Talk:Sixteenth Amendment to the United States Constitution/Archive 1

Archive 1

Archive 2

Archive 3

→

Archive 5

Factual Error

The article claims that the Wilson tariff in 1894 had an exemption of $3,000. However, in "A March of Liberty: A Constitutional History of the United States" by Melvin Urofsky and Paul Finkelman, the figure is given as $4,000. Can anyone confirm one of these figures? Thank you.

Mis-citation

The citation of the court decision in the body of this article actually misses the real conclusion of the Court. What is stated are actually the arguments of Union Pacific against the tax, not the decision of the court itself. To wit:

Aside from averments as to citizenship and residence, recitals as to the provisions of the statute, and statements as to the business of the corporation, contained in the first ten paragraphs of the bill, advanced to sustain jurisdiction, the bill alleged twenty-one constitutional objections specified in that number of paragraphs or subdivisions. As all the grounds assert a violation of the Constitution, it follows that, in a wide sense, they all charge a repugnancy of the statute to the 16th Amendment, under the more immediate sanction of which the statute was adopted.

The various propositions are so intermingled as to cause it to be difficult to classify them. 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, as follows:

(Summary of arguments, as quoted in main article body)

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.

Seen in context, then, the court was clearly deciding in favor of the 16th Amendment, not against it.--Eric 22:24, 18 Aug 2004 (UTC)

Stanton v. Baltic Mining Co.

If I understand this correctly, it's just repeating the findings of Brushaber v. Union Pacific R. Co. If I'm not understanding it correctly, could someone please translate it from legalese into common English? Thanks. -- Beland 23:05, 3 Oct 2004 (UTC)

However the amendment failed to repeal the apportionment clause [editor's note: incorrect; see below], and in the Supreme Court case Stanton v. Baltic Mining Co., (1916), Chief Justice White delivered the opinion of the court:

"But, aside from the obvious error of the proposition, intrinsically considered, it manifestly disregards the fact that by the previous ruling [Brushaber] it was settled that the provisions of the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed [240 U.S. 103, 113] in the category of direct taxation subject to apportionment by a consideration of the sources from which the income was derived,-that is, by testing the tax not by what it was, a tax on income, but by a mistaken theory deduced from the origin or source of the income taxed."

Dear Beland: In my opinion you are correct; the verbiage from Stanton is basically just restating what was said in Brushaber. And I agree about the "legalese" (in this case, archaic language) used by judges in older court decisions. The bottom line is that the Congress has and has always had the power under the Constitution to tax incomes (although some income taxes were deemed "direct" taxes and other income taxes were "indirect" taxes). Under the Brushaber doctrine, the Sixteenth Amendment simply removed the requirement that "direct" income taxes be apportioned among the states. Famspear 20:32, 22 December 2005 (UTC)

More comment by Famspear:

The statement above, "[ . . . ] the amendment [i.e., the 16th Amendment] failed to repeal the apportionment clause [ . . . ] is nonsensical. What the Amendment was intended to do, and actually did, was remove the apportionment requirement with respect to income taxes -- specifically, with respect to income taxes deemed to be "direct" taxes. Essentially, Congress has always had the power to tax any incomes, whether the particular tax was deemed direct or indirect. Prior to the 16th Amendment, that power was, however, limited with respect to direct taxes in that a "direct" income tax had to be apportioned, like any other direct tax. Prior to a case called Pollock, direct taxes had been thought of as primarily consisting of property taxes. However, in Pollock the Court said that an income tax on income from property was also a direct tax, and had to be apportioned by population to be valid. The Sixteenth Amendment did not really change the category of that tax from direct to indirect -- it simply changed the treatment. The Amendment removed the requirement, with respect to income taxes, that a "direct" tax be apportioned.

Presumably, if Congress were to some day pass a law imposing a national property tax -- a tax on property by reason of its ownership, based simply on the value of the property -- that would be a direct tax and (since it's not an income tax) would still be required to be apportioned. The 16th Amendment was not intended to "repeal the apportionment clause" outright; the effect of the clause was eliminated only with respect to income taxes. Famspear 21:27, 23 December 2005 (UTC)

When you read the Stanton quoted above, it sure doesn’t seem to say what Famspear contends in that income tax is a direct tax. To be the easiest to understand and most accurate it should be simply stated that an indirect tax has no need for apportionment. FoxFly. Feb. 19,2006

Dear FoxFly: I have moved your Feb 19th commentary down on the page a little.

