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Historical Perspectives on the Federal Income Tax

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This question has often appeared as a form letter which questions the meaning of the term "United States" as used in the Internal Revenue Code. These letters generally follow the form of: (1) a statement of contusion as to the meaning of the term resulting from their review of the IRC and some court


decisions; (2) citation to three definitions of the term from the Supreme Court opinion of Hooven & Allison Co. v. Evatt88; (3) question as to which of the cited meanings is applicable to an Internal Revenue Service regulation;89 (4) citation to a portion of the Supreme Court opinion of United States v. Cruikshank90 concerning the different obligations and rights stemming from Federal and state citizenship; and (5) concluding with a plea for immediate response to end their confusion.

First it should be noted that neither of the Supreme Court opinions cited in the letters have anything to do with the Federal income tax. Hooven was a case concerning state taxation of imports. The Constitution prohibits states from taxing imports without the consent of Congress except what may be absolutely necessary for executing its inspection laws.91 One of the issues in Hooven was whether the items which had been taxed by the state had been imported, in that the items in question came from the Philippine Islands, which at that time were a insular possession of the United States. It was in this context that the Court entered into a discussion of the meaning of the term "United States" stating:

The term "United States" may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States extends, or it may be the collective name of the states which are united under the Constitution.92

The Court decided for purposes of this constitutional provision that "United States" did not include the Philippine Islands.

Cruikshank, a case decided thirty-eight years before the ratification of the Sixteenth Amendment and the enactment of the modern income tax, was a criminal case which bad nothing to do with taxes of any kind. The quote from the case cited in the letters is part of lengthy section which discusses our federal system of government where individuals are citizens of a state and of the nation


and thus have rights and obligations, which may vary, stemming from these two citizenships.93  If one insists on applying this passage to the subject of taxes, it could best be summarized by saying that an individual has certain rights and obligations under the federal tax laws and certain rights and obligations under the state tax laws and such rights and obligations may not be identical.

The IRC uses the term "United States" several hundred times. It uses the term in all three of the ways mentioned in the Hooven case. For example, the IRC refers to the United States Tax Court.94 This use of the term is obviously not used in the geographical sense. Rather, it is used to indicate that the court is a part of the federal government. In the unemployment tax provisions of the IRC the term is defined to include the States, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.95 The general IRC definition of the term states:

When used in this title,96 where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, the term "United States" when used in a geographical sense includes only the States and the District of Columbia.97

The use of the term which the letters specifically inquire about is not from the IRC, but from the IRS regulations. The regulation in question states in pertinent part:

Section 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States and, to the extent provided by section 871(b) or 877(b), on the income of a nonresident alien individual.98

The use of the term 'United States' in this regulation is that of a modifier of the terms “citizen” and “resident” Further study of this regulation might well have alleviated some of the constituents' confusion. Subsection (b) of this regulation, entitled “Citizens or residents of the United States liable for tax,” expands on the discussion quoted above. Subsection (c) of this regulation, entitled “Who is a citizen,” goes on to state:


Every person born or naturalized in the United States and subject to its jurisdiction is a citizen. For further rules governing the acquisition of citizenship, see chapters 1 and 2 of title III of the Immigration and Nationality Act (8 U.S.C. § 1401-1459). For rules governing loss of citizenship, see sections 349 to 357, inclusive, of such Act (8 U.S.C. §§ 1481-1489), Schneider v. Rusk, 377 U.S. 163 (1974), and Rev. Rul. 70-506, C.B. 1970-2, 1. For rules pertaining to persons who are nationals but not citizens at birth, e.g., a person born in American Samoa, see section 308 of such Act (8 U.S.C. § 1408). For special rules applicable to certain expatriates who have lost citizenship with the principal purpose of avoiding certain taxes, see section 877. A foreigner who has become a citizen but who has not yet been admitted to citizenship by a final order of a naturalization court is an alien.99


88 324 U.S. 652 (1945).

89 26 C.F.R. § 1.1-1(a)(1).

90 92 U.S. 542 (1875).

91 U.S. Const. Art.1, § 10, cl. 2.

92  Hooven, at 671 and 672. It should be noted that the parentheticals in the letters are not from the Court opinion, but rather appear to be Interpretations of the definitions supplied by the author and are not necessarily complete or accurate. It should be also noted that the Court does not state or imply that this list of definitions is exhaustive or exclusive.

93 See, Cruikshank 92 US. at 549 to 551.

94 See, e.g., IRC § 7441.

95 IRC § 3306(i).

96 The IRC is codified in title 26 of the United States Code.

97 IRC § 7701(a)(9).

98 26 C.F.R. § 1.1-1(a)(1).

99 26 C.F.R. § 1.1-1(c).

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