The Income Tax, the Constitution, and the Unrealized Importance of Helvering v. Griffiths

Authors

Lawrence Zelenak, Duke LawFollow

Document Type

Article

Publication Date

2023

Abstract

The Supreme Court recently granted certiorari in Moore v. United States, for the purpose of deciding whether the realization doctrine remains a constitutional limitation on Congress's ability to impose an unapportioned income tax, as the Court held in its famous 1920 decision in Eisner v. Macomber. Although it is natural to look to 1920 and Macomber as the cause of today's uncertain scope of the congressional power to tax income, what did not happen in the Court's 1943 decision in Helvering v. Griffiths is as significant as what did happen in 1920. the presence of Moore on the Court's docket today depends on Macomber's wildly improbable survival in 1943. That survival was the product of a perfect storm of unlikely circumstances. This article tells the story of Helvering v. Griffiths, and how Congress and the Roosevelt administration snatched defeat from the jaws of victory, with a crucial assist from Justice Jackson.

Citation

Lawrence Zelenak, The Income Tax, the Constitution, and the Unrealized Importance of Helvering v. Griffiths, 43 Virginia Tax Review 257-290 (2023)