No, nothing in the Constitution or in Pollock or Brushaber or Stanton says, as a flat, categorical statement, that an "income tax is a direct tax" -- and nothing in my commentary says that either. (More on this below.)

And the statement that "an indirect tax does not have to be apportioned" – while certainly a correct statement – is only part of what Pollock, Brushaber and Stanton teach us.

Prior to Pollock, all income taxes, regardless of the source of the income, had been considered excises (indirect taxes). Excises are not required to be apportioned.

In Pollock the Court took income taxes from one particular source -- income from property -- out of the category of excises, and put them into the category of direct taxes. At the time of Pollock the 16th Amendment did not exist -- so income taxes from that particular source had to be apportioned after Pollock -- until the ratification of the 16th Amendment. Specifically, the Pollock court stated that taxes on income from property -- which had previously been considered to inherently belong to the category of indirect taxes -- were to be treated instead as direct taxes.

What the 16th Amendment did was to allow Congress to tax all incomes from whatever source (even income from property) without apportionment, and without regard to any census or enumeration.

In other words, even though Pollock treated taxes on income from property as direct taxes, the 16th Amendment prohibited us from treating such income taxes as being part of the category of taxes that are required to be apportioned.

Again, here is some of the key language from Stanton:

the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed in the category of direct taxation subject to apportionment [ . . . ]

Regarding income from other sources, nothing in Pollock (or in Brushaber or Stanton) said that a tax on income from occupations, vocations, etc., was a direct tax. Taxes on income from occupations, vocations, etc., are and always have been excises (i.e., indirect taxes). An indirect tax does not have to be apportioned -- and nothing in Pollock or Brushaber or Stanton says anything different.

Yes, the 16th Amendment repealed the apportionment clause, but only to the extent that the apportionment clause dealt with income taxes. After the 16th Amendment, there is simply no Constitutional requirement that income taxes be apportioned, regardless of the source of the income. The point that some people miss is that, even prior to the 16th Amendment, the only income taxes that were required to be apportioned were income taxes from one particular source that happened to be treated as direct taxes – that is, income taxes on income from property. Nothing in the Constitution has ever required that excises (indirect taxes) be apportioned. Because taxes on income most sources (from labor, vocations, occupations, etc.) are and always were in the category of indirect taxes, those kinds of income taxes were never required to be apportioned – either before or after Pollock.

Again, a big misconception among some people seems to be in thinking that ALL income taxes are direct or that ALL income taxes are indirect. The correct analysis is that income taxes from some sources (income from labor, etc.) are indirect, and that income taxes from one particular source (income from property) are or were treated (at least after Pollock) as direct taxes.

After the 16th Amendment, the United States Constitution doesn’t care (so to speak) whether a particular income tax is considered direct or not. The 16th Amendment says (so to speak) that we no longer care about the source of income (we don’t care whether it’s income from property, income from labor, or whatever). After the 16th Amendment, the direct-indirect dichotomy became legally irrelevant. [Editor: statement not supportable. see comment below --Flytrapper 20:30, 9 May 2006 (UTC) Dear Flytrapper, Actually what I should have said was "After the 16th Amendment, the direct-indirect dichotomy became legally irrelevant with respect to apportionment, as apportionment is no longer required for any Federal income tax, regardless of the source of the income -- that is, regardless of whether that particular income tax is deemed direct or indirect." Yours Famspear 15:51, 14 June 2006 (UTC)] Congress has the power to tax incomes – regardless of source, without apportionment, and without regard to any census or enumeration.

Folks, believe me, this is the EASY part of Federal tax law! Famspear 05:14, 20 February 2006 (UTC)

Famspear wrote “After the 16th Amendment, the direct-indirect dichotomy became legally irrelevant.” [Editor: statement not supportable. see comment below --Flytrapper 20:30, 9 May 2006 (UTC). Dear Flytrapper, Again, what I should have said was "After the 16th Amendment, the direct-indirect dichotomy became legally irrelevant with respect to apportionment, as apportionment is no longer required for any Federal income tax, regardless of the source of the income -- that is, regardless of whether that particular income tax is deemed direct or indirect." Yours, Famspear 15:48, 14 June 2006 (UTC)] Yes, I agree, this is correct, because Stanton ruled that income cannot be “taken out of the category of indirect taxation to which it inherently belonged” Famspear seems to be 100% correct. But if this is true, why would somebody have to create the story that the 16th amendment repealed anything. No tax on income would be direct, so there would be no need for apportionment, so there is no need to repeal anything.

