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Killexams : ACT Section test prep - BingNews https://killexams.com/pass4sure/exam-detail/ACT-Math Search results Killexams : ACT Section test prep - BingNews https://killexams.com/pass4sure/exam-detail/ACT-Math https://killexams.com/exam_list/ACT Killexams : ACT test scores fall again. Could you ace the math or English tests? Find out here

At the end of the 2020 school year, students in grades three to eight were typically behind 8–12 points in math and 3–6 points in reading, according to Northwest Evaluation Association data released in 2021.

Test scores remain a strong indicator of learning loss, even when considering how the temporary closing of schools affected testing veracity. In order to break down precisely how these declining trends in math and memorizing have affected various demographics among all students, HeyTutor looked at the drop in test scores in memorizing and math for fourth and and eighth grade students before and after COVID-19. This article cites long-term trend data from the National Assessment of Educational Progress along with information from other news reports and studies.

Prior to the pandemic, long-term trends showed that math and memorizing scores for students ages 9 and 13 had fallen or remained the same since 2012, according to the NAEP. Since 1971, the organization, which operates under the auspices of the U.S. Commissioners of Education, has tracked how students ages 9, 13, and 17 are performing in math and reading.

NAEP notes that while average test scores in math and memorizing in 2012 surpassed those of the 1970s for students ages 9 and 13, average scores among 13-year-old students decreased between 2012 and 2020. Specifically, average math scores for 13-year-old students in the 10th, 25th, and 50th percentiles decreased between 2012 and 2020.

Average math scores for 9-year-old students in the 10th and 25th percentiles also fell during the same time period. Additionally, average memorizing scores for 13-year-old students were higher in 2012 than they were in 2020, however, variations in average memorizing scores for 9-year-old students between 2012 and 2020 were negligible.

Continue memorizing for a closer look at how the COVID-19 pandemic disrupted education in America.

Sun, 16 Oct 2022 00:33:00 -0500 en text/html https://journaltimes.com/news/national/act-test-scores-fall-again-could-you-ace-the-math-or-english-tests-find-out/article_d79b1f3d-f8fe-562e-b346-e8bd6f3b0e9d.html
Killexams : ‘Data is powerful this year’: ACT scores dropping

ROCHESTER, N.Y. (WROC) — According to a new report from ACT headquarters, scores from the 2022 graduating class show the lowest results in over 30 years.

The national average comes out to be a score of 19.8. That’s on a scale of one to 36.

ACT is a career readiness exam to measure where high schoolers are academically. Unlike the SAT, it has a science section and a writing option.

In New York State, the average is a little higher for 2022, with a score of 25.3. Experts say scores have been on the decline across the board for the past five years or so.

The ACT report said scores are evidence of “a longtime systemic failure, exacerbated by the pandemic.”

Rose Babington, Senior Director of State Partnership with ACT said you have to take the pandemic into consideration when looking at this particular graduating class.

“The data is particularly powerful this year,” she said. “As we reflect on really, the disruption that students had in their high school experience,” she said.

Babington said the content and format of the ACT never changed.

And again, she says scores were declining before the pandemic. The ACT report also said there’s less participation overall.

Mike Bergin, a local tutor who specializes in exam prep at Chariot Learning, said many colleges are also test-optional now. As a result, that’s been drawing less interest and fewer phone calls for him and his business.

“We as a nation want to look at the concept of college readiness,” he said. “[It] prepares them for better academic achievement, prepares them for success in college.”

So where do we go from here? The report goes on to say, in order to support students, it falls on policymakers, school systems, educators, and parents to pay attention to the data.

“The data really shines a light on how much more support we need to provide to all of our students moving forward,” said Babington. “Especially those facing barriers and challenges beyond their control,” she said, of students in underserved communities and backgrounds.

“We need to stop fearing tests that tell us things we don’t want to see,” said Bergin. “We should be prepared, district by district, state by state, to help students build stronger reading, writing, and math problem-solving skills.”

Locally, some districts like Penfield say their scores have stayed consistent, in the ballpark of 27.

Geneva and Greece Central Schools said there’s more interest in the SAT overall, and ACT sometimes requires students to travel to another school for the exam.

Bergin suggested the following resources for parents and families looking for help:

Fri, 14 Oct 2022 10:00:00 -0500 en-US text/html https://www.rochesterfirst.com/news/education/data-is-powerful-this-year-act-scores-dropping/
Killexams : Kagan, Jackson Put Down Markers in Major Voting Rights Challenge

Justices Elena Kagan and Ketanji Brown Jackson sent separate shots across the bench to their colleagues Tuesday in which they made clear their views that the Constitution is not colorblind and the court’s conservative majority has damaged the Voting Rights Act enough.

The justices’ impassioned comments came during two hours of argument in Alabama’s challenge to a district court ruling that the state’s 2021 congressional district map likely violated Section 2 of the 1965 Voting Rights Act. The Supreme Court in a 5-4 vote allowed the map to go into effect in February and scheduled arguments on Alabama’s appeal.

Wed, 05 Oct 2022 16:17:00 -0500 en text/html https://www.law.com/nationallawjournal/2022/10/04/kagan-jackson-put-down-markers-in-major-voting-rights-challenge/?slreturn=20220917113727
Killexams : Supreme Court Examines Whether Alabama’s Congressional Districts Violate Voting Rights Act

Section 2 of the Voting Rights Act, which took center stage Tuesday during oral arguments at the Supreme Court, prohibits a state from imposing a “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color … .”

Courts have found that states violate this provision when they draw new legislative districts that dilute the voting power of minority voters by either packing as many of these voters as possible into a single district or by splitting these voters among various other districts—practices known as “packing” and “cracking” voters.

In fact, that’s exactly what the plaintiffs who sued Alabama after the state enacted its 2020 congressional redistricting plan alleged. 

Alabama lawmakers allocated the state’s seven congressional seats after the most latest census and drew one majority-minority district. These plaintiffs alleged, and a lower federal court agreed, that the state Legislature should have drawn a second majority-minority district and that its failure to do so violated Section 2 of the Voting Rights Act.

Alabama, of course, disagreed and asked the Supreme Court to review the case. It agreed and heard arguments Tuesday in the case, Merrill v. Milligan.

While Alabama made sweeping claims that in determining whether a Section 2 violation occurred, the court should focus on whether the Legislature directly exhibited discriminatory intent, rather than simply focusing on any discriminatory results, several of the justices—even the conservative justices—seemed skeptical of that position.

Instead, they seemed interested in refining and clarifying the test that the court first laid out as being applicable to these types of cases in the 1986 case of Thornburg v. Gingles.

Under this test, in order to show that a Section 2 violation occurred, plaintiffs must show three “preconditions.” They have to show that (1) the minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) the minority group is “politically cohesive”; and (3) the majority group “vote[s] sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.” 

Courts must then consider the “totality of the circumstances” by applying what are called the “Senate Factors,” which are a series of questions that must be reviewed and answered to determine if there was discrimination involved in what happened. Factors include whether racial appeals were used in campaigns and whether there is a latest history of racial discrimination in other areas besides voting.

But what exactly must be shown under each of the three preconditions and the Senate Factors is unclear and to what extent legitimate redistricting considerations like compactness negate those Senate Factors have been given differing and subjective interpretations by the lower federal courts.

It is also important to note that Section 2 specifically says that it does not entitle racial minority groups to proportional representation. 

In other words, just because a racial group, for example, is 25% of a state’s population, does not entitle it to 25% of all elected seats. The Voting Rights Act protects equality of opportunity, not equality of results.

At the oral arguments, several of the justices homed in on Alabama’s argument that requiring the state to establish a second majority-minority district would obliterate the compactness requirement under the first prong of the test. 

