Introduction

Adam Smith is widely regarded as the godfather of classical economics, but also deserves credit as a fundamental thinker in public finance. While his thoughts on how to fund government are relegated to just one book of his five-part tome, the Wealth of Nations, many of his ideas have found their way deep into the genome of modern public finance theory.

In particular, the maxims of taxation laid out by Adam Smith are the precursors to the same principles argued by today’s tax experts across the political spectrum.¹ However, today’s current tax systems at the federal, state, and local level notably deviate from these principles.

This paper examines each of the four maxims, draws a line to modern discourse on these same tax topics, and highlights components of the American federal, state, and local tax systems which are in discord or agreement with Smith’s vision for good revenue mechanisms.

The first of the four maxims, which deals with the distribution of tax burdens, is given the most space for its particular relevance in the current public debate on tax policy. Smith argues that taxes should be levied in proportion to the revenue enjoyed under the protection of the state, an idea that has been coined the ability-to-pay principle or the benefit principle in modern discourse.

The second maxim is that taxes should be stable and transparent. Current federal tax policy deviates significantly from this maxim, as temporary provisions are constantly expiring or being reenacted, often with short notice, and sometimes retroactively.

The third maxim is that taxes should be levied when convenient. Two policies stand out as being good observances of this maxim: 1) the three and half months given between the end of the tax year and the April 15 federal income tax filing deadline, and 2) the federal net operating loss deduction system, which allows companies to carry forward losses for 20 years and back for two years.

Finally, the fourth and final maxim is that taxes should be levied with the lowest possible waste, or what modern economists would call deadweight loss. Smith has a very expansive definition of waste, including not just costs of administration, but costs to the taxpayer of emotionally or economically draining auditing processes, or costs in the form of foregone growth because entrepreneurs choose not to enter a heavily-taxed enterprise.

In this last maxim, the federal, state, and local tax systems fail to a large degree, spending high amounts on tax administration, double taxing capital investment, and occasionally engaging in predatory auditing practices.

Smith’s First Maxim: The Ability-to-Pay and Benefit Principles in One

Today, perhaps the most pertinent of Smith’s maxims is his first one, which deals with the equity of the tax burden among different members of society. To Smith, the expenses of government are similar to the expenses of a mutual private property, an estate. From this observation, he suggests that payment should be in accordance with each owner’s interest in that property. In his words:

The subjects of every state ought to contribute towards the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state. The expence of government to the individuals of a great nation is like the expence of management to the joint tenants of a great estate, who are all obliged to contribute in proportion to their respective interests in the estate.²

This allegory draws a bit from the social contract theory of Smith’s fellow Enlightenment thinker John Locke, who views government’s role as protecting life, liberty, and property.³ Ostensibly, people with more property owe more for that protection.

Today, tax scholars treat this passage as an early version of the ability to pay principle or the benefit principle. The ability to pay principle is the idea that citizens should contribute to government in proportion to their abilities, while the benefit principle is the idea that they should contribute in proportion to the services they receive from government.

According to Musgrave (2005), the passage supports both.⁴ The ability to pay principle is reflected in Smith’s phasing of the burden being owed “in proportion to their respective abilities,” and the benefit principle comes from tying the tax burden to the revenue “enjoy[ed] under the protection of the state.”

Bringing this passage further into modern day debates on tax fairness takes more extrapolation. One of the chief disagreements in the field today is around the progressivity of the tax code. Henchman and Stephens (2014) note that the concept of progressivity is often evoked in moral arguments, but not always defined by its users.⁵

They identify three ways of thinking about progressivity: 1) progressivity of tax payments, where payments increase as income rises, 2) progressivity of statutory tax rates, where legal tax rates are a greater portion of income for each new bracket, and 3) progressivity in effective tax rates, where total tax burden (after all credits, deductions and other adjustments) rises as a percentage of income as income rises.

Henchman and Stephens note Smith’s first maxim in their first definition of progressivity, arguing that even though Pennsylvania’s 3.07 percent income tax is one “flat” rate, payments increase in a linear fashion as income grows.⁶ This is a direct interpretation of the word “proportion” in Smith’s narrative. This, then, suggests that Smith would be in favor of a flat tax on income.

