TaxProf Blog

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

Saturday, February 14, 2009

The 5th and 16th Amendments: Is Taxation an Uncompensated Taking?

Mark R. Jundt (Blackwell Burke, Minneapolis) & Vernon R. Pederson (Retired Justice, North Dakota Supreme Court) have published A Vexatious Problem Among Many: In Light of the Conflict Between the Fifth and Sixteenth Amendments, Is Taxation an Uncompensated Taking? 84 N.D. L. Rev. 365 (2008).  Here is the Introduction:

The only two things in life that are certain are Death and Taxes, so the popular lamentation goes. The Sixteenth Amendment to the Constitution of the United States provides that “Congress shall have power to lay and collect taxes on incomes, from whatever source derived.” As all taxpaying Americans know, the government utilizes its powers under the Sixteenth Amendment to collect its citizens' money and utilize it, ideally, for public good. The benefits of taxation are vast and override even the necessity of such a system. The roads we drive on, the public schools that educate us, and the government officials that lead us are among the countless direct benefactors of the powers given to Congress by the Sixteenth Amendment. Despite these praises, there is a contravening clause found in the Constitution. The Fifth Amendment provides in part that “private property [shall not] be taken for public use, without just compensation.” Although this simple sentence sat mostly dormant for an extended period of time, more and more courts are effectively championing its cause within the last century. Its cause is simple: to protect private individuals from bearing the burden of many.  In analyzing whether taxation is a taking, this article first introduces takings jurisprudence generally.  The article then applies that jurisprudence *366 to the topic of taxation. [FN4] Finally, the article analyzes the nuances of taxation as a possible taking, along with suggested solutions.

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