Amendment XVI to the U.S. Constitution

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The Sixteenth Amendment in the National Archives

The Sixteenth Amendment (Amendment XVI) to the United States Constitution allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results. This amendment exempted income taxes from the constitutional requirements regarding direct taxes, after income taxes on rents, dividends, and interest were ruled to be direct taxes in Pollock v. Farmers' Loan & Trust Co. (1895). It was ratified on February 3, 1913.

Text

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Other Constitutional provisions regarding taxes

Article I, Section 2, Clause 3:

Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers...^[1]

Article I, Section 8, Clause 1:

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.

Article I, Section 9, Clause 4:

No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.

This clause basically refers to a tax on property, such as a tax based on the value of land,^[2] as well as a capitation.

Income taxes pre-Pollock

To raise revenue to fund the Civil War, Congress introduced the income tax through the Revenue Act of 1861.^[3] It levied a flat tax of 3% on annual income above $800, which was equivalent to $20,693 in today's money.^[4] This act was replaced the following year with the Revenue Act of 1862, which levied a graduated tax of 3–5% on income above $600 (worth $13,968 today^[4]) and specified a termination of income taxation in 1866.

The Socialist Labor Party advocated a graduated income tax in 1887.^[5] The Populist Party "demand[ed] a graduated income tax" in its 1892 platform.^[6] The Democratic Party, led by William Jennings Bryan, advocated the income tax law passed in 1894,^[7] and proposed an income tax in its 1908 platform.^[8]

Prior to the Supreme Court's decision in Pollock v. Farmers' Loan & Trust Co., all income taxes had been considered indirect taxes imposed without respect to geography, unlike direct taxes, that must be apportioned among the states according to population.^[9][10]

The Wilson–Gorman Tariff Act of 1894 attempted to impose a federal tax of 2% on incomes over $4,000 (worth $107,446 today^[4]). Derided as "un-Democratic, inquisitorial, and wrong in principle,"^[11] it was challenged in federal court.

The Pollock case

In Pollock v. Farmers' Loan & Trust Co., the Supreme Court declared certain taxes on incomes — such as those on property under the 1894 Act — to be unconstitutionally unapportioned direct taxes. The Court reasoned that a tax on income from property should be treated as a tax on "property by reason of its ownership" and so should be required to be apportioned. The reasoning was that taxes on the rents from land, the dividends from stocks and so forth burdened the property generating the income in the same way that a tax on "property by reason of its ownership" burdened that property.

After Pollock, while income taxes on wages (as indirect taxes) were still not required to be apportioned by population, taxes on interest, dividends and rent income were required to be apportioned by population. The Pollock ruling made the source of the income (e.g., property versus labor, etc.) relevant in determining whether the tax imposed on that income was deemed to be "direct" (and thus required to be apportioned among the states according to population) or, alternatively, "indirect" (and thus required only to be imposed with geographical uniformity).^[12]

In his dissent to the Pollock decision, Justice John Marshall Harlan stated:

When, therefore, this court adjudges, as it does now adjudge, that Congress cannot impose a duty or tax upon personal property, or upon income arising either from rents of real estate or from personal property, including invested personal property, bonds, stocks, and investments of all kinds, except by apportioning the sum to be so raised among the States according to population, it practically decides that, without an amendment of the Constitution — two-thirds of both Houses of Congress and three-fourths of the States concurring — such property and incomes can never be made to contribute to the support of the national government.^[13]

Members of Congress responded to Pollock by expressing widespread concern that many of the wealthiest Americans had consolidated too much economic power.^[14]

Adoption

On June 16, 1909, President William Howard Taft, in an address to Congress, proposed a 2% federal income tax on corporations by way of an excise tax and a constitutional amendment to allow the previously enacted income tax.

