Talk:Legal history of income tax in the United States

Labels used to describe taxes
I would like to propose a change to the section entitled '''1. Corporate income (“excise”) tax'''. Regarding the title of this section, I do not understand why the word excise is in parentheses and quotations. The statute in question was not an income tax in the traditional sense because it was not a tax on income. Rather, the Flint court concluded it was a tax on the privilege of doing business in corporate form, and the amount of the privilege tax was determined as a percentage of each corporation’s income. Therefore I think the title should simply be '''1. Corporate excise tax'''. Further to this, the next sentence is not acceptable to me: “First, they passed a corporate income tax, but labeled it an ‘excise tax.’”  As I said, Congress did not pass a corporate income tax because it was not a tax on income. Congress did not merely label it an excise tax…it actually was an excise tax! Therefore I think this sentence should simply be, “First, Congress passed a corporate excise tax.” The next sentence is also not acceptable: “The tax was set at 1% on all incomes exceeding $5,000.” Again, the tax was not on income. Rather, the amount of the excise on a corporate privilege was determined as a percentage of income. Therefore, this sentence should read, “The amount of the excise was set at 1% of each corporation’s income exceeding $5,000.”

In the next sentence, I don’t understand why “excise tax” is in quotations. I would like to change it as follows: “In 1911, the U.S. Supreme Court upheld this corporate excise as constitutional in Flint v. Stone Tracy Company, in which the court ruled that the tax was an excise upon the privilege of doing business in corporate form.” Fireatsea (talk) 22:19, 10 March 2015 (UTC)


 * Dear Fireatsea: A tax that is computed as a percentage of each corporation's income is a tax on income. The fact that the tax is denominated as a tax "on" a "corporate privilege" does not change that fact. The economic substance is the same, regardless of whether the "corporate privilege" language is in the statute or not.


 * Similarly, "tax on the right to have a home with red and blue stripes on the outside" that is "measured" by the incomes of people who have such houses is still a tax on the incomes of those people. Calling it a "tax on the right to have a home with red and blue stripes on the outside" makes no substantial difference.


 * In Texas, the state franchise tax is measured as a percentage of income. The tax is imposed "on" the privilege of being able to do business in the state as a corporation, etc. But that doesn't change the economic substance of the tax. It is still a tax measured as a percentage of income and, in that sense, it is a tax on income.


 * And, in the federal constitutional law sense, any tax on income (or "measured by" income, if you like) is an excise -- in the sense of an indirect tax. So, the tax that was the subject of the Flint case was an excise in that sense, regardless of whether the wording of the statute referred to the tax as an "income" tax or a "tax on a corporate privilege."


 * Your proposed changes do not substantially change the meaning of the article. Further, I don't see anything wrong with the wording changes you have proposed. Famspear (talk) 02:01, 11 March 2015 (UTC)


 * PS: I don't remember whether we've gone over this before, but all federal taxes imposed under the current Internal Revenue Code are excises in the broad constitutional law sense of "indirect tax". The phrase "indirect tax" and the term "excise" are both used as shorthand ways of saying "impost, duty or excise" -- in other words, any tax that is not a "direct tax".


 * However, in a separate narrower federal tax law sense, just about the only taxes in the Internal Revenue Code that are actually denominated as "excises" are found in Subtitles D and E of the Internal Revenue Code. So, in this narrower tax law sense, income taxes (Subtitle A) and gift taxes (Subtitle B) (just to take two examples) are not called "excises" in the statute itself.


 * What is the technical legal significance of this difference in the use of the term "excise"? None, really.


 * As is the case with words in the rest of life, many words in federal tax law have more than one technical legal meaning. Sometimes the differences are important. Other times, they are not. Famspear (talk) 02:18, 11 March 2015 (UTC)

Thanks for your comments. I'm glad you don't see anything wrong with the wording changes I proposed. I will make the change. Fireatsea (talk) 17:30, 11 March 2015 (UTC)

The Sixteenth Amendment, apportionment, income taxes, and direct taxes
I would like to propose a change to the section entitled '''2. Sixteenth Amendment''', which begins as follows: “More importantly, in 1909 Congress proposed the Sixteenth Amendment, which would do away with the apportionment requirement of the Constitution when ratified.” This sentence is factually incorrect because the 16th Amendment did not eliminate the apportionment requirement of the Constitution. We know this because of the Brushaber decision in which the Court stated it is erroneous to conclude that the 16th Amendment removed the apportionment requirement for direct taxes: “We are of opinion, however, that the confusion is not inherent, but rather arises from the conclusion that the 16th Amendment provides for a hitherto unknown power of taxation; that is, a power to levy an income tax which, although direct, should not be subject to the regulation of apportionment applicable to all other direct taxes. And the far-reaching effect of this erroneous assumption will be made clear by generalizing the many contentions advanced in argument to support it[.]” Therefore I propose changing the sentence in question to the following: “More importantly, in 1909 Congress proposed the Sixteenth Amendment.” Fireatsea (talk) 22:59, 6 April 2015 (UTC)


 * The Amendment did remove the apportionment requirement for any federal INCOME tax -- regardless of whether that tax was treated as a "direct tax" or an "indirect tax" by the Pollock Court in 1895. The clarification that is needed would be as follows:


 * So, the wording should be: "......in 1909 Congress proposed the Sixteenth Amendment, which did away with the apportionment requirement for taxes on dividend income, interest income and rent income -- that is, for the income tax taxes that had been treated as direct taxes by the Supreme Court in the Pollock case."


