Sixteenth Amendment--Income Tax

[[Page 1951]]


                           SIXTEENTH AMENDMENT

                               __________

                               INCOME TAX

                               __________


                                CONTENTS

                                                                    Page
        Income Tax................................................  1953
        History and Purpose of the Amendment......................  1953
        Income Subject to Taxation................................  1954
                Corporate Dividends: When Taxable.................  1955
                Corporate Earnings: When Taxable..................  1958
                Gains: When Taxable...............................  1960
                Income from Illicit Transactions..................  1962
                Deductions and Exemptions.........................  1962
                Diminution of Loss................................  1963


[[Page 1953]]

                           SIXTEENTH AMENDMENT

                               INCOME TAX

                               __________

  The 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.

                               INCOME TAX

      History and Purpose of the Amendment

        The ratification of this Amendment was the direct consequence of
the Court's decision in 1895 in Pollock v. Farmers' Loan & Trust Co.,\1\
whereby the attempt of Congress the previous year to tax incomes
uniformly throughout the United States\2\ was held by a divided court to
be unconstitutional. A tax on incomes derived from property,\3\ the
Court declared, was a ``direct tax'' which Congress under the terms of
Article I, Sec. 2, and Sec. 9, could impose only by the rule of
apportionment according to population, although scarcely fifteen years
prior the Justices had unanimously sustained\4\ the collection of a
similar tax during the Civil War,\5\ the only other occasion preceding
the Sixteenth Amendment in which Congress had ventured to utilize this
method of raising revenue.\6\

        \1\157 U.S. 429 (1895); 158 U.S. 601 (1895).
        \2\Ch. 349, Sec. 27, 28 Stat. 509, 553.
        \3\The Court conceded that taxes on incomes from ``professions,
trades, employments, or vocations'' levied by this act were excise taxes
and therefore valid. The entire statute, however, was voided on the
ground that Congress never intended to permit the entire ``burden of the
tax to be borne by professions, trades, employments, or vocations''
after real estate and personal property had been exempted, 158 U.S. at
635.
        \4\Springer v. United States, 102 U.S. 586 (1881).
        \5\Ch. 173, Sec. 116, 13 Stat. 223, 281 (1864).
        \6\For an account of the Pollock decision, see supra, pp. 352-
56.
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        During the interim between the Pollock decision in 1895 and the
ratification of the Sixteenth Amendment in 1913, the Court gave evidence
of a greater awareness of the dangerous consequences to national
solvency which that holding threatened, and partially circumvented the
threat, either by taking refuge in redefinitions of ``direct tax'' or,
and more especially, by emphasizing, virtually to the exclusion of the
former, the history of excise taxation. Thus, in a series of cases,
notably Nicol v. Ames,\7\

[[Page 1954]]
Knowlton v. Moore,\8\ and Patton v. Brady,\9\ the Court held the
following taxes to have been levied merely upon one of the ``incidents
of ownership'' and hence to be excises: a tax which involved affixing
revenue stamps to memoranda evidencing the sale of merchandise on
commodity exchanges, an inheritance tax, and a war revenue tax upon
tobacco on which the hitherto imposed excise tax had already been paid
and which was held by the manufacturer for resale.

        \7\173 U.S. 509 (1899).
        \8\178 U.S. 41 (1900).
        \9\184 U.S. 608 (1902).
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        Because of such endeavors the Court thus found it possible to
sustain a corporate income tax as an excise ``measured by income'' on
the privilege of doing business in corporate form.\10\ The adoption of
the Sixteenth Amendment, however, put an end to speculation whether the
Court, unaided by constitutional amendment, would persist along these
lines of construction until it had reversed its holding in the Pollock
case. Indeed, in its initial appraisal\11\ of the Amendment it
classified income taxes as being inherently ``indirect.'' ``[T]he
command of the amendment that all income taxes shall not be subject to
apportionment by a consideration of the sources from which the taxed
income may be derived, forbids the application to such taxes of the rule
applied in the Pollock case by which alone such taxes were removed from
the great class of excises, duties, and imports subject to the rule of
uniformity and were placed under the other or direct class.''\12\
``[T]he Sixteenth Amendment conferred no new power of taxation but
simply prohibited the previous complete and plenary power of income
taxation possessed by Congress from the beginning from being taken out
of the category of indirect taxation to which it inherently
belonged.''\13\

