...who (or which side) is apparently winning the arguementWhen the IRS lawyer has to spend 20 of her alloted 30 minutes trying (and apparently failing) to answer the same question repeated by 7 of the 9 justices, I'd say the IRS case is pretty much down the toilet.
How would you like to be in the position of being a lawyer for the IRS? Everything being argued is at best constitutionally thin. At worst, it is all supported by a "tax court" which operates outside of the normal court system because if it's illegitimacy. It would be like being a medical doctor and euthanizer at the same time. Talk about your paradox's?
Yes, I would agree - the IRS case appears to be down the toilet. There is no way an employer can know what dollar amount of tips his employees might be making (and not reporting). To demand an employer pay taxes on those dollars is insane - because there is no way to calculate it. I believe this is basically what Miss O'Conner has now said - there was no way to calculate the amount; the IRS just charged them based on an arbitrary amount.
The only way around that is to have a "pool". In this pool, all tips are placed for each shift. Then the tips are counted and disbursed in equal shares. What bothers me about this method is it rewards bad waiters - If I got $20 because I took good care of customers, and my neighbor only got $5 because he did a lousy job - then why am I required to share the other $15 with him??
The lawfirm I worked for had a case like this and we won - showing the union cannot demand tips in a pool to be shared equally. However, this was in late 80's so things may have changed by now.