The Telephone Excise Tax: An Economic Analysis
Prepared for Members and Committees of Congress
The federal telephone excise tax generated $5.0 billion in revenue in fiscal year (FY) 2006.
Beginning in 2004, however, many taxpayers, individual and corporate, challenged the legality of
the telephone excise tax as it applied to toll (long distance) telephone services. Recent court
rulings have supported the taxpayers’ position that long distance toll services are not taxable and
have ordered refunds. On May 25, 2006, the U.S. Treasury Department conceded defeat and
announced that the Department of Justice “will no longer pursue litigation and the Internal
Revenue Service (IRS) will issue refunds of tax on long-distance service for the past three years.”
On August 31, 2006, the IRS announced individual taxpayers can file for a refund, to be included
with their returns for the 2006 tax year, that varies from $30 to $60 based on family size.
This decision has initiated further congressional review of the remaining tax on local telephone
services. Options include repealing or significantly modifying the structure of the telephone
excise tax. Complete repeal of the tax, both the local and long distance portions, had been
estimated by the Congressional Budget Office (CBO) to cost $67.0 billion over the FY2006 to
FY2015 budget window. More recently, CBO estimated that repeal of the remaining excise tax on
local telephone services would cost approximately $3.3 billion over the 2008 to 2017 budget
window, while the Administration’s FY2008 budget also proposes the same repeal and estimates
the cost at $1.2 billion over the 2008 to 2017 budget window.
Administering the tax is relatively simple for the federal government, as third parties collect the
tax and monitor compliance. From the standpoint of economic theory, the tax is regressive and
does not treat similarly situated taxpayers equally. In addition, economic theory suggests the tax
is inefficient, reducing overall economic welfare.
In the 109th Congress, S. 1321 and its companion, H.R. 1898, would have repealed the telephone
excise tax entirely. On June 28, 2006, S. 1321 was approved by the Senate Finance Committee. In th
the 110 Congress, S. 140 and S. 170 would repeal the remaining tax on local telephone services,
and S. 1123 would provide, to businesses, an extension for filing a refund request and safe harbor
protection when using the formula for calculating refunds created by the bill. In the House, H.R.
1194 continues to add cosponsors, currently 116, and would repeal the remaining tax on local
This report provides a brief history, description of the legal issues prompting scrutiny, and
economic analysis of the tax. The report concludes with a discussion of legislative activity and th
options for the 110 Congress. For a history of the telephone excise tax, see CRS Report
RL30553, The Federal Excise Tax on Telephone Service: A History.
This report will be updated as legislative events warrant.
Brief History of the Telephone Excise Tax......................................................................................1
Effici ency .................................................................................................................................. 5
Telephone Excise Tax Revenue.................................................................................................6
Table 1. Selected Excise Tax Revenue, 1998 to 2006, and 2017....................................................6
Author Contact Information............................................................................................................8
The federal excise tax on telephone calls (also known as the communications tax) originated on
long distance service under the Spanish War Act of 1898 (P.L. 55-133). The tax was repealed in
1902 but reenacted as the United States prepared to enter World War I, under the Emergency
Internal Revenue Tax Act of October 22, 1914 (P.L. 63-217). In December 1915, the tax was set to
expire, when Congress decided to keep it in force for another year. On January 1, 1916, the tax
did expire, though for only a little more than nine months, at which time it was reenacted under
the War Revenue Act of October 3, 1917 (P.L. 65-50). In 1924 the tax was repealed; it remained
so until the passage of the Revenue Bill of 1932 (P.L. 72-154). The enactment of this 1932 law
was justified by its proponents as a way to pay down the federal budget deficit which followed
the decline in income tax receipts during the Great Depression. A few months before the United
States’ entrance into World War II, the tax was broadened by the Revenue Act of 1941 (P.L. 77-
Since the enactment of the federal telephone excise tax in 1932, the tax has been continuously in
effect—though in the 1960s, 1970s, and 1980s, the tax was repeatedly extended on a temporary
basis. In general, the laws under which the tax operated called for a gradual phase-down in the tax
rate before total repeal of the tax. Often, revenue problems surfaced before the repeal date, and
Congress responded by either increasing the rate, or maintaining the rate and extending the
scheduled date for proposed repeal.
