Moore Taxes: How the Supreme Court Could Upend Decades of Tax Law

by Ross Chambers, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Taxation is an area of law that impacts many Americans, but in recent years, the Supreme Court has heard very few tax cases. However, this term the Supreme Court will hear a case, Moore v. U.S., that could have serious consequences for the entire tax code.¹ Based on the Court’s decision, numerous subchapters of the tax code could be found unconstitutional and certain tax plans proposed by Congress may become impermissible. A broad ruling in favor of the plaintiff has the potential to reverse all the tax cuts implemented in 2017.

This article discusses the upcoming Supreme Court case, Moore v. U.S., and how the decision could have significant consequences for the United States tax regime. Part II examines the changes made to the United States tax code in 2017 and the impact it has in the Moore case. Part III analyzes the impact that Moore could have on existing tax code and potential future tax policy.

II. Background

A. Worldwide and Territorial Tax Systems

One of the principal challenges multinational corporations (“MNC”) face is how their foreign income is taxed. There are two different country tax systems, the worldwide tax system and the territorial tax system.² A worldwide tax system taxes income regardless of whether it is earned in the United States or overseas.³ The MNC pays tax on its foreign income when the income is repatriated by bringing the income from a foreign jurisdiction back to the United States.⁴ The ability to delay taxes until income is repatriated allows MNCs to keep their foreign income overseas and continue to defer their United States income taxes until they need the money.⁵ Additionally, under U.S. law, when a MNC does repatriate its earnings, it receives a foreign tax credit to offset its U.S. tax liability by the amount of foreign tax paid on the income.⁶ Under a territorial tax system, only income originating from the U.S. would be taxed while foreign income is not taxed by the U.S.⁷ A majority of countries have adopted a territorial tax system.⁸

Prior to 2018, the U.S. had a worldwide tax system.⁹ This caused MNCs to forego repatriating their foreign income, resulting in approximately 2 trillion dollars of foreign income not being distributed to U.S. parent companies.¹⁰ In 2017, the U.S. passed the Tax Cuts and Jobs Act (“TCJA”), which reduced the U.S. corporate income tax rate from 35% to 21% and shifted the U.S. to a quasi-territorial tax system.¹¹ The TCJA also created a new tax called the Mandatory Repatriation Tax (“MRT”).¹² Under the MRT, all accumulated foreign profits between 1986 and 2017 would but subject to a 15.5% tax rate for cash and 8% for non-cash assets.¹³

B. Moore v. U.S.

The Moores invested $40,000 in KisanKraft, an Indian company, owned by a friend, and received an 11% ownership interest.¹⁴ KisanKraft is a foreign corporation with more than 50% ownership rights owned by U.S. persons, making it a controlled foreign corporation (“CFC”).¹⁵ A CFC is a controlled foreign corporation who has more than 50% of its stock owned by U.S. shareholders.¹⁶ KisanKraft always reinvested its profits in the business and never distributed any earnings to shareholders.¹⁷ After the passage of the MRT, the Moores calculated a tax liability of approximately $15,000 based on their share of KisanKraft’s retained earnings.¹⁸ The Moores challenged the constitutionality of the MRT, claiming it did not tax income, thus violating the Sixteenth Amendment, and claimed it applied retroactively, which violates the Fifth Amendment.¹⁹ The Moores claim that, under Eisner v. Macomber, income must be realized before it can be taxed.²⁰ They also claim that under C.I.R. v. Glenshaw Glass, income requires an “undeniable accession to wealth, clearly realized, and over which the taxpayers have complete dominion.”²¹ Therefore, because they did not realize any income from KisanKraft, it cannot be taxed as income under the Sixteenth Amendment.²²

