In December 2023, the US Supreme Court heard oral arguments in Moore v. US, a high-profile tax case that has inspired speculation that the Court’s eventual decision could overturn much of the current tax code. A few weeks later, an NYU Law Forum convened a deep bench of tax experts to delve into the history of the case and to forecast some possible outcomes.
On the panel were Chye-Ching Huang, executive director of NYU Law’s Tax Law Center; Catherine Rampell, a columnist for the Washington Post; and Eric Solomon LLM ’84, a partner at Ivins, Phillips & Barker and former assistant secretary for tax policy at the US Department of the Treasury. The January 24 Forum was co-hosted by the Tax Law Center, which submitted an amicus brief in the case. It was moderated by David Kamin ’09, Charles L. Denison Professor of Law and the Tax Law Center’s faculty co-director.
Moore v. US centers on a relatively narrow issue stemming from the 2017 tax law—the constitutionality of taxing earnings from foreign corporations that have not been distributed to US shareholders—but the plaintiffs’ claim that the tax violates the apportionment clause of the US Constitution could also bring into question nearly a third of the existing tax code. The panel explored reasons why the plaintiffs, a couple who profited from a stake they owned in a controlled foreign corporation, might have decided to bring the case, and the participants also discussed the tenor of the Court’s questioning in oral arguments, which seemed to show a reluctance to make far-reaching changes in the tax code. The conversation raised the possibility the Court may send the case back to the appeals court with a finding that certiorari was improvidently granted.
Watch video of the Forum:
Selected remarks from the Forum:
Eric Solomon: “This is my own personal speculation: what [the Moores are] really after is [invalidation of] a wealth tax. They want the Supreme Court to say, ‘Ah, realization is required….and therefore a wealth tax would be unconstitutional.’ That’s what I think they’re really after…And perhaps they’re also interested in getting the Supreme Court to invalidate what I call ‘mark to market provisions.’ Provisions that would tax unrealized depreciation…For example, stock [that] hasn’t been sold yet.” [video, 17: 47]
Catherine Rampell: “So I think about this case as part of a broader project to undermine the tax code, and thereby, essentially the financing of our federal government writ large.” [video, 21:01]
Chye-Ching Huang: “[David Kamin and I] wrote a[n amicus] brief saying that what [the Supreme Court] should do is rule for the government…As the tax code has recognized for a long time, there is realization here…. The petitioners’ argument really isn’t coherent. It sort of goes in a circle and doesn’t provide you clear ways of protecting the other parts of the tax code, because they can’t be distinguished from section 965.” [video, 30:15]
David Kamin: “We do know how to tax people below the 95th percentile.... But there's a question of like what tools do we have to get at the very top? And there’s a limited list: realization at death, trying to pull that forward and so on. And I think having more flexibility to pursue more of those routes makes a lot of sense given how challenging it is to actually enact.” [video, 52:49]
Posted February 14, 2023.