Supreme Court Asked to Sidestep Question on Congress’s Tax Power

The US Supreme Court should avoid ruling on whether Congress has the authority to tax unrealized gains because a dispute over a 2017 tax law doesn’t require such a determination, the American Tax Policy Institute said.

But if it does so, reversing the Ninth Circuit’s decision to uphold a foreign earnings tax in the Tax Cuts and Jobs Act could incite a “flood of litigation about the constitutionality of a host of other provisions” in the Internal Revenue Code, the ATPI said in an amicus brief filed Thursday.

That’s because many income tax provisions don’t require realization as a precondition ...