Tax

Supreme Court rejects bid to preempt wealth tax

The case was being closely watched for its overall impact on large swaths of tax law.

The U.S. Supreme Court building is seen.

The Supreme Court on Thursday rejected a conservative-backed bid to preemptively block Congress from ever adopting a wealth tax.

The ruling is a victory for progressives like Sen. Elizabeth Warren (D-Mass.) who are pushing to create a broad tax on the assets of the super rich – one that would go beyond income taxes and other levies on their earnings.

On X, she said: “The fight goes on to tax the rich, pass a wealth tax on ultra-millionaire and billionaires, and make the system more fair.”

The justices voted 7-2 to turn aside a complaint from a Washington state couple that a special tax Republicans created in 2017 on businesses’ overseas profits amounted to a federal property tax, something that’s restricted by the Constitution.

Charles and Kathleen Moore had hoped their challenge would in turn slam the legal door on any possibility of lawmakers creating a wealth tax, something that has become increasingly popular in recent years among progressives.

But the court rejected the premise of the Moores’ lawsuit, ruling the so-called repatriation tax imposed by the Tax Cuts and Jobs Act is a levy on income, not property.

And it said it looks a lot like ones Congress has approved before.

“This Court has long upheld taxes of that kind, and we do the same today,” said Justice Brett Kavanaugh, writing for the majority.

The court doesn’t take many tax cases, and this one was closely watched by the tax world — not just because of its implications for a wealth tax, or for the overseas profit levy created as part of the Tax Cuts and Jobs Act, but also because what it would mean for the rest of the tax code.

Many experts worried the court might inadvertently create chaos in the code because there are other long-standing and otherwise unrelated provisions that are similar to the one challenged by the Moores.

Many had been concerned the court could create enough uncertainty about constitutionality of those provisions — many of which are designed to prevent people from avoiding paying taxes — to invite additional court challenges that would take years to resolve.

The court appeared to take those concerns to heart, emphasizing that its ruling is “narrow.”

“The Moores’ argument, taken to its logical conclusion, could render vast swaths of the Internal Revenue Code unconstitutional,” Kavanaugh wrote. “Those tax provisions, if suddenly eliminated, would deprive the U.S. government and the American people of trillions in lost tax revenue.”

The provision nominally at issue is a one-time levy created to help defray the budgetary cost of Republicans’ 2017 tax cuts. It applies to multinationals’ profits that had been stowed overseas, which had previously been beyond the jurisdiction of the IRS.

But the Moores, backed by groups like the Competitive Enterprise Institute, complained the tax triggered a $15,000 bill on an investment they had in an Indian company though they said they never made a dime from it because the firm, called KisanKraft, had plowed all of its earnings back into its operations.

Because they had never “realized” or received any money from the venture, the Moores argued, the tax effectively was on a piece of their property, not on their earnings.

And the problem with that would be a provision in the Constitution requiring that “direct taxes” — an anachronistic term that is typically interpreted as a tax that can’t be passed onto someone else — be apportioned among the states, so it’s paid in proportion to their populations. There’s an exception for income taxes, thanks to the Sixteenth Amendment.

The Moores made clear their real target, though, was not the repatriation levy, but a wealth tax — an idea that’s received a lot of attention recently though it hasn’t gotten much traction in Congress.

The court should use the case as an opportunity to “provide certainty to families and businesses arranging their financial futures” and “head off a major constitutional clash when Congress” adopts a wealth tax, the Moores had told the court.

If they had won, the IRS would have also likely had to return hundreds of billions of dollars that companies have already paid under the repatriation levy plus interest.

But the court ruled the tax, in fact, had applied to realized income — “namely, the income realized by the corporation, KisanKraft.”

And it’s hardly unusual for the tax code to chalk up a businesses’ profits to its owners, who are then taxed on them on a pro-rata basis, the ruling said.

“The precise and narrow question that the court addresses today is whether Congress may attribute an entity’s realized and undistributed income to that entity’s shareholders or partners, and then tax the shareholders or partners on their portions of that income,” Kavanaugh wrote.

“This court’s longstanding precedents, reflected in and reinforced by Congress’s longstanding practice, establish that the answer is yes.”

It had appeared likely the Moores would lose the case after most of the justices appeared skeptical of their claims in a December hearing.

Writing in dissent on Thursday, Justices Clarence Thomas and Neil Gorsuch said their colleagues were ducking the entire reason the court took the case: to determine whether income must be realized in order to be taxed.

“To avoid the question whether the Sixteenth American requires realization, the majority reframes the case as being about whether Congress may attribute an entity’s realize income to shareholders or partners,” they wrote.

Nothing in the Sixteenth Amendment allows Congress “to freely attribute income to any taxpayer it reasonably chooses.”

The dissenters also suggested the court had been cowed by warnings its decision could have potentially dramatic unintended consequences for other parts of the code.

“The majority is not ashamed to lay bare the consequentialist heart of its opinion,” they said. “If Congress invites calamity by building the tax base on constitutional quicksand,” they wrote, the power “afforded to this court does not include the power to fashion an emergency escape.”

Kavanaugh repeatedly emphasized the ruling ought to be interpreted narrowly.

“Other kinds of taxes could of course raise different issues,” he wrote.

“The Moores argue that realization is a constitutional requirement; the government argues that it is not,” the opinion reads. “To decide this case, we need not resolve that disagreement.”

“Those are potential issues for another day, and we do not address or resolve any of those issues here.”