No.

22-800

In the Supreme Court of the United States

CHARLES G. MOORE, ET AL.,
PETITIONERS

v.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
DAVID A. HUBBERT
Deputy Assistant Attorney
General
FRANCESCA UGOLINI
MICHAEL J. HAUNGS
DOUGLAS C. RENNIE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217
 QUESTION PRESENTED
The Sixteenth Amendment states that “Congress
shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment
among the several States, and without regard to any
census or enumeration.” U.S. Const. Amend. XVI. In
2017, Congress passed and President Trump signed the
Tax Cuts and Jobs Act (TCJA), Pub. L. No. 115-97, 131
Stat. 2054. The TCJA included a one-time mandatory
repatriation tax (MRT) to offset other tax benefits
granted to U.S. corporations. The MRT classifies a
U.S.-taxpayer-controlled foreign corporation’s (CFC)
“accumulated post-1986 deferred foreign income” as
part of the CFC’s taxable income in 2017. 26 U.S.C.
965(a) and (b). Correspondingly, under the MRT, U.S.
shareholders owning 10% or more of a CFC could be
required to pay a one-time tax due to their obligation to
“include in [their 2017] gross income” their “pro rata
share” of the CFC’s relevant “income for such year.” 26
U.S.C. 951(a)(1)(A). The question presented is:
Whether the MRT is a “tax[] on incomes, from what-
ever source derived,” U.S. Const. Amend. XVI, within
the meaning of the Sixteenth Amendment.

(I)
 TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 1
Argument....................................................................................... 8
Conclusion ................................................................................... 26

TABLE OF AUTHORITIES

Cases:
Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916) ................ 9
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ................. 10
Commissioner v. Banks, 543 U.S. 426 (2005) ....................... 9
Commissioner v. Glenshaw Glass Co.,
348 U.S. 426 (1955)...........................................7, 9, 15, 19, 21
Commissioner v. Kowalski, 434 U.S. 77 (1977).................. 15
Commissioner v. Indianapolis Power & Light Co.,
493 U.S. 203 (1990).............................................................. 15
Commissioner v. Obear-Nester Glass Co.,
217 F.2d 56 (7th Cir. 1954), cert. denied,
348 U.S. 982 (1955).............................................................. 17
Cottage Sav. Ass’n v. Commissioner,
499 U.S. 554 (1991)........................................................ 15, 16
Eder v. Commissioner, 138 F.2d 27 (2d Cir. 1943) ...... 21, 22
Eisner v. Macomber, 252 U.S. 189 (1920) .................. 6, 12-14
Estate of Whitlock v. Commissioner,
494 F.2d 1297 (10th Cir. 1974) ........................................... 22
Flint v. Stone Tracy Co., 220 U.S. 107 (1911) ..................... 24
Garlock, Inc. v. Commissioner, 489 F.2d 197
(2d Cir. 1973), cert. denied, 417 U.S. 911 (1974) .............. 21
Heiner v. Mellon, 304 U.S. 271 (1938) ................................. 10
Helvering v. Bruun, 309 U.S. 461 (1940) .................. 7, 13, 14
Helvering v. Clifford, 309 U.S. 331 (1940)............................. 9

(III)
 IV

Cases—Continued: Page
Helvering v. Griffiths, 318 U.S. 371 (1943) ................... 14, 25
Helvering v. Horst, 311 U.S. 112 (1940) ................ 6, 7, 14, 16
Helvering v. National Grocery Co.,
304 U.S. 282 (1938).............................................................. 10
James v. United States, 366 U.S. 213 (1961) ...................... 15
MacLaughlin v. Alliance Ins. Co.,
286 U.S. 244 (1932).............................................................. 14
Murphy v. United States, 992 F.2d 929
(9th Cir. 1993)...................................................................... 11
National Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012)................................................................ 2
Pacific Ins. Co. v. Soule, 74 U.S. (7 Wall.) 433 (1868)........ 23
Pollock v. Farmers’ Loan & Trust Co.,
158 U.S. 601 (1895).......................................................... 2, 23
Prescott v. Commissioner, 561 F.2d 1287
(8th Cir. 1977)...................................................................... 22
Quijano v. United States, 93 F.3d 26 (1st Cir. 1996),
cert. denied, 519 U.S. 1059 (1997) ..................................... 20
Simmons v. United States, 308 F.2d 160
(4th Cir. 1962)................................................................ 20, 21
Spreckels Sugar Ref. Co. v. McClain,
192 U.S. 397 (1904).............................................................. 24
Springer v. United States, 102 U.S. 586 (1880) .................... 2
Taft v. Bowers, 278 U.S. 470 (1929) ..................................... 14
The Florida Bar v. Behm, 41 So. 3d 136 (Fla. 2010) .......... 17
TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) ......................................................... 25
United States v. Basye, 410 U.S. 441 (1973) ....................... 10
United States v. Burke, 504 U.S. 229 (1992) ................... 9, 19
United States v. Safety Car Heating & Lighting Co.,
297 U.S. 88 (1936) ............................................................... 14
Weiss v. Stearn, 265 U.S. 242 (1924) ................................... 14
 V

Constitution and statutes: Page

U.S. Const.:
Art. I ................................................................................. 19
§ 8, Cl. 1 ............................................................ 1, 12, 23
§ 9:
Cl. 4.......................................................................... 2
Cl. 5........................................................................ 12
Amend. XVI ...............................2, 6-9, 11-14, 18-21, 23-25
Revenue Act of 1962, Pub. L. No. 87-834, § 12,
76 Stat. 1006-1031 ................................................................. 2
Tax Cuts and Jobs Act, Pub. L. No. 115-97,
131 Stat. 2054 (2017) ............................................................. 3
Technical Amendments Act of 1958,
Pub. L. No. 85-866, § 64, 72 Stat. 1652 ............................. 11
Subchapter S Revision Act of 1982,
Pub. L. No. 97-354, § 2, 96 Stat. 1677 ............................... 11
26 U.S.C. 61(a) ......................................................................... 9
26 U.S.C. 245A(a)................................................................. 3, 4
26 U.S.C. 475(a) ..................................................................... 11
26 U.S.C. 702(a) ..................................................................... 11
26 U.S.C. 817A(b) .................................................................. 11
26 U.S.C. 877A(a)................................................................... 11
26 U.S.C. 951(a) ................................................................. 3, 24
26 U.S.C. 951(a)(1) ................................................................... 5
26 U.S.C. 951(a)(1)(A) ................................................... 3, 4, 10
26 U.S.C. 951(b) ................................................................. 3, 24
26 U.S.C. 954 ............................................................................ 3
26 U.S.C. 956 ............................................................................ 3
26 U.S.C. 959(a) ....................................................................... 4
26 U.S.C. 965(a) ......................................................... 11, 12, 24
26 U.S.C. 965(a)(1)-(2) ........................................4, 5, 10, 23, 25
 VI

