It is that time of the triennium again, as ECUSA starts to build up to its 78th General Convention this summer. Long since having lost its mooring and drifted out to sea, General Convention continues to be populated by those whose object is to move the Church in their desired direction, and who think they can do so by getting General Convention to take some particular action. In the process they do not care how they bend the rules -- even when it means driving the cart before the horse.
Take the subject of Christian marriage, for example. It should be obvious that the term "Christian marriage," also known (in the Book of Common Prayer) as "Holy Matrimony," has a meaning that is different from "civil marriage," right? The Church derives the former from Scripture, and has been handed it down from generation to generation, to preserve, protect and defend -- correct? While the State defines the latter term in accordance with its statutes from time to time?
And that has been the status for nearly two thousand years in various branches of the Church. As ECUSA received that tradition from the Church of England, which received it from the Church of Rome, "Holy Matrimony" is a union conferred by God (as Jesus explained) upon a man and a woman, sealed by their lifetime vows, acting through the divine authority conferred upon Peter by Jesus Christ, and by Peter upon the priesthood whom he and his apostolic successors ordained.
Civil marriage, on the other hand, is a status conferred upon two people (not necessarily, in this day and age, a man and a woman) by the State in which they reside, and whose jurisdiction over them they recognize. Virtually anyone authorized by statute can act as the State's agent in conferring such a status, provided the couple has obtained a "license" in accordance with the State's own requirements. Specifically, the agent does not have to be anyone ordained to the priesthood.
One would have thought until now that the Episcopal Church (USA) had managed to keep the two separate. One would have been wrong.
Once the several States began to authorize civil unions between two people of the same sex, the Church began to seek for ways to incorporate those unions into its authorized rites, as well. At first, it was recognized that the ceremony of Holy Matrimony was unique to the Church -- meaning that its unique, God-given state ("that no man may put asunder") could be conferred only by the Church through its priests, and only by following the rubrics of the Book of Common Prayer.
General Convention 2009 began to undermine the authority of the BCP when it authorized its Standing Commission on Liturgy and Music to develop "theological and liturgical resources for the blessing of same gender relationships" (Res. 2009C056; emphasis added) -- all the while pretending that no changes were being made to traditional marriage as celebrated in the BCP. In response to its work, General Convention 2012 commended . . . for study and use in congregations and dioceses" certain rites for the "Witnessing and Blessing of a Lifelong Covenant in a same-sex relationship" (Res. 2012A049; emphasis added).
Do you see the subtle word games going on to this point? God forfend that General Convention should be doing anything to alter marriage as such; all it is purporting to do is to develop some experimental liturgical rites to celebrate "same-sex relationships".
But now look at what has happened. The General Convention's Task Force on the Study of Marriage has proposed to revise Canon I.18 ("On Marriage"). I'm not going to reproduce all of the proposed changes here; you can see them for yourself, at pp. 4-6 of the document at the link just given. Just notice, if you will, that as the title goes, so goes the Canon -- the title is changed from "Of the Solemnization of Holy Matrimony" to "Of the Celebration and Blessing of Marriage." The words "Holy Matrimony" are removed from Sections 1, 2 and 3, so that the Canon (if amended) will speak only to something called "marriage" as such; it will no longer speak to what is defined by (and in) the Book of Common Prayer as "the union of a man and a woman".
And what is the significance of that change? Seemingly it is rather subtle on the surface, but beneath the surface it runs very deep, into the heart of the Church.
To see just how, consider who reads the canons: practically no one, until a matter of clergy discipline surfaces. Lay people, and even many clergy, are ignorant of the Canons. (For example, no less than the Standing Committee of the Diocese of Maryland recently called for Suffragan Bishop Heather Cook to submit her resignation -- but she couldn't ask to resign, even if she wanted to. She is the subject of a Title IV disciplinary proceeding, and Canon III.12.8 (b) prohibits the Presiding Bishop from considering or acting upon any such request to resign until "the disciplinary matter shall have been resolved ...".)
People who sit in the pews, however, are familiar with the Book of Common Prayer, and use it at least every Sunday. The proposed change in Canon I.18 would remove, as far as marriage is concerned, the last remaining link between the BCP that every Episcopalian knows and uses and the governing documents of the Church. The rites which General Convention 2012 purported to "commend" (not, please note, "authorize" -- only the BCP and the Ecclesiastical Authority may authorize rites in a diocese) to the Church are not part of the BCP, and cannot become so until the procedures have been duly followed to amend the BCP.
As provided in Article X of the Church's Constitution, it takes the vote of two successive General Conventions to change anything in the Book of Common Prayer -- plus, each of the Church's dioceses must consider the proposed change at one of its diocesan conventions in the three years between General Conventions.
The rubrics of the BCP are thus superior to Canons of the General Convention, because the latter can be amended by the vote of just a single Convention, while the former require the vote of two, plus consideration by each and every Diocese in between.
And the rubrics of the BCP currently define "Christian marriage" as "a solemn and public covenant between a man and a woman in the presence of God" (p. 422). Not only that, but the entire ceremony of Holy Matrimony in the BCP is filled with references to "the man" doing and saying this, and "the woman" doing and saying that. The same is true for the "Blessing of a Civil Marriage Cermony" that begins on page 433 of the BCP and for the "Order for Marriage" beginning on page 435.
With this proposed change to the Canon on Marriage, therefore, there will no longer be any canonical link to "marriage" as regulated by the Canon and "Holy Matrimony" as regulated by the BCP. The Canon, if revised as proposed, will simply govern those cases where people already considered civilly married by the State may have their union blessed by a priest, as well as those who, for whatever reason, want to be married civilly by a priest in ECUSA. (As both the current and proposed version make clear in their last sections, any priest may in his discretion refuse to perform any blessing or solemnization of marriage.)
The Canon will no longer make any reference to the BCP, because the words "Holy Matrimony" will have been deleted from it. And the ceremonies provided in the BCP, of course, make no reference to the Canons -- they don't have to, because the BCP ranks higher than the Canons. So the Canon will apply only to those locally authorized ceremonies not in the BCP, and the BCP will continue to regulate traditional ceremonies, which will (after GC 2015) no longer be covered by the Canon.
The undermining of traditional marriage will, if this proposed change passes, be just about complete. The pewsters will think that nothing has changed, because their BCPs haven't changed. But for those who want to transform ECUSA into a secular adjunct of today's society, nothing more will remain to be done. They won't have to amend the BCP, because they have their special rites which individual bishops are already allowing to be celebrated.
Nevertheless, the disconnect between Holy Matrimony as celebrated in the BCP and civil marriage as soon to be authorized by the Canons means that the Church itself will have become schizophrenic on the subject. Clergy can continue (for the present, at least) to celebrate traditional marriages in the forms provided in the BCP, even without any canonical authority, because the BCP furnishes its own authority for them to do so. (After the BCP ceremony, they can still sign the State's required certificate, but that act just serves to make the Church's ceremony also a State-recognized one.) At the same time, they can function purely as agents of the State to solemnize and bless civil unions as their bishops may allow -- because the BCP has nothing to say about it, the canons will (shortly) allow it, and the State doesn't care.
