Eben, i didn't miss that - perhaps i misinterpreted though. The decision to use the words "penalties...shall be paid upon notice...and assessed and collected in the same manner as taxes" is different in my opinion to saying "are taxes", in the same way as me saying "steak shall be eaten with a knife and fork in the same manner as pork" does not make a cow identical to a chicken. Moreover, the second half of the phrase "Except as otherwise provided, any reference in this title to “tax” imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter." does nothing to suggest that the two concepts are necessarily identical in their legal usage outside of the IRC (such as the Constitution), or even within this particular subchapter (which would constitute the "as otherwise provided" exception) - rather, merely that they should be functionally treated as such when interpreting and applying other sections of the IRC. The reason i focused on the other sections were that they addressed how the penalties were intended to function in relation to other taxes in the code, and i thought it may be possible to distill from those functions some distinction between how, when and why the two classes of liabilities were imposed (which it turned out the answer was no). Of course, even if it had, that doesn't necessarily provide us with any direction as to how a court may choose to interpret the constitutionality of a particular liability - as is clearly demonstrated by Taft's opinion - however it may help to identify how and why the word is interpreted and used by different branches of government.

So we agree that the situations are not different. And yes, my "law" is made up. I don't mean to say this is how tax-law actually is, or should be. I am suggesting what my perception of the common notion of taxation is, and trying to compare that to how taxes actually operate in reality.

Is the point then that any action is just a non-action (and vice versa), if we describe it in different terms?

I don't mean to make this all rest on the alchemical invocation of the word "tax." My question is, what are the sorts of situations in which the government can constitutionally lay claim to our money as permitted by the taxing power? If the penalty named in the Affordable Care Act is one of them, it doesn't matter if anyone labels it with the word "tax."

First, this is hypertext we are writing. Don't put a URL in the text, link it to the phrase it amplifies, explains, or (in the case of references like this one) resolves. Second, URL shorteners are disgusting. You're just giving someone else a chance to surveil your readers' reading, hurting their privacy in order to hide from them information they might want to have. Second, you're distorting the link pattern of the web, which makes it harder for people to see whose services are valuable to them. Third, because you should be linking in hypertext, not putting a URL in the text for people to copy, URL shortening serves no valid purpose, because the reader doesn't retype the link anyway. In short, no benefit+harm to others' privacy+misdirection of traffic = poor use of the Web.

But the point is that in fact nothing has changed. The words haven't altered anything at all about what happens. From the perspective of the "bad man," or indeed of any realist, the situations are identical, and to attach any consequences requires invention of what Felix Cohen calls "transcendental nonsense," which your made-up law about "default operations" provides a superb sample of.

What I said above, that you just created a load of nonsense, from the realist point of view. In either event, the law says you must pay taxes on your profit in selling a house unless you buy another one quickly. All your extra words prove is that this is neither a tax on doing nor a tax on not doing, because that distinction is mere verbal trickery.

If we determine that money exacted on the basis on a non-event can't be termed a "tax," and that the Affordable Care Act falls under this head, then we'd have a problem with arguing in favor of the Act under the taxing power.

No, for the reason I pointed out below, that not every action taken under the taxing power constitutes a tax. Congress' power to lay and collect taxes justifies creating agencies, paying salaries, establishing crimes and the penalties for those crimes, regulating business record-keeping, requiring individuals to maintain libraries of information for future consultation, regulating charities, structuring businesses that make up more than a seventh of the entire economy, establishing the nature and governance of trade associations, and much much more.

The conversation seems to have become one about the constitutional status of the ACA, about which , if I may put it gently, the writers here are not fully knowledgeful commentators. Once again, the problem has become trying to prove someone right or wrong. In the process, Holmes' question is being lost, and also proved more valuable. Formalism that isn't competent sounds much the same as formalism that is competent. But incompetent realism, that gets the facts wrong or takes an absurd view of the world inconsistent with what actually happens, is much easier to spot. Hence, says Holmes, if you want an accurate picture of the law, approach it realistically, on the basis that things are what they do, not what they are called, and assume that law is about social action, not logical description.

Can we make solid determinations on these questions?

There are standard forms for citing the Internal Revenue Code. These aren't they, and for good reason. Or you could just cite using the standard form for all US Code citations, 26 USC §6671(a), for example (defining all "penalties" as "taxes" within the meaning of the IRC). [Oh, did we miss something?]

is that the penalty carries the option of being supplemented by additional liabilities above the originally determined tax liability as determined by the particular piece of legislation that authorized the particular penalty - which in itself is i guess a form of "non-compliance" tax. Taft's attempt to associate "penalties" with executive regulation power (as opposed to legislative taxation power) seems counter to the actual examples of penalties as described in that part of the tax code - all of them lay out specific rules and amounts for determining what penalties to impose, rather than leaving it to regulatory discretion (with a few exceptions for possible waivers). This might be an attempt to ensure that the "penalties" are dispersed uniformly as articulated by the Constitution, which would go towards the case that it is merely another form of tax.

Turning it into a choice of whether to positively qualify for the rebate certainly seems to transform the question into one of affirmative volition, rather than latent inaction. At least I think that is what the hypothetical is aiming at. Also, wrapping up the tax-penalty in the framework of the income tax adds a layer of complication onto things, making it that much more difficult to identify the tax-penalty as one or the other (or both). At its core though, I don't see the situation as being very different, since the additional tax-penalty (now piggybacked onto the income tax), is still hinging on an refusal to take special action. The default operation in both situations is that people will be losing additional money to the government, unless and until they go out of their way to avoid it.

The idea of a positive transaction being the touchstone of a properly-named "tax" takes the default operation to be that people won't be losing additional money to the government, unless and until something about the status quo changes.

Here's the way the situation looks to me, but I'd be happy to hear other ways of interpreting. At T1, I own my original house. At T2, the house has been sold (at a profit over my basis). At T3a, I have bought another house. On the other hand, at T3b, 18 months have passed, I haven't bought another house, and I must now pay a capital gains tax. At T1, the status quo is that I own a house (and, ignoring property taxes and everything, I won't have to pay any additional taxes on it). In moving to T2, I have upset the status quo by choosing to engage in an activity that brings with it a capital gains tax. The tax, therefore, is tied to the positive action of my earning money by selling something. If I go to T3a, the tax is forgiven on account of whatever policy aims that serves. If I go to T3b, then the tax comes due, and I must pay it. It can appear that the tax is only being forced upon me by virtue of my failure to buy another house, and maybe it is, from a certain viewpoint. At the same time, however, it shouldn't be forgotten that I found myself in T2 only as a result of my own choice to leave T1. The move from T2 to T3b is certainly the result of personal non-action, but is the tax excised on account of the move from T1 to T2, or the move from T2 to T3b? I gravitate toward the former, but what would Holmes say?