I think it begs the question of whether we should care what the technical terms mean.
Its fairly unreasonable to think that a legal term of art, used by people familiar with the law, in a legal document, means something different than what it means as a legal term of art, or to be surprised that judges, in applying the legal document in legal disputes, apply the legal term of art to mean what it means as a legal term of art.
No, you will not be incarcerated for that. However the state will seize and sell your house, your car, and everything else that you own (like your personal business.) It's called a lien.
Yes, if you owe money, that money will be collected. That's not a criminal sanction, so it has nothing to do with the idea that this would somehow be an ex post facto law.
That's not how FTB is treating this.
Yes, it is. The FTB is not treating this as a criminal offense that occurred in the past.
They say it's a violation that occurred back in 2008, and you owe not only the tax but also the interest and penalties
No, they say its tax due from 2008 which has not been paid; unpaid income taxes always include interest and penalties. They are not saying that any tax evasion or criminal offense occurred.
That's why it's bizarre - it creates a punishment for no fault.
The FTB is correctly applying the courts decision that the statute on which the deferral was based was unconstitutional on its face and invalid under the Commerce Clause, and applying the other law that existed within the parameters of the court decision. The FTB, unlike the court, has no discretion in crafting a remedy, and cannot (unlike the legislature) reform the statute retrospectively to avoid undesirable impacts. Had the court ordered a specific remedy of applying the benefit defined in the statute without the discriminatory provision to past tax years and negated the benefit only prospectively (on the view that the statute was invalid but retrospective invalidation was itself unfair -- which the court could have done but the FTB, as it has no authority to discretionarily give away state money absent a statutory basis or court order) we wouldn't be in this position. But the order invalidated the statute and provided a range of remedies, only one of which is consistent with the FTBs authority.
Existing law provides penalties for unpaid taxes based only on the fact that they are unpaid and that aren't conditioned on any fault. The policy reasoning behind the law may be presumed fault in the sense that the law providing for the tax is notice itself, but the FTB isn't empowered to apply what it understands the purpose of the law to be outside of the actual provisions of the law.
The responsibility to craft a decision on a remedy that avoids an unjust outcome when a court invalidates a law lies with the court. Executive branch agencies like the FTB are bound to act within the statutory authority given them by the legislature (taking into account statutes that have been invalidated by the courts and other specific orders from the court that constrain their actions.)
Which means all of those taxpayers are guilty of tax evasion for improper filing?
No, the information they filed on their returns is just as accurate as it was before this decision.
Since (by your logic) the taxes were always owed, wasn't it the taxpayer's responsibility to presciently prepare their taxes and pay the correct amount instead of the (then) legal amount?
No, however, how the FTB calculates the taxes due based on those accurate filings has changed -- for those for whom it is not to late for the FTB to assess taxes.
Boy, I'll bet the fines will be more than the tax revenue, huh?
Now four years later you are told you owe taxes that were not applicable at the time, if you don't have the money to pay the tax man you are now a criminal.
I'm pretty sure merely having insufficient funds on hand to pay a tax assessment isn't a criminal offense in California, and even if it was, it would be an offense that occurred after the assessment.
So then the AC you are replying to you is technically correct, because he didn't use the term "ex post facto law."
No, the fact that the situation the AC is addressing isn't an "ex post facto law" doesn't make it "ex post facto".
GP just means GGP, is, at best, a correct non-sequitur (if the intent was to use "ex post facto" in a particular sense unconnected with the Constitutional prohibition on "ex post facto law"), but it doesn't mean that it is necessarily even that.
And if you refuse to pay this tax bill, what will happen?
Refusing to pay the tax bill occurs after the tax bill is assessed, which is after this decision. So, even if the thing that made refusing to pay an assessed tax bill was the decision itself, rather than the much older law criminalizing refusing to pay taxes once assessed, the decision wouldn't be an ex post facto law, since the act criminalized would necessarily occur after the decision, not before it.
This, for the beginner, really does mean any law. tax, civil, criminal; even copyright -- anything.
There is no specific exclusion or inclusion of the type of law the Constitution refers. This is a common
misconception that the Constitution only refers to criminal law
Except "ex post facto law" was already a legal term of art at the time the Constitution was written, and when used it referred to criminal laws. There's a pretty good discussion of this history in the first U.S. Supreme Court case to address the issue, Calder v. Bull, 3 U.S. 386 (1798).
California had two options. They could send money to every out of state buisness that was damage by the tarrif. Or they could undo the benifit the in state buisnesses recieved.