These justices also seemed receptive to Alabama’s claim that requiring a second majority-minority district would force the state to consider race as the predominate factor when drawing new district maps to the exclusion of being able to consider other neutral traditional redistricting factors such as keeping communities of interest together. 

The Supreme Court has previously held that using race as the predominate factor in redistricting violates the one-person, one-vote standard of the equal protection clause of the 14th Amendment.

Of course, some of the justices—including the newly appointed Ketanji Brown Jackson—seemed more interested in making long soliloquies instead of truly questioning the advocates.

While not explicitly addressed, it’s important to note that Alabama’s congressional maps have remained essentially unchanged since 1992 when they were drawn up and approved by a federal court. Both the Bush Justice Department and the Obama Justice Department approved very similar maps drawn up after the 2000 and 2010 census when Section 5 of the Voting Rights Act was still in place.

Regardless of what happens with this case, it’s clear that the outcome will have major ramifications when states next redraw their congressional maps. Hopefully the court will establish clear rules that will not leave legislators guessing whether they will be hauled into federal court and accused of drawing discriminatory districts.

This piece originally appeared in The Daily Signal

Tue, 11 Oct 2022 07:49:00 -0500 en text/html https://www.heritage.org/courts/commentary/supreme-court-examines-whether-alabamas-congressional-districts-violate-voting
Killexams : Protecting Electronic Communications Networks and Services from Cyber-Attack and Data Breach: Enhanced Obligations and Board-level Accountability

Friday, October 14, 2022

The UK’s Electronic Communications (Security Measures) Regulations 2022 (the Regulations) came into force on 1 October 2022, together with the Telecommunications Security Code of Practice (the Code of Practice). The Regulations reflect the increased risk of cyber-attack and data breaches, whether for criminal purposes or by potentially hostile states. They supplement general duties imposed on providers of public electronic communications networks and services by the Communications Act 2003, sections 105A and 105C, and provide Ofcom with new powers to monitor and enforce enhanced obligations affecting:

In each case, there is an exemption in the Regulations for “micro-entities” (as defined under the Companies Act 2006). There is also a measure of mitigation for smaller businesses. Where the Regulations require network providers or service providers to take measures that are “appropriate and proportionate,” Ofcom will assess those measures by reference to the provider’s size and resources. Further, the Code of Practice applies tiering to distinguish between Tier 1 and 2 providers, who must follow the detailed guidance in the Code of Practice, and Tier 3 providers who may choose to follow guidance where relevant to their networks and services:

  • Tier 1 – public telecoms providers with relevant turnover in the relevant period of £1 billion or more;

  • Tier 2 – public telecoms providers with relevant turnover in the relevant period of more than or equal to £50 million but less than £1 billion;

  • Tier 3 – public telecoms providers whose relevant turnover in the relevant period is less than £50 million but who are not micro-entities.

The tiering system is also used to determine the timescales within which network providers and service providers must implement the measures set out in Section 3 of the Code of Practice. Tier 1 providers must complete the overarching security measures by 31 March 2024, while Tier 2 providers have until 31 March 2025. In relation to third-party contract measures, Tier 1 providers have until 31 March 2024 and Tier 2 providers until 31 March 2025, with those obligations extending to all providers by 31 March 2027. 

The Regulations make cyber security a key governance issue, requiring network providers and service providers to implement an organisational framework to manage security incidents and to assign board-level responsibility (or equivalent) to ensure effective processes and management of those responsible for security measures. 

Secure Design and Network Architecture

The Regulations require network providers to take “appropriate and proportionate measures” to securely design, construct and (where relevant) redesign, develop, and maintain their public network. Network providers must carry out assessments to: 

The network must then be maintained in a manner that reduces the risks of security compromises occurring.

Data Protection

Both network providers and service providers must adopt “appropriate and proportionate technical means” to: 

  • protect from malicious incoming signals any data stored in relation to the operation of networks and services; and 

  • to secure software, devices and equipment used to manage those networks and services. 

Network providers and service providers must secure the workstations used to make changes to their public networks and apply measures to reduce the risk of security compromise relating to customers’ SIM cards. 

From a data protection perspective, key risks addressed by the Regulations include the possibility of a data breach, whether affecting functional data required for the operation of networks and services or personal data transmitted by means of those networks and services. Examples of real breaches discussed in the Code of Practice include one that affected the personal data of 50 million customers due to test equipment relating to the management of the network being directly exposed to the internet. By gaining access to the test equipment, the hacker was able, through a brute force attack, to gain access to the network provider’s operational servers and, from there, harvest personal data.

Monitoring and Analysis

Network providers and service providers must ensure that monitoring and analysis tools are not located in, or accessible from, China, Iran, North Korea and Russia. Where providers host capabilities in any other non-UK locations, they must take measures to identify and reduce the risks of security compromise occurring as a result of monitoring and analysis tools being stored on equipment in those locations.

The Regulations also impose positive obligations on network providers and service providers to take “appropriate and proportionate measures” to monitor access to networks and services in order to reduce the risk of security compromises. This includes secure retention for at least 13 months of log files relating to security-critical function access, as well as having systems to ensure providers are alerted to and can address unauthorised changes to the most sensitive parts of the network or service.

Supply Chain

The Regulations require network providers and service providers to address supply chain risks, taking “appropriate and proportionate” contractual measures to require their third-party suppliers to identify, disclose and reduce risks of security compromises arising from the relationship. Network and service providers must also have written contingency plans in case a third-party supply is interrupted. 

Where a third-party provider is a network provider and is given access to sensitive data or equipment, that provider must take steps equivalent to those taken by the primary provider in relation to that data or equipment. 

Unauthorised Access or Interference

Network providers and service providers must take “appropriate and proportionate measures” to reduce the risk of security compromises occurring as a result of unauthorised access to their public networks or services. They must:

  • understand and control who can access and make changes to the operation of their public networks and services; and

  • apply best practices such as multi-factor authentication and password protections for users who can make changes to security-critical functions. 

Remediation and Recovery

Network providers and service providers must take “appropriate and proportionate measures” to mitigate the adverse impacts of security compromises and be able to successfully recover in the event of such a compromise. This includes holding and updating copies of information needed to rebuild the public network or service in the event of a security compromise such as a ransomware or “WiperWare” attack. 

Ongoing Obligations

The Regulations and Code of Practice emphasise the need for ongoing risk management and security awareness. Network providers and service providers must: 

  • regularly, and at least every 12 months, review the security of their networks and services to identify and address security risks;

  • prepare a written assessment of the overall risk of security compromises occurring in the 12 months following each review;

  • make effective use of security patches and upgrades to protect physical and virtual networks and services against attacks. 

This includes taking “appropriate and proportionate steps” to apply patches provided by software or equipment providers within 14 days unless there is a particular circumstance requiring a longer period. When taking longer than 14 days, network providers or service providers must have regard to the severity of risk that the patch or mitigation measures addresses and record the reasons for delay.

Competency and Testing

Regulation 13 (Competency) requires network providers and service providers to take “appropriate and proportionate measures to ensure that those responsible for understanding and managing security risks in a provider’s network or service are suitably skilled and experienced. 

Regulation 14 (Testing) requires network providers and service providers to carry out, at appropriate intervals, tests to assess the risks of security compromises to their public networks and services. Such tests must simulate the actions of an attacker and be carried out without prior warning.

Reporting Obligations

Network and service providers have reporting obligations to the ICO in the event of a data breach under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). Notification must happen within 24 hours of the data breach being detected and include all the information required under sections 1 and 2 of Annex I. The need to notify arises when the network and service provider acquires sufficient awareness of the data breach to make a meaningful notification. 

If disclosure is not possible within the first 24 hours, then initial information should be sent to the ICO, with the rest to follow within a maximum of three days. If full details are not available within this period, a second notification should be sent to the ICO with any further information and justification for the delay. Any outstanding information should be sent to the ICO as soon as possible. 