But no one can say that the two forms of "marriage" are the same. The State may recognize both, but the Church has many more requirements for its Holy Matrimony. Which raises the question: why is the Church even bothering to have anything to do with civil marriages? What does the Church bring to such a union, if it is not solemnized according to the BCP? What is the point of having a minister recite the required words, and sign the required paperwork? It still cannot be Holy Matrimony -- unless and until General Convention gets around to rewriting the BCP wholesale, proposes its changes to the dioceses to approve, and then gets a final vote passed by a majority in each order.
I submit the Church, by cheapening itself in the meantime to do civil marriages, is simply providing window dressing for those who would like to be seen as having the Church blessing their union. And a church that exists to provide window dressing is not a church, but a secular wedding chapel.
So go ahead, General Convention 2015: make the Church even more irrelevant than it is already. (You've done such a fine job of it thus far.) It's all part of the process of decay.
Monday, February 9, 2015
Wednesday, February 4, 2015
South Carolina Decision a Full Vindication for Victims of ECUSA's Oppression
Circuit Judge Diane S. Goodstein's carefully crafted 46-page decision in the case brought by Bishop Mark Lawrence's Episcopal Diocese of South Carolina (along with 35 of its parishes, plus St. Andrew's, Mt. Pleasant) against the Episcopal Church (USA) and its rump group (ECSC, or "Episcopal Church in South Carolina") is a complete vindication of the positions taken and arguments advanced for so long, by so many, inside and outside the Church.
It is a vindication first, for the Right Reverend Mark Lawrence and his legal team, who conceived the winning strategy, assembled and put on all the evidence, wrote all the briefs, argued all the appeals, fought back in the federal courts, and at last brought ECUSA to its day of reckoning.
It is a vindication, as well, of Bishop Lawrence's pastoral strategies, by which he showed how spiritual leaders can follow and submit themselves to the civil law, while in doing so remain faithful and Biblical counselors and guides for those in their spiritual care. It was Bishop Lawrence who decided on behalf of his Diocese not to appeal the All Saints Waccamaw decision to the U.S. Supreme Court and run the risk of dividing his parishes still further. It was Bishop Lawrence who accepted responsibility for giving each parish in his Diocese a quitclaim deed in compliance with the holding in All Saints Waccamaw that the Dennis Canon could on its own not create a trust in any property in South Carolina. These decisions led to the accusations of "abandonment" brought against Bishop Lawrence by his detractors, but they were pastorally the right decisions to make under the circumstances. Had ECUSA's leaders shown a comparable willingness to submit to the everyday requirements of the civil law, the Church would not be where it is today: millions and millions of dollars poorer, with absolutely nothing to show from the squandering of all its trust funds.
It is a vindication of all of the faithful parishioners and clergy in the Episcopal Diocese of South Carolina who remained by their Bishop, and provided much-needed financial support, as ECUSA and its minions sought to bring him down by the sheer weight of all the forces they could bring to bear against him and his Diocese.
It is a vindication for this country's honest and hard-working judiciary. Judge Goodstein has set a sterling example (in contrast to that set in the parallel San Joaquin case by Judge Donald Black, of the Fresno Superior Court) of how to write a thoroughly reasoned, well-organized opinion that deals with the historical facts and expert testimony in a manner that is true to what that evidence showed. (Judge Black brushed off the questions put to him in the link above, and never deigned to answer them.) Judge Goodstein not only answered each and every one of them (but with reference to the Diocese of South Carolina, not San Joaquin), but she did so in spades, and constructed an opinion so solidly grounded in the testimony, evidence and applicable South Carolina law that it should stand up intact on any appeal.
It is a vindication of the Fort Worth seven and the Quincy three, whose advocacy of the same positions adopted yesterday by Judge Goodstein caused ECUSA mindlessly to discipline them, without good cause, a year ago.
It is a vindication of the Bishops' Statement on the Polity of the Episcopal Church, which the majority of ECUSA's House of Bishops, led by their chosen Presiding Bishop, belittled and rejected. (Maybe now they will reconsider their views.)
It is a vindication of Mark McCall, the Rev. Dr. Ephraim Radner, the Very Rev. Dr. Philip Turner, and the Rev. Dr. Christopher Seitz, all of the Anglican Communion Institute, which has for so long fully documented and advocated the positions adopted by Judge Goodstein in her opinion. (To be accurate, the Institute has never advocated that any Diocese should withdraw from ECUSA, and has instead argued that they should fight the good fight from within the Church.)
And lastly, while the decision cannot be viewed as a vindication for Episcopalians such as myself and others who disagree strongly with the legal strategies of ECUSA's current bishops and attorneys -- because it does nothing to rectify what is wrong with ECUSA today -- it is at the very least a justification for our continuing to sound the alarm over those ill-conceived strategies, which contradict, undermine and betray the very foundations of this Church (see, e.g., factual findings 1 through 7 on page 6 of Judge Goldstein's decision).
One of the key factual findings by the Court is this:
Needless to say, Judge Goodstein made such a finding because ECUSA and ECSC never had any evidence to substantiate their charges. (Note to hostile readers, such as those from the Episcopal Forum in South Carolina, or the followers of Steve Skardon: "evidence" in a court of law is something far more than just accusations and innuendo. What you can say on your blogs is not "evidence." Until you learn this difference, you have no basis upon which to claim victory in any court.)
On the legal side, the decision is chock full of useful conclusions that can be cited and used in the Fort Worth case, and in the ongoing appeal in the San Joaquin case. For example, this is one of the best judicial discussions to date of the First Amendment rights of a diocese-member of an unincorporated church such as ECUSA:
Another key finding (again, as long argued here, and as found by the highest courts in Illinois and Texas as well):
And still another finding, that is fraught with consequences for the Episcopal Diocese of Upper South Carolina, in its relation to its own member parishes:
Think of each of these well-crafted findings and conclusions as individual nails in ECUSA's coffin that will keep any appellate court from wanting to open it. Sloppy decisions make for an appellate court's breakfast, but finely wrought ones such as this are framed and put over the mantel.
That said, look for ECUSA to continue to deploy its delaying tactics to the maximum in the South Carolina courts. First it will file a motion with Judge Goodstein asking her to "reconsider" her carefully considered decision. When she enters an order denying that, ECUSA could try motions for a new trial and/or to vacate the findings made, as well as for a stay of her injunction pending appeal. Only when all of their post-trial options are exhausted will ECUSA and ECSC then file a notice of appeal to the South Carolina Court of Appeals.
At that point, however, the schedule could be taken out of ECUSA's hands. As they did with their opponents' earlier attempts to tie things up in the Court of Appeals, Bishop Lawrence and his attorneys could file a pre-emptive motion with the South Carolina Supreme Court, asking that Court to take the appeal and decide it directly without waiting for any decision from the Court of Appeals.
Once the case reaches the South Carolina Supreme Court, look for a decision from that body which roundly affirms Judge Goodstein's opinion in all respects. Then ECUSA may try to get the United States Supreme Court interested in reviewing the decision -- although by that time ECUSA should have a new Presiding Bishop who hopefully will see further litigation as the waste of trust funds that it is. Even so, based on its track record with such requests to date (there have been half a dozen so far, each denied), the Supreme Court will in all likelihood refuse to grant any petition for review.