        \10\Flint v. Stone Tracy Co., 220 U.S. 107 (1911).
        \11\Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916); Stanton v.
Baltic Mining Co., 240 U.S. 103 (1916); Tyee Realty Co. v. Anderson, 240
U.S. 115 (1916).
        \12\Brushaber v. Union Pac. R.R., 240 U.S. 1, 18-19 (1916).
        \13\Stanton v. Baltic Mining Co., 240 U.S. 103, 112 (1916).
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      Income Subject to Taxation

        Building upon definitions formulated in cases construing the
Corporation Tax Act of 1909,\14\ the Court initially described income as
the ``gain derived from capital, from labor, or from both combined,''
inclusive of the ``profit gained through a sale or conversion of capital
assets'';\15\ in the following array of factual situations it

[[Page 1955]]
subsequently applied this definition to achieve results that have been
productive of extended controversy.

        \14\Stratton's Independence v. Howbert, 231 U.S. 399 (1913);
Doyle v. Mitchell Bros. Co., 247 U.S. 179 (1918).
        \15\Eisner v. Macomber, 252 U.S. 189 (1920); Bowers v. Kerbaugh-
Empire Co., 271 U.S. 170 (1926).
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        Corporate Dividends: When Taxable.--Rendered in conformity with
the belief that all income ``in the ordinary sense of the word'' became
taxable under the Sixteenth Amendment, the earliest decisions of the
Court on the taxability of corporate dividends occasioned little
comment. Emphasizing that in all such cases the stockholder is to be
viewed as ``a different entity from the corporation,'' the Court in
Lynch v. Hornby,\16\ held that a cash dividend equal to 24 percent of
the par value of the outstanding stock and made possible largely by the
conversion into money of assets earned prior to the adoption of the
Amendment, was income taxable to the stockholder for the year in which
he received it, notwithstanding that such an extraordinary payment might
appear ``to be a mere realization in possession of an inchoate and
contingent interest . . . [of] the stockholder . . . in a surplus of
corporate assets previously existing.'' In Peabody v. Eisner,\17\
decided on the same day and deemed to have been controlled by the
preceding case, the Court ruled that a dividend paid in the stock of
another corporation, although representing earnings that had accrued
before ratification of the Amendment, was also taxable to the
shareholder as income. The dividend was likened to a distribution in
specie.

        \16\247 U.S. 339, 344 (1918). On the other hand, in Lynch v.
Turrish, 247 U.S. 221 (1918), the single and final dividend distributed
upon liquidation of the entire assets of a corporation, although
equaling twice the par value of the capital stock, was declared to
represent only the intrinsic value of the latter earned prior to the
effective date of the Amendment, and hence was not taxable as income to
the shareholder in the year in which actually received. Similarly, in
Southern Pacific Co. v. Lowe, 247 U.S. 330 (1918), dividends paid out of
surplus accumulated before the effective date of the Amendment by a
railway company whose entire capital stock was owned by another railway
company and whose physical assets were leased to and used by the latter
was declared to be a nontaxable bookkeeping transaction between
virtually identical corporations.
        \17\247 U.S. 347 (1918).
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        Two years later the Court decided Eisner v. Macomber,\18\ and
the controversy which that decision precipitated still endures.
Departing from the interpretation placed upon the Sixteenth Amendment in
the earlier cases, i.e., that the purpose of the Amendment was to
correct the ``error'' committed in the Pollock case and to restore
income taxation to ``the category of indirect taxation to which it
inherently belonged,'' Justice Pitney, who delivered the opinion in the
Eisner case, indicated that the sole purpose of the Sixteenth Amendment
was merely to ``remove the necessity which otherwise might exist for an
apportionment among the States of taxes laid on

[[Page 1956]]
income.'' He thereupon undertook to demonstrate how what was not income,
but an increment of capital when received, could later be transmitted
into income upon sale or conversion and could be taxed as such without
the necessity of apportionment. In short, the term ``income'' acquired
to some indefinite extent a restrictive significance.

