Frank
Warren Hackett, The Constitutionality of the Graduated
Income Tax Law, 25 Yale Law Journal 427, 442 (1916)
"No question is ever settled, until it is settled right."
[Frank
Warren Hackett, The Constitutionality of the Graduated
Income Tax Law, 25 Yale Law Journal 427, 442 (1916)]
Kelley v. Kalodner, 320 Pa. 180, 184-85 (Pa. 1935)
“It accordingly appears that our inquiry should first be directed toward ascertaining the nature of a graduated income tax. There are no cases determinative of the question in this State, but counsel have referred us to numerous decisions in other jurisdictions in which the point has arisen. An examination of these authorities shows a clear-cut division of opinion, one line of cases holding that an income tax is in the nature of an excise, the other that such a tax is a property levy. Typical of the former line of cases are Diefendorf v. Gallet, 51 Idaho 619; Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Missouri 339; Simms v. Aherns, 167 Ark. 557, and Miles v. Department of Treasury, 193 N.E. 855. In the last named case, decided January 29, 1935, the Supreme Court of Indiana concluded that a graded income tax "is an excise, levied upon those domiciled in the State, upon the basis of the privilege of domicile, and that the burden may reasonably be measured by the amount of income."”
[Kelley v. Kalodner, 320 Pa. 180, 184-85 (Pa. 1935)]
Bouvier’s Law Dictionary,
Vol. II, Third Revision, Eighth Edition, 1914, pp. 3230-3238
"Income tax:
In order to invoke the powers of a court of equity to restrain the collection
of illegal taxes, the case must be brought within the well recognized
foundations of equitable jurisdiction [* * *] and it must clearly appear
not only that the tax is illegal, but that the property owner has no
adequate remedy at law, and that there are special circumstances bringing
the case under some recognized head of equity jurisdiction…” [Cites
omitted.]
“Taxes become a lien on property only by statute…”
“Taxes illegally assessed and paid may always be recovered back,
if the collector understands from the payor that the taxes are regarded
as illegal and that suit will be instituted to compel the refunding
of them; Erskine v. Van Arsdale, 15 Wall. (U.S.) 75, 21 L.Ed. 63, a
case of internal revenue taxes.”
“Where a state official receives money for a tax paid under duress
with notice of its illegality, he has no right to it and the name of
the state does not protect him from suit; Atchison, T. & S. F. R. Co.
v. O'Connor, 223 U.S. 280, 32 Sup.Ct. 216, 56 L.Ed. 436, Ann.Cas. 1913C,
1050."
"The rule is firmly established
that taxes voluntarily paid cannot be recovered back, and payments with
knowledge and without compulsion are voluntary; when paid under protest
or with notice of suit, a recovery may, on occasion, be had, although,
generally speaking, even protest or notice will not avail if the payment
be made voluntarily, with full knowledge, and without any coercion by
the actual or threatened exercise of power possessed, or supposed to
be possessed, over person or property, from which there is no means
of immediate relief than payment; Chesebrough v. United States, 192
U.S. 253, 24 Sup.Ct. 262, 48 L.Ed. 432 (purchase of war revenue stamps
for deed without protest or notice)."
[Bouvier’s Law Dictionary, Vol. II, Third Revision, Eighth Edition,
1914, pp. 3230-3238]
"It is, however, equally clear that a general income tax is an excise
tax laid upon persons or corporations with respect to their income:
that is, a person or a corporation is selected out from the mass of
the community by reason of the income possessed by him or it...
"This is brought out clearly by this court in Brushaber v. Union
Pacific Railroad Co.,
240 U.S. 1, and Stanton v. Baltic Mining Co.,
240 U.S. 103. In the former case it was pointed out that the
all-embracing power of taxation conferred upon Congress by the Constitution
included two great classes, one indirect taxes or excises, and the other
direct taxes, and that of apportionment with regard to direct taxes.
It was held that the income tax in its nature is an excise; that is,
it is a tax upon a person measured by his income...It was further held
that the effect of the Sixteenth Amendment was not to change the nature
of this tax or to take it out of the class of excises to which it belonged,
but merely to make it impossible by any sort of reasoning thereafter
to treat it as a direct tax because of the sources from which the income
was derived."
[Brief for the United
States at 14-15 in Peck & Co. v. Lowe,
247 U.S. 165 (1917). Not in the ruling itself]