Bishop Lawrence will have his post-judgment remedies, as well: under the statute cited by Judge Goodstein at the top of page 38 of her decision, and given the extensive findings she makes at pages 39 to 44 of her decision (especially in the last paragraph, before the "It Is Therefore Ordered" section), he will be entitled to an award of his reasonable attorneys' fees in the lawsuit. Watch for his motion for fees to be filed in the coming weeks: because of ECUSA's countless delaying tactics which multiplied the time required to be spent, it will ask for many, many hundreds of thousands of dollars (and I would not be at all surprised if the total came to over a million -- or two).
So with this decision, the end is in sight -- not close yet, but at least in sight. But what about the case argued last week before the federal Fourth Circuit Court of Appeals, in Richmond? Could that case still go forward?
I listened to the recording of the oral arguments in that case (mp3 file available for download using this link). Based on the questions asked of both sides, I think the Court of Appeals will most likely return the case to Senior District Judge Houck and direct him to use a different technical standard in deciding whether or not to abstain from exercising jurisdiction over the case (which was brought by Bishop vonRosenberg to address charges of federal trademark infringement by Bishop Lawrence and his Diocese).
Judge Houck will have the benefit (which the Court of Appeals may not) of reading Judge Goodstein's well-written opinion -- which decides the trademark issues under State law. Moreover, the injunction against Bishop vonRosenberg claiming to be the "Bishop of the Diocese of South Carolina" is now made final against him, and he cannot disobey it while the case is on appeal without getting the injunction first stayed (see Rule 62 [c], which you may read here). So he can no longer argue to the federal courts that he has the rights to that title unless he can get a South Carolina Appeals Court justice to stay the injunction, and I personally doubt he will be able to do so.
If this analysis correct, the federal case is dead unless and until ECUSA and ECSC manage to get a court to reverse Judge Goodstein's decision. And this Curmudgeon, at this point, just does not see how that could ever happen.
ECUSA will not have to pay costs to its opponents, alas, until the appeal(s) have come to a conclusion. But when that happens, the cost bill should be substantial -- think of all those individual rectors and vestry members whom ECUSA/ECSC felt they just had to name as defendants on their counterclaims.
With the costs and attorneys' fees certain to be awarded, then, ECUSA's South Carolina strategy has suddenly become very much more expensive. The totals it will have to pay will make mincemeat of this year's legal budget, and will require that the full Executive Council adjust that line item.
It would be an excellent time for the Council to request a full justification for her strategy from the Presiding Bishop -- and maybe General Convention 2015 will be moved to do so, as well.
Strategies have consequences, and poor strategies have even greater consequences. ECUSA, 815, its General Convention and Executive Council -- but first and foremost, ECUSA's Treasurer, who will have to find the money somewhere, in one of ECUSA's long-ago trust funds donated for its mission --will soon enough learn what those are.
It is a vindication first, for the Right Reverend Mark Lawrence and his legal team, who conceived the winning strategy, assembled and put on all the evidence, wrote all the briefs, argued all the appeals, fought back in the federal courts, and at last brought ECUSA to its day of reckoning.
It is a vindication, as well, of Bishop Lawrence's pastoral strategies, by which he showed how spiritual leaders can follow and submit themselves to the civil law, while in doing so remain faithful and Biblical counselors and guides for those in their spiritual care. It was Bishop Lawrence who decided on behalf of his Diocese not to appeal the All Saints Waccamaw decision to the U.S. Supreme Court and run the risk of dividing his parishes still further. It was Bishop Lawrence who accepted responsibility for giving each parish in his Diocese a quitclaim deed in compliance with the holding in All Saints Waccamaw that the Dennis Canon could on its own not create a trust in any property in South Carolina. These decisions led to the accusations of "abandonment" brought against Bishop Lawrence by his detractors, but they were pastorally the right decisions to make under the circumstances. Had ECUSA's leaders shown a comparable willingness to submit to the everyday requirements of the civil law, the Church would not be where it is today: millions and millions of dollars poorer, with absolutely nothing to show from the squandering of all its trust funds.
It is a vindication of all of the faithful parishioners and clergy in the Episcopal Diocese of South Carolina who remained by their Bishop, and provided much-needed financial support, as ECUSA and its minions sought to bring him down by the sheer weight of all the forces they could bring to bear against him and his Diocese.
It is a vindication for this country's honest and hard-working judiciary. Judge Goodstein has set a sterling example (in contrast to that set in the parallel San Joaquin case by Judge Donald Black, of the Fresno Superior Court) of how to write a thoroughly reasoned, well-organized opinion that deals with the historical facts and expert testimony in a manner that is true to what that evidence showed. (Judge Black brushed off the questions put to him in the link above, and never deigned to answer them.) Judge Goodstein not only answered each and every one of them (but with reference to the Diocese of South Carolina, not San Joaquin), but she did so in spades, and constructed an opinion so solidly grounded in the testimony, evidence and applicable South Carolina law that it should stand up intact on any appeal.
It is a vindication of the Fort Worth seven and the Quincy three, whose advocacy of the same positions adopted yesterday by Judge Goodstein caused ECUSA mindlessly to discipline them, without good cause, a year ago.
It is a vindication of the Bishops' Statement on the Polity of the Episcopal Church, which the majority of ECUSA's House of Bishops, led by their chosen Presiding Bishop, belittled and rejected. (Maybe now they will reconsider their views.)
It is a vindication of Mark McCall, the Rev. Dr. Ephraim Radner, the Very Rev. Dr. Philip Turner, and the Rev. Dr. Christopher Seitz, all of the Anglican Communion Institute, which has for so long fully documented and advocated the positions adopted by Judge Goodstein in her opinion. (To be accurate, the Institute has never advocated that any Diocese should withdraw from ECUSA, and has instead argued that they should fight the good fight from within the Church.)
And lastly, while the decision cannot be viewed as a vindication for Episcopalians such as myself and others who disagree strongly with the legal strategies of ECUSA's current bishops and attorneys -- because it does nothing to rectify what is wrong with ECUSA today -- it is at the very least a justification for our continuing to sound the alarm over those ill-conceived strategies, which contradict, undermine and betray the very foundations of this Church (see, e.g., factual findings 1 through 7 on page 6 of Judge Goldstein's decision).
One of the key factual findings by the Court is this:
39. Mark Lawrence was not elected Bishop of the Diocese with the intent on either his part or on that of the Diocese to lead the Diocese out of TEC. From 2009 until October 2012, his intent was to remain "intact and in TEC."Based on this finding alone, Judge Goodstein dismissed "with prejudice" (meaning that they cannot be raised again, in any forum) ECUSA's and ECSC's counterclaims against Bishop Lawrence. Those had accused him of "conspiring" to lead his Diocese out of ECUSA, of fraud and breaches of fiduciary duty, etc., and generally of conduct unbecoming a member of the clergy -- claims that his accusers had to bring twice before the Disciplinary Board before the Presiding Bishop could get what she wanted (once she changed its membership slightly).
Needless to say, Judge Goodstein made such a finding because ECUSA and ECSC never had any evidence to substantiate their charges. (Note to hostile readers, such as those from the Episcopal Forum in South Carolina, or the followers of Steve Skardon: "evidence" in a court of law is something far more than just accusations and innuendo. What you can say on your blogs is not "evidence." Until you learn this difference, you have no basis upon which to claim victory in any court.)