Network and services providers must also report to Ofcom and affected users any security or availability incidents that have a significant impact on the network or service. Under the current guidance set by the Telecommunications (Security) Act 2021, reports need to be sent to Ofcom as soon as reasonably practicable. 

Since no further indication is offered as to timescales for reporting, it is useful to consider the guidance offered by Ofcom for the previous regulations. Under the earlier legislation, Ofcom advised that incidents were to be reported within 72 hours, with urgent incidents to be reported as soon as possible and ideally within 3 hours of becoming aware of them. Any other non-major incident could be reported to Ofcom in batches. 

Ofcom guidance also asked that network and service providers provided Ofcom with sufficient information to enable them to classify the incident, giving details of any action taken to manage and remedy it, mitigate future risks, and the name of any third parties involved. 

While we wait for further clarification on the requirements of the new guidance, it would be advisable to keep these timescales in mind, as they show Ofcom’s expectation of when it is “reasonably practicable” to report an incident. 

The Regulations impose further breach notification requirements:

  • Third-party suppliers need to be contractually obliged to notify network and service providers within 48 hours of becoming aware of any security incidents that may have caused a security compromise or where they identify an increased risk of such a compromise occurring. They need to report on the root cause of the incident within 30 days and rectify any security failings found. 

  • When a network and service provider becomes aware of a security compromise that may affect other network and service providers, so far as is appropriate and proportionate, they must provide them with information about the security compromise. 

Penalties

Ofcom is responsible for monitoring compliance with and enforcing these obligations. Failure to comply with these could result in fine of up to 10% of turnover or, in the case of continuing contraventions, £100,000 a day.

If a data breach occurs as a result of the incident, the ICO can also impose a penalty of up to £17.5 million or 4% of the total annual worldwide turnover in the preceding financial year, whichever is higher.

Lucia Rubio Robustillo also contributed to this article.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 287

Fri, 14 Oct 2022 13:41:00 -0500 en text/html https://www.natlawreview.com/article/protecting-electronic-communications-networks-and-services-cyber-attack-and-data
Killexams : High court seems chilly to ‘race neutral’ memorizing of Voting Rights Act

A majority of the Supreme Court declined on Tuesday to embrace an argument advanced by Alabama calling for a “race neutral” memorizing of a key provision of the Voting Rights Act.

But the justices nonetheless signaled that there could be changes coming to the enforcement of the landmark 1965 legislation.

The case revolves around a challenge to Alabama’s newly redrawn maps for the state’s seven Congressional districts. A group of Black Alabama residents sued, arguing that their voting power was being diluted by carrying forward just the state’s one historical majority-minority district instead of drawing two, despite the fact that the state is over a quarter Black.

Lower federal courts agreed and ordered a redrawing of the maps ahead of the November elections. But the nation’s highest court stayed that order and agreed to hear Tuesday’s arguments.

Alabama argued during Tuesday’s oral arguments that its districts were drawn with “race neutral” principles, by not looking at racial demographics when initially drafting the map. The state argued that in light of that, a key section of the Voting Rights Act — which increased political participation and representation for Black and other voters of color — should effectively be reinterpreted to require some sort of showing of discriminatory intent by the government to require the creation of a majority-minority district.

Alabama’s interpretation of the Voting Rights Act could lead to the election of fewer Black members across much of the South, as well as in other states.

Most of the court’s justices appeared skeptical of the state’s broadest arguments about looking at the law through a race-neutral lens.

“I think I’m struggling in the same way that some others have about narrowing down exactly what your argument is,” Justice Amy Coney Barrett, a 2020 appointee of former President Donald Trump, said during questioning of Edmund LaCour Jr., the solicitor general of Alabama. “I disagree with you — and agree with Justice [Elena] Kagan’s characterization of the intent point. Our precedent and the statute itself says that you don’t have to show discriminatory intent, so put that aside,” she said.

And neither Chief Justice John Roberts, an appointee of President George W. Bush, nor Justice Brett Kavanaugh, a Trump appointee, signaled an openness to Alabama’s race-neutral arguments in their questioning.

But perhaps no justice was more pronounced in their criticism of Alabama’s case than Justice Ketanji Brown Jackson, who forcefully pushed back against the state’s claim that Section 2 of the Voting Rights Act violates the Constitution’s guarantee of equal protection of the laws for all persons.

The 14th Amendment “was drafted to deliver a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity, and less rights, equal to white citizens,” Jackson said during sharp questioning of LaCour. “With that as the framing and the background, I’m trying to understand your position — that Section 2, which by its plain text is doing that same thing — … that [it] violates the 14th Amendment, given the history and background of the 14th Amendment.”

While LaCour insisted that the state’s map was drawn in a race-neutral manner, Jackson pointedly rejected that contention, alluding to the fact that even efforts to preserve so-called communities of interest or traditional political boundaries had the tendency to be proxies for race in as polarized a state as Alabama.

“Why are you saying it’s a neutral plan, counsel?” Jackson, an appointee of President Joe Biden, asked. “We are talking about a situation in which race has already infused the voting system.”

Even so, key voices in the court’s conservative majority signaled a potential to rework the current test for voter dilution, drawn from the 1986 case Thornburg v. Gingles, in ways that could make it harder to allege voter dilution in political boundaries.

“What the court said exactly in Gingles was that the minority group must be ‘sufficiently large and compact to constitute a majority’ in a reasonably configured district. It didn’t say in a reasonably compact district,” Justice Samuel Alito said, laying out the first of a three-pronged test from Gingles. “Would you agree that whether a district is reasonably configured takes into account more than simply whether it is compact, but also whether it is the kind of district an unbiased mapmaker would draw?”

The latter two prongs are if the minority group is “politically cohesive,” and if the majority “votes sufficiently as a bloc” to block the minority’s preferred candidate — which Alito suggested at one point were merely pro forma requirements.

“As a practical matter, in every place in the South and maybe in other places, if the first Gingles condition can be satisfied, will not the plaintiffs always run the table?,” asked Alito, an appointee of President George W. Bush.

The state is “not going to win on whether the minority group is politically cohesive, they’re not going to win on whether the majority votes as a bloc — which may be due to ideology and not have anything to do with race. It may be that Black voters and white voters prefer different candidates now because they have different ideas about what the government should do.”

The arguments produced some blunt exchanges between the court’s three liberal justices and Alito, who was by far the most hostile member of the court to the position taken by civil rights groups — at least among those justices who took an active part in the arguments.

“Justice Alito gave the game away when he said race-neutral means don’t look at communities of interest, because it’s a proxy for race,” Justice Sonia Sotomayor, an appointee of President Barack Obama, declared at one point. “Indifference to racial inequality is exactly what Section 2 is barring or prohibiting.”

Justice Neil Gorsuch, appointed by Trump, didn’t ask questions during the arguments, so it was hard to discern his position on the issue. Justice Clarence Thomas, nominated to the court by President George H.W. Bush, made only brief comments.

The Roberts Supreme Court has been fairly consistently hostile to the Voting Rights Act, issuing rulings in a series of cases over the last decade-plus that have chipped away at the landmark legislation, which Justice Elena Kagan noted during oral arguments.

“This is an important statute — it’s one of the great achievements of American democracy,” Kagan, an appointee of Obama, declared as she questioned LaCour. “In latest years, this statute has fared not well in this court….So, what’s left?”

Perhaps most notably, the court effectively ended the practice of “preclearance” in 2013, which required states and other jurisdictions with a history of discriminatory voting practices to get changes to election law pre-approved by either the Department of Justice or a federal court.

