16th Amendment Questions

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    If the 16th Amendment authorized an unapportioned general direct tax then why did–
    1) only 9% of the population on average, from 1913 to 1940, pay the tax? This, despite the fact that the minimum income exemption was at or below the median per capita wage.
    2) the Federal Government resort to the Victory Tax and government funded Donald Duck propaganda?
    3) a unanimous SCOTUS rule in 1916 in Brushaber that such a conclusion was incorrect as it would disrupt the harmony of the Constitution and so therefore the tax remained an excise as it had been recognized to be before the amendment?
    4) a unanimous SCOTUS rule in 1916 in Stanton that the amendment did not give to Congress any new power of taxation?
    5) the SCOTUS note in 1988 in So. Carolina v. Baker that: “[T]he sole purpose of the Sixteenth Amendment was to remove the apportionment requirement for whichever incomes were otherwise taxable. 45 Cong. Rec. 2245-2246 (1910); id. at 2539; see also Brushaber v. Union Pacific R. Co., 240 U S. 1, 240 U. S. 17-18 (1916)”?
    6) Legislative Attorney of the American Law Division of the Library of Congress Howard M. Zaritsky in his 1979 Report No. 80-19A, entitled ‘Some Constitutional Questions Regarding the Federal Income Tax Laws,’ say that: “The Supreme Court, in a decision written by Chief Justice White, first noted that the Sixteenth Amendment did not authorize any new type of tax, nor did it repeal or revoke the tax clauses of Article I of he Constitution, quoted above. Direct taxes were, notwithstanding the advent of the Sixteenth Amendment, still subject to the rule of apportionment…”?
    7) Treasury Department legislative draftsman F. Morse Hubbard summarize the amendment’s effect for Congress in hearing testimony in 1943 as: “[T]he amendment made it possible to bring investment income within the scope of the general income-tax law, but did not change the character of the tax. It is still fundamentally an excise or duty…”?
    8) Ramon Sciaca in the Cornell Law Quarterly summarize the Brushaber decision as: “The Amendment, the [Supreme] court said, judged by the purpose for which it was passed, does not treat income taxes as direct taxes but simply removed the ground which led to their being considered as such in the Pollock case, namely, the source of the income. Therefore, they are again to be classified in the class of indirect taxes to which they by nature belong.”?
    9) the SCOTUS declare in Taft v. Bowers, 278 US 470, 481 (1929) that: [T]he settled doctrine is that the Sixteenth Amendment confers no power upon Congress to define and tax as income without apportionment something which theretofore could not have been properly regarded as income.”?
    10) the SCOTUS rule in Peck v. Lowe, 247 U.S. 165 (1918) that: 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…”?
    11) the SCOTUS say in Steward Machine Co. v. Collector of Internal Revenue, 301 U.S. 548 (1937) that: “If [a] tax is a direct one, it shall be apportioned according to the census or enumeration. If it is a duty, impost, or excise, it shall be uniform throughout the United States. Together, these classes include every form of tax appropriate to sovereignty. Whether the [income] tax is to be classified as an “excise” is in truth not of critical importance [for this analysis]. If not that, it is an “impost”, or a “duty”. A capitation or other “direct” tax it certainly is not.”?


    Here’s another one:
    12) a lower court decide that: “At the outset, we reject the Government’s breathtakingly expansive claim of congressional power under the Sixteenth Amendment — upon which it founds the more far-reaching arguments it advances here. The Sixteenth Amendment simply does not authorize the Congress to tax as “incomes” every sort of revenue a taxpayer may receive. As the Supreme Court noted long ago, the “Congress cannot make a thing income which is not so in fact.” Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 114 (1925). Indeed, because the “the power to tax involves the power to destroy,” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819), it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income.
    Fortunately, we need not rely solely upon the wisdom and beneficence of the Congress for, when the Sixteenth Amendment was drafted, the word “incomes” had well understood limits.”
    MURPHY v. INTERNAL REVENUE SERVICE, DC Cir. No. 05-5139 (2006)

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