Alex Zhang (Emory; Google Scholar), The Forgotten Attribution Power, 135 Yale L.J. __ (2026):

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 a systematic account of the constitutional income-attribution power.  It excavates overlooked litigation materials and caselaw from the infancy of the current federal income tax:  In the 1920s and 1930s, litigants attacked, on constitutional grounds, federal taxation of trusts, corporate profits, and marital units in community-property states.  The Court rejected all such challenges.  It crafted a robust attribution power that allowed Congress broad discretion to tax A on income realized by B, limited only by due process.  This Article’s 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.  The Article thus provides doctrinal and policy insights in an age of increasing judicial intervention in federal taxation.

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