View Full Version : Is the Obamacare tax indirect, or direct and requiring apportionment?
johnwk
12-26-2016, 04:58 PM
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When writing the majority opinion in the Obamacare case, Justice Roberts wrote with regard to the “shared responsibility payment” (SRP):
”A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”
As we can see, Justice Roberts asserts that a tax imposed on an individual who does not have health insurance “….does not fall within any recognized category of direct tax”. In addition Roberts confirms that a “direct tax” is still required by our constitution to be apportioned among the several States. What is missing from Roberts’ assertion is an explanation as to why the SRP would not be considered a “direct tax” as understood by the Framers of our Constitution and those who ratified it. Why is such an explanation essential to arriving at a conclusion? The answer is because a fundamental rule of constitutional construction requires:
”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__ 16 Am Jur 2d Constitutional law, Meaning of Language.
Regarding the command that “direct taxes” are to be apportioned, our Supreme Court in Hylton v. United States : 3 U.S. 171 (1796) says the following:
”By the second section of the first article of the Constitution, it is provided, that direct taxes shall be apportioned among the several States, according to their numbers, to be determined by the rule prescribed.
By the ninth section of the same article, it is further provided, That no capitation, or other direct tax, shall be laid, unless in proportion to the census, or enumeration, before directed.
By the eighth section of the same article, it was declared, that Congress shall have power to lay and collect taxes, duties, imposts, and excises; but all duties, imposts, and excises, shall be uniform throughout the United States.”
And let us remember by Roberts own admission “direct taxes” are still required to be apportioned notwithstanding the adoption of the 16th Amendment!
And so, a question is unanswered as to which constitutionally authorized taxing power granted to Congress, when adhering to the constitutional limits placed upon it, can be pointed to and levied as the "shared responsibility payment"?
We can immediately exclude imposts and duties because imposts and duties as understood by our founders are taxes imposed on the import or export of goods. They are not imposed directly upon the individual.
And in reference to the power to lay and collect excise taxes, they too are not levied directly upon the individual but are levied upon the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations or upon a privilege granted by government such as the Corporate excise tax of 1909 upheld in Flint vs. Stone Tracy. An excise tax may also be levied upon a particular piece of property or is use and is considered as taxing the individual directly ___ see the Hylton Carriage case cited by Roberts.
So, of three specific types of taxes mentioned in our Constitution ___ imposts, duties and excise taxes as they were understood and used by our founding fathers ___ it seems crystal clear they cannot be used to levy the “shared responsibility payment”, a type of tax which seems crystal clear is levied directly upon the individual.
And with reference to the power to lay and collect taxes on “incomes without apportionment” It does not matter what name is given to the tax. Any tax which takes the form of a “direct tax” is still, notwithstanding the 16th Amendment, required to be apportioned as confirmed by Justice Roberts!
When Roberts wrote that “The shared responsibility payment is thus not a direct tax that must be apportioned among the several States”, he totally ignored the historical characteristics which identify and distinguish a direct tax from those which are indirect as understood by our founders. In fact, the shared responsibility payment is characteristic of a direct tax, and particularly so when taxing a person’s earned wage! A review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders were familiar with, we find the following reference regarding a capitation tax as being a direct tax:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.
The shared responsibility payment is in fact to be levied directly upon the wage-earner which is then computed from annual wages earned, and thus takes the form of a direct tax as understood by our founders!
The irrefutable fact is, there is a consistency among the founders comments that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject.
Are we to conclude the SRP is not a direct tax as confirmed by Adam Smith, which is levied directly upon a working person and computed from his/her annually earned wage?
Roberts asserts the SRP “… is also plainly not a tax on … personal property … “and is “…thus not a direct tax that must be apportioned among the several States.” But, the fact is our very own Supreme Court has stated:
"The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property."___ Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884)
Indeed, the SRP is a tax levied upon personal property [ a working person's earned wage] and as such, “must be apportioned among the several States”!
JWK
”If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property.”__ POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 [1895]
MelissaWV
12-26-2016, 05:10 PM
Or illegal requiring repeal...
oyarde
12-26-2016, 05:20 PM
The entire premise of " shared responsibility" is illegal , immoral and unamerican . I will pay no penalty , ever .
Sonny Tufts
12-27-2016, 11:18 AM
In addition Roberts confirms that a “direct tax” is still required by our constitution to be apportioned among the several States.
No, he simply said that the shared responsibility payment is not the kind of direct tax that has to be apportioned. Earlier in his opinion he noted that the Pollock case had held that taxes on investment income were direct taxes that had to be apportioned but that this result had been overturned by the 16th Amendment. So even if one thinks that the Pollock analysis was correct (and it wasn't -- the Court later characterized the decision as having been based on an erroneous premise) and that taxes on investment income are direct taxes, they still needn't be apportioned.
And in reference to the power to lay and collect excise taxes, they too are not levied directly upon the individual but are levied upon the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations or upon a privilege granted by government such as the Corporate excise tax of 1909 upheld in Flint vs. Stone Tracy. An excise tax may also be levied upon a particular piece of property or is use and is considered as taxing the individual directly ___ see the Hylton Carriage case cited by Roberts.
Excises are much broader -- the gift tax, for example, is an excise that is levied on the donor and that involves no privilege, license, or manufacture.
When Roberts wrote that “The shared responsibility payment is thus not a direct tax that must be apportioned among the several States”, he totally ignored the historical characteristics which identify and distinguish a direct tax from those which are indirect as understood by our founders.
Not really -- beginning with Hylton, the Court has construed the direct tax clause very narrowly. In fact, two of the four Justices who decided Hylton were of the opinion that the only direct taxes in the constitutional sense were capitations and taxes on land, and a third hinted that he shared this view. The Pollock case expanded the definition to include taxes on personal property and taxes on investment income. Once you confine direct taxes to these types, Roberts' conclusion that the shared responsibility payment is not a direct tax follows.
However, Roberts' analysis ignored the fact that all indirect taxes (duties, imposts, and excises) involve some sort of activity that triggers the tax. The gift tax is an excise on the transfer of property; a duty includes a tax on the importation of goods; the income tax is a tax on the receipt of income. But the shared responsibility tax involves no activity at all -- it is a tax on a certain type of inactivity (the failure to have insurance). Perhaps in an effort to find some activity, Roberts links the failure to have insurance with having income above a threshold amount. But this is simply an exemption from the tax, not an activity that supports the imposition of an excise. Viewed in this manner, the tax could very well have been held to be a direct tax, but Robert's analysis was sorely lacking.
In fact, the shared responsibility payment is characteristic of a direct tax, and particularly so when taxing a person’s earned wage! A review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders were familiar with, we find the following reference regarding a capitation tax as being a direct tax:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.
The shared responsibility payment is in fact to be levied directly upon the wage-earner which is then computed from annual wages earned, and thus takes the form of a direct tax as understood by our founders!
Not quite. Smith defined capitations as taxes that are paid "without regard to property, profession, or any other circumstance". So when he says that capitations on the poor are equivalent to direct taxes on their wages, he means nothing more than their wages are the only source from which they have the funds to pay a capitation. This is far different from a tax that is explicitly imposed on and payable from wages, because that type of tax is imposed with regard to a particular circumstance -- receiving wages. But a capitation is imposed without regard to this circumstance; the taxing authority doesn't care where the money to pay the tax comes from.
In any event, the argument that an income tax is a capitation or other direst tax was made and rejected in the Springer case, which upheld the Civil War income tax as in the nature of a duty or excise.
The irrefutable fact is, there is a consistency among the founders comments that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject.
The Hylton Justices who thought that the term "direct taxes" as used in the Constitution encompasses only capitations and taxes on land were intimately involved in the ratification of the Constitution, and they didn't share your view of "consistency among the founders comments".
Are we to conclude the SRP is not a direct tax as confirmed by Adam Smith, which is levied directly upon a working person and computed from his/her annually earned wage?
Except that the tax isn't computed from one's wages. In fact, for 2014 and 2015 the tax couldn't exceed a flat rate of $95 and $315, respectively.