The only question that would remain,

But what if a particular type of income was a direct tax such as in Pollock? Would it simply be..

 A. Not included in income meaning
 B. Relabeled as indirect (excise) for the sake of being able to tax it.
 C. unknown answer

Did Bushaber or Stanton ever mention the word repeal?? YES/NO

I think the easiest answer(and perhaps incorrect)would be that Pollock was wrong. This would equate to answer B.

Foxfly Feb 20, 2006

Dear Foxfly: Hmmmm. I believe I see where part of your hang up is here. The Court in Stanton did not rule that income cannot be taken out of the category of indirect taxation to which it inherently belonged. What the Court was saying was:

the 16th Amendment [. . .] simply prohibited the previous complete and plenary power of income taxation [. . .] from being taken out of the category of indirect taxation to which [category] it [had, prior to Pollock,] inherently belonged, and being placed in the category of direct taxation [. . .]

The language in Stanton may be confusing to you because it is both archaic and circumlocutory. What the Court meant was that the 16th Amendment prohibited the power of Congress to tax income from property from being treated as a power that would be subject to the rule of apportionment. Remember, the rule of apportionment had applied to the imposition of "direct taxes." Prior to Pollock, everyone had always thought that ALL income taxes (whether on income from property or income from personal services) were excises (indirect taxes). In Pollock the court essentially ruled that some (but not all) income taxes were to be treated instead as direct taxes. The effect of Pollock was to take a tax on income from property out of the class or category of taxes NOT required to be apportioned and put that particular kind of income tax into the class or category of taxes REQUIRED to be apportioned. What Pollock did was change the TREATMENT of a certain kind of income tax. What the Court was saying in Stanton was, essentially, that the 16th Amendment reversed Pollock -- that the 16th Amendment prohibited the legal system from following the Pollock rule.

In other words, what's confusing you about the language in Stanton is that it is circumlocutory. This is a common problem in analyzing older legal texts. (It's a lot worse, actually, in the first year of law school, as you are reading old English court decisions from the 1700s. Stanton was a 20th Century case.)

The term "repeal" does not appear in the 16th Amendment. I haven't checked to see whether it appears in the text of Brushaber or Stanton, and I don't care. And neither do you. Most Constitutional amendments that repeal provisions of prior Constitutional provisions do not use the word "repeal," and there is no legal requirement in American law that they do so. The amendment repealing prohibition does contain "express" repealing language -- and that's a very unusual circumstance in a constitutional amendment.

Whether you call it "repeal" or "modification" or "amendment" or whatever, the important thing is to understand the legal concept.

Other commentators have discussed the issue of whether Pollock was "wrong" and there's no need to go into it here. Suffice to say that whether Pollock was right or wrong, the effect of Pollock was REPEALED, overturned, reversed (whatever) by the 16th Amendment. Yours, Famspear 15:37, 21 February 2006 (UTC)

Dear Famspear:

The direct-indirect dichotomy is indeed still legally relevant, and always has been, and there is nothing to suggest otherwise found in the Stanton decision. Direct taxes are subject to apportionment, but not to uniformity. Indirect taxes are subject to uniformity, but not apportionment. These distinctions are very important to the proper levying and collection of taxes. --Flytrapper 20:30, 9 May 2006 (UTC)

Dear Flytrapper: Well, no, the discussion above is with reference to Federal income taxes. The direct-indirect dichotomy is legally irrelevant with respect to Federal income taxes and the rule of apportionment. Obviously, if Congress were to enact a capitation (a head tax), that particular kind of direct tax would still be subject to the apportionment rule. However, a capitation is not an income tax. The Sixteenth Amendment deals only with income taxes. The primary focus of our discussion here is the INCOME tax and its relationship (if any) to the apportionment rule. We're not talking about direct taxes in general, we're not so interested in indirect taxes in general, and we're not even that concerned with the "geographical uniformity" rule.

