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PaperclipPerfector  5mo ago (text post)   23800 thread views

Culture War Roundup for the week of June 17, 2024

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On a skim of Moore (see here for my earlier post based on the briefs):

  • The IRS wins 7-2 (Kav writing, but it read like a Roberts opinion), on the narrow grounds that a tax on realised income of a corporation imputed to the shareholders is an "income tax" and therefore legal under the 16th amendment. It avoids the question that people were excited about, and which the Court said it would answer when it granted cert, which is whether a tax on unrealised income can be an "income tax".
  • Thomas (who I expected to dissent) and Goresuch (who I did not) dissent. The tone of the dissent is that their real beef is that the majority punted on the big question - their writing on why the majority are wrong on the imputed realisation question they did answer is a bit half-hearted.
  • Barrett and Alito do not join the majority, but concur in the judgement, saying that there is a realisation requirement, but that imputed realisation meets it.
  • Jackson joins the majority, and writes separately that there are lots of ways the tax at issue might be indirect (and thus legal), including the possibility that a tax on Americans holding shares in foreign companies might be an indirect tax by analogy with tariffs and suchlike.

So on the question that made the case a hot-button case, you have 4 justices saying that there is a realisation requirement, 4 1/2 punting, and Jackson sort-of-saying that there isn't. This means that a wealth tax almost certainly loses if it reaches the Court.

Other comments:

  • Everyone involved (parties and all 9 justices) was very keen to say that they didn't want to blow up the Internal Revenue Code by saying that all forms of taxation based on imputed realisation are unconstitutional. There is a lot of casuistry about whether or not the tax at issue is distinguishable from the long-standing forms of imputed realisation (S-corps, LLPs and similar corp/partnership hybrids, personal service company taxation etc.)
  • Both the majority and the dissent write about the history from the perspective that the 16th amendment redefined income taxes as indirect, not that it made a specific type of direct tax legal. This seems silly to me.

One other point. The dissent actually calls out the majority for reading the law wrong because the majority was worried about reading where the law (in the dissent’s view) required it to go. So I’m not sure we can say all 9 were very keen not to blow up the IRC. It isn’t clear Thomas felt that was needed but seemed willing to do so if his understanding of the law so required.

Both the majority and the dissent write about the history from the perspective that the 16th amendment redefined income taxes as indirect, not that it made a specific type of direct tax legal. This seems silly to me.

It's apparently a popular opinion in legal circles these days that Pollock v Farmer's, the decision that necessitated the 16th amendment to legalize income taxes, was a terrible decision and that income taxes were always indirect taxes. This bit is, I think, a snipe in that direction, included because the 16th amendment means the Court will never get the chance to overrule Pollock itself.

I have never understood the hate, but it's a moot point now.

I think the majority opinion dropped a ton of tea leaves suggesting a wealth tax goes the opposite way without saying so explicitly.

As I write below, the dissent reads more like they think 965 could be unconstitutional as applied even if not facially (I know that isn’t what is said). I think the other thing that bothers them even if it is out of the scope of this petition is the issue of retroactivity. Taxing income earned 30 years prior seems wrong.

My prediction was:

With that model, I will guess that Roberts will guide a 5-4 or 6-3 majority that carves out a narrow decision that prevents expansion of taxation powers in the most egregious fashion while not rolling much back. Gorsuch may well pen a concurrence that's much more strident and Thomas may join him with a "yeah, and also we should burn all this shit down" opinion. Sotomayor or Jackson will pen a leftist screed that amounts to, "but if the conservatives are right, this would stop a lot of taxes that we like!" opinion. Kagan will dutifully concur, but decline to write an opinion because the reasoning is too sketchy.

I didn't go narrow enough and didn't give the liberal justices enough credit for being willing to join that narrow opinion. Likewise, I overstated just how far Gorsuch and Thomas would be willing to go. As with many decisions, the correct update is in the direction of the Justices just not actually being very radical.

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