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

37 Pages Posted: 25 Oct 2023

See all articles by Donald B. Tobin

Donald B. Tobin

University of Maryland Francis King Carey School of Law

Ellen P. Aprill

Loyola Law School Los Angeles

Date Written: October 20, 2023

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,

Suggested Citation

Tobin, Donald B. and Aprill, Ellen P., Brief of Amicus Curiae Tax Professors in Support of Respondent in Moore v. United States (October 20, 2023). U of Maryland Legal Studies Research Paper No. 2023-17, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2023-32, Available at SSRN: https://ssrn.com/abstract=4611926

Donald B. Tobin (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Ellen P. Aprill

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1157 (Phone)
213-380-3769 (Fax)

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