Moore Questions, Some Answers Fixing the Personal Tax System Despite Constitutional Constraints

Abstract

Moore v. United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v. Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the problem and the times.