The Ninth Circuit rejected the arguments made by the Moores and held that realization is not a constitutional requirement of income.²³ The Sixteenth Amendment grants the ability to tax income; however, courts have historically struggled to define what income is.²⁴ The Ninth Circuit rejected the Moores’ readings of Macomber and Glenshaw Glass, holding that the Supreme Court was not providing a conclusive definition of income in either case.²⁵ In both cases, the Supreme Court never suggested their definition of income was supposed to be a universal test.²⁶ Relying on other Supreme Court precedent, the Ninth Circuit held that realization is not a constitutional requirement of income.²⁷ The Supreme Court, in Helvering v. Horst, held that the realization requirement is founded on administrative convenience and that a taxpayer can still be taxed on money they did not receive.²⁸ Based on this reasoning, the Ninth Circuit ruled that the MRT is constitutional and the Moores are liable for the taxes owed on their share of KisanKraft’s income.²⁹

The Moores appealed the decision, but the request was denied.³⁰ The dissent argued the MRT was an unapportioned tax on unrealized gains rather than a tax on income.³¹ Starting with the history of the Sixteenth Amendment, the dissent noted that the Supreme Court had struck down income taxes as unapportioned direct taxes.³² This led President Taft to urge the House and Senate to propose an amendment to allow the federal government to tax income.³³ Instead of striking the apportionment clause, Congress debated and adopted the Sixteenth Amendment specifically to tax income.³⁴

Next, the dissent focused on the ordinary meaning of income at the time of ratification.³⁵ Various dictionaries and legal authorities suggested that income referred to receipt of some economic benefit.³⁶ Finally, the dissent reasoned that, based on Supreme Court precedent, income must be realized before it can be taxed as income.³⁷ The dissent said a realization requirement was set out in Eisner and later reiterated in Horst when the Court said “the rule that income is not taxable until realized.”³⁸ The dissent further noted that in Glenshaw Glass the Supreme Court held that the definition of income in Macomber “served a useful purpose.”³⁹ The dissent concluded that based on history, text, and precedent, the MRT is unconstitutional because it taxes unrealized gains.⁴⁰

III. Discussion

A. The Dissent’s Misreading of Precedent

The dissent’s analysis of the prior precedent falls short upon closer inspection. Eisner does hold that stock dividends are not subject to income tax because the income is not realized, but it does not state that realization is a constitutional requirement.⁴¹ The dissent claims the realization requirement is reiterated in Horst when the Court states “the rule that income is not taxable until realized.”⁴² However, in Horst, the Court explains “…the rule that income is not taxable until realized has never been taken to mean that the taxpayer… can escape taxation because he has not himself received payment…”⁴³ Additionally, the Supreme Court stated in Horst that the realization rule was not a constitutional requirement, but rather an “administrative convenience.”⁴⁴

The reliance on Glenshaw Glass that realization is a requirement was also mistaken. The dissent notes that in Glenshaw Glass, the Supreme Court said the Macomber definition “served a useful purpose.”⁴⁵ However, in Glenshaw Glass, the Supreme Court weakened the realization requirement, stating “In [Macomber’s] context…the definition served a useful purpose. But it was not meant to provide a touchstone to all future gross income questions.”⁴⁶ Furthermore, the Supreme Court has noted that its decision in Macomber was limited to the facts of the case. In Helvering v. Griffiths, the Court explained that Horst and other tax cases limited Macomber to the specific dividend in that case.⁴⁷

B. Severability Issues

If the Court rules that the MRT is unconstitutional, it could hold that the MRT is not severable from the TCJA. If a provision of a bill is unconstitutional, it must be determined if the statute operates as Congress intended without the severed provision and whether Congress would have enacted the bill without the unconstitutional portion.⁴⁸ The TCJA was passed using budget reconciliation. Reconciliation allows Congress to pass fiscal legislation without obtaining the 60 votes in the Senate to overcome a filibuster.⁴⁹ Under budget reconciliation rules, the TCJA could not increase the deficit by more than $1.5 trillion over ten years.⁵⁰

The Government estimated that the MRT would generate $339 billion in tax revenue.⁵¹ Including the MRT, the Joint Committee on Taxation (“JCT”) estimated that the TCJA would increase the deficit by $1.437 trillion.⁵² Without the revenue generated by the MRT, the TCJA would have exceeded the $1.5 trillion deficit ceiling allowed for reconciliation. If the TCJA would have exceeded the deficit limit without the MRT, Congress likely would not have enacted it.

