Justices Won't Hear Constitutional Challenge Of Income Tax

[Burnaby49]

We gt the same issue in Canada from time to time, an argument that some part of our constitution is actually unconstitutional. The response is that the constitution, since it is the supreme law of Canada, cannot be unconstitution regardless of what its provisions might say.

[wserra]

totally, absolutely, utterly irrelevant. Kind of like 99.99% of tax protestor/gurus.

So who's the 0.01%?

[AndyK]

Thoreau ?

[notorial dissent]

totally, absolutely, utterly irrelevant. Kind of like 99.99% of tax protestor/gurus.

So who's the 0.01%?

There must be 0.01% of a guru lying around somewhere statistics demand it, but finding .01% of a guru may be a bit of a stretch to find.

[fortinbras]

First, this is, by far, not the first attempt to quibble about the income tax by suggesting that it is an excise tax. There have been scores - perhaps hundreds - of unsuccessful cases already, several of them also denied certiorari by the US Supreme Court.

Second, an excise tax is one imposed on a particular event, some specific part in the chain of bringing something to market and making the transaction, or some particular event or privilege ... almost invariably a fixed tax assessed on the doing of something which the vast majority of people don't do or don't get to do (a very ubiquitous example is that tax on the sale of cigarettes and liquor). Excise is commonly regarded as a "luxury tax". But the income tax is aimed at something so expansive - as it intends to collect on virtually any form of revenue received for almost any reason - and at something that is received by anybody who isn't in a cradle or an oxygen tent, so that it is not a tax on a privilege or luxury.

Moreover, the 16th Amendment, by explicitly authorizing a tax upon incomes, eliminated the possibility of preventing the collection of that tax by means of quibbling about what specific type of tax it really was. see, e.g., Bowers v. Kerbaugh-Empire Co. (1926) 271 US 170 at 173-174, 70 L.Ed 886, 46 S.Ct 449.
https://scholar.google.com/scholar_ca ... 5828434

or, Sawukaytis v. CIR (6th Cir, June 16, 2004) 102 Fed.Appx 29, 93 AFTR2d 2847, 2004 US Tax Cases ¶ 431022 cert.den 543 US 1022. or a whole bunch of others.

[juan galt]

totally, absolutely, utterly irrelevant. Kind of like 99.99% of tax protestor/gurus.

So who's the 0.01%?

There must be 0.01% of a guru lying around somewhere statistics demand it, but finding .01% of a guru may be a bit of a stretch to find.

Hmmmm..might be me. lol

[Brian Rookard]

First, this is, by far, not the first attempt to quibble about the income tax by suggesting that it is an excise tax. There have been scores - perhaps hundreds - of unsuccessful cases already, several of them also denied certiorari by the US Supreme Court.

Second, an excise tax is one imposed on a particular event, some specific part in the chain of bringing something to market and making the transaction, or some particular event or privilege ... almost invariably a fixed tax assessed on the doing of something which the vast majority of people don't do or don't get to do (a very ubiquitous example is that tax on the sale of cigarettes and liquor). Excise is commonly regarded as a "luxury tax". But the income tax is aimed at something so expansive - as it intends to collect on virtually any form of revenue received for almost any reason - and at something that is received by anybody who isn't in a cradle or an oxygen tent, so that it is not a tax on a privilege or luxury.

Moreover, the 16th Amendment, by explicitly authorizing a tax upon incomes, eliminated the possibility of preventing the collection of that tax by means of quibbling about what specific type of tax it really was. see, e.g., Bowers v. Kerbaugh-Empire Co. (1926) 271 US 170 at 173-174, 70 L.Ed 886, 46 S.Ct 449.
https://scholar.google.com/scholar_ca ... 5828434

or, Sawukaytis v. CIR (6th Cir, June 16, 2004) 102 Fed.Appx 29, 93 AFTR2d 2847, 2004 US Tax Cases ¶ 431022 cert.den 543 US 1022. or a whole bunch of others.

