(Slip Opinion)              OCTOBER TERM, 2023                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                 MOORE ET UX. v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE NINTH CIRCUIT

    No. 22–800.      Argued December 5, 2023—Decided June 20, 2024
Congress generally taxes the income of American business entities in one
  of two ways. Some entities, such as S corporations and partnerships,
  are taxed on a pass-through basis, where the entity itself does not pay
  taxes. 26 U. S. C. §§1361–1362. Instead, the entity’s income is
  attributed to the shareholders or partners, who then pay taxes on that
  income even if the entity has not distributed any money or property to
  them. §§61(a)(12), 701, 1366(a)–(c). Other business entities do pay
  taxes directly on their income. Those entities’ shareholders ordinarily
  are not taxed on that income but are taxed when the entity distributes
  a dividend or when the shareholder sells shares.
     Congress treats American-controlled foreign corporations as pass-
  through entities. Subpart F of the Internal Revenue Code attributes
  income of those business entities to American shareholders and taxes
  those shareholders on that income. §§951–952. Subpart F, however,
  applies only to a small portion of the foreign corporation’s income,
  mostly passive income. In 2017, Congress passed the Tax Cuts and
  Jobs Act. As relevant here, Congress imposed a one-time, backward-
  looking, pass-through tax on some American shareholders of
  American-controlled foreign corporations to address the trillions of
  dollars of undistributed income that had been accumulated by those
  foreign corporations over the years. Known as the Mandatory
  Repatriation Tax, the tax imposed a rate from 8 to 15.5 percent on the
  pro rata shares of American shareholders. §§965(a)(1), (c), (d).
     In this case, petitioners Charles and Kathleen Moore invested in the
  American-controlled foreign corporation KisanKraft. From 2006 to
  2017, KisanKraft generated a great deal of income but did not
  distribute that income to its American shareholders. At the end of the
  2017 tax year, application of the new MRT resulted in a tax bill of
2                     MOORE v. UNITED STATES

                                 Syllabus

    $14,729 on the Moores’ pro rata share of KisanKraft’s accumulated
    income from 2006 to 2017. The Moores paid the tax and then sued for
    a refund, claiming, among other things, that the MRT violated the
    Direct Tax Clause of the Constitution because, in their view, the MRT
    was an unapportioned direct tax on their shares of KisanKraft stock.
    The District Court dismissed the suit, and the Ninth Circuit affirmed.
Held: The MRT—which attributes the realized and undistributed income
 of an American-controlled foreign corporation to the entity’s American
 shareholders, and then taxes the American shareholders on their
 portions of that income—does not exceed Congress’s constitutional
 authority. Pp. 5–24.
    (a) Article I of the Constitution affords Congress broad power to lay
 and collect taxes. That power includes direct taxes—those imposed on
 persons or property—and indirect taxes—those imposed on activities
 or transactions. Direct taxes must be apportioned among the States
 according to each State’s population, while indirect taxes are
 permitted without apportionment but must “be uniform throughout
 the United States,” §8, cl. 1. Taxes on income are indirect taxes, and
 the Sixteenth Amendment confirms that taxes on income need not be
 apportioned. Pp. 5–7.
    (b) The Government argues that the MRT is a tax on income and
 therefore need not be apportioned. The Moores contend that the MRT
 is a tax on property and that the tax is therefore unconstitutional
 because it is not apportioned. Income, the Moores argue, requires
 realization, and the MRT does not tax any income that they have
 realized. But the MRT does tax realized income—namely, the income
 realized by KisanKraft, which the MRT attributes to the shareholders.
 This Court’s longstanding precedents, reflected in and reinforced by
 Congress’s longstanding practice, confirms that Congress may
 attribute an entity’s realized and undistributed income to the entity’s
 shareholders or partners and then tax the shareholders or partners on
 their portions of that income. Pp. 8–16.
       (1) The Court’s longstanding precedents plainly establish that,
 when dealing with an entity’s undistributed income, Congress may
 either tax the entity or tax its shareholders or partners. Whichever
 method Congress chooses, this Court has held that the tax remains a
 tax on income. In Burk-Waggoner Oil Assn. v. Hopkins, 

,
 the Court held that the status of a business entity under state law
 could not limit Congress’s power to tax a partnership’s income as it
 chose, taxing either the partnership or the partners. 

. The
 Court reiterated that principle in Burnet v. Leininger, 

.
 Then, in Heiner v. Mellon, 

, the Court reaffirmed that
 Congress may choose to tax either the partnership or the partners on
 the partnership’s undistributed income, even where state law did not
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                              Syllabus

allow the partners to personally receive the income. The principle
articulated in Heiner also applies to corporations and their
shareholders. Helvering v. National Grocery Co., 

. This
line of precedents remains good law and establishes the clear principle
that Congress can attribute the undistributed income of an entity to
the entity’s shareholders or partners and tax the shareholders or
partners on their pro rata share of the entity’s undistributed income.
Notably, the principle has repeatedly been invoked by the lower courts
in upholding subpart F.
   The Moores’ reliance on Eisner v. Macomber, 

, which
predates the Heiner and Helvering line of cases, is misplaced. There
the question was whether a distribution of additional stock to all
existing shareholders was taxable income. The Court said no, that
income requires realization and that there was no change in the value
of the shareholders’ total stock holdings in the corporation before and
after the stock distribution. The Court said separately in dicta that
“what is called the stockholder’s share in the accumulated profits of
the company is capital, not income.” 

. The Moores’
interpret that language to mean that a tax attributing an entity’s
undistributed income to its shareholders or partners is not an income
tax. The clear and definitive holdings in Burk-Waggoner Oil, Heiner,
and Helvering render the Moores’ reading of Eisner implausible.
Those cases squarely addressed attribution and allowed it, whereas
Eisner did not address attribution. Pp. 9–14.
      (2) Congress’s longstanding practice of taxing the shareholders or
partners of a business entity on the entity’s undistributed income
reflects and reinforces the Court’s precedents. For example, Congress
passed an 1864 income-tax law that taxed shareholders or partners on
“the gains and profits of all companies.” 

. In 1913,
Congress enacted a new income tax that, among other things, taxed
partners on their “share of the profits of a partnership.” 

.
As new business entities arose, Congress employed a similar approach
to S corporations, 26 U. S. C. §§1361–1362; American shareholders of
foreign business entities, 

; and American shareholders of
American-controlled foreign corporations, 

, 952, 957.
Pp. 14–16.
   (c) The Moores attempt to distinguish the MRT from those taxes
long imposed by Congress and long upheld by this Court and argue
that only the MRT is unconstitutional. Their ad hoc distinctions do
not undermine the clear rule established by this Court’s precedents.
First, the Moores argue that taxes on partnerships are distinguishable
from the MRT and not controlled by precedent because partnerships
are not separate entities from their partners. But that assertion is
incorrect. When the Sixteenth Amendment was ratified, the courts,
4                      MOORE v. UNITED STATES

                                  Syllabus

    Congress, and state legislatures treated partnerships as separate
    entities in many contexts, and numerous States imposed taxes directly
    on partnerships for partnership income. The federal and state
    treatment of partnerships as separate legal entities for tax purposes
    contravenes the Moores’ theory. Second, the Moores argue that taxes
    on S corporations are distinguishable from the MRT because
    shareholders of S corporations choose to be taxed directly on
    corporation income. But consent cannot explain Congress’s authority
    to tax the shareholders of S corporations directly on corporate income.
    Rather, S corporations are another example of Congress’s authority to
    either tax the corporation itself on corporate income or attribute the
    undistributed income to the shareholders and tax the shareholders.
    Third, the Moores try to distinguish Congress’s long history of taxing
    shareholders of closely held foreign corporations—including through
    subpart F—on the ground that those laws apply “the doctrine of
    constructive realization.” That term seems to be a one-off label created
    by the Moores to allow them to sidestep any existing tax that does not
    comport with their proposed constitutional rule. In any event, the
    Moores’ constructive-realization theory does not distinguish the MRT
    from subpart F and other pass-through taxes. For example, the
    Moores claim that constructive realization turns on a sufficient degree
    of control over the entity. But the level of shareholder control with the
    MRT (at least 10 percent) is the same as under the longstanding
    subpart F tax. And if, as the Moores concede, subpart F is not
    unconstitutional under the “constructive realization” theory, then the
    MRT is likewise not unconstitutional on that theory. Pp. 16–22.
       (d) The Court’s holding is narrow and limited to entities treated as
    pass-throughs. Nothing in this opinion should be read to authorize
    any hypothetical congressional effort to tax both an entity and its
    shareholders or partners on the same undistributed income realized
    by the entity. Nor does this decision attempt to resolve the parties’
    disagreement over whether realization is a constitutional requirement
    for an income tax. Pp. 22–24.

, affirmed.

     KAVANAUGH, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
JACKSON, J., filed a concurring opinion. BARRETT, J., filed an opinion
concurring in the judgment, in which ALITO, J., joined. THOMAS, J., filed
a dissenting opinion, in which GORSUCH, J., joined.
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                              Opinion of the Court

       NOTICE: This opinion is subject to formal revision before publication in the
     United States Reports. Readers are requested to notify the Reporter of
     Decisions, Supreme Court of the United States, Washington, D. C. 20543,
     [email protected], of any typographical or other formal errors.


SUPREME COURT OF THE UNITED STATES
                                    _________________

                                    No. 22–800
                                    _________________


      CHARLES G. MOORE, ET UX., PETITIONERS
               v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT
                                 [June 20, 2024]

  JUSTICE KAVANAUGH delivered the opinion of the Court.
  For tax purposes, Congress has long treated some
corporations and partnerships as pass-throughs: Congress
does not tax the entity on its income, but instead attributes
the undistributed income of the entity to the shareholders
or partners and then taxes the shareholders or partners on
that income. This Court has long upheld those taxes.
  Since 1962, Congress has likewise treated American-
controlled foreign corporations as pass-throughs. That
1962 law (known as subpart F) attributes certain income,
mostly passive income, of American-controlled foreign
corporations to their American shareholders and then taxes
those shareholders on that income.
  In 2017, Congress enacted a new law that attributes more
income, including active business income, of American-
controlled foreign corporations to their American
shareholders and then taxes those shareholders on that
income. The question is whether that 2017 tax (known as
the Mandatory Repatriation Tax or MRT) is constitutional
under Article I, §§8 and 9 and the Sixteenth Amendment.
This Court’s longstanding precedents establish that the
answer is yes.
2                MOORE v. UNITED STATES

                     Opinion of the Court

                               I
                               A
  In general, Congress taxes the income of American
business entities such as corporations and partnerships in
one of two ways.
  First, some entities such as S corporations and
partnerships are taxed on a pass-through basis. (S
corporations are corporations with 100 or fewer
shareholders where the shareholders have elected to be
taxed on a pass-through basis. 26 U. S. C. §§1361–1362.)
Instead of the entity itself paying taxes, income is
attributed to the entity’s owners, such as shareholders or
partners, who then pay taxes on the income of the entity
even if the entity has not distributed any money or property
to them. §§61(a)(12), 701, 1366(a)–(c).
  Second, other entities are taxed directly on their income.
For example, some corporations file a return and pay taxes
each year just like individual taxpayers. §11(a). When a
corporation pays taxes on its income, its shareholders are
ordinarily not taxed on that income.           Instead, the
shareholders typically pay taxes either when the
corporation distributes money, stock, or other property to
them as a dividend or when the shareholders sell their
shares and have capital gains. §§61(a)(7), 1001. But the
shareholders are not taxed on the corporate income itself.
  Congress has devised more nuanced rules for foreign
entities such as foreign corporations. For legal and
practical reasons, Congress generally does not directly tax
foreign corporations, including American-controlled foreign
corporations, on the income that they earn outside of the
United States. Instead, Congress has imposed some taxes
on income of those corporations on a pass-through basis.
  Most notably, starting in 1962, in what is known as
subpart F of the Internal Revenue Code, Congress has
treated American-controlled foreign corporations as pass-
through entities: Subpart F attributes income of the
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                       Opinion of the Court

corporation to American shareholders, and taxes those
American shareholders on that income. 26 U. S. C. §§951–
952. But subpart F applies only to a small portion of the
foreign corporation’s income, mostly passive income.
  In 2017, Congress passed and President Trump signed
the Tax Cuts and Jobs Act. 

. In a variety of
ways not relevant to this case, the Act altered the United
States’ approach to international corporate taxation. The
primary goal was to encourage Americans who controlled
foreign corporations to invest earnings from their foreign
investments back in the United States instead of abroad.
  As relevant here, one piece of that intricate and multi-
faceted 2017 Act imposed a new, one-time pass-through tax
on some American shareholders of American-controlled
foreign corporations. That one-time tax addressed one of
the problems that had arisen under the old system: For
decades before the 2017 Act, American-controlled foreign
corporations had earned and accumulated trillions of
dollars in income abroad that went almost entirely untaxed
by the United States. The foreign corporations themselves
were not taxed on their income. And other than subpart F,
which applies mostly to passive income, the undistributed
income of those foreign corporations was not attributed to
American shareholders for the shareholders to be taxed.
  As part of the complicated transition to a more territorial
system, the 2017 Act imposed a one-time, backward-looking
tax on that accumulated income. That backward-looking
tax is known as the Mandatory Repatriation Tax or MRT.
§965. Similar in structure to subpart F, the MRT attributed
the long-accumulated and undistributed income of
American-controlled foreign corporations to American
shareholders, and then taxed those American shareholders
on their pro rata shares of that long-accumulated income at
a rate from 8 to 15.5 percent. §§965(a), (c), (d).1
——————
 1 The Act also imposed a similar pass-through tax going forward.
4                    MOORE v. UNITED STATES

                          Opinion of the Court

                             B
  In 2006, Charles and Kathleen Moore invested $40,000
in an American-controlled foreign corporation that one of
their friends had started in India. In return, the Moores
received a 13-percent ownership share. The company,
KisanKraft, generated a great deal of income. But as of
2017, KisanKraft had not distributed that income to its
American shareholders, including the Moores, meaning
that neither KisanKraft nor the Moores had paid U. S.
taxes on that income.
  The MRT applied to the Moores because of their
investment in KisanKraft. By the end of the 2017 tax year,
the Moores’ pro rata share of KisanKraft’s accumulated
income from 2006 to 2017 totaled about $508,000. After
factoring in a deduction that is not relevant here, the
Moores declared $132,512 in income under the MRT based
on their KisanKraft shares. They owed $14,729 in taxes on
that income.
  The Moores paid that amount, then sued for a refund.
They claimed that the MRT was unconstitutional for two
reasons. First, they argued that the MRT violated the
Direct Tax Clause of the Constitution because, in their
view, the MRT was an unapportioned direct tax on their
shares of KisanKraft stock. Second, they contended that
the MRT violated the Due Process Clause of the Fifth
Amendment because it applied retroactively to past income.
  The District Court dismissed the suit, and the U. S. Court
of Appeals for the Ninth Circuit affirmed. The Court of
Appeals held that the MRT constitutes a tax on income
within the meaning of the Constitution because
“KisanKraft earned significant income, and the MRT
assigns only a pro-rata share of that income to the Moores.”

, 936–937 (2022). The Court of Appeals also
——————
§951A. That tax applies to what is referred to as “global intangible low-
taxed income.” §951A(a). That tax is not at issue in this case.
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                     Opinion of the Court

rejected the Moores’ due process claim regarding
retroactivity. Id., at 938–939.
  The Moores sought review in this Court, raising only
their Direct Tax Clause argument. This Court granted
certiorari. 

 (2023).
                              II
  We must decide whether the 2017 Mandatory
Repatriation Tax, or MRT, exceeds Congress’s
constitutional authority. To analyze that question, we
begin with a brief review of Congress’s taxing power under
the Constitution.
  After Independence in 1776 and under the Articles of
Confederation in effect from 1781 to 1789, the Federal
Government relied primarily on contributions from the
States for revenue. The Federal Government’s expenses
and needs sometimes far outpaced the contributions that
the States were willing to provide. As George Washington
famously recognized during the Revolutionary War,
reliance on the States to fund the National Government
hampered important national priorities—including the war
against the British. 12 Papers of George Washington:
Revolutionary War Series 683–687 (P. Chase & F. Grizzard
eds. 2002) (letter from Valley Forge).
  The National Government’s continuing revenue problems
under the Articles of Confederation helped prompt the
Constitutional Convention that convened in Philadelphia in
the summer of 1787. The Federalist No. 30 (A. Hamilton).
The Framers responded to the revenue problem by granting
Congress an expansive taxing power.
  Article I of the Constitution affords Congress broad
“Power To lay and collect Taxes, Duties, Imposts and
Excises.” Art. I, §8, cl. 1. That power includes “ ‘two great
classes of’ ” taxes—direct taxes and indirect taxes.
Brushaber v. Union Pacific R. Co., 

 (1916).
  Generally speaking, direct taxes are those taxes imposed
6                 MOORE v. UNITED STATES

                      Opinion of the Court

on persons or property. See National Federation of
Independent Business v. Sebelius, 

, 570–571
(2012). As a practical matter, however, Congress has rarely
enacted direct taxes because the Constitution requires that
direct taxes be apportioned among the States. To be
apportioned, direct taxes must be imposed “in Proportion to
the Census of Enumeration.” U. S. Const., Art. I, §9, cl. 4;
see also §2, cl. 3. In other words, direct taxes must be
apportioned among the States according to each State’s
population.
   So if Congress imposed a property tax on every American
homeowner, the citizens of a State with five percent of the
population would pay five percent of the total property tax,
even if the value of their combined property added up to
only three percent of the total value of homes in the United
States. To pay five percent, the tax rate on the citizens of
that State would need to be substantially higher than the
tax rate in a neighboring State with the same population
but more valuable homes.
   To state the obvious, that kind of complicated and
politically unpalatable result has made direct taxes difficult
to enact. Indeed, the parties have cited no apportioned
direct taxes in the current Internal Revenue Code, and it
appears that Congress has not enacted an apportioned tax
since the Civil War. See 

; E. Jensen, The
Taxing Power: A Reference Guide to the United States
Constitution 89 (2005).
   By contrast, indirect taxes are the familiar federal taxes
imposed on activities or transactions. That category of
taxes includes duties, imposts, and excise taxes, as well as
income taxes. U. S. Const., Art. I, §8, cl. 1; Amdt. 16. Under
the Constitution, indirect taxes must “be uniform
throughout the United States.” Art. I, §8, cl. 1. A “ ‘tax is
uniform when it operates with the same force and effect in
every place where the subject of it is found.’ ” United States
v. Ptasynski, 

 (1983).
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                      Opinion of the Court

   Because income taxes are indirect taxes, they are
permitted under Article I, §8 without apportionment. As
this Court has said, Article I, §8’s grant of taxing power “is
exhaustive,” meaning that it could “never” reasonably be
“questioned from the” Founding that it included the power
“to lay and collect income taxes.” Brushaber, 240 U. S., at
12–13. In 1861, Congress enacted the Nation’s first
unapportioned income tax. 