And last year, in a decision authored by Alito, the court laid out five so-called “guideposts” to assess if election laws were discriminatory under Section 2, which was at the center of Tuesday’s oral arguments. Then, voting rights advocates decried the decision as a surprisingly broad one that would undercut challenges to election laws under discrimination claims.

Tuesday’s case is one of two big voting rights cases in front of the court this term. The second, Moore v. Harper, also revolves around redistricting in North Carolina. There, state Republican lawmakers are arguing that the state Supreme Court has no authority to police its decisions on election law under the controversial “Independent State Legislature” theory, which could dramatically remake American elections by giving state legislatures more power over determining election laws.

Tue, 04 Oct 2022 07:52:23 -0500 en-US text/html https://www.msn.com/en-us/news/politics/high-court-seems-chilly-to-e2-80-98race-neutral-e2-80-99-reading-of-voting-rights-act/ar-AA12AT2t
Killexams : The court of art criticism is in session
A VIEW FROM THE COURTROOM
sketch of man gesturing with his right hand before the lectern, speaking before a full bench. Justice Sotomayor shapes her hands as if she were taking a picture.

Roman Martinez argues on behalf of the Andy Warhol Foundation. (William Hennessy)

A View from the Courtroom is an occasional series offering an inside look at oral arguments and opinion announcements unfolding in real time.

This week has felt very cultured at the court. Despite the earthiness of Tuesday’s case about pig farming, I found myself revisiting, for one preview I wrote, literary works by Carl Sandburg, Upton Sinclair, and Norman Mailer, addressing stock yards and meat processing in the 20th century. (I also consulted the most latest issue of Quarterly Hogs and Pigs, a periodical published by the U.S. Department of Agriculture.)

Today, the court’s attention will be on the often glamorous worlds of Pop Art, rock photography, and glossy magazines. It will veer into “Lord of the Rings,” “Jaws,” “Mork and Mindy,” and “The Jeffersons.” And one of the lawyers participating today will try to bury a beloved television producer and social activist. But I’m getting a little ahead of myself.

It has become more clear, during this second week of the public’s return to the courtroom after pandemic-required measures, that there are some limitations on the number of people being let in. The public gallery has several rows that have been kept empty. And the seats in the bar section are spaced apart a bit more than before the pandemic, and it appears that the capacity of that section may have been reduced by one whole row.

A few regular members of the Supreme Court specialty bar are here. Kannon Shanmugam of Paul Weiss is in the bar section, while Michael Dreeben, a former deputy U.S. solicitor general now with O’Melveny and Georgetown University Law Center, takes a seat in the public gallery. And Paul Clement, now of the boutique firm Clement & Murphy, is seated at the second case counsel table to await argument in Helix Energy Solutions Group v. Hewitt.

When the justices take the bench, Chief Justice John Roberts proceeds with the recently restored practice of in-courtroom bar admissions. “The clerk — the deputy clerk” will entertain motions for admission to the bar, he says, catching himself because Clerk Scott Harris is absent today, and Deputy Clerk Laurie Wood is fulfilling his courtroom duties.

And then it is on to the argument in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, a copyright dispute over a photograph of the musician Prince. Rock photographer Lynn Goldsmith, who took the photo of a vulnerable and sensitive-looking Prince in 1981, when he was still an up-and-coming musical artist, is in the second row of the public gallery today.

When Prince shot to stardom by 1984 with his “Purple Rain” album, Vanity Fair licensed Goldsmith’s photo for use as an artist’s reference for an illustration to accompany a profile of Prince. The artist they engaged was Andy Warhol, famous for his paintings of Campbell’s Soup cans and celebrities such as Marilyn Monroe.

Warhol cropped and silkscreened Goldsmith’s photo into a series of 16 images of Prince, now known as the Prince series. One of those — “Purple Prince” — ran with the Vanity Fair article. Another, “Orange Prince,” ran on the cover of a commemorative magazine that publisher Condé Nast issued after Prince’s death in 2016.

side by side images: on left is magazine cover featuring andy warhol's orange-and-black portrait of prince based on lynn goldsmith photo; on right is goldsmith's original black-and-white photo.

Left: A 2016 Vanity Fair cover featuring Andy Warhol’s image of Prince. Right: Lynn Goldsmith’s 1981 photograph of Prince, which was a basis for Warhol’s image. (Source: court documents)

Goldsmith objected to the 2016 use as a violation of her copyright, though the New York City-based Andy Warhol Foundation filed suit pre-emptively to seek a declaration that the entire Prince series was a fair use under copyright law because, according to the foundation, Warhol’s images transformed Goldsmith’s photo into a new work with a different meaning or message.

Roman Martinez, representing the foundation, tells the court that “the stakes for artistic expression in this case are high. A ruling for Goldsmith would strip protection not just from the Prince series but from countless works of modern and contemporary art. It would make it illegal for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works. It would also chill the creation of new art by established and up-and-coming artists alike.”

Goldsmith is shaking her head as Martinez speaks. Throughout the argument, she will visibly show her disagreement or nod in agreement with various points made by the lawyers and justices. Elsewhere in the courtroom are several representatives of the foundation—President Joel Wachs, Chair Paul Wa, and Chief Financial Officer and Treasurer KC Maurer. I can’t see whether they are shaking their heads or not.

The justices press Martinez about what it takes to create a derivative work that falls under his test for transformation.

The chief justice wonders about taking the Goldsmith photo and putting a smile on Prince’s face.

“The message is: Prince can be happy,” Roberts says. “Prince should be happy. Is that enough of a transformation? The message is different.” (Martinez says it would depend on the degree of transformation in meaning or message.)

Justice Clarence Thomas tries to ask Martinez a question about transforming Warhol’s “Orange Prince” image into a “Go Orange” message in support of Syracuse University.

“Let’s say that I’m both a Prince fan, which I was in the ’80s …” Thomas says, before Justice Elena Kagan interrupts him.

“No longer?” she says.

“Well,” he says to laughter, “so only on Thursday night.”

Several questions for both lawyers concern book-to-movie adaptations, which generally involve licensing. Some justices wonder whether Martinez’s test would “eviscerate” a key analytical factor for fair use under the Copyright Act.

“If a work is derivative, like ‘Lord of the Rings,’ you know, book to movie, is your answer just like, well, sure, that’s a new meaning or message, it’s transformative, so all that matters is [the Copyright Act’s factor on effects on the market]?” Justice Amy Coney Barrett asks.

When Martinez suggests the “Lord of the Rings” movies are not fundamentally different from the J.R.R. Tolkien works, Barrett seems surprised.

“The movie?” she says.

“I would probably have to learn more and read the books and see the movies to deliver you a definitive judgment on that,” Martinez says, to laughter in the courtroom.

When Lisa Blatt moves to the lectern to argue on behalf of Goldsmith, she makes it clear that she believes the Warhol Foundation benefited in the district court, where the foundation won, from Warhol’s reputation as a Pop Art icon.

The foundation says that “Warhol is a creative genius who imbued other people’s art with his own distinctive style,” Blatt says. “But Spielberg did the same for films and Jimi Hendrix for music. Those giants still needed licenses. Even Warhol followed the rules. When he did not take a picture himself, he paid the photographer. His foundation just failed to do so here.”

Her past-tense treatment of the still-working Steven Spielberg is a mere foreshadowing of a more, um, grave error she will make a little later.

sketch of bespectacled woman gesturing with her hands before the lectern, speaking before four pictured justices

Lisa Blatt argues for photographer Lynn Goldsmith. (William Hennessy)

Sometime after Blatt refers to a page of the 2nd Circuit decision that “they’re yakking about,” Justice Samuel Alito picks up on her word choice. He asks about the 2nd Circuit’s suggestion that a district judge in a copyright case “should not assume the role of art critic.”