Before passage of the Revenue Reconciliation Act of 1990 (P.L. 101-508), the tax was scheduled
to expire on December 31, 1990. The 1990 Act permanently extended the tax at a 3% rate. The
rationale for continuance was that budget deficits precluded allowing the tax to expire. Over the
telephone tax’s long history, exemptions from the tax have been provided to governmental
customers, the American Red Cross, nonprofit educational organizations and nonprofit hospitals,
common carriers, and radio and television broadcasting stations, among others.
There was a general lull in major legislative events from 1990 until around 2004, when the courts
began seeing challenges to the tax (see the next section, “Legal Issues”). In early 2005, the Joint 2
Committee on Taxation and CBO issued reports that studied changes to the tax, and Members of th
the 109 Congress followed these studies with the introduction of several bills (see the
“Legislative Activity” section below).
The Internal Revenue Code continues to mandate that a 3% telephone excise tax on private
charges should be levied on the following services: (1) local telephone service, (2) toll telephone 3
service (i.e., long distance), and (3) teletypewriter exchange service. The focus of recent
1 For a legislative history of the telephone excise tax see CRS Report RL30553, The Federal Excise Tax on Telephone
Service: A History, by Louis Alan Talley.
2 See U.S. Congress, Joint Committee on Taxation, Options to Improve Tax Compliance and Reform Tax Expenditures,
109th Cong., 1st sess., JCS-02-05 (Washington: January 27, 2005), pp. 368-378; U.S. Congressional Budget Office,
Budget Options (Washington: February 2005), p. 333.
3 26 U.S.C. § 4251.
litigation was the definition of toll telephone service. In particular, in the tax code, a toll
telephone service means, in part,
a telephonic quality communication for which ... there is a toll charge which varies in the 4
amount with the distance and elapsed transmission time of each individual communication
Before May 25, 2006, the IRS had taken the position that the toll charge may vary according to
distance or elapsed transmission time. However, the courts have ruled in favor of taxpayers who
claimed that distance and time are required by the law. Then, on May 25, 2006, the Treasury
Department announced that the Department of Justice
will no longer pursue litigation and the Internal Revenue Service (IRS) will issue refunds of
tax on long-distance service for the past three years. Taxpayers will be able to apply for 5
refunds on their 2006 tax forms, to be filed in 2007.
More precisely, collection of the tax on long distance telephone service and bundled local and
long distance service (including cell phone service) ended after July 31, 2006. Taxpayers who are
charged under a local-only telephone service plan or a plan that separates charges for local and 6
long distance services continue to have the tax collected on their local service charges.
OfficeMax Inc. v. United States argued before the 6th Circuit Court of Appeals on July 29, 2005,
and decided on November 2, 2005, highlights the legal issues and arguments that eventually led 7
to the announcement above terminating collection of the tax on long distance services.
OfficeMax challenged the legality of the excise tax in claims made on April 6, 2002, and
February 13, 2003, and requested a full refund of excise taxes paid of $380,296.72. OfficeMax
argued that its phone service provider, MCI, was not providing “a telephonic quality
communication for which there is a toll charge which varies in amount with the distance and 8
elapsed transmission time of each individual communication ...” [emphasis in the original]. The
OfficeMax toll telephone service charges (i.e., long distance) were based primarily on elapsed
transmission time and not distance. Thus, OfficeMax argued, the phone service offered by MCI
was not as defined in tax law and therefore not subject to the telephone excise tax. On November
4 26 U.S.C. § 4252(b)(1). IRC § 4252(b) defines “toll telephone service” to mean:
(1) a telephonic quality communication for which (A) there is a toll charge which varies in amount
with the distance and elapsed transmission time of each individual communication and (B) the
charge is paid within the United States, and
(2) a service which entitles the subscriber, upon payment of a periodic charge (determined as a flat
amount or upon the basis of total elapsed transmission time), to the privilege of an unlimited
number of telephonic communications to or from all or a substantial portion of the persons having
telephone or radio telephone stations in a specified area which is outside the local telephone system
area in which the station provided with this service is located.
