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The Taxing Power, the Sixteenth Amendment, and the Meaning of ‘Incomes,’

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The Taxing Power, the Sixteenth Amendment, and the Meaning of ‘Incomes,’ Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2006 The Taxing Power, the Sixteenth Amendment, and the Meaning of ‘Incomes,’ Erik M. Jensen Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Constitutional Law Commons, and the Tax Law Commons Repository Citation Jensen, Erik M., "The Taxing Power, the Sixteenth Amendment, and the Meaning of ‘Incomes,’" (2006). Faculty Publications. 219. https://scholarlycommons.law.case.edu/faculty_publications/219 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Electronic copy available at: http://ssrn.com/abstract=336740 THE TAXING POWER, THE SIXTEENTH AMENDMENT, AND THE MEANING OF "INCOMES" ErikM. Jensen* I. INTRODUCTION .................................................................................... 1058 IT. THE CONSTITUTIONAL FRAMEWORK AND PLENARY POWER ............... 1064 A. The Uniformity Clause ................................................................. 1065 B. The Direct-Tax Apportionment Clauses ....................................... 1066 1. Mechanics of the Apportionment Rule .................................. 1067 2. Intended Effect of the Rule .................................................... 1067 3. Meaning of"Direct Taxes": The Historical Background ....... 1069 4. Meaning of"Direct Taxes": Making Sense of Text and Constitutional Structure .......................................................... 1073 5. Why a Broad Interpretation of "Direct Taxes" Is Consistent with Original Understanding ................................ 1077 6. A Final Point on Direct Taxation ........................................... 1079 Ill. SETTING THE STAGE FOR "TAXES ON INCOMES": CONSUMPTION TAXES AND INCOME TAXES ................................................................ 1080 A. Income Taxes and Consumption Taxes: A Primer ...................... 1080 1. Income Tax............................................................................. 1081 2. Cash-Flow Consumption Tax. ................................................ 1081 3. Wage Tax ..................................................................... ;......... 1082 B. Assumptions ................................................................................. 1083 IV. THE MEANING OF "TAXES ON INCOMES" ............................................ 1085 A. The Nature of the Constitution and "Inherent Malleability" ........ 1087 B. The Income Tax as a Reaction to the Perceived Inadequacies of Consumption Taxes ............................................ 1091 1. The 1894 Income Tax and Its Predecessor ............................ 1093 2. On to the Sixteenth Amendment ............................................ 1107 3. A Wealth Tax Isn't an Income Tax ........................................ 1128 C. Consumption Taxes and Income Taxes Today ............................. 1129 * David L. Brennan Professor of Law, Case Western Reserve University. The author thanks Professors Henry P. Monaghan, Jr., Jonathan Entin, Deborah Geier, and Andrew Morriss, and participants in a faculty colloquium at the University of Florida College of Law, for very helpful comments on an earlier draft. 1058 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. D. The Supreme Court and the Meaning of "Incomes" .................... 1131 1. The Notion of a Fixed Concept oflncome ......... ~ ................... 1133 2. Defer to Understanding of "Incomes" at Time of Ratification ............................................................................. 1146 3. Accounting Conventions and the Constitution ....................... 114 7 E. The Assumptions Behind Congressional Power to Define "Incomes" ..................................................................................... 1152 V. CONSTITUTIONALITY BY ACCRETION AND THE "GOTCHA" READING OF THE SIXTEENTH AMENDMENT ........................................ 1154 VI. CONCLUSION ....................................................................................... 1158 I. INTRODUCTION The taxing power-the "Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States" 1-is plenary, or so we're often told, and "plenary" means without significant limits. 2 It's the conventional wisdom that a necessarily expansive power to raise revenue shouldn't be­ indeed can't be-subject to serious constitutional restraints. It's also the conventional wisdom that the ratification of the Sixteenth Amendment in 1913 did nothing more than remove a temporary, illegitimate impediment to the plenary taxing power. In the 1895 Income Tax Cases (Pollock v. Farmers' Loan & Trust Co.), 3 the Supreme Court struck down an 1894 income tax on the ground that it was a direct tax required, under Article I of the Constitution, to be apportioned among the states on the basis of population. 4 The Sixteenth Amendment, exempting 1. U.S. CONST. art. I, § 8, cl. 1. 2. See, e.g., LoRENP. BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION 1877- 1917, at 154 (HenryS. Commager & Richard B. Morris eds., 1971) (describing clause as "so sweeping that it has seldom been construed as an interference with any tax measure"). 3. 157 U.S. 429 (1895) (holding unapportioned tax on income from real estate unconstitutional); 158 U.S. 601 (1895) (extending principle to income from personal property and rejecting entire 1894 tax). 4. See U.S. CONST. art. I, § 9, cl. 4 (''No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."); U.S. CONST. art. I, § 2, cl. 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. 33: 1057] TAXING POWER 1059 "taxes on incomes" from the apportionment requirement, 5 corrected that mistake, reestablishing the plenary taxing power. This Article attacks the conventional wisdom in a couple of respects. Building on earlier work, this Article continues my challenge to the notion that the taxing power is plenary (if by "plenary" we mean without significant restrictions): the specific limitations on the taxing power in the Constitution weren't intended to be trivial.6 Furthermore, this Article focuses on the Sixteenth Amendment and challenges the generally held notion that the Amendment supports an unlimited taxing power. Hardly anyone these days believes that the Sixteenth Amendment imposes a substantive limitation on congressional power, and the Amendment reads as if it were a grant of, not a restriction on, power: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any eensus or enumeration."7 In the words of Professor Daniel Shaviro, "[I]t is generally agreed that the amendment does not significantly constrain how taxable income can be defined by Congress and the courts."8 The conventional syllogism goes like this: Congress can define what "income" is, and 1t can therefore define what a "tax on incomes" is. If Congress says a tax is on income, that ends the discussion: no apportionment is required. Like "general welfare"9 or "public use," 10 the term "taxes on incomes" imposes no serious limitations on Congress, and it's not a judicially enforceable concept. II Victor Thuronyi has put the argument this way: "Because people have different views of tax equity, there is no 'true' concept of income.''I2 5. U.S. CONST. amend. XVI; see infra text accompanying note 7. 6. See Erik M. Jensen, The Apportionment of "Direct Taxes": Are Consumption Taxes Constitutional?, 97 COLUM. L. REV. 2334 (1997). 7. U.S. CONST. amend. XVI. 8. Daniel N. Shaviro, Psychic Income Revisited: Response to Professors Johnson and Dodge, 45 TAXL. REv. 707,711 n.17 (1990). 9. U.S. CONST. art. I,§ 8, cl. 1; supra text accompanying note 1. 10. U.S. CONST. amend. V ("nor shall private property be taken for public' use without just compensation"). 11. See South Dakota v. Dole, 483 U.S. 203, 207 n.2 (1987) ("The level of deference to the congressional decision is such that the Court has more recently questioned whether 'general welfare' is a judicially enforceable restriction at all." (citing Buckley v. Valeo, 424 U.S. 1, 90- 91 (1976))); Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 239 (1984) ("When the legislature has spoken [in defining 'public use'], the public interest has been declared in terms well-nigh conclusive." (quoting Berman v. Parker, 348 U.S. 26, 31 (1954))). 12. Victor Thuronyi, The Concept of Income, 46 TAX L. REv. 45, 53 (1990). "[I]ncome could mean the same thing as consumption or wealth, or something else, depending on the criteria we choose for determining tax equity." Id. at 54. 1060 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. Instead, the concept "is by its nature highly practical, flexible and ad hoc," 13 and that flexibility has constitutional implications: [T]he Constitution allows Congress to provide
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