Statutes—Continued: Page
26 U.S.C. 965(c)........................................................................ 4
26 U.S.C. 965(h) ....................................................................... 4
26 U.S.C. 1001(a) ................................................................... 16
26 U.S.C. 1256 ........................................................................ 11
26 U.S.C. 1256(a) ................................................................... 11
26 U.S.C. 1256(b) ................................................................... 11
26 U.S.C. 1366(a)(1)(A) ......................................................... 11

Miscellaneous:
Bruce Ackerman, Taxation and the Constitution,
99 Colum. L. Rev. 1 (1999) ................................................. 16
Boris I. Bittker & Lawrence Lokken, Federal
Taxation of Income, Estates, and Gifts
(3d ed. 1999)................................................................... 16, 18
Henry Campbell Black, A Law Dictionary
(2d ed. 1910)......................................................................... 18
The Century Dictionary and Cyclopedia (1911) ............... 18
Marvin A. Chirelstein & Lawrence Zelenak, Federal
Income Taxation (14th ed. 2018) ...................................... 17
Noel B. Cunningham & Deborah H. Schenk,
Taxation Without Realization: A
“Revolutionary” Approach to Ownership,
47 Tax L. Rev. 725 (1992) ............................................. 16, 17
H.R. Rep. No. 409, 115th Cong., 1st Sess. (2017) ............. 3, 4
Robert Murray Haig, The Federal Income Tax
(1921) .................................................................................... 18
Robert H. Montgomery, Income Tax Procedure
(1919) .................................................................................... 19
S. Rep. No. 1881, 87th Cong., 2d Sess. (1962) ....................... 3
Edwin R. A. Seligman, The Income Tax: A Study of
the History, Theory, and Practice of Income
Taxation at Home and Abroad (1911) ............................. 19
 VII

Miscellaneous—Continued: Page
Michael Smolyansky et al., Board of Governors of
the Federal Reserve System, U.S. Federal Re-
serve, U.S. Corporations’ Repatriation of Offshore
Profits: Evidence from 2018, Bd. of Governors of
the Fed. Reserve Sys. (Aug. 6, 2019) ), https://www.
federalreserve.gov/econres/notes/feds-notes/us-
corporations-repatriation-of-offshore-profits-
20190806.html........................................................................ 5
Stanley S. Surrey, The Supreme Court and the
Federal Income Tax: Some Implications of the
Recent Decisions, 35 Ill. L. Rev. 779 (1941)..................... 16
Webster’s New International Dictionary of the
English Language (1911)................................................... 18
In the Supreme Court of the United States
No. 22-800
CHARLES G. MOORE, ET AL.,
PETITIONERS
v.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-20)
is reported at 36 F.4th 930. The order of the district
court (Pet. App. 21-34) is unreported but is available at
2020 WL 6799022.
JURISDICTION
The judgment of the court of appeals was entered on
June 7, 2022. A petition for rehearing was denied on
November 22, 2022 (Pet. App. 35-36). The petition for a
writ of certiorari was filed on February 21, 2023. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
1. a. The Constitution empowers Congress “To lay
and collect Taxes.” U.S. Const. Art. I, § 8, Cl. 1. One of

(1)
 2
the few limitations on that taxing power is that “[n]o
capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before
directed to be taken.” U.S. Const., Art. I, § 9, Cl. 4.
“This requirement means that any ‘direct Tax’ must be
apportioned so that each State pays in proportion to its
population.” National Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519, 570 (2012) (opinion of Roberts, C.J.)
(NFIB). For over a century, the Court held that “direct
taxes, within the meaning of the Constitution, are only
capitation taxes * * * and taxes on real estate.”
Springer v. United States, 102 U.S. 586, 602 (1880).
Then, in Pollock v. Farmers’ Loan & Trust Co., 158 U.S.
601 (1895), the Court held that a tax on income from real
and personal property also qualified as a direct tax. Id.
at 618.
In 1913, the Sixteenth Amendment was ratified to
“overturn[]” Pollock. NFIB, 567 U.S. at 571. The Six-
teenth Amendment provides that “Congress shall have
power to lay and collect taxes on incomes, from what-
ever source derived, without apportionment among the
several States, and without regard to any census or enu-
meration.” U.S. Const. Amend. XVI. Nothing in the
Amendment’s text refers to the concept of realized
gains.
b. In 1962, Congress enacted Subpart F of the In-
ternal Revenue Code, which requires U.S. shareholders
of certain foreign corporations to pay taxes on their pro
rata shares of the corporations’ foreign income. See
Revenue Act of 1962, Pub. L. No. 87-834, § 12, 76 Stat.
1006-1031. Before Subpart F’s enactment, U.S. share-
holders of foreign corporations were generally taxed on
the earnings of those corporations only if the earnings
were distributed to U.S. shareholders as dividends. See
 3
S. Rep. No. 1881, 87th Cong., 2d Sess. 78 (1962). That
regime encouraged U.S. shareholders of foreign corpo-
rations to avoid payment of U.S. taxes by keeping their
foreign earnings offshore. Ibid.
Subpart F limits that tax-avoidance practice by re-
quiring U.S. shareholders owning 10% or more of U.S.-
taxpayer-controlled foreign corporations (CFCs) to “in-
clude in [their] gross income” their “pro rata share * * *
of the corporation’s subpart F income for such year.” 26
U.S.C. 951(a)(1)(A); see 26 U.S.C. 951(b). That require-
ment applies even where the CFC’s earnings have not
been distributed to the U.S. shareholders. See 26
U.S.C. 951(a). But Subpart F income includes only
some forms of income, such as certain interest, sales,
and investment income. See 26 U.S.C. 951(a), 954, and
956. It generally does not include “the CFC’s active
business income attributable to the CFC’s own business
held offshore, such as when a CFC manufactures and
sells products to a third party in a foreign country.”
Pet. App. 6. Thus, notwithstanding Subpart F, by 2015
CFCs had accumulated more than $2.6 trillion in off-
shore earnings that had not been subjected to U.S. tax-
ation. Id. at 5-6.
c. In 2017, Congress passed and President Trump
signed the Tax Cuts and Jobs Act (TCJA or the Act),
Pub. L. No. 115-97, 131 Stat. 2054. “The TCJA trans-
formed U.S. corporate taxation from a worldwide sys-
tem, where corporations were generally taxed regard-
less of where their profits were derived, toward a terri-
torial system, where corporations are generally taxed
only on their domestic source profits.” Pet. App. 6; see
H.R. Rep. No. 409, 115th Cong., 1st Sess. 370 (2017)
(House Report).
 4
As relevant here, that transformation involved two
key elements. First, the Act provides that when certain
foreign corporations, including CFCs, distribute their
earnings as dividends to U.S. corporate shareholders,
those earnings are generally no longer taxed. 1 See 26
U.S.C. 245A(a). Thus, the Act eliminates, on an ongoing
basis, the prior taxes that would have applied to divi-
dends distributed by a CFC to a U.S. corporate share-
holder.
Second, “[t]o avoid a potential windfall for [CFCs]
that deferred income” and can now distribute that in-
come tax-free to U.S. corporate shareholders, the Act
includes a one-time mandatory repatriation tax (MRT).
House Report 375. The MRT classifies a CFC’s “accu-
mulated post-1986 deferred foreign income” as part of
its Subpart F taxable income in 2017. 26 U.S.C.
965(a)(1)-(2). Correspondingly, under the MRT, U.S.
shareholders owning 10% or more of a CFC could be
required to pay a one-time tax due to their obligation to
“include in [their 2017] gross income” their “pro rata
share” of the CFC’s relevant “income for such year.” 26
U.S.C. 951(a)(1)(A). To mitigate the effect of that one-
time tax on U.S. shareholders, however, the MRT pro-
vides those shareholders favorable rates on the tax, 26
U.S.C. 965(c), allows them to pay the tax in interest-free
installments over an eight-year period, 26 U.S.C.
965(h), and permits them to repatriate Subpart F in-
come without incurring any further tax, 26 U.S.C.
959(a).

