Graetz: To Avoid The Moore Morass, The Court Should DIG It (Dismiss As Improvidently Granted)

Michael J. Graetz (Columbia), To Avoid the Moore Morass, the Court Should DIG It — But It Probably Won’t, 181 Tax Notes Fed. 1253 (Nov. 13, 2023):

In this article, Graetz examines several of the briefs filed in Moore and argues that regardless of who wins the case, there will be no good outcomes if the Supreme Court holds that realization is a constitutional requirement. This article is based on a presentation on Moore to the International Tax Policy Forum in Washington on October 20. It has been updated to reflect amicus briefs in support of the government that were filed by October 23.

The justices and their clerks have a large stack of briefs to read, understand, and evaluate between now and December 5th, when the oral argument is scheduled in Moore. Based on grading exams at the Yale and Columbia law schools for many years — I was always disappointed how poorly I had taught the course because of what the exams revealed about the depth of the students’ knowledge. My successors may be doing better than I did in that regard, but I would be surprised if there are many tax experts among the justices and clerks of the Supreme Court now. I hope this does not cause major problems for the income tax.

Prior TaxProf Blog coverage:

• Christopher Cox (Former Rep. (1989-2005) & SEC Chair (2005-2009)) & Hank Adler (Chapman), The Ninth Circuit Upholds A Wealth Tax (Jan. 30, 2023)
• Reuven Avi-Yonah (Michigan), If Moore Is Reversed, 179 Tax Notes Fed. 2215 (June 26, 2023)
• John Brooks (Fordham) & David Gamage (Indiana), Moore v. United States and the Original Meaning of Income (June 27, 2023) (reviewed by Michelle Layser (San Diego) here)
• Daniel Hemel (NYU), The Low And High Stakes Of Moore, 180 Tax Notes Fed. 563 (July 24, 2023) (reviewed by Young Ran (Christine) Kim (Cardozo) here)
• Alex Zhang (Emory), Moore, Eisner v. Macomber, and the Future of Structural Tax Reform, 92 Geo. Wash. L. Rev. __ (2024) (Aug. 29, 2023)
• Thomas Lee (BYU), Lawrence Solum (Virginia), James Cleith Phillips (Chapman) & Jesse Egbert (Northern Arizona), Moore, Corpus Linguistics, And The Original Public Meaning Of The Sixteenth Amendment (Sept. 14, 2023)
• Christopher Hanna (SMU), Moore, The 16th Amendment, And The Underpinnings Of The TCJA’s Deemed Repatriation Provision (Sept. 28, 2023)
• Joint Committee on Taxation, Tax Code Provisions Implicated In Moore (Oct. 5, 2023)
• Natasha Sarin (Yale), The Supreme Court Tax Case That Could Blow A Hole In The Federal Budget (Oct. 7, 2023)
• John Brooks (Fordham) & David Gamage (Indiana), “From Whatever Source Derived”: The Sixteenth Amendment and Congress’s Income Tax Power (Oct. 9, 2023)
• Reuven Avi-Yonah (Michigan), Moore Questions Than Answers, 180 Tax Notes Fed. 2256 (Oct. 10, 2023)
• Steven Rosenthal (Tax Policy Center), Moore Could Invalidate Decades Of Tax Rules, 181 Tax Notes Fed. 285 (Oct. 10, 2023)
• Lawrence Zelenak (Duke), Reading The Taxpayers’ Brief In Moore (Oct. 18, 2023)
• NYU Tax Law Center, Guide To Moore (Oct. 25, 2023)
• Blaine Saito (Ohio State), Review Of  “From Whatever Source Derived”: The Sixteenth Amendment and Congress’s Income Tax Power, by John Brooks (Fordham) & David Gamage (Indiana) (Oct. 27, 2023)
• Tax Prof Amicus Briefs In Moore v. United States: 22 For Government, 1 For Taxpayer (Oct. 31, 2023)
• Calabresi On Moore: Taxes On Wealth And Unrealized Capital Gains Are Unconstitutional (Nov. 1, 2023)