Good news and bad news from the Supreme Court's Moore decision

Today the Supreme Court released its decision in Moore v. United States, upholding the 2017 tax act's mandatory repatriation tax (MRT) on foreign source income (FSI) of American-controlled foreign corporations. The MRT was eminently sensible in principle, although far from perfectly designed in practice, in that the applicable FSI had previously been subject to deferral - i.e., it would be taxed to the US shareholders upon repatriation. Cashing out the deferred tax when you eliminate it, even if at a reduced rate, is very difficult to argue against on policy grounds.

Right-wing activists nonetheless challenged the MRT here on the grounds that (a) the income was unrealized by the taxpayer, and (b) per the long-discredited 1920 Supreme Court case of Eisner v. Macomber, realization is constitutionally mandated for a tax on income to fall within the protective scope of the 16th Amendment.

While the Supreme Court may initially have granted certiorari in response to right-wing fulmination about shutting down the constitutionality of unapportioned wealth taxes and extension of the federal income tax to unrealized gains on publicly traded assets before such taxes were even close to adoption, it soon became clear that the case was a potential nuclear weapon wiping out trillions of dollars of revenue - e.g, from original issue discount (OID) bonds or the flow-through taxation of partnerships. And this was a nuclear weapon that even the likes of Paul Ryan thought it would be insane to set off.

The taxpayers' advocates sufficiently sniffed the air around them to realize that they could only win the case (if at all) by making very limited claims that targeted the MRT in particular while distinguishing it from taxing partnerships, using subpart F to tax US corporations on their controlled foreign affiliates' (mainly passive) income, etc. While this sufficiently limited their theory's "blast radius" (as the majority opinion puts it) to keep its adoption by the court from being immediately catastrophic, it also fatally surrendered coherence and credibility. The provisions that the taxpayers agreed were constitutional simply could not be distinguished from the MRT.

Good news: the Supreme Court upheld the MRT in a quite sensibly written opinion by Justice Kavanaugh. The vote was 7-2. What the opinion does is say that the MRT is not about realization at all: the income being taxed unambiguously has been recognized at the entity level. So the case is merely about apportionment, not realization. The opinion notes longstanding precedents that permit an entity's income to be taxed either at the entity level or directly to the owners. And, given the basis for decision, it holds that issues about taxing unrealized income simply aren't reached here.

Bad news: the Supreme Court has at least 4 votes (and possibly as many as 6) in support of the proposition that Eisner v. Macomber's idiotic and long-renounced "realization / severance" requirement for treating economic income as taxable income is indeed binding constitutional law. Justice Thomas, joined by Justice Gorsuch, offers his usual brand of dishonestly cooked "history" in support of the taxpayer in Moore on realization grounds. Meanwhile, Justice Barrett, joined by Justice Alito, concurs only in the judgment, and only on the ground that the taxpayers' concessions in distinguishing the MRT made their position unsustainable.

Will the Court soon hold that it is unconstitutional to tax income from OID bonds, on the ground that it hasn't been realized? Or if not income from OID bonds, then at least the unrealized gains of very wealthy individuals, as per a bill recently introduced by Senate Finance Chair Wyden? There may well be 4 votes for striking down one or both of such provisions.

Kavanaugh's opinion expressly declines to reach that question, rightly noting that it's unnecessary to decide Moore. One can reasonably presume that both he and Chief Justice Roberts are potential 5th and 6th votes for holding that realization is constitutionally required. Meanwhile, only Justice Jackson, in a concurring opinion that no other justice joined, stated forthrightly that there is no realization requirement in the 16th Amendment.

So let us express relief about the present, along with continued concern about the future.

Henry Simons and pre-World War libertarianism.

 I just posted this piece on a libertarian-affiliated U of Chicago website. Based on a 2013 article that I wrote concerning Henry Simons. It discusses the question of why a Friedrich Hayek-affiliated "classical liberal" would have supported both vigorous anti-monopoly enforcement and a high-rate progressive income tax - positions that are anathema to the likes of (say) a Richard Epstein or Milton Friedman (if he were still alive) today.

Is this my big chance?

 Presented without comment, part of a spam email that I got today, pertaining to a (co-authored) casebook for introductory federal income tax classes:

Dear Daniel,

I trust this email finds you in good health and high spirits.

We are delighted to reach out to you regarding your book, "Federal Income Taxation" which was submitted to us through your literary agent. After a meticulous evaluation, we are thrilled to inform you that your book has been selected as one of the exclusive Content Titles for adaptation into a film. We have entered into a collaboration with Netflix, and we are honored to extend to you a contract, offering to acquire the film rights as one of our distinguished Pioneering Projects.