        \18\252 U.S. 189, 206-08 (1920).
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        Specifically, the Justice held that a stock dividend was capital
when received by a stockholder of the issuing corporation and did not
become taxable without apportionment, that is, as ``income,'' until sold
or converted, and then only to the extent that a gain was realized upon
the proportion of the original investment which such stock represented.
``A stock dividend,'' Justice Pitney maintained, ``far from being a
realization of profits to the stockholder, . . . tends rather to
postpone such realization, in that the fund represented by the new stock
has been transferred from surplus to capital, and no longer is available
for actual distribution . . . not only does a stock dividend really take
nothing from . . . the corporation and add nothing to that of the
shareholder, but . . . the antecedent accumulation of profits evidenced
thereby, while indicating that the shareholder is richer because of an
increase of his capital, at the same time shows [that] he has not
realized or received any income in'' what is no more than a
``bookkeeping transaction.'' But conceding that a stock dividend
represented a gain, the Justice concluded that the only gain taxable as
``income'' under the Amendment was ``a gain, a profit, something of
exchangeable value proceeding from the property, severed from the
capital however invested or employed, and coming in, being `derived,'
that is, received or drawn by the recipient [the taxpayer] for his
separate use, benefit, and disposal; . . . .'' Only the latter in his
opinion, answered the description of income ``derived'' from property,
whereas ``a gain accruing to a capital, not a growth or an increment of
value in the investment'' did not.\19\ Although steadfastly refusing to
depart from the principle\20\ which it asserted in Eisner v. Macomber,
the Court

[[Page 1957]]
in subsequent decisions has, however, slightly narrowed the application
thereof. Thus, the distribution, as a dividend, to stockholders of an
existing corporation of the stock of a new corporation to which the
former corporation, under a reorganization, had transferred all its
assets, including a surplus of accumulated profits, was treated as
taxable income. The fact that a comparison of the market value of the
shares in the older corporation immediately before, with the aggregate
market value of those shares plus the dividend shares immediately after,
the dividend showed that the stockholders experienced no increase in
aggregate wealth was declared not to be a proper test for determining
whether taxable income had been received by these stockholders.\21\ On
the other hand, no taxable income was held to have been produced by the
mere receipt by a stockholder of rights to subscribe for shares in a new
issue of capital stock, the intrinsic value of which was assumed to be
in excess of the issuing price. The right to subscribe was declared to
be analogous to a stock divided, and ``only so much of the proceeds
obtained upon the sale of such rights as represents a realized profit
over cost'' to the stockholders was deemed to be taxable income.\22\
Similarly, on grounds of consistency with Eisner v. Macomber, the Court
has ruled that inasmuch as it gave the stockholder an interest different
from that represented by his former holdings, a dividend in common stock
to holders of preferred stock,\23\ or a dividend

[[Page 1958]]
in preferred stock accepted by a holder of common stock\24\ was income
taxable under the Sixteenth Amendment.

