The Wealth Tax: Apportionment, Federalism, and Constitutionality
University of Pennsylvania Journal of Law and Social Change, Vol. 23
25 Pages Posted: 10 Jun 2020 Last revised: 14 Feb 2022
Date Written: December 15, 2019
Proposals of wealth taxation — as a mechanism to combat economic inequality and raise revenue for welfare programs — have dominated recent political debate. Despite extensive academic commentary, questions surrounding the constitutionality of a wealth tax remain unresolved. Previous scholarly approaches have drawn a dichotomy between two key cases. Supporters of the wealth tax emphasize Hylton’s functional rule for identifying direct taxes, which must be apportioned under the Constitution, and reject Pollock, which invalidated the federal income tax on the grounds that it was a direct tax. Opponents of the wealth tax, in contrast, argue that Pollock, rather than Hylton, was correctly decided.
This Article examines the inequitable results of apportioning the wealth tax and argues that both Hylton’s rule of reason and the underlying, federalism rationale of Pollock disfavor classifying the wealth tax as a direct tax. Using IRS personal-wealth data, I estimate the wealth tax rates as apportioned in accordance with the geographic distribution of wealth among the states. The disparate impact of apportionment — imposing tax rates ranging from 2% in D.C. to 40% in West Virginia — provide strong support for the constitutionality of wealth taxation at uniform rates.
Keywords: tax, wealth tax, federalism
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