On the legal side, the decision is chock full of useful conclusions that can be cited and used in the Fort Worth case, and in the ongoing appeal in the San Joaquin case. For example, this is one of the best judicial discussions to date of the First Amendment rights of a diocese-member of an unincorporated church such as ECUSA:
Freedom of association is a fundamental constitutional right: "it is beyond debate that freedom to engage in associations for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment .... " NAACP v. Alabama, 351 U.S. 449, 460 (1958). "[I]t is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, any state action which may have the affect of curtailing the freedom to associate is subject to the closest scrutiny." Id. Freedom of association is a constitutional right of both incorporated and unincorporated associations. Id.As has long been argued on this blog, any restriction which ECUSA tried to put upon the ability of its member dioceses to withdraw would be in violation of the First Amendment, and unenforceable in any civil court in the land.
With the freedom to associate goes its corollary, the freedom to disassociate. Robert v. United States Jaycees, 468 U.S. 609, 623 (1984) ("Freedom of association ... plainly presupposes a freedom not to associate."); Disabato v. South Carolina Association of School Administrators, 404 S.C. 433, 445, 746 S.E.2d 329, 335 (2013) ("Among the protections afforded by the freedom of association are the rights to not associate .... "); accord Harris v. Quinn, 134 S. Ct. 2618, 2629 (2014) (citations omitted) (A law is not justified "that forces men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought" or that "forces a person to "conform to [an entity's] ideology."
Another key finding (again, as long argued here, and as found by the highest courts in Illinois and Texas as well):
76. TEC does not have an ultimate judicatory.Seven simple words -- but they mean that the "deference to its ecclesiastical determinations" approach urged for so long by ECUSA is ill-founded. There is no church judicatory to whose decisions a court might defer -- ECUSA has never created one. (Perhaps because its dioceses like their autonomy? -- perish the thought.)
And still another finding, that is fraught with consequences for the Episcopal Diocese of Upper South Carolina, in its relation to its own member parishes:
64. Where applicable, the Plaintiff parish churches amended their corporate governance documents to remove references to TEC; such amendments complied with the notice quorum and voting requirements of the Act and the requirements of their corporate governing documents.Under South Carolina law, which holds that the Dennis Canon is ineffective to create any enforceable trust, any parish in the State may so amend its governing documents at any time, and so disaffiliate from a diocese to which it belongs. In other words, parishes have First Amendment rights of association, too.
Think of each of these well-crafted findings and conclusions as individual nails in ECUSA's coffin that will keep any appellate court from wanting to open it. Sloppy decisions make for an appellate court's breakfast, but finely wrought ones such as this are framed and put over the mantel.
That said, look for ECUSA to continue to deploy its delaying tactics to the maximum in the South Carolina courts. First it will file a motion with Judge Goodstein asking her to "reconsider" her carefully considered decision. When she enters an order denying that, ECUSA could try motions for a new trial and/or to vacate the findings made, as well as for a stay of her injunction pending appeal. Only when all of their post-trial options are exhausted will ECUSA and ECSC then file a notice of appeal to the South Carolina Court of Appeals.
At that point, however, the schedule could be taken out of ECUSA's hands. As they did with their opponents' earlier attempts to tie things up in the Court of Appeals, Bishop Lawrence and his attorneys could file a pre-emptive motion with the South Carolina Supreme Court, asking that Court to take the appeal and decide it directly without waiting for any decision from the Court of Appeals.
Once the case reaches the South Carolina Supreme Court, look for a decision from that body which roundly affirms Judge Goodstein's opinion in all respects. Then ECUSA may try to get the United States Supreme Court interested in reviewing the decision -- although by that time ECUSA should have a new Presiding Bishop who hopefully will see further litigation as the waste of trust funds that it is. Even so, based on its track record with such requests to date (there have been half a dozen so far, each denied), the Supreme Court will in all likelihood refuse to grant any petition for review.
Bishop Lawrence will have his post-judgment remedies, as well: under the statute cited by Judge Goodstein at the top of page 38 of her decision, and given the extensive findings she makes at pages 39 to 44 of her decision (especially in the last paragraph, before the "It Is Therefore Ordered" section), he will be entitled to an award of his reasonable attorneys' fees in the lawsuit. Watch for his motion for fees to be filed in the coming weeks: because of ECUSA's countless delaying tactics which multiplied the time required to be spent, it will ask for many, many hundreds of thousands of dollars (and I would not be at all surprised if the total came to over a million -- or two).
So with this decision, the end is in sight -- not close yet, but at least in sight. But what about the case argued last week before the federal Fourth Circuit Court of Appeals, in Richmond? Could that case still go forward?
I listened to the recording of the oral arguments in that case (mp3 file available for download using this link). Based on the questions asked of both sides, I think the Court of Appeals will most likely return the case to Senior District Judge Houck and direct him to use a different technical standard in deciding whether or not to abstain from exercising jurisdiction over the case (which was brought by Bishop vonRosenberg to address charges of federal trademark infringement by Bishop Lawrence and his Diocese).
Judge Houck will have the benefit (which the Court of Appeals may not) of reading Judge Goodstein's well-written opinion -- which decides the trademark issues under State law. Moreover, the injunction against Bishop vonRosenberg claiming to be the "Bishop of the Diocese of South Carolina" is now made final against him, and he cannot disobey it while the case is on appeal without getting the injunction first stayed (see Rule 62 [c], which you may read here). So he can no longer argue to the federal courts that he has the rights to that title unless he can get a South Carolina Appeals Court justice to stay the injunction, and I personally doubt he will be able to do so.
If this analysis correct, the federal case is dead unless and until ECUSA and ECSC manage to get a court to reverse Judge Goodstein's decision. And this Curmudgeon, at this point, just does not see how that could ever happen.
ECUSA will not have to pay costs to its opponents, alas, until the appeal(s) have come to a conclusion. But when that happens, the cost bill should be substantial -- think of all those individual rectors and vestry members whom ECUSA/ECSC felt they just had to name as defendants on their counterclaims.
With the costs and attorneys' fees certain to be awarded, then, ECUSA's South Carolina strategy has suddenly become very much more expensive. The totals it will have to pay will make mincemeat of this year's legal budget, and will require that the full Executive Council adjust that line item.
It would be an excellent time for the Council to request a full justification for her strategy from the Presiding Bishop -- and maybe General Convention 2015 will be moved to do so, as well.
Strategies have consequences, and poor strategies have even greater consequences. ECUSA, 815, its General Convention and Executive Council -- but first and foremost, ECUSA's Treasurer, who will have to find the money somewhere, in one of ECUSA's long-ago trust funds donated for its mission --will soon enough learn what those are.
Monday, February 2, 2015
Thanks to Obamacare, America Will Soon Implode (UPDATED)
For a long time now, I have maintained that there is a very simple solution to the Gordian complexities of our tax code -- it is to pass a law like this:
A brief recap of how we got here: the legislation known now as "Obamacare" passed Congress in 2010 with nary a Republican vote, thanks to the questionable procedures employed by Harry Reid in the Senate to get it through with less than 60 votes. And as House Speaker Nancy Pelosi infamously remarked, "We had to pass the bill to know what was in it."