Wage Taxes and Smith’s First Maxim

Though Smith generally prefers a tax in accordance with revenue of an individual, he sees serious problems with collecting a tax on wages. Whether he was misguided or not, he argues that since wages are at the subsistence level, taxing wages will result in employers having to raise their wages to allow laborers to pay those taxes.

In Smith’s view, since the wage taxes must be absorbed completely by the employer, that they are larger than they seem. His example is that a 20 percent tax on 10 shillings of work would garnish 2 shillings in tax revenue if paid by the laborer, however, since the employer must raises wages to maintain the laborer’s take-home pay of 10 shillings, he needs to pay the laborer 12 shillings and 6 pence—25 percent more.⁷ For these reason, Smith thinks taxes on wages are particularly damaging.

Property Taxes and Smith’s First Maxim

Smith’s criticisms of property taxes tend to be more based on their implementation at the time than on their usefulness in theory. Of the British land tax in existence at the time, Smith’s gripe is with its assessment, that revaluations were not performed frequently enough:

A land-tax which, like that of Great Britain, is assessed upon each district according to a certain invariable canon, though it should be equal at the time of its first establishment, necessarily becomes unequal in process of time, according to the unequal degrees of improvement or neglect in the cultivation of the different parts of the country.⁸

Smith instead argues in favor of a land-value tax without penalty for improvements, because such a tax is based on benefits provided by government in that area, but does not discourage investment. In his words:

Ground-rents are a still more proper subject of taxation than the rent of houses. […] Ground-rents, so far as they exceed the ordinary rent of land, are altogether owing to the good government of the sovereign, which, by protecting the industry either of the whole people, or of the inhabitants of some particular place, enables them to pay so much more than its real value for the ground which they build their houses upon; or to make to its owner so much more than compensation for the loss which he might sustain by this use of it.⁹

Today, no state has a land-value tax, instead, property taxes are on the total value of the lot and its building and fixtures. Worse, in twenty states, taxes are levied on capital stock, a type of property tax which Smith criticizes for the surveillance necessary to enforce:

An inquisition into every man’s private circumstances, and an inquisition which, in order to accommodate the tax to them, watched over all the fluctuations of his fortunes, would be a source of such continual and endless vexation as no people could support.¹⁰

Consumption Taxes and Smith’s First Maxim

Others have made a principled case for consumption taxes as a proportionate tax. Notably, Thomas Hobbes preferred consumption taxes. In Leviathan, published in 1651, he states that:

the equality of imposition consisteth rather in the equality of that which is consumed, than of the riches of the persons that consume the same. For what reason is there that he which laboureth much and, sparing the fruits of his labour, consumeth little should be more charged than he that, living idly, getteth little and spendeth all he gets; seeing the one hath no more protection from the Commonwealth than the other? But when the impositions are laid upon those things which men consume, every man payeth equally for what he useth; nor is the Commonwealth defrauded by the luxurious waste of private men.¹¹

Noted tax scholar John Mikesell notes in various places¹² that consumption taxes are a self-expressed indication of economic worth, taking into consideration both current and expected economic prospects. This argument is derived from Kaldor (1955), who argues that:

…each individual [measures tax capacity] for himself when, in the light of all his present circumstances and future prospects, he decides on the scale of his personal living expenses. Thus a tax based on actual spending rates each individual’s spending capacity according to the yardstick which he applies to himself. Once actual spending is taken as the criterion all the problems created by the non-comparability of work incomes and property-incomes, of temporary and permanent sources of wealth, of genuine and fictitious capital gains resolve themselves; they are all brought into equivalence in the measure in which they support the actual standards of living.¹³

Though he does not expressly evoke Smith in this passage, this argument could be used to justify consumption bases as both a good expression of ability to pay, and of benefits received.