        \19\Id. at 207, 211-12 (1920). This decision has been severely
criticized, chiefly on the ground that gains accruing to capital over a
period of years are not income and are not transformed into income by
being dissevered from capital through sale or conversion. Critics have
also experienced difficulty in understanding how a tax on income which
has been severed from capital can continue to be labeled a ``direct''
tax on the capital from which the severance has thus been made. Finally,
the contention has been made that in stressing the separate identities
of a corporation and its stockholders, the Court overlooked the fact
that when a surplus has been accumulated, the stockholders are thereby
enriched, and that a stock dividend may therefore be appropriately
viewed simply as a device whereby the corporation reinvests money earned
in their behalf. See also Merchants' L. & T. Co. v. Smietanka, 255 U.S.
509 (1921).
        \20\Reconsideration was refused in Helvering v. Griffths, 318
U.S. 371 (1943).
        \21\United States v. Phellis, 257 U.S. 156 (1921); Rockefeller
v. United States, 257 U.S. 176 (1921). See also Cullinan v. Walker, 262
U.S. 134 (1923).
        In Marr v. United States, 268 U.S. 536, 540-41 (1925), it was
held that the increased market value of stock issued by a new
corporation in exchange for stock of an older corporation, the assets of
which it was organized to absorb, was subject to taxation as income to
the holder, notwithstanding that the income represented profits of the
older corporation and that the capital remained invested in the same
general enterprise. Weiss v. Stearn, 265 U.S. 242 (1924), in which the
additional value in new securities was held not taxable, was likened to
Eisner v. Macomber, and distinguished from the aforementioned cases on
the ground of preservation of corporate identity. Although the ``new
corporation had . . . been organized to take over the assets and
business of the old . . . , the corporate identity was deemed to have
been substantially maintained because the new corporation was organized
under the laws of the same State with presumably the same powers as the
old. There was also no change in the character of the securities
issued,'' with the result that ``the proportional interest of the
stockholder after the distribution of the new securities was deemed to
be exactly the same.''
        Under existing law, however, when a taxpayer exchanges all of
the outstanding stock for a minor percentage of the total shares of a
larger corporation, plus cash, the gain to be recognized in full is not
limited to the cash but embraces the excess of the sum of the market
value of the stock acquired plus the cash over the cost of the original
stock plus the expenses of the sale. Turnbow v. Commissioner, 368 U.S.
337 (1961).
        \22\Miles v. Safe Deposit Co., 259 U.S. 247 (1922).
        \23\Koshland v. Helvering, 298 U.S. 441 (1936).
        \24\Helvering v. Gowran, 302 U.S. 238 (1937).
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        Corporate Earnings: When Taxable.--On at least two occasions the
Court has rejected as untenable the contention that a tax on
undistributed corporate profits is essentially a penalty rather than a
tax or that it is a direct tax on capital and hence is not exempt from
the requirement of apportionment. Inasmuch as the exaction was
permissible as a tax, its validity was held not to be impaired by its
penal objective, namely, ``to force corporations to distribute earnings
in order to create a basis for taxation against the stockholders.'' As
to the added contention that, because liabilty was assessed upon a mere
purpose to evade imposition of surtaxes against stockholders, the tax
was a direct tax on a state of mind, the Court replied that while ``the
existence of the defined purpose was a condition precedent to the
imposition of the tax liability, . . . [did] not prevent it from being a
true income tax within the meaning of the Sixteenth Amendment.''\25\
Subsequently, in Helvering v. Northwest Steel Mills,\26\ this appraisal
of the constitutionality of the undistributed profits tax was buttressed
by the following observation: ``It is true that the surtax is imposed
upon the annual income only if it is not distributed, but this does not
serve to make it anything other than a true tax on income within the
meaning of the Sixteenth Amendment. Nor is it true . . . that because
there might be an impairment of the capital stock, the tax on the
current annual profit would be the equivalent of a tax upon capital.
Whether there was an impairment of the capital stock or not, the tax
. . . was imposed on profits earned during . . .--a tax year--and
therefore on profits constituting income within the meaning of the
Sixteenth Amendment.''\27\