5 IRS Notice 2006-50, Internal Revenue Bulletin 2006-25, June 19, 2006.
7 OfficeMax Inc. v. United States, 428 F.3d 583 (6th Cir. 2005). On March 30, 2006, the court denied the government’s
motion for the case to be reheard by the full court. OfficeMax Inc. v. United States, No. 04-4009, 2006 U.S. App. th
LEXIS 8294 (6 Cir. March 30, 2006).
8 Id. at 587.
and elapsed transmission time in order to be taxed. We thus hold for the taxpayer and affirm.”
The OfficeMax ruling was one of several IRS losses in court on this issue.10 Because of the
continued IRS court losses, volume of pending suits, and willingness of the Treasury Department
to eliminate the tax, the potential loss of revenue was foreseen and factored into federal revenue 11
projections at the time. The CBO revenue projection for telephone excise taxes assumed that
“there is a significant likelihood—about 75 percent—that the IRS will acquiesce or lose those 12
cases by 2007 and the tax on toll services will be terminated.”
On August 31, 2006, the IRS announced individual taxpayers would be able to file for a standard 13
refund that varied from $30 to $60 based on family size. The refund request would be filed
along with the individual income tax return for the 2006 tax year. Taxpayers also had the option
of analyzing old telephone bills and submitting a claim for actual taxes paid since February 23,
to claim a refund for telephone excise taxes paid before February 28, 2003, as well.
The refunds, to have been issued in 2007, were expected to approach $13 billion. Actual refund
requests appear to be falling short of expected totals. In April 2007, the Government
Accountability Office (GAO) released a report detailing the telephone tax refund requests by 15
individual taxpayers as of March 24, 2007. In this report, GAO segmented individual filers into
those taxpayers who were obliged to file tax returns based on economic activity separate from the
telephone tax and those taxpayers who had no obligation to file taxes. Approximately two-thirds
of the returns received from individuals who were otherwise obliged to file included a request for
the telephone tax refund. In contrast, only about 2% of the projected 10 million to 30 million
requests from individuals without a tax filing obligation were received. In addition to challenging
the refund method in court, in at least one case, a taxpayer has argued that the lower than
expected number of requests for refunds received by the IRS so far indicates that many of those 16
eligible for a refund have not been adequately notified.
9 Id. at 584-85.
10 See Am. Bankers Ins. Group v. United States, 408 F.3d 1328 (11th Cir. 2005), reversing 308 F. Supp. 2d 1360 (S.D.
Fla. 2004); Am. Online, Inc. v. United States, 64 Fed. Cl. 571 (Ct. Cl. 2005); Honeywell Int’l, Inc. v. United States, 64
Fed. Cl. 188 (Ct. Cl. 2005); AMTRAK v. United States, 338 F. Supp. 2d 22 (D.D.C. 2004); Hewlett-Packard Co. v.
United States, No. 04-03832, 2005 U.S. Dist. LEXIS 19972 (N.D. Cal. August 5, 2005); Reese Bros. v. United States,
No. 03-745, 2004 U.S. Dist. LEXIS 27507 (W.D. Pa. October 20, 2004); Fortis, Inc. v. United States, No. 03 Civ.
5137, 2004 U.S. Dist. LEXIS 18686 (S.D.N.Y. September 16, 2004).
11 Kurt Ritterpusch, “Snow Says Court Ruling Could Spell End to Enforcement of Telephone Excise Tax,” BNA Daily
Tax Report (February 16, 2006).
12 U.S. Congressional Budget Office, The Budget and Economic Outlook: Fiscal Years 2007 to 2016, January 2006, p.
97. Nevertheless, the IRS issued a notice on November 15, 2005, that the service would continue to assess and collect
the tax under § 4521 on all taxable communication services, including communications services similar to those at
issue in the cases. Internal Revenue Service, Notice 2005-79, Communications Excise Tax; Section 4251, November
14, 2005. This ruling was revoked by IRS Notice 2006-50.
13 Internal Revenue Service, Notice 2006-137, IRS Announces Standard Amounts for Telephone Excise Tax Refunds,
August 31, 2006.
