Academic journal article Law and Contemporary Problems

Foreword: The Fabulous Invalid Nears 100

Academic journal article Law and Contemporary Problems

Foreword: The Fabulous Invalid Nears 100

Article excerpt

Now in its ninety-seventh year, (1) and under no imminent threat from a Democratic Congress and a Democratic President, the federal income tax is nearly assured of surviving until its one-hundredth birthday in 2013. It was not always so clear that the tax would reach that milestone. In public opinion polls from the late 1970s to the late 1980s, a plurality of respondents consistently identified the income tax as "the worst tax--that is, the least fair." (2) In the mid-1990s the Chairman of the House Ways and Means Committee repeatedly expressed his desire to "tear the income tax out by its roots and throw it overboard." (3) In 1998 the House of Representatives did what it could to grant his wish, voting in favor (by a margin of 219 to 209) of a bill to terminate the federal income tax at the end of 2002 (with the tax to be replaced by some unspecified new federal tax). (4) Despite all the unhappiness and all the attacks, the fabulous invalid is still with us and shows no signs of imminent departure. (5)

The approach of the centenary of the federal income is the occasion for the historical articles in this symposium, focusing on crucial moments in the development of the tax. This introduction provides a preview of the symposium contributions, followed by some speculations on the chances of the income tax surviving for a second hundred years (or at least for a few more decades).



Tax lawyers--practitioners and academics alike--have long been interested in federal income tax history, but only in history of certain kinds. They are interested in any history that is instrumentally useful to a tax lawyer--including, most obviously and most importantly, legislative history helpful in interpreting the provisions of the current Internal Revenue Code. In the spirit of Christopher Columbus Langdell and his case method of legal instruction, (6) they are also interested in the leading Supreme Court income tax opinions, even when it is far from clear that knowledge of the cases is crucial--or even useful--in practicing tax law today. One could, for example, probably have a more-than-adequate practical understanding of the realization doctrine as it operates today without ever having heard of Eisner v. Macomber, (7) but every tax practitioner is nevertheless well acquainted with the case.

A great deal of tax history is not within either of these categories of tax lawyers' history, and so is little known. What might be called "losers' tax history"--tax roads considered by Congress but not taken, or taken briefly and then abandoned--is particularly obscure. In the past decade or two, however, the interest of academic tax lawyers in federal income tax history has grown beyond merely instrumental history and the histories of the great cases. The scholarly pioneers in this area--including many of the contributors to this symposium (8)--have taken their tax lawyers' understanding and appreciation of technical detail and applied it beyond the usual narrow scope of tax lawyers' historical interests. (9)

This symposium features nine articles in this spirit of broadened historical inquiry, shedding light on some lesser-known aspects of the history of the federal income tax. Some of the articles describe roads taken (for example, Dennis Ventry's history of the home mortgage interest deduction), while others describe roads not taken (for example, Marjorie Kornhauser's study of the rejection of governmental disclosure of tax-return information of identified high-income individuals). Articles of both types enrich our understanding of how the federal income tax achieved its current contours. The contributors, as a group, share the historian's view that history is interesting and important for its own sake, without regard to whether it happens to contribute to anyone's "presentist agenda." On the other hand, the contributors are mostly lawyers, and as such often cannot (and should not) resist considering the lessons these episodes in tax history may offer to policymakers today. …

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