        \25\Helvering v. National Grocery Co., 304 U.S. 282, 288-89
(1938). In Helvering v. Mitchell, 303 U.S. 391 (1938), the defendant
contended the collection of fifty per cent of any deficiency in addition
to the deficiency alleged to have resulted from a fraudulent intent to
evade the income tax amounted to the imposition of a criminal penalty.
The Court, however, described the additional sum as a civil and not a
criminal sanction, and one whch could be constitutionally employed to
safeguard the Government against loss of revenue. In contrast, the
exaction upheld in Helvering v. National Grocery Co., though conceded to
possess the attributes of a civil sanction, was declared to be
sustainable as a tax.
        \26\311 U.S. 46 (1940). See also Crane-Johnson Co. v. Helvering,
311 U.S. 54 (1940).
        \27\311 U.S. 53.
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        Likening a cooperative to a corporation, federal courts have
also declared to be taxable income the net earnings of a farmers'
cooperative, a portion of which was used to pay dividends on capital
stock without reference to patronage. The argument that such

[[Page 1959]]
earnings were in reality accumulated savings of its patrons which the
cooperative held as their bailee was rejected as unsound for the reason
that ``while those who might be entitled to patronage dividends have
. . . an interest in such earnings, such interest never ripens into an
individual ownership . . . until and if a patronage dividend be
declared.'' Had such net earnings been apportioned to all of the patrons
during the year, ``there might be . . . a more serious question as to
whether such earnings constituted `income' [of the cooperative] within
the Amendment.''\28\ Similarly, the power of Congress to tax the income
of an unincorporated joint stock association has been held to be
unaffected by the fact that under state law the association is not a
legal entity and cannot hold title to property, or by the fact that the
shareholders are liable for its debts as partners.\29\

        \28\Farmers Union Co-op v. Commissioner, 90 F.2d 488, 491, 492
(8th Cir. 1937).
        \29\Burk-Waggoner Ass'n v. Hopkins, 269 U.S. 110 (1925).
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        Whether subsidies paid to corporations in money or in the form
of grants of land or other physical property constitute taxable income
has also concerned the Court. In Edwards v. Cuba Railroad,\30\ it ruled
that subsidies of lands, equipment, and money paid by Cuba for the
construction of a railroad were not taxable income but were to be viewed
as having been received by the railroad as a reimbursement for capital
expenditures in completing such project. On the other hand, sums paid
out by the Federal Government to fulfill its guarantee of minimum
operating revenue to railroads during the six months following
relinquishment of their control by that government were found to be
taxable income. Such payments were distinguished from those excluded
from computation of income in the preceding case in that the former were
neither bonuses, nor gifts, nor subsidies, ``that is, contributions to
capital.''\31\ Other corporate receipts deemed to be taxable as income
include the following: (1) ``insiders profits'' realized by a director
and stockholder of a corporation from transaction in its stock, which,
as required by the Securities and Exchange Act,\32\ are paid over to the
corporation;\33\ (2) money received as exemplary damages for fraud or as
the punitive two-thirds portion of a treble damage antitrust
recovery;\34\ and (3) compensation awarded for the fair rental value of
trucking facilities operated by the taxpayer under control and
possession of the Government during World War II, for in the last

[[Page 1960]]
instance the Government never acquired title to the property and had not
damaged it beyond ordinary wear.\35\

        \30\268 U.S. 628 (1925).
        \31\Texas & Pacific Ry. Co. v. United States, 286, U.S. 285, 289
(1932); Continental Tie & L. Co. v. United States, 286 U.S. 290 (1932).
        \32\15 U.S.C. Sec. 78p.
        \33\General American Investors Co. v. Commissioner, 348 U.S. 434
(1955).
        \34\Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955).
        \35\Commissioner v. Gillette Motor Co., 364 U.S. 130 (1960).
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        Gains: When Taxable.--When through forfeiture of a lease in
1933, a landlord became possessed of a new building erected on his land
by the outgoing tenant, the resulting gain to the former was taxable to
him in that year. Although ``economic gain is not always taxable as
income, it is settled that the realization of gain need not be in cash
derived from the sale of an asset. . . . The fact that the gain is a
portion of the value of the property received by the . . . [landlord]
does not negative its realization. . . . [Nor is it necessary] to
recognition of taxable gain that . . . [the landlord] should be able to
sever the improvement begetting the gain from his original capital.''
Hence, the taxpayer was incorrect in contending that the Amendment
``does not permit the taxation of such [a] gain without apportionment
amongst the states.\36\ Consistent with this holding the Court has also
ruled that when an apartment house was acquired by bequest subject to an
unassumed mortgage and several years thereafter was sold for a price
slightly in excess of the mortgage, the basis for determining the gain
from that sale was the difference between the selling price,
undiminished by the amount of the mortgage, and the value of the
property at the time of the acquisition, less deductions for
depreciation during the years the building was held by the taxpayer. The
latter's contention that the Revenue Act, as thus applied, taxed
something which was not revenue was declared to be unfounded.\37\