Upon the privilege of doing business as an artificial entity and of freedom from a general partnership liability enjoyed by those who own the stock.^[15][16]

An income tax amendment to the Constitution was first proposed by Senator Norris Brown of Nebraska. He submitted two proposals, Senate Resolutions Nos. 25 and 39. The amendment proposal finally accepted was Senate Joint Resolution No. 40, introduced by Senator Nelson W. Aldrich of Rhode Island, the Senate majority leader and Finance Committee Chairman.^[17]

On July 12, 1909, the resolution proposing the Sixteenth Amendment was passed by the Sixty-first Congress and submitted to the state legislatures. Support for the income tax was strongest in the western states and opposition was strongest in the northeastern states.^[18] In 1910, New York Governor Charles Evans Hughes, shortly before becoming a Supreme Court Justice, spoke out against the income tax amendment. While he supported the idea of a federal income tax, Hughes believed the words "from whatever source derived" in the proposed amendment implied that the federal government would have the power to tax state and municipal bonds. He believed this would excessively centralize governmental power and "would make it impossible for the state to keep any property".^[19]

Three advocates for a federal income tax ran in the presidential election of 1912.^[20] On February 25, 1913, Secretary of State Philander Knox proclaimed that the amendment had been ratified by the necessary three-fourths of the states; thus, it had become part of the Constitution.^[21] The Revenue Act of 1913 was enacted shortly thereafter.

According to the United States Government Printing Office, the following states ratified the amendment:^[22]

1. Alabama (August 10, 1909)
2. Kentucky (February 8, 1910)
3. South Carolina (February 19, 1910)
4. Illinois (March 1, 1910)
5. Mississippi (March 7, 1910)
6. Oklahoma (March 10, 1910)
7. Maryland (April 8, 1910)
8. Georgia (August 3, 1910)
9. Texas (August 16, 1910)
10. Ohio (January 19, 1911)
11. Idaho (January 20, 1911)
12. Oregon (January 23, 1911)
13. Washington (January 26, 1911)
14. Montana (January 27, 1911)
15. Indiana (January 30, 1911)
16. California (January 31, 1911)
17. Nevada (January 31, 1911)
18. South Dakota (February 1, 1911)
19. Nebraska (February 9, 1911)
20. North Carolina (February 11, 1911)
21. Colorado (February 15, 1911)
22. North Dakota (February 17, 1911)
23. Michigan (February 23, 1911)
24. Iowa (February 24, 1911)
25. Kansas (March 2, 1911)
26. Missouri (March 16, 1911)
27. Maine (March 31, 1911)
28. Tennessee (April 7, 1911)
29. Arkansas (April 22, 1911), after having previously rejected the amendment
30. Wisconsin (May 16, 1911)
31. New York (July 12, 1911)
32. Arizona (April 3, 1912)
33. Minnesota (June 11, 1912)
34. Louisiana (June 28, 1912)
35. West Virginia (January 31, 1913)
36. Delaware (February 3, 1913)

Ratification (by the requisite 36 states) was completed on February 3, 1913 with the ratification by Delaware. The amendment was subsequently ratified by the following states, bringing the total number of ratifying states to forty-two of the forty-eight then existing:

37. New Mexico (February 3, 1913)

38. Wyoming (February 3, 1913)

39. New Jersey (February 4, 1913)

40. Vermont (February 19, 1913)

41. Massachusetts (March 4, 1913)

42. New Hampshire (March 7, 1913), after rejecting the amendment on March 2, 1911

The legislatures of the following states rejected the amendment without ever subsequently ratifying it:

Connecticut

Rhode Island

Utah

Virginia^[23]

The legislatures of the following states never considered the proposed amendment:

Florida

Pennsylvania

Pollock nullified

The Sixteenth Amendment nullified the effect of Pollock.^[24][25] That means the Congress may impose taxes on income from any source without having to apportion the total dollar amount of tax collected from each state according to each state's population in relation to the total national population.^[26]

In Wikoff v. Commissioner, the United States Tax Court said:

[I]t is immaterial, with respect to Federal income taxes, whether the tax is a direct or an indirect tax. Mr. Wikoff [the taxpayer] relied on the Supreme Court's decision in Pollock v. Farmers' Loan & Trust Co. [ . . . ] but the effect of that decision has been nullified by the enactment of the 16th Amendment.^[27]

In Abrams v. Commissioner, the Tax Court said:

Since the ratification of the Sixteenth Amendment, it is immaterial with respect to income taxes, whether the tax is a direct or indirect tax. The whole purpose of the Sixteenth Amendment was to relieve all income taxes when imposed from [the requirement of] apportionment and from [the requirement of] a consideration of the source whence the income was derived.^[28]

Case law

The federal courts' interpretations of the Sixteenth Amendment have changed considerably over time and there have been many disputes about the applicability of the amendment.

