The 16th Amendment is not the Source of the Federal Income Tax - By Robert Greenslade - Price of Liberty -
The 16th Amendment is not the Source of the Federal Income Tax
By Robert Greenslade
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April 16, 2004

It’s April 15th and time for opponents of the federal income tax to renew their claim that the tax is unconstitutional because the Sixteenth Amendment was not properly ratified. These individuals are operating on the erroneous belief that the Sixteenth Amendment is the source of the federal government’s power to impose income taxes. The purpose of this article is show that the Sixteenth Amendment did not grant the federal government any new taxing power.

In order to understand this issue, it is important to review the taxing clauses of the Constitution and the events that led to the adoption of the Sixteenth Amendment. The Constitution divides all taxes into two classes: direct and indirect. Article I, Section 8, Clause 1 grants the federal government its power to impose taxes:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

The above section is limited by Article I, Section 2, Clause 3:

Representatives and direct Taxes shall be apportioned among the several States….

And Article I, Section 9, Clause 4:

No Capitation, or other direct Tax, shall be laid, unless in Proportion to the Census or Enumeration….

As contemplated by the Founders, direct taxes were required to be levied according to the rule of apportionment while indirect taxes were required to be levied according to the rule of uniformity. Thus, anytime Congress attempted to impose a direct tax; it was required to apportion the tax among the States according to the rule of apportionment.

In 1895, a legal controversy arose concerning a federal income tax statute. In that year, the United States Supreme Court struck down, as unconstitutional, the federal Income Tax Act of 1894. The Court concluded the tax imposed by the Act on “rents or income of real estate” was not significantly distinct from a tax on the property itself. Therefore, the Court classified the tax as a direct tax requiring apportionment among the several States.

Following this ruling, even though the Court did not hold that all income taxes were direct taxes, there was uncertainty as to whether the income tax was a direct or indirect tax. As a result, Congress sought to remove any confusion by passing an amendment to the Constitution. The Sixteenth Amendment, which was “allegedly” adopted in 1913, states:

The Congress shall have the 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.

Immediately after the Amendment was ratified, Congress enacted another income tax act similar to the 1894 Act. The new law was immediately challenged as unconstitutional. In 1916, the Supreme Court issued two decisions on the scope of the Amendment. These decisions were analyzed in a 1980 Congressional Research Service (CRS) report. The report, prepared by an agency of Congress, discussed the effect of the Sixteenth Amendment on the federal government’s power to tax:

The Supreme Court, in a decision written by Chief Justice White, first noted that the Sixteenth Amendment did not authorize any new type of tax, nor did it repeal or revoke the tax clauses of Article I of the Constitution… Direct taxes were, notwithstanding the advent of the Sixteenth Amendment, still subject to the rule of apportionment and indirect taxes were still subject to the rule of uniformity.

As stated by CRS, the Amendment did not authorize any new type of tax or repeal or revoke the existing clauses. Indirect taxes were still subject to the rule of uniformity and direct taxes were still required to be apportioned among the several States.

If the Sixteenth Amendment did not grant Congress any new taxing power or modify its existing power, then what did the Amendment accomplish? Since the Amendment states that income taxes are not subject to the rule apportionment applicable to all other direct taxes, the Sixteenth Amendment, by its wording, restricted income taxes to the category of indirect taxes. This means Congress can never, by a general statute, constitutionally impose a direct tax on the people of the several States. Direct taxes must be imposed on the several States according to the rule of apportionment.

The 1980 CRS report also made the following statement concerning the nature of the income tax:

Therefore, it can be clearly determined from the decisions of the United States Supreme Court that the income tax is an indirect tax, generally in the nature of an excise tax.

In 1989, the Congressional Research Service revised and updated its report and discussed the nature of an excise tax:

What does the court mean when it states that
the income tax is in the nature of an excise tax?

An excise tax is a tax levied on the manufacture, sale, or consumption of a commodity or any various taxes on privileges often assessed in the form of a license or fee. In other words, it is a tax on doing something to property or on the privilege of holding some property or doing some act, not a tax on the property itself. The tax is not on the property directly, but rather it is a tax on the transaction.

When a court refers to an income tax as being in the nature of an excise, it is merely stating that the tax is not on the property itself.

According to the Congressional Research Service, the federal income tax is not a tax on income. It is a privilege tax measured by income. In other words, Congress is taxing some government-defined privilege and income is merely the measuring stick to determine the value of the privilege. Nowhere in this report does CRS identify the so-called privilege that is the basis for the tax.

If the income tax is an excise or privilege tax, then what’s the privilege? The nature of this “privilege” has been one of the most closely guarded secrets in American history. Neither the Internal Revenue Service nor members of Congress will identify the privilege. Instead, in letters and publications they have asserted that the Sixteenth Amendment granted the federal government a new power to impose a non-apportioned direct income tax on the people of the several States. As shown above, this position is contrary to the Sixteenth Amendment that limited, not expanded, the taxing power of the federal government. If Congress is imposing federal income taxes on the erroneous assumption that the Sixteenth Amendment granted it the power to tax income directly without apportionment among the several States, then the tax is being unconstitutionally applied because it violates the restriction placed on the taxing powers of the federal government by the Amendment.

There are two irrefutable facts, however, that foreclose any possibility that the income tax is a direct tax. In 1943, an analysis of the federal income tax was published in the Congressional Record. This compilation of information was written by a former legislative draftsman in the Treasury Department and entitled, “The Income Tax is an Excise Tax, and Income is Merely the Basis for Determining its Amount.” This commentary stated in part:

The income tax is, therefore, not a tax on income as such. It is an excise tax with respect to certain activities and privileges which is measured by the income they produce. The income is not the subject of the tax: it is the basis for determining the amount of the tax.

Footnote: If the tax should be construed as a tax on income as a specific fund the disappearance of the fund before the date of assessment would prevent the collection of the tax.

In other words, if Congress was imposing a direct tax on income, then the tax liability would be based on the amount of income still in the individual’s possession on April 15th of the following year. If all of the individual’s income from the previous year had been spent as of the assessment date of April 15th, then, as stated above, there would be no tax liability. The analysis went on to state:

Hitherto the previous year’s income has been used as the basis. But the basis, as well as the rates, may be changed at any time.

Footnote: If income is merely the measure of the tax, it is clearly quite immaterial whether the income that is adopted as a measure is that of the past, or the present, or of the future, provided only that it is practically ascertainable.

The retroactive feature of the income tax further verifies that the tax being imposed on the American people is not a direct tax. Since the tax is an indirect privilege tax and income is merely the measure of the tax, Congress can change the value of the privilege at any time and make it retroactive to the beginning of the tax year.

Since the Sixteenth Amendment is not the source of the federal government’s power to impose income taxes and did not authorize any new type of tax, those groups and individuals who claim the Amendment was not properly ratified are beating a dead horse. Producing historical documents that show the Sixteenth Amendment was not properly ratified 91 years ago simply proves that politicians in 1913 were as corrupt as the scoundrels we have in office today.


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