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Brian Domitrovic: Transacting in gold can shaft the IRS
By Brian Domitrovic
Forbes, New York
Monday, September 8, 2014
http://www.forbes.com/sites/briandomitrovic/2014/09/08/transacting-in-go...
In 2011, the state of Utah passed a law banning taxes on the use of gold and silver coins as currency and permitting residents to remit state taxes in these coins. Big deal, you might say. That's already in the Constitution: "No state shall ... make anything but gold and silver coin a tender in payment of debts."
Oklahoma has done something similar, confirming that transactions taking place in gold and silver are free from state taxes on the exchange medium. Currently, in federal law, if you buy things with gold, for example, you have to declare as taxable the gain on any market appreciation of the gold you used to make the purchase.
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Actually, it's not real federal law. It's just a piece of "administrative law," that poor relation of real law, which an agency, the Internal Revenue Service, came up with outside of the Congressional and the judicial processes. If you look at real law, statutes signed by the president and Supreme Court decisions from over the centuries, it has been affirmed time and again that the feds must consider gold and silver coins and their own paper notes as dollars as denominated, one and the same.
What a delicious opportunity this presents when it comes to taxation. Let's say the members of a community somewhere here in the USA decide to do all their business in gold. The dollar price of everything would be much less. A $3 latte would go for about ten gold cents, in that the price of gold on the market (circa $1,267 per ounce) exceeds that of the official Treasury price ($42.22) by a factor of 30.
If this community is of decent size, any number of businesses and individuals could make close all their income via gold transactions. Somebody might clear, for example, $3000 in gold income in a year, or $90,000 if translated into paper dollars.
Because of the abundantly established legal precedent for treating gold and paper dollars the same, the maximum subject to taxation would be the $3,000, an amount easily eliminated by the standard deduction on the income tax.
The IRS says this sort of thing is "frivolous." But that's administrative law again, as in Philip Hamburger's wonderful new book, Is Administrative Law Unlawful, which of course it is. Freedom of Information Act requests inquiring of the paper-trail within the IRS about how this "frivolous" finding was made have yielded 8,000 pages of internal emails conceding there is no grounds, but let's do it anyway. A writ of certiorari calling on the Supreme Court to stop this nonsense is in the inbox of the august body.
This information comes care of the yearly monetary summit held last week, in Salt Lake City, of the United Precious Metals Association, a group whose board I am pleased to be joining. The UPMA has a smartphone app with which you can set up a gold account and buy things in gold from all sorts of vendors.
You see the peril in this sort of thing's spreading. If lots of vendors start taking gold and paying their taxes in Federal Reserve notes, their costs will become something like one-third less than those of their competitors—because these businesses would effectively be free of taxation. If you can transact in a dollar currency medium (gold) that is worth thirty times more than face value, and then pay your taxes in the paper stuff at face value, others will have no choice but to follow your example to stay viable.
Should this little experiment start to gain a bit in extent, it could have the effect of requiring business in this country to cut their taxation costs by arbitraging the gold-note dollar spread that the United States has allowed to emerge over the past century of serious inflation.
Again (and convention commands me to say that I am no tax lawyer), there is no hope in real law. Once you get out of the lame-o world of agency bureaucrats saying that this is the law, and into the statute books and the high court rulings, the Constitutional specifications that gold and silver coins have the same legal tender and denomination status as any U.S. money shine through every time. In the 19th century in particular, this question was litigated profusely, and the equivalence won.
First it was Bitcoin. Now the new kid on the monetary block is the Constitution. The poor U.S. put that gold and silver equivalence thing in there back in 1787. Since 1985, probably against its own narrow better judgment, the government has resumed issuing gold and silver dollar-denominated coins.
Brace yourself, IRS. You guys have been bluffing with "frivolousness," and that bluff is getting called. The Federal Reserve and the Treasury, of all people, are going to have to clean house to get the dollar sound again against metal. Otherwise (and does this ever sound musical), real federal receipts will start the process of dwindling toward nil.
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Brian Domitrovic teaches at Sam Houston State University in Huntsville, Texas.
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