Brief of Amicus Curiae Tax Professors in Support of Respondent in Moore v. United States

Abstract

Petitioners in Moore v. United States have argued to the Supreme Court that the word “incomes” in the Sixteenth Amendment authorizes only the taxation of “realized” income. Thus, they assert, a repatriation tax (referred to as MRT) in the Tax Cuts and Jobs Act is invalid because it taxes unrealized gains. While other briefs in the case explain that, as properly understood, the tax at issue taxes only realized gains, this brief counters the petitioners’ Sixteenth Amendment argument. It explains that economists, accountants, and lawyers in the early twentieth century all defined income in broad terms, embracing the definition of income as more than money income and including unrealized gain. Similarly, the legislators who passed the Sixteenth Amendment also envisioned a broad definition of income and clearly understood the word income to include unrealized income. Those legislators were familiar with the income tax statutes that existed before and directly after ratification that taxed unrealized gain. During the period near the enactment of the Sixteenth Amendment, prominent critiques of a particular tax act or statutory provision, including the extent to which a tax act did or should tax unrealized gain, were arguments about legislative policy decisions, not the reach of the power granted Congress. The powers granted by Article I and the Sixteenth Amendment provide Congress with broad taxing authority. In this case, where the Constitution grants such authority to Congress, the Court should not substitute its judgement regarding tax policy for that of the Congress.

Keywords: income tax, realized income, sixteenth amendment, repatriation tax, unrealized gains,