Legal history of income tax in the United States

From Wikipedia, the free encyclopedia
Jump to: navigation, search

History through 1916[edit]

Early history[edit]

The first attempt to tax income in the United States was in 1643 when several colonies instituted a “faculties and abilities” tax. Tax collectors would literally go door to door and ask if the individual had income during the year. If so, the tax was computed on the spot. The income tax raised little revenue, and was viewed as a supplement to more traditional forms of property taxation.[1]

Constitutional provisions[edit]

Article I, Section 8, Clause 1 of the United States Constitution (the "Taxing and Spending Clause"), specifies Congress's power to impose "Taxes, Duties, Imposts and Excises," but Article I, Section 8 requires that, "Duties, Imposts and Excises shall be uniform throughout the United States."[2]

In addition, the Constitution specifically limited Congress' ability to impose direct taxes, by requiring Congress to distribute direct taxes in proportion to each state's census population. It was thought that head taxes and property taxes (slaves could be taxed as either or both) were likely to be abused, and that they bore no relation to the activities in which the federal government had a legitimate interest. The fourth clause of section 9 therefore specifies that, "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken."

Taxation was also the subject of Federalist No. 33 penned secretly by the Federalist Alexander Hamilton under the pseudonym Publius. In it, he explains that the wording of the "Necessary and Proper" clause should serve as guidelines for the legislation of laws regarding taxation. The legislative branch is to be the judge, but any abuse of those powers of judging can be overturned by the people, whether as states or as a larger group.

Early colonial and state income taxes[edit]

In the early 18th century and well into the 19th century, a number of the southern colonies and states adopted an income tax modeled on the tax instituted in England. The British theory was that you tax the income from property, and not the property itself; thus, sales of property were not subject to taxation.[3]

First income tax law[edit]

In order to help pay for its war effort in the American Civil War, the United States government imposed its first personal income tax, on August 5, 1861, as part of the Revenue Act of 1861. Tax rates were 3% on income exceeding $600 and less than $10,000, and 5% on income exceeding $10,000.[4] This tax was repealed and replaced by another income tax in the Revenue Act of 1862.[5]

After the war when the need for federal revenues decreased, Congress (in the Revenue Act of 1870) let the tax law expire in 1873.[6] However, one of the challenges to the validity of this tax reached the United States Supreme Court in 1880. In Springer v. United States, the taxpayer contended that the income tax on his professional earnings and personal property income violated the “direct tax” requirement of the Constitution. At this time, it was difficult for the Supreme Court to be interested in a case involving a tax that expired seven years earlier. The Court unanimously sided with the government. In effect, the Supreme Court concluded that the income tax was an “excise tax”, and was neither a capitation tax (based on population) nor a property tax.

Second income tax law[edit]

In 1894, a Democratic-led Congress passed the Wilson-Gorman tariff. This imposed the first peacetime income tax. The rate was 2% on income over $4000, which meant fewer than 10% of households would pay any. The purpose of the income tax was to make up for revenue that would be lost by tariff reductions.[7] This was a controversial provision, and the law actually passed with the signature of President Grover Cleveland.

"Direct" income tax unconstitutional: Pollock v. Farmers' Loan Trust Company[edit]

Once again, a taxpayer challenged the legality of the income tax. In Pollock v. Farmers’ Loan and Trust Company (1895), a taxpayer sued the corporation in which he owned stock, contending that they should never have paid the income tax because it was unconstitutional. In this case, the tax was paid on income from land, and Pollock argued that since a tax on real estate is a direct tax, then a tax on the income from such property must be a direct tax as well. Since the Constitution prohibited a “direct tax” unless certain conditions are met, Pollock argued that the income tax should be declared unconstitutional. The “direct tax” argument had also been used by Springer in 1880, but now the Court focused more closely on the wording in the Constitution.

The provisions were Article I, Section 8, Clause 1, which provides that “all duties, imposts, and excises shall be uniform throughout the United States”[8] and Article I, Section 9, Clause 4, which provides that “no capitation, or other direct tax shall be laid, unless in proportion to a census or enumeration herein before to be taken.”[9]

In effect, the latter clause requires any direct tax to be based on a census. For example, if the government desired to raise $10 million and New York had 20% of the total U.S. population at that time, then New York would be required to raise $2 million. If New York had 1 million residents, each resident would owe $2 in taxes. Obviously, a tax based on income could not achieve such proportionality, since incomes differed across individuals.