14 Stephen Joyce, “Five Class Actions Federal Cases Launched On Telephone Excise Taxes, Refund Method,” BNA
Daily Tax Report (July 14, 2006).
15 Government Accountability Office, Tax Administration: Telephone Excise Tax Refund Requests Are Fewer Than
Projected and Have Had Minimal Impact on IRS Services, GAO-07-695 (Washington: April 11, 2007).
16 Plaintiff’s Amended Class Action Complaint, RadioShack Corporation v. United States, (Fed. Cl. 2007) (No. 06-
As the debate surrounding the future of the remaining excise tax on local phone service continues,
it is, perhaps, instructive to evaluate the tax from an economic perspective. Economists and
public finance experts typically evaluate a tax using the following criteria. First, how simple is
the tax to administer? Second, is the tax an equitable tax, or do taxpayers in similar economic
situations encounter dissimilar tax liability? Equity could also be measured by the change in
burden as income rises, or the degree of progressivity. And, third, does the tax generate revenue
The 3% telephone excise tax is relatively easy to administer because a third party,
telecommunications companies, collects the tax for the IRS. Enforcement is also relatively simple
as service providers could stop providing service for nonpayment of taxes. Note, however, that
collecting the telephone excise tax on behalf of the IRS does increase the complexity of tax
compliance for telecommunications companies. The termination of the tax on long distance
services could increase the complexity as telephone service providers will need to account
separately for long distance and local services. Nevertheless, from the perspective of the federal
government, the telephone excise tax is simple and almost costless to administer.
Economists usually evaluate the equity of a tax in two directions, horizontal and vertical. The
repeal of the excise tax on long distance services has marginally improved horizontal equity,
while vertical equity has worsened. Evaluating horizontal equity entails comparing the tax
liability of similarly situated individuals. Evaluating vertical equity entails comparing the tax
liability of tax units residing in different income levels. The degree of progressivity (or
regressivity) of a tax is an often-used descriptor of vertical equity.
The telephone excise tax does not treat similarly situated individuals equally, thus deviating from
the principle of horizontal equity. Two families of the same size and income level could pay
significantly different federal taxes based on local telephone service charges. Horizontal equity in
public finance means like individuals (or families), based on income or consumption, should
encounter roughly the same tax liability. With the telephone excise tax, two families with roughly
the same total consumption or income could pay different (more or less) federal taxes because of
differences in the amount charged for their local telephone services. The recent Treasury
announcement, ending the tax on long distance services, likely increased the horizontal equity of
the tax as the variation in local telephone service costs do not vary as dramatically as long
28T). IRS efforts to publicize information about the telephone tax refunds can be examined, in part, from information
on the IRS website, available at http://www.irs.gov/newsroom/article/0,,id=164032,00.html.
Assessing the vertical equity of the telephone excise tax requires examining the tax as it applies to
two types of services: local telephone and long distance. Local telephone service is generally
believed to be a normal good (a necessity) and long distance service more like a luxury.
A progressive tax regime is characterized by high income taxpayers paying a larger share of their 17
income in taxes. Typically, economists and political theorists posit that a vertically equitable tax 18
regime is a progressive tax regime. Excise taxes are almost always classified as regressive taxes,
since they do not take into account the individual’s ability to pay.
The telephone excise tax on local telephone service, which does not vary by level of consumption
or income, is a regressive tax. In contrast, the now eliminated telephone excise tax on long
distance telephone service, a service which could be considered more akin to a luxury, was less 19
regressive. As noted above, a regressive tax is generally not considered vertically equitable.
Repeal of the excise tax on toll and wireless services has, on balance, improved the telephone
excise tax’s economic efficiency. Economic theory and public finance experts posit that a tax
should not change the consumption decisions of taxpayers. Changing the consumption patterns of
taxpayers results in the skewed allocation of resources away from the taxed good to other goods.
The loss in economic efficiency can sometimes exceed the revenue generated by the tax if
consumption patterns change significantly.
On the other hand, optimal tax theory suggests that goods with very inelastic demand (i.e.,
demand that does not change much with a change in prices) should face relatively higher taxes.
