Supreme Court

SCOTUS Case Could Quash Democrats' Wealth Tax Plans

Plus: Why people believe doomer narratives, schools seek to define social media platforms as public nuisances, and more...


Case concerns limits of IRS power. The Supreme Court has agreed to hear a tax law case that could "yield billions of dollars for large corporations, block Democrats' proposals to tax wealthy Americans and upend longstanding chunks of the tax code," as the Wall Street Journal describes it. At issue is "whether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states," SCOTUSblog explains.

The case—Moore v. United States—involves a Washington state couple challenging a $14,729 tax bill on income that they say shouldn't count as income. Charles and Kathleen Moore were sent a bill by the IRS saying they owed taxes on income received from their investment in the company KisanKraft. The Moores owned shares in this company for more than a decade but say they never received any income from these shares, because all company profits had been reinvested in the company.

At the center of the case is something called the Mandatory Repatriation Tax, which was passed as part of the 2017 Tax Cuts and Jobs Act. It let the IRS levy a one-time tax on shares in a foreign company even if said shares had not yielded any profits for the shareholders. The tax applied to individuals with at least 10 percent ownership of a foreign company as well as to U.S.-based companies.

Opponents of the Mandatory Repatriation Tax say it functions as a wealth tax or a property tax—types of direct taxes only allowed by the federal government if they're applied proportionally by state population.

But the U.S. Court of Appeals for the 9th Circuit agreed with the government that the Mandatory Repatriation Tax is a form of income tax.

In their lawsuit, the Moores—who are being represented by the Competitive Enterprise Institute and the law firm BakerHostetler—argue that the tax is unconstitutional because it violates the 16th Amendment's requirement regarding direct taxes and state proportionality.

"The Constitution does not allow Congress to point at any pot of money and call it 'income' and then income-tax it," Andrew M. Grossman, the Moores' lead counsel, said in a statement. "'Income' means the same thing now that it did when the Sixteenth Amendment was ratified: gains that have been realized by the taxpayer."

At stake in this is the scope of permissible taxation by the federal government.

"Divorcing income from realization opens the door to new federal taxes on all sorts of wealth and property,'" warned 9th Circuit Judge Patrick Bumatay in a dissent from the appeals court's decision not to rehear the case en banc.

"Our court dislodged settled constitutional limits on federal taxation by aggrandizing Congress's power to levy unapportioned taxes on unrealized gains," wrote Bumatay. "This holding conflicts with the Sixteenth Amendment's original meaning and misconstrues binding precedents. And the consequences of our decision extend far beyond the Mandatory Repatriation Tax."

The Journal teases out some possible outcomes:

A ruling upholding the law would leave the status quo in place. But if the court rules in favor of the Moores, it could have widespread implications, depending on what the justices say.

First, if the court sided with the Moores, it could mean that companies that have been paying the one-time tax may be able to seek refunds totaling hundreds of billions of dollars.

Second, it could affect existing pieces of the tax code that impose taxes without realization of income. That includes taxes on individual shareholders in foreign companies with passive income, investors who buy certain discounted bonds, and wealthy people who renounce their citizenship. …

And, looking forward, a realization requirement could block some of Democrats' most ambitious tax proposals. President Biden has called for an annual minimum tax on wealthy Americans, based in part on their unrealized capital gains. And some Democrats, such as Sen. Elizabeth Warren (D., Mass.), want an annual tax on the net worth of the richest households.


Why is it so easy for people to believe doomer narratives? Last week in Roundup, we mentioned new research by Scott Winship and Jeremy Horpedahl pushing back against Oren Cass' assertion that the "cost of thriving" has become prohibitively expensive for most Americans. Marginal Revolution's Alex Tabarrok offers up one reason why people are so quick to believe such narratives of decline:

How easy is it for a male breadwinner to raise a family? Oren Cass argues that the cost of "thriving," is increasing. That's false. When you do the numbers correctly, Winship and Horpedahl show that the cost of thriving is falling. It's falling more slowly than we would like—but it's still the case that current generations are, on the whole, better off than previous generations.

Still, Winship and Horpedahl face an upward battle because while they are right on the numbers many people feel that they are wrong. Almost every generation harbors a nostalgic belief that circumstances were more favorable during their youth. Moreover, even though people are better off today, social media may have magnified invidious comparisons so everyone feels they are worse off than someone else.

I offer a third reason: the Linder Theorem. Real GDP per capita has doubled since the early 1980s but there are still only 24 hours in a day. How do consumers respond to all that increased wealth and no additional time? By focusing consumption on goods that are cheap to consume in time. We consume "fast food," we choose to watch television or movies "on demand," rather than read books or go to plays or live music performances. We consume multiple goods at the same time as when we eat and watch, talk and drive, and exercise and listen. And we manage, schedule and control our time more carefully with time planners, "to do" lists and calendaring. A search at Amazon for "time management," for example, leads to over 10,000 hits.

Time management is a cognitively strenuous task, leaving us feeling harried. As the opportunity cost of time increases, our concern about "wasting" our precious hours grows more acute. On balance, we are better off, but the blessing of high-value time can overwhelm some individuals, just as can the ready availability of high-calorie food.


Schools seek to define social media platforms as public nuisances. The Cato Institute's Walter Olson talks to TechFreedom's Corbin Barthold about school districts suing social media companies:


• A new NBC poll finds just 32 percent of voters have a positive view of Vice President Kamala Harris, while 49 percent view Harris negatively.

• The National Association of Medical Examiners says "excited delirium" should not be cited as a cause of death. "Nearly all 'excited delirium' victims die after being tased or physically restrained by police," notes Reason's C.J. Ciaramella.

• How other countries benefit from America's dysfunctional immigration system.

• Florida Gov. Ron DeSantis, a Republican, pledges that if he's elected president, he'll authorize extrajudicial killings on American soil:

• Oregonians will have the opportunity to vote on a proposal to use ranked choice voting for federal and state races.

• More than 70 years after Shirley Jackson's short story "The Lottery" was published, "it has retained its relevance across the decades: not because of any obvious message or moral, but precisely because of its unsettling open-endedness," writes Ruth Franklin in The New York Times. "The story works as a mirror to reflect back to its readers their current preoccupations and concerns, which is why readers could see McCarthy in it 75 years ago and Trump in it today."

• I'm on the Acton Institute's podcast talking about falling fertility rates.

• "Eccentricity isn't a political agenda," suggests Kevin D. Williamson, in a piece bemoaning "the fundamental, inescapable problem of that so-called New Right: its lack of intellectual seriousness."