 * The Brushaber text is one of the most difficult texts for non-lawyers to understand, because it is written in a very archaic way, even for the year 1916. Famspear (talk) 00:37, 7 April 2015 (UTC)

In order for the Sixteenth Amendment to remove the apportionment requirement for taxes on dividend income, interest income and rent income, it would need to remove the apportionment requirement for direct taxes (because the Court previously determined that taxes on income from dividends, interest and rents were direct taxes within the meaning of the Constitution). The Brushaber decision goes to great lengths to explain that the Sixteenth Amendment did not remove the apportionment requirement for direct taxes, because doing so would destroy the two great classifications of taxes (direct and indirect): "But it clearly results that the proposition and the contentions under it, if acceded to, would cause one provision of the Constitution to destroy another; that is, they would result in bringing the provisions of the Amendment exempting a direct tax from apportionment into irreconcilable conflict with the general requirement that all direct taxes be apportioned. Moreover, the tax authorized by the Amendment, being direct, would not come under the rule of uniformity applicable under the Constitution to other than direct taxes, and thus it would come to pass that the result of the Amendment would be to authorize a particular direct tax not subject either to apportionment or to the rule of geographical uniformity, thus giving power to impose a different tax in one state or states than was levied in another state or states. This result, instead of simplifying the situation and making clear the limitations on the taxing power, which obviously the Amendment must have been intended to accomplish, would create radical and destructive changes in our constitutional system and multiply confusion." Fireatsea (talk) 17:36, 7 April 2015 (UTC)


 * No. You're quoting from the text of Brushaber, but your interpretation is incorrect. The Court in Brushaber ruled that the UNAPPORTIONED federal income tax was constitutional. There were three rulings by the Court, and that was the first ruling.


 * The Sixteenth Amendment means exactly what it says, and neither the Brushaber court nor any other court since the Amendment was ratified in 1913 has ruled that an UNapportioned federal income tax is, for that reason, unconstitutional.


 * In Brushaber the Court treated the federal income tax as an INDIRECT tax -- an excise. THAT is how the Court was able to say what the Court said. The point is that what the Court said was what legal analysts refer to as obiter dicta -- nonbinding statements about the law.


 * After 1913, it matters not whether a given court calls a given federal income tax a "direct tax" or an "indirect tax." If it's a federal income tax, it is not required to be apportioned, under Brushaber. Period. Famspear (talk) 18:12, 7 April 2015 (UTC)

Are you saying Brushaber overturned the holding in Pollock that taxes on income from rents, dividends, and interest are direct taxes within the meaning of the Constitution? Fireatsea (talk) 19:25, 7 April 2015 (UTC)


 * Actually, it was the Sixteenth Amendment that overturned the holdings in Pollock. The Court in Brushaber was simply interpreting the federal income tax statute in light of the Sixteenth Amendment (among other things).


 * Specifically, Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, aff'd on reh'g, 158 U.S. 601 (1895), was overruled by the ratification of the Sixteenth Amendment in 1913, and by subsequent U.S. Supreme Court decisions including Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939) and South Carolina v. Baker, 485 U.S. 505 (1988).


 * For more background information on this, see Wikoff v. Commissioner, 37 T.C.M. (CCH) 1539, T.C. Memo. 1978-372 (1978); Graf v. Commissioner, 44 T.C.M. (CCH) 66, TC Memo. 1982-317, CCH December 39,080(M) (1982); William D. Andrews, Basic Federal Income Taxation, p. 2, Little, Brown and Company (3d ed. 1985); Boris I. Bittker, "Constitutional Limits on the Taxing Power of the Federal Government", Tax Lawyer, Vol. 41, No. 1, p. 3, American Bar Ass'n (Fall 1987). See generally Brushaber v. Union Pac. R.R. Co., 240 U.S. 1 (1916). See also Sheldon D. Pollack, "Origins of the Modern Income Tax, 1894-1913," 66 Tax Lawyer 295, 323-324, Winter 2013 (Amer. Bar Ass'n).


 * From Professor Boris Bittker:


 * As construed by the Supreme Court in the Brushaber case, the power of Congress to tax income derives from Article I, Section 8, Clause 1, of the original Constitution rather than from the Sixteenth Amendment; the latter simply eliminated the requirement that an income tax, to the extent that it is a direct tax, must be apportioned among the states. A corollary of this conclusion is that any direct tax that is not imposed on "income" remains subject to the rule of apportionment. Because the Sixteenth Amendment does not purport to define the term "direct tax," the scope of that constitutional phrase remains as debatable as it was before 1913; but the practical significance of the issue was greatly reduced once income taxes, even if direct, were relieved from the requirement of apportionment.


 * --Boris I. Bittker, Martin J. McMahon, Jr. and Lawrence A. Zelenak, Federal Income Taxation of Individuals (2d ed. 2006) (emphasis added).

Yours, Famspear (talk) 19:48, 7 April 2015 (UTC)

More on this.

From William D. Andrews, Professor of Law, Harvard Law School:


 * In 1913 the Sixteenth Amendment to the Constitution was adopted, overruling Pollock, and the Congress then levied an income tax on both corporate and individual incomes.

--William D. Andrews, Basic Federal Income Taxation, p. 2, Little, Brown and Company (3d ed. 1985).

Yours, Famspear (talk) 20:41, 7 April 2015 (UTC)

The Court in Brushaber did not simply interpret the federal income tax statute in light of the Sixteenth Amendment, it also interpreted the Sixteenth Amendment itself in great detail! Correct me if I'm wrong, but one of the basic tenets of constitutional law is that the Constitution means what the Supreme Court says it means. Therefore it is simply inadequate to say, "The Sixteenth Amendment means exactly what it says..." when we have an entire SCOTUS decision (Brushaber) devoted to the interpretation and meaning of the Sixteenth Amendment. Therefore could you please cite the part of the Brushaber decision that explains how the Sixteenth Amendment redefines "direct taxes" within the meaning of the Constitution. Thank you. Fireatsea (talk) 21:47, 7 April 2015 (UTC)


 * Well, one of the basic tenets of American law is that the law, whether constitutional law, common law, statutory law, treaty law, administrative law, or whatever, is what the courts RULE the law to be.


 * The issue is not whether or how the Brushaber decision explains how the Sixteenth Amendment redefines "direct taxes" within the meaning of the Constitution. So, you're asking the wrong question.


 * A better question for you to think about is: Where in the Sixteenth Amendment is the term "direct tax" mentioned? The answer is: Nowhere.


 * Yes, in this case, it is adequate to say that the Sixteenth Amendment means what it says. Congress has the power to tax incomes, from whatever source derived, without apportionment. There is nothing in the Amendment that limits its scope to "direct taxes" or "indirect taxes" or "red taxes" or "blue taxes." If it is an INCOME tax, then Congress has the power to impose it without apportionment, REGARDLESS OF WHETHER YOU OR I OR THE POLLOCK COURT OR ANYONE ELSE CONSIDERS THE TAX TO BE A DIRECT TAX OR NOT.