The scheme of Obamacare was diabolically simple: mandate that everyone purchase health care coverage, and let the premiums paid by the young and healthy subsidize the cost of coverage for the older and chronically sick. To enforce the mandate, impose a penalty on anyone who does not purchase the minimum mandated coverage. And to sweeten the pot, offer federal subsidies to those of lower income who could not afford even the minimum premiums.
(To keep this exposition uncluttered, I pass over the complexities of the statute that provided subsidies only for those states creating an insurance exchange -- complexities brushed aside by the Obama administration in its rush to get the statutory scheme implemented despite massive incompetence, and which will be addressed by the Supreme Court later this year.)
Now comes the day of reckoning for all those whom the statute has affected: April 15, 2015. Individual tax returns are due on that day, and those who decided to pay the penalty rather than purchase insurance must send it in with their taxes.
Those paying a penalty will have a simple calculation: you can follow this link, plug in the numbers and see how much it is. (Notice also how much it increases in the next few years.)
But the real surprise will hit those who did purchase insurance, and received a subsidy to help cover the cost of their premiums. The law requires them to justify what they received in light of their (and their dependents' ) actual 2014 reported earnings. If they received too much subsidy, they will have to pay it back. If, on the other hand, they did not receive all the subsidy to which they were entitled, they get to deduct that amount from the taxes they otherwise owe, in order to lower the end cost of the insurance.
To calculate what the law calls their "Premium Tax Credit" (PTC), those lucky souls will encounter a brand-new IRS form -- Form 8962. It is two pages long. But that is deceptive, because its instructions are fifteen pages long. And though I will do my level best to explain them for you, I make no claim to correctness in what follows. As you will see, the sheer complexity of getting through a Form 8962 for all of the differently situated taxpayers and their different policies is a monumental challenge even for seasoned professionals (which I am not).
I simply happen to be of the belief that every citizen ought to be able to do his own taxes. And if the day comes when that is no longer possible, then the country's fate will truly be out of its own hands.
The initial difficulty you will have with Form 8962 is in figuring out whether you are required (or eligible) to file it. You may have to struggle with filling it out first before you can answer that question.
First: all those persons filing singly, and eligible married couples filing jointly, who purchased Obamacare and want to claim a PTC against their tax liability for 2014 must file the form -- that much is simple. (If you were not married during part of 2014, or are married filing separately, good luck with following the instructions, and may God help you, because the IRS won't be able to. That still doesn't excuse your not filing the form if you are required to file it.)
Your PTC (as calculated on the Form) will equal (based on your individual and family circumstances -- just wait!), roughly speaking, the amount you paid (or what the Obama administration thinks you should have paid, if that is less) for Obamacare premiums for yourself and your family, minus the amount that the Obama administration deems you were able to pay for those premiums, using the tables provided and following the instructions.
How much you ought to have been able to pay depends in part on how your income compares to the poverty line level for your State. (If you moved from one State to another during 2014, not to worry: unless you moved from or to Alaska or Hawaii, which have their own poverty tables.) If you earned more than four times your State's poverty line for your given size family (that is, for example, $23,550 x 4 = $94,200 for the contiguous U.S. States for a family of four -- see Table 1-1 on page 4 of the instructions), you were not eligible to receive any subsidy, and married or not, you will have to file Form 8962 to pay back any subsidy you are reported as having received.
If you earned less than the poverty line, you still have to file the Form to prove you can keep the subsidy you received. And if you fall between 100% and 399% of the poverty line -- well, take a stiff drink and get out your calculator, because you are one of those middle-class chumps for whom life just got infinitely more difficult, thanks to the intricacies of Obamacare.
Second: if you (or any member of your insured family) received, for any month in 2014, a subsidy toward payment of your Obamacare premiums (and that subsidy is called "Advance Premium Tax Credit", or APTC -- understand?) then you must file Form 8962 to reconcile the amount of APTC you actually received with the PTC that you are entitled to take on your return.
If you purchased your Obamacare policy through an official exchange (which the instructions call a "Marketplace"), then when you enrolled, you told the exchange (Marketplace) certain information about your anticipated 2014 income and family circumstances as part of the enrollment process. Based on what you told them, the Marketplace then quoted to you the premiums for the different levels of plans available from that exchange: for a "Bronze" policy, or a "Silver", "Gold", or "Platinum" policy, and calculated any estimated subsidy, or APTC, to which you would be entitled.
Those premiums they quoted you, and which you subsequently paid, may or may not have reflected a government subsidy, based on your reported income, your family and your other circumstances. The good news is that each Marketplace, or insurer, will have to send you another new form, called "Form 1095-A", which will tell you just how much APTC you received for each month you were insured and paid the premiums under your chosen policy (think of it like a Form 1099 in that regard -- it tells the government that you received some income which otherwise might go unreported).
[UPDATE 02/20/2015: Right on time comes the news that the Government can't even get its own Forms 1095-A right -- the main Website, Healthcare.gov, sent out 800,000 of them to taxpayers who purchased insurance there, but the numbers reported on the Forms were wrong! So all of those taxpayers have been told they will have to wait to get the correct information before they can proceed to figure out their taxes.
Oh, yes -- the same story reports the California insurance exchange site sent out another 100,000 erroneous forms to its customers, too. We don't have any data from the other exchange sites, but you can bet that the same errors crept in for them, as well. Mix garbage in from the consumer or the Website with garbage in from the Government, and what comes out should surprise no one.]
But as we all know now, the enrollment process was severely flawed. So the bad news is that not all of the information you gave to the Marketplace was still correct as of the end of 2014, or was correctly conveyed by the Website to the insurer, or by the insurer back to the insured. As a result, it is anybody's guess at this point whether you will have to pay some subsidy back, or will be entitled to deduct some of it from your taxes. You will have no choice but to try to fill out Form 8962 to find out, because Form 1095-A alone can't tell you what you owe in further taxes, or are owed as a refund. Isn't life under Obamacare marvelous?
Let's try to get a handle on this Form 8962. Take a look at line 1 of the Form: it asks for the size of your family, based on the number of exemptions you claim. So far, so good -- you can take the number directly off line 6d of your Form 1040 or 1040A. (If you're filing Form 1040EZ, something's wrong. People who have to file Form 8962 cannot file a Form 1040EZ. Go back to square one and start again.)
The trouble starts on Line 2. You are told to enter your "modified AGI (see instructions)" on line 2a, and the total of your dependents' modified AGI (see instructions again) on line 2b. "AGI" stands for Adjusted Gross Income, which is a modification to your gross income calculated in a section of your 1040 form. But for Obamacare, they want you to modify that modification still further (thus they call it "MAGI").
The hoary details are on page 4 -- essentially, you have to add back in any foreign earned income, any tax-exempt interest received, and the portion of any Social Security benefits received which were not otherwise taxable. All clear? Did you complete Worksheet 1-1 on page 4 of the instructions?
Good -- because now you have to perform the same add-back calculations for your spouse and each of your dependents who were covered by your Obamacare policy. Good luck on getting your kids to tell you accurately what their AGI for 2014 was, let alone their MAGI.