This time, the Supreme Court took the argument seriously and in a 5-4 decision, ruled that the income tax was unconstitutional. A few days after the initial vote, the Court re-voted and reached the same result.

The Court held an unapportioned tax based on receipts from the use of property to be unconstitutional. The Court held that taxes on rents from real estate, on interest income from personal property and other income from personal property (which includes dividend income) were treated as direct taxes on property, and therefore had to be apportioned. Since apportionment of income taxes is impractical, this had the effect of prohibiting a federal tax on income from property. The power to tax real and personal property, or that such was a direct tax, was not denied by the Constitution.[10] Due to the political difficulties of taxing individual wages without taxing income from property, a federal income tax was impractical from the time of the Pollock decision until the time of ratification of the Sixteenth Amendment (below).

Thus, the tax law was ruled unconstitutional and was effectively repealed.

Modern income tax[edit]

In 1909, fifteen years after Pollock, Congress took two actions to deal with their increasing revenue needs.

1. Corporate income ("excise") tax. First, they passed a corporate income tax, but labeled it an “excise tax.” The tax was set at 1% on all incomes exceeding $5,000. In 1911, the U.S. Supreme Court upheld this corporate “excise tax” as constitutional in Flint v. Stone Tracy Company, in which the court ruled that the tax was a special excise tax on the privilege of doing business.

2. Sixteenth Amendment. More importantly, in 1909 Congress passed the Sixteenth Amendment, which would do away with the apportionment requirement of the Constitution if enacted. This amendment reads as follows:

The Congress shall have 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.[11]

By 1913, the required three-fourths of the states ratified the Sixteenth Amendment, thus adding the amendment to the constitution.[12]

Congress almost immediately enacted the Revenue Act of 1913. The tax ranged from 1% on income exceeding $3,000 to 7% on incomes exceeding $500,000. In effect, this statute introduced for the first time the notion of a progressive tax rate structure; the tax rate increases as the base, income in this case, increases.

Subsequently, the U.S. Supreme Court in 1916 upheld the progressive income tax as constitutional in Brushaber v. Union Pacific Railroad Company, 240 U.S. 1 (1916). The Supreme Court indicated that the amendment did not expand the federal government's existing power to tax income (meaning profit or gain from any source) but rather removed the possibility of classifying an income tax as a direct tax on the basis of the source of the income. The Amendment removed the need for the income tax to be apportioned among the states on the basis of population. Income taxes are required, however, to abide by the law of geographical uniformity.

Initial attempts to define “income”[edit]

The concept of “income” is never really defined in the Internal Revenue Code. The closest that Congress comes to defining income is found in IRC Section 61, which is largely unchanged from its predecessor, the original Section 22(a) definition of income in the Revenue Act of 1913:

Sec. 22(a). “Gross income” includes gains, profits, and income derived from salaries, wages or compensation for personal service (including personal service as an officer or employee of a State, or any political subdivision thereof, or any agency or instrumentality of any one or more of the foregoing), of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatsoever.[13]

Eisner v. Macomber[edit]

One of the earliest attempts to define income occurred in the case of Eisner v. Macomber, in which the U.S. Supreme Court addressed the taxability of a proportionate stock dividend. This case provided the Court with a forum to try to interpret exactly what Congress intended to include in the sparse Section 22 definition of “income.” This was not the first time the Court had addressed the issue: the case had been argued in the previous term of the Court, and was being reargued with additional oral and written briefs.

The Court stated that it needed to examine the boundaries of the definition of income for several reasons. First, the Revenue Act of 1916 expressly stated that a “stock dividend shall be considered income, to the amount of the cash value.”[14] However, in a previous case, Towne v. Eisner, the Court had ruled that a stock dividend made in 1914 against surplus earned prior to January 1, 1913 was not taxable under the Act of October 3, 1913, which provided that net income included “dividends.” The district court in that case had noted that: “It is manifest that the stock dividend in question cannot be reached by the Income Tax Act, and could not, even though Congress expressly declared it to be taxable as income, unless it is in fact income.”[15] It had held, however, that the stock dividend was the equivalent of income. The Supreme Court in Towne v. Eisner then reversed the lower court, finding that the dividend was not income because the “proportional interest of each shareholder remains the same … and the stockholder is no richer than they were before.”[16]

