Thursday, May 29, 2008
Andrew Balcer (J.D. 2008, St. Louis) has published Comment, Can the Taxman "Tax Your Tears": Murphy v. IRS and the Inclusion of Personal Injury Compensation in "Income," 27 St. Louis U. Pub. L. Rev. 195 (2008). Here is part of the Conclusion:
The second Murphy decision contains language more deferential and broader than any other court case on the subject of income. Under all of the negative criticism and pressure from tax articles and tax scholars, Chief Judge Ginsburg's buckling is understandable. His buckling is also unfortunate. Some things are too solemn for Congress to tax so arbitrarily.
It was the hope of this Comment to instill in readers the notion that Congress cannot simply make up whatever it likes as a constitutional definition of income. It was a second goal that readers could see, through the brief histories set out in the paragraphs above, the changing conceptions of income and personal injury compensation that have existed throughout the country's history. After this reading, it should be apparent that personal rights to one's body and emotional-well being were not income as the Framers conceived the term, nor are they income now, in the twenty-first century. While society has moved past a stale definition of res income to a more dynamic and evolving definition under Glenshaw and Haig-Simons, there are still certain things, such as psychological health and human physical attributes, which Congress must leave solemn. This author's position is, of course, the minority view. However, as the concept of income has proven, even unfair notions of what is allowable eventually give way to more enlightened times.