        \36\Helvering v. Brumn, 309 U.S. 461, 468-69 (1940).
        \37\Crane v. Commissioner, 331 U.S. 1, 15-16 (1947).
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        As against the argument of a donee that a gift of stock became a
capital asset when received and that therefore, when disposed of, no
part of that value could be treated as taxable income to said donee, the
Court has declared that it was within the power of Congress to require a
donee of stock, who sells it at a profit, to pay income tax on the
difference between the selling price and the value when the donor
acquired it.\38\ Moreover, ``the receipt in cash or property . . . not
[being] the only characteristic of realization of

[[Page 1961]]
income to a taxpayer on the cash receipt basis,'' it follows that one
who is normally taxable only on the receipt of interest payments cannot
escape taxation thereon by giving away his right to such income in
advance of payment. When ``the taxpayer does not receive payment of
income in money or property, realization may occur when the last step is
taken by which he obtains the fruition of the economic gain which has
already accrued to him.'' Hence an owner of bonds, reporting on the cash
receipts basis, who clipped interest coupons therefrom before their due
date and gave them to his son, was held to have realized taxable income
in the amount of said coupons, notwithstanding that his son had
collected them upon maturity later in the year.\39\

        \38\The donor could not, ``by mere gift, enable another to hold
this stock free from . . . [the] right . . . [of] the sovereign to take
part of any increase in its value when separated through sale or
conversion and reduced to possession.'' Taft v. Bowers, 278 U.S. 470,
482, 484 (1929). However, when a husband, as part of a divorce
settlement, transfers his own corporate stock to his wife, he is deemed
to have exchanged the stock for the release of his wife's inchoate,
marital rights, the value of which are presumed to be equal to the
current, market value of the stock, and, accordingly, he incurs a
taxable gain measured by the difference between the initial purchase
price of the stock and said market value upon transfer. United States v.
Davis, 370 U.S. 65 (1962).
        \39\Helvering v. Horst, 311 U.S. 112, 115-16 (1940).
        With a frequency that for obvious reasons is progressively
diminishing, the Court also has been called upon to resolve questions as
to whether gains, realized after 1913, on transactions consummated prior
to ratification of the Sixteenth Amendment are taxable, and if so, how
such tax is to be determined. The Court's answer generally has been that
if the gain to the person whose income is under consideration became
such subsequently to the date at which the amendment went into effect,
namely, March 1, 1913, and is a real, and not merely an apparent, gain,
said gain is taxable. Thus, one who purchased stock in 1912 for $500
could not limit his taxable gain to the difference, $695, the value of
the stock on March 1, 1913 and $13,931, the price obtained on the sale
thereof, in 1916; but was obliged to pay tax on the entire gain, that is
the difference between the original purchase price and the proceeds of
the sale, Goodrich v. Edwards, 255 U.S. 527 (1921). Conversely, one who
acquired stock in 1912 for $291,600 and who sold the same in 1916 for
only $269,346, incurred a loss and could not be taxed at all,
notwithstanding the fact that on March 1, 1913, his stock had
depreciated to $148,635. Walsh v. Brewster, 255 U.S. 536 (1921). On the
other hand, although the difference between the amount of life insurance
premiums paid as of 1908, and the amount distributed in 1919, when the
insured received the amount of his policy plus cash dividends
apportioned thereto since 1908, constituted a gain, that portion of the
latter which accrued between 1908 and 1913 was deemed to be an accretion
of capital and hence not taxable. Lucas v. Alexander, 279 U.S. 473
(1929).
        However, a litigant who, in 1915, reduced to judgment a suit
pending on February 26, 1913, for an accounting under a patent
infringement, was unable to have treated as capital, and excluded from
the taxable income produced by such settlement, that portion of his
claim which had accrued prior to March 1, 1913. Income within the
meaning of the Amendment was interpreted to be the fruit that is born of
capital, not the potency of fruition. All that the taxpayer possessed in
1913 was a contingent chose in action which was inchoate, uncertain, and
contested. United States v. Safety Car Heating Co., 297 U.S. 88 (1936).
        Similarly, purchasers of coal lands subject to mining leases
executed before adoption of the Amendment could not successfully contend
that royalties received during 1920-1926 were payments for capital
assets sold before March 1, 1913, and hence not taxable. Such an
exemption, these purchasers argued, would have been in harmony with
applicable local law whereunder title to coal passes immediately to the
lessee on execution of such leases. To the Court, on the other hand,
such leases were not to be viewed ``as a `sale' of the mineral content
of the soil'' inasmuch as minerals ``may or may not be present in the
leased premises, and may or may not be found [therein]. . . . If found,
their abstraction . . . is a time consuming operation and the payments
made by the lessee . . . do not normally become payable as the result of
a single transaction. . . .'' The result for tax purposes would have
been the same even had the lease provided that title to the minerals
would pass only ``on severance by the lessee.'' Bankers Coal Co. v.
Burnet, 287 U.S. 308 (1932); Burnet v. Harmel, 287 U.S. 103, 106-107,
111 (1932).

