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There are a number of problems with petitioner's theory.
First, we believe petitioner overlooks both the long history of
treating taxes occasioned by death as excise rather than direct
taxes31 and the fact that the Supreme Court's touchstone for
determining a direct tax has been historical treatment, rather
than logical analogy. In New York Trust Co. v. Eisner, 256 U.S.
345 (1921), the Supreme Court brushed aside the taxpayer's effort
to distinguish the estate tax there at issue from the inheritance
tax sustained against a "direct tax" challenge in Knowlton v.
Moore, 178 U.S. 41, 81 (1900). The taxpayer in New York Trust
Co. had sought to make a distinction, for "direct tax" purposes,
between an inheritance tax and an estate tax, based upon the
former's imposition on the privilege of receipt. The Supreme
Court, relying heavily on its earlier opinion in Knowlton v.
Moore, supra, dismissed the effort, not because of "some
scientific distinction", but based
on the practical and historical ground that this
kind of tax always has been regarded as the
antithesis of a direct tax; “has ever been treated
as a duty or excise, because of the particular
occasion which gives rise to its levy.” [Knowlton v.
Moore] 178 U.S. 81-83 * * * Upon this point a page
of history is worth a volume of logic. [New York
Trust Co. v. Eisner, supra at 349.]
31 Knowlton v. Moore, 178 U.S. 41, 81 (1900); see, e.g.,
Bromley v. McCaughn, 280 U.S. 124, 137 (1929) ("[excise] taxes of
this type were not understood to be direct taxes when the
Constitution was adopted"); New York Trust Co. v. Eisner, 256
U.S. 345 (1921).
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