Composing tax laws
Returning to the gym last weekend after a fortnight, literally, off the treadmill, my rendition of “I’m back” in a passable Austro-Californian accent failed to register any reaction on the face of the young lady manning the reception desk. Instead, she merely ordered me to furnish my annual medical certificate that covers them if I suddenly keel over pulseless on one of the bank of motorized zimmer frames lining the main hall.
Once up and running (or, to be more precise, walking in a sweat) I started fiddling with the “Personal Entertainment System” that my poor- man’s gym has in place of an Olympic-size pool. Surfing the channels of endless mediocrity, I was amazed to hit the one scene I could bear from the excremental Austin Powers trilogy. Powers, alias Mike Myers, is in 1967 Carnaby Street together with Heather Graham being serenaded by Elvis Costello singing “I’ll never fall in love again”. Costello is accompanied by Burt Bacharach on the piano. Bacharach, of course, composed that song along with a disproportionate number of other hits of the 60s and 70s. Why was I amazed? Because just that morning I had read Hal David’s obituary in the newspaper. Hal who?
The lyrics Costello was singing, along with those of countless other Bacharach songs stretching back over 50 years, were composed by Hal David. But as with so many other songwriting duos the lyricist went largely unsung. Take the words away from a popular song and you have left the potential for a symphony orchestra masterpiece. Take the music away from a popular song and all you have left is a rhyme fit for a birthday card.
Sweating away, I tried to imagine the scene of those two giants composing “I’ll never fall in love again”.
Burt: I’ve got this tremendous catchy tune. It just came to me when I was jabbing a couple of stuck keys on the piano. It is lively, happy, joyous even – maybe a song about the wonders of love. Come up with the lyrics, Hal.
Hal: I know what to do! I am going to write a totally depressing song about a girl who has been mistreated and jilted so often that she has given up hope about ever loving again.
Burt: That’s not what I had in mind, Hal. I think you are misreading the music.
Hal: Do you have any idea how hard it is to put musical ideas into words? You do your job and I’ll do mine. Now let’s get down to business. What’s the worst thing for a gal hopelessly in love? Answer -when the guy never phones her. I can’t think of a rhyme for that.
Burt: I know. Instead of ‘phones her”, say “phone ya” and that rhymes with pneumonia, which I just recovered from…Heck! I don’t believe I just said that.
Hal: You are a genius, Burt. You should write the lines and let me jab the piano. In the meantime, have you got another zippy, cheery tune. I’ve had an idea about a guy who is always getting rained on and whose feet hang over the end of the bed. It will just knock them out.
Apart from listening to my Burt Bacharach (no mention of Hal David) double album on the way to the office (I joke not), I did not give any more thought to this songwriting business until a call mid-week with a senior tax officer. For the last year, we have been trying to find a way around an absolutely non-sensical provision in the tax law that even the tax authorities admit is daft. We keep hitting a brick wall. “Find us a basis in the law and we will try and help”, we are told, “But otherwise it needs a change in the law”. On the other hand, when it is the other way round and the law appears to clearly permit an interesting tax planning device, the authorities wave treaty limitation of benefit clauses in our faces or General Anti Avoidance Rules and tell us “This was not the intention of the legislature”. It is not fair.
Tax law follows the songwriter principle. The legislature writes the music and the tax authorities the lyrics. The music is the spirit of the law – what the lawmakers were trying to achieve. The lyrics are the clauses of the tax code, often drafted by the tax authorities at the behest of the lawmakers and then enforced by them. The lyrics are almost by definition an inadequate (and sometimes utterly perverse) vehicle for conveying the spirit and must therefore take a back seat. If anti-avoidance provisions instruct the tax authorities to protect against tax planning due to ingenuity or just plain bad drafting, then the authorities should similarly be required to ignore provisions in situations that clearly go against the spirit of the law.
Thousands of years ago Jewish law established the principle of “Sit down and do nothing” in circumstances where performing a positive act required by law (as opposed to all the Thou Shalt Nots which unfortunately remained inviolable) would result in an unacceptable result in the specific circumstances. Tax officers the world over are generally very good at sitting down and doing nothing and maybe it is time to put that trait to good use. Drafting is often so imperfect, and getting to court where such matters may be solved so expensive and time consuming, that tax authorities should be instructed, after installing suitable alarm systems, to simply not enforce aspects of tax laws that go against all logic. In other words, they should listen to the music and check that the lyrics really fit.
When Arnold Schwarzenegger first appeared in the Mr Universe contest in 1966 clad only in a pair of skimpy trunks and flexing his unbelievable muscles like many of the dumbbells around him, few paid attention to the accompanying music. It was the theme from the film “Exodus” that described the amazing acts of heroism and sheer perseverance that, against all the odds, led to the establishment of the State of Israel so soon after the Holocaust. The lyrics at the time said he was an up and coming muscle-man. The music said he was going a lot further. Hollywood Superstar, Governor of California – I wonder how the receptionist at the Gym would have reacted if HE had walked in and, despite his lousy accent, announced: “I’m back”.