“What do you think the 2nd Circuit meant when it yakked about art critics, about judges not being art critics?” Alito says. “Was the point that … a person who knows nothing about either of the works of art is supposed to determine whether they seem different?”

Blatt’s answer includes a quick shift to more book-to-movie and -TV adaptations.

“Was the character in ‘Jaws,’ the book, different than the way the sheriff was depicted in the movie?” she says, before turning to “The Shining.” “We know Stephen King had a very specific view of who Jack was. It was basically him and it was a tragedy, and we know what Stanley Kubrick did to it. He said, I don’t like your Jack. I’m going to do my Jack, who’s a horror film.”

She has TV spinoffs on her mind as well, as part of her argument that such book-to-movie or TV show-to-spinoff adaptations might not require licensing under the Warhol Foundation’s test. Her references are mostly from the 1970s, including the perhaps little-remembered fact that “Mork and Mindy” was a spinoff of “Happy Days.” And then there were the more socially relevant shows of that era.

“Take ‘All in the Family,’” Blatt says. “Norman Lear would be turning over in his grave right now. He had more spinoffs than any show in American history. ‘The Jeffersons’ was about a prospering African American family who lived on the East Side. ‘All in the Family’ was about a white bigot living in Queens who couldn’t keep up with society.”

Blatt evidently did not watch the 90-minute special on ABC in August celebrating Lear’s 100th birthday. He was born July 27, 1922, and is still very much alive. On the special, he discussed the idea behind spinning off “The Jeffersons” from “All in the Family.”

No one on the court seems to have watched the special, either, as none of them call attention to Blatt’s miscue.

Still, Blatt, who was joined in the argument by assistant to the U.S. solicitor general Yaira Dubin, appears to make headway with at least some of the justices, and she seeks to allay the fears of art museums that they would face greater copyright risks under Goldsmith’s view of the case.

“If the poster child for museums is Andy Warhol, let them tell you what Andy Warhols they’re thinking about,” she says. “He took all the pictures of the famous ones or he got a license.”

“But maybe there’s a different point about museums,” says Justice Kagan, who seems more sympathetic to Martinez’s arguments. “And the point is why do museums show Andy Warhol? They show Andy Warhol because he was a transformative artist because he took a bunch of photographs and he made them mean something completely different. And people look at Elvis and people look at Marilyn Monroe or Elizabeth Taylor and Prince, and they say this has an entirely different message from the thing that started it all off. And that’s why he’s hanging up on those museums.”

Recommended Citation: Mark Walsh, The court of art criticism is in session, SCOTUSblog (Oct. 12, 2022, 7:32 PM), https://www.scotusblog.com/2022/10/the-court-of-art-criticism-is-in-session/

Wed, 12 Oct 2022 11:32:00 -0500 en-US text/html https://www.scotusblog.com/2022/10/the-court-of-art-criticism-is-in-session/
Killexams : Health & Education Cess not allowed as business expenditure – Section 37?

As per the latest Amendment introduced through Finance Act 2022, ‘Health and Education Cess’ is not allowed as business expenditure for the computation of business income. The ‘Health and Education Cess’ is imposed as an additional surcharge on the taxpayer for funding specific government welfare programs and is part of income tax. 

However, there continue to be diverse opinions in the market in this relation. Some state that the amendment is a clarification and is retrospectively applicable. While others state that the amendment is spelling a new law and can be applied only prospectively. In the following paragraphs, the author shall discuss whether cess is allowable as a business expense prior to the amendment.

Please note that cess, surcharge, and surtax are of similar nature and have been used interchangeably in this note.

Legal Provisions

Section 37 of the Income Tax Act, 1961 (“Act”) provides for the allowability of revenue and non-personal expenditure (other than those failing under sections 30 to 36) laid out or expended wholly and exclusively for the purposes of business or profession.

As per Section 40, (a)(ii) of the Act, any sum paid on account of any rate or tax levied on the profits and gains of business is not deductible in computing the income chargeable under the head ‘Profits and gains of business or profession’. 

Similarly, Section 2(43) of the Act, defines ‘tax’ to mean income-tax chargeable under the provisions of the Act at the rates specified in part I of the First Schedule. Such tax shall be increased by a surcharge, for the purposes of the Union, calculated in each case in the manner provided therein. Thus, a surcharge or a cess is nothing but a tax levied further on tax, for which a specific rate is provided in the Act. Furthermore, with reference to the definition of “tax” in section 2(43), the definition section commences with the phraseology “unless the context otherwise requires”. Thus, the term “tax” must be given a wide meaning and should not be restricted to mean only “income tax”. 

“Section 4 of the Income Tax Act, of 1961 provides for the levy of tax:

“(1) Where any Central Act enacts that income tax shall be charged for any assessment year at any rate or rates, income tax at that rate those rates shall be charged for that year in accordance with, and subject to the provisions (including provisions for the levy of additional income-tax)of, this Act in respect of the total income of the previous year of every person; Chapter II of every Finance Act provides “Rates of income-tax” chargeable for the relevant assessment year.”

What is cess?

The abovementioned provisions were explained by the Hon’ble Supreme Court in CIT v. K. Srinivasan 83 ITR 346 (SC) asunder: 

“the above legislative history of the Finance Acts, as also the practice, would appear to indicate that the term “income-tax” as employed in s. 2 includes surcharge as also the special and the additional surcharge whenever provided within the meaning of Art. 271 of the Constitution. The phraseology employed in the Finance Acts of 1940 and 1941showed that only the rates of income tax and super tax were to the increased by a surcharge for the purpose of the Central Government. In the Finance Act of 1958, the language used showed that the income tax that was to be charged was to be increased by a surcharge for the purposes of the Union. The word “surcharge” has thus been used to either increase the rates of income tax and super-tax or to increase these taxes. The scheme of the Finance Act of 1971 appears to leave no room for doubt that the term “income tax” as used in s. 2 includes a surcharge.” 

The Education Cess which was introduced vide section 2 of the Finance Act 2004 and is an additional surcharge for the purposes of the Union to meet their financial priorities in the health and education sector. The base tax, surcharge, and additional surcharge also known as Education Cess, therefore, comprise the total income-tax payable on the income by an assessee. Both the surcharges are levied for the specific purposes of the Union and constitute the total income tax. 

The above legal position has been affirmed in various decisions of the Hon’ble ITAT. For instance, the bench at Hyderabad in the case of Virtusa (India) Private Limited dated 04.03.2016 and Hon’ble Chandigarh ITAT in M/s Steel Strips Wheels Ltd. v. DCIT (CPC), Bangalore dated 18.03.2020 has reaffirmed this position. 

Application of Section 37(1) of the Act

When one looks at the scheme of the Act and examines the interplay of the provisions of section 40(a)(ii) and section 37(1), it is clear that first, the expense must pass through the anvil of Section 37(1), only then an examination under section 40(a)(ii) of the Act is made. This is clearly evident from section 40(a)(ii) which starts with a non-obstante clause, which reads as follows: 

“40. Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head “Profits and gains of business or profession”,- 1. In the case of any assessee-(ii) any sum paid on account of any rate of tax levied on the profits or gains of any business or profession or assessed at a proportion of, or otherwise on the basis of, any such profits or gains.” 

The effect of the non-obstante clause in section 40 is that the allowability of a deduction u/s 40(a)(ii) shall be barred if it is otherwise allowable under any of the provisions contained in sections 30 to 38. However, if it does not pass the criteria of allowability u/s 30 to 38 at the threshold, that is the end of the matter and there is no need to go back to section 40(a)(ii). In view of this, the allowability of education cess shall have to be examined first under the terms of section 37(1) i.e. whether the said expenditure has been ‘laid out or expended wholly and exclusively for the purposes of business or profession. The fundamental question, therefore, which arises for consideration is whether an education cess is an expenditure ‘laid out or expended wholly and exclusively for the purposes of business or profession. The answer to this question is clearly negative because ‘education cess’ is not expenditure at all. Rather, it is a charge upon the profits, similar to income tax. Any expenditure to earn a profit cannot be a part of the profit itself. It is an application of an income and not an expenditure ‘laid out or expended wholly and exclusively for the purposes of business or profession so as to pass the tests envisaged u/s 37(1). 