Roberts asserts the SRP “… is also plainly not a tax on … personal property … “and is “…thus not a direct tax that must be apportioned among the several States.” But, the fact is our very own Supreme Court has stated:
"The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property."___ Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884)
Indeed, the SRP is a tax levied upon personal property [ a working person's earned wage] and as such, “must be apportioned among the several States”!
Wrong. First, the quote is from the concurring opinion of a single Justice, not from the majority opinion. Second, the case was an antitrust case having nothing to do with taxation. Third, the Justice who authored the quote voted to uphold the Civil War income tax in the Springer case just four years earlier. Fourth, the SRP tax isn't imposed on the ownership of property, which would be a direct tax. It's imposed on the failure to have insurance.
johnwk
12-27-2016, 11:37 AM
No, he simply said that the shared responsibility payment is not the kind of direct tax that has to be apportioned. .
Your misrepresentation/interpretation is not appreciated. Roberts exact quote is:
”A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”
In any event, thank you for your unsubstantiated personal opinions.
JWK
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___Chancellor James Kent, in his Commentaries on American Law (1858)
johnwk
12-27-2016, 12:03 PM
Are we to conclude the SRP is not a direct tax as confirmed by Adam Smith, which is levied directly upon a working person and computed from his/her annually earned wage?
Except that the tax isn't computed from one's wages. In fact, for 2014 and 2015 the tax couldn't exceed a flat rate of $95 and $315, respectively.
Calculating the payment
The shared responsibility payment is being implemented gradually over a number of years:
• For 2014, the full payment is $95 for each adult, $47.50 for each child, up to a maximum of $285 -- or 1% of your household income, whichever is higher
• For 2015, the full payment is $325 for each adult, $162.50 for each child, up to a maximum of $975 -- or 2% of your household income, whichever is higher
• For 2016, the full payment is $695 per person, $347.50 for each child, up to a maximum of $2,085 -- or 2.5% of your household income, whichever is higher
Do you know what the word "or" means? The fact is, the SRP is calculated from a person’s earned wages.
JWK
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)
timosman
12-27-2016, 12:11 PM
The entire premise of " shared responsibility" is illegal , immoral and unamerican . I will pay no penalty , ever .
Have you read your social contract? :cool:
Sonny Tufts
12-27-2016, 01:11 PM
Your misrepresentation/interpretation is not appreciated.
Neither is your abysmal ignorance of tax law. I was responding to your claim that "by Roberts own admission “direct taxes” are still required to be apportioned notwithstanding the adoption of the 16th Amendment!" He didn't, for a very simple reason: IF, as Pollock held, a tax on investment income is still a direct tax then by the plain language of the 16th Amendment that only a knuckle-dragging cretin could fail to understand, it doesn't have to be apportioned. All other direct taxes do.
Do you know what the word "or" means? The fact is, the SRP is calculated from a person’s earned wages.
Guess again. "Household income" isn't restricted to wages, but includes all adjusted gross income plus tax-exempt interest and income excluded under Section 911 (relating to foreign earned income). Moreover, the tax is equal to the lesser of (a) the penalty amount (defined as the greater of a flat dollar amount or a percentage of the excess of household income over the standard deduction and personal exemption), or (b) the national average premium for certain types of insurance plans. So if (b) is less than the amount figured on income, it applies. For example, if one's modified AGI exceeds roughly $107,000 the tax for 2016 will be capped at $2,676. And since the income taken into account includes all income, the suggestion that the SRP is a tax on wages is simply wrong.
[I admit my goof that the fixed dollar amount was a cap.]
oyarde
12-27-2016, 01:17 PM
Have you read your social contract? :cool:
Is that like some kind of Treaty you guys signed ?
Superfluous Man
12-27-2016, 01:27 PM
What is the OP talking about?
Is this all based on some delusion of the US Constitution mattering?
johnwk
12-27-2016, 04:21 PM
Neither is your abysmal ignorance of tax law. I was responding to your claim that "by Roberts own admission “direct taxes” are still required to be apportioned notwithstanding the adoption of the 16th Amendment!" He didn't, for a very simple reason: IF, as Pollock held, a tax on investment income is still a direct tax then by the plain language of the 16th Amendment that only a knuckle-dragging cretin could fail to understand, it doesn't have to be apportioned. All other direct taxes do.
Direct taxes, not withstanding the 16th Amendment, are still required to be apportioned. And Roberts' written opinion confirms this fact:
”A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”
Let us not forget the question if the Shared Responsibility Payment is a direct tax and requiring apportionment was not properly address in the Obamacare case. See the dissenting opinion agreed to by SCALIA, KENNEDY, THOMAS, and ALITO, JJ.
”Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.”
JWK
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)
heavenlyboy34
12-27-2016, 04:24 PM
What is the OP talking about?
Is this all based on some delusion of the US Constitution mattering?
+rep
johnwk
12-27-2016, 04:33 PM
Calculating the payment
The shared responsibility payment is being implemented gradually over a number of years:
• For 2014, the full payment is $95 for each adult, $47.50 for each child, up to a maximum of $285 -- or 1% of your household income, whichever is higher
• For 2015, the full payment is $325 for each adult, $162.50 for each child, up to a maximum of $975 -- or 2% of your household income, whichever is higher
• For 2016, the full payment is $695 per person, $347.50 for each child, up to a maximum of $2,085 -- or 2.5% of your household income, whichever is higher
Do you know what the word "or" means? The fact is, the SRP is calculated from a person’s earned wages.
JWK
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)
Do you know what the word "or" means? The fact is, the SRP is calculated from a person’s earned wages.
Guess again. "Household income" isn't restricted to wages,
There was no guessing on my part. Earned wages are part of "household income".
JWK
If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property. POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 (1895)
johnwk
12-27-2016, 04:41 PM
What is the OP talking about?
Is this all based on some delusion of the US Constitution mattering?
So, you agree with me that our Constitution is not being followed?
JWK
"To lay with one hand the power of the government on the property of the citizen [a working person’s earned wage] and with the other to bestow upon favored individuals, to aid private enterprises and build up private fortunes [Obamacare’s shared responsibility payment ] is none the less a robbery because it is done under forms of law and called taxation."____ Savings and Loan Assc. v. Topeka,(1875).
Sonny Tufts
12-27-2016, 05:20 PM
Let us not forget the question if the Shared Responsibility Payment is a direct tax and requiring apportionment was not properly address in the Obamacare case. See the dissenting opinion agreed to by SCALIA, KENNEDY, THOMAS, and ALITO, JJ.
I couldn't agree more. Roberts' analysis of the direct tax issue was terrible. Only if direct taxes are to be forever confined to capitations and property taxes does it follow that the SRP isn't a direct tax. But given that this was the first time in history that inactivity had been the subject of a tax, one might have expected a more reasoned analysis of whether the SRP constituted a new category of direct tax. The outcome might have been the same -- SCOTUS has been extremely deferential to Congress when it comes to tax matters -- but at least it would have been nice to have put some thought into it. And this goes for the dissenters as well -- if they thought the SRP might have been a direct tax they should have said something more than "we should have received more briefing".
Earned wages are part of "household income".
The point was that one could still be subject to the tax even if he had no wages.
johnwk
12-27-2016, 05:32 PM
I couldn't agree more. Roberts' analysis of the direct tax issue was terrible. Only if direct taxes are to be forever confined to capitations and property taxes does it follow that the SRP isn't a direct tax. But given that this was the first time in history that inactivity had been the subject of a tax, one might have expected a more reasoned analysis of whether the SRP constituted a new category of direct tax. The outcome might have been the same -- SCOTUS has been extremely deferential to Congress when it comes to tax matters -- but at least it would have been nice to have put some thought into it. And this goes for the dissenters as well -- if they thought the SRP might have been a direct tax they should have said something more than "we should have received more briefing".
So, now we come to the real question . . . what characteristics define a direct tax and distinguish them from those which were considered by our forefathers as being indirect?
My research indicates, generally speaking is, that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject.
JWK
Superfluous Man
12-27-2016, 07:03 PM
So, you agree with me that our Constitution is not being followed?
