Paul L. Caron
Dean




Wednesday, September 8, 2021

WSJ: Can Congress Tax Wealth By ‘Deeming’ It Income?

Wall Street Journal op-ed:  Can Congress Tax Wealth by ‘Deeming’ It Income?, by David B. Rivkin Jr. & Andrew M. Grossman:

Charles and Kathleen Moore have done well, but they certainly aren’t billionaires. Yet the couple’s constitutional challenge stands to slam shut the door on a federal wealth tax like the one Sen. Elizabeth Warren wants to enact.

The story is complicated, though less so than the tax code. In the 1990s Mr. Moore, a software engineer, worked at Microsoft on its Office applications and grew close to a fellow programmer, Ravi Agrawal. ... Mr. Agrawal needed capital to get [his] business off the ground. He approached friends to invest in his new company, KisanKraft, and the Moores put up $40,000. ... The Moores have never received a dime from their investment. ... 

Then the tax bill came. As part of the Tax Cuts and Jobs Act of 2017, Congress reworked the way multinational corporations are taxed, limiting the amount that they had to pay on foreign income. Offsetting part of the cost was a new, one-time tax on earnings that certain foreign corporations had accumulated over the preceding 30 years but not distributed to their shareholders through dividends. The law deemed those earnings as 2017 income to the shareholders and taxed them on it. The Moores’ bill amounted to $15,000. They paid and are now suing for a refund, on grounds that the new tax is unconstitutional.

The Constitution grants Congress the “power to lay and collect taxes,” but with limits. Article I requires that any “direct tax”—one that falls directly on the payer rather than being passed on to someone else, such as the consumer—“be apportioned among the several states” according to population. The idea was that taxation, like representation, should be fairly apportioned so that no state or region could be singled out for disadvantage. ...

The Supreme Court held the first income tax unconstitutional as an unapportioned direct tax in 1895, and Congress eventually responded by proposing the 16th Amendment, ratified in 1913. It authorizes Congress to tax “incomes, from whatever source derived, without apportionment.”

So far as tax law goes, the Moores’ argument is straightforward. The new tax is a direct tax, and it isn’t on income—after all, they haven’t received any from KisanKraft. Instead, they’re being taxed on their property, the KisanKraft shares. The tax is therefore constitutionally invalid because it isn’t apportioned.

The government insists that the Moores are being taxed on income, because KisanKraft could theoretically distribute its accumulated earnings in the future. The courts, however, have consistently defined “income” to require, as the Supreme Court put it in Commissioner v. Glenshaw Glass (1955), “undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” As the Moores observe, they haven’t realized a dime in income. The government argues that the courts should abandon the realization requirement, giving the federal government carte blanche to tax “deemed” income without apportionment.

The stakes of the Moores’ case go well beyond their own tax liability. If they prevail, that would confirm that the Supreme Court’s precedents generally requiring apportionment and limiting the exception for taxes on “income” to its common understanding remain good law, clearly barring any kind of federal property tax, including a wealth tax—unless Congress apportions it, which there is no obvious way to do.

https://taxprof.typepad.com/taxprof_blog/2021/09/wsj-can-congress-tax-wealth-by-deeming-it-income.html

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