In this relation, the Hon’ble Gujarat High Court in S.L.M. Maneklal Industries Ltd. v.  CIT [1988] 39 Taxman 42(Gujarat), has held that surcharge was not an expenditure ‘‘laid out or expended wholly and exclusively for the purposes of business or profession u/s 37(1) of Act. The payment of surtax or surcharge has nothing to do with the conduct of the business of the assessee. It was not an expenditure incurred for the purpose of business or for the purpose of earning profit. It is only after the profit or income is earned that, as pointed out above, the question of payment of surtax would arise. It is an event that takes place after the income is earned not in the course of or in the process of earning income. It is out of the profits or income earned that surtax is to be paid. 

In other words, payment of surtax is the application of the profits after they are earned. As discussed above, a surtax is levied on excess chargeable profits computed in the manner laid down in the Act. It is a levy on the total income computed under the Act after it is adjusted in accordance with the First Schedule to the Act. The computation of income for the purpose of the Act has to precede the assessment of surtax under the Act. Therefore, surtax stands on the same footing as income tax on the total income computed under the Act. Payment of both income tax and surtax is the application of income after it is earned and not expenditure incurred for the purpose of business. It is not a deduction before one arrives at the profits inasmuch as it is not payment for the purpose of earning profit. Since payment of surtax is not an allowable deduction under section 37, the question of whether it comes within the mischief of section 40(a)(ii) does not arise. In other words, it is not necessary to consider whether the prohibition contained in section 40(a)(ii) is applicable to the payment of surtax. 

This view was also taken by the Calcutta High Court in CIT in Molins of India Ltd. V. CIT[1983] 144 ITR 317, the Karnataka High Court in CIT v. International Instruments (P) Ltd [1983] 144 ITR 936, Full bench of the Kerala High Court in A.V. Thomas & Co. CIT[1986] 159 ITR 431 and Madras High Court in Sundaram Industries Ltd. v. CIT[1986] 159 ITR 646.  The ‘education cess’ fails the test of deductibility at the first stage itself under the terms of section 37(1) and, therefore there is no further need to examine embargo u/s 40(a)(ii). 

Application of Section 40(a)(ii) of Act

A different approach was adopted by the Courts in the Sesa Goa v. JCIT case where the Bpmbay High Court simply assumed the allowability of ‘education cess’ as an expenditure ‘laid out or expended wholly and exclusively for the purpose of business or profession’ u/s37(1) and instead proceeded to examine the prohibition contained in section 40(a)(ii). This brings us to section 40(a)(ii) of the Act and even if one were to assume the deductibility of ‘education cess’ u/s 37(1) of the Act, the question arises whether the bar contained in section40(a)(ii) operates qua ‘education cess’. To put it simply, the real question would be to see whether ‘education cess’ is taxable so as to fall within the mischief of Section 40(a)(ii) of the Act. 

It may be noticed at the outset that education cess was introduced as an additional surcharge as explained in the ‘Explanatory Memorandum to Finance Bill, 2012. The relevant excerpt from the said Memorandum reads as follows: 

“(2) Education Cess- for the assessment year 2012-13, an additional surcharge called the “Education Cess on income tax and “Secondary and Higher Education Cess on income tax” shall continue to be levied at the rate of two percent and one percent, respectively, on the amount of tax computed, inclusive of surcharge, in all cases. No marginal relief shall be available in respect of such Cess.” 

An ‘additional surcharge’ is, therefore, nothing but a tax’, as held by a three-judge Bench of the Hon’ble Supreme Court in CIT v K Srinivasan [1972] 83 ITR 346 (SC). The following words of Grover, J elucidate the law in unequivocal terms. 

“In our judgment, it is unnecessary to express any opinion in the matter because the essential point for determination is whether a surcharge is an additional made or rate for charging income tax. If that meaning is applied to s 2 of the Finance Act 1963 it would lead to the result that income tax and super tax were to be charged in four different ways or at four different rates which may be described as (i) the basic charge or rate (in part I of the First Schedule); (ii) Sur-charge; (iii) special surcharge and (iv)additional surcharge calculated in the manner provided in the Schedule. Read in this way the additional charge forms a part of the income tax and super tax.” 

This judgment in K Srinivasan cited above, however, was not considered by the Bombay High Court in Sesa Goa. While computing the taxable business income under the Act, various deductions are allowed for expenses that are incurred for the purpose of the business. Certain deductions are allowed on the satisfaction of certain conditions. Among these, expenses that are in the nature of ‘rate’ or ‘tax’ are specifically disallowed under section 40(a)(ii) of the Act while computing the business income. Therefore, a question arises as to whether ‘cess’ on income tax would be considered as a ‘tax’ so (1) as to qualify for an item of disallowance under section40(a)(ii) or it is separate from ‘tax’ and hence is an allowable expenditure from computing business income. This question arises in the context of provisions of section 40(a)(ii) which inter alia provides that notwithstanding anything to the contrary in sections 30 to 38 of the Income-tax Act, 1961, the following amounts shall not be deducted in computing the income chargeable under the head “Profits and gains of business or profession”. – (a) In the case of any assessee – (ia) ………………… (ib) …………….. (ic) …………….. (ii) Any sum paid on account of any rate or tax levied on the profits or gains of any business or profession or assessed at a proportion of, or otherwise on the basis of, any such profits or gains.

[Explanation 1– For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, any sum paid on account of any rate or tax levied includes and shall be deemed always to have included any sum eligible for relief of tax under section 90 or, as the case may be, deduction from the Indian income-tax payable under section 91.] [Explanation 2- For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, any sum paid on account of any rate or tax levied includes any sum eligible for relief of tax under section 90A;] 

From the aforesaid provisions of section 40(a)(ii), it is quite clear that any sum paid on account of any rate or tax levied on the profits or gains of any business or profession or assessed as a proportion of, or otherwise on the basis of any such profits and gains, will not be allowable as a deduction in the computation of income chargeable under the head “Profits and gains of business or profession”. It may also be stated here that even rate or tax assessed as a proportion of or otherwise on the basis of any such profits and gains, also falls within the mischief of section 40(a)(ii) of the Act. 

The judgment in the case of A. V. Thomas & Co. Ltd v. CIT [1986] 159 ITR 431 (Ker) relates to the issue of whether a surtax is a charge on income and a levy on the profits and gains of business and whether the same could be allowed as a deduction under section 37 of the Act, r.w.s.40(a)(ii) of the Act. It was held in this case that surtax is an application of profits and gains of business after they have been earned and it is not an expenditure laid out or expended for the purposes of business and therefore, not an allowable deduction. Therefore, whether or not the amount in question, comes within the express prohibition contained in section 40(a)(ii), the claim for deduction of surtax in computing the total income of an assessee, is not allowable. It may also be stated here that the aforesaid judgment of the Kerala High Court has been affirmed by the Supreme Court, in the case of Smith Kline and French (India) Ltd v. CIT [1996] 219 ITR 581 (SC). 