JWK
"To lay with one hand the power of the government on the property of the citizen [a working person’s earned wage] and with the other to bestow upon favored individuals, to aid private enterprises and build up private fortunes [Obamacare’s shared responsibility payment ] is none the less a robbery because it is done under forms of law and called taxation."____ Savings and Loan Assc. v. Topeka,(1875).
Of course.
Weston White
12-28-2016, 08:23 AM
Such is purely a misnomer to define a compliance failure—by failing to arrange for ongoing contractual purchases—as being a tax; such can only ever be properly defined as a fine or penalty—taxation is not a medium for which government might shape individual behavior or habits, it is purely to generate revenue so that the government may effectively function in and of itself and not its masses. Moreover, these funds are not actually earmarked for anything, thus, it is yet another desperately contrived taxing scheme intending to cover the government’s ever increasing trillion dollar spending debts, just as are the impending carbon and Internet taxes.
ACA taxes exists entirely outside the government’s enumerated powers to levy indirect taxes, thereby it is blatantly unconstitutional. Unlawful taxation does not get more in your face than Obamacare taxation does.
Matters of health and care are solely matters for the individual states to address, thereby ACA is again found unconstitutional.
The ACA strips away the power of consumer-tax-payers to effectively negotiate with third-parties of their own free will, manage their own financial affairs, and impose consideration on their own personal situations.
The ACA brings the government into the private and confidential affairs of private citizens; further granting them access to sensitive medical information and histories.
Despite all other objections, the ACA is still unconstitutional as SCOTUS in effect violated the Origination Clause by manufacturing it into a new tax, a tax unlike any other before it:
www.forbes.com/sites/ilyashapiro/2014/05/12/the-obamacare-tax-that-chief-justice-roberts-invented-is-still-unconstitutional
Furthermore, the enumerated powers granted to the Legislature under the constraint of constitutional taxation were afforded honor in United States v. Butler, 297 U.S. 1, 69-70 (1936):
“Said the court, in McCulloch v. Maryland, supra, 17 U.S. 421: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
The power of taxation, which is expressly granted, may, of course, be adopted as a means to carry into operation another power also expressly granted. But resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.
“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 199. “There are, indeed, certain virtual limitations, arising from the principles of the Constitution itself. It would undoubtedly be an abuse of the [taxing] power if so exercised as to impair the separate existence and independent self-government of the States or if exercised for ends inconsistent with the limited grants of power in the Constitution.””
More to the point, stated in supra, at 297 U.S. 1, 70, was that: “These decisions demonstrate that Congress could not, under the pretext of raising revenue, lay a tax on processors who refuse to pay a certain price for cotton, and exempt those who agree so to do, with the purpose of benefiting producers.” In following:
Both Child Labor Tax Case—Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) and Hill v. Wallace, 259 U.S. 44 (1922) held that the postulation of taxation is not constitutionally permissible as a compliance measure to regulate intrastate manufacturing and commerce (viz., “matters not within any power conferred upon Congress by the Constitution”).
Linder v. United States, 268 U.S. 5 (1925) that the just empowerment of constitutional taxation does not stipulate a grant for intimating the raising of revenue as a pseudo end-means to regulate professions.
United States v. Constantine, 296 U.S. 287 (1935) that Congress cannot sanction thru-taxation upon violations of state (liquor sale) laws.
Weston White
12-28-2016, 08:23 AM
No, he simply said that the shared responsibility payment is not the kind of direct tax that has to be apportioned. Earlier in his opinion he noted that the Pollock case had held that taxes on investment income were direct taxes that had to be apportioned but that this result had been overturned by the 16th Amendment. So even if one thinks that the Pollock analysis was correct (and it wasn't -- the Court later characterized the decision as having been based on an erroneous premise) and that taxes on investment income are direct taxes, they still needn't be apportioned.
All direct taxes require apportionment—it is simply a matter of wrongfully arguing that because the source of the tax is not taxable unless apportioned then so must also be what grows out from the source; a matter resolved by the 16th Amend.
Actually it was investment income from state bonds as being a direct tax upon the state being referenced within Pollock.
Regardless, there is a vast and obvious distinction between taxing the gains of investments as income to the mere quid pro quo exchange of money (or property) for labor as a necessary means of livelihood and existence.
Excises are much broader -- the gift tax, for example, is an excise that is levied on the donor and that involves no privilege, license, or manufacture.
Is it not highly profound that it is so very easy to define indirect taxes, but for direct taxes the matter remains mystical—which was even noted by Justice Scalia.
The gift tax does involve a privilege, the privilege of passing along one’s property to another (see also succession taxes)—otherwise this would leave open a loophole to entirely avoid taxation in certain instances.
Not really -- beginning with Hylton, the Court has construed the direct tax clause very narrowly. In fact, two of the four Justices who decided Hylton were of the opinion that the only direct taxes in the constitutional sense were capitations and taxes on land, and a third hinted that he shared this view. The Pollock case expanded the definition to include taxes on personal property and taxes on investment income. Once you confine direct taxes to these types, Roberts' conclusion that the shared responsibility payment is not a direct tax follows.
Not really certain why you maintain such a death grip on one of the oldest tax cases in American common law and which has since been pretty much discounted by the myriad of more current USSC findings.
The sole subject of Hylton was the taxing of carriages and that was the primary focus of the Justices, taxes on physical property, and they merely compared taxes on lands to support their conclusion as to how direct taxes are to be implemented.
Clearly, included within the constitutionally enumerated power of direct taxation is included a plurality of “other direct taxes.”
CJ Roberts acted wrongfully, irrespective of all other objections the ACA is still unconstitutional, as SCOTUS in effect violated the Origination Clause by manufacturing what IS a statutorily imposed penalty into a new tax; a tax unlike any other before it—a tax for failing to purchase products from a private party to their profit and that may not necessarily be quid pro quo:
www.forbes.com/sites/ilyashapiro/2014/05/12/the-obamacare-tax-that-chief-justice-roberts-invented-is-still-unconstitutional
However, Roberts' analysis ignored the fact that all indirect taxes (duties, imposts, and excises) involve some sort of activity that triggers the tax. The gift tax is an excise on the transfer of property; a duty includes a tax on the importation of goods; the income tax is a tax on the receipt of income. But the shared responsibility tax involves no activity at all -- it is a tax on a certain type of inactivity (the failure to have insurance). Perhaps in an effort to find some activity, Roberts links the failure to have insurance with having income above a threshold amount. But this is simply an exemption from the tax, not an activity that supports the imposition of an excise. Viewed in this manner, the tax could very well have been held to be a direct tax, but Robert's analysis was sorely lacking.
It is neither a direct nor indirect tax, but a penalty that the federal government possesses zero constitutional authority to impose in the first place. This is no different than mandating that all Americans purchase treasury bonds or federal chits throughout the year or be fined.
Not quite. Smith defined capitations as taxes that are paid "without regard to property, profession, or any other circumstance". So when he says that capitations on the poor are equivalent to direct taxes on their wages, he means nothing more than their wages are the only source from which they have the funds to pay a capitation. This is far different from a tax that is explicitly imposed on and payable from wages, because that type of tax is imposed with regard to a particular circumstance -- receiving wages. But a capitation is imposed without regard to this circumstance; the taxing authority doesn't care where the money to pay the tax comes from.
That is Justice Chase’s opinion in Hylton, it is not from Dr. Smith.
This is actually what Dr. Smith wrote on (recalling that this is from a time in history when social castes were prevalent, e.g., proletariats and bourgeoisies):
“The property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of a poor man lies in the strength and dexterity of his hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper without injury to his neighbour, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman, and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”
Pollock v. Farmer’s Loan & Trust, 157 U.S. 429, 569-570 (1895): ‘But Albert Gallatin, in his “Sketch of the Finances of the United States,” published in November, 1796, said: “The most generally received opinion, however, is that, by direct taxes in the Constitution, those are meant which are raised on the capital or revenue of the people; by indirect, such as are raised on their expense. …” He then quotes from Smith’s Wealth of Nations, and continues: “The remarkable coincidence of the clause of the Constitution with this passage in using the word ‘capitation’ as a generic expression, including the different species of direct taxes, an acceptation of the word peculiar, it is believed, to Dr. Smith, leaves little doubt that the framers of the one had the other in view at the time, and that they, as well as he, by direct taxes, meant those paid directly from, and falling immediately on, the revenue, and, by indirect, those which are paid indirectly out of the revenue by falling immediately upon the expense.” 3 Gallatin’s Writings (Adams’ ed.) 74, 75.’”