 * The Brushaber case is one of the hardest to understand, because the text is written in a very archaic and, to put it bluntly, clumsy style -- even compared to the style of other court cases of that time period.


 * What is important about Brushaber, however is to focus on the three HOLDINGS of the Court in that case -- not on what the Court SAID in its explanation.


 * For example, many tax protesters over the past forty years have tried to cite the Brushaber text for the hilariously erroneous argument that the federal income tax is unconstitutional, either because it is not apportioned or for some other stupid reason. Yet, the Court UPHELD the unapportioned federal income tax in Brushaber. The Court ruled that an unapportioned Federal income tax was CONSTITUTIONAL under the Sixteenth Amendment. That was the very issue that Mr. Brushaber was litigating (actually, just one of the three main issues) -- and the Supreme Court ruled against him! The Court affirmed the decision of the lower court. Mr. Frank Brushaber LOST. THAT is what you need to understand about Brushaber.


 * The Court did not rule that "if the income tax is a direct tax, it has to be apportioned." Whether an income tax is a "direct tax" or not is irrelevant to whether the tax must be apportioned. If it is a U.S. federal income tax, it is not required to be apportioned. Period. The Sixteenth Amendment means what it says. And EVERY SINGLE COURT that has decided the issue since 1913 has ruled the same way: the federal income tax is not required to be apportioned. Famspear (talk) 23:39, 7 April 2015 (UTC)

Aside from the court decisions, let's look at what tax law professors have written. First, from William D. Andrews, Professor of Law, Harvard Law School:


 * In 1913 the Sixteenth Amendment to the Constitution was adopted, overruling Pollock, and the Congress then levied an income tax on both corporate and individual incomes.

--William D. Andrews, Basic Federal Income Taxation, p. 2, Little, Brown and Company (3d ed. 1985).

From Professor Boris Bittker, who taught law at Yale Law School:


 * As construed by the Supreme Court in the Brushaber case, the power of Congress to tax income derives from Article I, Section 8, Clause 1, of the original Constitution rather than from the Sixteenth Amendment; the latter simply eliminated the requirement that an income tax, to the extent that it is a direct tax, must be apportioned among the states. A corollary of this conclusion is that any direct tax that is not imposed on "income" remains subject to the rule of apportionment. Because the Sixteenth Amendment does not purport to define the term "direct tax," the scope of that constitutional phrase remains as debatable as it was before 1913; but the practical significance of the issue was greatly reduced once income taxes, even if direct, were relieved from the requirement of apportionment.

--Boris I. Bittker, Martin J. McMahon, Jr. and Lawrence A. Zelenak, Federal Income Taxation of Individuals (2d ed. 2006) (emphasis added).

From Professor Jensen:


 * It [the Sixteenth Amendment] was a response to the Income Tax Cases (Pollock v. Farmers' Loan & Trust Co.), and it exempts only "taxes on incomes" from the apportionment rule that otherwise applies to direct taxes.


 * [ . . . ]


 * If a tax is direct but isn't "on incomes," it should still have to be apportioned.

--Erik M. Jensen, "The Taxing Power, The Sixteenth Amendment, And the Meaning of 'Incomes'", Oct. 4, 2002, Tax Analysts (footnotes not reproduced).

From Professor Calvin H. Johnson, who teaches law at the law school of the University of Texas.


 * The Sixteenth Amendment to the Constitution, ratified in 1913, was written to allow Congress to tax income without the hobbling apportionment requirement.


 * [ . . . ]


 * Pollock was itself overturned by the Sixteenth Amendment as to apportionment of income....

--Calvin H. Johnson, "Purging Out Pollock: The Constitutionality of Federal Wealth or Sales Tax", Dec. 27, 2002, Tax Analysts.

From Sheldon Pollack:


 * With the ratification of the Sixteenth Amendment, Congress possessed the constitutional power to impose an unapportioned income tax....

--Sheldon D. Pollack, "Origins of the Modern Income Tax, 1894-1913", The Tax Lawyer, Vol. 66 No. 2, 295, 324, Winter 2013 (Amer. Bar Ass'n).

From Gale Ann Norton:


 * Courts have essentially abandoned the permissive interpretation created in Pollock. Subsequent cases have viewed the Sixteenth Amendment as a rejection of Pollock's definition of "direct tax". The apportionment requirement again applies only to real estate and capitation taxes. Even if the Sixteenth Amendment is not viewed as narrowing the definition of direct taxes, it at least introduces an additional consideration to analysis under the Apportionment Clause. For the Court to strike an unapportioned tax, plaintiffs must establish not only that a tax is a direct tax, but also that it is not in the subset of direct taxes known as an income tax.

--from Gale Ann Norton, "The Limitless Federal Taxing Power," Vol. 8 Harvard Journal of Law and Public Policy 591 (Summer, 1985) (footnotes not reproduced).

From Alan O. Dixler:


 * In Brushaber, the Supreme Court validated the first post - 16th Amendment income tax. Chief Justice White, who as an associate justice had dissented articulately in Pollock, wrote for a unanimous Court. Upholding the income tax provisions of the tariff act of October 3, 1913, Chief Justice White observed that the 16th Amendment did not give Congress any new power to lay and collect an income tax; rather, the 16th Amendment permitted Congress to do so without apportionment ....

--from Alan O. Dixler, "Direct Taxes Under the Constitution: A Review of the Precedents," Nov. 20, 2006, Tax Analysts.