As for Smith himself, he is less convinced of the suitability of consumption taxes. He argues that taxes on consumption of “necessaries” have the unintended effect of falling onto wages of laborers—so the tax on consumption as actually just a tax on wages. Taxes on consumption of luxuries, however, are less concerning to Smith, as they will ostensibly discourage frivolous consumption of lower income individuals, while gathering revenue from high income individuals.

User Taxes and Smith’s First Maxim

While Smith is generally not in favor of taxes on necessaries, he makes a notable exception for user taxes or tolls, as they seem particularly good at aligning the costs of government with those that take advantage of its services. Of tolls, he says:

When the carriages which pass over a highway or a bridge, and the lighters which sail upon a navigable canal, pay toll in proportion to their weight or their tonnage, they pay for the maintenance of those public works exactly in proportion to the wear and tear which they occasion of them. It seems scarce possible to invent a more equitable way of maintaining such works.¹⁴

Today, gas taxes and tolls make up just half of all state and local road spending in the United States, meaning that to some extent, roads are “free,” or at least indirectly funded.¹⁵ A recent Virginia transportation package forwarded by Governor Bob McDonnell drew negative criticism from commentators from a wide array of political persuasions because it funded new transportation projects using sales taxes and banned tolls in certain parts of the state.¹⁶

Smith’s Second Maxim: Stability and Transparency

Smith’s second maxim is less concerned with the distribution of taxes, but with their implementation, positing that taxpayers ought to know what they will pay and when they will pay it:

The tax which each individual is bound to pay ought to be certain, and not arbitrary. The time of payment, the manner of payment, the quantity to be paid, ought all to be clear and plain to the contributor, and to every other person. […] The uncertainty of taxation encourages the insolence and favours the corruption of an order of men who are naturally unpopular, even where they are neither insolent nor corrupt.

Modern interpretations of this maxim couch it in the contemporary ideas of transparency or stability, arguing that unclear tax statutes create unnecessary opportunity for frivolous audits, and retroactive tax changes distort economic planning.¹⁷

Current examples of clear violations of this maxim include retroactive tax hikes enacted in California and Minnesota in the wake of the most recent recession.  California in 2012 hiked individual income tax rates for those earning over $250,000; increasing the top rate from 10.3 percent to 13.3 percent on income over $1 million. These changes were approved by voters via the initiative process in a November 2012 ballot, but affected income earned as of January 1, 2012.¹⁸ Some later said that they had not understood that the tax hike was retroactive and would have opposed it.¹⁹

In Minnesota, a May 23, 2013 tax change hiked the top individual income tax rate on income above $150,000 from 7.85 percent to 9.85 percent, effective as of 5 months earlier, January 1, 2013.²⁰

At the federal level, an example of unstable tax policy is the “tax extenders,” a host of tax credits and deductions that get re-instituted each year on a temporary basis. For tax year 2014, the extenders were not reinstituted until December 2014, effective as January 1, 2014, 11 months prior.²¹

Though Article 1, Section 9 of the U.S. Constitution forbids ex post facto laws, a Supreme Court ruling in Calder v. Bull (1798), ruled that this provision only applies to criminal law.²²

Smith’s Third Maxim: Temporal Convenience

The third maxim of taxation also deals with administration, and is perhaps the most straightforward of the maxims. It argues that taxes should be collected at a convenient time. In Smith’s words:

Every tax ought to be levied at the time, or in the manner, in which it is most likely to be convenient for the contributor to pay it. A tax upon the rent of land or of houses, payable at the same term at which such rents are usually paid, is levied at the time when it is most likely to be convenient for the contributor to pay; or, when he is most likely to have wherewithal to pay. Taxes upon such consumable goods as are articles of luxury are all finally paid by the consumer, and generally in a manner that is very convenient for him. He pays them by little and little, as he has occasion to buy the goods. As he is at liberty, too, either to buy, or not to buy, as he pleases, it must be his own fault if he ever suffers any considerable inconveniency from such taxes.

There are some notable instances where this maxim has been taken to heart in the U.S. tax code. For example, individual income taxes in the United States are collected in April (later in some states), and taxpayers are able to file for extensions. This schedule gives taxpayers several months after the end of the tax year in December to assemble the necessary forms and documentation.