And negative, the income tax is legally contingent upon there being a real and true gain or profit (as constitutionally taxable income) and having derived from a tangible market-valued source, a wage itself is thereby not taxable income—ergo, the wage is it the source, yet an annual bonus or sick leave pay is a gain derived beyond one’s wage.
Direct taxes are imposed upon specific circumstances as well, which would be whatever the subject of the taxis (just as any other tax), be it a voting tax, age tax, window tax, wage tax, head tax, or property tax.
You keep referring to capitation taxes as if consists of merely a poll tax and nothing more, but capitations are more complex than just a single means of direct taxation—a tax upon all living persons (i.e., head taxes) or all occupied lands—such taxes also includes personal taxes, which are direct taxes imposed on an individual’s own property, direct taxes upon certain occupations or professions, etc.
In any event, the argument that an income tax is a capitation or other direst tax was made and rejected in the Springer case, which upheld the Civil War income tax as in the nature of a duty or excise.
Yea Mr. Springer was a virtual millionaire in 1865, he definitely had taxable income, additionally, he filed a return showing he owed taxes, and then refused to pay the bill, so there it that too.
The Hylton Justices who thought that the term "direct taxes" as used in the Constitution encompasses only capitations and taxes on land were intimately involved in the ratification of the Constitution, and they didn't share your view of "consistency among the founders comments".
You mean like how the dejected Madison who wrote that “Some of the motives which they decoyed to their support ought to premonish them of the danger.”
Still the carriage tax was more of a luxury tax on passenger carriages than anything else.
Except that the tax isn't computed from one's wages. In fact, for 2014 and 2015 the tax couldn't exceed a flat rate of $95 and $315, respectively.
However, your liability is content upon precisely determined thresholds—which then follows the lesser or greater than mantra of whatever taxable sums.
Wrong. First, the quote is from the concurring opinion of a single Justice, not from the majority opinion. Second, the case was an antitrust case having nothing to do with taxation. Third, the Justice who authored the quote voted to uphold the Civil War income tax in the Springer case just four years earlier. Fourth, the SRP tax isn't imposed on the ownership of property, which would be a direct tax. It's imposed on the failure to have insurance.
Hylton is about carriages and Springer is about a privileged lawyer that invests in bonds, neither has anything to do with the working class individuals, so why do you keep play the “it was an about something else case” game?
The so-called “tax” is imposed against all individuals that made above the set threshold of money for the year, thus it has the same exact effect as a direct tax on one’s personal property (be it their livelihood or recompense), simply by way of another crafty name; then qualifying them to be punished for refusing to comply in the mandated financial flogging.
And since the income taken into account includes all income, the suggestion that the SRP is a tax on wages is simply wrong.
It is a penalty for not maintaining federally required purchases with private parties throughout the year, itself unconstitutional, in additional to exercising a power not found in the constitution as it belongs to the individual states.
You further seem to miss the point that in addition to this penalty, there are vast fees involved with the purchasing of the health insurance itself—which is in effect a tax on wages or income to those who comply with the bullshit and tyranny off all that is the ACA.
if they thought the SRP might have been a direct tax they should have said something more than "we should have received more briefing"
The parties frame the case not the courts.
The point was that one could still be subject to the tax even if he had no wages.
This somehow makes it constitutional? Not!
This is just not the case for the entirety of the working class America; and those that are certainly don’t need the ACA and likely little feel its financial burden or its unrelenting sting.
Postal Telegraph Cable Co. v. Adams, 155 U.S. 688, 698 (1895): “… The substance, and not the shadow, determines the validity of the exercise of the power.
Sonny Tufts
12-28-2016, 01:30 PM
So, now we come to the real question . . . what characteristics define a direct tax and distinguish them from those which were considered by our forefathers as being indirect?
My research indicates, generally speaking is, that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject.
Except for capitations and taxes on land, there was little if any contemporary consensus on the meaning of "direct taxes" as used in the Constitution. But avoidability or shiftability has never been the defining characteristic of an indirect tax. For example, there was probably universal agreement that a tax on land was a direct tax. But if I own land on which I operate a business I can shift the tax burden by factoring the real property taxes into the price I charge. But this doesn't make the tax an indirect one.
Similarly, the estate tax can't be avoided -- you either give property away during your lifetime (subjecting it to the gift tax), or you keep it until death, at which time your estate is liable for the estate tax. Yet both are considered to be excises.
If you're interested in some scholarly analysis, try these articles. You will note there is very little consensus even today among the academics as to what "direct taxes" originally meant.
http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1397&context=faculty_publications
http://constitution.org/lrev/cjohnson/directtax.pdf
https://www.law.upenn.edu/journals/conlaw/articles/volume11/issue4/Dodge11U.Pa.J.Const.L.839(2009).pdf
Regardless of what the term originally meant (even assuming there was an accepted meaning), it's well-settled today that the only direct taxes under the Constitution are capitations and taxes on the ownership[p of property.
Sonny Tufts
12-28-2016, 02:30 PM
Regardless, there is a vast and obvious distinction between taxing the gains of investments as income to the mere quid pro quo exchange of money (or property) for labor as a necessary means of livelihood and existence.
A distinction without a difference, since neither the Constitution nor the taxing statutes differentiate between a return on investment and the return on labor when it comes to the tax base -- both are included in gross income, and there's no "subsistence floor" below which income can't be taxed. That's the purpose of the standard deduction, which has shrunk dramatically in real terms since 1913. In addition, it's easy to envision a situation in which one's subsistence depends on investment income rather than on wages.
The gift tax does involve a privilege, the privilege of passing along one’s property to another (see also succession taxes)—otherwise this would leave open a loophole to entirely avoid taxation in certain instances.
You got it half right. The gift tax was indeed designed to be a backstop to the estate tax. And for certain historical reasons, the transmission of property at death could be viewed as a "privilege", because it used to be severely restricted in feudal times. But we don't live under feudalism anymore, so unless you're a total statist who believes that your ability to make a gift to someone is only because of the generosity of the State that would otherwise have the right to take your property when you die, you will see that there is no privilege whatsoever in making a gift.
Not really certain why you maintain such a death grip on one of the oldest tax cases in American common law and which has since been pretty much discounted by the myriad of more current USSC findings.
Except it hasn't been discounted. Its very narrow reading of the Direct Tax Clause is consistent with today's very narrow reading. In fact, the only departure from Hylton's rationale (that the only direct taxes are capitations and taxes on land) was Pollock, which expanded direct taxes to include taxes on personal property and taxes on investment income.
That is Justice Chase’s opinion in Hylton, it is not from Dr. Smith.
It's actually a pretty good paraphrase of Smith:
The taxes which, it is intended, should fall indifferently upon every different species of revenue, are capitation taxes, and taxes upon consumable commodities. These must be paid indifferently from whatever revenue the contributors may possess; from the rent of their land, from the profits of their stock, or from the wages of their labour.
Capitation taxes, if it is attempted to proportion them to the fortune or revenue of each contributor, become altogether arbitrary. The state of a man's fortune varies from day to day, and without an inquisition more intolerable than any tax, and renewed at least once every year, can only be guessed at. His assessment, therefore, must in most cases depend upon the good or bad humour of his assessors, and must, therefore, be altogether arbitrary and uncertain. Wealth of Nations, V.2.138, 139
Yea Mr. Springer was a virtual millionaire in 1865, he definitely had taxable income, additionally, he filed a return showing he owed taxes, and then refused to pay the bill, so there it that too.
Except that this played no part in the Court's decision. It was so irrelevant that the Court never mentioned what he did or where his income came from.