If you successfully complete line 2, add the amounts to make line 3, the total MAGI for your Form 8962 "coverage family" (which can change from month to month, based on eligibility, and which is not the same as your "tax family" -- see those Instructions, at p. 2). Now you have to enter on line 4 the applicable poverty line number for your State and for the size of your "tax family" from the tables in the instructions. Then divide your total income on line 3 by the poverty line amount on line 4, and convert the decimal answer to a whole number, being careful to follow the special rounding rules for line 5 on page 5 of the instructions.
Now the fun really starts, based on the two- (or three-) digit number you calculated for line 5. Take a look at the instructions for line 6 -- they fill out the rest of page 5 -- and be sure to follow them exactly for your given situation, just so you can answer "Yes" or "No" on that line. If your answer to line 6 is "Yes", you will now generate another percentage amount based on the number you calculated in line 5, by looking up the appropriate percentage in Table 2, which takes up all of page 6 of the instructions, and entering that percentage on line 7. The percentage so found will be somewhere between 2.00% and 9.50%.
Think you're almost done? No way. Now you have to apply the percentage you determined for line 7 to the total income you reported on line 3, and then enter that amount (or its monthly equivalent, divided by 12) into the appropriate boxes in line 8, and also in Column C of Part 2 of Form 8962. This is the portion of your reported total family MAGI which the Obama administration deems you should have been able to pay toward the cost of your insurance (as I said, it will be somewhere between 2% and 9.5% of that MAGI, with the percentage growing as MAGI gets larger than the poverty line figure for your State).
And here the going gets tough, especially if you (like most Americans) had not signed up for Obamacare as of January 2014. Because then you have to calculate your APTC month by month for each of the months in 2014 for which you purchased coverage. See pages 9 through 11 of the instructions for details, and Columns A through F in Part 2 of Form 8962.
And if your marital status changed during 2014, then you have to fill out Tables 3 and 4 and Worksheet 2 on pages 7 and 8 of the instructions in order to know what you have to pay, or what you might receive as a refund. Again, good luck with that -- you might need a "Pub. 974" to help you (see the note about "Pub. 974" below).
We're still nowhere near done with Form 8962. Once you have recorded in the appropriate spaces the monthly premium amounts you paid for Obamacare during 2014, then you need to know the premiums charged for the "Second Least Costly Silver Plan" (SLCSP) that was offered by your exchange, or Marketplace.
Why? Because the Obama administration in its infinite wisdom has determined that the "Second Least Costly Silver Plan" was the plan you should have purchased, all other things being equal. If you bought a more expensive plan, then you probably didn't deserve to receive any subsidies, and will have to pay something back. But if you bought a Bronze Plan, you just might get a tax credit -- stay tuned. You will get the cost of the applicable SLCSP from the information given on your Form 1095-A, and transfer the amount to Form 8962.
Remember that amount you calculated in line 8 of Form 8962? That was the amount that the Obama administration (again, in its infinite wisdom) determined you should have been able to contribute for insurance, given your income and circumstances. So now, in Part 2 of Form 8962, you deduct that amount from the cost of the SLCSP offered by your exchange, and the difference is the maximum PTC to which you are entitled. (If the answer is zero or less, then you should not have received any APTC, and will have to pay it back.)
And the lesser of what you actually paid for premiums, or the maximum PTC thus determined, is the actual PTC you can use for your return. If the PTC so calculated is greater than the APTC you received according to Form 1095-A, then hurrah! You will have a net PTC credit to apply to your income tax due. But if the APTC reported is greater than the PTC you calculated, you owe the difference back to the government, and will have to add that amount to the taxes you otherwise owe (subject to a possible repayment cap, as discussed below).
At this point, I have to ask the ones who purchased Obamacare last year: do you understand how arbitrary the Obama administration is being with Form 8962? First, they introduce a wholly arbitrary concept of your "income", and call it "MAGI". Then they use that number to calculate a wholly arbitrary percentage, which is your arbitrarily determined MAGI divided by an equally arbitrarily determined "poverty line" for a family of your size in your given State (and note how they lump all the 48 continuous states into one single category, while singling out only Alaska and Hawaii).
Finally, they use that arbitrarily found number to determine still another arbitrary number -- namely, the "percent" of your "MAGI" which they consider you should have been able to pay for your insurance. And based on that number, they "decide" whether or not you have been over- or under-subsidized, and penalize / reward you accordingly. All based on their arbitrarily chosen numbers -- and all requiring you to spend a major amount of your time on their required tax calculations.
Shall we see how all this will work out in practice? Here is an actual example from the IRS, taken word-for-word from the Form 8962 Instructions (pp. 10-11):
Isn't government marvelous? First they determine that you need something; then they cram it down your throat, whether you want or need it or not; then they make you pay more for it than they told you it would cost; next they make you spend hours more calculating your taxes so they can be absolutely certain that you got just the amount they determined you needed, and not a penny more; and finally, they sock you with having to pay back any "excess" they say you received (as they make it emerge out of their complex instructions and calculations).
Oh, and one more typical government ploy here: the Instructions for Form 8962 refer many times to a publication that you will need to have to compute your PTC if your marital status changed in 2014. That document is "Pub. 974". Well, good luck finding a copy. As of my writing this post, "Pub. 974" is not listed as an available publication on the IRS Website.
Maybe I should call them? Oh, wait -- I forgot.
If, as more and more of the middle class discover the diabolical complexities of Form 8962, there is not a tax revolt in this country, and a huge groundswell to repeal Obamacare and all of its complex and sulfurous emanations, then there is truly no hope for America. We are just a bunch of sheeple, and fully deserve to be shorn.
It shall be unlawful for any person or entity whatsoever to furnish any aid, assistance, or input of any kind to the preparation of any income tax return by any member of Congress, by any staff (who work in the District of Columbia) of any member of Congress, or by anyone who works in the White House. All such persons must prepare their own returns each year on their own, by hand, on original forms obtained from the IRS, and not using any computers, software or other artificial intelligence of any kind. The IRS shall audit every such return so filed every year; provided, that once a person subject to this law has filed a return for three successive years with no errors, the IRS may use its normal discretion as to whether to audit said person's subsequent returns.And then watch Congress pass bills to simplify the tax code! But until there is such a law, we are doomed to suffer. And in that connection, now we learn that the monstrosity known as Obamacare just keeps on giving off toxic byproducts. The purpose of this post will be to acquaint readers with just a smidgen of its latest injection of toxicity into the lives of middle-class Americans.
A brief recap of how we got here: the legislation known now as "Obamacare" passed Congress in 2010 with nary a Republican vote, thanks to the questionable procedures employed by Harry Reid in the Senate to get it through with less than 60 votes. And as House Speaker Nancy Pelosi infamously remarked, "We had to pass the bill to know what was in it."
The scheme of Obamacare was diabolically simple: mandate that everyone purchase health care coverage, and let the premiums paid by the young and healthy subsidize the cost of coverage for the older and chronically sick. To enforce the mandate, impose a penalty on anyone who does not purchase the minimum mandated coverage. And to sweeten the pot, offer federal subsidies to those of lower income who could not afford even the minimum premiums.