1
The TCJA provisions relevant here apply to “specified 10 -
percent owned foreign corporations,” 26 U.S.C. 245A(a), including
CFCs. Because this case concerns a CFC, the brief refers to CFCs
for simplicity.
 5
The TCJA appears to be working largely as Con-
gress envisioned. In 2018, following the Act’s enact-
ment, U.S. multinational enterprises distributed ap-
proximately $777 billion to U.S. shareholders. See Mi-
chael Smolyansky et al., Board of Governors of the Fed-
eral Reserve System, U.S. Federal Reserve, U.S. Cor-
porations’ Repatriation of Offshore Profits: Evidence
from 2018 (Aug. 6, 2019), https://www.federalreserve.gov/
econres/notes/feds-notes/us-corporations-repatriation-
of-offshore-profits-20190806.html. At the same time,
the MRT is projected to generate approximately $340
billion in tax revenue. Pet. App. 7.
2. In 2005, petitioners invested $40,000 in Kisan-
Kraft Machine Tools Private Limited, a CFC that sup-
plies modern tools to small farmers in India. Pet. App.
5. In exchange for their investment, petitioners re-
ceived 11% of the company’s common shares. Ibid.
KisanKraft has generated profits every year since its
founding. Ibid. But instead of distributing dividends to
its shareholders, it has reinvested its earnings into the
business. Ibid.
Under the MRT, KisanKraft’s “accumulated post-
1986 deferred foreign income”—amounting to approxi-
mately $508,000—was treated as its 2017 Subpart F in-
come. 26 U.S.C. 965(a)(1)-(2); see Pet. App. 7. In turn,
because petitioners owned more than 10% of Kisan-
Kraft’s shares, they had an additional $132,512 in 2017
taxable income and owed an additional $14,729 in in-
come taxes based on their pro rata share of Kisan-
Kraft’s 2017 Subpart F income. Pet. App. 74-75; see 26
U.S.C. 951(a)(1).
3. Petitioners paid their tax liability and then sued
the government in the United States District Court for
the Western District of Washington, seeking to recover
 6
the additional amount they paid because of the MRT.
Pet. App. 23. As relevant, petitioners asserted that the
MRT is unconstitutional because it imposes a direct tax
that is not apportioned, rather than a permissible in-
come tax. Ibid.
The district court granted the government’s motion
to dismiss. Pet. App. 21-34. The court held that the
MRT is a “taxation of income” falling within Congress’s
power under the Sixteenth Amendment. Id. at 25. It
rejected petitioners’ reliance on Eisner v. Macomber,
252 U.S. 189 (1920), for the assertion that a shareholder
must realize—or directly receive—income from a cor-
poration before that income can be taxed. The court ex-
plained that the Supreme Court had “cabin[ed]” Ma-
comber to the stock-dividend context, and there was
therefore “no reason for th[e] Court to conclude that
Macomber currently controls whether the MRT is an
income tax.” Pet. App. 28. The court also pointed to
“numerous contemporary statutory regimes, outside of
subpart F, that require the current taxation of unreal-
ized income—none of which have been successfully
challenged on Macomber grounds.” Ibid.
4. The court of appeals affirmed. Pet. App. 1-20.
The court held that the MRT is an income tax under the
Sixteenth Amendment and thus “consistent with the
Apportionment Clause.” Id. at 13. It could “find no per-
suasive authority” to support petitioners’ contrary po-
sition. Id. at 5.
The court of appeals began by setting forth three
longstanding principles. First, “[w]hether the taxpayer
has realized income does not determine whether a tax is
constitutional.” Pet. App. 12 (citing Helvering v. Horst,
311 U.S. 112, 116 (1940)). Second, “[w]hat constitutes a
taxable gain is also broadly construed.” Ibid. (citing
 7
Helvering v. Bruun, 309 U.S. 461, 469 (1940)). And
third, “there is no blanket constitutional ban on Con-
gress disregarding the corporate form to facilitate tax-
ation of shareholders’ income.” Id. at 13.
Applying those principles here, the court of appeals
determined that the MRT is a permissible income tax
under the Sixteenth Amendment. “[T]here is no dis-
pute,” the court explained, “that KisanKraft actually
earned significant income.” Pet. App. 13. And even
“[b]efore the MRT, U.S. persons owning at least 10% of
a CFC were already subject to certain taxes on the
CFC’s income.” Id. at 14. “The MRT,” the court rea-
soned, simply “builds upon these U.S. persons’ preex-
isting tax liability attributing a CFC’s income to its
shareholders” by “assign[ing] only a pro-rata share of
that income to the [petitioners].” Ibid.
The court of appeals deemed petitioners’ reliance on
this Court’s decisions in Macomber and Commissioner
v. Glenshaw Glass Co., 348 U.S. 426 (1955), “misplaced.”
Pet. App. 14. The court emphasized that neither deci-
sion on its own terms supports “a universal definition of
income” that requires realization. Id. at 15. And the
court cited later cases “ma[king] clear” that “the con-
cept of realization is ‘founded on administrative conven-
ience’ and does not mean that a taxpayer can ‘escape
taxation because he did not actually receive the
money.’ ” Ibid. (quoting Horst, 311 U.S. at 116).
Finally, the court of appeals observed that “courts
have held consistently that taxes similar to the MRT are
constitutional.” Pet. App. 11. And it warned that adopt-
ing petitioners’ position would “call into question the
constitutionality of many other tax provisions that have
long been on the books.” Id. at 16.
 8
5. The court of appeals denied petitioners’ petition
for panel rehearing and rehearing en banc. Pet. App.
36-37. Judge Bumatay authored a dissent from denial
of rehearing en banc, joined by three other judges. Id.
at 37-56. Judge Bumatay would have read a “realization
requirement” into the Sixteenth Amendment, id. at 53,
even though the Amendment’s text never references re-
alization. And while he acknowledged that “Macomber
does not establish a ‘universal’ meaning of ‘income,’  ” he
concluded that Macomber requires treating “realization
as a definitional requirement” of income. Id. at 54.
ARGUMENT
Petitioners renew their contention (Pet. 9-16) that
the MRT is not a permissible income tax, but instead an
unconstitutional direct tax lacking apportionment. But
the court of appeals correctly rejected that contention
because it is unsupported by constitutional text, con-
gressional practice, or this Court’s precedent. Contrary
to petitioners’ submission (Pet. 16-17), the decision be-
low does not conflict with the decision of any other court
of appeals. In fact, no other court of appeals has even
considered the MRT’s constitutionality. And because
the MRT is a one-time tax applicable only to pre-2018
income, the case lacks pressing prospective importance.
This Court’s review is unwarranted.
1. The court of appeals correctly held that the MRT
is a “tax[] on incomes” falling within the Sixteenth
Amendment. U.S. Const. Amend. XVI. Petitioners’
contrary arguments run counter to constitutional text,
congressional practice, and this Court’s precedent.
a. The Sixteenth Amendment provides that “Con-
gress shall have power to lay and collect taxes on in-
comes, from whatever source derived, without appor-
tionment among the several States, and without regard
 9
to any census or enumeration.” U.S. Const. Amend.
XVI. “It is clear on the face of this text that it does not
purport to * * * limit and distinguish between one kind
of income taxes and another,” and “that the whole pur-
pose of the Amendment was to relieve all income taxes
when imposed from apportionment.” Brushaber v. Un-
ion Pac. R.R., 240 U.S. 1, 17-18 (1916) (emphasis
added).
This Court has consistently interpreted the phrase
“gross income” under the Tax Code to “sweep[]
broadly.” United States v. Burke, 504 U.S. 229, 233
(1992); see 26 U.S.C. 61(a). The definition of “gross in-
come,” the Court has explained, includes “any ‘acces-
sio[n] to wealth,’ ” ibid. (quoting Commissioner v. Glen-
shaw Glass Co., 348 U.S. 426, 431 (1955)) (brackets in
original), and thus “extends broadly to all economic
gains not otherwise exempted,” Commissioner v.
Banks, 543 U.S. 426, 433 (2005). Because “Congress in-
tended” the Tax Code’s definition of “gross income” to
stretch to “ ‘the full measure of [Congress’s] taxing
power’ ” under the Constitution, the same broad defini-
tion of income applies under the Sixteenth Amendment.
Burke, 504 U.S. at 233 (quoting Helvering v. Clifford,
309 U.S. 331, 334 (1940)). Indeed, the Code’s definition
of “gross income” is materially identical to the Six-
teenth Amendment’s language. Compare 26 U.S.C.
61(a) (“gross income means all income from whatever
source derived”), with U.S. Const. Amend. XVI (apply-
ing to “incomes, from whatever source derived”); see
