J.C. Shepherd - Page 18




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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);               
                                                             (continued...)           




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