Corporate Accountability

Moore v. United States

In Moore v. United States, the Supreme Court is considering a challenge to Congress’s power to tax income under the Sixteenth Amendment.

Case Summary

The Sixteenth Amendment, ratified in 1913, allows the federal government to collect “taxes on incomes, from whatever source derived.” The Amendment overruled a notorious Supreme Court decision that limited the government’s ability to tax income derived from investments or property, as opposed to wages or salaries. Moore v. United States involves a new effort to limit the government’s income-taxing power, this time by giving a narrow meaning to the word “income” under the Sixteenth Amendment.

The petitioners are shareholders who own part of a foreign corporation. Instead of distributing its profits to shareholders, the corporation has reinvested those profits in the business. But a 2017 law imposes a one-time tax on this type of undistributed corporate profit. Seeking a refund of their tax payment, the petitioners assert that the law is not authorized by the Sixteenth Amendment because it taxes “unrealized” income—essentially, income that has not yet been distributed to taxpayers or placed under their direct control.

A federal district court dismissed the case, and a court of appeals affirmed the dismissal, rejecting the petitioners’ argument that “unrealized” income cannot be taxed under the Sixteenth Amendment. After the Supreme Court granted review, CAC filed an amicus brief supporting the government on behalf of professors John R. Brooks and David Gamage, two leading scholars of tax law and policy. Our brief demonstrates that the text and history of the Sixteenth Amendment support the government’s position that unrealized gains can be taxed as income.

When the Sixteenth Amendment was ratified, federal law had long treated unrealized gains as a taxable income. Indeed, under the first federal income taxes established during the Civil War, taxable income included a shareholder’s portion of undistributed corporate earnings, as well as other forms of unrealized income such as gains from interest (whether paid or not) and increases in the value of certain property (whether sold or not). When a taxpayer refused to report his share of undistributed corporate earnings, the Supreme Court rejected his argument that such unrealized gains are not “income.” And when Congress revived income taxation in the 1890s, it once again taxed unrealized income. Likewise, under a 1909 corporate income tax—enforced while the Sixteenth Amendment was being ratified—unrealized income was taxed yet again. And as soon as the Sixteenth Amendment was ratified in 1913, Congress taxed unrealized income once more, specifically, undistributed corporate earnings. Thus, by the time the Amendment reaffirmed Congress’s power to tax “incomes,” Congress for half a century had repeatedly taxed unrealized gains as income.

The history of the Sixteenth Amendment confirms that its drafters and ratifiers had no intention of narrowing Congress’s power to tax income—or departing from how that power had been exercised in the past—by exempting unrealized gains from taxation. Instead, the Amendment was adopted to reverse an infamous Supreme Court decision holding that income derived from property could not be taxed in the same way as other income. That decision prompted an enormous public backlash, and the Sixteenth Amendment was adopted to restore the status quo, including the broad scope of Congress’s income-taxing power. That power had long included the ability to tax undistributed corporate earnings and other unrealized gains.

Finally, the word “income” had an expansive meaning in the ratification era that encompassed virtually any kind of financial gain, realized or unrealized. This broad definition was reflected in both specialized treatises and general-use dictionaries from the period. And while some academics argued that realization should be considered a necessary element of income, these same authors acknowledged that actual usage, including in statutes, did not match their recommendations.

In sum, text and history clearly indicate that the original meaning of the Sixteenth Amendment permits Congress to tax unrealized financial gains as income.

Case Timeline

  • October 23, 2023

    CAC files amicus brief on behalf of law scholars John R. Brooks and David Gamage in the Supreme Court

    Moore Amicus Brief
  • December 5, 2023

    Supreme Court hears oral arguments