Restriction of the Pollock Decision

The Pollock decision encouraged taxpayers to challenge the right of Congress to levy by the rule of uniformity numerous taxes that had always been reckoned to be excises. But the Court evinced a strong reluctance to extend the doctrine to such exactions. Purporting to distinguish taxes levied “because of ownership” or “upon property as such” from those laid upon “privileges,”1963 it sustained as “excises” a tax on sales on business exchanges,1964 a succession tax which was construed to fall on the recipients of the property transmitted rather than on the estate of the decedent,1965 and a tax on manufactured tobacco in the hands of a dealer, after an excise tax had been paid by the manufacturer.1966 Again, in Thomas v. United States,1967 the validity of a stamp tax on sales of stock certificates was sustained on the basis of a definition of “duties, imposts and excises.” These terms, according to the Chief Justice, “were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like.”1968 On the same day, in Spreckels Sugar Refining Co. v. McClain,1969 it ruled that an exaction, denominated a special excise tax, that was imposed on the business of refining sugar and measured by the gross receipts thereof, was in truth an excise and hence properly levied by the rule of uniformity. The lesson of Flint v. Stone Tracy Co.1970 was the same. In Flint, what was in form an income tax was sustained as a tax on the privilege of doing business as a corporation, the value of the privilege being measured by the income, including income from investments. Similarly, in Stanton v. Baltic Mining Co.,1971 a tax on the annual production of mines was held to be “independently of the effect of the operation of the Sixteenth Amendment . . . not a tax upon property as such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations.”1972

A convincing demonstration of the extent to which the Pollock decision had been whittled down by the time the Sixteenth Amendment was adopted is found in Billings v. United States.1973 In challenging an annual tax assessed for the year 1909 on the use of foreign built yachts—a levy not distinguishable in substance from the carriage tax involved in the Hylton case as construed by the Supreme Court—counsel did not even suggest that the tax should be classed as a direct tax. Instead, he based his argument that the exaction constituted a taking of property without due process of law upon the premise that it was an excise, and the Supreme Court disposed of the case upon the same assumption.

In 1921, the Court cast aside the distinction drawn in Knowlton v. Moore between the right to transmit property on the one hand and the privilege of receiving it on the other, and sustained an estate tax as an excise. “Upon this point,” wrote Justice Holmes for a unanimous Court, “a page of history is worth a volume of logic.”1974 Having established this proposition, the Court had no difficulty in deciding that the inclusion in the computation of the estate tax of property held as joint tenants,1975 or as tenants by the entirety,1976 or the entire value of community property owned by husband and wife,1977 or the proceeds of insurance upon the life of the decedent,1978 did not amount to direct taxation of such property. Similarly, it upheld a graduated tax on gifts as an excise, saying that it was “a tax laid only upon the exercise of a single one of those powers incident to ownership, the power to give the property owned to another.”1979 Justice Sutherland, speaking for himself and two associates, urged that “the right to give away one’s property is as fundamental as the right to sell it or, indeed, to possess it.”1980

Footnotes

1963
Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Knowlton v. Moore, 178 U.S. 41, 80 (1900). [Back to text]
1964
Nicol v. Ames, 173 U.S. 509 (1899). [Back to text]
1965
Knowlton v. Moore, 178 U.S. 41 (1900). [Back to text]
1966
Patton v. Brady, 184 U.S. 608 (1902). [Back to text]
1967
192 U.S. 363 (1904). [Back to text]
1968
192 U.S. at 370. [Back to text]
1969
192 U.S. 397 (1904). [Back to text]
1970
220 U.S. 107 (1911). [Back to text]
1971
240 U.S. 103 (1916). [Back to text]
1972
240 U.S. at 114. [Back to text]
1973
232 U.S. 261 (1914). [Back to text]
1974
New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). [Back to text]
1975
Phillips v. Dime Trust & S.D. Co., 284 U.S. 160 (1931). [Back to text]
1976
Tyler v. United States, 281 U.S. 497 (1930). [Back to text]
1977
Fernandez v. Wiener, 326 U.S. 340 (1945). [Back to text]
1978
Chase Nat’l Bank v. United States, 278 U.S. 327 (1929); United States v. Manufacturers Nat’l Bank, 363 U.S. 194, 198–201 (1960). [Back to text]
1979
Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also Helvering v. Bullard, 303 U.S. 297 (1938). [Back to text]
1980
Bromley v. McCaughn, 280 U.S. 124, 140 (1929). [Back to text]