Health & Education Cess not allowed as business expenditure - Section 37

It may also be stated here that in the aforesaid judgment of the Supreme Court, the case of Jaipuria Sarnia Amalgamated Collieries Ltd v. CIT [1971] 82 ITR 580 (SC), has also been considered. The aforesaid criteria applied by the Kerala High Court to the charge of the surtax is equally applicable to the charge of education cess, in view of the following reasons: 1. Both types of education cess are charged under section 2 of Chapter II of the Finance Act, as an additional surcharge and the same are calculated at the rate of 2% and 1% of income-tax plus surcharge, respectively, As per section 2(1) of Chapter II of the Finance Act, income-tax shall be charged at the rates specified in Part I of the First Schedule and such tax shall be increased by a surcharge for the purposes of Union, calculated in each case in the manner provided therein. Thus, the surcharge is nothing but a part of the tax. 2. Thus, the education cess is a levy on the total income, computed under the Income-Tax Act. It is an application of the profits and gains of the business, after they have been earned, 3. Therefore, any amount paid on account of the education cess is not an expenditure laid out or expended for the purposes of the business. 

In the case SRD Nutrients Private Limited v. Commissioner of central excise reported in [TS-5207-SC-2017-0], the Hon’ble Supreme Court, while examining the issue of “whether the Education Cess and Higher Education Cess which were paid along with the excise duty were liable to be refunded along with the central excise duty in terms of the exemption notifications”, elucidated on the nature of Cess levied on Excise Duty or Service Tax under Central Excise Act or Finance Tax and held it to be in nature of excise duly approving the Hon’ble Rajasthan High Court judgment in the case Banswara Syntex Ltd v. Union of India reported in [TS-6662-HC-2016 (RAJASTHAN )-0], wherein it was held that 

“15. The very fact that the surcharge is collected as part of a levy under three different enactments goes to show that the scheme of levy of Education Cess was by way of collecting special funds for the purpose of Government projects towards providing and financing universalized quality of basic education by enhancing the burden of Central Excise Duty, Customs Duty, and Service Tax by way of charging a surcharge to be collected for the purpose of Union. It was made clear that in respect of all three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which the surcharge was appended and was to be governed by the respective enactments under which Education Cess in the form of surcharge is levied & collected.” 

In the case of CIT v. International Instruments P. Ltd. [1983] 144 ITR 936 (Kar) the Division Bench of the Karnataka High Court held that the surtax levied on the chargeable profits under the Companies (Profits) Surtax Act, 1964 (hereinafter referred to as the “Surtax Act”) was nothing but an additional tax on the profits and (1) gains of an assessee’s business and since surtax was a charge on the profits and gains of the business of companies, the company was not entitled to claim a deduction of surtax payable by it in computing its total income under the Income-tax Act. In the Molins of India Ltd v. CIT [1983] 144 ITR 317, the Calcutta High Court held that the tax imposed by the companies (Profits) Surtax Act,1964 was essential of the same character as income-tax or excess profits tax and liability – to pay this tax depends upon whether profits are made or not. 

The Division Bench of the Calcutta High Court also held that surtax was not also allowable in view of the provisions of section 40(a)(ii) of the Income-tax Act, 1961, and the term “tax” in the said provision could not be understood to mean only income-tax. It was held that the tax sought to be imposed on a company by the Companies (Profits) Surtax Act comes within the mischief of section 40(a)(ii). The decision of the Madras High Court in the case of Sundaram Industries Ltd. v. CIT reported in (1986) 159 ITR 646 is noteworthy to consider. The relevant Para from the above judgment is reproduced below

“13. With regard to the construction of section 40(a)(ii), the Calcutta High Court pointed out that the preamble of the Surtax Act stated that the Act was to impose a special tax on the profits of certain companies. It was held that the surtax imposable has to be calculated on the basis of the total income of the assessee company after- making statutory adjustments and if the tax that is sought to be imposed is not on the profits or gains of the business of the assessee. it is certainly levied on the basis of the profits or gains made by the assessee company in its business and, therefore, it could not be said that the tax sought to be imposed by the Surtax Act will not come within the mischief of section 40(a)(ii)of the Income-tax Act.” 

The Calcutta High Court also negated the argument that the definition of “tax” in section 2(43) must be read in section 40(a)(ii) of the Act. The relevant observations are as follows (p. 328 of 144 ITR)

“We are unable to accept the contention that ‘tax’ in s. 40(a)(ii) must be understood to mean only income-tax. The definition is given in s. 2(43) only will apply ‘unless the context otherwise requires. The expression ‘any rate or tax’ in s.40(a)(ii) means any rate or any tax and not income tax only. That section is not confined to income- tax only is made clear by the words ‘levied on the profits or gains of any business or profession or assessed at a proportion of or otherwise on the basis of any such profits or gains.” 

In the light of the discussion in the preceding paragraphs, it is clearly established that: a. Education cess, as contemplated under the Chapter II of the Finance Act is nothing but an additional surcharge which, in turn, is nothing but tax chargeable under the Act. The education cess is nothing more than an apportionment of profits after they have arisen. In other words, it is not a charge on the profits, but an allocation or an apportionment that is made thereafter.  Besides, the education cess is not relatable to the carrying on of the business of the assessee, because if the assessee suffers a loss or does not have any chargeable profits, then no education cess is payable but the assessee can carry on his business activity. In other words, the Education Cess is chargeable only in the event of chargeable profits being there and not otherwise. Hence, the Education Cess is a tax for the purpose of section 40(a)(ii) and hence is not allowable as a deduction from computing the profits or gains of any business or profession. Accordingly, the ‘education cess’ fails the fundamental tests of deductibility u/s 37 and is also hit by the mischief of section 40(a)(ii) of the Income-tax Act, 1961.

Hence, the amendment vide Finance Act, 2022 should be seen as a clarification that has retrospective applicability.

Fri, 14 Oct 2022 22:32:00 -0500 en text/html https://taxguru.in/income-tax/health-education-cess-allowed-business-expenditure-section-37.html
Killexams : Alabama’s arguments in voting rights case are clearly grounded in white supremacy

On Tuesday, Alabama confirmed what we have long known to be true: Lawmakers there are willing to do anything in their power to deny the rights of communities of color. During oral arguments before the Supreme Court in Merrill v. MilliganAlabama asserted that they have the authority to bypass the Voting Rights Act, a move that would deliver them free rein to essentially draw maps that favor white voters over voters of color.

This should be an open-and-shut case. The Black community represents almost one-third of Alabama’s population, yet the state’s congressional maps contain only one majority-Black district out of seven. State lawmakers have weaponized redistricting by redrawing congressional maps after the 2020 census to spread some Black communities across multiple districts and combine others into one district, denying Black Alabamians fair representation in government. A three-judge federal court has already deemed this effort unlawful and unanimously struck down the maps in January. But Alabama, of course, appealed to the Supreme Court. 

Lawmakers there are willing to do anything in their power to deny the rights of communities of color.

In its appeal, the state launched a direct attack on Section 2 of the 1965 Voting Rights Act, the federal law protecting the right of voters of color to elect candidates that represent their communities. In its brief, Alabama audaciously attacked the three-part Gingles test, which has been used for decades to establish whether maps deny communities of color fair representation. But even Justice Samuel Alito seemed to question whether Alabama’s argument was “at war with” Gingles.

Furthermore, Alabama’s arguments against Section 2 are clearly grounded in white supremacy — as evidenced when the state’s solicitor general admitted to Justice Sonia Sotomayor that white Alabamians on the Gulf Coast were the “community of interest” that deserved protection and not Black Alabamians in the Black Belt. Alabama refers to this as “traditional redistricting criteria.” By explicitly prioritizing the interests of white residents, Alabama refuses to acknowledge the historical discrimination that Black communities have faced.

As shown in the Southern Poverty Law Center’s amicus brief supporting the Milligan plaintiffs, Black communities in Alabama have been denied equal access to health care, equal opportunity for education, and an equal voice in their communities. The power to elect officials who would champion equity for these residents resides at the voting booth. Yet, Alabama has historically prioritized the voting power of white Alabamians in its congressional maps and its state legislative maps, which the SPLC challenged in Thomas v. Merrill.

