Challenge Tax Code as Ex Post Facto Law?

It is becoming increasingly clear that it is impossible to calculate exactly what you owe to the IRS (even the IRS will not take responsibility for what their customer support people tell you that you owe).  Given that, one can't really know his or her tax burden for sure until and unless one is audited and the case is adjudicated.  Doesn't this put the tax code in violation of the Constitution's prohibition of ex post facto law?


  1. marco73:

    I've received several audit letters over the years, and I'm not wealthy enough to fight them, so I just set up a payment plan. I think that is a feature, not a bug.

  2. Doc Merlin:

    No, the court ruled in 1788 that taxes retroactive taxes are not ex-post-facto law.

    Calder v. Bull, 3 U.S. 386, 390-91 (1798)

    Yes, its idiotic, but its government, this is what they do.

  3. Another guy named Dan:

    The Supremes have ruled that Ex Post Facto limitations do not generally apply to civil law, and much of tax enforcement is civil, not criminal.

    Things have to get pretty extreme before the IRS will start going after you criminally, but they often use the threat of crimnal charges as a club to get you to accept civil penalties.

  4. TJIC:

    > The Supremes have ruled that Ex Post Facto limitations do not generally apply to civil law, and much of tax enforcement is civil, not criminal.

    Damn, beaten to the punch.

    Dean is correct.

    This is despite the Constitution being 100% clear:

    Art I section 9:

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

    The government has decided that the government isn't bound by the document that defines the government.

    So there.

    Welcome, yet again, to 1984.

  5. matt:

    As others have mentioned, it is long standing case law that ex post facto only applies to criminal statutes.

    However, challanging the tax code as unconstitutionally vague might work.

  6. NL_:

    Not really going to get much from the courts in the way of serious limits to the taxing power. They started out a little more critical, but for a long time the pattern is court decisions finding that the Congress has the power to tax something and then Congress comes in and writes an exemption to avoid using that approved power. So remember that when you're looking for relief from the tax Code, the authors tend to be more pro-taxpayer than the arbiters.

    Yeah, let that sink in. The taxpayer's best ally is the same group of swindlers and hairpieces who get to spend the proceeds.

  7. Mark2:

    The funny thing is, they send you the audit letters even if you make trivial mistakes. Last time I got a bill for $1540 and before I started to figure the mess, I called them up, the IRS agent on the phone, said, hey let me quickly look at that for you. Oh you missed an entry on line X of the High detectability Healthcare plan form. Just fill in line X and it all goes away.

    So they basically knew before they sent me the letter that I did nothing wrong and owed no moneys, but the sent me the letter anyway - probably in the hope that I would panic and just send them $1500 bucks.

  8. Smock Puppet, 10th Dan Snark Master:

    >>> However, challenging the tax code as unconstitutionally vague might work.

    If you have a few hundred million to pursue the case vs. the AG's army, yah... it could work.... I suppose.

  9. Daniel:

    Although retroactive tax laws are not considered ex post facto (by the courts, not by me), I would still argue that if a criminal case is based on failure to comply with a retroactive provision, then any criminal prosecution based on the retroactive provision would violate the ex post facto clause.

  10. Bill:

    My wife works for H&R Block in Canada. This year she started to do US returns. Up to that point, she would have been quite open to move to the US if I lost my job here and there was a good job for us down there. But since she got familiar with the US tax code, she said she would think twice before moving down.


  11. joshv:

    I now just pay about $1k/year to my accountant to do it all for me. This year, believe it or not, my Massachusetts tax return, a state in which I neither reside nor work, was larger than all my other three state returns and my federal tax return combined.

    MA for some reason makes a claim on my LLC partnership income because my company employs two people in MA. My various other corporate and residential states, not at all complicated or unusual, pull in CO, IL and PA. So I have 4 state returns and a federal return.

    I am surprised we aren't required to file a CA state return because we've got clients there. I can guarantee you we are never going to hire an employee or open an office there.

  12. David Zetland:

    Does anyone have a ranking of tax code complexity? As an American living in the Netherlands, I have a clear example of how terrible the US system is for taxpayers (but not accountants).

  13. me:

    The US tax code is a nightmare. The cost of compliance is incredible - if either the IRS just billed everyone, or there was a uniform transaction tax or there was a simple tax based on total property value (I'd be a big fan of assessing values by auction - you get to set whatever value you choose, but you *must* sell at that price if anyone offers ;), we'd save billions as a nation.

  14. Ken:

    Another bit of ex post facto calculations is the filing of complicated tax returns on April 15.

    Like everybody else, I pay tax on April 15. Unfortunately, my return is so complicated that I am unsure of what I truly owe until I file the extension later in the year. This year is particularly complicated because of changes in the tax law. As of today, April 12, I still haven't gotten all the statements I need to file my tax return, even I wanted to. And my brokerage firm, Interactive Brokers, has amended my 1099 four times already. The April 15 deadline is an unfair burden to both accountants and taxpayers who file a long form.

  15. me:

    Here's another interesting take on taxes: it's not the amount of tax but the cost of reporting that matters. So much to quite a few people that they'd rather give up american citizenship and live in a high-tax country than stay: