constitutions, taxation, realization, sales and use tax
This article reviews some federal and state constitutional law challenges to tax legislation in the US and considers how taxing and other revenue raising legislation tends to withstand constitutional challenge.
Part I of this article examines instances in which the Supreme Court reviewed state taxing laws for conflict with the Constitution and overruled its earlier decisions in similar cases. One case involving a poll or capitation tax worked its way through the courts as the Constitution was being amended to prevent the states from using a poll tax in the future. Another case from 2018 resolves a longstanding tax collection and avoidance problem with state sales taxes. Part II focuses on a single longstanding Supreme Court precedent limiting federal tax law under the Constitution which Congress increasingly has not followed. The decision and recent congressional action is contextual in the current discussions of other taxing proposals. Part III considers some areas in which constitutional limitations exist but legislatures and courts seem to have no interest in addressing the limitations. Part IV concludes
Ordower, Henry, Avoiding Federal and State Constitutional Limitations in Taxation (July 10, 2020). Julio Homem de Siqueira, et al., eds. Princípios Constitucionais Tributários (Tax Principles and Constitutional Law) Belo Horizonte, Brazil, Forthcoming, 168 Tax Notes Federal 1447 (August 24, 2020) and 97 Tax Notes State 803 (August 24, 2020), Saint Louis U. Legal Studies Research Paper No. 2020-30, Available at or http://dx.doi.org/10.2139/ssrn.3648673