Here, Congress has been responsive to changes in the complexity of the code as well. The federal income tax filing deadline used to be March 1 in 1914, but was changed to March 15 in 1918 and April 15 in 1955. By that time, the federal income tax had expanded to the middle class, and this gave both the populace and tax collectors a broader period over which to spread the filing of returns.²³

This temporal convenience thinking also is applicable to deductions for net operating losses (NOLs), which are designed to smooth income tax bills for industries with volatile profits. With net operating loss deductions, businesses can deduct their losses of previous years to achieve tax bills that average across years to be similar to industries with less volatile profits.

The housing industry, for example, should not be burdened with heavy taxes in a year when it is profitable, when just the year before, it suffered large losses because of economic cycles. To correct for this, the federal government allows NOL deductions to be carried forward for 20 years, and back for 2 years.²⁴

However, a tax type which fails Smith’s third maxim (and perhaps the first as well) are taxes on inventory, which still exist in 13 states.²⁵ Inventory taxes can in some ways be thought of as a tax on entrepreneurship itself. Richard Cantillon, in his famous Essai sur la Nature du Commerce in Général, argued that the process of bringing products into inventory and to the market was an act done by risk “undertakers,” or in French, “entrepreneurs.”²⁶

The time at which inventory is measured and collected would affect a vendor’s convenience. If the inventory of a retail store was measured and collected in early November, for example, many stores would be at peak inventory to stock for upcoming holidays, but have very little cash flow, as holiday purchases are yet to occur.²⁷

Smith’s Fourth Maxim: Limiting Deadweight Loss

Smith’s last maxim has the most detail, but is in essence a declaration that taxes are best when they collect revenue for government expenses without incurring large costs of administration, or changes in behavior that sacrifice economic growth. In Smith’s words,

Every tax ought to be so contrived as both to take out and to keep out of the pockets of the people as little as possible over and above what it brings into the public treasury of the state.

Smith then lists four ways that a taxes can be inefficient, saying,

First, the levying of it may require a great number of officers, whose salaries may eat up the greater part of the produce of the tax, and whose perquisites may impose another additional tax upon the people. Secondly, it may obstruct the industry the people, and discourage them from applying to certain branches of business which might give maintenance and employment to great multitudes. While it obliges the people to pay, it may thus diminish, or perhaps destroy, some of the funds which might enable them more easily to do so. Thirdly, by the forfeitures and other penalties which those unfortunate individuals incur who attempt unsuccessfully to evade the tax, it may frequently ruin them, and thereby put an end to the benefit which the community might have received from the employment of their capitals. An injudicious tax offers a great temptation to smuggling. But the penalties of smuggling must rise in proportion to the temptation. The law, contrary to all the ordinary principles of justice, first creates the temptation, and then punishes those who yield to it; and it commonly enhances the punishment, too, in proportion to the very circumstance which ought certainly to alleviate it, the temptation to commit the crime. Fourthly, by subjecting the people to the frequent visits and the odious examination of the tax-gatherers, it may expose them to much unnecessary trouble, vexation, and oppression; and though vexation is not, strictly speaking, expence, it is certainly equivalent to the expence at which every man would be willing to redeem himself from it. It is in some one or other of these four different ways that taxes are frequently so much more burdensome to the people than they are beneficial to the sovereign.

Thought of simply, the first inefficiency is high administration costs, the second inefficiency is forgone growth, the third inefficiency is hefty evasion penalties, and the fourth inefficiency is overzealous auditing.

