Presentment IV – Definition of Income

Collect Taxes On Whose Income!

Below please find excerpts from US Supreme Court Cases analyzed and interpreted by the Congressional Research Service for Senate Document 112 – 9 reflecting the true meaning of the term “Income” as it is used in the Sixteenth Amendment.

Black’s Law Dictionary defines an excise as:

Excise taxes are taxes “laid upon the manufacture, sale or consumption of  commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges. ” Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 349 (1911); or a tax on privileges, syn. “privilege tax”.

The Supreme Court case specifically referenced by Black’s, has provided a clear and definite scope of the excise taxing authority. In Flint v. Stone Tracy Co., 220 U.S. 107 (1911)ill, the Supreme Court held that:

“Duties and imposts are terms commonly applied to levies made by governments on the importation or exportation of commodities. Excises are “taxes laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges … the requirement to pay such taxes involves the exercise of the privilege and if business is not done in the manner described no tax is payable …it is the privilege which is the subject of the tax and not the mere buying, selling or handling of goods. ” Cooley, Const. Lim., 7th ed., 680.” Flint, supra, at 151

Merchants’ Loan & Trust Co. v. Smietanka 255 U.S. 509 (1921) “It is obvious that these decisions in principle rule the case at bar if the word “income” has the same meaning in the Income Tax Act of 1913 that it had in the Corporation Excise Tax Act of 1909, and that it has the same scope of meaning was in effect decided in Southern Pacific Co. v. Lowe 247 U.S. 330, 335, where it was assumed for the purposes of decision that there was no difference in its meaning as used in the act of 1909 and in the Income Tax Act of 1913. There can be no doubt that the word must be given the same meaning and content in the Income Tax Acts of 1916 and 1917 that it had in the act of 1913. When to this we add that in Eisner v. Macomber, supra, a case arising under the same Income Tax Act of 1916 which is here involved, the definition of “income” which was applied was adopted from Strattons’ Independence v. Howbert, arising under the Corporation Excise Tax Act of 1909, with the addition that it should include “profit gained through sale or conversion of capital assets,” there would seem to be no room to doubt that the word must be given the same meaning in all the Income Tax Acts of Congress that was given to it in the Corporation Excise Tax Act, and that what that meaning is has now become definitely settled by decisions of this Court.”

So let’s examine the Corporate Tax Act of 1909 (36 Stat. 11, 112).  It states:

“That every corporation, joint stock company or association, organized for profit and having a capital stock represented by shares … now or hereafter organized under the laws of the United State or of any State … shall be subject to pay annually a special excise tax with respect to carrying on or doing business by such corporation … equivalent to one per centum on the entire net income over and above five thousand dollars received by it from all sources during such  year….”

The Supreme Court identifies that the constitutional justification for the corporate “income tax”, is as an indirect excise tax “imposed with respect to the doing of business in corporate form”, just as it has been defined under Flint two years   earlier.

As the court noted in US. v. Ballard 535 F.2d 400 at page 404, the word “income” is not actually defined in the Internal Revenue Code. However, the Supreme Court has consistently defined it in a number of cases. In Stratton’s Independence v. Howbert, 231 U.S. 399 (1913), the court wrote:

“As has been repeatedly remarked, the corporation tax act of 1909 was not intended to be and is not, in any proper sense, an income tax law. This court has decided in the Pollock Case that the income tax of 1894 amounted in effect to a direct tax upon property, and was invalid because not apportioned according to population, as prescribed by the Constitution. The act of 1909 avoided this difficulty by imposing not an income tax, but an excise tax upon the conduct of business in a corporate capacity, measuring, however, the amount of tax by the income of the corporation, . . .”

“Evidently Congress adopted the income as the measure of the tax to be imposed with respect to the doing of business in corporate form because it desired that the excise should be imposed, approximately at least, with regard to the  amount  of  benefit  presumably derived by  such  corporations  from the  current  operations  of the government. In Flint v. Stone Tracy Co. 220 U.S. 107, 165 , 55 S. L. ed. 107, 419,  31  Sup.  Ct.  Rep. 342, Ann. Cas. 1912 B. 1312, it was held that Congress, in exercising the right to tax a legitimate subject of taxation as a franchise or privilege, was not debarred by the Constitution from measuring the taxation by the total  income,  although  derived  in part from property which, considered by itself, was not  taxable.  It was  reasonable  that  Congress should fix upon gross income, without  distinction  as to  source,  as a convenient and sufficiently accurate index of the importance of the business transacted.” Stratton’s Independence, Ltd.  V  Howbert,  231 U.S. 399, at 416 -417 (1913)