. The Civil War
income tax was recognized as an indirect tax “under the
head of excises, duties and imposts.” Brushaber, 

; see also Springer v. United States, 

 (1881).
   In 1895, however, in Pollock v. Farmers’ Loan & Trust
Co., this Court held that a tax on income from property
equated to a tax on the property itself, and thus was a direct
tax that had to be apportioned among the States. 

, 627–628. The Pollock decision sparked significant
confusion and controversy throughout the United States.
   Congress and the States responded to Pollock by
approving a new constitutional amendment. Ratified in
1913, the Sixteenth Amendment rejected Pollock’s
conflation of (i) income from property and (ii) the property
itself. The Amendment provides: “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.”
U. S. Const., Amdt. 16 (emphasis added).
   Therefore, the Sixteenth Amendment expressly
confirmed what had been the understanding of the
Constitution before Pollock: Taxes on income—including
taxes on income from property—are indirect taxes that
need not be apportioned. Brushaber, 

.
Meanwhile, property taxes remain direct taxes that must
be apportioned. See Helvering v. Independent Life Ins. Co.,

, 378–379 (1934).
8                   MOORE v. UNITED STATES

                         Opinion of the Court

                             III
   With that background, we turn to the 2017 Mandatory
Repatriation Tax. The MRT is not apportioned among the
States. The Government argues that the MRT is a tax on
income and therefore need not be apportioned. The Moores
contend that the MRT is a tax on property, rather than a
tax on income, and that the tax is therefore
unconstitutional because it is not apportioned.
   What distinguishes income from property? The Moores
argue that income requires realization. The Moores say
that realization occurs when gains come into the taxpayer’s
coffers—for example, through wages, sales, or dividends, as
distinct from appreciation in the value of a home, stock
investment, or other property. And the Moores contend
that the MRT does not tax any income that they have
realized.
   Critically, however, the MRT does tax realized income—
namely, income realized by the corporation, KisanKraft.
The MRT attributes the income of the corporation to the
shareholders, and then taxes the shareholders (including
the Moores) on their share of that undistributed corporate
income.
   So the precise and narrow question that the Court
addresses today is whether Congress may attribute an
entity’s realized and undistributed income to the entity’s
shareholders or partners, and then tax the shareholders or
partners on their portions of that income. This Court’s
longstanding precedents, reflected in and reinforced by
Congress’s longstanding practice, establish that the answer
is yes.2

——————
  2 As discussed below, infra, at 22–24, our analysis today does not

address the distinct issues that would be raised by (i) an attempt by
Congress to tax both the entity and the shareholders or partners on the
entity’s undistributed income; (ii) taxes on holdings, wealth, or net
worth; or (iii) taxes on appreciation.
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                      Opinion of the Court

                               A
   Congress sometimes chooses to tax a business entity
itself on the income that the entity earns. Alternatively,
Congress sometimes elects to treat an entity as a pass-
through—attributing the entity’s undistributed income to
the shareholders or partners and then taxing the
shareholders or partners on that income. Either way, this
Court has held that the tax remains a tax on income—and
thus an indirect tax that need not be apportioned.
   In 1925, in Burk-Waggoner Oil Assn. v. Hopkins, the
Court articulated that fundamental principle. 

. The case involved a tax on the income of an entity that
state law treated as a partnership. Under state law, the
partnership’s property was considered the property of the
partners. For that reason, the partnership argued that
Congress had to tax the partners on the income and could
not tax the partnership.
   This Court rejected that argument. The Court stated:
“Neither the conception of unincorporated associations
prevailing under the local law, nor the relation under that
law of the association to its shareholders, nor their relation
to each other and to outsiders, is of legal significance as
bearing upon the power of Congress to determine how and
at what rate the income of the joint enterprise shall be
taxed.” 

. In other words, Congress could tax the
income as it chose, taxing either the partnership or the
partners on the partnership’s undistributed income. So the
tax on the partnership was proper.
   In 1932, in Burnet v. Leininger, the Court reiterated that
principle. 

. There, the Court considered “the
validity” of a tax attributing partnership income to
partners. 

. The Court again held that “Congress,
having the authority to tax the net income of partnerships,
could impose the liability upon the partnership directly,” or
it could impose tax liability “upon the individuals carrying
on business in partnership.” 

 (quotation marks
10               MOORE v. UNITED STATES

                     Opinion of the Court

omitted).
   Next, in 1938 in Heiner v. Mellon, the Court again
addressed a situation closely akin to the Moores’ case
here—a tax on partners for the undistributed income of
their partnership. 

. In that case, the
partnership earned income, but state law did not allow the
partners to personally receive the income. Nonetheless,
under the relevant federal tax law, the individual partners
owed taxes on the partnership’s income. The partners
argued that Congress could not tax them on income that
they did not and could not personally receive.
   This Court upheld the tax on the partners, reasoning that
it was immaterial that the partners did not actually receive
the income earned by the partnership.             The Court
reaffirmed that Congress may choose to tax either the
partnership or the partners on the partnership’s
undistributed income.
   The principle articulated by this Court in Heiner v.
Mellon also applies to corporations and their shareholders.
On the same day in 1938 that the Court decided Heiner v.
Mellon, the Court also decided Helvering v. National
Grocery Co. In that case, the Court ruled that the
controlling shareholder of a corporation could not “prevent
Congress, if it chose to do so, from laying on him
individually the tax on the year’s profits.” 

. Citing Heiner v. Mellon, the Court stated that
Congress may tax shareholders of the corporation on the
corporation’s undistributed income, in much the same way
that Congress can tax the partners of a partnership on the
partnership’s undistributed income. 304 U. S., at 288–289.
   So by 1938, this Court’s precedents had established a
clear rule that directly contradicts the Moores’ argument in
this case. That line of precedent remains good law to this
day. Indeed, since then, it has gone without serious
question in both Congress and the federal courts that
Congress can attribute the undistributed income of an
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                     Opinion of the Court

entity to the entity’s shareholders or partners, and tax the
shareholders or partners on their pro rata share of the
entity’s undistributed income.
   Most notably, the courts have repeatedly invoked that
principle in upholding subpart F, which Congress enacted
in 1962. Like the MRT, subpart F treats certain foreign
corporations as pass-throughs by attributing undistributed
income of foreign corporations to their American
shareholders, and then taxing the American shareholders
on their pro rata shares of the income. As the Second
Circuit concluded in a leading case upholding subpart F:
The constitutional challenge to subpart F “borders on the
frivolous” in light of Heiner v. Mellon. Garlock, Inc. v.
Commissioner, 

, 202–203, and n. 5 (1973); see
also Estate of Whitlock v. Commissioner, 

(1972) (The “Supreme Court’s pronouncements have been
to the effect that taxation of undistributed current
corporate income at the stockholder level rather than at the
corporate level is within the congressional power”), aff’d in
relevant part, 

 (CA10 1974) (adopting
the Tax Court’s analysis); B. Bittker & L. Lokken, Federal
Taxation of Income, Estates and Gifts ¶1.2.4 (2024) (noting
the consensus in favor of Congress’s power to tax foreign
corporations as pass-through businesses); cf. Eder v.
Commissioner, 

 (CA2 1943) (“In a variety of
circumstances it has been held that the fact that the
distribution of income is prevented by operation of law, or
by agreement among private parties, is no bar to its
taxability”).
   In response to that dispositive line of precedents against
them, the Moores invoke the Court’s earlier 1920 decision
in Eisner v. Macomber, 

. The Moores argue
that some language in Eisner v. Macomber is inconsistent
with the rule subsequently established in Burk-Waggoner
Oil Assn. v. Hopkins, Heiner v. Mellon, and Helvering v.
National Grocery Co. and followed ever since by Congress
12                   MOORE v. UNITED STATES

                          Opinion of the Court

and the federal courts.
  The Moores’ reliance on Eisner v. Macomber with respect
to the attribution issue is misplaced. Importantly, Eisner
v. Macomber was not a case about Congress’s power to
attribute the income of an entity to the entity’s
shareholders or partners. Rather, the Court in Eisner v.
Macomber addressed a situation where a corporation
created and distributed additional stock to existing
shareholders.     

.       The corporation
distributed the additional shares of stock in proportion to
each shareholder’s percentage of ownership. 

 at 210–
211. So the actual value of the shareholders’ total stock
holdings in the corporation did not change. 

  The question in Eisner v. Macomber was whether the new
stock was nonetheless taxable income for the shareholders.

. The Court said no. 

. The Court
reasoned that there was no change in the value of the
shareholders’ total stock holdings in the corporation before
and after the stock distribution. 

 at 210–211. So the
new stock did not represent any kind of economic gain to
the shareholders. 

 And the Court further stated that
income requires realization. 

, 211–212. Yet
neither the corporation nor the shareholders had realized
income from the corporation’s creation and distribution of
additional stock. 

 at 210–213.3
——————
  3 The Government argues that a gain does not need to be realized to

constitute income under the Constitution. The Government contends
that Eisner v. Macomber’s discussion of realization was dicta because the
stock dividend did not represent any kind of economic gain (realized or
unrealized) for the shareholders. The Government further contends that
Eisner v. Macomber’s discussion of realization has, in any event, been
abrogated by later decisions of this Court, such as Helvering v. Bruun,

 (1940), Helvering v. Griffiths, 

 (1943), and
Commissioner v. Glenshaw Glass Co., 

 (1955). Because the
MRT taxes realized income—namely, income realized by the corporation
and attributed to the shareholders—we do not address the Government’s
argument that a gain need not be realized to constitute income under the
                     Cite as: 

 (2024)      13

                          Opinion of the Court

   Separate from that analysis, the Court went on to say in
dicta that “what is called the stockholder’s share in the
accumulated profits of the company is capital, not income.”
Id., at 219. Because the corporation had already paid taxes
on its income, that statement and the surrounding
discussion may have been designed to cast doubt on the
legality of double taxation—taxing both the corporation and
its shareholders on the corporation’s undistributed income.
See, e.g., Brief for American College of Tax Counsel as
Amicus Curiae 16–17; Brief for Tax Law Center at NYU
Law et al. as Amici Curiae 6–7.
   But the Moores interpret that language in Eisner v.
Macomber to mean that a tax attributing an entity’s
undistributed income to its shareholders or partners is not
an income tax. The Moores’ reading is implausible. The
Court in Eisner v. Macomber did not purport to address
attribution, no doubt because the tax at issue there did not
attribute income of the corporation to the shareholders.
And if there were any ambiguity on that point, it was
quickly eliminated by this Court’s clear and definitive
holdings in Burk-Waggoner Oil Assn. v. Hopkins, Heiner v.
Mellon, and Helvering v. National Grocery Co. In those
three cases, unlike in Eisner v. Macomber, the Court
squarely addressed attribution—and allowed it. None of
those cases so much as mentioned Eisner v. Macomber,
which is not surprising because, to reiterate, Eisner v.
Macomber did not address attribution. So whatever else
Eisner v. Macomber might stand for, it does not proscribe
attribution and thus has no bearing on the attribution issue
in this case.
   To sum up: The Court’s longstanding precedents plainly
establish that, when dealing with an entity’s undistributed
income, Congress may tax either (i) the entity or (ii) its

——————
Constitution. See also infra, at 22–24.
14                   MOORE v. UNITED STATES

                          Opinion of the Court

shareholders or partners.4
                              B
  Consistent with this Court’s case law, Congress has long
taxed the shareholders and partners of business entities on
the entities’ undistributed income. That longstanding
congressional practice reflects and reinforces this Court’s
precedents upholding those kinds of taxes.
  In 1864, for example, Congress passed and President
Lincoln signed an income-tax law that taxed individuals on
“the gains and profits of all companies, whether
incorporated or partnership,” in which they were
shareholders or partners. 

. In 1871, the Court
upheld the constitutionality of that tax. Collector v.
Hubbard, 

.5
  In 1913, soon after the Sixteenth Amendment was
ratified, Congress enacted a new income tax on
shareholders for their share of the incomes of corporations
formed or used to evade taxes. 

. That 1913 law
also taxed partners on each partner’s “share of the profits
of a partnership.” Id., at 169. As explained above, the
Court upheld that approach to partnership taxation in
Burnet v. Leininger, 

, and Heiner v. Mellon,

. Ever since that 1913 law and those cases,
the basic partnership-tax rule has been settled: It “is
axiomatic that each partner must pay taxes on his

——————
   4 The Government acknowledges that there are due process limits on

attribution to ensure that the attribution is not arbitrary—for example,
limits based on the taxpayer’s relationship to the underlying income. Tr.
of Oral Arg. 66–67, 96–97; see also Burnet v. Wells, 

, 678–
679 (1933). In this Court, the Moores have not raised a due process issue
regarding the attribution of KisanKraft’s income to them.
   5 This Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust Co.,

, later proscribed unapportioned federal taxation of income
from property, and therefore overruled that holding of Hubbard. See
supra, at 7. But in 1913, the Sixteenth Amendment then overruled that
aspect of Pollock.
                 Cite as: 

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                     Opinion of the Court

distributive share of the partnership’s income without
regard to whether that amount is actually distributed to
him.” United States v. Basye, 

 (1973).
   As new kinds of corporate entities arose, Congress
employed a similar approach. For example, in the 1918
Revenue Act, Congress decided to tax shareholders of
personal service corporations—that is, shareholders of
closely held corporations that earn most of their income
from the work of their principal owners and shareholders—
“in the same manner as the members of partnerships.” 

.
   And since 1958, the Internal Revenue Code has also
taxed the shareholders of S corporations in the same way
as partnerships—by taxing the shareholders on their share
of the undistributed income of the corporation. See Bufferd
v. Commissioner, 

, 524–525 (1993).            S
corporations are corporations with 100 or fewer
shareholders where the shareholders have elected to be
taxed directly on the corporate income. 26 U. S. C. §§1361–
1362. A majority of the corporations in the United States
are S corporations, so the taxation of individual
shareholders of S corporations is widespread.
   In addition, Congress has long taxed major American
shareholders of foreign business entities on some of the
income of those entities. For example, in 1937, Congress
taxed American shareholders of foreign personal holding
companies on those companies’ undistributed income. 

.
   And in 1962, Congress enacted subpart F, which remains
in place to this day. 

, 

 et seq.
To reiterate, subpart F taxes American shareholders of
American-controlled foreign corporations on several kinds
of undistributed corporate income, mostly passive income.
§§951, 952, 957. And as noted above, in light of this Court’s
precedents, the Courts of Appeals have uniformly rejected
constitutional challenges to subpart F. See Garlock, 489
16                MOORE v. UNITED STATES

                      Opinion of the Court

F. 2d, at 202–203, and n. 5 (the constitutional challenge to
subpart F “borders on the frivolous” in light of Heiner v.
Mellon); Estate of Whitlock, 

.
  In short, before and after ratification of the Sixteenth
Amendment, Congress has often taxed the shareholders or
partners of a business entity on the entity’s undistributed
income. Such a “[l]ong settled and established practice” can
carry “great weight in” resolving constitutional questions—
and here it reflects and reinforces this Court’s precedents.
Chiafalo v. Washington, 

 (2020)
(quotation marks omitted); see also Moore v. Harper, 

 (2023) (The Court has “long looked to ‘settled and
established practice’ to interpret the Constitution” (quoting
The Pocket Veto Case, 

 (1929))); Walz v.
Tax Comm’n of City of New York, 

 (1970)
(An “unbroken practice . . . is not something to be lightly
cast aside”); The Federalist No. 37, p. 229 (C. Rossiter ed.
1961) (J. Madison).
                             IV
   The Moores are obviously aware of those longstanding
congressional practices and Supreme Court precedents, so
they had two choices of how to deal with that stark reality
in this Court. They could have argued that all of those taxes
are unconstitutional and that all of those precedents should
be overruled. Or in an effort to contain the blast radius of
their legal theory, they could have tried to distinguish the
MRT from those other taxes and argue that only the MRT
is unconstitutional. They chose the latter approach.
   To be specific: The Moores explicitly concede that
partnership taxes, S-corporation taxes, and subpart F taxes
are income taxes that are constitutional and need not be
apportioned. Tr. of Oral Arg. 9, 48; Brief for Petitioners 50–
51. The Moores likewise do not ask the Court to overrule
any of the precedents that we have discussed above, which
upheld the attribution of entities’ undistributed income.
                 Cite as: 

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                     Opinion of the Court

Id., at 49–52.
  Instead, the Moores seek to differentiate the MRT from
all of those other taxes long imposed by Congress and long
upheld by this Court. The Moores have advanced an array
of ad hoc distinctions to try to explain why those
longstanding taxes are constitutional and why those
precedents are correct, and to simultaneously try to explain
why those taxes and precedents do not eviscerate their
argument that the MRT is unconstitutional. But the
Moores’ effort to thread that needle, although inventive, is
unavailing.
  According to the Moores: (1) taxes on partnerships are
distinguishable from the MRT and not controlled by
precedent because partnerships are not separate entities
from their partners; (2) taxes on S corporations are
distinguishable from the MRT and not controlled by
precedent because shareholders of S corporations choose to
be taxed directly on corporate income; and (3) subpart F
taxes on American shareholders’ portions of undistributed
foreign corporate income are distinguishable from the MRT
and not controlled by precedent because those taxes apply
what the Moores call “constructive realization.”
  To begin, and perhaps most importantly, the Moores’ set
of ad hoc distinctions does not undermine the clear rule
established by this Court’s precedents: Congress can
choose either to tax the entity on its income or to tax the
entity’s shareholders or partners on their share of the
entity’s undistributed income. Burk-Waggoner Oil Assn. v.
Hopkins, 

 (1925).
  In any event, the Moores’ attempted distinctions of the
various taxes fail on their own terms.
  First, the Moores contend that partners can be taxed on
a partnership’s income only because, as of the time that the
Sixteenth Amendment was ratified in 1913, partnerships
were not seen as legal entities separate from the partners.
But that assertion is incorrect. When the Sixteenth
18               MOORE v. UNITED STATES

                     Opinion of the Court

Amendment was ratified, the courts, Congress, and state
legislatures treated partnerships as separate entities in
many contexts. See, e.g., Forsyth v. Woods, 

 (1871) (“The partnership is a distinct thing from the
partners themselves . . . ”); W. Cowles, The Firm as a Legal
Person, 57 Central L. J. 343 (1903) (citing many additional
ratification-era cases); see also H. Black, Law of Income
Taxation Under Federal and State Laws 100 (1913) (The
“undivided earnings of a partnership . . . properly
constitute income of the firm but not of the individual
partners”); 

, 547–548 (1898) (federal
bankruptcy law that treated partnerships as separate
entities); F. Burdick, Law of Partnership, ch. 3, §1, pp. 85–
86 (rev. 2d ed. 1906) (It “is becoming more and more
customary for legislation and judicial decisions to treat a
partnership as an entity”).
  During the time period around ratification of the
Sixteenth Amendment, moreover, numerous States
imposed taxes directly on partnerships for partnership
income. 1 S. Rowley, The Modern Law of Partnership §306
(1916); 2 id., §935, at 1295, and n. 1 (collecting 21 state
laws); Black 146. And during World War I, Congress
enacted the Revenue Act of 1917, which also imposed a tax
directly on partnerships. 

