Lawrence O'Donnell Calls GOP Congressman a 'Tax Criminal' for Sleeping in His Office

It's common knowledge that members of Congress have been sleeping in their offices for decades.

Despite this, MSNBC's Lawrence O'Donnell on Wednesday repeatedly called Rep. Jason Chaffetz (R-Ut.) a "tax criminal" for doing so (video follows with transcript and commentary):

LAWRENCE O’DONNELL, HOST: You're living in your office. You've been living in your office for two years now in the House of Representatives?

REPRESENTATIVE JASON CHAFFETZ (R-UTAH): No, I live in Alpine, Utah. That's where my home is.

O’DONNELL: Oh, that's your answer on your tax return, right? Because have you filed on your 2009 tax return, have you filed the equivalent income you have in effect received by illegally living for free in a federal building?

CHAFFETZ: I reject the whole premise of what you're saying there. I live in Alpine, Utah. That's my home. I work here in Washington.

O’DONNELL: Where are you sleeping tonight?

CHAFFETZ: I work here in Washington, D.C. They asked me to come to the floor at 2:00 in the morning. I am not sure I’m going to be sleeping anywhere tonight because we’re going through a continuing resolution.

O’DONNELL: Congressman, you have given yourself…

CHAFFETZ: That is the reality. The reality is I will not necessarily go to sleep tonight.

O’DONNELL: Congressman, you have seized, you have illegally seized from the federal taxpayer a personal income benefit that saves you the rent money that you would pay in Washington like all of your fellow Congressmen who are responsible, who pay rent in Washington. How much money do you save by not paying rent in Washington? Would you say you save $20,000 a year off your $175,000 salary?

CHAFFETZ: Oh, it depends on month to month. I mean…

O’DONNELL: Do you declare that savings as income as you are legally obliged to do or are you sleeping in your office as a tax criminal?

CHAFFETZ: I reject the whole premise of your question and the way you phrased it. I am trying to save money for myself, my family.

O’DONNELL: For your personal income you are deriving. You are deriving additional personal income of your $174,000 of House income, you get to save more of it because you sleep in the office. Have you declared that additional income benefit on your tax return with a dollar figure?

CHAFFETZ: The way you phrase it, absolutely not. I am trying to be fiscally responsible for my family. I live in Alpine, Utah. That’s where my mortgage is.

O’DONNELL: Have you sought an advisory opinion from the IRS that it is a legal tax behavior of yours…

CHAFFETZ: No, no.

O’DONNELL: …to not declare that as income?

CHAFFETZ: I have not sought a tax opinion from the IRS, no.

O’DONNELL: Would you seek an advisory letter from the IRS as to whether or not you can derive that additional in kind income from the House of Representatives without declaring it on your tax return?

CHAFFETZ: I have not sought to do that.

O’DONNELL: Will you seek to do it tomorrow, write a letter to the IRS director and ask for an advisory opinion?

CHAFFETZ: No, I don't think so.

O’DONNELL: Alright, we will ask for that advisory opinion for you, Congressman.

If O'Donnell and Company hadn't already done that, how did they know Chaffetz was doing anything wrong? Despite this, the badgering continued:

O'DONNELL: And by the way, $174,000. Does your wife have any income or is that your total family income?

CHAFFETZ: Total family income.

O’DONNELL: And you cannot afford on $174,000 a way to live in Washington legally without becoming a tax criminal in the process?

CHAFFETZ: Boy, you got up on the right side of the bed, didn't you? Look, I am trying to be a responsible family man. I’m trying to do the right thing for me and my family.

O’DONNELL: How much is your housing in Alpine, Utah? How much is your monthly housing nut, $1500?

CHAFFETZ: No, it’s about $2,000. My mortgage is about $2,000 a month.

O’DONNELL: And that's deductible, that interest is deductible.

CHAFFETZ: Well, look, I've got to make personal choices for me and my family. I’m trying…

O’DONNELL: You're trying to make the most money, you’re trying to make the most money you can…

CHAFFETZ: I’m trying to answer your question.

O’DONNELL: You’re trying to make the most money you can from the House of Representatives by sleeping on your sofa and not declaring the additional in effect income benefit you get from it.

CHAFFETZ: I am trying to be as responsible as I can for the Chaffetz family. I’m trying not to go into debt. I have a mortgage payment and have a car payment. Other than that, I try to avoid all the consumer debt that I possibly can.

O’DONNELL: Do you think your fellow House members that pay their own rent in Washington are more responsible about this than you are?

CHAFFETZ: No, they’ve got to make choices for themselves. I am one of dozens who do what I do, and on both sides of the aisle. And we're just trying to be frugal.

O’DONNELL: Have you checked what any of your colleagues about whether they file the benefit on their income tax return?

CHAFFETZ: No, no, I have, absolutely, it’s none of my business.

O’DONNELL: So as far as you know, the rest of them are tax criminals, too?

CHAFFETZ: No, no, that's ridiculous.

O’DONNELL: Alright, Congressman Jason Chaffetz, get straight with the IRS. Republican of Utah. Thank you very much for joining us tonight.

And that's how a Republican member of Congress gets treated by an MSNBC commentator for sleeping in his office when Congress is in session. Chaffetz must have felt that he had just gone through root canal.

For some background, this all began last Thursday when Citizens for Responsibility and Ethics in Washington filed a complaint with the Office of Congressional Ethics:

Living in a House office violates the prohibition on using taxpayer resources for anything other than the performance of official duties. The Members' Handbook states that the Member Representational Allowance may not be used for personal expenses.

