Talk:Sixteenth Amendment to the United States Constitution/Archive 6

message: Dear Wixpositor: Your belief that you have “hit a nerve” on the “direct tax” issue is incorrect. First of all, the “direct tax” issue -- with respect to Federal income taxes -- was mooted (rendered legally irrelevant) in 1913 when the Sixteenth Amendment was ratified. Nobody cares whether a Federal income tax is a “direct tax” or an “indirect tax.” Nobody, that is, except the tax protesters – especially those who have litigated these kinds of arguments to no avail.
I and other Wikipedia editors are not here to prove to you or to persuade you that the law is what it is. You inserted certain material into the article. The material was removed for the reasons stated above. The purpose of this talk page is in part to discuss what should or should not be in the article. The following material is provided as part of the discussion as to why the material should not be in this article. The main problems with the material are lack of Verifiability and the rule against Original Research (aside from the fact that the material is demonstrably riddled with errors).
The terms “nonsense,” “idiosyncratic,” “meaningless,” and “silly” that I used to describe certain statements in the materials (article or talk page) are not examples of “invective.” The term “invective” means “a violent verbal attack; strong criticism, insults, curses, etc. [ . . . ] an abusive term; insult, curse, etc.” Webster’s New World Dictionary of the American Language, p. 740 (2d College Ed. 1970). No one has engaged in anything close to “invective” in connection with your edits to this article.
What I said was that your statement -- "that such taxes are labeled as being 'direct' has not been overturned, allowing these 'special' direct taxes to be laid and collected without apportionment yet today" -- is idiosyncratic and, from a legal standpoint, nonsense. The term “idiosyncratic” is used here to mean that the statement you made is idiosyncratic -- in the sense of having the characteristic of an idiosyncrasy: “an individual reaction [ . . . ] that is different from the reaction of most people.” Webster’s New World Dictionary of the American Language, p. 697 (2d College Ed. 1970). In other words, the statement is based on your own belief, rather than on court rulings, and is contrary to the great weight of authority. As you readily have admitted, the statement is based on your own personal, original research or opinion. However, Wikipedia is not a forum for Wikipedia editors’ first time publication of their own personal, original research. Materials should come from reliable primary, secondary or tertiary sources.
When I used the term “nonsense” in describing certain materials, I was using that term in a LEGAL sense; that is, I was using the term to identify material that is legally frivolous. This means that not only does it have no legal merit, but it also has no conceivable chance of even being close to legally correct.
Your statement that “no proof is offered” evidences your misplaced assumption that the rest of us are here to “prove” to you that you are wrong and we are right.
Your incorrect statement that I provided no “countervailing authorities” is at least consistent with your statement that you “pretty much ignore” appellate court rulings. You seem to have ignored the many appellate court rulings I cited above.
I am not “claiming” that “[n]o court has ever come up with a ruling like this.” I am stating that as a fact, and it is a fact. I have studied the actual verbatim texts of literally thousands of statutes, regulations, and court decisions. Your argument that for my statement to be accurate, I would have had to examined “every case on the subject that has ever been handed down” is incorrect. No one needs to read “every case on the subject” in order to know that no Federal court has ever ruled in favor of your arguments.
Further, all the cases you have cited (most or all of which are, by the way, U.S. Supreme Court cases) support my position, not yours.
Above, you make the following astonishing statement:
::Even though the following statement by the Court is in the realm of ratio decidendi, as Famspear points out above, and even though the following case did not involve individuals, I believe that when the Supreme Court speaks to a broad subject in issuing a more narrow ruling that their statement falls within stare decisis. The 16th Amendment did not modify anything about Article 1.
You are making two errors here. First, you are in effect arguing that the language you quote immediately thereafter is a statement of a holding of the case – stare decisis -- part of a decision in the case. Second, you are essentially ‘’’ignoring’’’ (there’s that word again) the text of the quoted material, and instead arguing that it somehow means something other than what it says.
Then you state:
::Hmmm. It would appear that this is a fancy way of saying that the 16th Amendment has absolutely no effect on the original taxing clauses.