And what's even more important ... the 16th Amendment is no longer necessary. The principle that underlies the 16th Amendment was the Pollock decision which relied on the idea that a tax on income was a tax on the source of the income. That principle was eventually done away with in the case of New York ex rel Cohn v. Graves, 300 U.S. 308 (1937).

As recognized by the Second Circuit in Ficalora v. CIR, 751 F.2d 85 (1984) ...

Finally, in the case of New York ex rel. Cohn v. Graves, 300 U.S. 308, 57 S.Ct. 466, 81 L.Ed. 666 (1937), the Supreme Court in effect overruled Pollock, and in so doing rendered the Sixteenth Amendment unnecessary, when it sustained New York's income tax on income derived from real property in New Jersey.

[.]

Wow, Brian, a blast from the past!

I greatly enjoyed your vivisections of TPs many years ago. Next thing you know, Dan Evans will reappear.

All the best to you.

[fortinbras]

The Sixteenth Amendment might be (and might have been) unnecessary or redundant in enabling Congress to enact a tax upon incomes, but the Amendment is still there, in the Constitution, necessary or not. This means that it continues to legitimize the income tax despite 'new' arguments against its constitutionality.

Saying that the Sixteenth Amendment is unnecessary is not the same as saying it's no longer part of the Constitution.

[Brian Rookard]

The Sixteenth Amendment might be (and might have been) unnecessary or redundant in enabling Congress to enact a tax upon incomes, but the Amendment is still there, in the Constitution, necessary or not. This means that it continues to legitimize the income tax despite 'new' arguments against its constitutionality.

Saying that the Sixteenth Amendment is unnecessary is not the same as saying it's no longer part of the Constitution.

The reason for pointing out that the 16 Amendment is no longer necessary is this: There are those who would say the 16th Amendment is invalid, and there are a large number of other persons who think that repealing the 16 Amendment would remove the power to tax incomes, and this is flat wrong.

There has *always* been the power to tax incomes, and the only question was whether or not such a tax needs to be apportioned, or whether it fell under the rule of uniformity.

Under Pollock, it was determined that a tax on rents of land were similar to a tax on the land itself, and thus required apportionment. That is, a tax on such income was a tax on the source.

This principle that a tax on income was a tax on the source of the income was also applied to the federal government's ability to tax the income of state officers. See Collector v. Day, 78 U.S. 113 (1870).

But once the proposition that a tax on income was a tax on the underlying source was jettisoned, then it became clear that the Supreme Court will never again hold that an income tax will be considered to be a direct tax. Thus any argument tied to the 16th Amendment becomes completely irrelevant. The 16th Amendment is a non-issue.

And once you point out that the 16th Amendment is irrelevant ... then there is no need to argue about its validity, interpretation, etc. It's a pointless exercise. The Supreme Court has abandoned the underlying principle that necessitated the 16th Amendment in the first place.

[fortinbras]

The US Supreme Court has already made clear that a tax upon incomes, upon wages and salaries, is not a direct tax.
Springer v. US (1881) 102 US 586, 26 L.Ed 253,
https://scholar.google.com/scholar_c ... sdt=10006 .

It follows that the income tax was legitimate even without the 16th Amendment, but the 16th Amendment was intended to show the undeniability of the income tax's legitimacy and put an end to quibblling.

[Dr. Caligari]

The US Supreme Court has already made clear that a tax upon incomes, upon wages and salaries, is not a direct tax.
Springer v. US (1881) 102 US 586, 26 L.Ed 253,
https://scholar.google.com/scholar_c ... sdt=10006 .

It follows that the income tax was legitimate even without the 16th Amendment, but the 16th Amendment was intended to show the undeniability of the income tax's legitimacy and put an end to quibblling.

Yes, but Pollack distinguished Springer and said that a tax on income from property (rents, stock dividends, etc.) was a direct tax. The 16th Amendment was needed at the time to overrule Pollack on that point.