The Forgotten Attribution Power

• In Event: Realization

Abstract

Economic inequality stands at record levels, and constitutional law haunts egalitarian reform. In 2024, the Supreme Court decided the latest contest: Moore v. United States rebuffed an attempt to sharply limit the federal taxing power, as a razor-thin majority upheld Congress’s attribution of foreign corporations’ income to domestic shareholders. But four Justices criticized the reasoning of the majority, faulting its use of a fabricated doctrine. This Article provides the first account of the constitutional attribution power in decades. By excavating overlooked litigation materials and caselaw from the infancy of the current federal income tax, it argues that Congress has broad discretion to tax A on income realized by B. This account defends the majority’s approach and its application to factual predicates beyond those in Moore. Indeed, the attribution framework allows Congress to design structural tax reform that effectively replicates current policy proposals by taxing corporate earnings to shareholders. This Article thus provides doctrinal and policy insights in an age of increasing judicial intervention in federal taxation.

Author

• Alex Zhang, Emory University Law School