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[[Page 1962]]

        Income from Illicit Transactions.--In United States v.
Sullivan,\40\ the Court, held that gains derived from illicit traffic
were taxable income under the act of 1921.\41\ Said Justice Holmes for
the unanimous Court: ``We see no reason . . . why the fact that a
business is unlawful should exempt it from paying the taxes that if
lawful it would have to pay.''\42\ Consistent therewith, although not
without dissent, the Court ruled that Congress has the power to tax as
income moneys received by an extortioner,\43\ and, more recently, that
embezzled money is taxable income of an embezzler in the year of
embezzlement. ``When the taxpayer acquires earnings, lawfully or
unlawfully, without the consensual recognition, express or implied, of
an obligation to repay and without restriction as to their disposition,
`he has received income . . . , even though it may still be claimed that
he is not entitled to retain the money, and even though he may still be
adjudged liable to restore its equivalent.'''\44\

        \40\274 U.S. 259 (1927).
        \41\42 Stat. 227, 250, 268.
        \42\274 U.S. 259, 263. Profits from illegal undertakings being
taxable as income, expenses in the form of salaries and rentals incurred
by bookmakers are deductible. Commissioner v. Sullivan, 356 U.S. 27
(1958).
        \43\Rutkin v. United States, 343 U.S. 130 (1952). Four Justices,
Black, Reed, Frankfurter, and Douglas, dissented.
        \44\James v. United States, 366 U.S. 213, 219 (1961) (overruling
Commissioner v. Wilcox, 327 U.S. 404 (1946)).
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        Deductions and Exemptions.--Notwithstanding the authorization
contained in the Sixteenth Amendment to tax income ``from whatever
source derived,'' Congress has been held not to be precluded thereby
from granting exemptions.\45\ Thus, the fact that ``under the Revenue
Acts of 1913, 1916, 1917, and 1918, stock fire insurance companies were
taxed . . . upon gains realized from the sale . . . of property accruing
subsequent to March 1, 1913,'' but were not so taxed by the Revenue Acts
of 1921, 1924, and 1926, did not prevent Congress, under the terms of
the Revenue Act of 1928, from taxing all the gain attributable to
increase in value after March 1, 1913, which such a company realized
from a sale of property in 1928. The constitutional power of Congress to
tax a gain being well established, Congress was declared competent to
choose ``the moment of its realization and the amount realized''; and
``its failure to impose a tax upon the increase in value in the earlier
years . . . [could not] preclude it from taxing the gain in the year
when realized . . . .''\46\ Congress is equally well equipped with the
``power to condition, limit, or deny deductions from gross in

