James W. Smith


This Note discusses the attempts by states to tax entities which have a distinguishing connection to the federal government. Two competing interests are at stake. First, from the perspective of the federal government, such taxation by the state involves the power to destroy or at least the power to substantially interfere with the functions of federal law and thus subvert the operation of the Supremacy Clause. Second, because the taxing power is an essential instrument of every sovereign government, the judicial denial of a state's right to exercise this power would deprive it of a much needed source of revenue. This Note is specifically concerned with how these interests relate to state taxation of recipients of federal loan and equity financing and argues that in this particular area the judicial is not the proper forum for weighing these complex policy issues because Congress is in a better position to decide this question. Section II of this Note traces the constitutional history of the doctrine of federal immunity. Section III sets out the various tests which have been use to determine when a private entity may be considered a federal instrumentality for purposes of immunity from state taxation. Section IV discusses the doctrine as it presently exists in relation to loan and equity finance programs of the federal government. Section V suggests that Congress should take a more active role in determining which private entities should be granted instrumentality status.