You are correct that indirect taxes are subject to the uniformity rule but not the apportionment rule. Direct taxes (other than any income taxes deemed by the Pollock decision to be direct taxes) are required to be apportioned (example, again: a capitation or poll tax would be required to be apportioned). Under current law, income taxes -- both the "direct" and "indirect" varieties -- are not required to be apportioned. With respect to the apportionment rule, we don't really care whether a given tax is "direct" or "indirect." In other words, we don't have to look at the "source" of the income to determine whether the tax on that income is direct or indirect, because either way the tax is not subject to the rule on apportionment. That's what we mean when we say the direct-indirect dichotomy is legally irrelevant with respect to the apportionment rule. Yours, Famspear 15:41, 11 May 2006 (UTC)

Famspear:

I believe there's something even more subtle about Brushaber and Stanton. Here's a choice quote, by way of set-up:

"The bill alleged twenty-one constitutional objections specified in that number of paragraphs or subdivisions. . . . The various propositions are so intermingled as to cause it to be difficult to classify them. 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." 240 U.S. at 10-11.

Chief Justice White goes on to call this an "erroneous assumption." 240 U.S. at 11. In other words, the court explicitly states that the 16th Amendment does not provide Congress with the power to levy a direct, unapportioned income tax. The Chief Justice further justifies this statement:

"[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." 240 U.S. at 11-12.

The Chief Justice is mindful here of the well-established doctrine, of which I'm sure you're aware, of interpreting laws so as not to conflict with the express terms of the Constitution. He is clearly trying to avoid invalidating Article I, section 2, clause 3 (direct taxes shall be apportioned). The court continues along this tack:

"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." 240 U.S. at 12.

Now here's the kicker, and the subtlety in the case -- a close reading of the often-quoted statement on Sixteenth Amendment interpretation:

"It is clear on the face of this text that it does not purport to confer power to levy income taxes in a generic sense – an authority already possessed and never questioned – or to limit and distinguish between one kind of income taxes and another, but that the whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived." 240 U.S. at 17-18 (emphasis added).

You can't have your cake and eat it too - the Sixteenth Amendment gives you the "whatever source" benefit only if the income tax is direct and apportioned (as required by the 'non-destructive' language). The implication is that when not imposed from apportionment, an income tax must be indirect, and the Sixteenth Amendment doesn't apply.

But at least you can have your Pollock cake: levy a national, direct, apportioned income tax on all income from property rental (other constitutional restrictions notwithstanding). Take the total income from property rental nationwide, multiply by the tax rate, divide up the amount among the several states based on the census, and tax away. This is a perfectly acceptable tax under the reconciled language of Article I and the Sixteenth Amendment. Note that this rule also means you can have a general income tax, taking income from "whatever source derived" (not just rental income). The rule, however, is that it must be apportioned, in order to avoid destroying the clause in Article I.

I mentioned that Chief Justice White wrote the Brushaber opinion. He did so on January 24, 1916. I bring this up to draw your attention to the fact that he also wrote the opinion in Stanton, on February 21, 1916. The same Justice wrote the two opinions within one month of each other, so it stands to reason that Stanton would be consistent with Brushaber. Here's the quote from Stanton:

[This] proposition[] [is] relied upon: (1) That as the 16th Amendment authorizes only an exceptional direct income tax without apportionment, to which the tax in question does not conform, it is therefore not within the authority of that Amendment. . . . As the first proposition is plainly in conflict with the meaning of the 16th Amendment as interpreted in the Brushaber Case, it may also be put out of view. 240 U.S. 103, 111-112 (1916).

The next opinion I found that cited these cases, Peck & Co. v. Lowe, 247 U.S. 165 (1920) was written by Justice Pitney. He improperly states the Brushaber and Stanton rule at 247 U.S. 172-173, in dicta no less. The statement is:

The Sixteenth Amendment, although referred to in argument, has no real bearing and may be put out of view. As pointed out in recent decisions, it does not extend the taxing power to new or excepted subjects, but merely removes all occasion, which otherwise might exist, for an apportionment among the states of taxes laid on income, whether it be derived from one source or another.

Brushaber never removes the need to apportion any tax if it's direct! Justice Pitney cites the two cases above, but apparently didn't read them as I have. I hypothesize that, as his case dealt with state export taxation, he was just looking to dismiss the defendant's argument as quickly as possible, and that at first glance the quote looked accurate. Entirely forgivable, except...