As a result, the Court decided in Eisner v. Macomber to address the larger constitutional question of whether or not a stock dividend was gross income within the meaning of “income” as used in the Sixteenth Amendment. As noted by the Court:

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; and to apply the distinction, as cases arise, according to truth and substance, without regard to form. Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.[17]

As a starting point, the Court defined income succinctly by reference to the dictionary and to two earlier cases [18] as follows: “Income may be defined as the gain derived from capital, from labor, or from both combined, provided it be understood to include profit gained through a sale or conversion of capital assets.” [19] The Court then went into a lengthy and somewhat convoluted discussion as to how this definition applies to a stock dividend. In the end, the Court decided that the stock dividend was not taxable because it was merely a book adjustment and not “severable” from the underlying stock. In other words, income would not be realized until the stock dividend was sold, that is, severed from the underlying original security investment.

Refinements in the definition of income[edit]

A number of commentators contended that the Court in Eisner v. Macomber had gone too far in overturning a statute taxing stock dividends (the 1916 Act) that many perceived as being fair and equitable. Henry Simons, a noted tax scholar of the time, in his treatise, observed the following:

Actually, an utterly trivial issue was made the occasion for injecting into our fundamental law a mass of rhetorical confusion which no orderly mind can contemplate respectfully, and for giving constitutional status to nave and ridiculous notions about the nature of income and the rationale for income taxes.[20]

Despite this criticism, a number of decisions subsequent to Eisner v. Macomber relied on this simplistic definition of income. This in turn led to the question of whether or not this formulation was an “exclusive” definition of income, with any income not clearly covered by its terms deemed to be nontaxable.

In Hawkins v. Commissioner, the IRS sought to tax compensatory damages received by the taxpayer by way of settlement of a suit for injury to personal reputation and health caused by defamatory statements constituting libel or slander. While noting that “there may be cases in which taxable income will be judicially found although outside the precise scope of the description already given,” the Board of Tax Appeals concluded that such damages would not be taxable. The Board noted that the injury was “wholly personal and nonpecuniary,” and that the remedy simply attempts to make the individual whole.[21] Thus, even though the payment was “severable” and lead to a demonstrable increase in net wealth, the Board nonetheless concluded that the payment was not income.

Other commentators noted that if “severability” is a touchstone for the definition of income, it followed that a number of sales or exchanges of property that did not involve immediate realization through severance would not be taxable.[22] Realizing that the “one size fits all” definition of income in Eisner v. Macomber was too broad, the U.S. Supreme Court reconsidered the idea of severability in Helvering v. Bruun.[23] In this case, the Court addressed the question of whether or not a lessor recognizes income from the receipt of a leasehold improvement made by a lessee during the lease when the improvement reverts to the lessor at the end of the lease. In ruling that the value of the improvement was taxable, the Court noted that not every gain need be realized in cash to be taxable. There was a clear increase in the taxpayer’s wealth, and this increase did not have to be severed to measure such increase for tax purposes.[24]

In subsequent cases, the U.S. Supreme Court distanced itself further from the overly-simplistic Eisner v. Macomber definition of income and its dependence on the concept of severability. For example, in Commissioner v. Glenshaw Glass Co., the Court ruled that punitive damages recovered under a violation of anti-trust laws were included in gross income, and that the language of Section 22 (now Internal Revenue Code Section 61) clearly intended that Congress exert “the full measure of its taxing power.”[25] And in referencing its previous definition of income in Eisner v. Macomber, the Court noted that “in distinguishing gain from capital, the definition had served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions.”[26]