Yours, Famspear (talk) 02:34, 8 April 2015 (UTC)

I agree that Brushaber upheld the constitutionality of the unapportioned income tax of 1913. And yes, the opinion is written in a clumsy style. But I submit the main reason why the opinion is so confusing is because Justice White's reasoning makes no sense. Based on the history of income taxation in the United States, it seems that the intention of the Sixteenth Amendment was to remove the apportionment requirement for taxes on the income of rents, interest, and dividends. The Amendment could have accomplished this goal in one of two ways. First, it could have redefined the meaning of the constitutional term “direct taxes” to exclude taxes on the income of rents, interest, and dividends. Second, it could have removed the apportionment requirement for direct taxes. According to the Supreme Court in Brushaber, the Amendment accomplished neither of these things. Instead, the Amendment is worded in such a way as to imply the conferment upon Congress of an entirely new taxing power: “The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States…”  In Article 1 Section 8 of the Constitution, the list of Congress’s enumerated powers begins with “The Congress shall have Power…”  Therefore the initial wording of the Sixteenth Amendment is nearly identical, thus implying a new enumerated power of Congress. This “new” power would be a tax on incomes without the requirement of apportionment. On its face, this interpretation makes perfect sense given the legal and historical context of U.S. income taxation. However, the Court in Brushaber rejected this theory. So the question remains, what exactly did the Sixteenth Amendment accomplish? The answer is clearly explained in Brushaber: “Indeed, in the light of the history which we have given and of the decision in the Pollock Case, and the ground upon which the ruling in that case was based, there is no escape from the conclusion that the Amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock Case was decided[.]”  In other words, the Amendment prohibits future courts from applying the same principle that was applied in Pollock. However, because the Pollock decision already happened, simple logic dictates that a ban on the future application of a judicial principle does not change the past. Indeed, Justice White conveniently found a way to "overturn" Pollock by merely twisting its conclusion to suit his purpose (without relying on the Sixteenth Amendment at all): "Moreover, in addition, the conclusion reached in the Pollock Case...recognized the fact that taxation on income was in its nature an excise[.]"  Of course, Pollock did no such thing! The conclusion of Pollock was that taxes on the rents or income of real estate, on personal property, or on the income of personal property (e.g. interest and dividends), were direct taxes within the meaning of the Constitution. Pollock concluded that these income taxes were definitely not excises! Yet Justice White conveniently misses that fact and pretends it never happened. But that's OK! Like you have suggested, it doesn't really matter what the court's reasoning is, the only thing that matters is the actual ruling. On that we agree, but I think it's worthwhile to point out the obvious logical inconsistencies and convenient memory lapses that allowed the Brushaber Court to reach its dubious conclusion. Fireatsea (talk) 00:46, 9 April 2015 (UTC)


 * I don't agree with some of what you wrote. For example, Justice White doesn't "miss" anything; he's not pretending that something never happened. Justice White is simply saying that the Sixteenth Amendment overruled Pollock. It's not that White is not relying on the Amendment. He IS relying on the Amendment; indeed, it is the Amendment that he is interpreting.


 * The Brushaber Court did not "twist" the conclusion that was reached in Pollock. The Brushaber Court simply pointed out that the 16th Amendment overruled the holdings of the Court in Pollock. You can call that "twisting" a conclusion, if you like, but that statement has no significance in terms of legal analysis.


 * If Bob says "blue is a beautiful color," and Joe responds by saying "blue is not a beautiful color," it is not that Joe is "twisting" the conclusion made by Bob. Joe is simply rejecting Bob's conclusion. You can contradict a prior statement without "twisting" the meaning of the prior statement.


 * You state: "....because the Pollock decision already happened, simple logic dictates that a ban on the future application of a judicial principle does not change the past." That statement misses the point. Neither the Amendment nor the Brushaber decision "needed" to "change" the past. Neither the Amendment nor the Brushaber decision changed the Pollock decision itself (except to conclude that the Amendment overruled the Pollock decision). And the Brushaber decision is an interpretation of the Amendment -- an interpretation that explains all this (although in a very inartful, clumsy way). Famspear (talk) 03:11, 9 April 2015 (UTC)

It is important to remember that Justice White dissented in the Pollock case (twice!), so he never agreed with its conclusion from the outset. But his understanding of the holding in Pollock was flawed, as evidenced by this excerpt from his second dissent: “[T]he opinion now announces that the rule of apportionment applies to an indirect as well as a direct tax on such property [real estate].”   Of course, that’s not what the opinion said at all! Pollock never concluded that the rule of apportionment applied to indirect taxes. On the contrary, the Court concluded that the rule of apportionment only applied to direct taxes, and that taxes on income from rents, dividends, and interest were direct taxes within the meaning of the Constitution, and therefore being direct taxes they required apportionment. But it seems Justice White carried this fundamental misunderstanding with him all the way from Pollock in 1895 to Brushaber in 1916. This explains the stilted confusion of White’s opinion in Brushaber, as he was operating under the false assumption that Pollock imposed the rule of apportionment to indirect taxes. Given this wrong premise, it is understandable why he thought the Sixteenth Amendment was adopted to prohibit the Court from repeating that “error” in the future.

Anyway, I propose changing the sentence in 2.Sixteenth Amendment to “More importantly, in 1909 Congress proposed the Sixteenth Amendment, which would do away for the future with the principle upon which the Pollock case was decided; that is, of determining whether a tax on income was direct not by a consideration of the burden placed on the taxed income upon which it directly operated, but by taking into view the burden which resulted on the property from which the income was derived, since in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment.” This language is taken straight from Brushaber and, without a doubt, is the most accurate description of the true judicially-interpreted meaning of the Sixteenth Amendment. Please let me know your thoughts. Fireatsea (talk) 00:31, 10 April 2015 (UTC)


 * You could do that as a quote, but for the average reader the problem is the language itself. The language is not proper or clear by today's standards and, indeed, it was probably not proper or clear when it was written -- even by the archaic standards of the year 1916. The Brushaber opinion is one of the most poorly written Supreme Court opinion from the standpoint of sentence structure and just plain clarity. I think we're better off going with what the secondary sources say about the subject, rather than trying to quote from the opinion itself. Just my opinion.