If the MRT is not severable from the TCJA, it would cause significant tax consequences for both corporate and individual taxpayers. The most impactful change would be the reversion of pre-TCJA corporate tax rate. The TCJA changed the corporate income tax rate from 35% to 21%.⁵³ If the entire TCJA is unconstitutional and the corporate income tax rate is reversed, the government could impose back taxes on corporations.

Another key tax provision that would be reversed, if the MRT is not severable, is the state and local tax (“SALT”) deduction limit.⁵⁴ Under the TCJA, individuals could only deduct a maximum of $10,000 in SALT.⁵⁵ If this limitation is reversed, it would flood the IRS with the amended returns of taxpayers attempting to lower their previous federal income tax payable with their entire SALT deduction. A change that would impact large amounts of taxpayers is, if the TCJA is not severable, the increases to the standard deduction would be reversed.⁵⁶

Reversal of the entire TCJA would flood the courts with tax cases. The government would likely argue that, because of the reversal of the 21% corporate tax rate change, corporations need to pay back taxes at the pre-TCJA 35%. Individual taxpayers, particularly in states with high SALT taxes, would also try to amend their tax returns to reduce their prior taxable income. Both situations would flood the courts with hundreds of tax cases.⁵⁷

C. Tax Policy Potentially Impacted by Moore

If the MRT is unconstitutional it would cost the government a significant amount of revenue. The government initially estimated the MRT would generate approximately $339 billion in tax revenue.⁵⁸ If the tax is invalidated, the government would need to pay back the corporations who were taxed. Not only would this have a significant impact on revenue and the deficit, it would also present future taxation complications. Further, it would be difficult for Congress to tax earnings that were repatriated after the MRT. For example, Apple paid $38 billion in taxes under the MRT.⁵⁹ Because Apple was taxed on their offshore cash holdings, they decided to repatriate most of their cash holdings, approximately $269 billion.⁶⁰ Moreover, it would be difficult for Congress to draft a bill to tax earnings repatriated five years ago. This would result in corporations being allowed to repatriate their foreign earnings, essentially tax free.⁶¹

Another critical provision of the TCJA that would be upended is the dividend received deduction (“DRD”). The TCJA allows domestic companies to deduct 100% of their dividends received from a foreign corporation, if the domestic corporation owns 10% or more of the foreign corporation.⁶² However, these dividends will no longer be eligible to be used as a foreign tax credit.⁶³

Finally, ruling the TCJA is unconstitutional would increase the ability of corporations to avoid taxation. For decades, large U.S. corporations have used techniques to shift profits from their U.S. company to a foreign affiliate in a tax haven.⁶⁴ One way a company might do this is by paying their foreign affiliate royalty fees for the use of intellectual property that is held by the foreign affiliate.⁶⁵ This causes a net tax benefit because the corporation is able to decrease their reportable U.S. profits while increasing the profits of their subsidiary in a tax haven.⁶⁶ Therefore, the company is able to “shift” their profits.⁶⁷

To address and limit profit sharing, the TCJA created the base erosion and anti-abuse tax (“BEAT”).⁶⁸ BEAT is a minimum tax that applicable corporations must calculate.⁶⁹ BEAT applies to corporations who, over the past three tax years, had an average taxable income of at least $500 million.⁷⁰ Additionally, corporations must calculate their base erosion percentage, and if that percentage is three percent or higher the corporation is subject to BEAT.⁷¹

