Moore v. United States: Brief of Amici Curiae Reuven Avi-Yonah, Clinton G. Wallace & Bret Wells in Support of Respondent

Authors

Reuven S. Avi-Yonah, University of Michigan Law SchoolFollow

Document Type

Brief

Publication Date

10-19-2023

Abstract

Amici are professors of tax law. Amici join this brief solely on their own behalf and not as representatives of their universities.

Reversing the Moore decision would invalidate or at the very least cast considerable doubt over many sections of the Internal Revenue Code. Rules that call for taxation without realization (“Nonrealization Rules”) and their predecessors can be traced back to the earliest iterations of the income tax after the Sixteenth Amendment was ratified. Although the section 965 transition tax (“Transition Tax”) is a single-application provision that has no ongoing import, it is fashioned in the same manner as Nonrealization Rules that are critically important to the effectiveness of the income tax.

Nonrealization Rules are essential to prevent tax sheltering and create a level playing field for all taxpayers. Importantly, these rules are not at odds with inclusion of income at the time of realization. Rather, these Nonrealization Rules have been carefully integrated into the income tax. Congress enacted intricately calibrated basis adjustments so that income taxed on a nonrealization basis is not taxed again when a distribution or other realization event occurs. Nonrealization Rules are also embedded in U.S. tax treaties, reflected in longstanding regulations used to implement the Internal Revenue Code, and have been embraced in Supreme Court and lower court precedents that have widely been treated as settled law until this case. These rules are essential to the broader scheme of income taxation envisioned by the Sixteenth Amendment — to ensure comprehensive and consistent taxation of all income across varied sources despite taxpayer attempts to escape the reach of the income tax through complex tax planning.

Comments

Amicus: Avi-Yonah, Professor Reuven; Wallace, Professor Clinton G.; Wells, Professor Bret

Recommended Citation

Avi-Yonah, Reuven S., "Moore v. United States: Brief of Amici Curiae Reuven Avi-Yonah, Clinton G. Wallace & Bret Wells in Support of Respondent" (2023). Appellate Briefs. 4.
https://repository.law.umich.edu/briefs/4