And the Supreme Court tells us again in Eisner vs. Macomber,_252 U.S.  189 (1920), on page   205, that:

“The Sixteenth Amendment  must  be construed  in connection  with the taxing  clauses  of  the original Constitution and the effect attributed to them before the amendment was  adopted. In Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 , 15 Sup. Ct. 912, under the Act of August 27, 1894 (28 Stat. 509, 553, c.  349, 27),  it was  held  that  taxes  upon rents and profits of real estate and upon returns  from  investments  of  personal  property were in effect direct taxes upon the property from which such income arose, imposed by reason of ownership; and that Congress could not impose such taxes without apportioning them among the states according to population, as required by  article  1, 2,  cl.  3,  and section 9, cl. 4, of the original  Constitution.

Afterwards, and evidently in recognition of the limitation upon the taxing power of Congress thus determined, the Sixteenth Amendment was adopted, in words lucidly expressing the object to be accomplished:

‘The 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.’  ……..“

As repeatedly held, this did not extend the taxing power to new subjects (citizens of the States), but merely removed the necessity which otherwise might  exist for an apportionment  among the states  of taxes laid on income. Brushaber v. Union Pacific R. R. Co., 240 U.S. 1 , 17-19, 36 Sup.  Ct. 236, Ann. Cas. 1917B, 713, L. R. A. 1917D, 414; Stanton v. Baltic  Mining  Co., 240  U.S.  103 ,  112 et seq., 36 Sup. Ct. 278; Peck & Co.  v.  Lowe,  247 U.S.  165,  172 ,  173 S., 38 Sup. Ct. 432.

After examining dictionaries in common use (Bouv. L. D.; Standard Diet.; Webster’s Intemat. Diet.; Century Diet.), we find little to add to the succinct definition adopted in two cases arising under the Corporation Tax Act of 1909 (Stratton’s Independence v. Howbert, 231 U.S. 399, 415 , 34 S. Sup. Ct. 136, 140 [58 L. Ed. 285]; Doyle v. Mitchell Bros. Co.,

247 U.S. 179, 185 , 38 S. Sup. Ct. 467, 469 [62 L. Ed. 1054]), ‘Income may be defined as the gain derived from capital, from labor, or from both combined,’ provided it be understood to include profit gained through a sale or conversion of capital assets, to which it was applied  in the Doyle Case, 247 U.S.  183, 185 , 38 S. Sup. Ct. 467, 469  (62 L.   Ed. 1054).

“Certainly the term “income” has no broader meaning in the 1913 Act than in that of  1909 (See Stratton’s Independence v. Howbert, 231 U.S. 399, 416, 417), and for the present purpose we assume there is no difference in its meaning as used in the two acts. Southern Pacific  v.Lowe, 247 U.S. 330 (1918)      619

And before the 1921 Act this Court has indicated (see Eisner v. Macomber, 252 U.S. 189, 207), what it later held, that “income, “as used in the revenue acts taxing income, adopted since the Sixteenth Amendment, has the same meaning that it had in the Act of 1909. Merchant’s Loan &Y Trust Co. v. Smientanka, 255 U.S 509, 519; see Southern  Pacific  Co. v. Lowe, 247 U.S. 330, 335 Burnet  v. Harmel,    287 U.S. 103, (1932)

“Whatever difficulty there may be about a precise and scientific definition of ‘income,’ it imports, as used here, something entirely distinct from principal or capital either as a subject of taxation or as a measure of the tax; conveying rather the idea of gain  or increase ARISING FROM CORPORATE ACTIVITIES. As was said in Stratton’s Independence v. Howbert, 231 U.S. 399, 415 , 34 S. Sup. Ct. 136: ‘Income may be defined as the gain derived from capital, from labor, or from both combined.”‘ Doyle v. Mitchell Bros., 247 U.S. 179, (1918)

In Flint v. Stone Tracy  Co. 220 U.S. 107, 165, 55 S.L. ed. 107, 419, 31 Sup. Ct. Rep. 342, 1912 B. 1312, it was held that Congress, in exercising the right to tax a legitimate subject of taxation as a franchise or privilege, was not debarred by the Constitution from measuring the taxation by the total income, although derived in part from property which, considered by itself, was not taxable.” Stratton ‘s Independence, Ltd. V. Howbert, 231 U.S. 399, 417.

 

Be Blessed

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