California may have had two options, but the first option would require either the court to reform the statute providing the tax break to eliminate the unconstitutional discrimination (which it didn't, instead saying simply that the statute, without restriction to any one part of it, could not stand under the commerce clause) or would have required the legislature to replace the invalid statute with one that was valid (and retroactive!) that lacked the unconstitutional feature.
Neither occurred, so the executive branch agency -- which has no power to rewrite an unconstitutional law -- assessed the taxes that were due in the absence of the invalid statute.
Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3.
People will sue - and this will go to federal courts... The question is will it make it to SCOTUS.
The U.S. Supreme Court already ruled -- about 215 years ago -- that ex post facto laws are specifically criminal laws which make unlawful an act that was lawful at the time committed, or increase the punishment for an act after it occurred, or which alters the legal rules of evidence to make it easier to secure a conviction for an criminal offense after the offense occured. See, Calder v. Bull, 3 U.S. 386 (1798).
I was taught (wa-a-a-y back in high school) that US laws couldn't be made retroactive.
Non-criminal U.S. laws are made retroactive all the time, as are laws that reduce or eliminate punishments for criminal offenses. The only laws that can't be retroactive in the U.S. are laws which create crimes or make them more serious.
In short, you were taught wrong.
It's still ex post facto, just because the courts have an astonishing ability to deliberately misuse and misunderstand reality, does not change the fact that this is a change made after people made their decisions
"Ex post facto law" is a legal term of art that was in use before the US constitution, and applied specifically to criminal laws. There is a fairly good review of the issue in the court decision in Calder v. Bull, 3 U.S. 386 (1798), the first U.S. Supreme Court decision concerning the ex post facto law prohibition in the Constitution
But it DOES create a tax liability that people had no reson to expect at the time it was (retroactively) incurred. So it is an ex post facto tax and it is unfair for the same reason an ex post facto law is.
An ex post facto tax can't be "unfair for the same reason an ex post facto law" is, because the principle invalidating ex post facto laws is intimately tied to the punitive nature of criminal law and the kind of penalties associated with criminal offenses.
In a sense, it is an ex post facto law because it creates a legal obligation for actions in the past that did not carry such an obligation at the time.
That's not an "ex post facto law". That's a retroactive law that changes the tax consequence of past actions without creating criminal liability for the past action.
Otherwise, we accept that it is somehow Constitutionally OK to roll back a law that invalidated another law and so create a crime in the past where there was not one at the time
Nope, because that's an ex post facto law. Allowing retroactive laws that are not ex post facto laws because they don't criminalize past events does not result in allowing ex post facto laws, because there is an explicit Constitutional prohibition of ex post facto laws which does not apply to other retroactive changes to the law.
In other news, much of the national deficit is due to this pathetically disorganized, in the red, severely overbudget, bloated state.
California is net contributor to the federal budget, so a negative percentage of the federal budget deficit is due to California. Leaving aside the other inaccuracies in that sentence.
How far back are they permitted to go? What stops them from going back 20 years or more?
They are going back exactly as far as they are allowed (and, in FTB's view, required) to go, applying the invalidation of the statute providing the tax break to all tax years for which the statute of limitations for tax collection has not expired.
I would think there would be some ex post facto equivalent for civil issues.
There isn't, really, because the reason for the prohibition of ex post facto laws -- which applies exclusively to criminal laws -- is because of the kind of consequences associated with criminal laws. That having been said, most laws (civil and criminal) in the US have limits to how far after the event recoveries can be pursued (statutes of limitations being common), outside of the prohibition of ex post facto laws.
People have been up in arms over ex post facto law, so why do they think they can get away with taxes? Granted, not all retroactive laws are unconstitutional.
And this isn't a retroactive law, its the implementation of the decision that an existing statute providing a tax break, to quote the court decision, "can not stand under the commerce clause".
I'm pretty sure Antigua and Barbuda attended and signed the Berne Convention and have joined WIPO [wipo.int]. Furthermore I believe the WTO is fully on board with all that considering their TRIPS agreement. So how in the hell is there such a thing as "a WTO approved 'warez' site" and how on Earth does Antigua think the WIPO is going to view this?
One of the things the WTO does when a country is found to violate WTO rules on tariffs, and where other methods of resolving the violation have not proven fruitful, is grant the victim special privileges against the aggressor in compensation (WTO members, by virtue of joining the WTO, grant the WTO authority to do this.) Relaxation of obligations under TRIPS is precisely what Antigua is seeking from the WTO in their application for permission to retaliate against the US violations.
Antigua is hoping that the WTO
So first people start realizing that the way menus and such are handled on the desktop did not work well in the touch screen or mobile space, so designers learned that lesson and developed more appropriate layouts.
