Rethinking Eisner v. Macomber, and the Future of Structural Tax Reform

George Washington Law Review, Vol. 92, No. 1

76 Pages Posted: 25 Aug 2023 Last revised: 6 Dec 2023

See all articles by Alex Zhang

Alex Zhang

Emory University School of Law

Date Written: August 1, 2023


In June 2023, the Supreme Court granted the petition for a writ of certiorari in Moore v. United States, ostensibly a challenge to an obscure provision of the 2017 tax legislation. Moore’s real target is the constitutionality of federal wealth and accrual taxation, which policymakers have proposed to combat record inequality and raise revenue for social-welfare reform. At the center of the doctrinal dispute in Moore is a century-old case, Eisner v. Macomber, on which the Moore Petitioners and other commentators have relied to argue that Congress has no power to tax wealth or unrealized gains (e.g., appreciation in unsold stocks). Most scholars agree that Macomber limited Congress’s taxing power to realized income, and they argue that subsequent cases have abrogated Macomber. However, the Supreme Court has never overruled—in fact, went out of its way not to overrule—Macomber, and some contend that it remains good law.

This Article reconceptualizes Macomber and analyzes its doctrinal implications for structural tax reform. In contrast to the prevailing scholarly views, it argues that Macomber is best read as a case turning on the absence of income rather than realization. Through careful analysis of the majority opinion and its doctrinal background (in particular constitutional challenges to the Civil War income tax), the Article articulates five interpretive models of Macomber. By examining little-read cases on the taxation of lease improvements and corporate reorganizations from the 1920s to the 1940s, the Article shows that Macomber’s doctrinal progeny eliminated three of those models, left undisturbed another, and reaffirmed the income-centric model. Under the income-centric model, Macomber poses far less serious barrier to federal wealth or accretion taxation than some commentators suggest. It in fact suggests avenues to designing a constitutional wealth tax. This firmer ground for a broad conception of the federal taxing power empowers Congress to enact structural tax reform to vindicate our democracy’s commitment to egalitarianism and distributive justice.

Keywords: Tax Law and Policy

Suggested Citation

Zhang, Alex, Rethinking Eisner v. Macomber, and the Future of Structural Tax Reform (August 1, 2023). George Washington Law Review, Vol. 92, No. 1, Available at SSRN: or

Alex Zhang (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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