. The federal and
state treatment of partnerships as separate legal entities
for tax purposes contravenes the Moores’ theory that pass-
through taxation is inherent in the nature of partnerships
rather than a legislative choice.
  In short, the Moores are incorrect to claim that
partnerships were not historically seen as separate taxable
entities.
  To be sure, courts declined to recognize partnerships as
separate entities in certain common-law contexts. 1 Rowley
§118; Burdick, ch. 3, §1.         But those cases simply
demonstrate that partnerships were (and are) flexible
entities that can receive flexible legal treatment. Those
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                     Opinion of the Court

cases are consistent with the longstanding principle
recognized by this Court that “Congress, having the
authority to tax the net income of partnerships, could
impose the liability upon the partnership directly, as it did
under the Revenue Act of 1917, or upon the ‘individuals
carrying on business in partnership.’ ” Burnet v. Leininger,

 (1932) (citation omitted). As with other
business entities, Congress may choose whether to tax
(i) the entity or (ii) its shareholders or partners on the
entity’s undistributed income.
   Second, the Moores seek to distinguish the taxation of S
corporations by saying that shareholders’ choice to become
an S corporation necessarily means that the S corporation’s
income is truly the shareholders’ income. But consent
cannot explain S-corporation taxation; after all, consent to
taxation as an S corporation can be revoked only if
shareholders who hold a majority of the corporation’s
shares agree. 

(d)(1)(B). So, for example,
if shareholders who hold 49 percent of the shares no longer
consent to paying taxes on undistributed earnings, they
nonetheless still must do so. Moreover, there is no reason
to think that shareholder consent can eliminate the
apportionment requirement (which is a structural
requirement of the Constitution) and allow Congress to
enact an otherwise unconstitutional tax.
   In short, the Moores’ consent theory does not explain
Congress’s authority to tax the shareholders of S
corporations directly on corporate income. Rather, S
corporations are another example of Congress’s authority to
either tax the corporation itself on corporate income or
attribute the undistributed income to the shareholders and
tax the shareholders.
   Third, the Moores try to distinguish Congress’s long
history of taxing shareholders of closely held foreign
corporations—including through subpart F—on the ground
that those laws apply “the doctrine of constructive
20                MOORE v. UNITED STATES

                      Opinion of the Court

realization.” Brief for Petitioners 47.
  The Moores have not pointed to any use of the phrase
“constructive realization” in this Court’s case law or the
Internal Revenue Code. Instead, the term seems to be a
one-off label woven out of whole cloth by the Moores to allow
them to sidestep any existing tax, especially subpart F, that
does not accord with their proposed constitutional rule. See
Brief for American Tax Policy Institute as Amicus Curiae
28 (noting that “ ‘constructive realization’ actually is a new,
amorphous phrase of petitioners’ devising”).
  In any event, whatever its label, the Moores’
constructive-realization theory does not distinguish the
MRT from subpart F and other pass-through taxes. For
example, the Moores claim that constructive realization
turns on a sufficient degree of control over the entity. But
the level of shareholder control with the MRT (at least 10
percent) is the same as under the longstanding subpart F
tax.    (And control provides an even less persuasive
distinction for partners and for shareholders of S
corporations, who may have even less than a 10 percent
share and still have the entity’s income attributed to them.)
  As part of their effort to distinguish the MRT from
subpart F, the Moores also argue that subpart F is limited
to taxing “ ‘movable income’ ” that may have been shifted
abroad to avoid taxes. Brief for Petitioners 45. But that is
not accurate. Subpart F also includes income from doing
business in a country under certain sanctions. §952(a)(5).
Moreover, like subpart F, the MRT responds to concerns
that the owners of American-controlled foreign corporations
keep money offshore to defer taxation. So it is not clear why
the MRT would not also satisfy the Moores’ requirement of
an anti-tax-avoidance purpose.
  Therefore, even if we were to accept the Moores’
constructive-realization nomenclature and theory, the
Moores’ concession that subpart F imposes taxes on so-
called constructively realized income would necessarily
                     Cite as: 

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                          Opinion of the Court

mean that the MRT likewise imposes taxes on
constructively realized income. After all, the MRT is
integrated into subpart F’s framework, and it has the same
essential features as subpart F. If subpart F is not
unconstitutional under the “constructive realization”
theory—and the Moores explicitly concede that it is not, Tr.
of Oral Arg. 9—then the MRT is likewise not
unconstitutional on that theory.
   In short, the Moores cannot meaningfully distinguish the
MRT from similar taxes such as taxes on partnerships, on
S corporations, and on subpart F income.6 The upshot is
that the Moores’ argument, taken to its logical conclusion,
could render vast swaths of the Internal Revenue Code
unconstitutional. See, e.g., 

(c) (deemed
stock distributions); §§446, 448 (accrual accounting); §701
(partnership taxation); §§951–965 (subpart F); §951A
(pass-through tax on global intangible low-taxed income);
§1256(a) (certain futures contracts); §1272(a) (original-
issue discount instruments); §§1361–1379 (S corporations);
§§2501–2524 (gift taxes).
   And those tax provisions, if suddenly eliminated, would
deprive the U. S. Government and the American people of
trillions in lost tax revenue. The logical implications of the
Moores’ theory would therefore require Congress to either
drastically cut critical national programs or significantly
increase taxes on the remaining sources available to it—
including, of course, on ordinary Americans.              The
——————
  6 The MRT applies to income that was realized and accumulated in the

past by foreign corporations, but not taxed by the United States. In the
lower courts, the Moores raised a due process retroactivity argument—
that the MRT taxes income that was earned too far in the past. The
Ninth Circuit rejected that argument based on this Court’s decision in
United States v. Carlton, 

 (1994). And the Moores did not
seek certiorari on that issue. “We do not normally consider a separate
legal question not raised in the certiorari briefs,” and “see no reason to
make an exception here.” Kasten v. Saint-Gobain Performance Plastics
Corp., 

 (2011); see also this Court’s Rule 14.1(a).
22                   MOORE v. UNITED STATES

                          Opinion of the Court

Constitution does not require that fiscal calamity.7
                         *     *    *
  The MRT attributes the undistributed income of
American-controlled foreign corporations to their American
shareholders, and then taxes the American shareholders on
that income. By doing so, the MRT operates in the same
basic way as Congress’s longstanding taxation of
partnerships, S corporations, and subpart F income. And
the MRT is consistent with the principles that this Court
articulated in upholding those kinds of taxes in cases such
as Burk-Waggoner Oil Assn. v. Hopkins, Heiner v. Mellon,
and Helvering v. National Grocery Co. The MRT therefore
falls squarely within Congress’s constitutional authority to
tax.
  For their part, the dissent and the opinion concurring in
the judgment focus primarily on the realization issue—
namely, whether realization is required for an income tax.
We do not decide that question today. When they reach the
attribution question that we do decide, the separate
opinions disagree with our reading of some of the Court’s
precedents. We respect their views. But as we thoroughly
explained above, we read the Court’s precedents differently.
  That said, we emphasize that our holding today is
narrow. It is limited to: (i) taxation of the shareholders of
an entity, (ii) on the undistributed income realized by the
entity, (iii) which has been attributed to the shareholders,
——————
  7 According to the Moores, because the Internal Revenue Code’s

“definition of ‘gross income’ exerts the full measure of Congress’s taxing
power,” a ruling against them would instantly subject all American
stockholders to taxes on corporate income. Tr. of Oral Arg. 4–5. That
claim is entirely incorrect. Congress has chosen to directly tax some
corporations on their income. See 

. Congress’s choice to
tax the entity rather than the shareholders controls in that context, just
as its contrary choice to tax certain shareholders or partners, not the
entity, on the entity’s undistributed income controls for the MRT,
partnerships, S corporations, and subpart F.
                     Cite as: 

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                          Opinion of the Court

(iv) when the entity itself has not been taxed on that
income. In other words, our holding applies when Congress
treats the entity as a pass-through.8
   To be clear, as we indicated earlier, the Due Process
Clause proscribes arbitrary attribution. See supra, at 14,
n. 4. And nothing in this opinion should be read to
authorize any hypothetical congressional effort to tax both
an entity and its shareholders or partners on the same
undistributed income realized by the entity. In such a
scenario, the entity would not simply be a traditional pass-
through.9
   In addition, as the Government explains, other kinds of
taxes could of course raise different issues. See Tr. of Oral
Arg. 58–59, 62, 127–128. In its brief and at oral argument,
for example, the Government indicated that a hypothetical
unapportioned tax on an individual’s holdings or property
(for example, on one’s wealth or net worth) might be
considered a tax on property, not income. See Brief for
United States 19 (distinguishing an income tax from a tax
on wealth or net worth because “an income tax targets
economic gain ‘between two points of time’ ”); Tr. of Oral
Arg. 69, 127–128.
   And the Government further acknowledges that the
constitutionality of a hypothetical unapportioned tax on
appreciation may depend on, among other things, whether
realization is a constitutional requirement for an income
tax. See id., at 58–59, 62, 70, 93–95, 106–108, 126–127; see
——————
  8 The opinion concurring in the judgment reads the Court’s attribution

precedents to draw a line that might call for a “different” conclusion for
“a tax on shareholders of a widely held or domestic corporation.” Post, at
1 (opinion of BARRETT, J.). We do not agree that the Court’s precedents
draw such a line. Nor does our opinion today draw such a line.
  9 That issue is distinct from Congress’s well-established practice of

taxing the corporation on corporate income and then taxing shareholders
when they receive a dividend. See Hellmich v. Hellman, 

,
237–238 (1928); see also United States v. Hemme, 

(1986).
24               MOORE v. UNITED STATES

                     Opinion of the Court

also Brief for United States 32. The Moores argue that
realization is a constitutional requirement; the
Government argues that it is not. To decide this case, we
need not resolve that disagreement over realization.
  Those are potential issues for another day, and we do not
address or resolve any of those issues here. As to the
Moores’ case, Congress has long taxed shareholders of an
entity on the entity’s undistributed income, and it did the
same with the MRT. This Court has long upheld taxes of
that kind, and we do the same today with the MRT. We
affirm the judgment of the U. S. Court of Appeals for the
Ninth Circuit.

                                            It is so ordered.
                   Cite as: 

 (2024)              1

                      JACKSON, J., concurring

SUPREME COURT OF THE UNITED STATES
                           _________________

                            No. 22–800
                           _________________


      CHARLES G. MOORE, ET UX., PETITIONERS
               v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT
                          [June 20, 2024]

   JUSTICE JACKSON, concurring.
   Our Constitution grants Congress “plenary power” over
taxation. Brushaber v. Union Pacific R. Co., 

(1916). The text supplies only two relevant conditions: Di-
rect taxes must be apportioned among the States based on
population, see Art. I, §9; all other taxes must “be uniform
throughout the United States,” §8. During the century af-
ter our Nation’s founding, the Court repeatedly recognized
that, in matters of tax policy, Congress’s view was control-
ling. See, e.g., Pacific Ins. Co. v. Soule, 

(1869) (“Where the power of taxation, exercised by Con-
gress, is warranted by the Constitution . . . it is, necessarily,
unlimited in its nature”); Collector v. Hubbard, 

 (1871) (upholding a tax on undistributed corporate earn-
ings because “it is as competent for Congress to tax annual
gains and profits before they are divided among the holders
of the stock as afterwards”).
   Then came Pollock v. Farmers’ Loan & Trust Co., 

 (1895). In that case, the Court invalidated a fed-
eral income tax, holding that a tax on income derived from
property was a direct tax requiring apportionment. See 

. Pollock provoked immediate outcry. President Taft,
later Chief Justice of this Court, said, “ ‘Nothing has ever
injured the prestige of the Supreme Court more.’ ” B. Acker-
man, Taxation and the Constitution, 

, 5
2                 MOORE v. UNITED STATES

                     JACKSON, J., concurring

(1999). In 1913, the People’s representatives responded, us-
ing their power to overturn Pollock via constitutional
amendment. The Sixteenth Amendment restored to Con-
gress the power to tax “incomes, from whatever source de-
rived, without apportionment.”
  Against that stark backdrop, the Court wisely takes a re-
strained approach today. Petitioners allege that the Man-
datory Repatriation Tax (MRT) exceeded Congress’s power
by taxing shareholders on the undistributed income of a cor-
poration; such a tax, petitioners argue, is really a direct tax
requiring apportionment. The majority opinion rightly re-
jects that challenge, thoroughly explaining why the MRT
falls within Congress’s long-recognized, oft-exercised power
to tax shareholders on the undistributed income of a busi-
ness entity. See ante, at 22. I write separately to empha-
size that, before taking up petitioners’ invitation to strike
down a lawfully enacted tax, the Court would need to be
persuaded of several additional arguments that we wisely
do not reach. I highlight two.
  First, we would need to agree with petitioners that Con-
gress can tax income only if it is actually received or “real-
ized.” That alleged requirement appears nowhere in the
text of the Sixteenth Amendment. See Brief for John R.
Brooks et al. as Amici Curiae 14–21 (explaining that the
phrase “from whatever source derived” served only to over-
rule Pollock). Moreover, both before and after the Sixteenth
Amendment was adopted, the term “income” was widely
recognized as flexible enough to include both realized and
unrealized gains. See Brief for United States 14–26 (col-
lecting sources); Brief for Professors of Tax Law et al. as
Amici Curiae 6–20 (same).
  The alleged realization requirement is, instead, drawn
from a decision of this Court, Eisner v. Macomber, 

 (1920). Macomber struck down a tax on stock divi-
dends, ostensibly because the taxpayer “ha[d] not realized
or received any income in the transaction.” 

