Circuit-Specific Application of the Internal Revenue Code: An Unconstitutional Tax

30 Pages Posted: 15 Jun 2016

See all articles by Jeffrey Kinsler

Jeffrey Kinsler

Belmont University - College of Law

Date Written: 2003

Abstract

For all practical purposes, the Constitution prescribes only one limit on the federal government's power to tax: the Uniformity Clause, which requires that indirect taxes, such as income and excise taxes, be "uniform throughout the United States ... " It is exceedingly rare for a federal tax law to violate the Uniformity Clause. The Internal Revenue Code does not fix different taxes for different states, as Congress has carefully crafted the tax laws to avoid geographical distinctions.

Unfortunately, the Internal Revenue Service ("IRS") has not always been so careful. In recent years, the IRS has adopted a practice of applying different tax laws to different states. This occurs when the IRS issues a formal opinion declaring that it will not enforce certain provisions of the Internal Revenue Code in states located within certain federal circuits. This Article submits that the IRS's non-uniform application of the tax law violates the Uniformity Clause of the U.S. Constitution. In an endeavor to substantiate this hypothesis, Part I will analyze the constitutional restrictions on the federal government's power to tax and the effect of the Sixteenth Amendment on those restrictions. Part II will offer examples of the IRS's practice of applying tax laws in a non-uniform manner. Part III will demonstrate why the IRS's practice violates the Uniformity Clause. Part IV will propose a practical and constitutional solution to the IRS's arguably unconstitutional practice.

Keywords: United States Constitution, Constitutional Law, Uniformity Clause, Internal Revenue Service (IRS), Internal Revenue Code, Tax Law

Suggested Citation

Kinsler, Jeffrey, Circuit-Specific Application of the Internal Revenue Code: An Unconstitutional Tax (2003). Denver University Law Review, Vol. 81, 2003; Belmont University College of Law Research Paper No. 2795623. Available at SSRN: https://ssrn.com/abstract=2795623

Jeffrey Kinsler (Contact Author)

Belmont University - College of Law ( email )

1900 Belmont Boulevard
Nashville, TN 37212
United States

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