If BEAT applies to a corporation, it must calculate its tax under both the 21% statutory rate and the BEAT rate.⁷² The tax payer will then pay the higher of the two taxes calculated.⁷³ For example, an applicable taxpayer has $600 million in gross receipts, $400 million in deductions, and $300 million in interest and royalties paid to a foreign subsidiary.⁷⁴ This taxpayer’s regular taxable income is calculated by reducing their total gross receipts, $600 million, by their total deductions, $400 million, for a regular taxable income of $200 million.⁷⁵ Next, they must add the interest and royalties paid to foreign subsidiaries, here $300 million, back to their taxable income, leaving them with a modified taxable income of $500 million.⁷⁶ Then, applying the flat 21% corporate tax rate to their regular taxable income, $200 million, their regular tax liability is $42 million.⁷⁷ The corporation must then apply the BEAT tax of 10% to their modified taxable income of $500 million for a minimum tax of $50 million.⁷⁸ Because the corporation’s BEAT tax is higher than their regular income tax, the corporation would, in practice, pay $50 million in tax.⁷⁹ Without the TCJA, corporations would be able to return to profit shifting and be subject to lower effective tax rates.

A ruling in favor of the Moores could have wide ranging consequences on the tax code. As the Ninth Circuit noted in its opinion, ruling in favor of the Moores would question the constitutionality of several tax provisions that have been law for decades.⁸⁰ In their reply brief to the Supreme Court, the Moores argue that “it is proper to ‘look through the form of the corporation’ in circumstances where shareholders have ‘received income,’… but that exception has never been thought to reach ordinary shareholders.”⁸¹ If the Supreme Court adopts this approach, provisions of the tax code that treat flow through entities separate from their owner could be challenged.

One provision that could be challenged is subpart F. Under subpart F of the tax code, U.S. shareholders are already required to report their pro-rated share of a CFC’s annual subpart F income, even if the income is not distributed.⁸²Subpart F and its predecessor statutes have been held as constitutional dating back to 1943.⁸³

Similar to Subpart F, under the Moores’ theory, the global intangible low-taxed income (“GILTI”) provision would be unconstitutional. GILTI was passed in 2017 as an attempt to reduce profit-shifting through the implementation of a minimum income tax on foreign profits.⁸⁴ Under the GILTI regime, if a U.S. shareholder owns shares of a CFC, the U.S. shareholder is taxed at 10% of the CFC’s income at the corporate level.⁸⁵ The GILTI tax is imposed whether the income is distributed to the U.S. shareholder.

Another provision that could be challenged as a look through provision is Subchapter K. Subchapter K is the tax subchapter that taxes partnerships.⁸⁶ Subchapter K taxes the partners on their share of partnership income by looking through the partnership.⁸⁷ Subchapter K has consistently been held as constitutional going back to the start of the income tax regime.⁸⁸ The Supreme Court has previously held that partners reporting their pro-rata share of the partnership income, whether distributed or not, is constitutional.⁸⁹

Finally, under the Moores’ theory, Subchapter S of the tax code would also be unconstitutional. Under Subchapter S, shareholders of an S corporation are taxed on their pro-rata share of the S corporation’s income.⁹⁰ Subchapter S states that the taxpayer is taxed on any income realized by the corporation, regardless of whether it is distributed or not.⁹¹

The Moores also put forward an alternative to the look-through approach. The Moores suggest that the Sixteenth Amendment requires that a transaction must be completed or something of value is received to be realized.⁹² If the Supreme Court were to accept this definition it would also call into question numerous tax provisions. For example, when an individual relinquishes their U.S. citizenship, they are taxed as if they sold all their assets on the day of relinquishment, even if no sale took place.⁹³ Another example is futures contracts, which are marked to market and taxed on the last day of the year, even if no sale took place.⁹⁴ Finally, Congress imposes taxes on U.S. branches of foreign corporations through the branch profits tax.⁹⁵ Under this tax, the earnings of the U.S. branch are taxed and then there is a 30% tax on the dividend equivalent amount.⁹⁶ The dividend equivalent amount is the U.S. branch’s effective earnings and profit.⁹⁷ However, the dividend equivalent amount can be increased if the U.S. branch has an increase in U.S. net equity, meaning if there is a net asset increase it could be subject to the branch tax whether the increase is realized or not.⁹⁸ If the Court rules in favor of the Moores, these long applied taxes would likely be challenged and struck down.⁹⁹