The logic behind this theory is that, in general, government should not be influencing economic
decisions. Therefore, because tax policy is a tool of government, tax policy should attempt to
avoid influencing or changing the economic decisions of individuals. The less individuals change
their behavior in response to a tax (i.e., a price increase) the more the economic efficiency loss is
minimized. Though compelling in theory, for equity and fairness reasons, applying optimal tax
theory would seem misplaced for telecommunications services generally and local telephone
Excise taxes are sometimes justified either to correct for a market failure or to discourage
consumption of a good or service to ultimately benefit society. Economic efficiency is improved
in both scenarios with some type of selective tax. The telephone excise tax, however, is unlike the
other prominent selective excise taxes. For example, the gasoline excise tax is often identified as
a tax designed to correct a market failure. In this case, the market failure is the inability of the
17 Some economists use the term “equal sacrifice.” Equal sacrifice relies on the tenet that the last dollar of income is
worth less to a high-income taxpayer than to a low-income taxpayer.
18 The degree of progressivity is not as well settled. For purposes here, it is assumed that even a mildly progressive tax
regime would achieve vertical equity.
19 Jerry Hausman, Taxation by Telecommunications Regulation, National Bureau of Economic Research, Working
Paper no. 6260, November 1997, p. 12. An income elasticity of greater than one means, for example, that a 1% increase
in income generates a greater than 1% increase in demand for a good. Hausman states that “...the income elasticity of
demand of long distance demand is about 1.0.” This implies that long distance service could be a luxury good.
competitive market system to fully account for the cost to society of burning fossil fuels. The
gasoline excise tax, it is argued, helps correct this market failure through internalizing this cost 20
and is therefore an efficiency improving tax.
Excise taxes on tobacco and alcohol, on the other hand, are not correcting for an explicit market
failure. Supporters of these so called “sin taxes” argue that the negative impact on society of
alcohol and tobacco consumption merit taxing these goods to discourage their consumption.
Economic theory suggests that if an excise tax does not correct for some market failure or does
not intend to achieve some societal goal, then the tax almost certainly reduces overall economic 21
efficiency. The telephone excise tax does not meet either criterion. Nevertheless, if local service
is indeed a necessity, the remaining tax on local telephone services is very efficient in that
taxpayers cannot easily change behavior to avoid the tax.
Although the telephone excise tax generated $5.0 billion in revenue in FY2006 this revenue
represents just 0.21% of total federal revenue. Table 1 reports the revenue generated by the
telephone, tobacco, and alcohol excise taxes since FY1998. These excise taxes individually
represent a relatively small portion of total excise revenue collected. Table 1 also reports the
projected revenue generated by the taxes in FY2017 and the percentage of total federal revenue
generated by the telephone excise tax.
The CBO estimates that telephone excise tax revenue will comprise, at most, $100 million of total
federal revenue in 2017. This sharp relative decline reflects the CBO belief at the time the
estimates were published, that the IRS will lose the revenue generated by the excise tax on toll
telephone services. The announcement that the refunds for taxes paid on long distance services
will be approximately $13 billion implies that about 75% of the excise tax revenue over the last
three years was from the tax on long distance services.
Table 1. Selected Excise Tax Revenue, 1998 to 2006, and 2017
($ in billions)
Excise Tax Receipts
Total Percent of Tobacco Alcohol
1998 1,722 59.2 4.7 0.27% 5.7 7.6
1999 1,828 72.1 5.2 0.28% 5.3 7.9
2000 2,026 70.6 5.6 0.28% 7.2 8.1
20 In addition, the gas tax is sometimes viewed as a “user fee” for the use of federally financed roads. This is another
argument for using a selective excise tax: it can be used as a benefit tax.
21 For more, see U.S. Department of the Treasury, Office of Tax Analysis, Report to Congress on Communications
Services Not Subject to Federal Excise Tax, August 1987.