This is your own interpretation which you use to argue that somehow Congress has no authority to tax incomes from whatever source derived, without apportionment among the states, and without regard to any census or enumeration, despite the fact that the Sixteenth Amendment states that Congress does indeed have that authority -- and despite the fact that in every case you have cited, including ‘’Brushaber’’ and ‘’Eisner v. Macomber’’, the Supreme Court either ruled the income tax constitutional or did not rule on the issue at all.
You have failed in your attempt to divert attention from the nonexistence of even a single court decision since 1913 where a court upheld a taxpayer argument that the Federal income tax was unconstitutional on the grounds you are citing. There are no such court decisions, and the argument is both legally invalid and legally frivolous, as the courts have ruled.
The Supreme Court in Brushaber never said that all direct taxes require apportionment. Further, the implication -- that if a direct tax could be found that was not required to be apportioned, this would “destroy the general requirement (in Article 1) that they all must be apportioned” -- is incorrect. That’s not what the Court said. Further, the Article I requirement that direct taxes be apportioned is not “destroyed” by the Sixteenth Amendment. The Article I requirement – as interpreted by the Pollock court -- is, however, modified (or partially repealed, if you like) by the Amendment. Again, what the courts have indicated is that the Sixteenth Amendment removed whatever requirement was imposed in Pollock that certain particular kinds of income taxes (taxes on income from property, to be specific) be apportioned. In Pollock, for the very first time, certain income taxes (not all income taxes, just taxes on income from property) were treated as direct taxes. The Pollock court indicated that up until that time (year 1895), all income taxes had been considered indirect taxes (excises). The Pollock court decided, however, that taxes on income from property should be treated as direct taxes (just like taxes on property by reason of its ownership), under the theory that a tax on the income from the property “burdened” the property in the same way that a tax on property by reason of ownership burdened that property. The Pollock court even specifically took the trouble to note that taxes on income from employment, etc., were still indirect taxes (excises). The Pollock court also took the trouble to point out that the reason it was throwing out the entire statute (including the taxes on income from employment) was not that taxes on income from employment were deemed direct taxes (they weren’t), but rather because the court recognized that Congress had not anticipated that taxes on income from property would be considered DIRECT taxes. The Court did not want to leave in place a statute that would tax income from employment but not income in the form of interest, dividends and rent, as Congress had not intended that result.
No, you are taking quotations from the court opinions, many of which are not even part of the holdings in the cases, and then arguing that the statements are “saying” something else – and then “agreeing” with your own conclusions about what you argue the courts mean. Sorry, but that gets you nowhere.
Let’s look at this statement:
::In fact, the Court’s rejection of Brushaber’s contention that there can be a direct tax that is collected without apportionment is exactly why the federal tax on personal property (money) is not allowed under Article 1—it is a direct tax collected without apportionment, which the Supreme Court rejected in the Brushaber decision as being a tax without foundation.
First of all, the Supreme Court did not reject a federal tax on personal property (money) in Brushaber -- or in any other Federal case. Indeed, no Federal court has ever rejected such a tax. Want to know why?
To the best of my knowledge, no such tax has ever existed, so there could never have been a court case on the subject. A tax on personal property (whether money or anything else) is a tax on property ‘’’by reason of ownership’’’ – not an income tax. I know of no such tax in the history of the Republic. (There may have been one in the late 1700s or the first half of the 1800s, but I'm not aware of one.) Second, such a tax would be perfectly constitutional – as long as it were apportioned among the states by population.
Again, an income tax is not a tax on personal property (money or otherwise). An income tax is a tax on income, not a tax on property by reason of its ownership. Taxes on income, regardless of source, may be validly imposed without apportionment. Read the Sixteenth Amendment and the court decisions on income taxes. Yes, income may be realized or received in the form of money, or at least a check, but that is a separate concept.
Your statement that Frank Brushaber “lost the case, not because the tax of which he complained was outside his special direct tax (there was no such special direct tax), but rather because it was an indirect tax for which the 16th Amendment again allowed collection since it had superseded the holding against such collection in Pollock” is interesting. You seem to finally be recognizing that the court ruled against you in the Brushaber case.