Hylton is about carriages and Springer is about a privileged lawyer that invests in bonds, neither has anything to do with the working class individuals, so why do you keep play the “it was an about something else case” game?
Because it's the rationale of these cases that matters -- i.e., that the only direct taxes under the Constitution are capitations and taxes on land. SCOTUS has never analyzed a case in terms of your "working class" or "subsistence" viewpoints.
You won't get me to defend the ACA, Roberts' transformation of a penalty into a tax, or his woeful direct tax analysis, so go carp elsewhere.
johnwk
12-28-2016, 05:32 PM
ACA taxes exists entirely outside the government’s enumerated powers to levy indirect taxes, thereby it is blatantly unconstitutional. Unlawful taxation does not get more in your face than Obamacare taxation does.
.
AGREED !
Additionally, all one needs to do to help conclude the "Shared Responsibility Payment" cannot be claimed to be an indirect tax is to study Flint vs. Stone Tracy which upheld the Corporate Excise Tax of 1909 which was challenged as being a direct tax and requiring apportionment.
In this case a tax calculated from incomes (the meaning of which is profit and/or gains) was held to be constitutional because it was indirect and not requiring an apportionment. What made the tax calculated from incomes indirect as stated by the Court was that it was imposed upon a government granted privilege of being a corporation, and the tax was levied against the privilege while the amount of tax to be paid was measured from the income realized under the privilege. The Court stated:
“The tax under consideration, as we have construed the statute, may be described as an excise upon the particular privilege of doing business in a corporate capacity, i.e., with the advantages which arise from corporate or quasi corporate organization; or, when applied to insurance companies, for doing the business of such companies. As was said in the Thomas case, supra, the requirement to pay such taxes involves the exercise of privileges, and the element of absolute and unavoidable demand is lacking. If business is not done in the manner described in the statute, no tax is payable.”
Taxing a government granted "privilege" and calculating the amount of tax to be paid from income realized under the privilege apparently makes the tax an indirect excise tax and does not require apportionment. We know the SRP "tax" is not an impost or duty and the remaining indirect taxing power granted to Congress is an excise tax.
So what is the subject matter being taxed under the SRP? Excise taxes are levied on specific goods, services, privileges, and activities, and can be levied as a federal tax when Congress has jurisdiction over the specific subject matter being taxed. So, the next logical question is, what is the subject matter being tax which Congress has jurisdiction over, upon which an federal excise tax may be laid, and would make the SRP an indirect tax an not requiring an apportionment?
Any comments Sonny?
JWK
Sonny Tufts
12-28-2016, 06:19 PM
Taxing a government granted "privilege" and calculating the amount of tax to be paid from income realized under the privilege apparently makes the tax an indirect excise tax and does not require apportionment. We know the SRP "tax" is not an impost or duty and the remaining indirect taxing power granted to Congress is an excise tax.
So what is the subject matter being taxed under the SRP? Excise taxes are levied on specific goods, services, privileges, and activities, and can be levied as a federal tax when Congress has jurisdiction over the specific subject matter being taxed. So, the next logical question is, what is the subject matter being tax which Congress has jurisdiction over, upon which an federal excise tax may be laid, and would make the SRP an indirect tax an not requiring an apportionment?
Any comments Sonny?
Sure. First of all, it's good to see that you concede that excises can reach certain "activities", and that they aren't limited to taxing privileges or the manufacture of goods. But you're mistaken in thinking that Congress can tax something only when it "has jurisdiction over the specific subject matter being taxed." That is not and never has been the law. Did Congress have jurisdiction over Mr. Hylton's carriages that were stored in his barn in Virginia? Did it have jurisdiction over the intrastate sale of lottery tickets and liquor, the taxes on which were upheld in The License Tax Cases, 72 U.S. 462 (1866)? Did it have jurisdiction over intrastate bookmaking (accepting wagers), the taxes on which were upheld in U.S. v. Kahriger, 345 U.S. 510 (1953)? Of course not, because there is no such jurisdictional requirement. The power to tax and the power over other areas that are spelled out in Article I, Section 8 of the Constitution are separate and independent powers, and Congress isn't limited to taxing things it can otherwise regulate. As the Court put it over 150 years ago:
It is true that the power of congress to tax is a very extensive power. It is given in the constitution, with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. Thus limited, and thus only, it reaches every subject, and may be exercised at discretion. The License Tax Cases (emphasis added)
The only items that are off limits to the federal taxing power are exports from a state to a foreign country, the exercise of certain First Amendment rights (but not the income earned from the exercise of such rights), and the States themselves. The first prohibition comes from the Constitution; the latter come from SCOTUS decisions.
If it hasn't sunk in yet, I do not agree that the SRP is an indirect tax that needn't be apportioned, but that's what the majority held in upholding its constitutionality. Presumably, the "activity" that triggered the tax was receiving a threshold amount of income coupled with the failure to get insurance. But as I previously stated, the income floor was merely an exemption, and the SRP is not in any sense an income tax. So I would have held that since there was no activity to trigger the SRP, it couldn't be an indirect tax, which requires some triggering activity. Unfortunately, Roberts didn't analyze it in these terms, but simply assumed that there were only two kinds of direct taxes (capitations and property taxes), and since the SRP was neither, it was constitutional.
fedupinmo
12-28-2016, 08:35 PM
Your misrepresentation/interpretation is not appreciated. Roberts exact quote is:
”A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”
In any event, thank you for your unsubstantiated personal opinions.
JWK
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___Chancellor James Kent, in his Commentaries on American Law (1858)
That's bullshit. It is a tax on everyone, and some have an affirmative defense to the tax.
johnwk
12-29-2016, 06:29 AM
Sure. First of all, it's good to see that you concede that excises can reach certain "activities", .
I never suggested otherwise. Why did you say I have conceded that excise taxes can be imposed on certain activities?
And with regard to Congress not being authorized to tax something it does not have jurisdiction over, I stand by what I said. e.g., the principle that Congress may not lay a tax which would impair the sovereignty of the States is still recognized as a valid limitation, and Congress is prohibited from laying a tax on Articles exported from any State which you acknowledge in addition to 1st amendment subject matter.
But getting to what is important and is the subject of the thread, you never directly answered the question regarding the SRP: what is the subject matter being taxed which Congress has jurisdiction over, upon which a federal excise tax may be laid, and would make the SRP an indirect tax and not requiring an apportionment?
JWK
Weston White
12-29-2016, 07:28 AM
Except for capitations and taxes on land, there was little if any contemporary consensus on the meaning of "direct taxes" as used in the Constitution. But avoidability or shiftability has never been the defining characteristic of an indirect tax. For example, there was probably universal agreement that a tax on land was a direct tax. But if I own land on which I operate a business I can shift the tax burden by factoring the real property taxes into the price I charge. But this doesn't make the tax an indirect one.
The distinction between what is a direct tax or what is an indirect tax is rather simple. When the subject of taxation is also its tangible source it is being directly taxed; however, when the product (e.g., its fruit or realization) of the subject’s source is being taxed it is being taxed indirectly. That is to mean a tax upon a blooming apple tree is direct; however, a tax upon its falling apples is an indirect tax.
Your example is not very well thought. As you owe the land tax regardless if you have gains or losses within your business activities and regardless of how many charges you took in. Further still, you (will likely) owe additional taxes on that extra money you are charging to cover your operating costs, including your land taxes. The same does not apply to indirect income or corporate taxes—ergo, if nobody is buying your crap, you owe no tax.
Similarly, the estate tax can't be avoided -- you either give property away during your lifetime (subjecting it to the gift tax), or you keep it until death, at which time your estate is liable for the estate tax. Yet both are considered to be excises.
Well, really you have the point of view of two interested parties, with a tax that is deemed to be due, so naturally the one paying will shout it to be a direct tax, while the other will label it an indirect tax upon them as they are no longer receiving the whole of the gifted/bequeathed property. But of course somebody has to pay the tax, and both parties ultimately realize a loss because of it. So estate and gift taxes are really about personal perspective, but have historically been known as excise taxes—just as historically, taxes upon laborers, including their wages, have been known as capitation or personal taxes.
