864
MACHINES CORP.
Kennedy, J., dissenting
federal tax on goods in export transit," ante, at 845. In so reformulating the question, the Court makes the assumption that § 4371's insurance tax is a tax on export goods, thereby adopting the premise of Thames & Mersey that I had thought we were to address. In the end the Court assumes the statute to be invalid rather than deciding it to be so. I find no precedent for setting aside an Act of Congress in this peremptory way. Worse yet, the Court's assumption is wrong; because § 4371 taxes a service distinct from the goods and is not a proxy for taxing the goods, it does not fall within the prohibition of the Export Clause. The Court thus carves out an undeserved exemption from § 4371 for exporters, adding significant complexity to its administration. Moreover, in a case in which the Export Clause should not even apply, the Court tackles the great problem of reconciling our Export Clause jurisprudence with modern decisions interpreting the Commerce and Import-Export Clauses, U. S. Const., Art. I, § 8, cl. 2, and Art. I, § 10, cl. 2. This is unwise and unnecessary. I would limit the inquiry to a reconsideration of Thames & Mersey, and uphold the statute as applied to respondent. With respect, I dissent.
I
We consider a rather simple federal tax. Section 4371 of the Internal Revenue Code imposes a tax of "4 cents on each dollar, or fractional part thereof, of the premium paid on the policy of casualty insurance or the indemnity bond, if issued to or for, or in the name of, an insured . . . ." 26 U. S. C. § 4371(1) (1982 ed.). The term "insured" is defined to include any "domestic corporation or partnership, or an individual resident of the United States, against, or with respect to, hazards, risks, losses, or liabilities wholly or partly within the United States . . . ." § 4372(d)(1). The statute does not discriminate against exports. Indeed, it does not even mention them. The tax must be paid not only by domestic traders but also by any insured, even an individual, who is cov-
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