As an aside, tax protesters have argued for years that Frank Brushaber was a non-resident alien from Belgium, and that this was somehow significant to the outcome of his case. Assuming for the sake of argument that he was a non-resident alien from Belgium, that fact is irrelevant. Here’s why.
Brushaber apparently did not bring up his citizenship status or residency status, and the Court certainly did not mention it. Any argument about his citizenship status might have had significance if the issue had been presented to the court and considered by the court, and decided upon by the court. It was not.
You state:
::What I seem to be missing is any shred of proof that the Constitution somehow allows the federal government to collect an unapportioned direct tax within the States, regardless of what it is named. The Brushaber case construed the 16th Amendment as a declaration that an income tax must be indirect to harmonize the tax with Article 1. It did this rather than declare the tax to be direct and thereby have the 16th Amendment become a mechanism to destroy the two great classifications by making an exception to the rule that all direct taxes must be apportioned.
In a sense, you are partially correct on one point: The Brushaber court treated the Sixteenth Amendment (year 1913) as having overruled Pollock (year 1895). Taxes on income from property, after 1913, were again considered indirect taxes (excises), as they had been prior to 1895. Since the Pollock court never did treat any other income taxes as direct taxes anyway, there was no need in 1913 to “classify them back” to the category of excises; the other income taxes (including, but not limited to, taxes on income from employment) never “left” the indirect tax category. The result is that, today, all incomes, from whatever source, may be validly taxed without apportionment. That’s what the Sixteenth Amendment says, and that’s what the courts always rule when an income tax is challenged on this point. Again, see the list of cases I cited above.
One point you and many tax protesters seem to get hung up on is the fact that the Sixteenth Amendment does not use the terms “direct tax” or “excise” (indirect tax). Instead, the Amendment uses the word “source.” You fail to make the connection between the direct tax-excise formulation and the “source” formulation, in part because you keep misreading Pollock and Brushaber. A big part of the significance of Pollock, Brushaber, and the Sixteenth Amendment is the conceptual link between the “direct tax-excise” terminology and the “source” term.
It’s almost as if the tax protesters would not be satisfied unless the Sixteenth Amendment were worded as follows:
::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 regardless of any provision in Article I, including any income taxes deemed to be direct taxes, and any provision in Article I to the contrary is hereby repealed”
--or something like that. Tax protesters keep clinging pitifully to the language of Article I, ignoring the plain language of the Amendment and the rulings of the courts, based on some sort of false belief that somewhere there ought to be some rule of law (if they could just find it) that says that a U.S. constitutional amendment cannot change the legal effect of an original constitutional provision unless the amendment somehow uses some special “magic words,” such as “repeal” or “repealed” or “direct tax.” Protesters grasp ineffectually for an imaginary, non-existent rule of law that says that an amendment cannot modify the effect of a provision of the original constitution without some sort of special language. The Brushaber court never ruled any such thing.
Unfortunately for tax protesters, the U.S. follows the doctrine of implied repeal. Nearly all constitutional amendments modify provisions in the original constitution without any special wording.
Cheer up! The following language is actually more or less correct:
::A tax imposed by a single statute can be either direct or indirect (a distinct tax in either one of two distinct classes) depending on what is being taxed and the effect on the one who pays it. All the 16th amendment did was to prevent a tax on income, which is inherently an indirect tax, from being declared a direct tax (which the Supreme Court itself did in Pollock) due to a consideration of the source from which the income came (the Amendment did so when it superseded their holding in Pollock.)
But in the language that follows, you go awry:
::The 16th Amendment had nothing to do with allowing an unapportioned direct tax on personal property. It forever placed taxes on incomes within the classification of indirect taxes, but only for those that are inherently indirect from the outset. It did not turn direct taxes into indirect taxes for the convenience of the federal government or allow the collection of unapportioned direct taxes from individuals within the States whatsoever.
You further state that “income taxes that are inherently in the direct class are outside the scope of the 16th Amendment and fall within the limitations of Article 1”. That statement is absolutely incorrect as a matter of law.
There is no such thing as an income tax (direct, indirect, red, blue, green or purple) that is “outside the scope” of the Amendment, regardless of whether that income tax was considered a “direct tax” by the Pollock court or not.