You will note there is very little consensus even today among the academics as to what "direct taxes" originally meant.
It is more like intentional ignorance. The matter was thoroughly understood and written about from the Age of Enlightenment all the way through the 1800s. It is just that modern progressives realize the truth strongly disfavors their perception of how reality ought to exist so twist and twist and twist they do.
Regardless of what the term originally meant (even assuming there was an accepted meaning), it's well-settled today that the only direct taxes under the Constitution are capitations and taxes on the ownership[p of property.
The was and there still is. And this is what Hamilton himself wrote on the matter:
“The following are presumed to be the only direct taxes. Capitation or poll taxes. Taxes on lands and buildings. General assessments, whether on the whole property of individuals, or on their whole real or personal estate; all else must of necessity be considered as indirect taxes.”
…Hmm, now what sounds like a general assessment of an individual’s whole wages within a given tax-year… Hmm, could that be the federal income tax… I think so, yuppers. Hell even the IRS calls this a direct tax on their silly little school children’s brainwashing Website.
And Gallatin stated: “The most generally received opinion, however, is that, by direct taxes in the Constitution, those are meant which are raised on the capital or revenue of the people; by indirect, such as are raised on their expense. …that a fixed interpretation should be generally adopted, it will not be improper to corroborate it by quoting the author from whom the idea seems to have been borrowed.”
And I will leave you to guess who wrote: “and that they, as well as he, by direct taxes, meant those paid directly from, and falling immediately on, the revenue…”
A distinction without a difference, since neither the Constitution nor the taxing statutes differentiate between a return on investment and the return on labor when it comes to the tax base -- both are included in gross income, and there's no "subsistence floor" below which income can't be taxed. That's the purpose of the standard deduction, which has shrunk dramatically in real terms since 1913. In addition, it's easy to envision a situation in which one's subsistence depends on investment income rather than on wages.
Wrong. It is built right into the 16th Amend., remember there was an prior context of this amendment that was voted down, now if that one had passed it would have provided actual support for the precise methodology you progressive types nefariously enjoy.
While there is a return on investments that increase in value, there is no such return on bad investments and may be written off at a loss. Investing is a form of legalized gambling. There is no such distinction in laborious livelihoods, there is no return on labor and there is no loss on labor either—however, such is no the case for the labor’s employer, who may realize a gain or loss regardless of those that labor under their instruction. You as a mere laborer work under a prearranged agreement and are then compensated at an equal value as per your negotiated arrangement. In whatever case, it is your compensation that establishes your source-capital for which its subsequent growth may then be taxed, but not its mere receipt unless by apportionment and not its expenditure unless by uniformity.
You got it half right. The gift tax was indeed designed to be a backstop to the estate tax. And for certain historical reasons, the transmission of property at death could be viewed as a "privilege", because it used to be severely restricted in feudal times. But we don't live under feudalism anymore, so unless you're a total statist who believes that your ability to make a gift to someone is only because of the generosity of the State that would otherwise have the right to take your property when you die, you will see that there is no privilege whatsoever in making a gift.
Well that is another issue all together. These types of taxes have been historically unpopular and it can be argued that they serve to prohibit the continuation of family wealth and long-running family businesses—while dishonestly pointing to vastly wealthy robber-baron families to support such taxes being imposed on all Americans, even though all such families continue to operate and intermarry to this very day—such taxes are tell-tale to a spiteful government that has lost its way, just as Tacitus had stated: “The more corrupt the state, the more numerous the laws.”
Except it hasn't been discounted. Its very narrow reading of the Direct Tax Clause is consistent with today's very narrow reading. In fact, the only departure from Hylton's rationale (that the only direct taxes are capitations and taxes on land) was Pollock, which expanded direct taxes to include taxes on personal property and taxes on investment income.
No both of those cases have been narrowed in their scope, largely by Pollock; Black on Taxation:
“…and it was ruled that only two classes of taxes could be considered as coming under this designation, namely, taxes on land and capitation taxes. But these decisions have been overruled, and it is now held that income taxes, whether levied on the issues and profits of real estate or on the gains and interest from personal property, are also direct taxes within the meaning of the constitution.”
It's actually a pretty good paraphrase of Smith:
A paraphrase of Smith is not a quotation of Smith. It is nice though to see you finally acknowledge that the writings of Smith hold positive influence amongst the Justices, even ones that you highly revere.
Apropos, Smith also wrote:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labour, and are attended with all the inconveniences of such taxes.”
“The wages of the inferior classes of workmen, … While the demand for labour and the price of provisions, therefore, remain the same, a direct tax upon the wages of labour can have no other effect than to raise them somewhat higher than the tax. A direct tax upon the wages of labour, therefore, though the labourer might perhaps pay it out of his hand, could not properly be said to be even advanced by him; …”
Except that this played no part in the Court's decision. It was so irrelevant that the Court never mentioned what he did or where his income came from.
As it seems this was not relevant to Mr. Springer, only that the tax was a direct tax, period. This was his sole argument that the pre-1913 income tax was a direct tax on the vast wealth of his privileged life.
So it is not that it was “so irrelevant”, but that these matters were not framed by either of the parties.
Because it's the rationale of these cases that matters -- i.e., that the only direct taxes under the Constitution are capitations and taxes on land. SCOTUS has never analyzed a case in terms of your "working class" or "subsistence" viewpoints.
So then by your own logic you are forced to acknowledge the rationale exemplified within the Butcher’s Union case as it pertains to the property and rights of labors, which by association, extends to their right to earn an honest livelihood without being nitpicked to death by regulations and taxation.
Oh yea and that is very telling as well, USSC has avoided thousands upon thousands of chances to hear such cases and to date has opted to remain utterly silent—even though the IRS complains each year about how tens-of-thousands of “tax protesters” cause them such grief on this UNRESOLVED matter.
Also it is not such much a working class or subsistence related issue, but that the core of one’s received wages is merely the realization of capital, to wit, no gain or profit had yet severed from it to afford a sum to be made constitutionally taxable income under the 16th Amend as a bona fide increase in wealth—And yes many SCOTUS cases have addressed this issue, more notably the Eisner case.
The matter of taxing wages without apportionment leaves the government with red hands no matter what. If you assert that it is the laborer themselves that is the source then you acknowledge such as being a capitation tax and thereby requiring apportionment—the shadow is of the source, substance above form, etc. If you assert that wages are gross income because they have not been statutorily exempted, you then bastardize the clearly intended breadth of the Sixteenth Amendment which is perfectly reflected with in the original definition of the term ‘net income’—base wages are the source of the tax, but not its subject, while the increase of wages (including qualifying fringe benefits) are its subject.
“The impossibility of taxing people in proportion to their revenue by any capitation seems to have given occasion to the invention of taxes upon consumable commodities; the state, not knowing how to tax directly and proportionally the revenue of its subjects, endeavors to tax it indirectly by taxing their expense, which it is supposed in most cases will be neatly in proportion to their revenue. Their expense is taxed by taxing the consumable commodities upon which it is laid out.
Sonny Tufts
12-29-2016, 07:31 AM
And with regard to Congress not being authorized to tax something it does not have jurisdiction over, I stand by what I said. e.g., the principle that Congress may not lay a tax which would impair the sovereignty of the States is still recognized as a valid limitation
That principle applies only in the area of intergovernmental tax immunity; it has nothing to do with "jurisdiction to tax".
But getting to what is important and is the subject of the thread, you never directly answered the question regarding the SRP: what is the subject matter being taxed which Congress has jurisdiction over, upon which a federal excise tax may be laid, and would make the SRP an indirect tax and not requiring an apportionment?
Forget "jurisdiction". The point is, there is no subject matter being taxed, other that the failure to get insurance. And since inaction has never been the subject of an indirect tax, I would have ruled that the SRP (even assuming one could call it a "tax") was a direct tax. Roberts blew it.
johnwk
12-29-2016, 07:45 AM
That principle applies only in the area of intergovernmental tax immunity; it has nothing to do with "jurisdiction to tax".