It seems as if Eisner v. Macomber, 252 U.S. 189, 206 (1920) (Van Devanter, J.) simply copied this misstatement. Eisner cites both of Chief Justice White's cases, as well as Peck & Co., but the text appears to have been copied nearly verbatim from the latter case. To further confuse the issue, the Eisner court goes on to say that "In order, therefore, that the clauses cited from article 1 of the Constitution may have proper force and effect, save only as modified by the amendment, and that the latter also may have proper effect, it becomes essential to distinguish between what is and what is not 'income,' as the term is there used." Id. Justice Van Devanter may have known the real holding from Brushaber, and was simply stating that the clauses from Article I were still in full effect, or he may have been confused by the quote from Peck. In either event, it can easily be read that the amendment actually altered the scope of the clauses referenced.

Due to its discussion of what is and is not 'income', many subsequent Sixteenth Amendment cases cite to Eisner. The rest, as they say, is history.

I didn't find any more cases by White, which stands to reason since he died due to complications from surgery in 1921, as noted on his Wikipedia page. I did, however, find a restatement of Brushaber in South Carolina v. Baker, 485 U.S. 505 (1988) which accords with my reading. This case, the most recent Supreme Court case to cite Brushaber, states that "the sole purpose of the Sixteenth Amendment was to remove the apportionment requirement for whichever incomes were otherwise taxable." 485 U.S. at 522 n. 13 (emphasis added). This is clearly not a statement about whether the federal income tax is direct or indirect; rather, it appears to be an implicit acknowledgement that Brushaber didn't decide that point.

Sorry this went on for so long, I was just attempting to be thorough. Flickboy 11:30, 14 June 2006 (UTC)

Dear Flickboy: Nice try, but no cigar. Suffice for now to say that the statement that "Brushaber never removes the need to apportion any tax if it's direct" is misleading. Technically, the Sixteenth Amendment (not Brushaber) removed the need to apportion any income tax, regardless of whether that particular income tax is deemed direct or indirect (i.e., regardless of the source of the income). Since the ratification of the Sixteenth Amendment, no court has ever ruled that any Federal income tax is required to be apportioned among the states according to any census or enumeration. Remember, no Federal income tax (either before or after the Sixteenth Amendment) has ever been apportioned among the states according to population. Despite that fact, and despite numerous litigation attempts by taxpayers, NO court after 1913 (the year of ratification of the Sixteenth Amendment) has ever ruled a Federal income tax unconstitutional on the ground that the unapportioned income tax was required to be apportioned. Further, numerous tax laws since 1913 have imposed taxes on both income from property (the income taxes deemed in Pollock to be direct taxes) and income from labor (the income taxes deemed in Pollock and all the other case to be excises, or indirect taxes). Go back and read Brushaber and Stanton again. Look at what the Court actually ruled in each case. Remember, in Brushaber and Stanton -- cases decided under the Constitution as amended by the Sixteenth Amendment -- the United States Supreme Court upheld the constitutionality of unapportioned Federal income taxes. The Brushaber case is a complex court decision interpreting the Sixteenth Amendment. The language in the text is exceedingly circumlocutory and archaic, and is sometimes the source of confusion. I am eventually going to get around to a complete analysis of the Brushaber decision, but it's taking longer than I thought to get started on the project as my "real life" duties have got me quite occupied for the past few weeks. Stay tuned. Yours, Famspear 14:05, 14 June 2006 (UTC)

Moved text

I have moved the following text from User:68.200.41.196 here from the main article page. The first few paragraphs certainly seem to me to be unsubstantiated assertion, and the last is blatant anti-tax activist POV. —Stormie 00:54, Oct 8, 2004 (UTC)

Some analysts mistakenly think that the 16th amendment created the income tax, or that it created an exception to the apportionment rule for direct taxes. There is no question that the Internal Revenue Commissioner's agents, the IRS, collects taxes directly from the people, and since income is personal property, such a collection appears to be a direct taxation. Regardless of appearances, such analysts are wrong.

The 16th amendment did not confer any new power of taxation. Article 1 Section 8 specifically grants Congress the power to tax the people, and an income tax falls within that power.