. Like
                      Cite as: 

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                         JACKSON, J., concurring

Pollock, Macomber was “promptly and sharply criticised.”
Helvering v. Griffiths, 

 (1943). Over the
two decades that followed our pronouncement, we “limited”
Macomber’s realization requirement “to the kind of divi-
dend there dealt with,” 

, while also “under-
min[ing] . . . the original theoretical bases of the decision in”
other contexts, 

.
  Thus, there is no constitutional requirement, from Ma-
comber or otherwise, that a taxpayer “be able to sever . . .
the gain from his original capital” in order to be taxed on it.
Helvering v. Bruun, 

 (1940); see also Cot-
tage Savings Assn. v. Commissioner, 

(1991) (explaining that, properly understood, “the concept
of realization is ‘founded on administrative convenience,’ ”
compared to the “ ‘cumbersome’ ” process of “valuing assets
on an annual basis to determine . . . appreciat[ion]”). In the
lower courts too, Macomber’s definition of income has long
been deemed outmoded, if not overruled.1 Any litigant
seeking to sustain her case on the basis of Macomber would
have to bring back from the dead its Court-created limit on
Congress’s power.2

——————
  1 See, e.g., Commissioner v. Obear-Nester Glass Co., 

(CA7 1954) (“Even as to income derived from capital [Macomber] has
been limited to its specific facts”); United States v. James, 

 (CA9 1964) (“[I]nsofar as [Macomber] purported to offer a compre-
hensive definition of the term income as used in the Sixteenth Amend-
ment, it has been discarded”); Prescott v. Commissioner, 

 (CA8 1977) (“[T]he Supreme Court has found it necessary to aban-
don [Macomber’s] attempt at an all-inclusive definition of income”).
  2 To be sure, Macomber is a hard decision to parse, and it might be

read to allow taxation of an asset only if the owner receives some new,
increased value. See Eisner v. Macomber, 

 (1920) (em-
phasizing that a stock dividend does not necessarily “increase the intrin-
sic value of [the taxpayer’s] holding”); see also Koshland v. Helvering,

, 445–446 (1936). If that reading is correct, Macomber
would not preclude taxation of unrealized gains. See Brief for United
States 33–34; Brief for Alex Zhang as Amicus Curiae 26.
4                 MOORE v. UNITED STATES

                     JACKSON, J., concurring

   Second, even if we were to hold that a uniform tax vio-
lated the Sixteenth Amendment, we would still need to con-
firm that the tax was a direct tax before requiring appor-
tionment. The Constitution does not exhaustively define
direct taxes, though it appears the category was originally
intended to encompass only land and head taxes. See, e.g.,
Hylton v. United States, 

 (1796) (opinion of
Chase, J.); 

 (opinion of Paterson, J.); 

(opinion of Iredell, J.). But the Constitution does expressly
exclude certain taxes—“Duties, Imposts and Excises”—
from apportionment, and we have long interpreted those
categories of taxes broadly. Art. I, §8; see also Steward Ma-
chine Co. v. Davis, 

, 581–582 (1937). Indeed,
we have upheld uniform taxes as excises, even when predi-
cated on something that, if taxed on its own, might require
apportionment or even be nontaxable. See Flint v. Stone
Tracy Co., 

, 150–152, 165 (1911). In this case,
the Government argues that the MRT can be understood as
an excise tax on the privilege of doing business through a
controlled foreign corporation. See Brief for United States
46–49. That argument, too, would need to be considered
before we could strike down a uniform tax like the MRT.
                          *     *     *
   I have no doubt that future Congresses will pass, and fu-
ture Presidents will sign, taxes that outrage one group or
another—taxes that strike some as demanding too much,
others as asking too little. There may even be impositions
that, as a matter of policy, all can agree are wrongheaded.
However, Pollock teaches us that this Court’s role in such
disputes should be limited. “[T]he remedy for such abuses
is to be found at the ballot-box, and in a wholesome public
opinion which the representatives of the people will not
long, if at all, disregard, and not in the disregard by the ju-
diciary of powers that have been committed to another
                 Cite as: 

 (2024)           5

                    JACKSON, J., concurring

branch of the government.” Pollock, 

 (Har-
lan, J., dissenting).
  With that understanding, I join the Court’s opinion in
full.
                  Cite as: 

 (2024)            1

               BARRETT, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 22–800
                          _________________


      CHARLES G. MOORE, ET UX., PETITIONERS
               v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT
                         [June 20, 2024]

   JUSTICE BARRETT, with whom JUSTICE ALITO joins, con-
curring in the judgment.
   This case comes down to two questions. Have the Moores
realized income from their KisanKraft shares? And if they
have not, may Congress attribute KisanKraft’s income to
the Moores?
   Our precedent already decides the first question: Share-
holders receive income when they sell their shares or when
a corporation distributes profits back to its investors by de-
claring a dividend. Notwithstanding this precedent, the
Government asserts its power to tax without apportion-
ment all economic gains, including appreciation in property
value. The Court does not address this issue. Ante, at 8. It
focuses on the second instead, and, casting our precedent as
well settled, holds that Congress can attribute KisanKraft’s
income to the Moores. As I explain below, I think the issue
is more complex than the Court lets on. But whatever my
disagreement with the Court’s reasoning, it bears emphasis
that the Moores’ case involves the Mandatory Repatriation
Tax (MRT), which is a specific tax imposed upon the Amer-
ican shareholders of a closely held foreign corporation. A
different tax—for example, a tax on shareholders of a
widely held or domestic corporation—would present a dif-
ferent case.
2                   MOORE v. UNITED STATES

                 BARRETT, J., concurring in judgment

                              I
  The question on which we granted review is “[w]hether
the Sixteenth Amendment authorizes Congress to tax un-
realized sums without apportionment among the states.”
Pet. for Cert. i. The answer is straightforward: No.
                                 A
   The Constitution distinguishes between taxes on income
and taxes on property. Income taxes must apply uniformly
across the country, Art. I, §8, cl. 1, while “direct” taxes—
like property taxes—must be apportioned among the
States, §2, cl. 3; §9, cl. 4.1 Apportionment is an onerous bur-
den, both technically and politically, because it requires
Congress to allocate the total tax liability to each State ac-
cording to its population. There have been very few federal
property taxes in this nation’s history (and none in the mod-
ern era). By design and in fact, the apportionment rule has
left property taxation primarily to the States. See post, at
7–12 (THOMAS, J., dissenting).
   In Pollock v. Farmers’ Loan & Trust Co., the Court held
that the apportionment rule applies not only to taxes on
real and personal property, but also to taxes on income “de-
rived” from that property—say, rents from leasing farm-
land. 

 (1895). The decision left Congress
effectively unable to tax most nonlabor income. The Six-
teenth Amendment overruled Pollock’s second holding,
stating that “Congress shall have power to lay and collect
taxes on incomes, from whatever source derived, without
apportionment.” But it did not overrule Pollock’s first hold-
ing that taxes on personal property are direct taxes. See
Brushaber v. Union Pacific R. Co., 

 (1916);
——————
  1 Direct taxes also include a capitation tax, which imposes a tax on

every person “without regard to property, profession, or any other cir-
cumstance.” National Federation of Independent Business v. Sebelius,

 (2012) (NFIB) (internal quotation marks omitted; em-
phasis deleted).
                  Cite as: 

 (2024)             3

               BARRETT, J., concurring in judgment

National Federation of Independent Business v. Sebelius,

 (2012).
   As the text of the Sixteenth Amendment indicates, in-
come is financial gain that “derive[s]” from property or an-
other source. See, e.g., United States v. Phellis, 

, 168–169 (1921); Stratton’s Independence, Ltd. v. How-
bert, 

 (1913); Webster’s New Interna-
tional Dictionary 1089 (1909) (Webster’s) (“income” is
“[t]hat gain or recurrent benefit (usually measured in
money) which proceeds from labor, business, or property”).
To capture the distinction between property and income, we
have described property as the “seed” and income as the
“fruit that it will yield.” United States v. Safety Car Heating
& Lighting Co., 

 (1936). Thus, a condomin-
ium is a landlord’s property, and rents are the income she
receives from leasing it. A patent is an inventor’s property,
and royalties are the income she receives from licensing it.
A capital fund is a banker’s property, and interest is the
income she receives from lending it.
   The Sixteenth Amendment’s reference to income “de-
rived” from any source encompasses a requirement that in-
come, to be taxed without apportionment, must be realized.
See post, at 23–25 (THOMAS, J., dissenting). While the Gov-
ernment stresses that the Amendment did not include a “re-
alization” requirement, Brief for United States 15–16, “re-
alize” and “derive” have long referred to the same concept.
Compare Webster’s 1778 (“realize” means to “convert an in-
tangible right or property into real (tangible) property”; to
“convert any kind of property (considered as fluctuating or
uncertain in value) into money”), with id., at 601 (“deriva-
tion” is the “[a]ct of receiving anything from a source, as
profits from capital”). The Court has used “realization” this
way (including in today’s opinion) when discussing income
taxes on corporate shareholders. See, e.g., ante, at 8; Culli-
nan v. Walker, 

 (1923). And we have also
4                 MOORE v. UNITED STATES

               BARRETT, J., concurring in judgment

used the term “realized” in cases involving a tax on accu-
mulated corporate earnings, Ivan Allen Co. v. United
States, 

, 627–629 (1975), debt discharge,
United States v. Kirby Lumber Co., 

 (1931),
real estate improvements, Helvering v. Bruun, 

 (1940), punitive damages, Commissioner v. Glen-
shaw Glass Co., 

 (1955), and meal allow-
ances, Commissioner v. Kowalski, 

 (1977),
to name a few. Many opinions use “derived” and “realized”
more or less interchangeably. See, e.g., Diedrich v. Com-
missioner, 

 (1982); Commissioner v. Ja-
cobson, 

 (1949); Helvering v. Horst, 

 (1940); Goodrich v. Edwards, 

(1921); Gray v. Darlington, 

, 65–66 (1872); Pol-
lock, 

 (Jackson, J., dissenting).
    The “commonly understood meaning of the term” income
when the Sixteenth Amendment was ratified requires that
a gain be “realized” or “derived”—e.g., through a sale or
other transaction—to be taxed without apportionment.
Merchants’ Loan & Trust Co. v. Smietanka, 

,
519–520 (1921); see post, at 23–25 (THOMAS, J., dissenting).
“Income within the meaning of the Sixteenth Amendment
. . . is income as the word is known in the common speech
of men.” Safety Car, 

. And in the years sur-
rounding the ratification of the Sixteenth Amendment, in-
come “was used in ordinary parlance to refer only to real-
ized gains.” Brief for Professors of Law and Linguistics as
Amicus Curiae 17; see 

 at 18–22 (instances of the word
“income” between 1900 and 1912 in the Corpus of Historical
American English referred to “economic gain tied to a real-
ization event”).
    Regardless of whether one uses the term “derived” or “re-
alized,” the important point is this: The Sixteenth Amend-
ment and the Direct Tax Clause distinguish between taxes
on property, which are subject to apportionment, and taxes
on income derived or realized from that property, which are
                  Cite as: 

 (2024)           5

               BARRETT, J., concurring in judgment

not.
                              B
   The Moores have not realized income from their
KisanKraft shares. Shares yield income when the corpora-
tion declares a dividend—i.e., when the corporation distrib-
utes its profits to shareholders. See Lynch v. Hornby, 

 (1918) (“Dividends are the appropriate fruit
of stock ownership [and] are commonly reckoned as in-
come”); Gibbons v. Mahon, 

, 557–558 (1890).
But KisanKraft has never declared a dividend. Nor have
the Moores realized income by selling or otherwise dispos-
ing of their shares. See Taft v. Bowers, 

, 481–
482 (1929). Because they have not received a dividend,
profit from selling their shares, or any other pecuniary ben-
efit from their stock ownership, the Moores have not yet re-
ceived a return on their original investment in the com-
pany. In short, they have not “derived” income from their
shares because nothing has come in.
   The Government resists this conclusion. It concedes, as
it must, that a tax on the “total value of ” the shares “at a
particular point [in] time” is a “quintessential tax on prop-
erty” that must be apportioned. Tr. of Oral Arg. 127–128;
see NFIB, 

; Brushaber, 

.
But looking at property value across two points in time
makes a difference, the Government says, because then the
tax targets appreciation rather than the asset’s value. As
the Government sees it, Congress may tax without appor-
tionment “all economic gains” measured “ ‘between two
points in time.’ ” Brief for United States 9, 15. And the in-
crease in value between Time A and Time B is “income.”
   The Government is unable to cite a single decision up-
holding an unapportioned tax on appreciation. Tr. of Oral
Arg. 89, 91–92. That is no surprise, because our precedent
forecloses the Government’s argument. We have explained
that income includes neither “a gain accruing to capital” nor
6                 MOORE v. UNITED STATES

               BARRETT, J., concurring in judgment

“a growth or increment of value in the investment.” Phellis,

; see also Safety Car, 

 (in-
come is the “fruit that is born of capital, not the potency of
fruition”). And we have stressed that “economic gain is not
always taxable as income.” Bruun, 

 (em-
phasis added); see also Commissioner v. Indianapolis
Power & Light Co., 

 (1990) (“[A] taxpayer
does not realize taxable income from every event that im-
proves his economic condition”). Although appreciation
looks valuable on paper, “the stockholder has received noth-
ing out of the company’s assets for his separate use and ben-
efit,” and market fluctuations could “wip[e] out the entire
investment” before the owner ever receives a dime of “in-
come within the meaning of the Sixteenth Amendment.”
Eisner v. Macomber, 

 (1920).
   If the Government were right that appreciation is income,
it is hard to make sense of our decision in Ivan Allen Co.
There, we considered a tax on accumulated earnings—i.e.,
income that the corporation retains as assets on its balance
sheet instead of distributing to its shareholders. 422 U. S.,
at 624–625. Because corporate tax rates were generally
lower than individuals’ marginal tax rates, Congress was
concerned that corporations would be used to reduce their
“shareholders’ overall tax liability by accumulating earn-
ings beyond the reasonable needs of the business.” Id., at
624. So Congress imposed a tax on earnings that corpora-
tions allowed to accumulate “beyond the reasonable and
reasonably anticipated needs of the business.” Id., at 621,
624. In upholding the tax, we took great care to explain
that the tax “is not directed at the unrealized appreciation
of liquid assets”; “any unrealized appreciation in the value
of the taxpayer’s portfolio . . . does not enter into the com-
putation” of the tax. Id., at 627–628. The tax took into ac-
count the value and appreciation of the corporation’s assets
“only in measuring reasonableness of accumulation of the
earnings and profits that otherwise independently exist.”
                     Cite as: 

 (2024)                    7

                  BARRETT, J., concurring in judgment

Id., at 628. In other words, asset appreciation was only rel-
evant with respect to how much of the corporation’s income
could be taxed under the statute. More assets meant less
income reasonably could be accumulated. If asset appreci-
ation itself were just as taxable as income, there would have
been no reason for the Court’s painstaking efforts to explain
the scope of the tax. See id., at 627–629.2
                               C
   In upholding the tax, the Ninth Circuit opined that
“[w]hether the taxpayer has realized income does not deter-
mine whether a tax is constitutional.” 

(2022). In its view, the “Supreme Court has made clear that
realization of income is not a constitutional requirement.”

. The Ninth Circuit misread our cases. Contrary
to its assertion, this Court has “never abandoned the core
requirement that income must be realized to be taxable
without apportionment.” 

, 508 (CA9 2022)
(Bumatay, J., dissenting from denial of rehearing en banc).
What we have done is reject efforts to narrow what it means
to realize income.
   For example, in Helvering v. Bruun—one of the cases on
which the Ninth Circuit relied—we clarified that “the real-
ization of gain need not be in cash derived from the sale of
an asset” but can also “result [from] exchange of property,
payment of the taxpayer’s indebtedness, relief from a liabil-
ity, or other profit realized from the completion of a trans-
action.” 

. In that case, a tenant built a
valuable building on the landlord’s property. Upon termi-
nation of the lease, the landlord regained possession of the

——————
  2 Although Ivan Allen Co. involved the interpretation of a tax statute,

our analysis sheds light on the Constitution’s definition of income be-
cause we have long interpreted “gross income” in the Internal Revenue
Code to reach “ ‘the full measure of [Congress’s] taxing power.’ ” Com-
missioner v. Kowalski, 

 (1977) (quoting Helvering v.
Clifford, 

 (1940)).
8                  MOORE v. UNITED STATES

                BARRETT, J., concurring in judgment

property—and acquired the building too. When the Inter-
nal Revenue Service came calling, the landlord protested
that he had realized no taxable gain from the building in
the year that the lease ended. We sided with the IRS. Gain
from a contributed building is not like an “accrua[l] of value
due to extraneous and adventitious circumstances”—for ex-
ample, appreciation from a booming real estate market.

. Nor does realization require the ability to “sever
the improvement begetting the gain from [the] original cap-
ital.” 

. “If that were necessary,” we said, “no in-
come could arise from the exchange of property; whereas
such gain has always been recognized as taxable gain.”

 None of that remotely suggests, however, that reali-
zation is not required or (relatedly) that appreciation counts
as taxable income. Instead, it explains that profit (there,
the building) is realized when received, even if it cannot be
physically separated from the capital (there, the land).
   In dispensing with the realization requirement, the
Ninth Circuit also cited Helvering v. Horst. But Horst, like
Bruun, emphasizes that realization does not require cash
in hand—not that realization is irrelevant. In Horst, “the
owner of negotiable bonds . . . detached from them negotia-
ble interest coupons shortly before their due date and deliv-
ered them as a gift to his son who in the same year collected
them at maturity.” 

. The bond owner in-
sisted that the interest coupons were not income taxable to
him, because his son owned them at the time they came
due. See 

 at 114–115. We rejected the argument that
the bond owner could “escape all tax by giving away his
right to income in advance of payment.” 

. “The
power to dispose of income is the equivalent of ownership of
it.” 

. And while the donor chose not to take the
interest itself, he still “realized the fruits of his investment.”

 (emphasis added). Realization does not depend
on how the user chooses to enjoy the income—whether
through “the purchase of goods at the corner grocery, the
                   Cite as: 

 (2024)              9

                BARRETT, J., concurring in judgment

payment of his debt there, or such non-material satisfac-
tions as may result from . . . a gift to his favorite son.” Ibid.
Far from disavowing the realization requirement, the Court
emphasized that a taxpayer cannot escape realization (and
therefore tax liability) by giving away the fruit of his capi-
tal.
   In sum, realization may take many forms, but our prece-
dent uniformly holds that it is required before the Govern-
ment may tax financial gain without apportionment. Real-
ization is a question of substance, not form. Diedrich, 

. In general, realization is “the last step . . . by
which [one] obtains the fruition of the economic gain which
has already accrued to him.” Horst, 

. Our
cases describe many ways income might be realized; a rigid
definition does not capture them all. See, e.g., MacLaughlin
v. Alliance Ins. Co., 

 (1932) (“sale or other
disposition of property”); Safety Car, 

 (“prof-
its owing to a patentee by the infringer of a patent”); Kirby
Lumber, 284 U. S., at 2–3 (“clear gain” resulting from cor-
poration repurchasing bonds it issued for less than the cor-
poration had initially “received [for] their par value”). The
common thread is that to realize income, one must receive
something new and valuable beyond the property she al-
ready owns.
                             II
  Though the Moores did not realize income as sharehold-
ers, KisanKraft realized income as a corporation—profits
from supplying farm equipment to customers in India. The
Government argues that, because the MRT targets
KisanKraft’s realized income, it falls within the Sixteenth
Amendment and is not subject to the apportionment rule.
Brief for United States 42. But the question is not whether
some taxable person or entity has realized income at some
point. Rather, as the Court emphasizes, we must determine
10                MOORE v. UNITED STATES

               BARRETT, J., concurring in judgment

whether Congress has the power to tax the Moores on in-
come that KisanKraft realized. Ante, at 8. Put differently,
can Congress disregard KisanKraft’s corporate form, attrib-
ute KisanKraft’s income to its shareholders, and tax its
shareholders on that income?
  The Court concludes that it can, describing our case law
as “clear and definitive” in the Government’s favor. Ante,
at 13. I read our cases differently. As I understand our
precedent, it leaves room for Congress to disregard the cor-
porate form in some circumstances. But that is not because
Congress—as the Court suggests—can treat corporations
interchangeably with partnerships, whose partners have
always been subject to pass-through taxation on the part-
nership’s income. See United States v. Basye, 

,
453–454 (1973). Rather, our cases allow Congress to disre-
gard the corporate form to determine whether the share-
holder received income in substance, if not in form.
                               A
   Our precedent suggests that Congress’s power to attrib-
ute a corporation’s income to its shareholders for tax pur-
poses is limited. Eisner v. Macomber is the most recent case
addressing this issue—and it was decided more than a cen-
tury ago. There, the Standard Oil Company of California
chose to reinvest its profits back into the corporation rather
than distributing them to shareholders. 

