872
MACHINES CORP.
Kennedy, J., dissenting
exportation is another layer of complexity added to the administration of § 4371. Finally, the IRS now must determine which of the many, ever evolving types of insurance fall within the broad prohibition of Thames & Mersey against any tax that burdens the exporting process. See 237 U. S., at 27. Truckers, for example, often take insurance out to cover liability for the loss or damage to merchandise that they are carrying. Holtom, supra, at 435. The cost of that insurance, which may be specific to an export shipment and related to the value of the goods, is likely passed through in some measure to the exporter and therefore "falls upon the exporting process," Thames & Mersey, 237 U. S., at 27. Questions will also arise whether it violates the Export Clause to tax insurance taken out by an export freight-forwarder to cover a warehouse storing goods in transit, or to tax ocean marine protection and indemnity insurance taken out by a vessel owner to protect against damage to export cargo, cf. Holtom, supra, at 452, if part of the risk covered is domestic.
The severity of these administrative burdens will depend in part upon the penetration of the domestic market by foreign insurers in certain lines. We can anticipate increased burdens with the 4% price cut in foreign insurance for exporters that results from today's decision. The Court is wrong to frustrate the will of Congress by giving exporters an undeserved exemption from § 4371 and by adding needless complexity to the administration of the statute, all upon the incorrect, unexamined assumption that the tax is on exported goods.
II
Turning to the question that I take to be dispositive, I would hold that the Export Clause does not apply to § 4371. The text and history of the Clause, and its interpretation by the Fifth Congress, suggest that taxes on insurance do not fall within its prohibitions. Because § 4371 taxes a service distinct from the actual export of the goods, and does not
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