The Moores concede in their brief that Subpart F, Subchapter K, Subchapter S, and GILTI are likely constitutional. However, their distinguishing principles would not offer any basis for treating the MRT differently from these provisions. First, the Moores argue that Subchapter K is different “because [the partnership income] is [the partner’s] income, partnerships having no existence separate from their partners.”¹⁰⁰ However, Subchapter K applies to LLCs, which shield members from liability and are legally distinct from their members.¹⁰¹ For tax purposes, income that is realized by the LLC, but not distributed, is still taxed to the owners.¹⁰² Regarding Subchapter S, the Moores claim it is differentiated from the MRT because S corporation owners concede that the income is theirs by electing to be taxed on the business income.¹⁰³ However, if Congress does not have the power to tax unrealized and undistributed gains, the taxpayers’ consent is immaterial.¹⁰⁴

Furthermore, the Moores argue that the MRT is unconstitutional, while the above tax provisions are constitutional, because the MRT does not “turn on any event of constructive realization of income.”¹⁰⁵ However, the Moores do not cite any precedent that taxation requires “constructive realization.” Imposing such a requirement would go beyond the text of Eisner and imposing a brand new requirement under the Sixteenth Amendment.

If the Court rules that there is a realization requirement under the Sixteenth Amendment all the above tax policies would come into question. It would lead to taxpayers, especially corporations, arguing that parts of their income are not realized. The IRS would likely not be able to litigate such these issues with such a large number of corporations. This could lead to an increase in tax evasion and overall decrease in government revenues.¹⁰⁶

Some believe that a ruling against the Moores would open the door to a near unlimited federal taxing power and would allow Congress to exact a wealth tax.¹⁰⁷ They argue that the ability to tax income without realization would amount to a direct tax under Article I, Section 2 and be unconstitutional.¹⁰⁸ Such a ruling, they argue, would impact future tax policy and permit Congress to impose a tax on an individual’s net worth. However, such a view ignores the precedent surrounding the meaning of a direct tax under Article I, Section 2. The Supreme Court’s original interpretation of what a direct tax was extremely narrow, a direct tax is a tax land or a poll tax.¹⁰⁹ In Hylton v. U.S., the Supreme Court upheld a tax on carriages as not violating the prohibition on direct taxes.¹¹⁰ The Court also noted that Article I, Section 8, Clause I of the Constitution, “The Congress shall have Power to lay and collect…Duties.”¹¹¹ The unanimous Court viewed the power to lay duties as a very broad and comprehensive power of taxation, and upheld the tax on carriages.¹¹² The general idea of taxing duties came from Great Britain, which taxed stamps and imposed tolls.¹¹³ The Court held this narrow interpretation of direct taxes for nearly a century, but in Pollock v. Farmers’ Loan and Trust Company the Court expanded their interpretation of direct taxes to include taxes on income.¹¹⁴ That decision was swiftly overturned by the Sixteenth Amendment.¹¹⁵ The MRT does not fall under the original meaning of direct taxes because it is not a poll tax or tax on land.

