Can Congress Be Forced to Do What It Should Do About Taxes?

The Senate is not scheduled to return from recess until January 19, at which time it and the House will likely address numerous unfinished tax measures.

These include:

  • Estate tax—at present there is none because Congress failed to take action before January 1 of this year. Whether a new law can be made retroactive to January 1 for estates of those who die between January 1 and the date of the new law’s enactment remains to be seen; it could take years and a Supreme Court decision to settle the issue.
  • Income tax—more than four dozen provisions affecting individuals and businesses expired at the end of 2009 and are awaiting extension. While there is no controversy about many of these provisions—almost all agree they should be extended—Congress just didn’t get around to it. Key concerns include the alternative minimum tax, which will affect about 25 million taxpayers  (many of whom are middle class) in 2010 if nothing is done, the research credit, and incentives for buying equipment and machinery. In the meantime, businesses continue to live with uncertainty about the tax credit, worth about $7 billion annually to them; the credit has been extended 13 times since it was created in 1981.

How can Congress be forced to take the action that is so needed for businesses to plan effectively and move ahead in a tough economy?

  • Impeachment isn’t an answer. This remedy, which can remove a public official from office, is only for high crimes and misdemeanors. While it may seem like criminal activity to allow the country to exist in tax limbo, it technically isn’t a crime.
  • Mandamus isn’t an answer. This remedy applies only for compelling a public official to do what they are required to do, and enacting tax bills isn’t a requirement.
  • Censure isn’t an answer. This process results in a reprimand of Congressional members, usually for unethical behavior. While it can be argued that the situation created by Congress’ inaction on tax matters is unethical, censure on the entire body isn’t an option.

The November 2010 election is 10 months away. At that time, all of the seats in the House and one-third of the Senate seats are up for election. Electing people who will do what is necessary and appropriate to keep business moving and end the uncertainty that exists today is the only answer. 

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