Constitutional Challenge

Repealing the 16th Amendment wouldn't kill the income tax.

David B. Levenstam from the January 1999 issue

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Fourteen years after Pollack, Congress imposed a 1 percent flat tax on corporate net income in excess of $5,000 ($95,000 in 1998 dollars). By taxing corporations on dividends from other corporations, the 1909 act began the practice of double taxing corporate income. Opponents challenged the 1909 act in court, too. In 1911 --two years before the adoption of the 16th Amendment--the Supreme Court ruled in Flint v. Stone Tracy Company that the tax on corporations was constitutional as "an excise upon the particular privilege of doing business in a corporate capacity." In other words, according to the Court's reasoning in 1911, just because the corporation tax was a tax on income didn't mean it was an income tax.

So even before the 16th Amendment, the Pollack, Spreckles, and Flint decisions gave a clear signal to Congress that it could impose a tax on wages, salaries, professional service fees, interest, dividends, royalties from intellectual property, estates, gifts, gross receipts, and any income earned by corporations. Congress could even double tax corporate income.

Eliminating Congress' power to tax income, as many supporters of a national sales tax propose, would require more than merely repealing the 16th Amendment. We would have to ratify an amendment prohibiting Congress from imposing any income tax as well as estate, gift, and gross receipts taxes. Otherwise, Congress could rely on the earlier Supreme Court decisions to continue collecting these and other related taxes. And as the residents of Canada and Western Europe could tell us, we'd probably end up with the worst of both tax worlds: paying both a national sales tax and an income tax.

David B. Levenstam was the Louis Pelzer Fellow in American History at the University of Iowa and a Salvatori Fellow at the Heritage Foundation. A tax practitioner since 1982, he is working on his Ph.D. dissertation, titled The Triumph of Competition: The American Political Economy, 1887-1933.