.
Those retained earnings caused an imbalance in the corpo-
ration’s capital account. So to adjust its books, Standard
Oil declared a stock dividend that issued new shares to ex-
isting shareholders while diluting the value of their previ-
ous shares—which left the shareholders in the same finan-
cial position as before the transaction. See 

 at 200–201,
212. The Court held that shareholder Myrtle Macomber did
not realize income from the stock dividend because she “re-
ceived nothing out of the company’s assets for [her] sepa-
                    Cite as: 

 (2024)                 11

                 BARRETT, J., concurring in judgment

rate use and benefit.” Id., at 211. The shareholder’s origi-
nal investment “still remains the property of the company,
and subject to business risks which may result in wiping
out the entire investment.” Ibid. The stock dividends were
“evidenc[e]” that her capital previously had appreciated,
but the dividends themselves “added nothing to” her prop-
erty and were therefore not income derived from it. Id., at
212 (while the “shareholder is the richer because of an in-
crease of his capital . . . he has not realized or received any
income in the transaction”).3
   Importantly for our purposes, the Court also rejected the
Government’s theory that Congress could attribute the cor-
poration’s income to its shareholders. See id., at 213. The
Court expressed “no doubt of the power or duty of a court to
look through the form of the corporation and determine the
question of the stockholder’s right, in order to ascertain
whether he has received income taxable by Congress with-
out apportionment.” Ibid. (emphasis added). But the Court
would not “disregard the essential truth disclosed”: It would
not “ignore the substantial difference between corporation
and stockholder” and “treat the entire organization as un-
real; look upon stockholders as partners, when they are not
such . . . and indulge the fiction that they have received and
realized a share of the profits of the company which in truth
they have neither received nor realized.” Id., at 214. The
Court therefore refused to uphold the tax as a tax on at-
tributed corporate income.
   That left one potential justification for the tax—that the
Direct Tax Clause’s apportionment requirement did not ap-
ply to taxes on the stockholder’s undivided interest in the
corporation. The Court rejected that argument too, adher-
ing to Pollock’s holding that a tax on a shareholder’s own-
ership interest is a tax on property. The Court explained
——————
  3 The Court today does not cast doubt on Macomber’s holding that ap-

preciation is not income. See ante, at 23.
12                MOORE v. UNITED STATES

               BARRETT, J., concurring in judgment

that Pollock “overruled” the holding of Collector v. Hub-
bard, 

 (1871), that Congress could “tax without
apportionment a stockholder’s interest in accumulated
earnings prior to dividend declared,” Macomber, 

. The Court acknowledged that the Sixteenth
Amendment had overruled Pollock’s holding that a tax on
income derived from property must be apportioned. 

. But it stressed that the Sixteenth Amend-
ment did not otherwise disturb the law concerning the Di-
rect Tax Clause—including Pollock’s holding that the
Clause applies to “property, real and personal.” 

;
see 

 (“[T]he Amendment applies to income only”).
Because a stockholder’s ownership interest in the corpora-
tion is personal property—“capital, not income”—Congress
must apportion any tax on it. 

   Today, the Court does not dispute either that income re-
quires realization or that a tax on stock ownership must be
apportioned. Instead, it says that the income of a closely
held foreign corporation can be attributed to its sharehold-
ers for tax purposes. That might be right, but the Court’s
reasons for saying so are wrong: It dismisses the “attribu-
tion” portion of Macomber as dicta and argues that four sub-
sequent cases undercut it. Ante, at 13. I disagree. None of
these cases contradicts Macomber’s admonition that Con-
gress cannot “look upon stockholders as partners . . . when
they are not”; Congress may not “indulge the fiction that
they have received and realized a share of the profits of the
company” when they have not. 

; see also
Helvering v. Griffiths, 

, 376–377, and n. 11
(1943). Rather, the Court’s cases all illustrate the principle
that the validity of an income tax must be assessed “accord-
ing to truth and substance, [not] form.” Macomber, 

.
   Burk-Waggoner Oil Assn. v. Hopkins upheld Congress’s
power to tax an “unincorporated joint stock association” as
                  Cite as: 

 (2024)            13

               BARRETT, J., concurring in judgment

a corporation even though state law treated it as a partner-
ship. 

, 110–111 (1925). We disregarded the
state-law label because the associations acted as corpora-
tions: They had “a fixed capital stock divided into shares,”
they “manage[d] their affairs by a board of directors and
executive officers,” and they “conduct[ed] their business in
the general form and mode of procedure of a corporation.”

 at 113–114. “[N]othing in the Constitution,” we ex-
plained, “precludes Congress from taxing as a corporation
an association which, although unincorporated, transacts
its business as if it were.” 

. Burk-Waggoner thus
held that for tax purposes, Congress could treat a partner-
ship like a corporation when it acts like a corporation. We
did not decide whether Congress may treat a corporation
like a partnership—e.g., attributing its income to share-
holders—when, in truth and substance, it operates as a cor-
poration.
   Next up is Burnet v. Leininger, 

 (1932). Alt-
hough that case involved a partnership, the issue was about
the “anticipatory assignment of income doctrine.” See Com-
missioner v. Banks, 

, 433–434 (2005) (“A tax-
payer cannot exclude an economic gain from gross income
by assigning the gain in advance to another party” (citing,
inter alia, Lucas v. Earl, 

, 114–115 (1930)); 1
B. Bittker, J. Eustice, G. Goldstein, & T. Brantley, Federal
Income Taxation of Corporations and Shareholders
¶2.07[3] (2024). The taxpayer, who happened to be one-half
partner in a laundry business, tried to reduce his tax liabil-
ity by assigning a portion of his income to his wife. 

. We rejected that artifice and affirmed Con-
gress’s ability to “ta[x] the salary and fees of the person who
earned them.” 

 at 141–142 (citing Lucas, 

). This case, too, is about classifying taxes according to
substance rather than form.
   The Court also invokes Heiner v. Mellon, which blesses
Congress’s power to tax “partners” on their “proportionate
14                   MOORE v. UNITED STATES

                  BARRETT, J., concurring in judgment

share of the net income of the partnership” even where the
partnership’s income is not “currently distributable” to the
partners under state law. 

, 280–281 (1938).
The case rests on the “axiomatic” and “firmly established”
rule of partnership taxation that “each partner must pay
taxes on his distributive [i.e., proportional] share of the
partnership’s income without regard to whether that
amount is actually distributed to him.” Basye, 410 U. S., at
453–454 (discussing Heiner). Given the unique partnership
context, Heiner sheds no light on Congress’s power to tax
shareholders on a corporation’s income.4
   Finally, in Helvering v. National Grocery Co., 

 (1938), the Court sustained a deficiency tax imposed on
a corporation that was used to shelter the income of its sole
shareholder. (Notably, the corporation, not the share-
holder, was the taxpayer.) In the course of rejecting the
corporation’s various challenges to the tax, the Court
opined that “Kohl, the sole owner of the business, could not
by conducting it as a corporation, prevent Congress, if it
chose to do so, from laying on him individually the tax on
the year’s profits.” 

. That dictum, if correct, is
consistent with Macomber’s recognition that courts can look
through the corporate form to determine the substance of
the shareholder’s relationship to the income. Because Na-
tional Grocery’s income was really just the income of Kohl,
its sole owner, the Court suggested that attributing it to
him for tax purposes would be permissible.
——————
   4 Partnerships are distinct from corporations in many other fundamen-

tal ways. For example, partnerships traditionally do not have a legal
identity distinct from the partners and do not enjoy the limited liability
characteristic of the corporate form. They are instead “an aggregation of
individuals operating the business as co-owners with individual rights
and duties.” 1 J. Cox & T. Hazen, Law of Corporations §1.07 (3d ed.
2010). For purposes of federal diversity jurisdiction, partnerships are
citizens wherever their partners are, whereas corporations have citizen-
ship distinct from their shareholders. See Carden v. Arkoma Associates,

, 187–189 (1990).
                      Cite as: 

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                  BARRETT, J., concurring in judgment

   Thus, in matters of corporate form and income attribu-
tion—as in the definition of income—labels do not control.
But acknowledging that substance controls is a far cry from
asserting that Congress is free to wholly disregard the cor-
porate form. That would permit Congress to tax the share-
holder without regard to the substance of her relationship
to the corporation and would contradict Macomber’s hold-
ing that Standard Oil’s income could not be attributed to its
shareholders. See 252 U. S., at 213–214. Our precedent
does not give Congress carte blanche to attribute corporate
income to a shareholder. Instead, it suggests that Congress
has a limited power to do so that depends on the relation-
ship between the shareholder and the income.5
                             B
   Although I believe that the Court today is too quick to
bless the attribution of corporate income to shareholders,
its holding is narrow. The Court affirms Congress’s power
to tax shareholders on “the undistributed income of Ameri-
can-controlled foreign corporations,” but it says that the
——————
   5 The Court asserts that Congress no longer observes Macomber’s dis-

tinction between shareholders and the corporate entity for tax purposes.
Ante, at 11. That paints an incomplete picture. After Macomber, Con-
gress ended its longstanding practice of attributing corporate income to
shareholders when the corporation operated as a tax shelter. See Ivan
Allen Co., 422 U. S., at 624–626, and n. 8; Griffiths, 

n. 12, 385. That practice reemerged in the 1930s when Congress began
taxing shareholders of closely held foreign corporations on undistributed
corporate earnings. Revenue Act of 1937, §201, 

. To my
knowledge, Congress has not returned to that approach for domestic or
widely held corporations of the kind Macomber considered. And while
Congress continues to attribute income of certain closely held foreign cor-
porations to their U. S. shareholders today, see 

 et seq.
(“subpart F”), doing so might be consistent with Macomber’s recognition
that Congress can disregard the corporate form when, in substance, it is
reasonable to treat the income of the corporation as that of the share-
holders. The Court’s “arbitrariness” test seems to get at a similar point,
but, by dismissing the relevance of the corporate form altogether, it con-
fuses the analysis.
16                MOORE v. UNITED STATES

               BARRETT, J., concurring in judgment

Due Process Clause cabins that power by requiring income
attributions not to be “arbitrary.” Ante, at 22–23. The ar-
bitrariness inquiry, the Court previews, turns on “the tax-
payer’s relationship to the underlying income.” Ante, at 14,
n. 4 (citing Burnet v. Wells, 

, 678–679 (1933)).
    I agree that the Constitution prohibits Congress from ar-
bitrarily attributing to the taxpayer someone else’s income.
Our cases have located that limit in the Due Process
Clause. See Burnet, 289 U. S., at 678–679; Hoeper v. Tax
Comm’n of Wis., 

 (1931) (“That which is
not in fact the taxpayer’s income cannot be made such by
calling it income”). But an arbitrariness limit is implicit in
the Sixteenth Amendment too. Virtually all property was
income at some point. Ford Motor Company uses its income
to buy steel for making trucks. But surely Congress cannot
attribute Ford’s earnings to anyone who owns an F–250.
The Amendment’s reference to “derived” income presup-
poses that the income belongs to the taxpayer, or is at least
fairly attributable to her. Otherwise the taxpayer’s prop-
erty (e.g., the truck she drives) could be taxed without ap-
portionment just because it was once somebody else’s in-
come (e.g., the earnings Ford used to purchase the steel).
    While an arbitrariness limit on income attribution surely
exists, its contours are uncertain. We have never before ap-
plied the arbitrariness test to a tax law that attributes a
corporation’s income to its shareholders. At oral argument,
the Government identified a series of factors that the Court
has considered in attribution cases involving license agree-
ments and trusts. See Tr. of Oral Arg. 119–123. One is
whether the taxpayer has “sufficient power and control over
. . . the income” that it is “reasonable to treat him as the
recipient of the income for tax purposes.” Commissioner v.
Sunnen, 

 (1948). Another is whether the
taxpayer receives a special “privilege or benefit” from the
entity that earns the income. Burnet, 

. A
third is whether the corporation is foreign and thus outside
                  Cite as: 

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               BARRETT, J., concurring in judgment

the reach of an accumulated earnings tax. Cf. Ivan Allen
Co., 

. These factors may serve as a useful
guide for lower courts when applying today’s decision to
taxes that attribute income from other types of corporations
to an individual taxpayer. Just because Congress can at-
tribute income of a closely held foreign corporation like
KisanKraft to its shareholders does not mean it has equal
power to attribute the income of a publicly traded domestic
corporation to anyone holding a few shares in her retire-
ment account.
                              C
   Congress’s power to attribute the income of closely held
corporations to their shareholders is a difficult question—
and unfortunately, the parties barely addressed it. Without
focused briefing on the attribution question, I would not re-
solve it. Subpart F and the MRT may or may not be consti-
tutional, nonarbitrary attributions of closely held foreign
corporations’ income to their shareholders. In this litiga-
tion, however, the Moores have conceded that subpart F is
constitutional. Tr. of Oral Arg. 9. And I agree with the
Court that subpart F is not meaningfully different from the
MRT in how it attributes corporate income to shareholders.
Ante, at 20–21. Taxpayers generally bear the burden to
show they are entitled to a refund. United States v. Janis,

 (1976); see also Haaland v. Brackeen, 

, 277–278 (2023) (burden to show unconstitution-
ality). Given the Moores’ concession, they have not met that
burden here. For that reason, I concur in the Court’s judg-
ment affirming the judgment below.
                  Cite as: 

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                     THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 22–800
                          _________________


      CHARLES G. MOORE, ET UX., PETITIONERS
               v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT
                         [June 20, 2024]

  JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
dissenting.
  Charles and Kathleen Moore paid $14,729 in taxes on an
investment that never yielded them a penny. They chal-
lenge that tax—the Mandatory Repatriation Tax (MRT)—
as unconstitutional. As relevant, they argue that a tax on
unrealized investment gains is not a tax on “incomes”
within the meaning of the Sixteenth Amendment, and it
therefore cannot be imposed “without apportionment
among the several States.”
  The Moores are correct. Sixteenth Amendment “incomes”
include only income realized by the taxpayer. The text and
history of the Amendment make clear that it requires a dis-
tinction between “income” and the “source” from which that
income is “derived.” And, the only way to draw such a dis-
tinction is with a realization requirement. Our precedent
says as much. In Eisner v. Macomber, 

 (1920),
the Court explained that “the characteristic and distin-
guishing attribute of income,” as the term is used in the
Sixteenth Amendment, is that it is “received or drawn by
the recipient (the taxpayer) for his separate use, benefit and
disposal.” 

. Because the Moores never actually
received any of their investment gains, those unrealized
gains could not be taxed as “income” under the Sixteenth
Amendment.
2                MOORE v. UNITED STATES

                    THOMAS, J., dissenting

   The Ninth Circuit wrongly rejected the Moores’ challenge
on the ground that “realization of income is not a constitu-
tional requirement.” 

