Containing the Blast Radius Can Congress Save the Code from Realization

Abstract

The Supreme Court’s decision in Moore v. United States avoided enshrining realization as a constitutional requirement for taxing income. But four Justices were in favor of doing so, and the majority opinion explicitly avoided deciding the issue. Thus, it is quite plausible to imagine that a future case would garner five votes in favor of constitutionalizing realization. This Article addresses the question whether Congress can do anything preemptively to contain the “blast radius” of such an explosive decision and limit the ensuing “fiscal calamity.”