Now we have a new batch of designers that is making the same mistake, taking the mobile layouts and trying to use them on a desktop where they do not make much sense.
The trend of simplification on the desktop started before mobile was driving it. I think there is a convergence in that some things that usability studies and other factors were driving in general happened to also mesh very well with what fits on mobile device and works without a multibutton mouse; there is some analogy, I think, to how SQL and the relational model were motivated by theoretical concerns but really took off because they also happened to be convenient to implement in a performant way on disk-based storage and were introduced as disk-based storage was becoming popular.
. I intuit that the solution must involve some sort of massively distributed and/or decentralized wealth creation on the part of what today are called "workers," but it's still hard for me to visualize any details.
The wealth creation already happens. Various factors of the existing economic systems (including some that are government imposed like tax policy, and some that that are common features of existing employment arrangements) cause the distribution of the wealth created by existing workers to favor that capital holders that employ them rather than the workers themselves, but that's an issue of distribution rather than creation.
That's the only way I can imagine an outcome roughly similar to what occurred after the Industrial Revolution. Even then, though, there will be pain and disruption.
One way or the other, I think it will look like what happened after the Industrial Revolution somewhere; but note that what happened after the Industrial Revolution didn't look the same everywhere. The social changes resulting from Industrialization in, say, the UK--while certainly painful and disruptive--looked a lot different than those in Russia.
The response to the article includes the dutifully repeated bad-government-is-at-fault and don't-worry-it's-like-the-Industrial-Revolution memes. But what if this time it's different? What if delegating everything to machines is a radical and fundamental new change in the course of human history?
All of these things are true:
"Bad government", or, more precisely, suboptimal government preparedness for and response to the changes in the nature of the economy are in no small part responsible for the fact that people have become unable to support themselves as a result of the changes.
It's a lot like the Industrial Revolution (but this isn't a reason not to worry; the Indutrial Revolution was a massive disruption that the world and systems of government and economy took quite a long time--with a lot of human misery--to adapt to.)
Delegating everything to machines is a radical and fundamental new change in the course of human history (in scale, potentially larger than the Industrial Revolution), and one that fundamentally knocks the pillars out fron underneath the whole wage-labor-centered economy that was the end result of the adaptations to the Industrial Revolution. As more is automated, capital (broadly, including land and resources) is all that matters, which makes it most essential--at least, if you want to minimize the suffering and disruptions of the inevitable transitions--to create a distribution of capital that lets the portion of the population currently dependent on labor income become small-scale capitalists, and to extend security guarantees that are currently associated with wage labor with income from capital as well (e.g., in the U.S., labor-qualified programs like Social Security and Medicare.)
Please RTFA. That is NOT what this is about. This is about Netflix insisting that ISPs build a dedicated high speed pipe only between the ISP and Netflix. It benefits only Netflix customers.
Since Netflix traffic is about 1/3 of peak downstream traffic, and by far the biggest single source of traffic on the internet, moving Netflix traffic on to its own dedicated pipe (and caching much Netflix content locally at the ISP so that there won't be back-haul traffic at all) benefits everyone getting service from the ISP.
And Netflix isn't insisting ISPs do it, it is providing incentives for them to do it in the form of making exclusive content available to those ISPs customers -- content that takes a lot more bandwidth, and which -- given the enormous bandwidth load Netflix traffic already consumes -- neither the ISP nor Netflix could afford to have available for those customers without the CDN.
So It's not that the ISP is building out infastructure, the ISP is having to spend money to provide a better experience for Netflix. It
As I understand, Netflix's CDN, while access to "SuperHD" content is used as the lever to get ISPs to buy in, isn't SuperHD-specific. So, buy buying in, the ISP improves the experience for Netflix users while simultaneously reducing the load Netflix places on the ISP's bandwidth -- resulting in better performance for all of the ISPs users.
It would seem that this would lower the amount of bandwidth the ISP needs to the internet but when we looked Netflix required 5 Gb of throughput to their caching server....so where's the savings?
Right there -- 5Gb of throughput is probably a lot less that any but an extremely small boutique ISP is already having consumed by connections to Netflix at peak. Last I saw stats, Netflix was estimated to be the source of around a third of the peak downstream internet traffic.
Cybercrime: what rational people refer to as crime.
Since when does "rational" imply not being able to understand that, within crime, there are various different crimes which can be by various common features?
Why would someone who obviously doesn't know the definition of "civil disobedience" and couldn't be bothered to Google it submit a story about civil disobedience to Slashdot?