 (2022). That con-
clusion cannot be reconciled with the Sixteenth Amend-
ment as the Court correctly interpreted it in Macomber. We
therefore granted certiorari to answer the question
“[w]hether the Sixteenth Amendment authorizes Congress
to tax unrealized sums without apportionment among the
states,” i.e., as “incomes.” Pet. for Cert. i.
   Today, the Court upholds the MRT only by ignoring the
question presented. It does “not address the Government’s
argument that a gain need not be realized to constitute in-
come under the Constitution.” Ante, at 12–13, n. 3. In-
stead, the Court answers the question “whether Congress
may attribute an entity’s realized and undistributed income
to the entity’s shareholders or partners, and then tax the
shareholders or partners on their portions of that income.”
Ante, at 8. After changing the subject, the majority upholds
the MRT by relying on unrelated precedent to derive a
“clear rule” that “Congress can attribute the undistributed
income of an entity to the entity’s shareholders or part-
ners.” Ante, at 10–11.
   I respectfully dissent. The Ninth Circuit erred by con-
cluding that realization is not a constitutional requirement
for income taxes. And, the majority’s “attribution” doctrine
is an unsupported invention.
                                I
   The Sixteenth Amendment provides: “The Congress shall
have power to lay and collect taxes on incomes, from what-
ever source derived, without apportionment among the sev-
eral States, and without regard to any census or enumera-
tion.” The central dispute in this case—at least, in the case
briefed by the parties—concerns the meaning of the word
“incomes” in the Amendment. The Moores define “income”
as “ ‘a gain, a profit, [or] something of exchangeable value’
                  Cite as: 

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                     THOMAS, J., dissenting

[that] is ‘received or drawn by the recipient (the taxpayer)
for his separate use, benefit and disposal.’ ” Brief for Peti-
tioners 1 (quoting Macomber, 

). This
idea—that “income” is only something actually available for
the taxpayer’s use—is known as “realization.” The Govern-
ment rejects the realization requirement, arguing instead
that “income” captures “all economic gains” whether or not
they are actually realized. Brief for United States 14 (in-
ternal quotation marks omitted).
   “Income” in the Sixteenth Amendment refers only to in-
come realized by the taxpayer. The Amendment resolved a
long-running conflict over the scope of the Federal Govern-
ment’s taxing power. It paved the way for a federal income
tax by creating a new constitutional distinction between
“income” and the “source” from which that income is “de-
rived.” Drawing that distinction necessitates a realization
requirement.
                              A
   To understand the text of the Sixteenth Amendment—
and, in particular, the meaning of the word “income”—one
must first understand how the Amendment came about.
The Constitution’s original taxing provisions divided taxes
into two classes: direct and indirect taxes. And, as part of
a delicate constitutional compromise, the original taxing
provisions required direct taxes to be apportioned among
the States based on population. Disputes about the scope
of the direct-tax category came to a head in Pollock v. Farm-
ers’ Loan & Trust Co., 

 (1895), when this Court
held that many income taxes were direct taxes subject to
the apportionment requirement. In reaching this conclu-
sion, the Court held that income could not be distinguished
from its source for purposes of classifying an income tax as
direct or indirect. The Sixteenth Amendment was ratified
to overrule that holding from Pollock, and it can therefore
4                   MOORE v. UNITED STATES

                       THOMAS, J., dissenting

be understood only in the context of Pollock and the preced-
ing history.
                               1
   The Sixteenth Amendment modified the Constitution’s
original regulations of Congress’s taxing power. The text of
those provisions is therefore the natural starting point for
interpreting the Sixteenth Amendment. The Taxing Clause
provides Congress with broad authority to impose taxes.
Other Clauses, including the Direct Tax Clause, classify dif-
ferent kinds of taxes and set corresponding limitations on
Congress’s power to impose them. The Sixteenth Amend-
ment alters those rules by making clear that taxes on in-
come are not subject to the limitations imposed on direct
taxes.
   The Constitution gives Congress the power to impose
“Taxes” of any kind, including income taxes. The Taxing
Clause provides that “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.” Art. I, §8,
cl. 1. This Clause is the sole source of Congress’s authority
to impose taxes. And, that authority is broad. Nothing in
the Constitution limits the kinds of taxes that Congress
may impose. As the Court has explained, “the authority
conferred upon Congress by” the Taxing Clause “is exhaus-
tive and embraces every conceivable power of taxation.”
Brushaber v. Union Pacific R. Co., 

 (1916).
   But, the Constitution restricts the manner in which Con-
gress may impose taxes. It accomplishes this by dividing
taxes into two classes—direct and indirect taxes—and im-
posing a distinct limitation applicable to each of those clas-
ses.1

——————
 1 The General Welfare Clause—quoted alongside the rest of the Taxing
                      Cite as: 

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                          THOMAS, J., dissenting

  Start with the class of direct taxes. The Direct Tax
Clause provides: “No Capitation, or other direct, Tax shall
be laid, unless in Proportion to the Census or Enumeration
herein before directed to be taken.” Art. I, §9, cl. 4. The
Constitution does not expressly identify any tax as direct
other than a “Capitation.” A “capitation”—also called a
“poll tax”—is “[a] fixed tax levied on each person within a
jurisdiction.” Black’s Law Dictionary 1760 (11th ed. 2019)
(defining “tax”). At the founding, the class of direct taxes
was also understood to include taxes on real property, and
perhaps taxes on personal property. See infra, at 14–15.
  Indirect taxes, on the other hand, include “Duties, Im-
posts and Excises.” Art. I, §8, cl. 1. These were taxes that
people could avoid by adjusting their behavior—generally,
taxes on articles of consumption. See The Federalist
No. 21, p. 116 (E. Scott ed. 1898) (A. Hamilton). “Indirect
taxes” are not identified by that name in the Constitution.
But, the Constitution’s delineation of a direct-tax category
signals the existence of a complementary indirect-tax cate-
gory.
  For each class of taxes, the Constitution limits Congress’s
power with a distinct rule. Direct taxes are subject to the
rule of apportionment. The Constitution twice specifies
that “direct Taxes shall be apportioned among the several
States . . . according to their respective Numbers.”2 Art. I,
§2, cl. 3; see also §9, cl. 4. A tax is apportioned among the
States if “each State pays in proportion to its population.”
National Federation of Independent Business v. Sebelius,

——————
Clause above—is also an important “qualification on the substantive tax-
ing power.” Health and Hospital Corporation of Marion Cty. v. Talevski,

 (2023) (THOMAS, J., dissenting). But, because this case
does not implicate that limitation, I do not further explore the General
Welfare Clause.
   2 Those “Numbers,” were originally “determined by adding to the whole

Number of free Persons . . . three fifths of all other Persons.” Art. I, §2,
cl. 3; but see Amdt. 14, §2.
6                     MOORE v. UNITED STATES

                          THOMAS, J., dissenting

 (2012). An example best demonstrates
what apportionment requires. Suppose that Congress im-
posed a direct tax on houses, and apportioned the tax such
that two States of equal population were both responsible
for paying $100 in taxes. If the first State contained 100
houses and the second State only 10, houses in the first
State would be taxed at $1 each ($100 divided by 100
houses), whereas houses in the second State would be taxed
at $10 each ($100 divided by 10 houses).
   Indirect taxes are subject to the rule of uniformity: “[A]ll
Duties, Imposts and Excises shall be uniform throughout
the United States.” Art. I, §8, cl. 1. The Court has ex-
plained that “the words ‘uniform throughout the United
States’ . . . signify . . . a geographical uniformity.” Knowlton
v. Moore, 

 (1900). In other words, a “tax is
uniform when it operates with the same force and effect in
every place where the subject of it is found.” Head Money
Cases, 

 (1884). So, a duty on the impor-
tation of tea must impose the same rate on imports coming
through Boston as those coming through Savannah.3
   The Sixteenth Amendment, on its face, narrows the scope
of the apportionment requirement. While direct taxes must
be apportioned, the Sixteenth Amendment allows Congress


——————
   3 For the sake of completeness, three remaining taxing provisions in

the Constitution of 1789 bear mentioning. First, “a Tax or duty may be
imposed” on the “Importation of such Persons as any of the States now
existing shall think proper to admit”—i.e., upon the foreign slave trade—
“not exceeding ten dollars for each Person.” Art. I, §9, cl. 1. Second, “[n]o
Tax or Duty shall be laid on Articles exported from any State.” Cl. 5.
And third, “[n]o State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports” (with limited exceptions). §10,
cl. 2. Together, these provisions define the limits of state and federal
taxing power with respect to foreign and interstate commerce. I mention
them below only in passing. But, like the division between direct and
indirect taxes, these provisions reflect the delicate balance that the Con-
stitution struck regarding the scope of the federal taxing power.
                  Cite as: 

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                     THOMAS, J., dissenting

to tax incomes “without apportionment.” But, it did not re-
move the Direct Tax Clause or the apportionment require-
ment from the Constitution entirely. To appreciate the ex-
tent of the change, and its implications for the meaning of
the word “incomes,” it is necessary to examine the origins
of the Direct Tax Clause and how disputes about the
Clause’s scope led to the Sixteenth Amendment.
                               2
   The Direct Tax Clause was a critical aspect of the balance
between state and federal power in the original design of
the Constitution. It is easy today to take the federal taxing
power for granted. But, at the founding, allowing the Na-
tional Government to exercise such a power was a radical
proposal. The importance of the limitations imposed by the
Direct Tax Clause to the compromise struck by the Consti-
tution has significant implications for the meaning of “in-
comes” in the Sixteenth Amendment.
   The American colonial experience inspired widespread
distrust of taxation. See, e.g., Declaration of Independence
¶19. The Articles of Confederation reflected that distrust.
Under the Articles, the entire taxing power was exclusive
to the States. The National Government had no power to
impose taxes of any kind. The only revenue for the National
Government was funds “supplied by the several States”
pursuant to requisitions “in proportion to the value of all
land within each State.” Articles of Confederation, Art. 8.
And, the taxes for paying those requisitions were imposed
solely by the States themselves.
   The requisition system showed immediate signs of inad-
equacy. Raising funds through requisitions was often inef-
fective because States felt little urgency to pay their obliga-
tions. See Federalist No. 30, at 160 (A. Hamilton)
(explaining that requisitions were formally “obligatory
upon the States,” but that “in practice” the right to disre-
gard them was “constantly exercised”). And, the financial
8                    MOORE v. UNITED STATES

                         THOMAS, J., dissenting

strain placed on the National Government by the Revolu-
tionary War made that inefficiency an existential threat to
the fledgling Nation.
   The Continental Congress quickly concluded that financ-
ing the war effort would require another source of revenue
for the National Government. “[T]o establish the national
credit,” the Congress’s finance Committee reported in De-
cember 1780, “it will be necessary” for the States to “vest[t]
in Congress” “[t]he exclusive right to duties arising on cer-
tain imported articles.” 18 Journals of the Continental Con-
gress 1774–1789, p. 1157 (G. Hunt ed. 1910). The Congress
therefore proposed the Impost of 1781, “recommend[ing] to
the several states, as indispensably necessary, that they . . .
vest a power in Congress, to levy for the use of the United
States, a duty of five per cent.” on most imports. 19 Jour-
nals of the Continental Congress 112 (1912) (footnote omit-
ted). The President of the Continental Congress transmit-
ted the proposal to the States on February 8, 1781, under a
cover letter stressing the “precarious Manner” in which
Congress had to fund the Army under the requisition sys-
tem. 5 Letters of Members of the Continental Congress 564
(E. Burnett ed. 1931).
   Every State but Rhode Island approved the Impost of
1781. See 1 Documentary History of the Ratification of the
Constitution 63 (M. Jensen ed. 1976) (Documentary His-
tory). But, because the Articles of Confederation required
amendments like the impost to be approved unanimously,
Rhode Island’s refusal defeated the amendment. Articles of
Confederation, Art. 13; see also 23 Journals of the Conti-
nental Congress 783–784 (1914). In a letter to the Confed-
eration Congress,4 the Rhode Island Legislature explained
that it rejected the impost “[b]ecause it would be unequal in

——————
  4 After the ratification of the Articles of Confederation in March 1781,

the Continental Congress became the Confederation Congress. See 1
Documentary History 136.
                  Cite as: 

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                     THOMAS, J., dissenting

its operation, bearing hardest on the most commercial
states,” including Rhode Island. Id., at 788. One State’s
jealousy of its lucrative tax base prevented the reform of the
Articles’ flawed requisition system.
   A year later, the Confederation Congress again proposed
a national taxing power with the Impost of 1783. The pro-
posal languished for years, and then failed after New York
refused its consent in February 1787. See 1 Documentary
History 190, n. 3. As the second impost awaited its slow
death, the Confederation Congress issued a dire warning
about the financial condition of the National Government
in February 1786. See 30 Journals of the Continental Con-
gress 70, 75 (J. Fitzpatrick ed. 1934). Faced with mounting
threats to the security of the country, and requisitions that
had become “so irregular in their operation” as to be “dan-
gerous to the welfare and peace of the Union,” Congress as-
serted “that the crisis has arrived” when the people of the
United States must decide whether, “for want of a timely
exertion in establishing a general revenue,” they will risk
both the existence of the Union and the liberty that they
won in the Revolution. Id., at 72, 75.
   The practical impossibility of reforming the Articles to in-
clude a national taxing power was among the primary rea-
sons for the Constitutional Convention of 1787. John Ad-
ams later reflected as Vice President: “The opposition of
Rhode Island to the impost seems to have been the instru-
ment which providence thought fit to use for the great pur-
pose of establishing the present constitution.” 26 Documen-
tary History 743 (J. Kaminski et al. eds. 2013). In February
1787, the Continental Congress endorsed the call for a con-
vention of delegates in Philadelphia. See 32 Journals of the
Continental Congress 74 (R. Hill ed. 1936). Virginia had
been the first State to answer that call, and in appointing
delegates, made prominent reference to the Confederation
Congress’s “alarming representations” about the poor state
10               MOORE v. UNITED STATES

                    THOMAS, J., dissenting

of public finance. 1 Documentary History 196–198 (discuss-
ing Congress’s warning of February 1786). The Virginia
delegation likewise emphasized the “inefficiency of requisi-
tions” when it opened the proceedings at the Convention. 1
Records of the Federal Convention of 1787, pp. 18–19 (M.
Farrand ed. 1911) (Farrand’s Records).
   The possibility of a federal taxing power was highly con-
troversial at the Constitutional Convention, despite wide-
spread acknowledgment of the need to reform public fi-
nance. The Virginia plan—a broad outline that was
selected as the basis for the new Government—did not go
so far as to include a federal taxing power. The Virginia
delegation apparently considered it less controversial to
open the Convention with a proposal that gave the Federal
Government the ability to enforce requisitions against the
States by military force. Id., at 21. The New Jersey plan,
by contrast, did include federal taxing powers. Id., at 243.
Reason prevailed, and the Convention judged it more pru-
dent to risk a federal taxing power than the extraction of
federal revenue by the use of military force against the
States. See id., at 54 (“[Madison] observed that the more
he reflected on the use of force [against delinquent States],
the more he doubted the practicability, the justice and the
efficacy of it”). The Convention proposed the Constitution
with its taxing provisions as described above; they would be
ratified unchanged. See 2 id., at 590, 594, 596; supra, at 4–
6.
   Unsurprisingly, the proposed creation of a federal taxing
power provoked many of the most passionate criticisms by
opponents of ratification. The Antifederalists warned that
a federal taxing power would destroy the state govern-
ments. Brutus wrote that the central question presented
by ratification was “whether the thirteen United States
should be reduced to one great republic . . . or whether they
should continue thirteen confederated republics.” Brutus
No. 1 (Oct. 18, 1787), in 2 The Complete Anti-Federalist 364
                  Cite as: 

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                     THOMAS, J., dissenting

(H. Storing ed. 1981). In support of his dramatic thesis,
Brutus asserted that “the individual states must very soon
be annihilated,” in part by the federal taxing power. Id., at
365.
   The destructive force of the federal taxing power, as Bru-
tus explained it, arose from the fact that it forced the States
to compete with the Federal Government for a tax base. Be-
cause the Constitution prevented the States from emitting
paper money and laying duties or imposts, “[t]he only mean
therefore left, for any State to support its government and
discharge its debts, is by direct taxation.” Id., at 366. But,
even the ability to resort to direct taxes would be fruitless,
because the power of direct taxation was shared with the
Federal Government. Ibid. Brutus thus argued that once
the Federal Government “begins to exercise the right of tax-
ation in all its parts, the legislatures of the several states
will find it impossible to raise monies to support their gov-
ernments” and then “dwindle away.” Ibid. Other Antifed-
eralists sounded the same theme at the state ratifying con-
ventions. See, e.g., 3 Debates on the Constitution 29 (J.
Elliot ed. 1836) (Elliot’s Debates) (George Mason arguing in
Virginia that the “two concurrent powers” of the State and
Federal Governments to impose taxes directly upon the
people “cannot exist long together”).
   The Federalists’ defense of the new national taxing power
stressed that the Federal Government would impose direct
taxes only sparingly, as needed to supplement the revenue
from imposts in emergencies. Madison explained that
“[w]hen . . . direct taxes are not necessary, they will not be
recurred to. It can be of little advantage to those in power
to raise money in a manner oppressive to the people.” Id.,
at 95. And, Federalists highlighted the protection provided
by the rule of apportionment. Hamilton explained that di-
rect taxes “never can oppress a particular state by an une-
qual imposition; because the Constitution has provided a
12                   MOORE v. UNITED STATES

                         THOMAS, J., dissenting

fixed ratio, a uniform rule, by which this must be regu-
lated.” 2 id., at 365. Madison argued that because repre-
sentation and direct taxation were apportioned by the same
formula, unjust taxes could not feasibly be imposed; those
responsible for paying direct taxes are correspondingly able
to defeat their imposition. See 3 id., at 256–257.5
   With the Constitution’s ratification, the requisition sys-
tem was replaced by a system that gave the Federal Gov-
ernment the taxing power it had lacked under the Articles
of Confederation. That increase in power came at the ex-
pense of the States. The States gave up the power to tax
interstate and foreign commerce, which was expected to be
the main source of federal revenue. They did retain the
power of direct taxation, but had to share it with the Fed-
eral Government—an arrangement that motivated signifi-
cant opposition to the new Constitution. The limitations on
the Federal Government’s ability to exercise that concur-
rent power were thus an essential component of the consti-
tutional compromise.
                              3
  Postratification disagreement about what qualified as a
“direct tax” would eventually lead to the adoption of the Six-
teenth Amendment. Even though the distinction between
direct and indirect taxes was an important component of

——————
   5 Several state ratifying conventions proposed amendments to

strengthen the protection provided by the Direct Tax Clause. For exam-
ple, the Massachusetts ratifying convention proposed that the Constitu-
tion be modified to allow direct taxes only “when the moneys arising from
the impost and excise are insufficient for the public exigencies,” and even
then only after Congress first attempted to obtain such funds through
requisitions. 1 Elliot’s Debates 322–323. The ratifying conventions of
South Carolina, New Hampshire, New York, and Rhode Island concurred
in the proposed amendment. Id., at 325, 326, 329, 336. Although those
proposals never became part of the Constitution, they demonstrate the
importance that many ratifying States placed upon limitations to Con-
gress’s power to lay direct taxes.
                      Cite as: 

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                         THOMAS, J., dissenting

the founding compromise, it was not entirely clear how to
distinguish between the two classes of taxes. The scope of
the “direct tax” category proved immediately controversial.
And, that controversy eventually came to bear on the ques-
tion of income taxation, with the Court initially concluding
that the Direct Tax Clause was not a barrier to taxing in-
comes.
   As the Constitution’s text made clear, a “Capitation” was
“direct.” Art. I, §9, cl. 3. And, all agreed that taxes on land
and slaves were considered direct. See 3 Elliot’s Debates
229. But, beyond that, the precise boundary between direct
and indirect taxes was debatable. An exchange at the Con-
stitutional Convention preserved in Madison’s notes is of-
ten cited on the subject: “Mr King asked what was the pre-
cise meaning of direct taxation? No one answd.” 2
Farrand’s Records 350.
   This Court grappled with the question in a significant
case decided soon after ratification. In 1794, the Third Con-
gress passed “An Act laying duties upon Carriages for the
conveyance of Persons.” Act of June 5, 1794, ch. 45, 

. The tax was not apportioned among the States. Some
opposed the tax on the theory that a tax on personal prop-
erty, such as carriages, was a direct tax that required ap-
portionment.6
   When Daniel Hylton failed to pay the tax on his 125 car-
riages, the United States brought a suit against him, and
the case soon found its way to the Supreme Court. Hylton
v. United States, 

, 171–172 (1796) (Hylton’s
Case). “The argument turned entirely upon . . . whether the
tax . . . was a direct tax.” 

