The Moores Lost Their Claim and Moore

Abstract

In this article, the authors analyze the logic of Moore and argue that in many important ways, the decision undercuts attempts to sharply limit Congress’s taxing power. 

Many others have already commented on potential future challenges to the scope of Congress’s taxing power, noting that Moore may be just one battle in a larger war. That may be true, as we now know for certain that four justices believe there is a realization requirement in the 16th Amendment and may not share the majority’s concern with disrupting the existing tax system. But four is not five, and even the two justices joining the Barrett concurrence acknowledged that the concept of realization defies a clear definition. The logic of the majority opinion joined in full by five members of the Court points in the direction of continuing, as the courts have been doing for decades, to give Congress significant leeway in deciding how to measure and attribute income, including how to define “realization.”

Keywords: Moore v. United States, Tax Policy, Constitutional Law, Tax Law, Income Taxation