Just the other day at the NYU-UCLA Tax Conference

At the NYU-UCLA Tax Conference last week, an economist was giving a talk about the Biden Administration’s budget proposal to tax billionaires on unrealized appreciation. This provision moves beyond the Wyden mark-to-market tax, making it somewhat more of a prepayment provision for future tax liabilities that might be more conventionally realized.

In the question period, I opined that the 6 right-wingers on the Supreme Court would probably strike it down, relying on Eisner v. Macomber‘s statement (formally unreversed, although widely viewed as having been repudiated by the Court more than 80 years ago), to the effect that realization is a mandated constitutional prerequisite for treating something as “income.” I suggested that the six of them just wouldn’t care about the prepayment issue, because why bother with it when you have the votes.

“I’m not a lawyer …” he started to answer.

“Neither are they” was my reply.