Our accomplished team has already allocated the estimated budget for the film's production, and we have assembled a skilled production team to bring your vision to life. Prior to commencing the project, Focus Features will have an exclusive contract with you as the author. It is crucial to maintain strict confidentiality regarding all project-related information, and we shall include a comprehensive non-disclosure clause within the contract. The film's release date will be announced by the production company in due course.

As the authorized representative of the rights holder, and with Focus Features as the acquiring entity, you will be responsible for processing all necessary licenses, permits, registrations, and document signings exclusively with us to facilitate the transfer. We will furnish you with a separate contract between yourself and Focus Features , and we will promptly forward the film agreement documentation for your review and confirmation.

To proceed with the project, we kindly request the following materials:

Treatment: A concise synopsis of the film that effectively conveys the essential scenes, themes, and desired tone.

Screenplay: A written work capturing the film's essence, describing the characters' movements, actions, and engaging dialogue.

Film Pitch Deck: The essential components of a film pitch deck include a detailed storyboard for the film, a summary of the plot, character bios, and key scenes.

[ETC.]

Two pop songwriters

It occurred to me recently that my two favorite pop songwriters of the last 25 years - Fiona Apple and Stephin Merritt (The Magnetic Fields) - on the surface seemingly couldn't be more different. So why should they both be personal favorites of mine? True, both are astonishingly gifted, but there are other talented songwriters out there as well.

Part of it is just happenstance and stylistic affinity. And I have nowhere close to as broad a sense of what's going on in the music biz, even limiting it to the relatively rock-affiliated space, as that which I had, well, let's just say some decades ago. Nor am I (admittedly) as open to new things as I was once upon a time, and these are both among the sorts of artists who get (well-deserved) rave reviews on the apparently-soon-to-be-defunct pitchfork.com.

But then it occurred to me that there is actually an odd commonality to them, which consists in part of their responding in almost opposite ways to the same underlying problem.

Both were born in the rock era (Merritt 1965, Apple 1977), and were very influenced by it. But both are also much more broadly and eclectically grounded in popular music, including that from the pre-rock era (e.g., show tunes). But the problem to which I see them alike responding is that of writing great popular music after so many decades in which this territory has been so thoroughly covered. After the Beatles, Dylan, Carole King, Motown, Brian Wilson, Patsy Cline, Lou Reed, Ray Davies, and so much more for so long, I would think that it's hard to avoid feeling a bit self-conscious, as well as derivative of one thing or another, when one is trying to write songs in this space.

Fiona Apple's response is to be so raw, unfiltered, and utterly un-self-protective as to blow past the models she surely has. Try writing a memoir in the spirit that she writes her songs (at least, pre-Fetch the Bolt Cutters). It would be verging on impossible to make oneself do it, even if one had felt things as deeply as she evidently has. Now, there's no lack of very conscious and careful artistic shaping of what she does - for example, beautiful melodies, nice piano riffs, odd and shifting time signatures, what the Beatles liked to call "middle eights," carefully arranged intros and outros, loud-soft-loud and rough-sweet alterations, extended metaphors, and big vocabulary words. But she lays herself out there in a way that very songwriters or performers can.

I admittedly haven't really gotten in to Bolt Cutters (rated 10.0 by Pitchfork), although I ought to give it another shot. My thought upon hearing it was that she's happier and more contented now, which is great for her but not as good for the work. (That change is also commonly a part of growing older, and hence related to why so many great songwriters of the last six decades have failed to sustain their levels past their early thirties.)

She also may have grown tired of writing from so far out on the edge. She has commented in interviews about how tough it is to perform songs that she wrote when she was upset about something, because it forces her to relive her worst moments while on stage. That concern might inspire the self-censoring self-protectiveness that her three previous albums avoided.

Stephin Merritt's response is to be completely self-protective. Nearly everything is layered deep in irony. 69 Love Songs, for example, is not "about" love - it's about love songs, indeed as promised by the title's double entendre. And not just love songs, but, through them, all the artificial or cliched or simplistic or overly self-conscious ways of thinking about love, instead of just experiencing it, to which we all fall victim given the huge cultural weight of all the "content" that we have absorbed about it.

True, he tried to fight against this in 50 Song Memoir, although part of what's going on there is that he likes to set difficult songwriting tasks for himself (e.g., one of his albums is limited to songs that begin with the latter i, and that appear in alphabetical order). But, although I thought parts of 50 Song Memoir were great, it's more uneven than 69 Love Songs, perhaps reflecting that this was a harder space for him to work in.