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upheld, the distinction between direct and other
classes of taxes may be wiped out, since the property
itself may likewise be taxed by resort to the expedient
of levying numerous taxes upon its uses; that one of
the uses of property is to keep it, and that a tax upon
the possession or keeping of property is no different
from a tax on the property itself. Even if we assume
that a tax levied upon all the uses to which property
may be put * * * would be in effect a tax upon
property, * * * and hence a direct tax requiring
apportionment, that is not the case before us.
* * * * * * *
* * * [The gift tax] falls so far short of taxing
generally the uses of property that it cannot be
likened to the taxes on property itself which have been
recognized as direct. It falls, rather, into that
category of imposts or excises which, since they apply
only to a limited exercise of property rights, have
been deemed to be indirect and so valid although not
apportioned.
In short, the gift tax is not a direct tax because it is not
levied on the “general ownership” of property but rather applies
only to “a limited exercise of property rights”; i.e., the
exercise of the “power to give the property owned to another.”
Id. at 136. Here, petitioner’s dispute is not with the fact that
he made a donative transfer that is properly the subject of the
Federal gift tax, but rather with the characterization of the
property for purposes of measuring its value–-a consideration
that is irrelevant for purposes of determining the
constitutionality of the tax.10
10 Indeed, in a closely analogous context, the Supreme Court
has held that the constitutionality of the Federal estate tax
does not depend upon there even being a transfer of the property
at death. See Fernandez v. Wiener, 326 U.S. 340, 355 (1945);
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