Overview
The American Tax Policy Institute (ATPI), represented by Steptoe partner Lawrence M. Hill and others, filed an amicus brief in support of the government in Moore v. United States. It argues that the transition tax was calculated based on income the corporation had realized. ATPI asserts that the Supreme Court can sidestep the realization question and the case's much broader ramifications.
The brief argues: "Upholding the [transition tax] as a tax imposed on realized income of the foreign corporation will fully dispose of the case without taking on complicated questions like whether realization is always constitutionally required and what comprises realization. By contrast, finding that the [transition tax] violates a constitutional shareholder-level realization requirement could be profoundly destabilizing: There will be a flood of litigation about the constitutionality of a host of other provisions."
According to ATPI, the case is not dependent on whether the 16th Amendment has a realization requirement since the Moores' company, KisanKraft, inarguably realized income while they owned shares in the company. Attributing that income to the Moores is constitutional, the brief asserts. It argues that the case does not present a clean opportunity to address the realization requirement and therefore asks the Court to consider dismissing the petition as improvidently granted
On October 20, 2023, Tax Notes published an article, "Moore Amicus Offers Supreme Court Off-Ramp From Realization Query." It discusses the ATPI brief and others filed in support of the government.