Posted on 07/09/2023 9:37:24 PM PDT by SeekAndFind
Wealth tax proposals have been all the rage among progressive politicians of late, despite the many pitfalls of attempting to tax unrealized gains.
But a case the Supreme Court just took up could render taxation of unrealized gains constitutionally untenable.
Moore v. United States looks at a provision in the 2017 Tax Cuts and Jobs Act (TCJA). One of the ways that legislators offset the foregone revenue from tax cuts was through a one-time “deemed” repatriation of earnings from U.S. citizens’ shares of foreign corporations.
Put simply, the deemed repatriation provision acted as if Americans with shares in foreign corporations (above a minimum threshold) had received a dividend representing their share of that corporation’s profits going back to 2006. Never mind that they hadn’t received this dividend — the TCJA treated them as if they had.
In this sense, the deemed repatriation provision acted very much like a wealth tax. Though corporate shares gain value as the corporation in question is profitable, investors’ gains from these shares are entirely theoretical until they either sell their shares or benefit from those corporate profits in the form of a dividend. The “deemed repatriation” ignored the distinction in American tax law between realized income (which is usually taxable) and unrealized income (which usually isn’t).
One couple affected by the deemed repatriation provision, Charles and Kathleen Moore, chose to challenge it in court. Though they had never received any dividends or sold their 13 percent stake in an Indian company that provides agriculture tools to impoverished Indian communities, they were hit by a tax bill under the TCJA just the same. Now, their challenge finds itself before the Supreme Court.
The case hinges upon the interpretation of the Sixteenth Amendment to the Constitution. Prior to the ratification of the Sixteenth Amendment in 1913, the Constitution granted Congress the power to levy “direct” taxes only if they were equally proportioned among the states — in other words, they could only be levied on a per capita basis.
The Sixteenth Amendment allowed Congress to ignore this proportionality requirement for “income” taxes specifically. That’s fairly straightforward for normal “income” taxes on wages, dividends, or capital gains — in other words, “realized” income that directly benefits the taxpayer. But whether the Sixteenth Amendment applies to unrealized income, where a taxpayer’s net worth increases but their cash on hand remains the same, is the question before the Court.
While the case will, of course, hinge upon legal interpretations, the distinction between realized and unrealized income is obvious to most taxpayers. When you receive cash (or an electronic deposit to your checking account), it’s easy enough to set aside part of that for your tax obligations. On the other hand, if your car’s theoretical sales price increases, as many did during the pandemic, it makes little sense for Uncle Sam to demand his share unless you actually go ahead and sell.
A ruling explicitly describing unrealized income as capital, rather than income, for the purposes of the Sixteenth Amendment would effectively place a judicial stamp of disapproval on wealth tax proposals of all stripes. That would effectively end some of the zanier ideas coming from the left.
Of course, wealth taxes should be something that Congress avoids because they’re bad policy, are an enormous headache and costly to administer, and harm entrepreneurship. But given that those have never been good enough reasons to stop Congress from doing things in the past, a judicial veto wouldn’t hurt either.
“...The Congress shall have the 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...”
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If an investment has increased in value, is it “income”?
Should. Won’t, if it comes to that. They screwed up on Obamacare, so anything to do with taxes it’s a sure bet they’ll mess that up too.
Income is not realized until cashed/realized, no?
If there was a “Loss Carry Forward”, would you be able to deduct against gains? .... Likely, not.
That is the question.
Nine people will decide the answer.
Why not tax my estimated income based upon 5% annual gains, or more?
I would love to see someone get indignant over the average guys multiple taxes....
Most taxes are buried in the price so that you don’t actually see it. Try paying “Quarterlies” and then you will take notice.
And not even then, unless they're prepared to allow the original purchase price to be deducted as a business expense, which would turn the transaction into a loss, which would end up REDUCING your taxes....
If employer withholding were scrapped, and everyone had to write a check every quarter, it would change things, I suspect.
100% agree
This is as stupid as the occasional idea to tax “income” from garage sales, selling stuff for cheap at a loss from what you paid for it. Durrrr!
To regard any of the products of the corrupt, evil, and immoral USA as “legitimate” is a profound mistake.
Let’s raise Congressional Salary from $174k TO $200,00K but subject them to 50% taxes like I face.
“One of the sad signs of our times is that
we have demonized those who produce,
subsidized those who refuse to produce,
and canonized those who complain. “
Thomas Sowell
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“Prior to capitalism, the way people amassed great wealth was by looting, plundering and enslaving their fellow man. Capitalism made it possible to become wealthy by serving your fellow man.”
Walter E. Williams
_________________________________
“Nothing is easier, or more
emotionally satisfying, than
blaming high prices on those who
charge them, rather than on
those who cause them.”
—Thomas Sowell
_________________________________
“Most of the great problems we face are caused by politicians creating solutions to problems they created in the first place.”
Walter E. Williams
My house has tripled in value over the last 20 years. Why in the hell should I pay income taxes on the increase in value unless I sell it?
That almost makes a tax on unrealized gains an unconstitutional bill of attainder against people with unrealized gains. It is punitive if it forces people to sell their property (shares in a company) in order to pay the tax.
-PJ
Supreme Court Will Decide If The Government Can Tax Income You Haven’t Received YetUnfortunately, SCOTUS already ventured into this realm with the Kelo v. City of New London, CT decision. A smart Constitutional lawyer will bring this case up to stop the practice of taxing unrealized gains, and maybe get SCOTUS to reverse the Kelo decision, too.
In Kelo, SCOTUS ruled that the 5th amendment eminent domain takings for "public use" included the ambiguous "public good." SCOTUS decided that it was a public "good" to increase the tax base of a community by taking private property away from less wealthy people and giving it to other private entities that can generate more taxes with that private property.
SCOTUS allowed the City of New London to declare perfectly good bedroom community homes to be declared "blighted" so they could condemn the property, claim eminent domain, and turn that property over to a developer who was going to build a business park for Pfizer. The new property would generate more property taxes for New London than the houses would, they reasoned.
In time, the developer was unable to secure financing and the project was abandoned. New London lost out on their existing property taxes from the houses, and also the unrealized future taxes from the business park that was never built.
Taxing the unrealized gains of investments may never actualize into gains when the person sells the assets. In fact, this tax might force the owner to sell the asset just to raise the revenue to pay for the tax.
As was the case with Kelo, it is speculative at best to count on an unrealized gain as realized for tax purposes, and SCOTUS should back away from this idea once and for all, and take that Kelo decision with it.
-PJ
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