Forget "jurisdiction". The point is, there is no subject matter being taxed, other that the failure to get insurance. And since inaction has never been the subject of an indirect tax, I would have ruled that the SRP (even assuming one could call it a "tax") was a direct tax. Roberts blew it.
No. I won't forget "jurisdiction". If Congress has no power to tax certain subject matter, some of which you have already acknowledged, then it has no jurisdiction [power, authority, WHATEVER] to tax this subject matter.
JWK
ChristianAnarchist
12-29-2016, 08:10 AM
It's a super-duper whammy magic tax!!!
oyarde
12-29-2016, 08:56 AM
It's a super-duper whammy magic tax!!!
If Pelosi , Reid and Obama were still in power they could be passing fines for every american without life ins and auto ins ( regardless if you own an auto ) and the courts would uphold it .Think about that .
oyarde
12-29-2016, 09:01 AM
It's a super-duper whammy magic tax!!!
I like to think that is like fuel or tobacco . It has a Fed Tax , State Tax and then the state charge sales tax on top of those two taxes . On a pack of cigarettes the amount of tax collected is more than the entire value without tax. Guy grows the product , company purchases product and mnfg.'s a good , store that sells it all divide 45 percent of the sales price , your super duper whammy govt three tax gets 55 percent for doing nothing .
Sonny Tufts
12-29-2016, 09:32 AM
No. I won't forget "jurisdiction". If Congress has no power to tax certain subject matter, some of which you have already acknowledged, then it has no jurisdiction [power, authority, WHATEVER] to tax this subject matter.
You miss the point. There is no subject matter. Inactivity is not a subject matter -- it is the absence of a subject matter. The SRP is the first time in history that Congress has "taxed" inactivity without some preexisting and related activity. For example, a private foundation is subject to an excise tax if it fails to distribute a certain amount of income each year. This is not a tax on inactivity; it is simply a requirement imposed on a private foundation, which is a certain type of charitable entity that receives tax-exempt status. The activity being taxed is the maintenance of the private foundation without complying with certain rules.
Congress does have the authority to tax the failure to have health insurance, and it's not a question of jurisdiction. But in my opinion such a tax is a direct tax that requires apportionment.
Sonny Tufts
12-29-2016, 10:57 AM
Hmm, now what sounds like a general assessment of an individual’s whole wages within a given tax-year… Hmm, could that be the federal income tax… I think so, yuppers.
As usual, you think wrong. Assessments can be made each year, as with property taxes. The income tax is imposed only once on a given amount of taxable income. And the income tax isn't a general assessment on one's entire property -- such a tax is a pure wealth tax, which the income tax isn't.
So then by your own logic you are forced to acknowledge the rationale exemplified within the Butcher’s Union case as it pertains to the property and rights of labors, which by association, extends to their right to earn an honest livelihood without being nitpicked to death by regulations and taxation.
No, because the dictum you mindlessly continue to cite wasn't the rationale of the case -- it was merely the opinion of a single concurring Justice.
Oh yea and that is very telling as well, USSC has avoided thousands upon thousands of chances to hear such cases and to date has opted to remain utterly silent—even though the IRS complains each year about how tens-of-thousands of “tax protesters” cause them such grief on this UNRESOLVED matter.
The only ones who think it's unresolved are moronic and paranoid tax protesters who think there's a massive conspiracy to hide the "real law". When every single court in the history of the country that has been faced with the claim that wages aren't income has rejected it for the intellectual swill that it is, SCOTUS doesn't need to waste its limited time by responding to crackpots whose illucid and idiotic ramblings are simply a waste of paper.
The Gold Standard
12-29-2016, 11:22 AM
Who cares? They are going to do whatever they want and can get away with. There is no such thing as illegal laws. They make the laws and then have their circle jerk to decide that it was legal after all.
Weston White
12-29-2016, 01:58 PM
As usual, you think wrong. Assessments can be made each year, as with property taxes. The income tax is imposed only once on a given amount of taxable income. And the income tax isn't a general assessment on one's entire property -- such a tax is a pure wealth tax, which the income tax isn't.
Again, that is just not the truth. Such is in fact a general assessment imposed upon a specific classification of personal property (i.e., monetary capital or perhaps even room and board) realized within a specified tax period. This is no different than say a direct tax assessed upon one's number of windows or acres; or a head tax upon all persons of certain ages, genders, or heights and weights, and the like; or the (mischaracterized) poll registration taxes to vote.
Additionally, for the average American wage-earner, their bi-weekly paychecks do in fact amount to the entirety of their whole assets--as most Americans, are only a few paychecks from homelessness, do not own their residence (or vehicle), and are forced to constantly pay down credit card debts. (The IRC does not bother to verify if this is in fact the case or not.)
Furthermore, we have already established that (1) a tax imposed upon livelihoods and its subsequent receipt of wages or recompense (as a first form of intangible human capital) imposes a capitation and (2) a personal tax is a classified direct tax, which is a tax upon an individual's personal property or personalty.
Oh and to indirectly tax that same object twice is to violate the double-taxation principle.
Also, the imposition of direct taxes are not simply black and white, they may be craftily worked just as are indirect taxes.
No, because the dictum you mindlessly continue to cite wasn't the rationale of the case -- it was merely the opinion of a single concurring Justice.
1. I was merely commenting on your hypocrisy, I did not quote the case.
2. Even dictum is a persuasive authority, especially when it's provided by a concurring Justice--and doubly so when such exalted logic has remained timelessly consistent throughout the empirical writings of exalted economists no matter their individual social ideologies, be they libertarian, socialist, or progressivist alike.
3. However, I remind you that is exactly what you keep doing regarding the Hylton case, in your selectively quoting Justice Chase's comments, while omitting: "I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution, are only two, to wit, a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance; and a tax on LAND."
The only ones who think it's unresolved are moronic and paranoid tax protesters who think there's a massive conspiracy to hide the "real law". When every single court in the history of the country that has been faced with the claim that wages aren't income has rejected it for the intellectual swill that it is, SCOTUS doesn't need to waste its limited time by responding to crackpots whose illucid and idiotic ramblings are simply a waste of paper.
Dumbass, of course wages are a form of income, revenue even, I can play word-craft-semantics with you all day and night long. However, this does not change the established fact that basic wages are not a constitutional form of income taxable under the lawful breadth of the 16th Amend. This is abundantly clear when you actually go back pre-1940s and review the original intent of this temporary war tax measure visa-via legislative proposals, testimony, propaganda, articles, writings and the like.
The fact remains that federal and state governments has no valid justification from usurping several trillion dollars, year, after year, after year out of the hands of productive individuals.
Sonny Tufts
12-29-2016, 02:26 PM
This is no different than say a direct tax assessed upon one's number of windows or acres; or a head tax upon all persons of certain ages, genders, or heights and weights, and the like; or the (mischaracterized) poll registration taxes to vote.
You still haven't grasped the distinction between a tax on the ownership of property and a tax on the receipt of property. The former is a direct tax; the latter is not.
Furthermore, we have already established that (1) a tax imposed upon livelihoods and its subsequent receipt of wages or recompense (as a first form of intangible human capital) imposes a capitation
You may have established that delusion in your mind, but no one else has, especially the courts. Indeed, the claim that a tax on personal earnings is a capitation was raised and rejected in the Springer case.
Oh and to indirectly tax that same object twice is to violate the double-taxation principle.
There is no such principle. If I earn income, it's subject to the income tax. If what I have left over is in my estate when I die, it's subject to the estate tax. Or if I take what's left over and pay a doctor to treat me, it's taxed to him. Double taxation occurs all the time. But you never pay more than one income tax on the same item of income.
Weston White
12-29-2016, 03:34 PM
You still haven't grasped the distinction between a tax on the ownership of property and a tax on the receipt of property. The former is a direct tax; the latter is not.
