Society / December 6, 2023

This Supreme Court Case Could Make It Even Harder to Tax Rich People

The case Moore v. United States arose over a disputed $15,000 tax bill. It could cost the United States billions.

Elie Mystal

The US Supreme Court Building.

(Mariam Zuhaib / AP Photo)

The Supreme Court heard oral arguments in a major tax case on Tuesday, with far-reaching implications for the federal government’s ability to tax profits on investments. All nine members of the court sat in judgment, even though at least two of them probably should have recused themselves from hearing a case that could determine the tax liabilities of their wealthiest friends. Nonetheless, based on oral arguments, Harlan Crow and Paul Singer might need to think about buying additional Supreme Court justices. There’s only so much Justices Clarence Thomas and Samuel Alito can do to protect the financial interests of their fishing buddies.

The case at issue is called Moore v. United States, and it arose over a disputed tax bill of $15,000. That’s not a typo; I didn’t forget a zero. We are on the precipice of upending the federal tax code because Charles and Kathleen Moore from Washington State didn’t want to pay an extra $15K on their overseas investments. They can sue the government, but, at least temporarily in some states, the NAACP cannot sue the government to protect the voting rights of Black people. Wonderful system we’ve got here.

In 2017, the Moores got hit with the Mandatory Repatriation Tax, which was part of Donald Trump’s signature Tax Cuts and Jobs Act. The law, as many know, provided huge tax breaks for the wealthy, but it offset some of those massive governmental losses with a one-time repatriation tax on foreign assets. Traditionally, people who hold stocks in overseas companies are able to defer, perhaps indefinitely, US capital gains taxes, and so their profits are essentially never taxed. Trump changed that with this one-time fee, to the applause of so-called “America First” populists but the chagrin of wealthy Republicans with foreign assets.

The Moores had a modest investment in an India-based company—KisanKraft, which provides equipment to small farmers, and has been profitable. The company didn’t pay out dividends, and instead reinvested the profits into its business. Trump’s repatriation tax raised the Moore’s tax bill by $15,000, and they sued. They argued that the profits were not “realized” by their family (because the company paid no dividends), and thus the profits did not count as “income” under the 16th Amendment to the Constitution, which addresses the federal government’s power to tax.

It’s that “realization” argument that makes this case a major event, because if the Republicans on the Supreme Court invent a new standard that profits have to be paid out as cash money before they can be taxed, all sorts of taxes, including the various “wealth taxes” proposed by Senator Elizabeth Warren and others, could be ruled unconstitutional.

The 16th Amendment, for what it’s worth, says nothing about realization. I will spare you the long and boring conversation about what the federal tax system looked like before the 16th Amendment was ratified in 1913 (suffice it to say that the country’s original taxation scheme was woefully inadequate at generating income, regressive instead of progressive, and designed to allow large states like New York and Virginia to stick it to places like Rhode Island and Connecticut when it came time to fund the government). Instead, I’ll just say that the amendment was designed to give the government broad taxation powers. It states simply that Congress is allowed to levy taxes “on incomes, from whatever source derived.”

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Those broad powers have allowed for a complex, if highly imperfect, system of progressive income taxation to develop in this country over the last century. Unfortunately, the amendment can be also read as vague when it comes to the meaning of its key word—“income”—at least when you have people like Justices John Roberts and Neil Gorsuch, who are happy to ignore all the ways rich people generate “wealth” without counting it as a wage or salary. At oral arguments, both justices appeared convinced that “income” should be interpreted as money placed in a person’s pocket, meaning that you can’t tax somebody based on the appreciation of their assets (whether those assets are held overseas or domestically).

And then there were the bought justices, Thomas and Alito. I’ve said before that billionaires do not need to be named litigants in a case in order to have “business” in front of the Supreme Court, and Moore is a perfect example of that. When the Republican donor class takes these justices out for undisclosed free vacations, Moore is the kind of case they’re likely talking about. The billionaires want the 16th Amendment to not apply to “unrealized” profits, because doing so kills the wealth tax, throws into question the capital gains tax, and basically makes the world safe for billionaires to hoard their money in stocks while regular people get hit with an “income tax” based on their pedestrian wages.

At oral arguments, Alito did the best job of dancing with the donors who bought him. He basically abandoned talking about the case in front of him and instead spun through a series of hypotheticals about what could happen if the government had the power to tax “any income” without a limiting principle. Of course, that is the exact power that the 16th Amendment confers on the federal government, leaving it up to the voters, and not the lawyers, to decide which taxes are best for our country. But Alito didn’t seem interested in arguing the law nearly as much as in providing Fox News and The Wall Street Journal with the appropriate sound bites. He literally complained, at one point, about the “coverage” of this case thus far, saying that it was too focused on the negative consequences for federal tax law should the Moores win, and not focused enough on the negative consequences should the government be allowed to, you know, tax people.

I cannot emphasize enough the bad faith that Alito brings to this (and almost every) Supreme Court argument or opinion. The man is Tucker Carlson in a robe, and at some point he needs to be covered as such. He offered maybe 20 minutes worth of “questions”—in the Jeopardy! sense of answers merely in the form of a question—and I can’t recall one of them that was about the actual case in front of him.

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In any event, Roberts, Thomas, Alito, and Gorsuch represent only four votes to get rid of the repatriation tax. Based on oral arguments, it sounded like the anti-taxers were coming up short of a fifth. That’s because alleged attempted rapist Brett Kavanaugh and Justice Amy Coney Barrett seemed to be willing to fight themselves out of the paper bag that is the “realization” argument. Both of them seemed to agree with the notion that income had been realized in this case, albeit at the corporate level, and that the corporate “attribution” of income (back into the company as opposed to as a payout to shareholders) was enough to count as a taxable event under the 16th Amendment.

Their reasoning, if they follow through on it, might be enough to save the repatriation tax, but it still gives those two plenty of room to prohibit a wealth tax, or anything like it, should one ever pass in Congress. Whether we’re talking about Warren’s favored “wealth taxes,” President Joe Biden’s proposed “billionaire tax,” or Senator Ron Wyden’s proposed “Billionaire Income Tax,” all of those proposals are based on a person’s accrued wealth. The government would look at how much you’re worth, instead of how much you earn, and tax you accordingly. That’s fair —that’s literally how property taxes work at the state level (and property taxes are not controversial, in part because states do not derive their power to tax from the 16th Amendment). But even under Kavanaugh’s and Barrett’s formulation, such net worth would not be “realized” income just because stock prices keep going up. A person who is a billionaire on paper could continue to hide that money in plain sight from the government, at least until they did something with the money other than hoarding it, which would defeat the purpose of all kinds of wealth tax proposals.

To put all of this more simply: The Republican Supreme Court will probably rule that Trump’s repatriation tax is constitutional, while reserving the right to decree any Biden tax unconstitutional. Same as it ever was.

I don’t think we’re ever getting a wealth tax, even if Congress finds the courage to pass one, not with this Supreme Court. But the upshot of the Moore arguments is that Kavanaugh and Barrett don’t feel the need to upend the entire federal taxation system in order to stop a wealth tax. Maybe if Alito spent less time listening to the fever dreams of his wealthy vacation buddies, he’d have realized he didn’t need to go full Fox News pundit in order to defend his friends’ fortunes.

At the end of the arguments, Roberts maybe tipped his hand. He said, “The case is dismissed… err… submitted.” It was a slip of the tongue, but maybe a Freudian one. Republicans probably lost this battle, and he knows it, but he also knows that they’ll still win the larger war against billionaire taxes.

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Editorial Director and Publisher, The Nation

Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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