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Abstract: 

The Supreme Court’s 2024 decision in Moore v. United States was a disappointment. The Court upheld the constitutionality of the so-called mandatory repatriation tax, a result that may or may not be defensible. But the Court didn’t resolve what was supposed to be the “question presented” in the case: “Whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states.” As a result, more than a century after ratification of the Sixteenth Amendment, we still don’t know whether realization of some sort is necessary to have income within the meaning of the Amendment. This article describes and criticizes the decision in Moore.

Keywords: Moore v. United States; mandatory repatriation tax; Sixteenth Amendment; realization; the meaning of “incomes;” Eisner v. Macomber; Pollock v. Farmers’ Loan & Trust Co.

Affiliations:  1: Case Western Reserve University School of Law.