Each of these inefficiencies exists in prominent degree in federal and state tax systems today. High administration costs are a well-documented problem of the Internal Revenue Service, where the Taxpayer Advocate Service has argued for tax simplification to combat what they describe as a taxpayer service at “unacceptably low levels”.²⁸

The second inefficiency of foregone growth is nowhere more prominent than in the double taxation of investment income through both corporate taxes and then again through taxes on dividends and capital gains.²⁹

The third inefficiency of hefty evasion penalties is particularly prevalent in modern state excise tax policy, where rates in excess of 200 percent on cigarettes have caused sizeable black markets to spring up throughout the country. By one estimate, over 50 percent of all cigarettes consumed in New York State are smuggled in from other locales. This has led to policy responses including restrictions on the movement of cigarettes, creations of interstate task forces, and ramping up of fines and penalties for illicit sales of cigarettes.³⁰

Finally, the fourth inefficiency of overzealous auditing presents itself at the local level often, where some localities employ third party contractor auditors based on contingency. Louisiana, for example, allows localities to contract out auditing for local sales taxes, “receiv[ing] a percentage of the haul directly from the taxpayer.”³¹ This is exacerbated by the fact that localities in Louisiana can collect sales taxes on a different tax base than the state, confusing businesses as to which transactions are taxable and which are not, and providing fertile ground for profitable audits.³²

The American Institute of Certified Public Accountants has raised concerns over this practice for pursuing unrealistically high tax assessments, permitting contract auditors to access confidential information, and creating conflicts of interest where for-profit companies could be auditing their competitors.³³

Conclusion

Adam Smith’s maxims of taxation have served as a groundwork for discussions of tax policy for centuries. Even as tax systems have changed in their form and implementation and our understanding of economic theory has improved, these maxims provide guidance on what systems work, and which are problematic.

Despite the general acceptance among commentators and policymakers, these maxims are not universally followed, and improvements in our tax systems at the federal, state, and local level would do well to use these maxims as a guiding light.