 * By the way, many Wikipedia editors prefer secondary sources over primary sources, and the guidelines do give a sort of preference to secondary sources. Contrary to what some editors seem to believe, it is permissible to use primary sources. In this particular case, however, I would also prefer using a reliable secondary source. Trying to understand the convoluted sentence structure in Brushaber is not for the faint of heart. Famspear (talk) 00:09, 13 April 2015 (UTC)

The sentence structure is awkward, but the meaning is perfectly clear. There is no need for secondary sources. I'm sure you and I can come up with a summary of Justice White's opinion, just like we did for Springer, Pollock, and Flint. How about this regarding the meaning of the Sixteenth Amendment: "According to the Court in Brushaber, the Sixteenth Amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock case was decided.  The principle in Pollock was that a tax on income from real estate or personal property was deemed to be equivalent to a tax on the real estate or personal property itself.  In so doing, the Court in Pollock removed such income taxes from the class of indirect taxes and placed them into the category of direct taxes.  The Sixteenth Amendment eliminated this possibility in future court cases." Fireatsea (talk) 05:26, 13 April 2015 (UTC)

I have not received any feedback, positive or negative, to my latest proposed contribution to this article (see above). If anyone wishes to provide comments please do so at your earliest convenience. Thank you. Fireatsea (talk) 01:00, 21 April 2015 (UTC)


 * I would argue that in this case, a paraphrase would be much more clear. Perhaps something like this:


 * "According to the Court in Brushaber, the Sixteenth Amendment was ratified to do away with the holding in the Pollock case. In Pollock, the Court had held that a tax on income from property should be treated as a tax on the property itself and that such a tax was therefore treated as a direct tax requiring apportionment. Under Pollock, the source of the income had to be considered in determining whether the tax was required to be apportioned. By making the source of the income irrelevant, the Sixteenth Amendment eliminated the possibility of treating an income tax as being required to be apportioned."


 * That gets more directly to what the Court decided in Brushaber without having the reader struggle with the weird sentence structure. Famspear (talk) 02:43, 21 April 2015 (UTC)

Or, perhaps this:


 * "According to the Court in Brushaber, the Sixteenth Amendment was ratified to do away with the holding in the Pollock case. In Pollock, the Court had held that a tax on income from property should be treated as a tax on the property itself and that such a tax was therefore treated as a direct tax requiring apportionment. Under Pollock, the source of the income had to be considered in determining whether the tax was required to be apportioned. By making the source of the income irrelevant, the Sixteenth Amendment eliminated the possibility of treating an income tax as being required to be apportioned, thereby overruling Pollock."

What do you think? Famspear (talk) 02:45, 21 April 2015 (UTC)

I do not think your paraphrase is an accurate summary. I am more than willing to discuss every single detail in great depth, but at this point I am beginning to think such a discussion would be more suited to the Sixteenth Amendment wikipedia page. For the purposes of this page, I think it would be better to eliminate any cursory interpretations of the meaning of the Sixteenth Amendment (since they are obiter dicta anyway) and focus on the actual holdings in Brushaber. For example, we could emphasize that the Revenue Act of 1913 imposed an unapportioned tax on (among other things) incomes from rents, dividends, and interest, and the Brushaber court held this statute to be constitutional by virtue of the Sixteenth Amendment. What do you think about that. Fireatsea (talk) 01:52, 22 April 2015 (UTC)


 * What language in my paraphrase (that you believe is not accurate) are you talking about? Famspear (talk) 17:54, 22 April 2015 (UTC)

This could turn into a lengthy discussion, but let's begin with your first sentence "According to the Court in Brushaber, the Sixteenth Amendment was ratified to do away with the holding in the Pollock case." That is not an accurate description of what the Court said in Brushaber. First, let's review the holding in the Pollock case. The Pollock court held that taxes on the rents or income of real estate, on personal property, or on the income of personal property (e.g. interest and dividends), were direct taxes within the meaning of the Constitution. In order to "do away" with that holding, the Sixteenth Amendment would need to redefine direct taxes within the meaning of the Constitution. Now here is what the Brushaber Court said, in excruciating detail, word for word: "Indeed, in the light of the history which we have given and of the decision in the Pollock Case, and the ground upon which the ruling in that case was based, there is no escape from the conclusion that the Amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock Case was decided; that is, of determining whether a tax on income was direct not by a consideration of the burden placed on the taxed income upon which it directly operated, but by taking into view the burden which resulted on the property from which the income was derived, since in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment." And then, "[T]he command of the Amendment that all income taxes shall not be subject to apportionment by a consideration of the sources from which the taxed income may be derived forbids the application to such taxes of the rule applied in the Pollock Case by which alone such taxes were removed from the great class of excises, duties, and imposts subject to the rule of uniformity, and were placed under the other or direct class." And then again, "[T]he purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended; that is, the prevention of the resort to the sources from which a taxed income was derived in order to cause a direct tax on the income to be a direct tax on the source itself, and thereby to take an income tax out of the class of excises, duties, and imposts, and place it in the class of direct taxes." Justice White is saying the Sixteenth Amendment prohibits the future application of the principle/rule used in the Pollock case whereby the Court resorted to the source of the income in order to determine the correct "class" of a particular tax. In other words, the Pollock decision can never be repeated in the future because the Court is prohibited from applying the same rule/principle. The Amendment forbids the future application of the principle that was used to reach the holding in Pollock, but that is not the same as "overturning" the actual holding in the Pollock case. In fact, Justice White goes out of his way to explain that the purpose of the Amendment was not to change the existing interpretation [Pollock] except to prevent the Court from resorting to the source of a taxed income in order to determine its class. Fireatsea (talk) 01:11, 23 April 2015 (UTC)

You wrote:


 * This could turn into a lengthy discussion, but let's begin with your first sentence "According to the Court in Brushaber, the Sixteenth Amendment was ratified to do away with the holding in the Pollock case." That is not an accurate description of what the Court said in Brushaber....

Hold it right there.

First of all, my summary was not intended to be a description of what the Court "said". My summary was intended to be a description of what the Court held -- what the Court ruled.

You need to focus on the three holdings of the Court, and not on the Court's detailed explanation of how the Court came to those holdings.

You wrote:


 * The Amendment forbids the future application of the principle that was used to reach the holding in Pollock, but that is not the same as "overturning" the actual holding in the Pollock case.

Incorrect. Forbidding the future application of the principle used to reach the holding in Pollock is indeed the same as overturning the actual holding in the Pollock case. From a legal standpoint, the Sixteenth Amendment overturned (overruled) the holdings in Pollock.