The Slashdot headline is the title of TFA, so its not the Slashdot submitter -- or not just the submitter, at any rate, unless they also happen to be the author of the headline of TFA -- that has the problem with the definition of "civil disobedience".
Slashdot Mirror
Its fairly unreasonable to think that a legal term of art, used by people familiar with the law, in a legal document, means something different than what it means as a legal term of art, or to be surprised that judges, in applying the legal document in legal disputes, apply the legal term of art to mean what it means as a legal term of art.
Yes, if you owe money, that money will be collected. That's not a criminal sanction, so it has nothing to do with the idea that this would somehow be an ex post facto law.
Yes, it is. The FTB is not treating this as a criminal offense that occurred in the past.
No, they say its tax due from 2008 which has not been paid; unpaid income taxes always include interest and penalties. They are not saying that any tax evasion or criminal offense occurred.
The FTB is correctly applying the courts decision that the statute on which the deferral was based was unconstitutional on its face and invalid under the Commerce Clause, and applying the other law that existed within the parameters of the court decision. The FTB, unlike the court, has no discretion in crafting a remedy, and cannot (unlike the legislature) reform the statute retrospectively to avoid undesirable impacts. Had the court ordered a specific remedy of applying the benefit defined in the statute without the discriminatory provision to past tax years and negated the benefit only prospectively (on the view that the statute was invalid but retrospective invalidation was itself unfair -- which the court could have done but the FTB, as it has no authority to discretionarily give away state money absent a statutory basis or court order) we wouldn't be in this position. But the order invalidated the statute and provided a range of remedies, only one of which is consistent with the FTBs authority. Existing law provides penalties for unpaid taxes based only on the fact that they are unpaid and that aren't conditioned on any fault. The policy reasoning behind the law may be presumed fault in the sense that the law providing for the tax is notice itself, but the FTB isn't empowered to apply what it understands the purpose of the law to be outside of the actual provisions of the law. The responsibility to craft a decision on a remedy that avoids an unjust outcome when a court invalidates a law lies with the court. Executive branch agencies like the FTB are bound to act within the statutory authority given them by the legislature (taking into account statutes that have been invalidated by the courts and other specific orders from the court that constrain their actions.)
The prohibition in Art. I, Sec. 9, Clause 3 mentioned in GP does not. The similar one in Art. I, Sec. 10, Clause 1, OTOH does.
No, the information they filed on their returns is just as accurate as it was before this decision.
No, however, how the FTB calculates the taxes due based on those accurate filings has changed -- for those for whom it is not to late for the FTB to assess taxes.
What fines?
I'm pretty sure merely having insufficient funds on hand to pay a tax assessment isn't a criminal offense in California, and even if it was, it would be an offense that occurred after the assessment.
No, the fact that the situation the AC is addressing isn't an "ex post facto law" doesn't make it "ex post facto". GP just means GGP, is, at best, a correct non-sequitur (if the intent was to use "ex post facto" in a particular sense unconnected with the Constitutional prohibition on "ex post facto law"), but it doesn't mean that it is necessarily even that.
Refusing to pay the tax bill occurs after the tax bill is assessed, which is after this decision. So, even if the thing that made refusing to pay an assessed tax bill was the decision itself, rather than the much older law criminalizing refusing to pay taxes once assessed, the decision wouldn't be an ex post facto law, since the act criminalized would necessarily occur after the decision, not before it.
Except "ex post facto law" was already a legal term of art at the time the Constitution was written, and when used it referred to criminal laws. There's a pretty good discussion of this history in the first U.S. Supreme Court case to address the issue, Calder v. Bull, 3 U.S. 386 (1798).
California may have had two options, but the first option would require either the court to reform the statute providing the tax break to eliminate the unconstitutional discrimination (which it didn't, instead saying simply that the statute, without restriction to any one part of it, could not stand under the commerce clause) or would have required the legislature to replace the invalid statute with one that was valid (and retroactive!) that lacked the unconstitutional feature. Neither occurred, so the executive branch agency -- which has no power to rewrite an unconstitutional law -- assessed the taxes that were due in the absence of the invalid statute.
The U.S. Supreme Court already ruled -- about 215 years ago -- that ex post facto laws are specifically criminal laws which make unlawful an act that was lawful at the time committed, or increase the punishment for an act after it occurred, or which alters the legal rules of evidence to make it easier to secure a conviction for an criminal offense after the offense occured. See, Calder v. Bull, 3 U.S. 386 (1798).
Non-criminal U.S. laws are made retroactive all the time, as are laws that reduce or eliminate punishments for criminal offenses. The only laws that can't be retroactive in the U.S. are laws which create crimes or make them more serious. In short, you were taught wrong.
