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Respondent's motion for summary judgment will be denied in
part, insofar as petitioner will be given the opportunity to
amend his petition to plead and at a trial to prove the facts
that bear on his belated assertions of entitlement to itemized
deductions and of reasonable cause for failure to file returns.
1. Petitioner's Constitutional Argument
Article I, Section 2 of the U.S. Constitution states in
relevant part:
Representatives and direct Taxes shall be
apportioned among the several States which may be
included within this Union, according to their
respective Numbers, which shall be determined by adding
to the whole Number of free Persons, including those
bound to Service for a Term of Years, and excluding
Indians not taxed, three fifths of all other
Persons.[1]
It is well settled that the phrase "excluding Indians not
taxed" is simply part of an apportionment provision designed to
determine the number of representatives for each State and to
correctly apportion the direct taxes among the States. In
apportioning the representatives and direct taxes among the
States, "Indians not taxed" were excluded from the count. United
States v. Kagama, 118 U.S. 375, 378 (1886). Although, at the
time the Constitution was adopted, some Indians were taxed, while
1 Amended in respects not germane to this inquiry by sec. 2
of the Fourteenth Amendment with respect to the mode of
apportionment of representatives among the several States and by
the Sixteenth Amendment with respect to taxes on income without
apportionment.
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Last modified: May 25, 2011