Pet. 14 n.5 (agreeing that the “statutory definition of
‘gross income’ ” tracks the Sixteenth Amendment).
Under that definition, the MRT plainly qualifies as a
tax on income. It applies to U.S. shareholders owning
at least 10% of a CFC that has “accumulated post-1986
 10
deferred foreign income.” 26 U.S.C. 965(a)(1)-(2) (em-
phasis added). Before the MRT, those same U.S. share-
holders were already required to pay taxes on their “pro
rata share” of a CFC’s annual “subpart F income”—and
were required to do so even when that income had not
been distributed to the shareholders. 26 U.S.C.
951(a)(1)(A); see Pet. App. 14. Now, under the MRT,
those same shareholders must simply pay taxes on their
“pro-rata share” of the CFC’s deferred income between
1986 and 2017. Pet. App. 14. “[T]here is no constitu-
tional prohibition against Congress attributing a corpo-
ration’s income pro-rata to its shareholders” in that
manner, id. at 13—as Congress has long done in Sub-
part F. See Helvering v. National Grocery Co., 304
U.S. 282, 288 (1938) (explaining that a business owner
“could not by conducting it as a corporation, prevent
Congress, if it chose to do so, from laying on him indi-
vidually the tax on the year’s profits”).
Beyond Subpart F, the MRT is similar to other
longstanding income taxes. See, e.g., Chiafalo v. Wash-
ington, 140 S. Ct. 2316, 2326 (2020) (“  ‘Long settled and
established practice’ may have ‘great weight in a proper
interpretation of constitutional provisions.’  ”) (citation
omitted). For instance, Congress has long taxed an in-
dividual partner’s “proportionate share of the net in-
come of [a] partnership,” even where that share is not
“currently distributable, whether by agreement of the
parties or by operation of law.” Heiner v. Mellon, 304
U.S. 271, 281 (1938); see id. at 277-281 (upholding such
a tax against various statutory challenges); United
States v. Basye, 410 U.S. 441, 453 (1973) (“[I]t is axio-
matic that each partner must pay taxes on his distribu-
tive share of the partnership’s income without regard to
whether that amount is actually distributed to him.”);
 11
see also 26 U.S.C. 702(a). And for the 65 years since it
recognized S corporations, Congress has imposed an
analogous requirement on shareholders of S corpora-
tions. 26 U.S.C. 1366(a)(1)(A) (taxing “the share-
holder’s pro rata share of the corporation’s * * * items
of income”); see Subchapter S Revision Act of 1982,
Pub. L. No. 97-354, § 2, 96 Stat. 1677; Technical Amend-
ments Act of 1958, Pub. L. No. 85-866, § 64, 72 Stat.
1652. Nothing in the Sixteenth Amendment’s text or
history suggests that the undistributed income of a
CFC must be treated differently from the undistributed
income of a partnership or S corporation.
In addition, the Code includes several other income
taxes that share common features with the MRT. For
instance, U.S. citizens who relinquish their citizenship
are taxed as if they had sold all their assets the day be-
fore expatriation—even though no realized gain from
such a sale in fact took place. See 26 U.S.C. 877A(a).
And numerous assets are taxed as if they had been sold
for a realized gain at the end of a taxable year—even if
they were not in fact sold—including regulated futures
contracts, 26 U.S.C. 1256(a) and (b), securities held by
securities dealers, 26 U.S.C. 475(a), and certain assets
held by life insurance companies, 26 U.S.C. 817A(b).
See Murphy v. United States, 992 F.2d 929, 931 (9th
Cir. 1993) (rejecting the argument that Section 1256 “is
unconstitutional because it taxes unrealized gains”).
Those established taxes are materially comparable to
the MRT, which taxes CFC shareholders on a CFC’s
post-1986 deferred income as if it had been earned in
2017. See 26 U.S.C. 965(a).
b. Petitioners contend (Pet. 10) that the MRT is un-
constitutional because, in their view, the Sixteenth
Amendment applies exclusively “to taxes on realized
 12
gains.” Yet even if that premise were correct, the MRT
would be permissible because it applies to the post-1986
gains that corporations have realized. See 26 U.S.C.
965(a). Here, for instance, “there is no dispute that
KisanKraft actually” realized gains. Pet. App. 13. Pe-
titioners thus appear to take issue only with Congress’s
choice to tax shareholders on a corporation’s realized
gains, rather than taxing the corporation itself on those
gains. But petitioners have identified no “constitutional
ban on Congress disregarding the corporate form to fa-
cilitate taxation of shareholders’ income,” ibid.—as
Congress has long done in Subpart F and similar con-
texts involving partnerships and S corporations, see pp.
10-11, supra.
In any event, the Sixteenth Amendment does not re-
strict Congress to taxing only realized gains. By its
terms, the Sixteenth Amendment applies to “taxes on
incomes, from whatever source derived.” U.S. Const.
Amend. XVI. It says nothing about being limited to re-
alized gains. And petitioners identify no reason to think
that the Framers of the Sixteenth Amendment intended
any such limit to be implicit—which would be a particu-
larly unusual approach, since the Constitution else-
where makes explicit its limits on Congress’s taxing
powers. See U.S. Const. Art. I, § 9, Cl. 5 (“No tax or
duty shall be laid on Articles exported from any
State.”); U.S. Const. Art. I, § 8, Cl. 1 (requiring all “Du-
ties, Imposts and Excises” to be “uniform throughout
the United States”).
Petitioners base their implicit limitation of income to
realized gains primarily on this Court’s decision in Eis-
ner v. Macomber, 252 U.S. 189 (1920), which considered
whether a “stock dividend” qualified as income under
the Sixteenth Amendment. Id. at 210. There, Standard
 13
Oil shareholders had received an additional 50% of their
current number of shares (e.g., a shareholder with 2200
shares received an additional 1100 shares). See id. at
200-201. As the Court explained, such a “stock divi-
dend” is simply a “book adjustment” that “does not al-
ter the pre-[e]xisting proportionate interest of any
stockholder or increase the intrinsic value of his hold-
ing.” Id. at 210-211. “The new [stock] certificates
simply increase the number of the shares, with conse-
quent dilution of the value of each share.” Id. at 211.
And the Court held that “the essential nature of a stock
dividend necessarily prevents its being regarded as in-
come in any true sense” for purposes of the Sixteenth
Amendment. Id. at 205.
Although the Court recognized that it could have
“rest[ed] the * * * case there,” Macomber, 252 U.S. at
205, it went on to observe that “income” is best under-
stood as “a gain, a profit, something of exchangeable
value” that is “received or drawn by the recipient (the
taxpayer) for his separate use, benefit, and disposal,”
id. at 207. Justice Holmes dissented, concluding that
because “the word ‘incomes’ in the Sixteenth Amend-
ment should be read in ‘a sense most obvious to the com-
mon understanding at the time of its adoption,’ ” it “jus-
tifies the tax” at issue. Id. at 219-220 (citation omitted);
see also id. at 230-232 (Brandeis, J., dissenting) (simi-
lar).
Petitioners’ reliance on Macomber is misplaced be-
cause later decisions have severely limited its relevance
as a constitutional precedent. In Helvering v. Bruun,
309 U.S. 461 (1940), for instance, this Court made clear
that the “expressions” in Macomber that petitioners
here emphasize were simply “used to clarify the distinc-
tion between an ordinary dividend and a stock dividend”
 14
and “to show that in the case of a stock dividend, the
stockholder’s interest in the corporate assets after re-
ceipt of the dividend was the same as and inseverable
from that which he owned before the dividend was de-
clared.” Id. at 468-469; see id. at 468 n.8. The Court
therefore deemed Macomber “not controlling” outside
of the stock-dividend context. Id. at 469. And it held
that a “business transaction” that “added an ascertain-
able amount to [the] value” of the taxpayer’s land pro-
duced a “taxable gain” even though the taxpayer could
not “sever the improvement begetting the gain from his
original capital.” Ibid.2
Other decisions also recognized that Macomber’s
relevance as a Sixteenth Amendment precedent is lim-
ited to the stock-dividend context. In Helvering v.
Horst, 311 U.S. 112 (1940), the Court held that a tax-
payer’s “economic gain” cannot “escape taxation”
simply “because he has not himself received payment of
it from his obligor.” Id. at 116. And in Helvering v.
Griffiths, 318 U.S. 371 (1943), the Court stated that both
Bruun and Horst “undermined * * * the original theo-
retical bases of the decision in Eisner v. Macomber.”
Id. at 394; see also id. at 404 (Douglas, J., dissenting)
(“Eisner v. Macomber dies a slow death.”).