D. Impact on Pillar Two

Finally, if the Supreme Court finds that the MRT does not satisfy a realization requirement it could significantly impact the ability of the U.S. to implement Pillar Two. Pillar Two is a 15% global minimum tax imposed on large MNCs.¹¹⁶ One way the minimum tax is enforced on companies is an Income Inclusion Rule (“IIR”).¹¹⁷ Under the IIR, a parent entity is taxed on its share of share of income, regardless of whether the income is distributed to the parent.¹¹⁸

A decision by the Court that realization is a constitutional requirement would restrict the United States’ ability to implement Pillar Two. Even a narrow ruling for the Moores would likely restrict the ability to implement Pillar Two. Some have argued that the Supreme Court should find the MRT unconstitutional because it applies to taxpayers who own less than 50% of a company, meaning it taxes people who do not have sufficient control over the entity.¹¹⁹ Such a decision could allow Subpart F to remain constitutional because Subpart F applies to entities who own more than 50% of CFC.¹²⁰ The IIR applies to companies who own a minority stake in an entity and could not be implemented under the proposed narrow ruling.¹²¹

IV. Conclusion

The Supreme Court can radically change the tax code in Moore. Ruing the MRT unconstitutional would cause the entire TCJA to be unconstitutional because the MRT is not severable. This would cause broad tax consequences for both individuals and corporations. A broad ruling in favor of the Moores would also call into question the constitutionality of numerous tax codes that have been in place for decades. Finally, it could also close the door on proposed tax schemes, such as a wealth tax or Pillar Two that should be left to Congress.

Cover Photo by Chris Potter on Flickr

Ross Chambers

Ross Chambers is a 3L law student at UC. Prior to law school, he received a Bachelor of Science in both Accounting and Finance from the University of Tennessee at Chattanooga and plans to practice tax law. In his free time Ross enjoys reading, golfing, and spending time with family.