I understand the flow of your argument, and I understand why you are making that argument. However, rather than rely on your own interpretation of the meaning of what the Court said in Brushaber and of the meaning of what the Court ruled (held) in Brushaber, in Wikipedia we need to stick with what reliable, previously published third party sources have said about the effect of the Sixteenth Amendment. And, as already noted, tax law experts agree that the effect of the Amendment, as interpreted by the courts, is to overturn, to overrule, the decision in Pollock. Famspear (talk) 14:40, 23 April 2015 (UTC)

More on this:

From William D. Andrews, Professor of Law, Harvard Law School:


 * In 1913 the Sixteenth Amendment to the Constitution was adopted, overruling Pollock, and the Congress then levied an income tax on both corporate and individual incomes.

--William D. Andrews, Basic Federal Income Taxation, p. 2, Little, Brown and Company (3d ed. 1985).

From Professor Calvin H. Johnson, who teaches tax law at the law school of the University of Texas at Austin:


 * The Sixteenth Amendment to the Constitution, ratified in 1913, was written to allow Congress to tax income without the hobbling apportionment requirement.


 * [ . . . ]


 * Pollock was itself overturned by the Sixteenth Amendment as to apportionment of income....

--Calvin H. Johnson, "Purging Out Pollock: The Constitutionality of Federal Wealth or Sales Tax", Dec. 27, 2002, Tax Analysts.

Professor Sheldon D. Pollack at the University of Delaware has written:


 * On February 25, 1913, in the closing days of the Taft administration, Secretary of State Philander C. Knox, a former Republican senator from Pennsylvania and attorney general under McKinley and Roosevelt, certified that the amendment had been properly ratified by the requisite number of state legislatures. Three more states ratified the amendment soon after, and eventually the total reached 42. The remaining six states either rejected the amendment or took no action at all. Notwithstanding the many frivolous claims repeatedly advanced by so-called tax protestors, the Sixteenth Amendment to the Constitution was duly ratified as of February 3, 1913. With that, the Pollock decision was overturned.....

--Sheldon D. Pollack, "Origins of the Modern Income Tax, 1894-1913," 66 Tax Lawyer 295, 323-324, Winter 2013 (Amer. Bar Ass'n) (footnotes omitted; italics in original).

Each of these experts used the legal terms "overruled" or "overturned." Famspear (talk) 14:45, 23 April 2015 (UTC)

The late Professor Boris Bittker -- another leading tax law professor, who taught federal tax law at Yale Law School -- used yet another legal term to describe the effect of the Sixteenth Amendment on the Pollock decision:


 * The Pollock case, which was in effect reversed by the sixteenth amendment.....

--Boris I. Bittker, "Constitutional Limits on the Taxing Power of the Federal Government," Tax Lawyer, Vol. 41, No. 1, p. 3, American Bar Ass'n (Fall 1987).

"Overturned." "Overruled." "Reversed." These are terms that the tax law experts have used. And they're correct. Famspear (talk) 14:57, 23 April 2015 (UTC)

What your analysis does is to focus improperly on what the Court said in Brushaber. You are focused on why the Brushaber Court ruled the way it did, rather than focusing on the three decisions (the three holdings) themselves. You are focusing on how the Court came to its decisions, and you should focus instead on the decisions themselves. A court case is important mainly for what the court decides, not primarily for why the court decided the way it did, and not primarily for how the court came to the decision:


 * Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

--''United States Internal Revenue Serv. v. Osborne (In re Osborne)'', 76 F.3d 306 (9th Cir. 1996), at (bolding added).

Analysis of legal materials requires a set of technical legal skills that can be gained only through years of studying literally thousands of texts of statutes, court opinions, and other legal materials.

U.S. federal tax law is one of the most complex, technical areas of law. And the Brushaber opinion -- even when compared to other court opinions written about that time -- is one of the most difficult for non-lawyers to understand. This is an example of why Wikipedia has a rule that prohibits the injection of "original research" by Wikipedia editors. Famspear (talk) 15:43, 23 April 2015 (UTC)

The same legal terminology has been used in actual court opinions. Example, from the U.S. Tax Court:


 * The Sixteenth Amendment to the Constitution overruled Pollock....

--from Graf v. Commissioner, 44 T.C.M. (CCH) 66, TC Memo. 1982-317, CCH December 39,080(M) (1982), at. Yours, Famspear (talk) 16:21, 23 April 2015 (UTC)

Some definitions:

[to] Overrule. "To supersede; annul; reverse; make void; reject by subsequent action or decision." Black's Law Dictionary, p. 995 (5th ed. 1979).

[to] Reverse. "To overthrow, vacate, set aside, make void, annul, repeal, or revoke...." Black's Law Dictionary, p. 1185 (5th ed. 1979). Famspear (talk) 16:27, 23 April 2015 (UTC)


 * Earlier, you wrote:


 * The Pollock court held that taxes on the rents or income of real estate, on personal property, or on the income of personal property (e.g. interest and dividends), were direct taxes within the meaning of the Constitution.


 * That is one possible characterization of the Pollock holding. However, that's not the precise holding in Pollock. I'll explain in a moment.


 * You wrote:


 * In order to "do away" with that holding, the Sixteenth Amendment would need to redefine direct taxes within the meaning of the Constitution.


 * No. That is incorrect. From a legal standpoint, the Amendment does not need to "redefine direct taxes." All the Sixteenth Amendment "needed" to do to "do away" with the Pollock holding is to use language that supersedes the Pollock holding. And that's what the amendment did.


 * A better distillation of the holding in Pollock is provided by the U.S. Court of Appeals for the Tenth Circuit. According to the Court of Appeals, the Supreme Court held in Pollock "that a tax upon income from real and personal property is invalid in the absence of apportionment." See Charczuk v. Commissioner, 771 F.2d 471 (10th Cir. 1985), at . See also the U.S. Court of Appeals for the Second Circuit in Ficalora v. Commissioner, 751 F.2d 85 (2d Cir. 1984), cert. denied, 471 U.S. 1005 (1985), at, where that court stated the Pollock holding in the same terms.


 * Under the Sixteenth Amendment, however, a tax upon income from real and personal property IS valid -- even in the absence of apportionment. Indeed, the tax in the Brushaber case was a tax on income from personal property that was not apportioned. In that case, Frank Brushaber specifically argued that under the Sixteenth Amendment, such a tax was unconstitutional -- and the U.S. Supreme Court ruled against him.