Sure, sure that must be it. No, you cannot simply decree what is otherwise a direct tax (on financial capital) as being a tax on its receipt rather than its ownership so as to otherwise circumvent constitutional prohibitions through mere word-craft, more than a few examples:
Northwestern Mut. Life Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927) and REAFFIRMED in National Life Ins. Co. v. United States, 277 U.S. 508, 521 (1928):
“Certainly since Gillespie v. Oklahoma, 257 U.S. 501, 257 U.S. 505, it has been the settled doctrine here that, where the principal is absolutely immune, no valid tax can be laid upon income arising therefrom. To tax this would amount practically to laying a burden on the exempted principal. Accordingly, if the challenged Act, whatever called, really imposes a direct charge upon interest derived from United States bonds, it is pro tanto void.
The fundamental question often presented in cases similar to these is whether, by the true construction of the statute, the assessment must be regarded as a tax upon property or one on privileges or franchise of the corporation. Society for Savings v. Coite, 6 Wall. 594; Home Insurance Co. v. New York, 134 U.S. 594.”
Also a point specifically addressed in Macallan Co. v. Massachusetts, 279 U.S. 620, 629 (1929): “The fact that a tax ostensibly laid upon a taxable subject is to be measured by the value of a nontaxable subject at once suggests the probability that it was the latter, rather than the former, that the lawmaker sought to reach. If inquiry discloses persuasive grounds for the conclusion that such is the real purpose and effect of the legislation, the tax cannot be upheld without subverting the well established rule that “. . . what cannot be done directly because of constitutional restriction cannot be accomplished indirectly by legislation which accomplishes the same result. . . . Constitutional provisions, whether operating by way of grant or limitation, are to be enforced according to their letter and spirit, and cannot be evaded by any legislation which, though not in terms trespassing on the letter, yet in substance and effect destroy the grant or limitation.” Fairbank v. United States, 181 U.S. 283, 181 U.S. 294, 181 U.S. 30. . . . It necessarily follows that the legislature may not, by an artful use of words, deprive this Court of its authority to look beyond the words to the real legislative purpose. And the power and the duty of the court to do so is of great practical importance.”
Pollock v. Farmers’ Loan & Trust Co: “If it be true that, by varying the form, the substance may be changed, it is not easy to see that anything would remain of the limitations of the Constitution, or of the rule of taxation and representation, so carefully recognized and guarded in favor of the citizens of each State. But constitutional provisions cannot be thus evaded. It is the substance, and not the form, which controls, as has indeed been established by repeated decisions of this court. . . . Nothing can be clearer than that what the Constitution intended to guard against was the exercise by the general government of the power of directly taxing persons and property within any State through a majority made up from the other States. …” Quotation also referenced in: Fairbank v. United States, 181 U.S. 283, 296 (1901).
And in United States v. Merriam, 263 U.S. 179, 187-188 (1923):
“On behalf of the government, it is urged that taxation is a practical matter, and concerns itself with the substance of the thing upon which the tax is imposed, rather than with legal forms or expressions.
Paraphrasing from both Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 581-582 (1895) and Macallan Co. v. Massachusetts, 279 U.S. 620, 626-627 (1929), wherein each of the following cases referenced had held:
Brown v. Maryland, 12 Wheat. 419, 25 U.S. 444: A tax upon importers was a tax on imports and thereby void. Further noting that Chief Justice Marshall stated: “It is impossible to conceal from ourselves that this is varying the form without varying the substance. It is treating a prohibition which is general as if it were confined to a particular mode of doing the forbidden thing. All must perceive that a tax on the sale of an article imported only for sale is a tax on the article itself.”
Weston v. Charleston, 2 Pet. 449: A tax upon income from U.S. securities was a tax on the securities themselves, and equally inadmissible.
Dobbins v. Commissioners/Erie County, 16 Pet. 435: Income from an official position was not taxable if the office itself was exempt.
Almy v. California, 24 How. 169: A duty on a bill of lading was the same thing as a duty on the laden articles. (And see 75 U.S. Parham, 8 Wall. 123, 75 U.S. 138.)
Railroad v. Jackson, 7 Wall. 262: A tax upon interest payable bonds was a tax not upon the debtor, but upon the security.
Cook v. Pennsylvania, 97 U.S. 566: A tax upon the amount of sales made by an auctioneer was a tax upon the goods sold.
Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326, and Leloup v. Mobile, 127 U.S. 640: A tax on income received from interstate commerce was a tax upon the commerce itself.
Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522, 530: “[A] tax upon oil leases of lands of Indians under the protection of the federal government, made by authority of such government, was held void as being in fact a tax upon the power to make the leases and capable of being used to destroy such power. . . . ‘A tax upon the leases is a tax upon the power to make them, and could be used to destroy the power to make them. If they cannot be taxed as entities, they cannot be taxed vicariously by taxing the stock, whose only value is their value, or by taking the stock as an evidence or measure of their value, rather than by directly estimating them as the board of equalization and the referee did.’”
Federal Land Bank v. Crosland, 261 U.S. 374: “[T]his Court condemned, as beyond the constitutional power of the state, a statute subjecting mortgages executed to a Federal Land Bank to the payment of a recording tax, as being in effect a tax upon the mortgages.”
Further still, the way the tax operates now it is taxing in way of tens of thousands of dollars per taxpayer per year that millions upon millions of individuals cannot ever be considered to have received or owned--as the money is passed directly from the payer to the U.S. Treasury and it is left to the taxpayer to come groveling to get it back.
* Also the tax is not upon the receipt of property, it is a tax upon the receipt of income from property--that is both tangible and of inherent value.
You may have established that delusion in your mind, but no one else has, especially the courts. Indeed, the claim that a tax on personal earnings is a capitation was raised and rejected in the Springer case.
Bollocks. It was only found that a tax on incomes does not require apportionment--wages and capital were not even addressed in the case. Again noting that Springer was a vastly wealthy politician, jurist, and investor.
Also the case was probably more about due process violations in the lien and selling off of his reality than anything else.
There is no such principle. If I earn income, it's subject to the income tax. If what I have left over is in my estate when I die, it's subject to the estate tax. Or if I take what's left over and pay a doctor to treat me, it's taxed to him. Double taxation occurs all the time. But you never pay more than one income tax on the same item of income.
Sure there is. Also what you are describing are not the same objects.
What is 'Double Taxation'
Double taxation is a taxation principle referring to income taxes paid twice on the same source of earned income. It can occur when income is taxed at both the corporate level and personal level. Double taxation also occurs in international trade when the same income is taxed in two different countries.
Also see: Double Taxation in Income and Inheritance Taxes (http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3716&context=mulr)
devil21
12-30-2016, 03:32 AM
It's a tax on a corporation (the all caps name on the social security card, drivers license, credit card, tax bill, etc that you mistakenly think is you but is actually a corporation created from the certificate of live birth, which you are brainwashed into taking responsibility for) and therefore is an indirect tax. The "tax" from Ocare is assessed to the corporation, not you as a living breathing entity. What are taxes on corporations? Direct or indirect? Therein lies your answer.
When they show up at your door to take all your shit and lock you up, just write "accepted for value" on the back of your birth certificate at a 45-degree angle and hand it over, they will leave you alone.
devil21
12-30-2016, 04:18 AM
When they show up at your door to take all your shit and lock you up, just write "accepted for value" on the back of your birth certificate at a 45-degree angle and hand it over, they will leave you alone.
They're kicking in doors at gunpoint over the Obamacare penalty? Link? Or is your post more fake news from CPUd?
johnwk
12-30-2016, 07:05 AM
You miss the point. There is no subject matter. Inactivity is not a subject matter -- it is the absence of a subject matter. The SRP is the first time in history that Congress has "taxed" inactivity without some preexisting and related activity. For example, a private foundation is subject to an excise tax if it fails to distribute a certain amount of income each year. This is not a tax on inactivity; it is simply a requirement imposed on a private foundation, which is a certain type of charitable entity that receives tax-exempt status. The activity being taxed is the maintenance of the private foundation without complying with certain rules.
Congress does have the authority to tax the failure to have health insurance, and it's not a question of jurisdiction. But in my opinion such a tax is a direct tax that requires apportionment.
You are absolutely wrong about me missing the point. But I do appreciate you finally answering the question presented in the topic's title. And, I agree with your answer.
JWK
If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property. POLLOCK v. FARMERS' LOAN & TRUST CO., 157 U.S. 429 (1895)
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