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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Monday, March 31, 2008

Germain Critiques Taxpayer's Reply Brief in Murphy

As blogged earlier today, Gregory L. Germain (Syracuse) critiques the taxpayer's reply brief in response to the Government's brief in opposition to her petition for certiorari in Murphy v. IRS, 493 F.3d 170 (D.C. Cir. 7/3/07):

Murphy’s Last Rights

Marrita Murphy’s reply brief in support of her petition for certiorari contains nothing new. She argues that the Court of Appeals’ decision is inconsistent with the Supreme Court’s famous opinion in Glenshaw Glass, which defined income as an accession to wealth. Murphy argues that because the Court of Appeals did not rule her award to be an accession to wealth, Glenshaw Glass would somehow prevent taxation.

Murphy’s analysis is seriously flawed. Nowhere did Glenshaw Glass say that Congress’s taxing power was limited to taxing income. Murphy II is not inconsistent with Glenshaw Glass in any way. It is based on a different constitutional grant of taxing power.

Murphy also argues that even if there are no directly conflicting authorities, the case is important enough, and of high enough profile within the tax community, to warrant review. The tax community’s interest was focused on Murphy I, which struck down the tax as beyond the scope of Congress’s 16th Amendment taxing powers. Murphy I was in error in not recognizing the existence of Congress’s Article I taxing powers. Murphy II has calmed the waters. The tax community, although not entirely satisfied, has moved on. All that remains is for the Supreme Court to administer the last rights. Domine, Non Sum Dignus. Certiorari Denied.

See below the fold for prior TaxProf coverage:

  • Taxpayer Files Reply Brief in Murphy (3/31/08)
  • Germain Critiques Government's Response to Murphy's Cert. Petition (3/19/08)
  • Government Files Brief in Opposition to Cert. Petition in Murphy (3/19/08)
  • Germain on Murphy's Cert. Petition (12/17/07)
  • Murphy Files Cert. Petition in U.S. Supreme Court (12/14/07)

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    After practicing tax law for over 25 years, I am shocked that the sections of the Internal Revenue Code I have been reading and applying all these years (Subtitle A - Income Taxes) are not limited to the taxation of "income." Didn't Congress itself limit the base of the tax on individuals under section 1 to "income"? See section 61 which defines gross income as all "income" from whatever source derived.

    Posted by: DennisWillams | Apr 2, 2008 4:21:41 PM