Washington Law Review


Harold Hestnes


The constitutionality of state income taxation has been considered by several courts with the result that some have held state income tax laws constitutional and some have held them unconstitutional. The courts which have passed upon the question have been confined to a consideration of the provisions of the constitution of the particular state and have held that such a tax is in conflict with the constitutional limitations or that such a tax is permissible as not being prohibited by the constitution. The decision in each instance in which the income tax was held unconstitutional has been based upon the conclusion that an income tax is a property tax within the meaning of the term as used in the constitution under consideration. The Supreme Court of Washington has fallen in line with several jurisdictions in holding that such a tax is a property tax within the definition in our constitution that, " 'property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership." If it is truly determined that a tax on net income is fundamentally a property tax there can be no quarrel with the conclusion that a graduated income tax is m violation of the "uniformity clause" and must therefore be held unconstitutional. A review of the cases holding a net income tax to be a property tax would seem to indicate that all courts which have so held have failed to take into full consideration the fundamental factors which determine the proper classification of any given tax. Such cases have also disregarded certain well recognized rules of constitutional construction in that limitations on the taxing power not expressly stated have been read into the constitution by an all inclusive definition given to the word property.

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