—W—

An ex post facto law is one which attempts to take away a right that has already accrued to an individual. Perhaps the best example of that is the so-called Hiss Act, which was passed in the aftermath of Alger Hiss’s perjury conviction to deny Federal pension benefits to anyone who was convicted of perjury (among other crimes) in connection with espionage investigations.

Hiss had worked for the Government for some years prior to his conviction, and when he became eligible for a pension from the Government (based upon a combination of years of service and attained age) he applied to The Civil Service Commission (now Office of Personnel Management) for a pension, which was in the neighborhood of $125 a month IIRC. The CSC denied his pension application and Hiss filed suit. The courts ruled that the actions Mr. Hiss was convicted of had taken place prior to the date of enactment of the Hiss Act and therefore the application of the law to him ex post facto was unconstitutional. To put it another way: when Hiss perjured himself the law did not at the time allow denial of pension benefits for such an infraction, therefore he was entitled to them under the law.

Bills of attainder pertain to criminal matters.

But what we have in the case here is not, I believe, either a bill of attainder or an ex post facto law. The Government has long been able to make tax law changes during a tax year, and to make them retroactive to the beginning of the year. But once a tax year is done it is “etched in regulation” and may not be retroactively amended. Most if not all of the employees who received the bonuses from AIG will have the calendar year as their tax year. I have never met an individual who has elected to and received permission from the IRS to file on other than a calendar year basis, but I have to assume that some exist. If one of those people involved did have a tax year that ended some time after the receipt of the bonus and before the passage of an act taxing the income at a higher rate, he or she is in clover.

But all the rest, and my assumption is that means all of them, will find they are bound by tax laws passed during their tax year (the calendar year.)

To turn this around, when Congress passes laws to reduce taxes, does anyone scrupulously say, “Well, the law was passed October 7, and I want to pay the higher tax rate for that part of my income I got before that day?” Nope. The laws are effective for the entire tax year, even if enacted into law on December 31.

I must say your writing on this subject is a gem; ie., a nice piece of expository work…!

Carl Nemo **==

Collectivism is slavery…

Further, the contract does not control when it becomes taxable income. What determines taxable income and tax year is the date on which it is paid to your or when you begin to exercise control of the money.

I continues to amaze me that although I have researched and read many reasoned posts about the “idea” of a tax claw back, many continue to cite Attainder and ex post facto as reasons why such legislation is “obviously” unconstitutional. Of course it isn’t. There is plenty of precedent as to why such an act is not constrained by the constitution. Whether it is wise and well written is the topic for another day. My vote is that we try to anticipate the total impact of the legislation before enacting it…this time!

Bills of attainder, ex post facto laws, the Constitution, etc., were propogated to insure the rights of individuals against the State. Are you fer that or agin it?

Collectivism is slavery…

Collectivism is slavery…