2
Petitioners cite (Pet. 11-12) four decisions between Macomber
and Bruun. But each of them preceded Bruun’s recognition that
Macomber is limited to the stock-dividend context. In any event,
only one of those decisions invalidated a tax under the Sixteenth
Amendment, and it simply applied Macomber to a transaction ma-
terially indistinguishable from the one in Macomber itself. See
Weiss v. Stearn, 265 U.S. 242, 253-254 (1924). Each of the other
three decisions upheld a tax’s constitutionality. See United States
v. Safety Car Heating & Lighting Co., 297 U.S. 88, 99 (1936);
MacLaughlin v. Alliance Ins. Co., 286 U.S. 244, 250-251 (1932); Taft
v. Bowers, 278 U.S. 470, 482-484 (1929).
 15
Contrary to petitioners’ submission (Pet. 13), the
Court’s decision in Commissioner v. Glenshaw Glass
Co., 348 U.S. 426 (1955), also demonstrates Macomber’s
limited scope. There, the Court observed that Ma-
comber’s understanding of income “served a useful pur-
pose” “[i]n th[e] context” of “a corporate stock divi-
dend.” Id. at 430-431. “But,” the Court recognized, that
understanding “was not meant to provide a touchstone
to all future gross income questions.” Id. at 431. Peti-
tioners emphasize (Pet. 13) the Court’s statement that
a punitive damages award constituted income because
it involved an “undeniable accession[] to wealth, clearly
realized, and over which the taxpayers have complete
dominion.” Glenshaw Glass, 348 U.S. at 431. But that
statement simply listed elements that were sufficient to
create income on the facts of that case—not necessary
elements of income in every case. Pet. App. 15. Indeed,
elsewhere in Glenshaw Glass, the Court emphasized
the “sweeping” and “broad” definition of income, which
includes “all gains except those specifically exempted.”
Glenshaw Glass, 348 U.S. at 429-430.3
To be sure, Macomber remains relevant when inter-
preting the statutory “concept of realization.” Cottage
Sav. Ass’n v. Commissioner, 499 U.S. 554, 559 (1991);