The Brushaber case

In Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916), the Supreme Court ruled that (1) the Sixteenth Amendment removes the Pollock requirement that certain income taxes (such as taxes on income "derived from real property" that were the subject of the Pollock decision), be apportioned among the states according to population;^[29] (2) the federal income tax statute does not violate the Fifth Amendment's prohibition against the government taking property without due process of law; (3) the federal income tax statute does not violate the Article I, Section 8, Clause 1 requirement that excises, also known as indirect taxes, be imposed with geographical uniformity.

The Kerbaugh-Empire Co. case

In Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926), the Supreme Court, through Justice Pierce Butler, stated:

It was not the purpose or the effect of that amendment to bring any new subject within the taxing power. Congress already had the power to tax all incomes. But taxes on incomes from some sources had been held to be "direct taxes" within the meaning of the constitutional requirement as to apportionment. [cites omitted] The Amendment relieved from that requirement and obliterated the distinction in that respect between taxes on income that are direct taxes and those that are not, and so put on the same basis all incomes "from whatever source derived". [cites omitted] "Income" has been taken to mean the same thing as used in the Corporation Excise Tax of 1909 (36 Stat. 112), in the Sixteenth Amendment, and in the various revenue acts subsequently passed. [cites omitted] After full consideration, this court declared that income may be defined as gain derived from capital, from labor, or from both combined, including profit gained through sale or conversion of capital.

The Glenshaw Glass case

In Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955), the Supreme Court laid out what has become the modern understanding of what constitutes 'gross income' to which the Sixteenth Amendment applies, declaring that income taxes could be levied on "accessions to wealth, clearly realized, and over which the taxpayers have complete dominion." Under this definition, any increase in wealth — whether through wages, benefits, bonuses, sale of stock or other property at a profit, bets won, lucky finds, awards of punitive damages in a lawsuit, qui tam actions — are all within the definition of income, unless the Congress makes a specific exemption, as it has for items such as life insurance proceeds received by reason of the death of the insured party,^[30] gifts, bequests, devises and inheritances,^[31] and certain scholarships.^[32]

Income taxation of wages, etc.

The courts have ruled that the Sixteenth Amendment allows a direct tax on "wages, salaries, commissions, etc. without apportionment."^[33]

The Penn Mutual case

Although the Sixteenth Amendment is often cited as the "source" of the Congressional power to tax incomes, at least one court has reiterated the point made in Brushaber and other cases that the Sixteenth Amendment itself did not grant the Congress the power to tax incomes, a power the Congress had since 1789, but only removed the possible requirement that any income tax be apportioned among the states according to their respective populations. In the Penn Mutual Indemnity case, the United States Tax Court stated:^[34]

In dealing with the scope of the taxing power the question has sometimes been framed in terms of whether something can be taxed as income under the Sixteenth Amendment. This is an inaccurate formulation... and has led to much loose thinking on the subject. The source of the taxing power is not the Sixteenth Amendment; it is Article I, Section 8, of the Constitution.

In that same Penn Mutual Indemnity case, on appeal, the United States Court of Appeals for the Third Circuit agreed, stating:^[35]

It did not take a constitutional amendment to entitle the United States to impose an income tax. Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 158 U. S. 601 (1895), only held that a tax on the income derived from real or personal property was so close to a tax on that property that it could not be imposed without apportionment. The Sixteenth Amendment removed that barrier. Indeed, the requirement for apportionment is pretty strictly limited to taxes on real and personal property and capitation taxes.

