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Historical Perspectives on the Federal Income Tax
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19. MAY CONGRESS TAX OCCUPATIONS OF COMMON LAW RIGHT?
Yes, Congress may tax "occupations of common law right" and has done
so many times, for example the Social Security tax and the Federal income
tax.
The argument has been made that earning a living is a right, sometimes
called a "God given right" or a "common law right," and not a privilege
and therefore it can not be taxed. Sometimes those presenting this argument
would distinguish between natural occupations, i.e. farmer or rancher,
and occupations created by the government, i.e. government employee or
lawyer, the later being taxable while the others are not. These types of
distinctions have never been recognized in the area of taxing power of
the states or the Federal government. The Supreme Court has specifically
rejected a challenge to the Social Security tax based on this type of argument,
stating:
The statute books of the states are strewn with illustrations of taxes
laid on occupations pursued of common right. We find no basis for a holding
that the power in that regard which belongs by accepted practice to the
legislatures of the states, has been denied by the Constitution to the
Congress of the nation.100
In challenges to the Federal income tax, the courts have consistently
rejected the claim that Congress may not tax occupations of common law
right.101
100 Steward Machine C0. v. Davis, 301 U.S. 548 at 582 to 583 (1937).
101 See, for example, United States v. Russell, 585 F.2d 368 (8th Cir.1978);
United States v. Silkman, 543 F.2d 1218 (8th Cir.1976), cert. denied, 431
U.S. 919 (1977); and Jones v. United States, 551 F. Supp. 578 (N.D.N.Y.1982).
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