(To keep this exposition uncluttered, I pass over the complexities of the statute that provided subsidies only for those states creating an insurance exchange -- complexities brushed aside by the Obama administration in its rush to get the statutory scheme implemented despite massive incompetence, and which will be addressed by the Supreme Court later this year.)
Now comes the day of reckoning for all those whom the statute has affected: April 15, 2015. Individual tax returns are due on that day, and those who decided to pay the penalty rather than purchase insurance must send it in with their taxes.
Those paying a penalty will have a simple calculation: you can follow this link, plug in the numbers and see how much it is. (Notice also how much it increases in the next few years.)
But the real surprise will hit those who did purchase insurance, and received a subsidy to help cover the cost of their premiums. The law requires them to justify what they received in light of their (and their dependents' ) actual 2014 reported earnings. If they received too much subsidy, they will have to pay it back. If, on the other hand, they did not receive all the subsidy to which they were entitled, they get to deduct that amount from the taxes they otherwise owe, in order to lower the end cost of the insurance.
To calculate what the law calls their "Premium Tax Credit" (PTC), those lucky souls will encounter a brand-new IRS form -- Form 8962. It is two pages long. But that is deceptive, because its instructions are fifteen pages long. And though I will do my level best to explain them for you, I make no claim to correctness in what follows. As you will see, the sheer complexity of getting through a Form 8962 for all of the differently situated taxpayers and their different policies is a monumental challenge even for seasoned professionals (which I am not).
I simply happen to be of the belief that every citizen ought to be able to do his own taxes. And if the day comes when that is no longer possible, then the country's fate will truly be out of its own hands.
The initial difficulty you will have with Form 8962 is in figuring out whether you are required (or eligible) to file it. You may have to struggle with filling it out first before you can answer that question.
First: all those persons filing singly, and eligible married couples filing jointly, who purchased Obamacare and want to claim a PTC against their tax liability for 2014 must file the form -- that much is simple. (If you were not married during part of 2014, or are married filing separately, good luck with following the instructions, and may God help you, because the IRS won't be able to. That still doesn't excuse your not filing the form if you are required to file it.)
Your PTC (as calculated on the Form) will equal (based on your individual and family circumstances -- just wait!), roughly speaking, the amount you paid (or what the Obama administration thinks you should have paid, if that is less) for Obamacare premiums for yourself and your family, minus the amount that the Obama administration deems you were able to pay for those premiums, using the tables provided and following the instructions.
How much you ought to have been able to pay depends in part on how your income compares to the poverty line level for your State. (If you moved from one State to another during 2014, not to worry: unless you moved from or to Alaska or Hawaii, which have their own poverty tables.) If you earned more than four times your State's poverty line for your given size family (that is, for example, $23,550 x 4 = $94,200 for the contiguous U.S. States for a family of four -- see Table 1-1 on page 4 of the instructions), you were not eligible to receive any subsidy, and married or not, you will have to file Form 8962 to pay back any subsidy you are reported as having received.
If you earned less than the poverty line, you still have to file the Form to prove you can keep the subsidy you received. And if you fall between 100% and 399% of the poverty line -- well, take a stiff drink and get out your calculator, because you are one of those middle-class chumps for whom life just got infinitely more difficult, thanks to the intricacies of Obamacare.
Second: if you (or any member of your insured family) received, for any month in 2014, a subsidy toward payment of your Obamacare premiums (and that subsidy is called "Advance Premium Tax Credit", or APTC -- understand?) then you must file Form 8962 to reconcile the amount of APTC you actually received with the PTC that you are entitled to take on your return.
If you purchased your Obamacare policy through an official exchange (which the instructions call a "Marketplace"), then when you enrolled, you told the exchange (Marketplace) certain information about your anticipated 2014 income and family circumstances as part of the enrollment process. Based on what you told them, the Marketplace then quoted to you the premiums for the different levels of plans available from that exchange: for a "Bronze" policy, or a "Silver", "Gold", or "Platinum" policy, and calculated any estimated subsidy, or APTC, to which you would be entitled.
Those premiums they quoted you, and which you subsequently paid, may or may not have reflected a government subsidy, based on your reported income, your family and your other circumstances. The good news is that each Marketplace, or insurer, will have to send you another new form, called "Form 1095-A", which will tell you just how much APTC you received for each month you were insured and paid the premiums under your chosen policy (think of it like a Form 1099 in that regard -- it tells the government that you received some income which otherwise might go unreported).
[UPDATE 02/20/2015: Right on time comes the news that the Government can't even get its own Forms 1095-A right -- the main Website, Healthcare.gov, sent out 800,000 of them to taxpayers who purchased insurance there, but the numbers reported on the Forms were wrong! So all of those taxpayers have been told they will have to wait to get the correct information before they can proceed to figure out their taxes.
Oh, yes -- the same story reports the California insurance exchange site sent out another 100,000 erroneous forms to its customers, too. We don't have any data from the other exchange sites, but you can bet that the same errors crept in for them, as well. Mix garbage in from the consumer or the Website with garbage in from the Government, and what comes out should surprise no one.]
But as we all know now, the enrollment process was severely flawed. So the bad news is that not all of the information you gave to the Marketplace was still correct as of the end of 2014, or was correctly conveyed by the Website to the insurer, or by the insurer back to the insured. As a result, it is anybody's guess at this point whether you will have to pay some subsidy back, or will be entitled to deduct some of it from your taxes. You will have no choice but to try to fill out Form 8962 to find out, because Form 1095-A alone can't tell you what you owe in further taxes, or are owed as a refund. Isn't life under Obamacare marvelous?
Let's try to get a handle on this Form 8962. Take a look at line 1 of the Form: it asks for the size of your family, based on the number of exemptions you claim. So far, so good -- you can take the number directly off line 6d of your Form 1040 or 1040A. (If you're filing Form 1040EZ, something's wrong. People who have to file Form 8962 cannot file a Form 1040EZ. Go back to square one and start again.)
The trouble starts on Line 2. You are told to enter your "modified AGI (see instructions)" on line 2a, and the total of your dependents' modified AGI (see instructions again) on line 2b. "AGI" stands for Adjusted Gross Income, which is a modification to your gross income calculated in a section of your 1040 form. But for Obamacare, they want you to modify that modification still further (thus they call it "MAGI").
The hoary details are on page 4 -- essentially, you have to add back in any foreign earned income, any tax-exempt interest received, and the portion of any Social Security benefits received which were not otherwise taxable. All clear? Did you complete Worksheet 1-1 on page 4 of the instructions?
Good -- because now you have to perform the same add-back calculations for your spouse and each of your dependents who were covered by your Obamacare policy. Good luck on getting your kids to tell you accurately what their AGI for 2014 was, let alone their MAGI.
If you successfully complete line 2, add the amounts to make line 3, the total MAGI for your Form 8962 "coverage family" (which can change from month to month, based on eligibility, and which is not the same as your "tax family" -- see those Instructions, at p. 2). Now you have to enter on line 4 the applicable poverty line number for your State and for the size of your "tax family" from the tables in the instructions. Then divide your total income on line 3 by the poverty line amount on line 4, and convert the decimal answer to a whole number, being careful to follow the special rounding rules for line 5 on page 5 of the instructions.
