hand employed by those in the tax legislative process can also be classified into two broad categories very similar to the magical categorizations of gimmicks and fakes. The first category involves changes to the tax laws that are hidden from general view. More specifically, these changes are not part of the Internal Revenue Code even though they are tax provisions. Rather, the changes are part of the non-code tax laws, or in some cases, part of the legislative history. The second category involves changes to the tax laws that are not hidden from general view. In other words, they are not hidden changes but rather changes that are in plain view. In actuality, however, these open tax changes may not be well-understood by taxpayers and tax advisors. Congress's use of what magicians would categorize as gimmicks and fakes obviously differs from those of a magician. Congress is not entertaining an audience. Rather, its use of gimmicks and fakes may be designed to benefit a limited class of taxpayers or to lower revenue costs. In this article, no negative (or positive) connotations are intended by categorizing various tax legislative provisions as gimmicks or fakes.

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