Eisner v. Macomber

Prior cases

In 1895, the Supreme Court had held in Pollock that a tax from income on property (unlike a tax on income from employment or vocations) needed to be proportionate to state population. In 1913, the United States ratified the Sixteenth Amendment to the United States Constitution, which allowed taxation of income without regard to source (i.e., whether income from property or income from vocations and employment), and without regard to a state's population.

In 1918, the Court in Towne v. Eisner 245 U.S. 418 (1918) had addressed a nearly identical situation to one in Eisner v. Macomber. (Eisner was the person responsible for Internal Revenue Collection in both cases). However, in the aftermath of Towne v. Eisner, the U.S. Congress passed a revenue collection statute that specifically stated that stock dividends were to be counted as income.

Facts of the case

Mrs. Macomber owned 2,200 shares in Standard Oil. Standard Oil declared a 50% stock dividend and she received 1,100 additional shares, of which about $20,000 in par value represented earnings accumulated by the company—recapitalized rather than distributed—since the effective date of the original tax law.

The current statute expressly included stock dividends in income, and the government contended that those certificates should be taxed as income to Mrs. Macomber as though the corporation had distributed money to her. Mrs. Macomber sued Mr. Mark Eisner, the Collector of Internal Revenue, for a refund.

Economic substance of a stock dividend

The stock dividend in this case was the economic equivalent of a stock split—a transaction in which the corporation multiplies the total number of shares outstanding, but gives the new shares to shareholders in proportion to the number they previously held. For example, if a corporation declares a "two for one" stock split (and distributes no money or other property to any stockholder), a stockholder who held 100 shares at $4 per share will now hold 200 shares with a value of $2 each, which is still $400 in value.

Stock dividends vs. cash dividends

A shareholder's assets do not grow after this sort of stock dividend. Metaphorically, the "pie" is still the same size—but it has been sliced into more pieces, each piece being proportionately smaller. Of course, the same is true of a cash dividend: the shareholder gains cash, but the corporation represented by his shares has also lost cash, so that these shares implicitly decline in value by an equal amount.

A shareholder also makes no "sale or other disposition" of stock after this sort of stock dividend. The taxpayer still owns the same proportionate percentage of the corporation he or she owned prior to the stock dividend. Again, this is also true of a cash dividend.

However, several important factors distinguish a stock and cash dividend. "Overall, the aim of the tax law is to impose a tax on "dividends" when assets representing corporate earnings are transferred to the shareholders. Stock dividends, however, merely give the shareholders additional pieces of paper to represent the same equitable interest; they do not transfer assets or create new priorities among the security-holders. The total value of the common shares, though now spread out over a larger number of units, is left unchanged from its previous level. In effect, nothing of substance has occurred."

Issue

Essentially, therefore, [i.e. in light of the fact that stock and cash dividends are economically equivalent,] the question in Macomber was not whether the shareholder had gain in an economic sense, but whether in legal or accounting terms the stock dividend was to be regarded as a taxable event. ... Stripped of its Constitutional element, the issue in Eisner v. Macomber in the end comes down to a "battle of similarities." Is a stock dividend (as the majority held) "more like" a situation in which a corporation simply accumulates its earnings and makes no distribution at all? Or is it (as Brandeis thought) "more like" the receipt of a cash dividend which is followed by a reinvestment of the cash received in additional shares?

Decision of the Supreme Court

In the majority opinion, Justice Mahlon Pitney ruled that this stock dividend was not a realization of income by the taxpayer-shareholder for purposes of the Sixteenth Amendment:

The Court noted that in Towne v. Eisner, it had clearly stated that stock dividends were not income, as nothing of value was received by Towne - the company was not worth any less than it was when the dividend was declared, and the total value of Towne's stock had not changed.

Although the Eisner v. Macomber Court acknowledged the power of the Federal Government to tax income under the Sixteenth Amendment, the Court essentially said this did not give Congress the power to tax — as income — anything other than income, i.e., that Congress did not have the power to re-define the term income as it appeared in the Constitution:

The Court ordered that Macomber be refunded the tax she overpaid.

Dissents

In the dissent, Justice Louis Brandeis took issue with the majority's interpretation of income. He argued the Sixteenth Amendment authorized Congress to tax “incomes, from whatever source derived”, and the authors of the amendment “intended to include thereby everything which by reasonable understanding can fairly be regarded as income”, and that “Congress possesses the power which it exercised to make dividends representing profits, taxable as income, whether the medium in which the dividend is paid be cash or stock, and that it may define, as it has done, what dividends representing profits shall be deemed income”.

He noted that in business circles, cash dividends and stock dividends were treated identically. In effect, he argued that a stock dividend is really a cash dividend, since it is really two-step affair, consisting of 1. a cash distribution, 2. subsequently used to purchase additional shares through the exercise of stock subscription rights. Brandeis saw no reason why two essentially identical transactions should be treated differently for tax purposes.

Justice Brandeis' effort to construct, or read in, a cash distribution was strained and unconvincing. The plain fact is that Mrs. Macomber did not receive, and could not have obtained, a cash payment from Standard Oil. Had she wished to substitute cash in an amount equivalent to the value of the stock dividend, she would have had to sell the dividend shares to other investors. No other cash source was made available.

Aftermath

In any event, the success of investors in avoiding tax was short lived. The following year, the Court ruled that capital gains were income, and that they should be recognized as income when the stock was sold. In addition, the exception for stock dividends was narrowed by the Court in such cases as United States v. Phellis, 257 U.S. 156 (1921) (shares in a subsidiary corporation issued to stockholders in the parent corporation were taxable as income); Rockefeller v. United States 257 U.S. 176 (1921) and Cullinan v. Walker 262 U.S. 134 (1923) (increase in capital accumulated by corporations over time were taxable when shares are distributed to stockholders in a successor corporation).

In 1940 the Supreme Court departed from the realization concept described in Eisner v. Macomber when the Court held, in Helvering v. Bruun, 369 U.S. 461 (1940), that "severance" is not an element of realization. In Bruun, a taxpayer-landlord repossessed a property from a tenant—property that had been subject to a 99-year lease—after the tenant failed to pay rent and taxes. The lease had allowed for the tenant to construct a new building or other improvements. The tenant had removed the existing building and had built a new one. The value of the new building as of the date of repossession was $64,245.68. The government contended that the landlord realized a gain of $51,434.25, the difference between the value of the building at the date of repossession and the landlord's basis in the old building of $12,811.43. The landlord argued that there was no realization of the property because no transaction had occurred, and that the improvement of the property that created the gain was unseverable from the landlord's original capital. The Court ruled against the landlord, deciding that the landlord had realized a gain upon repossession of the property, and said that "severance" is no longer an element of realization.

Use by anti-tax activists

Eisner v. Macomber is a key case in income tax law. Its rather narrow but important application is often misapplied or misunderstood by tax protesters. Anti-tax activists often use this case to argue that wages from labor cannot be taxed as income. The decision in Eisner v. Macomber, however, was not about wages, and the exception for stock dividends was narrow.

This is a typical accurate, but misleading quote from the case:

The Supreme Court did discuss what constituted income in Eisner v. Macomber, and quoted from Towne v. Eisner:

An important principle taken from Eisner v. Macomber is that the word "income" in the Sixteenth Amendment is generally given its ordinary plain English meaning, and wealth and property that is not income may not be taxed as income by the Federal Government. The Court was clear, however, that taxes on property and wealth could be levied freely by the states, and could be levied by the Federal Government if each state were required to pay a proportion of the tax relative to its population.