Now the fun really starts, based on the two- (or three-) digit number you calculated for line 5. Take a look at the instructions for line 6 -- they fill out the rest of page 5 -- and be sure to follow them exactly for your given situation, just so you can answer "Yes" or "No" on that line. If your answer to line 6 is "Yes", you will now generate another percentage amount based on the number you calculated in line 5, by looking up the appropriate percentage in Table 2, which takes up all of page 6 of the instructions, and entering that percentage on line 7. The percentage so found will be somewhere between 2.00% and 9.50%.
Think you're almost done? No way. Now you have to apply the percentage you determined for line 7 to the total income you reported on line 3, and then enter that amount (or its monthly equivalent, divided by 12) into the appropriate boxes in line 8, and also in Column C of Part 2 of Form 8962. This is the portion of your reported total family MAGI which the Obama administration deems you should have been able to pay toward the cost of your insurance (as I said, it will be somewhere between 2% and 9.5% of that MAGI, with the percentage growing as MAGI gets larger than the poverty line figure for your State).
And here the going gets tough, especially if you (like most Americans) had not signed up for Obamacare as of January 2014. Because then you have to calculate your APTC month by month for each of the months in 2014 for which you purchased coverage. See pages 9 through 11 of the instructions for details, and Columns A through F in Part 2 of Form 8962.
And if your marital status changed during 2014, then you have to fill out Tables 3 and 4 and Worksheet 2 on pages 7 and 8 of the instructions in order to know what you have to pay, or what you might receive as a refund. Again, good luck with that -- you might need a "Pub. 974" to help you (see the note about "Pub. 974" below).
We're still nowhere near done with Form 8962. Once you have recorded in the appropriate spaces the monthly premium amounts you paid for Obamacare during 2014, then you need to know the premiums charged for the "Second Least Costly Silver Plan" (SLCSP) that was offered by your exchange, or Marketplace.
Why? Because the Obama administration in its infinite wisdom has determined that the "Second Least Costly Silver Plan" was the plan you should have purchased, all other things being equal. If you bought a more expensive plan, then you probably didn't deserve to receive any subsidies, and will have to pay something back. But if you bought a Bronze Plan, you just might get a tax credit -- stay tuned. You will get the cost of the applicable SLCSP from the information given on your Form 1095-A, and transfer the amount to Form 8962.
Remember that amount you calculated in line 8 of Form 8962? That was the amount that the Obama administration (again, in its infinite wisdom) determined you should have been able to contribute for insurance, given your income and circumstances. So now, in Part 2 of Form 8962, you deduct that amount from the cost of the SLCSP offered by your exchange, and the difference is the maximum PTC to which you are entitled. (If the answer is zero or less, then you should not have received any APTC, and will have to pay it back.)
And the lesser of what you actually paid for premiums, or the maximum PTC thus determined, is the actual PTC you can use for your return. If the PTC so calculated is greater than the APTC you received according to Form 1095-A, then hurrah! You will have a net PTC credit to apply to your income tax due. But if the APTC reported is greater than the PTC you calculated, you owe the difference back to the government, and will have to add that amount to the taxes you otherwise owe (subject to a possible repayment cap, as discussed below).
At this point, I have to ask the ones who purchased Obamacare last year: do you understand how arbitrary the Obama administration is being with Form 8962? First, they introduce a wholly arbitrary concept of your "income", and call it "MAGI". Then they use that number to calculate a wholly arbitrary percentage, which is your arbitrarily determined MAGI divided by an equally arbitrarily determined "poverty line" for a family of your size in your given State (and note how they lump all the 48 continuous states into one single category, while singling out only Alaska and Hawaii).
Finally, they use that arbitrarily found number to determine still another arbitrary number -- namely, the "percent" of your "MAGI" which they consider you should have been able to pay for your insurance. And based on that number, they "decide" whether or not you have been over- or under-subsidized, and penalize / reward you accordingly. All based on their arbitrarily chosen numbers -- and all requiring you to spend a major amount of your time on their required tax calculations.
Shall we see how all this will work out in practice? Here is an actual example from the IRS, taken word-for-word from the Form 8962 Instructions (pp. 10-11):
Melissa and Ryan were married at the beginning of 2014. They have no dependents. They were enrolled under the same qualified health plan through a Marketplace from January through April. Monthly APTC of $1,000 was paid for them, for a total of $4,000. They divorced April 10. Melissa enrolled in single coverage from May through December. Monthly APTC of $100 was paid for her, for a total of $800. Ryan did not enroll in coverage. At the end of the year, Melissa or Ryan will receive a Form 1095-A reporting their coverage for January through April. The recipient of the Form 1095-A should provide a copy to the non-recipient. Melissa will receive a Form 1095-A reporting her coverage for May through December.
For 2014, Melissa's family size is one and her household income is 450% of the Federal poverty line. Ryan’s family size is one and his household income is 410% of the Federal poverty line. Melissa and Ryan agree to allocate the APTC 60% to Melissa and 40% to Ryan. The allocation is only for the period of time Melissa and Ryan were married. The sum of the APTC allocated to Melissa is $2,400 ($1,000 x .6 x 4 months). Melissa must add this sum to her APTC of $800 for her single coverage. She enters the monthly amounts on lines 12–23, column F, and the total of $3,200 on Form 8962, lines 25, 27, and 29. Melissa enters the amount from line 29 on the applicable line of her tax return. The sum of the APTC allocated to Ryan is $1,600 ($1,000 x .4 x 4 months). Ryan enters the monthly amounts on Form 8962, lines 12–23, column F, and the total of $1,600 on lines 25, 27, and 29. Ryan enters the $1,600 from line 29 on the applicable line of his tax return.And now we come to the ultimate arbitrariness: the repayment "cap" they tout as so humane and beneficial. For those whose magic three-digit number calculated for line 5 of Form 8962 is less than 200, the maximum you will have to repay is $300 filing singly, or $600 filing jointly. If your magic number was between 200 and 299, the cap is $750 / $1,500; and if the number was between 300 and 399, the maximum repayment is $1,250 / $2,500. If, like Melissa and Ryan in the example, your number is 400 or greater, there is no limit on your repayment: Melissa has to pay back the entire $3,200 she calculated, and Ryan has to pay back the $1,600 he calculated, for a total of $4,800 in added taxes between them -- all because they signed up for Obamacare.
Isn't government marvelous? First they determine that you need something; then they cram it down your throat, whether you want or need it or not; then they make you pay more for it than they told you it would cost; next they make you spend hours more calculating your taxes so they can be absolutely certain that you got just the amount they determined you needed, and not a penny more; and finally, they sock you with having to pay back any "excess" they say you received (as they make it emerge out of their complex instructions and calculations).
Oh, and one more typical government ploy here: the Instructions for Form 8962 refer many times to a publication that you will need to have to compute your PTC if your marital status changed in 2014. That document is "Pub. 974". Well, good luck finding a copy. As of my writing this post, "Pub. 974" is not listed as an available publication on the IRS Website.
Maybe I should call them? Oh, wait -- I forgot.
If, as more and more of the middle class discover the diabolical complexities of Form 8962, there is not a tax revolt in this country, and a huge groundswell to repeal Obamacare and all of its complex and sulfurous emanations, then there is truly no hope for America. We are just a bunch of sheeple, and fully deserve to be shorn.
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