 * You wrote:


 * ....The Amendment forbids the future application of the principle that was used to reach the holding in Pollock, but that is not the same as "overturning" the actual holding in the Pollock case.


 * Again, that is incorrect. In this particular case, forbidding the future application of the principle used to reach the holding in Pollock IS INDEED the same as overturning the actual holding in the Pollock case. That's what the Amendment did -- and does. Again, you are getting hung up on what the Supreme Court said in Brushaber in explaining why and how it reached its conclusions, and you are missing the main points: what the Court actually RULED. Famspear (talk) 21:32, 23 April 2015 (UTC)

Above, I stated that the income tax in Brushaber was a tax on income from personal property. We don't know the exact composition of the railroad company's income in the tax year or years in question, and it is possible that part of the income tax in the case was a tax on rental income from real estate owned by the railroad company, part on income from personal property (such as from rental of railroad cars, interest income, dividend income, etc.), and perhaps even some tax on income from providing services that the railroad might have performed for customers. Famspear (talk) 22:03, 23 April 2015 (UTC)

Above, you wrote:


 * In fact, Justice White goes out of his way to explain that the purpose of the Amendment was not to change the existing interpretation [Pollock] except to prevent the Court from resorting to the source of a taxed income in order to determine its class....

Here is the exact language of Justice White:


 * ....although from the date of the Hylton case, because of statements made in the opinions in that case, it had come to be accepted that direct taxes in the constitutional sense were confined to taxes levied directly on real estate because of its ownership, the Amendment contains nothing repudiation or challenging the ruling in the Pollock case that the word "direct" had a broader significance, since it embraced also taxes levied directly on personal property because of its ownership, and therefore the Amendment at least impliedly makes such wider significance a part of the Constitution -- a condition which clearly demonstrates that the purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended -- that is, the prevention of the resort to the sources from which a taxed income was derived in order to cause a direct tax on the income to be a direct tax on the source itself, and thereby to take an income tax out of the class of excises, duties, and imposts, and place it in the class of direct taxes.

You are confusing the concept of the holding in Pollock with the concept of Pollock interpretation of what the Pollock Court considered to be a direct tax. What Justice White is saying here is that nothing in the Amendment changes that interpretation.

That is NOT the same thing as saying that the Amendment does not overrule the HOLDING in Pollock. The Amendment DOES overrule the Pollock holding.

The HOLDING in Pollock was that a federal tax on income from personal property or real property was required to be apportioned. In other words, under Pollock, the SOURCE of the income had to be considered to determine whether the income tax had to be apportioned. If the source of the income was property, then the related income tax had to be apportioned. If the source of the income was (for example) "employments," the related income tax did not have to be apportioned. The source of the income was relevant because it was possible for certain federal income taxes, under Pollock to be required to be apportioned.

By contrast, the Sixteenth Amendment overrules the HOLDING in Pollock. Under the Amendment, the source of the income is legally irrelevant. Regardless of the source of the income, the related tax does not have to be apportioned. Under Pollock, a federal tax on income from property was required to be apportioned. Under the Amendment, a federal tax on income from property is NOT required to be apportioned. That's what legal scholars mean when they state that the Amendment overruled Pollock.

And, in various court cases since 1916, the courts have pointed out that with respect to apportionment, whether a given U.S. federal income tax is considered a direct tax or an indirect tax is an irrelevant question after the ratification of the Amendment. After February 1913, if a certain tax is an income tax, then it is not required to be apportioned -- even where the Pollock Court would have treated it as a "direct tax" (as the Pollock Court did with a tax on income from property).

Again, to do proper legal analysis, we focus primarily on what a court decided, and not primarily on what the court "said" in describing "why" and "how." Famspear (talk) 22:36, 23 April 2015 (UTC)

I had a feeling this would turn into a lengthy discussion! But that's OK, I enjoy the analysis and I hope you do too. I agree that we should focus primarily on the actual holdings of the Supreme Court rather than its reasoning process, but it seems we have a disagreement about the actual holding in Pollock. This is disturbing to me because I thought we agreed on that long ago, but perhaps we should revisit it. Here is the actual holding in Pollock:

"Our conclusions may therefore be summed up as follows:

First. We adhere to the opinion already announced,-that, taxes on real estate being indisputably direct taxes, taxes on the rents or income of real estate are equally direct taxes.

Second. We are of opinion that taxes on personal property, or on the income of personal property, are likewise direct taxes.

Third. The tax imposed by sections 27 to 37, inclusive, of the act of 1894, so far as it falls on the income of real estate, and of personal property, being a direct tax, within the meaning of the constitution, and therefore unconstitutional and void, because not apportioned according to representation, all those sections, constituting one entire scheme of taxation, are necessarily invalid."

There you go. It seems very clear to me. I thought our summary of the Pollock holding was accurate and unbiased but maybe not. Let me know your thoughts on this before we delve deeper into the Sixteenth Amendment. Fireatsea (talk) 01:04, 24 April 2015 (UTC)


 * I think you're off on a tangent. You have been arguing that the Amendment did not overrule Pollock. I listed several reliable sources (law professors, other legal scholars, and subsequent court cases) that specifically state that the Sixteenth Amendment DOES "overrule," "overturn" or "reverse" Pollock. So, go look for sources that say that the Sixteenth Amendment does not overrule Pollock. Famspear (talk) 01:44, 24 April 2015 (UTC)

At best, the Sixteenth Amendment only partially overturned Pollock because Justice White makes it very clear that the Amendment does not repudiate or challenge the ruling in Pollock that the word “direct” embraces taxes levied directly on personal property because of its ownership. He even goes so far as to say, “[T]herefore the Amendment at least impliedly makes such wider significance a part of the Constitution.” So it’s simply inaccurate to broadly proclaim that the Sixteenth Amendment overruled Pollock since at best it was a partial overruling. That being said, it is unfortunate that this discussion has turned into an in-depth analysis of the Sixteenth Amendment because I think this examination belongs on the Sixteenth Amendment wikipedia page. I have been doing my absolute best to understand and accurately summarize Justice White's detailed explanation of the proper interpretation and meaning of the Sixteenth Amendment, but as you have pointed out, this is non-binding obiter dicta. Therefore I think it's best to remove all cursory summations of the meaning or purpose of the Sixteenth Amendment (relegating them to a separate page) and focus on the actual holdings in Brushaber. As such I propose the following summation: "The Court held that the Revenue Act of 1913 was constitutional based on the following: 1) there was power by virtue of the Sixteenth Amendment to levy the tax without apportionment; 2) the due process clause of the Fifth Amendment is not a limitation upon Congress's taxing power; and 3) the statute did not violate the uniformity clause of Article I, Section 8 of the Constitution." Fireatsea (talk) 00:49, 25 April 2015 (UTC)