References

1
Moore v. U.S., 36 F.4th 930 (9th Cir. 2022).
2
James G.S. Yang, Victor N.A. Metallo & Jeffrey S. Warren, TCJA: Worldwide vs. Territorial System, 29 J. Int’l Tax’n 30 (Aug. 2018).
3
Id.
4
Id.
5
Id. at 33-34.
6
Id. at 34.
7
Vang, supra note 2, at 32.
8
Id.
9
Id. at 31.
10
Id. at 35.
11
Id. at 32.
12
Sean P. McElroy, The Mandatory Repatriation Tax is Unconstitutional, 36 Yale J. of Reg. Bull. 69, 76 (2018).
13
Id.
14
Moore v. U.S., 36 F.4th 930, 932 (9th Cir. 2022).
15
Id.
16
26 U.S.C. § 957.
17
Moore, 36 F.4th at 933.
18
Id.
19
Id. at 934.
20
Id. at 937.
21
Id.
22
Moore, 36 F.4th at 937.
23
Id. at 935.
24
Id.
25
Id. at 937.
26
Id.
27
Moore, 36 F.4th at 937.
28
Id.
29
Id. at 939.
30
Moore v. US, 53 F.4th 507 (2022).
31
Id. at 508.
32
Id. at 510.
33
Id. at 511.
34
Id.
35
Moore, 53 F.4th at 511.
36
Id. at 512.
37
Id.
38
Id. at 513.
39
Id.
40
Moore, 53 F.4th at 514.
41
Eisner v. Macomber, 252 U.S. 189, 194 (1920).
42
Moore, 53 F.4th at 513.
43
Helvering v. Horst, 311 U.S. 112, 116 (1940).
44
Id.
45
Moore, 53 F.4th at 513.
46
Comm’r v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955).
47
Helvering v. Griffiths, 318 U.S. 371, 375 (1943).
48
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).
49
Id.
50
Id.
51
Joint Comm. on Taxation, Estimated Budget Effects of the Conference Agreement for H.R. 1, “Tax Cuts and Jobs Act”, JCX-67-17 (Dec. 18, 2017), https://www.jct.gov/publications/2017/jcx-67-17/.
52
Id.
53
26 U.S.C. § 11(b).
54
26 U.S.C. § 164(b)(6).
55
26 U.S.C. § 164(b)(6)(B).
56
26 U.S.C. § 63(c)(7)(A).
57
This is a conclusion drawn by the author.
58
Joint Comm. on Taxation, supra note 51.
59
Daisuke Wakabayashi & Brian Chen, Apple, Capitalizing on New Tax Law, Plans to Bring Billions in Cash Back to U.S., N.Y. Times (Jan. 17, 2018), https://www.nytimes.com/2018/01/17/technology/apple-tax-bill-repatriate-cash.html.
60
Id.
61
This is a conclusion drawn by the author.
62
26 U.S.C. § 245A(a).
63
26 U.S.C. § 245A(d)(1).
64
Stephanie Hunter McMahon, Principles of Tax Policy 124 (3rd ed. 2023).
65
Id. at 354.
66
Id.
67
Id.
68
26 U.S.C. § 59A.
69
Id.
70
26 U.S.C. § 59A(e)(1).
71
Id.
72
26 U.S.C. § 59A(b).
73
Id.
74
Joint Comm. on Taxation, Overview of the Base Erosion and Anti-Abuse Tax: Section 59A, at 16 (Apr. 2019), https://www.jct.gov/CMSPages/GetFile.aspx?guid=d35821ce-ed13-42c0-8546-41d093cebde9.
75
Id. at 17.
76
Id.
77
Id.
78
Id. at 19.
79
Joint Comm. on Taxation, supra note 74.
80
Id. at 938.
81
Brief for Petitioner at 5, Moore v. U.S., 143 S. Ct. 2656 (2023) (No. 22-800).
82
26 U.S.C. § 951(a)(1)(A).
83
Eder v. Comm’r, 138 F.2d 27, (2nd Cir. 1943).
84
26 U.S.C. § 951A(a).
85
26 U.S.C. § 951A(b)(2)(A).
86
26 U.S.C. § 701.
87
Id.
88
Burnet v. Leininger, 285 U.S. 136 (1932).
89
U.S. v. Woods, 571 U.S. 31, 38 (2013).
90
26 U.S.C. § 1366(a)(1).
91
26 U.S.C. § 1366(b).
92
Brief for the Petitioner, supra note 81, at 7.
93
26 U.S.C. § 877A(a).
94
26 U.S.C. § 1256(a).
95
26 U.S.C. § 884.
96
26 U.S.C. § 884(a).
97
26 U.S.C. § 884(b).
98
26 U.S.C. § 886(c).
99
This is a conclusion drawn by the author.
100
Brief for the Petitioner, supra note 81, at 51.
101
26 U.S.C. § 761(a).
102
26 U.S.C. § 704(a).
103
Brief for the Petitioner, supra note 81, at 51.
104
This is a conclusion drawn by the author.
105
Brief for the Petitioner, supranote 81, at 45.
106
This is a conclusion drawn by the author.
107
Brief for Petitioner at 2, Moore v. U.S., 143 S. Ct. 2656 (2023) (No. 22-800).
108
Id.
109
Hylton v. U.S., 3 U.S. 171, 183 (1796).
110
Id. at 175.
111
Id. at 173.
112
Id.
113
Id. at 175.
114
Pollock v. Farmers’ Loan & Tr. Co., 158 U.S. 601, 711 (1895).
115
NFIB v. Sebelius, 567 U.S. 519, 571 (2012).
116
Tax Challenges Arising from the Digitalisation of the Economy – Administrative Guidance on the Global Anti-Base Erosion Model Rules (Pillar Two), Article 1.3.5, OECD (2023) [hereinafter Pillar Two], https://www.oecd.org/tax/beps/agreed-administrative-guidance-for-the-pillar-two-globe-rules.pdf.
117
Id. at art. 2.2.2.
118
Id.
119
Brief for Petitioner at 16, Moore v. U.S., 143 S. Ct. 2656 (2023) (No. 22-800).
120
26 U.S.C. § 957(a).
121
Pillar Two at art. 3.2.