I’m sorry, but if one diligently searches the Supreme Court decisions on taxation from the late teens and early twenties, one finds that the court in no way confirms your claim “six ways from Sunday” in any shape or form. Your quote from the Congressional record is actually a fairly accurate statement of the law (although, ironically, not authoritative). The problem for you is that it doesn’t get you anywhere. Further, it does not constitute a binding decision about what incomes are taxable and what incomes are not taxable.
You correctly state:
::that the 16th Amendment removed the apportion requirement for incomes that were taxable as indirect taxes under Article 1 (those that were ‘otherwise taxable’) but which Pollock had held to be direct because of their perceived effect on the underlying source.
Then you go off course again:
::Again, the “otherwise” above refers to income taxes which are allowed under Article 1 (those that are indirect and therefore are allowed to be laid and collected within the States).
Both before and after the 1895 Pollock decision, Article I placed no restriction at all on income taxes in this way. Your language “income taxes which are allowed under Article 1” seems to incorrectly imply that while income taxes (income taxes that were indirect) were allowed under Article I, others (presumably income taxes that were direct) were not.
No court has ever ruled that any income tax is prohibited merely because it is a “direct” tax. Not even the Pollock court ruled that way.
The “direct” income tax in Pollock was thrown out not because of its “directness” but instead because it was deemed to be a direct tax that was unapportioned.
Nothing in Article I has ever said that Congress cannot impose a direct tax merely because it’s a direct tax. And no court has ever ruled that Congress cannot impose a direct tax merely because it’s a direct tax.
Let’s look at this passage:
::The term “indirect” refers to the effect which a tax would have on the source of the thing being taxed. For capital earning interest, a tax on the interest is considered an indirect tax on the source which produced the interest, because the source (the capital) is not diminished. On the other hand, a tax on the source itself (the capital) would be considered a direct tax because it would diminish the amount of capital remaining to earn interest.
Except for the first sentence, the above is “sort of” correct. As you continue, here’s where you go wrong:
::Confusion results from the fact that the tax on the interest is a direct tax on the earnings, which many also consider to be an unapportioned direct tax. However, when the whole picture is taken into account, the tax on earnings is lawfully considered to be only an indirect tax on the underlying source rather than a direct tax on the proceeds.
I can see there is some “confusion” here. A tax on interest is not a direct tax except to the extent that we may consider Pollock to be viable. Yes, interest is a tax on the earnings of capital, but prior to Pollock it was not considered a direct tax. Beginning with Pollock, it was either considered a direct tax or was deemed to be a direct tax or was still an indirect tax but was TREATED as a direct tax. Take your pick. However you want to look at it, the reality is that from 1895 (Pollock) to 1913 (the Amendment), a tax on interest income, on that source, would have had to have been apportioned to be valid. The Sixteenth Amendment simply removed the apportionment requirement by making a blanket statement about all incomes “from whatever source derived.” The phrase “from whatever source derived” obviously includes, well, every source. Income from property. Income from employment. Income in the form of huge pots of gold falling from the sky right into my back yard. Whatever.
Let’s look at this statement:
::If a particular tax is a direct tax—that is, if its burden cannot be shifted (such as with a property tax, real or personal) thereby diminishing the source (the amount of capital or of the resource remaining to produce more of the thing taxed) it is prohibited by Article 1 within the States.
The above statement is absolutely incorrect. You have made a fundamental error. Nothing in Article I prohibits any such tax. No court has ever interpreted Article I in the way you have done so.
Today, in the year 2007, Congress could validly impose any direct tax without running afoul of Article I or any other Constitutional provision. Congress could impose a national property tax, for example. Congress could impose a national capitation (such as $100 per year from every man, woman and child). Yes, the national property tax would have to be apportioned. And yes, the capitation would have to be apportioned. But there is nothing in Article I that prohibits a direct tax merely because it is a direct tax.
If the tax were a property tax or a capitation, the Sixteenth Amendment (which applies only to income taxes) would not apply to it, of course. A property tax (tax on property by reason of its ownership) and a capitation would have to be apportioned among the states by population.