3
Petitioners cite (Pet. 13-14) three cases that quote Glenshaw
Glass’s statement about realization, but none of those cases sug-
gests that petitioners’ understanding of realization is a necessary
element of income. And each of them involved economic gains far
afield from those at issue here. See Commissioner v. Indianapolis
Power & Light Co., 493 U.S. 203, 209 (1990) (holding that customer
deposits were not income to a utility because the utility had an “ex-
press ‘obligation to repay’ ” them) (citation omitted); Commissioner
v. Kowalski, 434 U.S. 77, 83 (1977) (holding that “meal-allowance
payments are income”); James v. United States, 366 U.S. 213, 219-
220 (1961) (holding that embezzled funds are income).
 16
see id. at 563 (relying on Macomber); Pet. 11. But that
concept—which does not apply when Congress does not
incorporate it—does not derive from the Code’s defini-
tion of “gross income.” Instead, it is rooted in separate
Code provisions, such as one defining “ ‘[t]he gain [or
loss] from the sale or other disposition of property’ as
the difference between ‘the amount realized’ from the
sale or disposition of the property and its ‘adjusted ba-
sis.’ ” Cottage Sav. Ass’n, 499 U.S. at 559 (quoting 26
U.S.C. 1001(a)) (brackets in original). In those provi-
sions, Congress has invoked the concept of realization
for “ ‘administrative convenience,’ ” because an “appre-
ciation-based system of taxation” could require “ ‘cum-
bersome’ ” annual assessments of whether “assets had
appreciated or depreciated in value.” Ibid. (quoting
Horst, 311 U.S. at 116). Accordingly, the statutory con-
cept of realization “only informs when income generally
should be reported,” without “defin[ing] what income
is.” Noel B. Cunningham & Deborah H. Schenk, Taxa-
tion Without Realization: A “Revolutionary” Ap-
proach to Ownership, 47 Tax L. Rev. 725, 741 (1992).
And Congress’s decision to invoke realization for statu-
tory purposes in some contexts does not suggest that
realization is a constitutional mandate.
Thus, tax scholars have long agreed that “the formal-
istic doctrine of realization proclaimed by [Macomber]
is not a constitutional mandate.” Stanley S. Surrey, The
Supreme Court and the Federal Income Tax: Some Im-
plications of the Recent Decisions, 35 Ill. L. Rev. 779,
791 (1941).4 And other courts have, like the court of ap-