The 16th amendment did not create an exception to the apportionment rule for direct taxes. Instead, by declaring that the income tax does not follow the rule of apportionment prescribed in Article 1 Section 3, it categorically classified income tax as an "indirect" tax. Since a tax on one's person, money, income, or property is, by definition, a direct tax, an indirect tax (such as an impost, duty, excise, or tariff) must therefore be a tax on an activity, event, happening, or occurrence.

The income itself is not the subject of the income tax (or the tax on income). It is merely the means of measuring the amount of tax owed.

The question all citizens should ask (and demand answers of their legislators) is: what is the subject of the income tax? The tax code (Title 26 USC) stipulates only the manufacture or import of alcohol, tobacco, or firearms, as activities that are taxable for revenue purposes. Why, then, do so many Americans think they magically "owe" a tax on wages?

Commentary by Famspear:

The above deleted language is partly correct and partly incorrect, but is overall misleading. It is correct to say that the 16th Amendment did not "create" the power to impose an income tax, as Congress always had that power. It is incorrect to say that the Amendment did not create an exception to the apportionment rule for direct taxes. The Amendment certainly did; it created an exception in the case of direct taxes if they happened to be income taxes (especially income taxes on income from property, which taxes had been declared in the Pollock case to be, in substance, direct taxes). Some income taxes are direct taxes; other income taxes are indirect taxes. Read Brushaber again.

The statement that the Amendment "categorically classified income tax as an 'indirect' tax" is somewhat misleading. The language in Brushaber has been confusing to many, but in substance the Court in Brushaber was saying that income taxes on property were the only income taxes that had been treated as direct taxes -- and that this treatment did not begin until the Pollock decision. That "direct" treatment became irrelevant after the 16th Amendment, as direct taxes on incomes were no longer required to be apportioned. The clause "Since a tax on one's person, money, income, or property is, by definition, a direct tax" is therefore incorrect (i.e, too broad).

The statement that "an indirect tax (such as an impost, duty, excise, or tariff) must therefore be a tax on an activity, event, happening, or occurrence" is actually correct -- and the problem is that this actually damages the writer's argument! An income tax is, fundamentally, an "event" tax. Income is not property; income is an event. The money etc., received in the income event is the "property." This is a fine but important legal and economic distinction. For example, a tax on "property on account of its ownership" -- the classic example of a "direct tax" -- is based on the ownership of (i.e., the state of title of) the property as of a certain date (often January 1st of the applicable tax year), not on the happening of an "event." On the other hand, income taxes, sales taxes, etc., are "event" taxes. If you earn income and receive it the form of money, for example, and then hide the money under your pillow for years and years, the income tax law does not keep "re-taxing" the "money" year after year. Only one event was taxed: the income event, in the year it occurred. By contrast, a real estate property tax is imposed every year on that property, even though there has been no event (no change in title to the property).

The statement that the "income itself is not the subject of the income tax (or the tax on income)" and the statement that income is "merely the means of measuring the amount of tax owed" are sophistries. By law, the income tax is specifically imposed on "taxable income" (e.g., sections 1 and 11 of the Code), so income is generically both the subject of the tax and part of the means of measuring the tax. In this limited sense, the tax is not paid with "income" of course; it's paid with money. It would be correct to say that the "money" itself (assuming the usual case that receipt of money was the income event) is not the subject of the income tax. (Of course, the tax is usually paid with "money," but that's a separate consideration.) Again, these are hair-splitting but important distinctions.

The statement that the Code "stipulates only the manufacture or import of alcohol, tobacco, or firearms, as activities that are taxable for revenue purposes" is incorrect, and legally frivolous. Again, the income tax is an "event tax." To the extent that the income event is an activity, the statement is legally incorrect. See Code sections 1 and 11, etc. Famspear 21:33, 22 December 2005 (UTC)

still non-NPOV

I'm a newbie around here, so I'm not comfortable editing the article, but it seems to be that it's still not NPOV. In particular:

In spite of the questionable ratification of the 16th amendment, the amendment was certified in 1913 making it part of the Constitution.

The position that the ratification of the 16th Amendment was "questionable" is decidedly non-mainstream.

Taxation is an infringement on that right

That's an opinion, not a universally accepted fact.