Further, under the Internal Revenue Code, members who sleep in their offices are receiving a taxable benefit. The IRS treats lodging as a taxable fringe benefit unless it is offered on the employer's business premises, is for the employer's convenience, and is required as a condition of employment. As living in a House office clearly is not a condition of serving in Congress, members must pay taxes for imputed income based on the fair market value of their lodging.

Notably, members of Congress and congressional staff already have imputed taxable income based on the fair market value of their reserved parking spaces. If members must pay taxes to lodge their cars, surely they must pay taxes for their own lodging.

At this point, OCE has yet to comment, but in reality, this isn't anything new. As the New York Times reported in January:

Hansen Clarke, a newly elected Democrat from Michigan, is coming to Washington with a “warrior’s mentality” to help stave off unemployment and foreclosures in metro Detroit. He plans to hole up in his “bunker” — his Longworth House office, where he will work (“practically around the clock”), eat (“healthy options” like microwaved sweet potatoes) and sleep (most likely on a mattress and sleeping bag combination).

“Washington is not going to be a home for me — I’m only there to work,” Mr. Clarke said. “I need to be able to work up to 20 hours a day and still get some decent sleep, and if I sleep in my office I’ll be able to do that.”

Mr. Clarke is one of as many as a dozen freshman House members who plan to bunk in their offices when Congress is in session. Though no one has hard numbers, anecdotal evidence suggests that at least 40 to 50 House members, both new and old, will be sleeping at work.

For many of them, joining the unofficial Couch Caucus is a practical way to save money and a symbolic gesture that they are both fiscally conservative and serious about changing how business is done in Washington. [...]

Sleeping in Capitol Hill offices, which is not a new practice, became especially popular when Dick Armey decided to bunk near his desk, said Kirsten Fedewa, who worked on the Hill as a press secretary in the 1990s.

“When members realized he was doing it, he made it really in vogue,” Ms. Fedewa said. “It was kind of like, wow, the icon is doing it, it makes a lot of sense.”

The Chicago Tribune wrote about this matter last May:

It's going on 10 p.m. when House Democrat Mike Quigley, in track pants and a T-shirt, tosses a flimsy mattress on the floor of his congressional office and prepares to call it a night.

The 51-year-old Democrat from Chicago regularly sleeps there. Several other members of the House of Representatives, perhaps as many as one in 10, also bunk out in their offices, according to estimates.

Quigley and other House members, who earn $174,000 a year, cite two reasons for taking advantage of this little-known perk. One is frugality. The other is image. [...]

University of Baltimore School of Law professor Charles Tiefer, formerly with the House general counsel's office, thinks the number of office sleepers has jumped in the past 20 years. He said lawmakers do it to signal loyalty to their home turf. "It's hard to call someone 'too Washington,'" he said, "when they don't have even the most limited and humble dwelling."

The Wall Street Journal wrote in November:

In the mid-1980s, then-Speaker Tip O'Neill (D., Mass.) rousted the office sleepers, including Texas Republican Dick Armey, who later became House majority leader and is now a booster of the anti-Washington tea-party rebellion. "The theory was the offices weren't for sleeping," says Stan Brand, who was House general counsel at the time. "They were for transacting business."

Mr. Armey moved out briefly, then quietly started sleeping on his office couch again, according to a former aide.

After Republicans took the House in 1994, ending four decades of Democratic control, the number of office sleepers grew. The new speaker in 1995, Georgian Newt Gingrich, gave the practice his blessing.

As such, what O'Donnell conveniently ignored while he was accusing Chaffetz of being a tax criminal was that this has been going on in Washington for decades. What he also neglected to tell his viewers was that OCE has yet to rule on this issue, and until it does, it's not at all clear Chaffetz is doing anything wrong let alone violating any laws.

According to James Edward Maule, a law professor at Villanova University:

CREW could be correct, but it requires tax analysts to answer several difficult questions in particular ways to reach the same conclusion. 

First, CREW contends that members of Congress are receiving lodging, and that it is taxable because it is not provided as a condition of employment, as required by § 119 for the lodging to qualify for exclusion from gross income. CREW points out that no member of Congress is required to live in their offices. Though this conclusion is debatable – certainly when Congress meets late into the evening or overnight, as sometimes happens, one might reasonably infer that members are required to remain on the premises – the difficulty with the analysis is that it presupposes that the government is providing “lodging” when a member of Congress stays overnight. But does an office constitute “lodging” simply because someone falls asleep therein? Or because someone takes a nap therein? [...]

Yet, though the answer well might be that the tax law does not require taxing members of Congress when they sleep in their offices because they are working 16 hours a day, or that even if the tax law requires taxation, administrative impediments prevent the IRS from doing so, there is a part of me that “feels right” taxing members of Congress on the many fringes and perks they have appropriated unto themselves. Compared to some of the other things they get, “free” use of a sofa or the floor, and “free” use of a shower pale in comparison, both in terms of dollar amounts and in terms of the message it sends. Somehow, sleeping on an office floor during long sessions doesn’t spark the same outrage as does access to high-end health care plans and retirement plans far more generous than what all but the wealthiest Americans enjoy.

Somehow, I doubt these tax issues will ever be litigated. Nor do I think they’ll ever be the direct object of legislative tax changes.

Which means that O'Donnell should have waited to excoriate Chaffetz until OCE had made a ruling on this matter determining that the many members of Congress sleeping in their offices should indeed pay taxes for this benefit or stop doing so.

At that time, O'Donnell should also have informed his viewers that this is not a partisan issue for Democrats are sleeping in their offices as well.

Or would that be too much like journalism for an MSNBC commentator with an agenda?