. The four Justices who
——————
   6 James Madison, for example, despaired about the unconstitutionality

of the tax in a letter to Thomas Jefferson. See 15 Papers of James Mad-
ison 327 (T. Mason, R. Rutland, & J. Sisson eds. 1985) (“And the tax on
carriages succeeded in spite of the Constitution . . . . By breaking down
the barriers of the constitution . . . wealth may find a precarious defence
in the shield of justice”).
14                MOORE v. UNITED STATES

                      THOMAS, J., dissenting

sat for the case each agreed that the tax was constitutional,
and the three who offered reasons suggested that “direct”
taxes were limited to capitation and land taxes. But, they
did so with some caution.
   Justice Chase was “inclined to think, but [did] 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.” 

. He
“doubt[ed] whether a tax, by a general assessment of per-
sonal property, . . . is included within the term direct tax.”

 Justice Paterson observed that “[w]hether direct
taxes, in the sense of the Constitution, comprehend any
other tax than a capitation tax, and tax on land, is a ques-
tionable point.” 

. Justice Iredell opined that
“[p]erhaps a direct tax in the sense of the Constitution, can
mean nothing but a tax on something inseparably annexed
to the soil . . . . A land or poll tax may be considered of this
description.” 

.
   Additional disputes over what constituted direct taxation
arose when the Government resorted to new forms of taxa-
tion to finance the Civil War. In several cases decided
shortly after the war, the Court relied on Hylton’s Case to
conclude that new taxes were indirect. First, the Court rea-
soned that “[i]f a tax upon carriages, kept for his own use
by the owner, [was] not a direct tax,” then “a tax upon the
business of an insurance company” was not a direct tax. Pa-
cific Ins. Co. v. Soule, 

 (1869). Next, the
Court concluded that a tax on the circulation of bank notes
was also indirect, but it surveyed ratification-era sources to
hint at a slightly more expansive definition of direct taxes.
Veazie Bank v. Fenno, 

 (1869) (“direct taxes
were such as may be levied by capitation, and on lands and
appurtenances; or, perhaps, by valuation and assessment of
personal property upon general lists”). Finally, the Court
concluded that a tax on the devolution of title to real estate
                      Cite as: 

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                          THOMAS, J., dissenting

was indirect, acknowledging that “it never ha[d] been de-
cided” whether any taxes besides “[t]axes on lands . . . and
capitation taxes” were “direct taxes.” Scholey v. Rew, 

 (1875).
   The Civil War also prompted Congress to enact the Na-
tion’s first-ever federal income tax. In 1861, Congress im-
posed a tax of three percent “upon the annual income of
every person residing in the United States, whether such
income is derived from any kind of property, or from any
profession, . . . or from any other source whatever,” to the
extent that income exceeded $800. §49, 

. Over
the course of the Civil War, the income tax was paid by as
many as 1 in 10 Union households and accounted for about
a fifth of federal revenues. S. Weisman, The Great Tax
Wars 101–102 (2002) (Weisman). The tax remained in
force, with modifications, until it expired in 1871. §6, 

.
   The Court did not consider the constitutionality of the
Civil War income tax until a decade after its expiration, in
Springer v. United States, 

 (1881). The “main
question” was whether the tax was an unapportioned direct
tax that violated the Direct Tax Clause. 

. The
Court held that the income tax was not a direct tax. Relying
heavily on Hylton’s Case, the Court reasoned “that direct
taxes, within the meaning of the Constitution, are only cap-
itation taxes . . . and taxes on real estate.” 

.
Accordingly, the income tax at issue was “within the cate-
gory of an excise or duty.” Ibid.7

——————
   7 In the case before us, the Government relies heavily on another case

involving the Civil War income tax, Collector v. Hubbard, 

(1871). According to the Government, Hubbard “upheld [Congress’s]
power to” impose “taxes on undistributed corporate earnings” as “income
taxes,” a result that subsequent decisions “temporarily undermined” un-
til “the Sixteenth Amendment . . . reinstat[ed]” it. Brief for United States
9. But, Hubbard is of virtually no relevance to the Sixteenth Amend-
ment. Contrary to the Government’s assertions, the taxpayer in Hub-
16                   MOORE v. UNITED STATES

                         THOMAS, J., dissenting

   In summary, after disputes over the scope of the Direct
Tax Clause between the founding and the expiration of the
Civil War income tax, the Court apparently concluded that
direct taxes were limited to poll taxes and taxes on land.

 But, the Court expressed some doubt as to the proper
classification of taxes “levied by . . . valuation and assess-
ment of personal property.” Veazie Bank, 

.
Based on that narrow reading of the Direct Tax Clause, the
Court upheld the Civil War income tax against a constitu-
tional challenge. But, the long-running skirmishes about
direct taxation would soon come to a dramatic climax fol-
lowing the imposition of the first federal income tax in
peacetime.
                              4
  I next consider the single most important piece of context
for understanding the Sixteenth Amendment: Pollock v.
Farmers’ Loan & Trust Co., 

, the case that the
Amendment overruled. In Pollock, the Court concluded, for
the first time, that a tax was direct, not apportioned, and
therefore unconstitutional. The Court’s reasoning turned
on the premise that the Constitution permits no distinction
between taxing income and taxing the source from which
that income is derived. The holding of Pollock thus meant
that most income taxes would have to be apportioned, a re-
quirement that made them politically unpalatable. See su-
pra, at 6 (describing possible state-by-state variations in
rates for apportioned taxes). Because the Sixteenth

——————
bard made a statutory argument about the meaning of the word “enti-
tled,” not any argument about the scope of Congress’s power. See Brief
for Respondent in Collector v. Hubbard, O. T. 1870, No. 122, p. 4. Nor
did Hubbard uphold the tax as an income tax. Instead, it interpreted the
statute as a tax on a shareholder’s property rights in undistributed prof-
its. 

. Because the taxpayer did not bring a constitutional
challenge based on the Direct Tax Clause, the Court had no occasion to
consider the potential implications of treating the tax as a property tax.
                  Cite as: 

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                     THOMAS, J., dissenting

Amendment overruled the result in Pollock, an accurate un-
derstanding of the case is essential to understanding the
Amendment.
  Congress imposed the Nation’s first peacetime income tax
as part of the Revenue Act of 1894. The Act paired a new
tax on the incomes of the wealthiest two percent of Ameri-
cans with tariff cuts that would benefit less wealthy con-
sumers. See Weisman 132–133, 145. The income-tax com-
ponent of the Act provided:
      “That [from 1895 until 1900] there shall be assessed,
    levied, collected, and paid annually upon the gains,
    profits, and income received in the preceding calendar
    year by [citizens and resident aliens], whether said
    gains, profits, or income be derived from any kind of
    property, rents, interest, dividends, or salaries, or from
    any profession, trade, employment, or vocation . . . , or
    from any other source whatever, a tax of two per cen-
    tum on the amount so derived over and above four
    thousand dollars.” §27, 

.
The income tax was not apportioned among the States by
population.
  In Pollock v. Farmers’ Loan & Trust Co., 

(1895), the Court considered whether the 1894 income tax
was a direct tax that failed to satisfy the Direct Tax
Clause’s apportionment requirement. The taxpayer argued
that portions of the tax were direct because “imposing a tax
on the income or rents of real estate, imposes a tax upon the
real estate itself.” 

. And, taking the position that
taxes on personal property are also direct taxes, the tax-
payer argued that “imposing a tax on the . . . income of
bonds or other personal property . . . imposes a tax on the
personal estate itself.” 

  The Court endeavored to determine what “were recog-
nized as direct taxes” “at the time the Constitution was
framed and adopted.” 

. The Court considered
18                 MOORE v. UNITED STATES

                       THOMAS, J., dissenting

historical context, the records of the Constitutional Conven-
tion, the Federalist Papers, other documents from the rati-
fication debates, the 1794 carriage tax, and Hylton’s Case.
157 U. S., at 558–568, 570–572. The Court concluded that
“all taxes on real estate or personal property or the rents or
income thereof were regarded as direct taxes” at the time
the Constitution was ratified. 

 at 573–574. After reach-
ing a conclusion about the original meaning of the Consti-
tution, the Court surveyed its precedents and observed that
“in none of them is it determined that taxes on rents or in-
come derived from land are not taxes on land,” and that
“none . . . discussed the question whether a tax on the in-
come from personalty is equivalent to a tax on that person-
alty.” 

. The Court had some difficulty explaining
Springer, which stated that direct taxes are limited to cap-
itation and land taxes and concluded that a tax on income
was an indirect tax. See supra, at 15. But, the Court re-
turned to “[t]he original record” in Springer to review the
sources of the taxpayer’s income, and it distinguished the
case on that ground. 157 U. S., at 578–579.
   In the end, the Court concluded that income could not be
distinguished from the source from which it was derived for
purposes of determining whether a tax on that income
would be direct or indirect. It was “unable to perceive any
ground” “upon which to rest the contention that real estate
belongs to one of the two great classes of taxes,” i.e., the direct-
tax class, “and the rent or income which is the incident of
its ownership belongs to the other,” i.e., the indirect-tax
class. Id., at 581. It grounded that conclusion in the fact
that the Direct Tax Clause was a federalism provision at
the heart of the constitutional compromise: “If, by calling a
tax indirect when it is essentially direct, the rule of protec-
tion could be frittered away, one of the great landmarks de-
fining 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.”
                  Cite as: 

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                     THOMAS, J., dissenting

Id., at 583.
   The Court held that the Act was unconstitutional in part,
“so far as it levies a tax on the rents or income of real es-
tate.” Ibid. But, the Justices divided evenly on the question
whether the tax was unconstitutional “as to the income
from personal property.” Id., at 586. The case was there-
fore scheduled for rehearing.
   After rehearing, the Court extended its logic and held
that a tax on income derived from personal property—like
a tax on income derived from real property—was a direct
tax. 

. The Court offered a more thorough
explanation for why income could not be distinguished from
its source when classifying a tax. It began by observing that
the distinction between direct and indirect taxes was criti-
cal to our system of federalism. By ratifying the Constitu-
tion, the States “gave up the great sources of revenue de-
rived from commerce” and “retained the power of direct
taxation,” but only concurrently with the Federal Govern-
ment. 

. Limitations on federal direct taxation
offered state governments a fiscal safe haven against ex-
panding federal authority, in recognition of the fact “that
the power to tax involved the power to destroy.” 

.
“[T]he qualified grant” of an apportioned direct-taxation
power built security into the “structure of the government
itself . . . by providing that direct taxation and representa-
tion in the lower house of Congress should be adjusted on
the same measure.” 

 at 621–622.
   The Court relied on those federalism principles to reject
the argument “that income is taxable irrespective of the
source from whence it is derived.” 

. It explained
that the Constitution—read “in its plain and obvious sense”
and in the context of “the circumstances attending the for-
mation of the government”—could not be understood to
treat income “as belonging to a totally different class” of
taxation than the class “which includes the property from
20               MOORE v. UNITED STATES

                    THOMAS, J., dissenting

whence the income proceeds.” 

 at 627–628. Such an in-
terpretation would leave the Direct Tax Clause “utterly il-
lusory and futile, and the object of its framers defeated.”

. The Court refused to allow the effect of the Di-
rect Tax Clause to be “refined away by forced distinctions
between” income and source. 

                               5
   The Sixteenth Amendment was designed to overrule Pol-
lock’s obstacle to an income tax, and it was understood by
the public in those terms. Pollock stood in some tension
with the Civil War tax cases, and it was not well received.
Critics likened it to Dred Scott v. Sandford, 

(1857), and the decision became a major issue in the 1896
Presidential election. Weisman 148. By the 1908 Presiden-
tial election, both major political parties supported finding
a way, Pollock notwithstanding, to impose an income tax.
See E. Seligman, The Income Tax 591–592 (2d ed. 1914).
   In 1909, President Taft pledged his support for an income-
tax amendment. In a widely published message to Con-
gress, he explained that “[t]he decision of the Supreme
Court” in Pollock “deprived the national government of a
power which” it “ought to have.” Taft Asks for Tax, Wash-
ington Post, June 17, 1909, p. 4. Taft therefore asked Con-
gress to “propose an amendment to the Constitution confer-
ring the power to levy an income tax upon the national
government without apportionment.” 

   Shortly after the President delivered his message, Sena-
tor Norris Brown of Nebraska proposed an income-tax
amendment providing: “The Congress shall have power to
lay and collect direct taxes on incomes without apportion-
ment among the several States according to population.” 44
Cong. Rec. 3377 (1909). The proposed amendment’s narrow
focus on an income tax was significant. After all, a consti-
tutional amendment could have easily eliminated Pollock’s
obstacle to income taxation by removing the Constitution’s
                      Cite as: 

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                          THOMAS, J., dissenting

direct-tax provisions wholesale.8
  A few weeks later, the proposed amendment emerged
from Committee in its modern form. It is not clear how the
original proposal’s reference to “direct taxes” was removed,
or how the phrase “from whatever source derived” was
added. See E. Jensen, The Taxing Power, the Sixteenth
Amendment, and the Meaning of “Incomes,” 33 Ariz. St.
L. J. 1057, 1116–1117 (2001). The Amendment was passed
by Congress on July 12, 1909. See 44 Cong. Rec. 4440. And,
the Secretary of State certified that the Amendment had
been ratified by the States on February 25, 1913. 

.
                              B
  With a full understanding of the context against which
the Sixteenth Amendment was ratified, two conclusions be-
come clear. First, because the Amendment abolished Pol-
lock’s rule that an income tax must be classified as direct or
indirect based on whether a tax on the source of that income
would be direct or indirect, the Amendment created a con-
stitutional distinction between income and its source. Sec-
ond, because Sixteenth Amendment “income” must be dis-
tinguished from its source, the Amendment includes a
realization requirement.
                                1
  I return, finally, to the text of the Sixteenth Amendment:
“The Congress shall have power to lay and collect taxes on

——————
  8 In fact, that possibility was suggested on the Senate floor as soon as

the proposed amendment was read. 44 Cong. Rec. 3377 (“[I]f the Senator
from Nebraska will change his amendment to the Constitution so as to
strike out” all references to direct taxes, “he will accomplish all that his
amendment proposes to accomplish and not make a constitutional
amendment for the enacting of a single act of legislation”). But, Senator
Brown responded that his “purpose [was] to confine it to income taxes
alone.” Ibid.
22                MOORE v. UNITED STATES

                      THOMAS, J., dissenting

incomes, from whatever source derived, without apportion-
ment among the several States, and without regard to any
census or enumeration.” Against the background of Pol-
lock, the “power to lay and collect taxes on incomes, from
whatever source derived, without apportionment” under
the Sixteenth Amendment has an obvious and narrow
meaning. The only thing the Amendment changed about
the Constitution was to abolish Pollock’s rule that an in-
come tax is a direct tax if a tax on the source of the income
would be a direct tax. The Sixteenth Amendment left eve-
rything else in place, including the federalism principles
bound up in the division between direct and indirect taxes.
    The Court was first asked to interpret the Sixteenth
Amendment in Brushaber v. Union Pacific Railroad Co.,

. A taxpayer raised an exhaustive set of “twenty-
one constitutional objections” to the first income tax under
the Sixteenth Amendment. 

. Recognizing that the
text of the Amendment could not be understood in a vac-
uum, the Court began with the text of the original taxing
provisions and the history of the disputes over direct taxes
from Hylton’s Case to Pollock. 240 U. S., at 12–17. I can
little improve on Brushaber’s explanation of the Sixteenth
Amendment.
    “[T]he whole purpose of the Amendment was to relieve all
income taxes . . . from apportionment [based on] a consider-
ation of the source whence the income was derived.” 

. Pollock stood for the rule that “whether a tax on income
[is] direct” must be determined based upon a consideration
of “the property from which the income [is] derived.” 

. It was by “the rule applied in the Pollock Case
. . . alone” that income “taxes were removed from the great
class of [indirect taxes] and were placed under the . . . direct
class.” 