Ratification of Sixteenth Amendment

Instead of just trying to make people who claim the 16th Amendment was never ratified sound ridiculous, why don't we just get a strong source that shows the contrary. Facts are more effective Superm401 23:30, 15 Jan 2005 (UTC)

POV text removed

Whereas most amendments protect the freedoms of citizens (Freedom of Speech, Freedom of Religion, right to vote, etc.), income tax takes away the natural right of a citizen to keep the all the fruits of his or her labor.

This statement is blatantly anti-tax POV. Also, the 16th Amendment is not the first provision of the Constitution to authorize taxation. -- Beland 21:32, 24 Oct 2004 (UTC)

What if there were no 16th Amendment

I note that Pollock v. Farmer's was repudiated in SOUTH CAROLINA v. BAKER, 485 U.S. 505 (1988), which overturned one of its findings that was not affected by the 16th amendment (on intergovernmental immunity from all taxation). IIRC, there is also dicta as well as scholarship that the ruling would probably have been overturned if the 16th had failed. In addition, the case did not (contrary to most tax protesters' claims) invalidate taxes on earned income, but left them in the indirect class.

This creates an interesting legal anomaly: even if the 16th amendment vanished:

1. Pollock would probably be overturned, leaving the Internal Revenue Code in place without significant change.
2. Even if Pollock were upheld, taxes on labor (the least popular with most tax protesters) would remain.

If, as I believe, this can be impeccably sourced, I plan to include a paragraph to this effect, as it is very likely of interest to readers. Robert A West 23:52, 30 July 2005 (UTC)

Lower courts and direct income taxes

"Some lower courts have ruled that the Amendment authorized unapportioned direct taxes on income. However, the Supreme Court has always said that all income taxes are indirect."

I'm not sure this is accurate. What lower courts, and what cases? -- WikiAce 17:13, 30 October 2005 (UTC)

In my opinion, WikiAce's comment is very astute. The Supreme Court in Brushaber essentially said that income taxes on vocations, employment, etc., were (and had always been) excises (indirect taxes). The Court in Brushaber indicated that taxes on income from property had also been assumed to be indirect taxes -- that is, until the Pollock decision in the late 1800s. In Pollock, the Court stated that a tax on income from property was, in substance, a direct tax. According to Brushaber, even after Pollock an income tax on employment, etc., was an indirect tax, and did not have to be apportioned. At the time of Pollock all direct taxes had to be apportioned. However, because of the Sixteenth Amendment (as interpreted by the Court in Brushaber in 1916), the whole exercise of arguing over "direct" and "indirect" became, with respect to income taxes, constitutionally irrelevant. After the Sixteenth Amendment, if it's an income tax, it does not have to be apportioned (regardless of whether it's direct or indirect). Famspear 20:44, 22 December 2005 (UTC)

Edits on 22 December 2005 by Famspear

I have extensively edited the description of the Court's decision in Brushaber. Also, I removed the statement that the Supreme court has always said that all income taxes are indirect taxes, as that statement is clearly incorrect. The Court in Pollock viewed an income tax on income from property as, in substance, a direct tax -- that was the whole reason the tax was declared unconstitutional (as a direct tax, it had not been "apportioned"). The Court in Brushaber gave a very enlightening history of the treatment of the "direct" income tax (taxes on income from property) and the "indirect" income tax (essentially, all other income taxes). The language of the Court in Brushaber is archaic and for that reason sometimes difficult to follow. The result of Brushaber, however, is that the import of the Sixteenth Amendment has not changed from the time of its ratification in 1913 down to the present day (late 2005, as of this writing): the requirement of apportionment (with the regard for a census or enumeration) no longer applies with respect to any Federal income tax, regardless of whether that tax is deemed to be an excise (an indirect tax, such as a tax on wages) or a direct tax (such as a tax on income from property). Famspear 18:05, 22 December 2005 (UTC)

I am also a bit curious about the statement: "The Supreme Court's interpretation of the Sixteenth Amendment has evolved and adapted considerably over time." I haven't read every case on the 16th Amendment since Brushaber. However, today, Congress can still -- without having to apportion or look to any census or enumeration -- constitutionally tax any income, regardless of the source (regardless of whether the income tax is deemed direct or indirect). So, has the Court's interpretation really changed significantly? Any thoughts, anybody? Famspear 18:14, 22 December 2005 (UTC)