Amicus Brief of John R. Brooks and David Gamage in Moore v. United States, No. 22-800

36 Pages Posted: 25 Oct 2023 Last revised: 26 Mar 2024

See all articles by John R. Brooks

John R. Brooks

Fordham University School of Law

David Gamage

University of Missouri School of Law

Elizabeth Wydra

Constitutional Accountability Center

Brianne J. Gorod

Constitutional Accountability Center

Brian R. Frazelle

Constitutional Accountability Center

Date Written: October 23, 2023

Abstract

In Moore v. United States, No. 22-800, the Supreme Court will consider the meaning of the Sixteenth Amendment to the Constitution and whether it allows taxation of “unrealized sums” as income. Professors John Brooks and David Gamage argue in this amicus brief that the original public meaning of the Sixteenth Amendment does not incorporate a realization argument. They base this argument on three main points: 1) There is a long history of federal (and state) income taxation of accrued, but unrealized, income going back at least to the Civil War, including shareholder taxation of undistributed corporate earnings, “mark-to-market” taxation of capital assets, and general accrual accounting methods. 2) The Sixteenth Amendment’s clearly articulated and understood meaning was to overrule the Supreme Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust Co., and thereby restore the “complete and plenary power of income taxation” as it was understood at the time, including the features mentioned above. 3) Contemporaneous dictionaries, legal treatises, and other sources generally reflect this broad and expansive understanding of “income.”

Keywords: taxation, Constitutional Law, Supreme Court, originalism, Sixteenth Amendment, legal history

Suggested Citation

Brooks, John R. and Gamage, David and Wydra, Elizabeth and Gorod, Brianne J. and Frazelle, Brian R., Amicus Brief of John R. Brooks and David Gamage in Moore v. United States, No. 22-800 (October 23, 2023). Fordham Law Legal Studies Research Paper 4611767, Available at SSRN: https://ssrn.com/abstract=4611767 or http://dx.doi.org/10.2139/ssrn.4611767

John R. Brooks (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

HOME PAGE: http://https://www.fordham.edu/info/30655/john_brooks

David Gamage

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

HOME PAGE: http://law.missouri.edu/person/david-gamage/

Elizabeth Wydra

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

Brianne J. Gorod

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

Brian R. Frazelle

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

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