Footnotes

1. Principles of sound tax policy are laid out by various public policy organizations. See, e.g., Tax Principles: Building Blocks of a Sound Tax System, Institute on Taxation and Economic Policy, http://www.itep.org/pdf/pb9princ.pdf; Dan Pilla, Ten Principles of Tax Policy, Heartland Institute, Nov. 15, 2010, http://news.heartland.org/newspaper-article/2010/11/15/ten-principles-tax-policy; ALEC Principles of Taxation, American Legislative Exchange Council, June, 2010, http://www.alec.org/model-legislation/statement-alec-principles-of-taxation/. ↩
2. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Liberty Fund, 1976, at 825. ↩
3. John Locke, Second Treatise on Government, Chapter 7. ↩
4. Richard A. Musgrave, Fairness in Taxation, in The Encyclopedia of Taxation & Economic Policy, eds. Joseph Cordes, Robert Ebel, & Jane Gravelle, Urban Institute Press, Washington D.C., 2005. ↩
5. Joseph Henchman & Christopher Stephens, Playing Fair: Distribution, Economic Growth, and Fairness in Federal and State Tax Debates, Harvard Journal of Legislation, Vol. 51, 2014. ↩
6. Joseph Henchman & Christopher Stephens, ibid. ↩
7. Adam Smith, ibid., at 864. ↩
8. Adam Smith, ibid., at 828. ↩
9. Adam Smith, ibid., at 844. ↩
10. Adam Smith, ibid., at 848. ↩
11. Thomas Hobbes, Leviathan, 1651, Ch. XXX. ↩
12. See, e.g. John L. Mikesell, The American Retail Sales Tax: Considerations on Their Structure, Operations, and Potential as a Foundation for a Federal Sales Tax, National Tax Journal, Vol. 50, No. 1, March 1997, 149-65; and John L. Mikesell, Reform and Simplification of Indiana State Taxes: The Retail Sales Tax, Comments to Indiana Tax Competitiveness and Simplification Conference, June 24, 2014, http://www.in.gov/dor/files/whitepaper-mikesell.pdf. ↩
13. Nicolas Kaldor, An Expenditure Tax, Allen and Unwin, London, 1955, at 47. ↩
14. Adam Smith, ibid., at 724. ↩
15. Joseph Henchman, Gasoline Taxes and User Fees Pay for Only Half of State & Local Road Spending, Tax Foundation Fiscal Fact No. 410, January 3, 2014, http://taxfoundation.org/article/gasoline-taxes-and-user-fees-pay-only-half-state-local-road-spending. ↩
16. See, e.g. Will Upton, Virginia Governor Bob McDonnell’s Transportation Tax Hike Takes Effect Today, Americans for Tax Reform, July 1, 2013, https://www.atr.org/virginia-governor-bob-mcdonnells-transportation-tax-a7731; see also Carl Davis, Virginia Raises the Wrong Taxes to Pay for Roads, Citizens for Tax Justice, February 25, 2013, http://www.taxjusticeblog.org/archive/2013/02/virginia_raises_the_wrong_taxe.php#.VU03O_lVhBc. ↩
17. Principles of Sound Tax Policy, Tax Foundation, http://taxfoundation.org/principles-sound-tax-policy. ↩
18. Californians Vote on Several Tax-Related Initiatives, Tax Foundation Tax Policy Blog, October 31, 2012, http://taxfoundation.org/blog/californians-vote-several-tax-related-initiatives. ↩
19. Daniel Ruben Odio-Paez, Shame on Me for Voting for a Retroactive Tax in Prop 30, December 17, 2012, http://danielodio.com/shame-on-me-for-voting-for-a-retroactive-tax-in-prop-30. ↩
20. Marianne Couch, Minnesota Income Tax Rate Change Retroactive to January 1, Thompson Reuters, June 5, 2013, https://tax.thomsonreuters.com/blog/onesource/minnesota-income-tax-rate-change-retroactive-to-january-1/. ↩
21. Andrew Lundeen, Congress Approves Tax Extenders for 2014, Tax Foundation, Dec. 16, 2014, http://taxfoundation.org/blog/congress-approves-tax-extenders-2014. ↩
22. Calder v. Bull, 3 U.S. 386 (1798). ↩
23. Jessica Sung, Why Is Tax Day April 15?, Fortune, April 15, 2002, http://archive.fortune.com/magazines/fortune/fortune_archive/2002/04/15/321414/index.htm. ↩
24. State net operating loss deduction rules vary. See Scott Drenkard & Richard Borean, Corporate Net Operating Loss Carryforward and Carryback Provisions by State, Tax Foundation, November 6, 2014, http://taxfoundation.org/blog/corporate-net-operating-loss-carryforward-and-carryback-provisions-state. ↩
25. Scott Drenkard & Joseph Henchman, 2015 State Business Tax Climate Index, Tax Foundation, October 2014, at 44. ↩
26. See Richard Cantillon, Essai sur la Nature du Commerce in Général (Essay on the Nature of Trade in General), http://www.econlib.org/library/NPDBooks/Cantillon/cntNT.html. ↩
27. Scott Drenkard & Joseph Henchman, ibid. ↩
28. National Taxpayer Advocate, Annual Report to Congress, 2014, http://www.taxpayeradvocate.irs.gov/reports-to-congress/2014-annual-report-to-congress/full-report, at 1. ↩
29. Kyle Pomerleau, Eliminating Double Taxation through Corporate Integration, Tax Foundation Fiscal Fact No. 453, Feb. 23, 2015, http://taxfoundation.org/article/eliminating-double-taxation-through-corporate-integration. ↩
30. Scott Drenkard & Joseph Henchman, Cigarette Taxes and Cigarette Smuggling by State, 2013, Tax Foundation Fiscal Fact No. 450, Feb, 2015, http://taxfoundation.org/article/cigarette-taxes-and-cigarette-smuggling-state-2013-0. ↩
31. Hollis L. Hyans and Amy F. Nogid, A Mutiny Against the Bounty Hunters is Long Overdue, Tax Analysts, Nov. 4, 2013. ↩
32. Jim Richardson, Steven Sheffrin, & James Alm, Executive Summary, Louisiana Tax Study, 2015, http://murphy.tulane.edu/files/programs/Executive_Summary_Presentation_copy.pdf. ↩
33. Contigency Fee Audit Arrangements, American Institute of CPAs, http://www.aicpa.org/Advocacy/Tax/StateLocal/DownloadableDocuments/AICPA-contingent-fee-audit-comments-5-14-13.pdf; see also Eric S. Tresh et. al., Hard Times and Hired Guns in Local Tax Audits, State Tax Notes, Dec. 7, 2009. ↩