4
See, e.g., Bruce Ackerman, Taxation and the Constitution, 99
Colum. L. Rev. 1, 52 (1999) ( “[T]he modern scholarly consensus is
clear—a good lawyer relies on Macomber at her peril.”); Boris I.
Bittker & Lawrence Lokken, Federal Taxation of Income, Estates,
 17
peals below, recognized that Macomber retains limited
relevance beyond the stock-dividend context. See, e.g.,
Commissioner v. Obear-Nester Glass Co., 217 F.2d 56,
60 (7th Cir. 1954) (“[Macomber] has been limited to its
specific facts.”), cert. denied, 348 U.S. 982 (1955); The
Florida Bar v. Behm, 41 So. 3d 136, 145 n.8 (Fla. 2010)
(per curiam) (“[Macomber] applies only to stock divi-
dends.”).
c. Petitioners also contend (Pet. 17) that Ma-
comber’s realization requirement accords with the ordi-
nary meaning of “income” “at the time of the Sixteenth
Amendment’s drafting and ratification.” But in fact,
Macomber adopted an idiosyncratic understanding of
“income” at the expense of the term’s ordinary mean-
ing. As Justice Holmes explained in his Macomber dis-
sent, “the word ‘incomes’ in the Sixteenth Amendment
should be read in a ‘sense most obvious to the common
understanding at the time of its adoption,’ ” and “most
people not lawyers would suppose when they voted for
it that they put a question like the present to rest.” Ma-
comber, 252 U.S. at 219-220 (citation omitted). The
“known purpose of this Amendment was to get rid of
nice questions as to what might be direct taxes,” id. at