If the justices allow Alabama to continue denying Black communities fair representation, they will open the door to other states and localities following suit. And if the forces against democracy succeed in taking away the right to fair representation in Alabama, they will not stop there. They will take away every other right we have, state by state. Therefore, the Supreme Court’s ruling in this case will ultimately determine the fate of one of the most important civil rights laws in our nation’s history.

Stripping away the right of communities of color to equal representation is just the latest effort by anti-voter politicians to destroy voting rights in America. It follows the Supreme Court’s 2013 decision in Shelby County v. Holder, which removed requirements for states and localities with a history of discrimination to get federal pre-clearance before changing their voting laws; 2019’s Rucho v. Common Cause decision, which blocked challenges to partisan gerrymanders in federal court; and 2021’s Brnovich v. DNC decision, which made it difficult to challenge voter suppression laws.  

Just 16 years ago, the Voting Rights Act was reauthorized unanimously by the Senate and signed into law by President George W. Bush. Now, politicians are showing that they do not want Black communities to have a fair voice in government by blocking any attempt to restore federal protections for voting rights, such as the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act.

This ongoing assault on voting rights calls for a renewal of the civil rights movement. Just like we did when the Voting Rights Act became law, we can overcome this white supremacy-driven campaign by standing together and mobilizing our communities to make our voices heard.

We must call out voter suppression whenever and wherever we see it. We must stand against politicians who wish to strip away our democracy and threaten our voting rights. Most importantly, we must make sure that we exercise our fundamental right to vote at every opportunity — up and down the ballot, from the president of the United States to the local school board.

Sat, 08 Oct 2022 02:16:00 -0500 en text/html https://www.nbcnews.com/think/opinion/alabama-oral-arguments-voting-supreme-court-case-white-supremacy-rcna51064
Killexams : Supreme Court Justices Get Chance To Dismantle What’s Left Of Voting Rights Act

The Supreme Court hears arguments in Merrill v. Milligan Tuesday, a redistricting case that will deliver the conservatives an opportunity to gut the Voting Rights Act even more thoroughly.

At the center of the case is a congressional map, drawn by the Alabama legislature, that packed most of the state’s Black voters into one district even though Black Alabamians comprise 27 percent of state’s voting-age population. The map was challenged by voters and civil rights groups.

Alabama is asking the Court to throw away its traditional tests to identify illegal racial gerrymanders and to replace them with a new framework that would make such vote-dilution cases nearly impossible to prove. The justices in the right-wing majority gave a sign as to their posture on the case when they stayed an unexpected ruling from a lower court panel of judges — dominated by Trump appointees — tossing out the legislature’s map as a likely violation of the VRA and ordering a redraw.

Thanks, as always, for following along.

Read here for more on Jackson’s innovative use of conservatives’ favorite tactic against them.

And keep an eye out for my piece on Kagan’s lament of the demise of the VRA, coming soon!

“Where can the state win once it loses on the first Gingles condition?” he asked.

These kinds of cases are very hard to bring, and already the number of them are plummeting, as cited during these arguments.

“Justice Alito gave the game away when he said race-neutral means don’t look at communities of interest because it’s a proxy for race,” she said. 

“Indifference to racial inequality is exactly what Section 2 is barring or prohibiting,” she added.

These are what Alabama is suggesting using to achieve their “race-neutral” maps. He’s suggesting that if the simulations can’t produce two majority-minority district maps, those maps then can’t be reasonable.

Here’s the lineup:

We’re on Khanna now. The US Solicitor General is on deck.

Jackson is running down how the 14th Amendment was not passed in a race-neutral way — it was passed to undergird the rights of the newly-freed slaves.

“It’s not a race-blind remedy,” she says.

The conservatives have been recently favoring the historical argument to hack back rights, as seen most clearly in Dobbs. Here, Jackson is using the record to bolster the side of heightened protections for racial minorities.

The VRA, she pointed out, “has fared not well in this court.”

We’re now left with Section 2 to determine vote dilution cases.

“You’re asking us essentially to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail on,” she said, bewildered. “So what’s left?”

“I’m interested in whether you think as a matter of federal law, as a matter of the Voting Rights Act, you are prohibited from enacting a plan that has 0 majority-minority districts,” she said.

She added that we could be facing a situation where a minority comprising 27 percent of the state’s voting-age population “could be essentially foreclosed from electing candidates of their choice anywhere.”

He’s now done it twice: once to lob a softball that Alabama is not challenging the Gingles test itself, and once to question whether there are enough Black voters to make up two majority districts.

The model maps that challengers have to draw to prove a racial gerrymander are not necessarily the final maps. Alabama could still draw its own version that crafted two majority-Black districts.

Kagan immediately calls the case a “slam dunk” for the voters/civil rights groups that brought it, the same way the lower court found.

“This is an easy case, not one of the hard ones,” she says.

If the conservatives nix these Section 2 protections (the part of the VRA that governs these vote dilution cases), there will be hardly anything left of the once-legendary civil rights law.

In 2013, the Roberts court made preclearance toothless, a critical measure that forced areas with histories of racial discrimination to clear new election laws with the U.S. attorney general or the U.S. District Court for D.C. before they went into effect. That ruling freed up such states and regions to pass voter restrictions and shutter polling places, usually to the detriment of minority voters.

Then in 2021, the Court handed down Brnovich v. Democratic National Committee, weakening Section 2 and making it harder to bring challenges to discriminatory voting laws in court.

The Court’s process to identify illegal racial gerrymanders is hard enough to satisfy as it is (if you hear the term “Gingles test” thrown around, this is what they’re talking about). The people bringing the racial gerrymandering claim need to prove that: 1) the minority group is large and compact enough to constitute a majority in the district 2) the minority group is “politically cohesive” (its members tend to vote the same way) and 3) the group, when in the majority, usually votes as a bloc to defeat the minority’s candidates.

To satisfy the first requirement of the tests, then, plaintiffs have to show that a majority-minority district that doesn’t contort itself all over the state can be drawn. In a mind-melting argument, Alabama is arguing that that to draw those maps, using race as one of the primary factors, is an illegal racial gerrymander.

Alabama is arguing that only if you can basically craft a majority-minority district by accident and at random, without taking race into account, can you prove a racial gerrymandering claim.

Part of (good faith) map drawing is keeping like communities intact, an exercise that requires granular knowledge of the state and its history. Alabama would throw that out the window, with the happy coincidence of perhaps drawing maps with no majority-minority districts at all.

As many briefs detail at length, the panel of district court judges here did the work. They sat through days of testimony, called upon multiple, expert, map-drawing witnesses and leafed through alternate map models to conclude that the Alabama legislature had crafted a likely racial gerrymander in its congressional maps.

They also had some history to guide them. “Since 1992, Black candidates have won in the majority-Black District, but no Black Alabamian has won in any other congressional district, all of which have been supermajority-White,” wrote the respondents in a brief. Alabama has long been squishing all of its Black voters into one district to dilute their voting power, a gerrymandering practice called “packing.”

There are enough Black voters to make up a majority or near-majority in a second district, which is what the lower court ordered.

When the conservative Supreme Court majority decided to halt that panel’s ruling for a redraw, leaving the gerrymandered maps in place for the 2022 midterms, the liberal justices were livid.

“That decision does a disservice to our own appellate processes, which serve both to constrain and to legitimate the Court’s authority,” Kagan wrote in a scathing dissent. “It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.”

Tue, 04 Oct 2022 05:20:10 -0500 en-US text/html https://www.msn.com/en-us/news/politics/supreme-court-justices-get-chance-to-dismantle-whats-left-of-voting-rights-act/ar-AA12AqAJ
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