Further, after the year 1913, if an unapportioned income tax were somehow deemed to be a direct tax, it would still be constitutionally valid, even though unapportioned. Read the Sixteenth Amendment again.
IN EVERY CASE WHERE TAX PROTESTERS HAVE CHALLENGED AN UNAPPORTIONED INCOME TAX AS BEING UNCONSTITUTIONAL, THE COURTS HAVE RULED THAT THE INCOME TAX WAS CONSTITUTIONAL EVEN THOUGH UNAPPORTIONED.
====Pacific Ins. Co. v. Soule====
Now we come to a part that I suspect you are going to find particularly painful. Let’s look at your verbiage regarding the U.S. Supreme Court case of ‘’Pacific Ins. Co. v. Soule’’:
::Back two centuries ago (!) (in the 1800s), the Supreme Court gave an excellent explanation of the way these direct and indirect taxes operate, which remains true yet today:
::::“The ordinary test of the difference between direct and indirect taxes is whether the tax falls ultimately on the tax-payer [the one responsible for remitting it to the government], or whether, through the tax-payer, it falls ultimately on the consumer [customer]. If it falls ultimately on the tax-payer, then it is direct in its nature, as in the case of poll taxes and land taxes [and personal property taxes]. If, on the contrary, it falls ultimately on the consumer [if the business doesn’t absorb it—the customer does], then it is an indirect tax [on the business]. Such is the test, as laid down by all writers on the subject. Adam Smith, who was the great and universally received authority on political economy, in the day when the Federal Constitution was framed, sets forth a tax on a person's revenue to be a direct tax.”—Pacific Ins. Co. v. Soule, 74 U.S. 433, 437 (1868) (Emphasis added)
::The 16th Amendment changed nothing in the above statement nor did it authorize a tax on a person's revenue.
I hate to be the one to have to break the news to you, but the “quotation” you attribute to the “Supreme Court,” even going so far as to say that “the Supreme Court gave an excellent explanation of the way these direct and indirect taxes operate, which remains true yet today” – was never made by the Court. (I will assume that this was innocent on your part.)
The quoted material is a statement made by the attorney for the INSURANCE COMPANY – the LOSING PARTY in the case. This quote is not only NOT part of the Court’s ruling in the case -- it’s not even part of the Court’s dicta! It’s not even from the text of the Court’s opinion!
In some versions of the reprints of the case -- including (for example) the reprint at findlaw.com -- this material (as well as some arguments made by the attorney for the opposing side) is reprinted as introductory material -- as a headnote or syllabus -- ABOVE THE ACTUAL TEXT OF THE COURT’S OPINION. As every first year law student knows, material in the headnote or syllabus, or any other material physically printed above the opinion of the Court, is NOT PART OF THE TEXT OF THE COURT’S OPINION.
The court rejected these arguments and ruled that a tax on insurance premium revenues was an excise, not a direct tax. (The Court also quoted from prior decisions that indicated that direct taxes consist of capitations and property taxes.)
This is yet another illustration of why Wikipedia has a rule against people using Wikipedia to publish their own original research. Law is a technical subject. Your analysis of Pacific Insurance Co. v. Soule – including the fundamental mistake of citing a losing party’s argument as being a statement by the Court -- is your own original research.
Analysis of legal materials is not something that can be properly learned by reading one, or ten, or even a hundred court opinions. Tax protest arguments are based in large part on misinterpretations of materials from cases decided prior to about 1930, and the older a court case, the more difficult it is to analyze. This is not the first time people have made this mistake in reading old Supreme Court decisions. The same mistake has been made on the internet – including right here in Wikipedia – with the leading case of Lucas v. Earl, where at least one tax protester has quoted excerpts from a brief filed by the losing party (the taxpayer) and have falsely claimed that the material was from the text of  the opinion of the court itself. Yes, Lucas v. Earl is yet another case where the tax protesters falsely state that the taxpayer’s argument was a winner, when in actuality the Court ruled against the taxpayer.
Finally, you complain of materials on the IRS web site and go off on another tangent. But I think we’ve had enough for now.
Wikipedia has certain rules, including Verifiability, Neutral Point of View, and No Original Research. Your material fails especially on the Verifiability and No Original Research points.