It is not necessary to uphold the validity of the tax imposed by the United States that the tax itself bear an accurate label. Indeed, the tax upon the distillation of spirits, imposed very early by federal authority, now reads and has read in terms of a tax upon the spirits themselves, yet the validity of this imposition has been upheld for a very great many years.

It could well be argued that the tax involved here [an income tax] is an "excise tax" based upon the receipt of money by the taxpayer. It certainly is not a tax on property and it certainly is not a capitation tax; therefore, it need not be apportioned. We do not think it profitable, however, to make the label as precise as that required under the Food and Drug Act. Congress has the power to impose taxes generally, and if the particular imposition does not run afoul of any constitutional restrictions then the tax is lawful, call it what you will.

The Murphy case

On December 22, 2006, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit vacated^[36] its unanimous August 2006 opinion in Murphy v. Internal Revenue Service and United States.^[37] In an unrelated matter, the court had also granted the government's motion to dismiss Murphy's suit against the "Internal Revenue Service." Under federal sovereign immunity, a taxpayer may sue the federal government, but not a government agency, officer, or employee (with few exceptions). The court stated:

Insofar as the Congress has waived sovereign immunity with respect to suits for tax refunds under 28 U.S.C. § 1346(a)(1), that provision specifically contemplates only actions against the "United States." Therefore, we hold the IRS, unlike the United States, may not be sued eo nomine in this case.

An exception to federal sovereign immunity is in the United States Tax Court, where a taxpayer may sue the Commissioner of Internal Revenue.^[38] The original three-judge panel then agreed to rehear the case itself. In its original decision, the Court had ruled that 26 U.S.C. § 104(a)(2) was unconstitutional under the Sixteenth Amendment to the extent that the statute purported to tax, as income, a recovery for a non-physical personal injury for mental distress and loss of reputation not received in lieu of taxable income such as lost wages or earnings.

Because the August 2006 opinion was vacated, the full court did not hear the case en banc.

On July 3, 2007, the Court (through the original three-judge panel) ruled (1) that the taxpayer's compensation was received on account of a non-physical injury or sickness; (2) that gross income under section 61 of the Internal Revenue Code^[39] does include compensatory damages for non-physical injuries, even if the award is not an "accession to wealth," (3) that the income tax imposed on an award for non-physical injuries is an indirect tax, regardless of whether the recovery is restoration of "human capital," and therefore the tax does not violate the constitutional requirement of Article I, Section 9, Clause 4, that capitations or other direct taxes must be laid among the states only in proportion to the population; (4) that the income tax imposed on an award for non-physical injuries does not violate the constitutional requirement of Article I, Section 8, Clause 1, that all duties, imposts and excises be uniform throughout the United States; (5) that under the doctrine of sovereign immunity, the Internal Revenue Service may not be sued in its own name.^[40]

The Court stated that "[a]lthough the 'Congress cannot make a thing income which is not so in fact,' [ . . . ] it can label a thing income and tax it, so long as it acts within its constitutional authority, which includes not only the Sixteenth Amendment but also Article I, Sections 8 and 9."^[41] The court ruled that Ms. Murphy was not entitled to the tax refund she claimed, and that the personal injury award she received was "within the reach of the congressional power to tax under Article I, Section 8 of the Constitution" -- even if the award was "not income within the meaning of the Sixteenth Amendment".^[42] See also the Penn Mutual case cited above.

On April 21, 2008, the Supreme Court declined to review the Court of Appeals decision.^[43]

See also

• Tax protester Sixteenth Amendment arguments

Notes

External links

• National Archives: Sixteenth Amendment
• Sixteenth Amendment and 1913 tax return form Images of original documents
• CRS Annotated Constitution: Sixteenth Amendment
• Pollock Decision The decision nullified by the Sixteenth Amendment
• Brushaber Decision Supreme Court opinion on the apportionment clause of the Constitution.
• Stanton Decision - no new power of taxation (affirming constitutionality of income tax after Sixteenth Amendment)
• History of the U.S. Tax System - Almanac of Policy Issues; annotated as "US Department of the Treasury Undated.".