Moore Questions, Some Answers: Fixing the Personal Tax System Despite Constitutional Constraints

Authors

• David Gamage, University of Missouri School of LawFollow
• John R. Brooks, Fordham University School of LawFollow
• Edward J. McCaffery, USC Gould School of LawFollow

Document Type

Article

Publication Title

Florida Tax Review

Volume

28

Publication Date

2025

Keywords

Moore v. United States, Buy Borrow Die, Tax Realization, Constitutional Law of Taxation, Sixteenth Amendment, Wealth Tax, Mark-to-Market Taxation, Progressive Taxation, Tax Reform, Tax Policy, Capital Gains Taxation, Estate and Gift Tax, Consumption Tax, Eisner v. Macomber, Direct Tax, Tax Avoidance, Apportionment

Abstract

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the problem and the times.

Recommended Citation

David Gamage, John R. Brooks, and Edward J. McCaffery, Moore Questions, Some Answers: Fixing the Personal Tax System Despite Constitutional Constraints, 28 Fl. Tax Rev. 381 (2025)
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1420