In my opinion, you have demonstrated on this talk page very compellingly the wisdom of the Wikipedia rule regarding No Original Research. Famspear 22:00, 13 January 2007 (UTC)
thread_title: Response to Wixpositor

message: Now we come to a part that I suspect you are going to find particularly painful. Let’s look at your verbiage regarding the U.S. Supreme Court case of ‘’Pacific Ins. Co. v. Soule’’:
::Back two centuries ago (!) (in the 1800s), the Supreme Court gave an excellent explanation of the way these direct and indirect taxes operate, which remains true yet today:
::::“The ordinary test of the difference between direct and indirect taxes is whether the tax falls ultimately on the tax-payer [the one responsible for remitting it to the government], or whether, through the tax-payer, it falls ultimately on the consumer [customer]. If it falls ultimately on the tax-payer, then it is direct in its nature, as in the case of poll taxes and land taxes [and personal property taxes]. If, on the contrary, it falls ultimately on the consumer [if the business doesn’t absorb it—the customer does], then it is an indirect tax [on the business]. Such is the test, as laid down by all writers on the subject. Adam Smith, who was the great and universally received authority on political economy, in the day when the Federal Constitution was framed, sets forth a tax on a person's revenue to be a direct tax.”—Pacific Ins. Co. v. Soule, 74 U.S. 433, 437 (1868) (Emphasis added)
::The 16th Amendment changed nothing in the above statement nor did it authorize a tax on a person's revenue.
I hate to be the one to have to break the news to you, but the “quotation” you attribute to the “Supreme Court,” even going so far as to say that “the Supreme Court gave an excellent explanation of the way these direct and indirect taxes operate, which remains true yet today” – was never made by the Court. (I will assume that this was innocent on your part.)
The quoted material is a statement made by the attorney for the INSURANCE COMPANY – the LOSING PARTY in the case. This quote is not only NOT part of the Court’s ruling in the case -- it’s not even part of the Court’s dicta! It’s not even from the text of the Court’s opinion!
In some versions of the reprints of the case -- including (for example) the reprint at findlaw.com -- this material (as well as some arguments made by the attorney for the opposing side) is reprinted as introductory material -- as a headnote or syllabus -- ABOVE THE ACTUAL TEXT OF THE COURT’S OPINION. As every first year law student knows, material in the headnote or syllabus, or any other material physically printed above the opinion of the Court, is NOT PART OF THE TEXT OF THE COURT’S OPINION.
The court rejected these arguments and ruled that a tax on insurance premium revenues was an excise, not a direct tax. (The Court also quoted from prior decisions that indicated that direct taxes consist of capitations and property taxes.)
This is yet another illustration of why Wikipedia has a rule against people using Wikipedia to publish their own original research. Law is a technical subject. Your analysis of Pacific Insurance Co. v. Soule – including the fundamental mistake of citing a losing party’s argument as being a statement by the Court -- is your own original research.
Analysis of legal materials is not something that can be properly learned by reading one, or ten, or even a hundred court opinions. Tax protest arguments are based in large part on misinterpretations of materials from cases decided prior to about 1930, and the older a court case, the more difficult it is to analyze. This is not the first time people have made this mistake in reading old Supreme Court decisions. The same mistake has been made on the internet – including right here in Wikipedia – with the leading case of Lucas v. Earl, where at least one tax protester has quoted excerpts from a brief filed by the losing party (the taxpayer) and have falsely claimed that the material was from the text of  the opinion of the court itself. Yes, Lucas v. Earl is yet another case where the tax protesters falsely state that the taxpayer’s argument was a winner, when in actuality the Court ruled against the taxpayer.
Finally, you complain of materials on the IRS web site and go off on another tangent. But I think we’ve had enough for now.
Wikipedia has certain rules, including Verifiability, Neutral Point of View, and No Original Research. Your material fails especially on the Verifiability and No Original Research points.
In my opinion, you have demonstrated on this talk page very compellingly the wisdom of the Wikipedia rule regarding No Original Research. Famspear 22:00, 13 January 2007 (UTC)
thread_title: Pacific Ins. Co. v. Soule