The following was printed in the August 31, 1992 issue of the Wall Street Journal.  I apologize for the extraordinary step of posting it here in this manner; but I was unable to locate it on the Journal's website, even under the pay-per-use service.  This is important information, which I hope the Journal itself will see fit to republish as soon as possible.

Capital Gains Tax and Presidential Power
By CHARLES J. COOPER
THE WALL STREET JOURNAL
 MONDAY, AUGUST 31, 1992

President Bush may not be able to get Congress to go along with his proposal to cut the capital gains tax, but there is a simple action he could take on his own authority to make the tax treatment of capital gains more equitable. He could instruct the Treasury to index capital gains to inflation.

Until quite recently Congress has implicitly recognized and compensated for the effects of inflation by giving preferential tax treatment to capital gains, either by taxing them at a lower rate or by partially excluding them from taxable income. It recognized that otherwise investors would often be taxed unfairly on income that was attributable in some significant part to inflation, rather than real income, as the example in the nearby box demonstrates.

Preferential Treatment
While this kind of preferential tax status was at best a blunt tool to counter the effects of inflation, it was nonetheless recognized as such a tool.. It thus largely obviated, until 1986, the need to establish a more accurate counter for inflation, such as indexation, and tile president had no pressing need to lake up this issue.

In 1986, however, the Tax Reform Act ended preferential treatment for capital gains, taxing there at the same rate as ordinary income. Although bills providing for indexing have passed at different times ever the past decade to both houses of Congress, none has been enacted.

It is not surprising, then, that the question of the president's regulatory authority to index capital gains has only recently come into sharp focus. Earlier this summer I was asked by the National Chamber Foundation and the National Taxpayers Union Foundation to examine the issue. Despite initial skepticism. I have concluded that the president has the legal authority to adopt a regulation indexing capital gains.

The inquiry begins with the Sixteenth Amendment, which in 1913 authorized Congress to "lay and collect taxes on incomes." In 1919, the Supreme Court defined income as including "profit gained through a sale or conversion of capital assets.

The "profit or "gain" as defined by the Tax Code is the "excess of the amount realized [from the sale or other disposition of property] over the adjusted basis." The "basis" of the property is defined simply as its "cost." The meaning of the word cost is the heart of the matter.

Congress has never defined cost, and until 1957 neither did Treasury regulations.  In practice, however, Treasury has always interpreted cost to mean the amount, in nominal dollars, paid at the time of purchase. Regulations issued in 1957 formalized this interpretation. Treasury's interpretation of cost as purchase puce is no doubt a reasonable one. The critical question, however, is whether it is the only reasonable interpretation.

Under our system of separated powers, the executive branch has the initial responsibility of interpreting the laws that Congress makes. Unless clearly forbidden by Congress, Treasury can interpret the Tax Code to define cost as adjusted fur inflation; that is, it can index capital gains.

It is important to stress that the question at hand is not whether a court would conclude that indexation is required under the Tax Code. Rather, the question is whether a court would conclude that a Treasury regulation indexing capital gain was based on a permissible reading of that statute. While Treasury has consistently interpreted the cost of a capital asset to mean the asset's original purchase price, this definition as not required by law. Nothing in the legislative history of the past 75 years suggests that Congress intended to deny Treasury this sort of interpretive discretion.

The right of executive branch agencies to "fill any gap left, implicitly, or explicitly by Congress" in a statute was articulated in 1984 in Chevron U.S.A. v . National Resources Defense Council.  Under Chevron, in order to reject an executive branch interpretation the courts must decide "whether Congress has directly spoken to the precise question at issue." There is no doubt that, in the matter of the cost of a capital asset, Congress has never spoken.

Next, says the Chevron decision, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."  It is permissible, the court said last year in Rust v. Sullivan, as long as "it reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress' expressed intent."

Construing cost to include the effect of inflation is at least as plausible as Treasury's purchase-price interpretation.
The only difference between the two interpretations is that the former measures cost at the time the capital asset is sold, while the latter measures cost at the time the asset was purchased. Ask any homeowner how much his house cost, and he will tell you what he paid for it --  and when he bought it.

Even so, a new Treasury regulation changing the definition of cost from nominal dollars to inflation-adjusted dollars would certainly be a sharp departure from past practice, and some have argued that Congress's failure to enact indexing legislation amounts to a de facto ban. Quite apart from the general point -- reiterated by the Supreme Court in Patterson v. McClean Credit Union (1989) -- that "congressional inaction cannot amend a duly enacted statute," the argument is particularly weak here.

Nowhere in the legislative history of these proposals did Congress address the precise issue of the meaning of cost, let alone endorse Treasury's purchase-price interpretation. To be sure, by failing to enact the proposed amendments, Congress elected not to require Treasury to index capital gains. But Congress in no way indicated that Treasury was not permitted to do so.

In other words, if Congress left any gaps in the statutory meaning of cost prior to its consideration of indexation amendments, those gaps were not closed when it failed to exercise its own discretion to amend the statute. By failing to fill in the gap in the meaning of cost, Congress did not extinguish Treasury's discretion to do so. Again, the Supreme Court has made it abundantly clear that executive-branch agencies are entitled to considerable deference in interpreting statutes they administer.

In Rust v. Sullivan the Supreme Court upheld the new Health and Human Services regulations forbidding clinics that received federal money from offering abortion counseling. That such regulations " 'reverse a longstanding agency policy...' and thus represent a sharp break from the secretary's prior construction of the statute" was deemed insufficient grounds for forbidding them. Under Chevron, it said. HHS was entitled to modify regulations so long as the change was supported by a "reasoned basis."

A Reasonable Interpretation
In short, Congress has for more than seven decades left undefined the term "cost" in the capital gains section of the Tax Code. The traditional definition of cost as the nominal dollars spent at the time of purchase can he changed by the Treasury to reflect a more realistic method of computing the gain that an investor reaps from the sale of his property. This is at least as reasonable an interpretation of cost as the one traditionally used, and thus entitled to deference by the courts.

The president can correct this serious deficiency in the way our tax laws are applied today, if he wishes. And if Congress objects, it can pass a law outlawing indexing.
 

Mr. Cooper, a Washington attorney, was an assistant attorney general in the Reagan administration.

This page was updated:
Sunday, January 29, 2012