and Gifts ¶ 5.2, 5-19 (3d ed. 1999) (explaining that “realization re-
mains largely intact as a rule of administrative convenience (or leg-
islative generosity)” but has been “badly eroded, if not wholly un-
dermined, as a constitutional principle”); Marvin A. Chirelstein &
Lawrence Zelenak, Federal Income Taxation 59 (14th ed. 2018)
(“[R]ealization is strictly an administrative rule and not a constitu-
tional, much less an economic requirement, of ‘income.’   ”); Cunning-
ham & Schenk 741 & n.69 (citing “[t]he scholarly consensus” despite
Macomber that the “[t]he realization requirement is not constitu-
tionally mandated” and that “Congress may treat gains as realized
at any point”).
 18
220—not to invite technical debates about what consti-
tutes “income.”
Thus, a leading economist of the era defined income
as “the money value of the net accretion to one’s eco-
nomic power between two points in time.” Robert Mur-
ray Haig, The Federal Income Tax 7 (1921) (emphasis
omitted) (Haig). That definition, Professor Haig ex-
plained, was “the one generally adopted as the defini-
tion of income in modern income tax acts,” ibid., and it
remains “the most widely accepted” definition among
economists and tax experts, Boris I. Bittker & Law-
rence Lokken, Federal Taxation of Income, Estates,
and Gifts ¶ 3.1.1, 3-2 (3d ed. 1999). In articulating that
definition, Professor Haig criticized judicial decisions
(like Macomber) involving “stock dividends” as “leading
toward a definition of income so narrow and artificial as
to bring about results which from the economic point of
view are certainly eccentric and in certain cases little
less than absurd.” Haig 1.
At the very least, there was ambiguity when the Six-
teenth Amendment was ratified about whether the or-
dinary meaning of the term “income[]” incorporated a
realization requirement. Contra Pet. 17 (asserting that
such a requirement “was well understood”). Although
some contemporaneous dictionary definitions refer-
enced gains that “ ‘come[] in to a person,’ ” Pet. 18 (cita-
tion and emphasis omitted), those and others also refer-
enced simply “gains, profit, or private revenue,” Henry
Campbell Black, A Law Dictionary 612 (2d ed. 1910);
see also Webster’s New International Dictionary of the
English Language 1089 (1911) (“commercial revenue or
receipts of any kind, including * * * the return on in-
vestments”); The Century Dictionary and Cyclopedia
3040 (1911) (“receipts or emoluments regularly accru-
 19
ing”). Even petitioners’ own preferred legal authorities
(Pet. 19-20) admit that the term was ambiguous. One of
those authorities explains that “[t]here [we]re wide var-
iations in theory and practice * * * as to the proper
meaning of the term income,” “[p]articularly with refer-
ence to appreciations in the value of property.” Robert
H. Montgomery, Income Tax Procedure 250 (1919).
Another observes that “no * * * precision can be at-
tained” in distinguishing income from capital “for pur-
poses of taxation.” Edwin R. A. Seligman, The Income
Tax: A Study of the History, Theory, and Practice of
Income Taxation at Home and Abroad 19 (1911).
d. Finally, petitioners err in asserting (Pet. 20) that
the decision below “virtually eviscerat[es] Article I’s ap-
portionment requirement.” The decision below holds
only that the MRT is not subject to apportionment be-
cause it qualifies as an income tax under the Sixteenth
Amendment. See Pet. App. 13-14. It nowhere suggests
that “a tax on property interests,’  ” would likewise fall
outside Article I’s apportionment requirement. Pet. 21
(citation omitted). Nor does it suggest that Congress
can “deem practically anything ‘income’ and tax it as
such.” Ibid. Rather, as explained above, an income tax
must at minimum target an “accessio[n] to wealth,” as
opposed to targeting property as such. Burke, 504 U.S.
at 233 (quoting Glenshaw Glass, 348 U.S. at 431) (brack-
ets in original).
If anything, it is petitioners’ position that would up-
set the “constitutional structure.” Pet. 20. The Six-
teenth Amendment expressly empowers Congress “to
lay and collect taxes on incomes, from whatever source
derived, without apportionment among the several
States.” U.S. Const. Amend. XVI (emphasis added).
And with the isolated exception of Macomber, courts
 20
have consistently reaffirmed that power, allowing Con-
gress to use income taxes to generate critical revenues
for the public fisc. The court of appeals correctly re-
jected petitioners’ effort to impose an artificial and
atextual limit on that power.
2. a. Petitioners also contend (Pet. 16-17) that the
decision below conflicts with decisions from the First
and Fourth Circuits. But neither of the cited decisions
addressed the constitutionality of the MRT, or even a
tax resembling the MRT. At the very least, then, this
Court should await further percolation before resolving
the MRT’s constitutionality. And both decisions cited
by petitioners held that the taxes at issue qualified as
income taxes under the Sixteenth Amendment, so the
dispositions in those cases are consistent with the out-
come below. See Quijano v. United States, 93 F.3d 26,
30-31 (1st Cir. 1996), cert. denied 519 U.S. 1059 (1997);
Simmons v. United States, 308 F.2d 160, 167-168 (4th
Cir. 1962).
Moreover, the reasoning of those decisions is con-
sistent with the reasoning of the decision below. In Qui-
jano, the plaintiffs bought a residence with a foreign
currency, and “the foreign currency increase[d] in value
(as against the dollar) by the time the property [wa]s
sold.” 93 F.3d at 30. The court held that the “foreign-
exchange ‘gain’ relating to the sale of their residence
* * * plainly qualifies as realized income, fully taxable
under the Constitution.” Id. at 30-31. But the court did
not suggest that the Sixteenth Amendment requires re-
alized income in every case. Nor did it address whether
income realized at the corporate level could be taxed pro
rata at the shareholder level, see Pet. App. 13, since no
corporation was involved in that case.
 21
In Simmons, the plaintiff won a cash prize for catch-
ing a particular fish. 308 F.2d at 161-162. The court
held that the cash prize was taxable under the Sixteenth
Amendment because it “constitute[d] an economic gain
over which [the plaintiff  ] has complete control and * * *
complete legal right.” Id. at 167-168. But as in Quijano,
the court never embraced petitioners’ proposed realiza-
tion requirement under the Sixteenth Amendment.
And the court cited Macomber only to note that it “was
not meant to provide a touchstone to all future gross in-
come questions.” Id. at 168 n.27 (quoting Glenshaw
Glass, 348 U.S. at 431).
b. Far from conflicting with decisions from other cir-
cuits, the decision below accords with the longstanding
view of multiple circuits that taxes similar to the
MRT—including Subpart F itself—are constitutional.
For instance, in Garlock, Inc. v. Commissioner, 489
F.2d 197 (1973), cert. denied, 417 U.S. 911 (1974), the
Second Circuit upheld the constitutionality of Subpart
F’s requirement that “a United States shareholder of a
CFC must include in income its pro rata share of the
corporation’s ‘subpart F income,’ * * * whether or not
that income has been distributed to the shareholder.”
Id. at 198; see id. at 202-203. The court reasoned that
the contrary argument “borders on the frivolous in light
of ” a Second Circuit decision upholding prior “foreign
personal holding provisions of the income tax laws * * *
permitting taxation of United States shareholders on
the undistributed net income of Colombian corpora-
tions.” Id. at 202 (citing Eder v. Commissioner, 138
F.2d 27, 28 (2d Cir. 1943)). And it observed that
“[w]hatever may be the continuing validity of the doc-
trine of [Macomber],” it had “no validity” for purposes
of the Subpart F challenge after this Court’s holding in
 22
Mellon that partners can be taxed on their pro rata
shares of partnership income even when those shares
are not presently distributable. Id. at 203 n.5; see p. 10,
supra (discussing Mellon).
Likewise, in Estate of Whitlock v. Commissioner,
494 F.2d 1297 (1974), the Tenth Circuit followed the
Second Circuit’s decision in Garlock, holding that “the
provisions of subpart F * * * constitute[] a constitu-
tionally valid exercise of Congressional authority.” Id.
at 1301. “When the provisions of Article I of the Con-
stitution, the Sixteenth Amendment,” and this court’s
decisions in Glenshaw Glass and Macomber “are con-
sidered together,” the court explained, “we find no
merit to the contention that the increased earnings pro-
vision is contrary to the Constitution.” Ibid.
Finally, in Prescott v. Commissioner, 561 F.2d 1287
(1977), the Eighth Circuit upheld the constitutionality
of a law that “tax[ed] the increase in value of  ” busi-
nesses that previously “had fictional corporate status”
and then “returned to taxation as proprietorships.” Id.
at 1293. The court explained that this Court had “aban-
doned the idea” from Macomber “that gain must be sev-
ered from capital to be taxable.” Ibid. And the Eighth
Circuit analogized the case to those in which courts had
“sustained” the constitutionality of laws “tax[ing] the
owners of a business entity on profits earned by the en-
tity, although the profits have not been distributed.” Id.
at 1293 n.8.
There is accordingly no conflict between the decision
below and the decisions of other courts of appeals.
3. This case would also be an unsuitable vehicle for
addressing the question presented, which is “[w]hether
the Sixteenth Amendment authorizes Congress to tax
unrealized sums without apportionment among the
 23
states.” Pet. i. As explained above, the MRT applies to
realized sums in the form of a corporation’s “accumu-
lated post-1986 deferred foreign income.” 26 U.S.C.
965(a)(1)-(2); see Pet. App. 13 (“[T]here is no dispute
that KisanKraft actually earned significant income.”).
The principal issue is whether Congress may tax certain
U.S. shareholders on their pro rata share of those real-
ized sums. And petitioners have identified no “consti-
tutional ban on Congress disregarding the corporate
form to facilitate taxation of shareholders’ income.”
Pet. App. 13. Thus, this case does not implicate the
question presented, and petitioners’ lengthy argument
(Pet. 10) about whether the Sixteenth Amendment “is
limited to taxes on realized gains” largely misses the
point (in addition to being incorrect). See Pet. 10-20.
Moreover, answering the question presented would
fail to resolve the MRT’s constitutionality for yet an-
other reason. To the extent that the MRT were re-
garded as something other than an income tax under
the Sixteenth Amendment, it would be best understood
as a constitutional “[e]xcise[]” tax that is “uniform
throughout the United States.” U.S. Const. Art. I, § 8,
Cl. 1; see Gov’t C.A. Br. 45-47 (raising this argument in
the alternative). The MRT can be viewed as a tax on a
CFC’s business gains since 1986. See 26 U.S.C.
965(a)(1)-(2). As the Court in Pollock v. Farmers’ Loan
& Trust Co., 158 U.S. 601 (1895), observed, taxes “on
gains or profits from business” had been “sustained” as
excise taxes not subject to apportionment even before
the Sixteenth Amendment’s ratification. Id. at 635; see,
e.g., Pacific Ins. Co. v. Soule, 74 U.S. (7 Wall.) 433
(1868). Pollock expressly left that principle intact, as it
“considered the [relevant] act only in respect of the tax
on income derived from real estate, and from invested
 24
personal property.” 158 U.S. at 635. After Pollock, the
Court upheld an excise tax on the “gross annual re-
ceipts” of sugar refineries, reasoning that the tax was
not imposed on those receipts “as property, but only in
respect of the carrying on or doing the business of re-
fining sugar.” Spreckels Sugar Ref. Co. v. McClain, 192
U.S. 397, 411 (1904). And the Court later upheld an-
other tax “as an excise upon the particular privilege of
doing business in a corporate capacity.” Flint v. Stone
Tracy Co., 220 U.S. 107, 151 (1911).
Accordingly, the question presented here is largely
academic in the context of the MRT. The MRT is con-
stitutional, whether viewed as an income tax on share-
holders based on their pro rata share of a CFC’s 2017
income, or instead as an excise tax on CFCs. The Court
should not grant review to issue what would effectively
be an advisory opinion about whether the Sixteenth
Amendment implicitly contains a realization require-
ment.
4. Finally, petitioners incorrectly assert that this
case raises an “exceptionally important” issue. Pet. 22
(capitalization and emphasis omitted). The MRT was a
one-time tax solely applicable in “the last taxable year
of a [CFC] which beg[an] before January 1, 2018.” 26
U.S.C. 965(a). It affected only a small class of U.S. tax-
payers—those owning at least 10% of the shares of cer-
tain foreign corporations. See 26 U.S.C. 951(a) and (b)
and 965(a). Petitioners do not cite a single court of ap-
peals decision, other than the decision below, address-
ing a challenge to the MRT’s constitutionality.
Unable to demonstrate the significance of the issue
in this case, petitioners (and their amici) principally
base their assertions of importance on hypothetical
cases involving taxes that Congress has not enacted.
 25
See, e.g., Pet. 23, 25. They raise the specter, for in-
stance, of Congress’s enactment of “a wealth tax,” Pet.
25—an action that Congress has not taken. See, e.g.,
Americans for Tax Reform Amicus Br. 20 (emphasizing
“a slurry of proposed”—but unenacted—bills to impose
“wealth taxes”) (emphasis added); Landmark Legal
Found. Amicus Br. 13 (asserting that “Congress may be
emboldened to pass direct taxes on wealth”) (emphasis
added). But “[u]nder [this Court’s] judicial tradition [it]
do[es] not decide whether a tax may constitutionally be
laid until [it] find[s] that Congress has laid it.” Grif-
fiths, 318 U.S. at 394. Nor does the Court “exercise gen-
eral legal oversight of the Legislative and Executive
Branches” or “issue advisory opinions” on matters not
before it. TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
2203 (2021).
Indeed, petitioners’ posited “wealth tax” is far afield
from the MRT. Pet. 25. They speculate about a tax “on
the net value of all taxable assets of the taxpayer on the
last day of any calendar year.” Ibid. (emphasis added;
citation omitted). But the MRT does not tax the net
value of anything; it taxes “accumulated post-1986 de-
ferred foreign income.” 26 U.S.C. 965(a)(1)-(2) (empha-
sis added). So the MRT’s status as an income tax under
the Sixteenth Amendment says little (if anything) about
whether any so-called wealth tax would also fall within
Congress’s taxing power. Contra Pet. 25.
 26
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
DAVID A. HUBBERT
Deputy Assistant Attorney
General
FRANCESCA UGOLINI
MICHAEL J. HAUNGS
DOUGLAS C. RENNIE
Attorneys
MAY 2023