  1. ^ Edward R. A. Seligman, The Income Tax, p. 368 (Macmillan & Co. 1911).
  2. ^ US
  3. ^ Income Tax Act of 1799, 39 George III c13. This first income tax in England was instituted in 1799 by William Pitt to help finance the Napoleonic wars.
  4. ^ Revenue Act of 1861, sec. 49, ch. 45, 12 Stat. 292, 309 (Aug. 5, 1861).
  5. ^ Sections 49, 51, and part of 50 repealed by Revenue Act of 1862, sec. 89, ch. 119, 12 Stat. 432, 473 (July 1, 1862); income taxes imposed under Revenue Act of 1862, section 86 (pertaining to salaries of officers, or payments to "persons in the civil, military, naval, or other employment or service of the United States ...") and section 90 (pertaining to "the annual gains, profits, or income of every person residing in the United States, whether derived from any kind of property, rents, interest, dividends, salaries, or from any profession, trade, employment or vocation carried on in the United States or elsewhere, or from any other source whatever....")
  6. ^ Revenue Act of 1870, Pub. L. No. 164, 41 Cong, 2d Sess., Ch. 255 (July 14, 1870). This statute extended the income tax for only two years, 1871 and 1872.
  7. ^ Charles F. Dunbar, "The New Income Tax," Quarterly Journal of Economics, Vol. 9, No. 1 (Oct., 1894), pp. 26-46 in JSTOR
  8. ^ US Const art I, § 8, cl 1.
  9. ^ US Const art I, § 9, cl 4.
  10. ^ Chief Justice Fuller's opinion, 158 U.S. 601, 634
  11. ^ US Const amend XVI.
  12. ^ United States Government Printing Office, at Amendments to the Constitution of the United States of America; see generally United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986), cert. denied, 107 S.Ct. 187 (1986); Ficalora v. Commissioner, 751 F.2d 85, 85-1 U.S. Tax Cas. (CCH) paragr. 9103 (2d Cir. 1984); Sisk v. Commissioner, 791 F.2d 58, 86-1 U.S. Tax Cas. (CCH) paragr. 9433 (6th Cir. 1986); United States v. Sitka, 845 F.2d 43, 88-1 U.S. Tax Cas. (CCH) paragr. 9308 (2d Cir.), cert. denied, 488 U.S. 827 (1988); United States v. Stahl, 792 F.2d 1438, 86-2 U.S. Tax Cas. (CCH) paragr. 9518 (9th Cir. 1986), cert. denied, 107 S. Ct. 888 (1987); Brown v. Commissioner, 53 T.C.M. (CCH) 94, T.C. Memo 1987-78, CCH Dec. 43,696(M) (1987); Lysiak v. Commissioner, 816 F.2d 311, 87-1 U.S. Tax Cas. (CCH) paragr. 9296 (7th Cir. 1987); Miller v. United States, 868 F.2d 236, 89-1 U.S. Tax Cas. (CCH) paragr. 9184 (7th Cir. 1989); also, see generally Boris I. Bittker, Constitutional Limits on the Taxing Power of the Federal Government, The Tax Lawyer, Fall 1987, Vol. 41, No. 1, p. 3 (American Bar Ass'n).
  13. ^ Revenue Act of 1913, Pub L No 16, 63rd Cong, 1st Sess, § 22(a) (1913).
  14. ^ 252 U.S. at 200. See Revenue Act of 1916, Pub. L. No. 64-271, 64th Cong, § 2A (Sept. 8, 1916).
  15. ^ Towne v Eisner, 242 F. 702, 704 (S.D.N.Y. 1917), rev’d, 245 U.S. 418, 38 S. Ct. 158, 62 L. Ed. 372 (1918).
  16. ^ 245 U.S. at 426.
  17. ^ 252 U.S. at 206.
  18. ^ Stratton’s Independence Ltd v Howbert, 231 U.S. 399, 34 S. Ct. 136, 58 L. Ed. 285 (1913), and Doyle v. Mitchell Bros. Company, 247 U.S. 179, 38 S. Ct. 467, 62 L. Ed. 1054 (1918).
  19. ^ 252 U.S. at 207.
  20. ^ Henry Simons, Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy, pp 198-199 (University of Chicago, 1938).
  21. ^ Hawkins v. Commissioner, 6 B.T.A. 1023 (1927), at [1].
  22. ^ Joseph T Sneed, The Configurations of Gross Income p 71 (Columbus: Ohio State University Press 1967).
  23. ^ 309 U.S. 461, 60 S. Ct. 631, 84 L. Ed. 864 (1940).
  24. ^ 309 U.S. at 469.
  25. ^ Commissioner v. Glenshaw Glass Co., 348 U.S. 426, at 429 (1955).
  26. ^ 348 U.S. 426, at 431.