. The Amendment did nothing more than
remove that rule. The result was “the prevention of the re-
sort to the sources from which a taxed income was derived
in order to . . . place [an income tax] in the class of direct
                 Cite as: 

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                    THOMAS, J., dissenting

taxes.” Ibid. But, other than that change, the Amendment
“was drawn with the object of maintaining the limitations
of the Constitution,” including Pollock’s holding that direct
taxes included “taxes levied directly on personal property
because of its ownership.” Ibid.
   The Sixteenth Amendment thus facilitated an income tax
by creating a new constitutional distinction between “in-
come” and its “source.” Under the Amendment, “from what-
ever source” income is “derived,” a tax on it is indirect and
therefore not subject to the rule of apportionment. But, as
to taxes on the sources of income, the restrictions imposed
by the division between direct and indirect taxes continued
to apply with full force. And, taxes on property continued
to be classified as direct taxes.
                               2
   Because the Sixteenth Amendment requires a way to dis-
tinguish between income and source, it includes a realiza-
tion requirement. The text of the Amendment incorporates
such a requirement, and the concept of realization was well
understood at the time of ratification. The Constitution
thus limits unapportioned income taxes to taxes on realized
income.
   The word “income” in the Sixteenth Amendment must be
interpreted in light of the Amendment’s distinction be-
tween income and source. As the Court appreciated in Eis-
ner v. Macomber, failure to understand “income” in this way
leads to an interpretation of the Sixteenth Amendment that
mistakenly displaces aspects of the original taxing provi-
sions that the Amendment left in place: “In order, therefore,
that the clauses cited from Article I of the Constitution may
have proper force and effect, save only as modified by the
Amendment, and that the latter also may have proper ef-
fect, it becomes essential to distinguish between what is
and what is not ‘income.’ ” 

.
   Without an understanding of “income” that distinguishes
24                MOORE v. UNITED STATES

                     THOMAS, J., dissenting

it from “source,” the Sixteenth Amendment undermines the
restriction imposed by the Direct Tax Clause. The Govern-
ment asserts that the Sixteenth Amendment uses “ ‘income’
. . . to refer to all economic gains.” Brief for United States
14 (some internal quotation marks omitted). That under-
standing of “income” would allow taxes on real and personal
property without apportionment. To be sure, most of the
Government’s arguments focus on “taxes on individuals’ pro
rata shares of undistributed corporate earnings.” Id., at 13.
But, the Government is not shy about the fact that its defi-
nition of income includes things such as “increase in the
value of a corporation’s capital assets,” “increase in the
value of unsold property,” and “appreciation in the value of
securities.” Id., at 16 (alterations and internal quotation
marks omitted). Those increases are “income” in a purely
economic sense, but not in a sense that meaningfully dis-
tinguishes between “income” and the “source” from which it
is “derived.” A tax on each, whether it be an increase in
assets, unsold property, or securities, would be a tax on the
value of real estate or property, and should therefore re-
quire apportionment under the Direct Tax Clause.
    The text of the Sixteenth Amendment points to the con-
cept of realization, as the Court explained that concept in
Macomber. The Amendment is clear that the word “income”
refers to something that is “derived.” Dictionaries at the
time of ratification defined “derive” as “[t]o receive, as from
a source or origin” and “to draw.” Webster’s New Interna-
tional Dictionary 601 (1913) (Webster’s). And, that sense of
“derived” maps neatly onto Macomber’s realization-focused
definition of “income” as being “received or drawn by the re-
cipient (the taxpayer) for his separate use.” 

.
    In fact, the idea of realization as the distinction between
income and source long predates both Macomber and the
Sixteenth Amendment. As the Government acknowledges,
“the concept” of “realization . . . was well established when
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                     THOMAS, J., dissenting

the Amendment was adopted.” Brief for United States 15.
The term “realized” appeared in several Civil War income
tax provisions. Id., at 16 (citing §116, 

; §7, 16
Stat. 257–258). And, contemporaneous “[d]ictionaries de-
fined ‘realize’ as ‘to convert any kind of property into
money.’ ” Brief for United States 15–16 (quoting Webster’s
1778, and citing Black’s Law Dictionary 993 (2d ed. 1910);
alteration omitted). The Government argues that the deci-
sion to omit the often-used word “realized” from the Six-
teenth Amendment is significant evidence that the Amend-
ment does not require realization. See Brief for United
States 16. But, the choice to instead use the near-synonym
“derived” merely reflects the repeated use of the word “de-
rive” to describe the relationship of income to its source in
Pollock, to which the Sixteenth Amendment was a direct
response. See 

.
   The metaphor that the Court famously used in Macomber
also shows the deep roots of the realization concept. To il-
lustrate the “fundamental relation of ‘capital’ to ‘income,’ ”
Macomber compared “the former . . . to the tree or the land,
[and] the latter to the fruit or crop.” 

. That
understanding of income as being something “severed from”
its source predated the Sixteenth Amendment. In a well-
cited case from 1878, the Georgia Supreme Court relied on
a tree-and-fruit analogy in a tax case to explain the differ-
ence between income and property: “The fact is, property is
a tree; income is the fruit.” Waring v. Mayor and Aldermen
of Savannah, 

 (1878); see also Black’s Law
Dictionary, at 612 (defining “income” (citing Waring, 

)).
   The text of the Sixteenth Amendment, read against the
background of its adoption, confirms that the “incomes”
that the Sixteenth Amendment allows Congress to tax
without apportionment are only realized incomes. We
granted certiorari in this case to answer whether Congress
may “tax unrealized sums without apportionment among
26                MOORE v. UNITED STATES

                     THOMAS, J., dissenting

the states.” Pet. for Cert. i. As the Sixteenth Amendment
makes clear, the answer to that question is a resounding
“no.” The Court errs today by failing to correct the Ninth
Circuit’s contrary understanding.
                          *     *     *
  It is imperative to give the original taxing provisions in
Article I their proper effect. Those provisions reflect a del-
icate compromise under which the founding generation took
the great risk of ceding much of the States’ exclusive taxing
authority to the Federal Government. Supra, at 7–12.
Without that compromise, the Constitution could easily
have been rejected. To be sure, the States slightly altered
the original agreement by ratifying the Sixteenth Amend-
ment. But, a constitutional amendment does not affect our
duty of fidelity to the aspects of the original agreement that
remain in place—including the Direct Tax Clause. If a writ-
ten constitution is to mean anything, the compromises it
records must bind us until we amend them.
                              II
  The Court strains to uphold the Mandatory Repatriation
Tax without addressing whether the Sixteenth Amendment
includes a realization requirement, the question we agreed
to answer in this case. The majority starts by surveying a
scattered sampling of precedents—mostly about tax avoid-
ance—to invent an “attribution” doctrine that sustains the
MRT. The majority also relies on “longstanding congres-
sional practice” to conclude that the Moores’ claim fails be-
cause they cannot distinguish the MRT from similar taxes
imposed by Congress in the past, which the Moores concede
are constitutional. Neither point can withstand scrutiny.
                             A
  To avoid the question whether the Sixteenth Amendment
requires realization, the majority reframes the case as be-
                  Cite as: 

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                     THOMAS, J., dissenting

ing about whether Congress may attribute an entity’s real-
ized income to shareholders or partners. Ante, at 8. Ac-
cording to the majority, our precedents establish a “clear
rule” that the Sixteenth Amendment empowers Congress to
choose whether “to tax [an] entity on its income” or instead
“tax the entity’s shareholders or partners on their share of
the entity’s undistributed income.” Ante, at 17. Applying
this rule, the Court concludes that the MRT permissibly
chooses to attribute undistributed income earned by foreign
corporations to their American shareholders. The Court
thus refuses to address the “Government’s argument that a
gain need not be realized to constitute income under the
Constitution” because the foreign corporation has realized
the income. Ante, at 12–13, n. 3.
    The majority’s Sixteenth Amendment “attribution” doc-
trine is a new invention. The majority justifies its creation
by plucking superficially supportive phrases from an eclec-
tic selection of tax cases. But, none of the cases supports
the proposition that the Sixteenth Amendment empowers
Congress to freely attribute income to any taxpayer it rea-
sonably chooses.
    The majority begins with Burk-Waggoner Oil Assn. v.
Hopkins, 

 (1925), a case that it says “articu-
lated [the] fundamental principle” that “Congress could tax
. . . income as it ch[ooses],” either by taxing an entity or an
individual. Ante, at 9. But, Burk-Waggoner merely held
that Congress may tax a de facto corporation on its own in-
come, even if it is formally a partnership under state law.
See 

 (“[N]othing in the Constitution pre-
cludes Congress from taxing as a corporation an association
which, although unincorporated, transacts its business as
if it were incorporated”). Tellingly, we have never cited
Burk-Waggoner for the proposition derived by the majority,
but instead for the proposition that federal statutes “de-
signed to tax income actually earned . . . are not to be frus-
trated by state laws.” Commissioner v. Tower, 

                MOORE v. UNITED STATES

                     THOMAS, J., dissenting

280, 288 (1946) (citing 

); see also Lyeth v.
Hoey, 

 (1938) (same); Hemphill v. Orloff,

 (1928) (same). Burk-Waggoner thus
shows that state law may not be used as a means of evading
federal taxes—not that Congress may choose whether to at-
tribute income to entities or individuals.
   The majority then cites Burnet v. Leininger, 

(1932), which it says “reiterated” that Congress can choose
to impose income-tax liability “ ‘upon [a] partnership di-
rectly’ ” or “ ‘upon the individuals carrying on business in
partnership.’ ” Ante, at 9 (quoting 

; internal
quotation marks omitted). But, the majority quotes lan-
guage that is part of a due process holding, not an applica-
tion of the Sixteenth Amendment. Leininger involved a tax-
payer’s attempt to evade taxation by assigning half of his
share in a partnership’s income to his wife. 

. The
taxpayer argued that assessing income taxes against him
based on “a partnership interest owned by his wife” violated
the Fifth Amendment’s Due Process Clause. Brief for
Respondent in Burnet v. Leininger, O. T. 1931, No. 426,
p. 24. The Court rejected the argument, concluding that it
did not violate due process to “tax the distributive share of
each partner” by ignoring the taxpayer’s attempt to divert
his income to his wife. 

. The majority is
clear that it offers no opinion about due process questions.
See supra, at 4–5, nn. 4, 6. Because Leininger is a due pro-
cess case, it is unclear how it supports the majority’s Six-
teenth Amendment attribution doctrine.
   Next, the majority claims that the Court “reaffirmed that
Congress may choose to tax either [a] partnership or [its]
partners” in Heiner v. Mellon, 

 (1938), when it
rejected the argument by members of a partnership “that
Congress could not tax them on income that they did not
and could not personally receive.” Ante, at 10. But, Heiner
is a statutory interpretation case. Under the applicable
                   Cite as: 

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                      THOMAS, J., dissenting

statute, the taxpayers were subject to a tax on their “dis-
tributive share, whether distributed or not, of the net in-
come of the partnership.” §218(a), 

. The tax-
payers argued only that “there was no distributive share”
within the meaning of the statute, because distribution was
currently impossible under state law; they made no argu-
ment about the scope of Congress’s power. Brief for Re-
spondents in Heiner v. Mellon, O. T. 1937, No. 144 etc.,
p. 34. Heiner’s interpretation of the statutory phrase “dis-
tributive share” cannot be understood as a holding about
the scope of Congress’s supposed attribution power.
   The majority completes its survey of “attribution” prece-
dents with Helvering v. National Grocery Co., 

(1938), which it says extended Heiner’s attribution princi-
ple from partnerships to corporations. Ante, at 10. But,
National Grocery demonstrates Congress’s ability to legis-
late against tax-avoidance schemes—not an ability to freely
attribute corporate income to shareholders. The majority
misleadingly describes National Grocery as involving “the
controlling shareholder of a corporation” being taxed “indi-
vidually . . . on the year’s profits.” Ante, at 10 (internal quo-
tation marks omitted). In reality, the case involved a tax
paid by a corporation—owned 100% by one person—after
the corporation permitted profits to accumulate without
distribution “ ‘for the purpose of preventing the imposition
of [a] surtax upon [the] sole stockholder.’ ” 304 U. S., at 285.
In essence, the sole stockholder used the corporation as a
tax-free bank account to hold what was really his income.
The Court concluded that Congress may legislate to prevent
“the sole owner of [a] business” from “conducting it as a cor-
poration” to avoid the tax consequences that would attach
if the business had “been carried on as a partnership.” Id.,
at 288. The Court cited Heiner merely to explain those tax
consequences, not to support an attribution principle. Na-
tional Grocery is yet another tax-evasion case, not an appli-
cation of an attribution principle.
30                MOORE v. UNITED STATES

                     THOMAS, J., dissenting

   At most, the cases cited by the majority demonstrate that
Congress may attribute income to the entity or individual
who actually controlled it when necessary to defeat at-
tempts to evade tax liability. They do not suggest that Con-
gress may freely choose whether to impose an income tax
on a corporation or on its shareholders. The “clear rule”
that the majority relies on to sidestep the realization ques-
tion is thus a mirage. Ante, at 17.
                              B
   The majority separately concludes that the Moores’ claim
fails because they cannot distinguish the MRT from other
longstanding taxes that they concede are constitutional.
The majority sees no distinction between the MRT and
older taxes on partnerships, “S corporations,” and closely
held foreign corporations under other parts of subpart F.
Ante, at 16–21. But, the majority’s insistence that the MRT
is just like other forms of pass-through taxation is not con-
vincing.
   First, the MRT’s taxation of corporate shareholders is not
like pass-through taxation of partners. The Moores are cor-
rect that the Sixteenth Amendment allows Congress to tax
partners on partnership income because “partnerships
hav[e] no existence separate from their partners.” Brief for
Petitioners 51. A partner’s share of partnership income is
therefore understood to be his own income. The majority
quibbles with the Moores’ understanding of early-20th cen-
tury partnership law and points out that “legislatures
treated partnerships as separate entities in many con-
texts,” including for some tax purposes. Ante, at 17–18.
But, the fact that a partnership can sometimes be treated
as an entity is beside the point. The significant fact is that
partners had long been considered to be subject to income
taxes without consideration of the partnership; longstand-
ing taxes based on that understanding are not implicated
by the Moores’ challenge to the MRT.
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                     THOMAS, J., dissenting

   Second, and for similar reasons, the MRT’s taxation of
corporate shareholders is not like pass-through taxation of
shareholders of “S corporations.” An S corporation is a cor-
poration that does not have more than 100 shareholders,
does not have any shareholder who is not an individual or
who is a nonresident alien, does not have more than one
class of stock, and which elects to be treated as an S corpo-
ration. 

(a)(1), (b)(1). These eligibility re-
quirements make it clear that pass-through taxation of S
corporations is merely an extension of the pass-through tax-
ation of partnerships. Indeed, for most tax purposes, S cor-
porations are equivalent to partnerships, not to corpora-
tions. “Tax practitioners often say that an S corporation is
taxed like a partnership.” CCH S Corp. Guide ¶510, p. 505
(2013); see also West’s Tax Law Dictionary (2024) (defining
“S Corporation” as “Corporation which elects S status and
receives tax treatment similar to a partnership”). Taxing S
corporation shareholders on corporate income is constitu-
tional for the same reasons as taxing partners on partner-
ship income. To the majority, “S corporations are another
example of Congress’s authority to either tax the corpora-
tion itself on corporate income or attribute the undistrib-
uted income to the shareholders and tax the shareholders.”
Ante, at 19. But, it does not make sense to look to S corpo-
rations for conclusions about the pass-through taxation of
corporate shareholders generally.
   Finally, the MRT is unlike other taxes on shareholders of
closely held foreign corporations. The MRT “differs from
other provisions of Subpart F”—the portion of the Internal
Revenue Code dealing with controlled foreign corpora-
tions—because the MRT does not focus on “the corpora-
tion’s receipt of investment earnings while subject to the
shareholders’ control.” Brief for Petitioners 44–45. Sub-
part F “aligns the corporation’s earning of the money being
taxed with the shareholder’s control in the same year.” Re-
ply Brief 23. But, “[t]he MRT by its terms takes no account
32                MOORE v. UNITED STATES

                     THOMAS, J., dissenting

of whether a shareholder had any interest or control when
the corporation made the earnings that it attributes to her.”
Ibid. In fact, the MRT “tags a shareholder with taxable ‘in-
come’ even if ” he purchased shares “long after the corpora-
tion earned the sums being taxed,” and it imposes no liabil-
ity on taxpayers who owned shares for years of retained
earnings but sold them before the MRT’s trigger date. Brief
for Petitioners 45. Subpart F includes some minimal re-
quirements to ensure that taxable “income” belongs to the
shareholder in some way; the MRT abandons that effort en-
tirely.
   The majority concludes that “the MRT . . . has the same
essential features as subpart F.” Ante, at 21. But, unlike
the rest of subpart F, the MRT has no connection at all to
any “recognition event” or “constructive receipt of income,”
and it offers no “rational basis for Congress to attribute in-
come to a taxpayer.” S. McElroy, The Mandatory Repatria-
tion Tax Is Unconstitutional, 36 Yale J. Reg. Bull. 69, 80–
81 (2018). The MRT turns solely on the ownership of stock
on a certain date. That is a significant difference between
the MRT and the rest of subpart F, and one with constitu-
tional implications.
   The fact that the MRT has novel features does not mean
that it is unconstitutional. But, the MRT is undeniably
novel when compared to older income taxes, and many of
those differences are constitutionally relevant. Because the
MRT is imposed merely based on ownership of shares in a
corporation, it does not operate as a tax on income.
                              C
   The majority is not ashamed to lay bare the consequen-
tialist heart of its opinion. Because it wrongly concludes
that the Moores’ constitutional argument would invalidate
not only the MRT but also other longstanding taxes, the
majority frets that the Moores would “deprive the U. S.
Government and the American people of trillions in lost tax
                  Cite as: 

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                     THOMAS, J., dissenting

revenue” and “require Congress to either drastically cut
critical national programs or significantly increase [other]
taxes.” Ante, at 21. “The Constitution does not require that
fiscal calamity,” the majority proclaims. Ibid. I agree. But,
if Congress invites calamity by building the tax base on con-
stitutional quicksand, “[t]he judicial Power” afforded to this
Court does not include the power to fashion an emergency
escape. Art. III, §1, cl. 1.
   Even as the majority admits to reasoning from fiscal con-
sequences, it apparently believes that a generous applica-
tion of dicta will guard against unconstitutional taxes in the
future. The majority’s analysis begins with a list of non-
existent taxes that the Court does not today bless, including
a wealth tax. Ante, at 8, n. 2. And, it concludes by offering
a narrow interpretation of its own holding, hinting at limit-
ing doctrines, prejudging future taxes, cataloguing the Gov-
ernment’s concessions, and reserving other questions “for
another day.” Ante, at 22–24. Sensing that upholding the
MRT cedes additional ground to Congress, the majority
arms itself with dicta to tell Congress “no” in the future.
But, if the Court is not willing to uphold limitations on the
taxing power in expensive cases, cheap dicta will make no
difference.
                              III
   The Court today upholds the MRT, but not because it en-
dorses the Ninth Circuit’s erroneous view that “realization
of income is not a constitutional requirement.” 

.    The majority acknowledges that the Sixteenth
Amendment draws a distinction between income and its
source. Ante, at 7. And, it does not dispute that realization
is what distinguishes income from property. Ante, at 8.
Those premises are sufficient to establish that realization
is a constitutional requirement. Sixteenth Amendment “in-
come” is only realized income. We should not have hesi-
tated to say so in this case. I respectfully dissent.