David Gamage (Missouri-Columbia; Google Scholar), Jake Brooks (Fordham; Google Scholar) & Edward J. McCaffery (USC; Google Scholar), Moore Questions, Some Answers: Fixing the Personal Tax System Despite Constitutional Constraints, 28 Fla. Tax Rev. ___ (2025):
Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the problem and the times.
Conclusion
No one should ever have thought it would be easy to fix the fundamental problem of the U.S. tax system by finding a way to tax the wealthy and the returns to wealth systematically. The Moore decision leaves us with many questions and not many clear-cut answers about how to proceed. The primary constitutional questions concern Buy step reforms, especially unapportioned federal wealth tax or comprehensive mark-to-market reforms. Most Borrow and Die step reforms are probably safe from constitutional challenge; we suspect that most experts would predict that the major Borrow and Die step reforms would be upheld if challenged.
If constitutional or political concerns make federal wealth tax or comprehensive mark-to-market reforms infeasible, meaningful reform should still be possible. Combining more limited Buy step reforms with substantial Borrow and Die step reforms should at least start to fix Buy Borrow Die—the fundamental problem of the income tax. Politics is messy, and tax politics can be especially so. In that light, we suggest that the best reforms may be whichever mix and match can generate political momentum and support at any moment in time. Reforms that would partially address Buy Borrow Die should not be opposed just because there might be other options for reform that might arguably be better on some dimensions, in the abstract, if those other alternative reforms are not currently politically plausible.
As the famous quotation by Otto von Bismark goes, “Politics is the art of the possible, the attainable—the art of the next best.” What is possible or attainable at any moment depends in part on the personalities and idiosyncratic preferences of the pivotal lawmakers of the time as well as on the political trends and vibes of the moment. We have endeavored in this Article to survey and present a basic overview of a variety of options for at least partially fixing Buy Borrow Die despite the constitutional challenges evident from Moore. When the political moment generates sufficient appetite for reform, we hope that these options will offer a menu that can be selected from to design meaningful reform, along with an analysis of the potential constitutional challenges and how they might be overcome.
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