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comes in order to arrive at the net that it chooses to tax.''\47\
Accordingly, even though the rental value of a building used by its
owner does not constitute income within the meaning of the
Amendment,\48\ Congress was competent to provide that an insurance
company shall not be entitled to deductions for depreciation,
maintenance, and property taxes on real estate owned and occupied by it
unless it includes in its computation of gross income the rental value
of the space thus used.\49\

        \45\Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916).
        \46\MacLaughlin v. Alliance Ins. Co., 286 U.S. 244, 250 (1932).
        \47\Helvering v. Ind. L. Ins. Co., 292 U.S. 371, 381 (1934);
Helvering v. Winmill, 305 U.S. 79, 84 (1938).
        \48\A tax on the rental value of property so occupied is a
direct tax on the land and must be apportioned. Helvering v. Ind. L.
Ins. Co., 291 U.S. 371, 378-79 (1934).
        \49\Id. at 381. Expenditures incurred in the prosecution of work
under a contract for the purpose of earning profits are not capital
investments, the cost of which, if converted, must first be restored
from the proceeds before there is a capital gain taxable as income.
Accordingly, a dredging contractor, recovering a judgment for breach of
warranty of the character of the material to be dredged, must include
the amount thereof in the gross income of the year in which it was
received, rather than of the years during which the contract was
performed, even though it merely represents a return of expenditures
made in performing the contract and resulting in a loss. The gain or
profit subject to tax under the Sixteenth Amendment is the excess of
receipts over allowable deductions during the accounting period, without
regard to whether or not such excess represents a profit ascertained on
the basis of particular transactions of the taxpayer when they are
brought to a conclusion. Burnet v. Sanford & Brooks Co., 282 U.S. 359
(1931).
        The grant on denial of deductions is not based on the taxpayers'
engagement in constitutionally protected activities, and, accordingly,
no deduction is granted for sums expended in combating legislation,
enactment of which would destroy taxpayer's business. Commarano v.
United States, 358 U.S. 498 (1959).
        Likewise, when tank truck owners, either intentionally for
business reasons or unintentionally, violate state maximum weight laws,
and incur fines, the latter are not deductible, for fines are penalties
rather than tolls for the use of highways, and Congress is not to be
viewed as having intended to encourage enterprises to violate state
policy. Tank Truck Rentals v. Commissioner, 356 U.S. 30 (1958); Hoover
Express Co. v. United States, 356 U.S. 38 (1958).
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        Also, a taxpayer who erected a $3,000,000 office building on
land, the unimproved worth of which was $660,000, and who subsequently
purchased the lease on the latter for $2,100,000 is entitled to compute
depreciation over the remaining useful life of the building on that
portion of $1,440,000, representing the difference between the price and
the unimproved value, as may be allocated to the building; but he cannot
deduct the $1,440,000 as a business expense incurred in eliminating the
cost of allegedly excessive rentals under the lease, nor can he treat
that sum as a prepayment of rent to be amortized over the 21-year period
that the lease was to run.\50\

        \50\Millinery Corp. v. Commissioner, 350 U.S. 456 (1956).
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        Diminution of Loss.--Mere diminution of loss is neither gain,
profit, nor income. Accordingly, one who in 1913 borrowed a sum of money
to be repaid in German marks and who subsequently lost

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the money in a business transaction cannot be taxed on the curtailment
of debt effected by using depreciated marks in 1921 to settle a
liability of $798,144 for $113,688, the ``saving'' having been exceeded
by a loss on the entire operation.\51\

        \51\Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926).