 * I don't have a problem with that summation of the holdings in Brushaber. Famspear (talk) 01:15, 25 April 2015 (UTC)

OK. Here is my proposed change to the article:


 * 2. Sixteenth Amendment. More importantly, in 1909 Congress proposed the Sixteenth Amendment. This amendment reads as follows:


 * The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.[13]


 * By February 1913, the required three-fourths of the states ratified the Sixteenth Amendment, thus adding the amendment to the constitution.[14]


 * Later in 1913, Congress enacted the Revenue Act of 1913. The tax ranged from 1% on income exceeding $3,000 to 7% on incomes exceeding $500,000. In effect, this statute introduced for the first time the notion of a progressive tax rate structure; the tax rate increases as the base, income in this case, increases.


 * Subsequently, the U.S. Supreme Court in 1916 upheld the constitutionality of the Revenue Act of 1913 in the case of Brushaber v. Union Pacific Railroad Company, 240 U.S. 1 (1916). The Court held that the Act was constitutional based on the following: 1) there was power by virtue of the Sixteenth Amendment to levy the tax without apportionment; 2) the due process clause of the Fifth Amendment is not a limitation upon Congress's taxing power; and 3) the statute did not violate the uniformity clause of Article I, Section 8 of the Constitution.  Fireatsea (talk) 01:52, 28 April 2015 (UTC)


 * I would leave out the reference to the 1913 statute as being the "introduction" of a progressive tax rate structure. It was not the first progressive U.S. federal income tax. For example, the U.S. federal income tax imposed under section 90 of the Revenue Act of 1862, Ch. 119, 12 Stat. 432, at 473 (July 1, 1862), was a progressive income tax. The structure of the 1862 income tax was zero percent if the income was $600 or less; 3% if the income was over $600 but less than $10,000 (with the 3% rate being imposed only on the income in excess of $600), and 5% if the income was over $10,000 (apparently, with the 5% rate being imposed on all the income in excess of $600). In general, the 1862 tax was imposed on "the annual gains, profits, or income of every person residing in the United States, whether derived from any kind of property, rents, interest, dividends, salaries, or from any profession, trade, employment, or vocation carried on in the United States or elsewhere, or from any other source whatever" (with some exceptions). Famspear (talk) 04:13, 29 April 2015 (UTC)

Agreed, I don't think that sentence is necessary. How about this:


 * 2. Sixteenth Amendment. More importantly, in 1909 Congress proposed the Sixteenth Amendment. This amendment reads as follows:


 * The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.[13]


 * By February 1913, the required three-fourths of the states ratified the Sixteenth Amendment, thus adding the amendment to the constitution.[14]


 * Later that year, Congress enacted the Revenue Act of 1913. The tax ranged from 1% on income exceeding $3,000 to 7% on income exceeding $500,000.


 * Subsequently, the U.S. Supreme Court in 1916 upheld the constitutionality of the Revenue Act of 1913 in the case of Brushaber v. Union Pacific Railroad Company, 240 U.S. 1 (1916). The Court held that the Act was constitutional based on the following: 1) there was power by virtue of the Sixteenth Amendment to levy the tax without apportionment; 2) the due process clause of the Fifth Amendment is not a limitation upon Congress's taxing power; and 3) the statute did not violate the uniformity clause of Article I, Section 8 of the Constitution. Fireatsea (talk) 00:39, 30 April 2015 (UTC)


 * I agree. I would say: go for it. Famspear (talk) 01:15, 30 April 2015 (UTC)

OK I'll make the change. Fireatsea (talk) 01:06, 1 May 2015 (UTC)

The Brushaber case
Here are the three main arguments by Frank Brushaber, and corresponding holdings by the Supreme Court:

First, Frank Brushaber argued that the Revenue Act of 1913, imposing income taxes that were not apportioned among the states according to each state's population, was unconstitutional.


 * The Court rejected his argument, and held that the Sixteenth Amendment removes any requirement that income taxes be apportioned among the states according to population (Article I, Section 9, clause 4 of the U.S. Constitution). The Revenue Act of 1913, imposing income taxes that are not apportioned among the states according to each state's population, was ruled to be constitutional. The Court stated: "...there can be no dispute that there was power by virtue of the Amendment during that period to levy the tax, without apportionment, and so far as the limitations of the Constitution in other respects are concerned, the contention [by Frank Brushaber] is not open...."

Second, Frank Brushaber argued that the Revenue Act violated the Fifth Amendment's prohibition against the government taking property without due process of law.


 * The Court rejected his argument, and held that the Revenue Act did not violate the Fifth Amendment's prohibition against the government taking property without due process of law. The Court stated: "So far as the due process clause of the 5th Amendment is relied upon [by Mr. Frank Brushaber], it suffices to say that there is no basis for such reliance, since it is equally well settled that such clause is not a limitation upon the taxing power conferred upon Congress by the Constitution...."

Third, Frank Brushaber argued that that the Revenue Act of 1913 violated the uniformity clause of Article I, Section 8 of the U.S. Constitution.


 * The Court rejected that argument, and held that the Revenue Act did not violate the uniformity clause of Article I, Section 8 of the U.S. Constitution. The Court stated: "So far as these numerous and minute, not to say in many respects hypercritical, contentions [by Mr. Frank Brushaber] are based upon an assumed violation of the uniformity clause, their want of legal merit is at once apparent, since it is settled that that clause exacts only a geographical uniformity, and there is not a semblance of ground in any of the propositions [by Mr. Brushaber] for assuming that a violation of such uniformity is complained of."

Yours, Famspear (talk) 21:54, 23 April 2015 (UTC)

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