Excise Tax Receipts
Total Percent of Tobacco Alcohol
2001 1,991 68.2 5.7 0.29% 7.4 8.1
2002 1,853 69.2 5.8 0.31% 8.3 8.4
2003 1,783 69.5 5.8 0.33% 7.9 8.5
2004 1,880 71.8 5.8 0.31% 7.9 8.7
2005 2,154 73.0 5.9 0.27% 8.7 8.6
2006 2,407 74.0 5.0 0.21% 8.7 8.8
2017(p) 4,284 90.0 0.1 0.00% 7.7 11.5
Sources: Excise tax receipts for 1998 through 2005 are from the IRS, Federal Excise Taxes Reported to or
Collected by the Internal Revenue Service, Alcohol and Tobacco Tax and Trade Bureau, and Customs Service. Total
revenue through 2006 are from the Office of Management and Budget, Economic Report of the President, February
2007, Table B-78, p. 323. Data for 2017 and 2006 excise tax receipts are from the Congressional Budget Office,
The Budget and Economic Outlook: Fiscal Years 2008 to 2017, Table 4-7, p. 95.
Note: (p) Indicates projected revenue.
In the 109th Congress, S. 1321 and its companion, H.R. 1898, would have repealed the telephone 22
excise tax entirely. On June 28, 2006, S. 1321 was approved by the Senate Finance Committee
by voice vote. The House version was sponsored by Representative Gary Miller, and it had
bipartisan support with 220 cosponsors (as of September 7, 2006). In February 2007, the CBO
estimated that repeal of the remaining excise tax on local telephone services would cost 23th
approximately $3.3 billion over the 2008 to 2017 budget window. In the 110 Congress, S. 140
and S. 170 would repeal the remaining tax on local services, and S. 1123 would provide, to
businesses, an extension for filing a refund request and safe harbor protection when using the
formula for calculating refunds created by the bill. In the House, H.R. 1194 continues to add
cosponsors, currently 116, and would also repeal the remaining tax on local telephone services.
Supporters of the repeal legislation cite the efficiency losses associated with the tax as well as the
regressive characteristics of the tax described earlier in this report.
Opponents of outright repeal cite the revenue loss if the tax were completely repealed. Bolstering
this argument is the size of the current budget deficit and the prospect for continued deficits well
into the future. The budget issues become particularly acute if proposals to make the tax cuts 24
permanent become law. The estimated revenue cost over the 2008 to 2017 budget window of
making permanent (1) estate tax repeal ($498.8 billion) and (2) the individual income tax
22 Another bill, S. 758, would prohibit the extension of the federal telephone excise tax to Internet access services.
23 U.S. Congressional Budget Office, Budget Options 2007 (Washington: February 2007) p. 326.
24 See CRS Report RS22045, Baseline Budget Projections Under Alternative Assumptions, by Gregg A. Esenwein and
provisions of Economic Growth Tax and Relief Reconciliation Act of 2001 (EGTRRA; P.L. 107-25
Opponents of repeal also note the administrative simplicity of the tax and its relatively high
One intermediate option that would improve the economic efficiency of the tax would be to
amend existing law so that all communications services are taxed at the same rate. Without credits
or transfers to lower-income taxpayers, however, the tax would still fail the test of vertical equity.
Horizontal equity would also suffer, as different consumption choices would change the burden of
taxes across equally situated individuals.
From an economic perspective, the repeal of the excise tax on toll and wireless services has had
uneven effects. The repeal has increased the regressivity of the telephone excise tax but
marginally improved its economic efficiency. Economic efficiency has been improved because
local services are, practically speaking, a necessity; and, as such, individuals would not change
their behavior in response to the tax (at least in the near term). Vertical equity suffers for the same
reason efficiency is increased. Local services are typically levied at a fixed rate, thus lower-
income taxpayers will encounter the same tax liability as high-income taxpayers. Horizontal
equity may be marginally improved, as tax liability would not depend on consumption of long
distance services, and charges for local services would not vary across taxpayers. How
telecommunications companies respond to changes in the tax law will likely have a significant
effect on the overall efficiency and equity of a retooled telephone excise tax regime.
Steven Maguire Brent W. Mast
Specialist in Public Finance Assistant Section Head-RSI Section
email@example.com, 7-7841 firstname.lastname@example.org, 7-6293
25 Congressional Budget Office, The Budget and Economic Outlook: Fiscal Years 2008 to 2017 (Washington: January
2007), Table 4-10, pp. 102-107.