"Ex post facto law" is a legal term of art that was in use before the US constitution, and applied specifically to criminal laws. There is a fairly good review of the issue in the court decision in Calder v. Bull, 3 U.S. 386 (1798), the first U.S. Supreme Court decision concerning the ex post facto law prohibition in the Constitution
An ex post facto tax can't be "unfair for the same reason an ex post facto law" is, because the principle invalidating ex post facto laws is intimately tied to the punitive nature of criminal law and the kind of penalties associated with criminal offenses.
That's not an "ex post facto law". That's a retroactive law that changes the tax consequence of past actions without creating criminal liability for the past action.
Nope, because that's an ex post facto law. Allowing retroactive laws that are not ex post facto laws because they don't criminalize past events does not result in allowing ex post facto laws, because there is an explicit Constitutional prohibition of ex post facto laws which does not apply to other retroactive changes to the law.
California is net contributor to the federal budget, so a negative percentage of the federal budget deficit is due to California. Leaving aside the other inaccuracies in that sentence.
They are going back exactly as far as they are allowed (and, in FTB's view, required) to go, applying the invalidation of the statute providing the tax break to all tax years for which the statute of limitations for tax collection has not expired.
There isn't, really, because the reason for the prohibition of ex post facto laws -- which applies exclusively to criminal laws -- is because of the kind of consequences associated with criminal laws. That having been said, most laws (civil and criminal) in the US have limits to how far after the event recoveries can be pursued (statutes of limitations being common), outside of the prohibition of ex post facto laws.
And this isn't a retroactive law, its the implementation of the decision that an existing statute providing a tax break, to quote the court decision, "can not stand under the commerce clause".
One of the things the WTO does when a country is found to violate WTO rules on tariffs, and where other methods of resolving the violation have not proven fruitful, is grant the victim special privileges against the aggressor in compensation (WTO members, by virtue of joining the WTO, grant the WTO authority to do this.) Relaxation of obligations under TRIPS is precisely what Antigua is seeking from the WTO in their application for permission to retaliate against the US violations. Antigua is hoping that the WTO
The trend of simplification on the desktop started before mobile was driving it. I think there is a convergence in that some things that usability studies and other factors were driving in general happened to also mesh very well with what fits on mobile device and works without a multibutton mouse; there is some analogy, I think, to how SQL and the relational model were motivated by theoretical concerns but really took off because they also happened to be convenient to implement in a performant way on disk-based storage and were introduced as disk-based storage was becoming popular.
The wealth creation already happens. Various factors of the existing economic systems (including some that are government imposed like tax policy, and some that that are common features of existing employment arrangements) cause the distribution of the wealth created by existing workers to favor that capital holders that employ them rather than the workers themselves, but that's an issue of distribution rather than creation.
One way or the other, I think it will look like what happened after the Industrial Revolution somewhere; but note that what happened after the Industrial Revolution didn't look the same everywhere. The social changes resulting from Industrialization in, say, the UK--while certainly painful and disruptive--looked a lot different than those in Russia.
All of these things are true:
Since Netflix traffic is about 1/3 of peak downstream traffic, and by far the biggest single source of traffic on the internet, moving Netflix traffic on to its own dedicated pipe (and caching much Netflix content locally at the ISP so that there won't be back-haul traffic at all) benefits everyone getting service from the ISP. And Netflix isn't insisting ISPs do it, it is providing incentives for them to do it in the form of making exclusive content available to those ISPs customers -- content that takes a lot more bandwidth, and which -- given the enormous bandwidth load Netflix traffic already consumes -- neither the ISP nor Netflix could afford to have available for those customers without the CDN.
As I understand, Netflix's CDN, while access to "SuperHD" content is used as the lever to get ISPs to buy in, isn't SuperHD-specific. So, buy buying in, the ISP improves the experience for Netflix users while simultaneously reducing the load Netflix places on the ISP's bandwidth -- resulting in better performance for all of the ISPs users.
Right there -- 5Gb of throughput is probably a lot less that any but an extremely small boutique ISP is already having consumed by connections to Netflix at peak. Last I saw stats, Netflix was estimated to be the source of around a third of the peak downstream internet traffic.
It makes no sense period. You don't use the same cut of meat you'd use to make a great steak to grind for burgers.
Since when does "rational" imply not being able to understand that, within crime, there are various different crimes which can be by various common features?
The Slashdot headline is the title of TFA, so its not the Slashdot submitter -- or not just the submitter, at any rate, unless they also happen to be the author of the headline of TFA -- that has the problem with the definition of "civil disobedience".