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The Taxation of Out-of-State Tangible Property, 56 Yale Law Journal 640 (1947)


The abandonment by a majority of the Supreme Court, in recent years, of an earlier majority's ill-starred attempt to find in the Fourteenth Amendment a prohibition against multiple state taxation of intangibles evoked law review comment in profusion. In declaring that this prohibition, once seen so clearly by Mr. Justice McReynolds, was only a mirage, the Court did not so much establish a new horizon as reestablish an old one. For Mr. Justice Holmes had said, years before, that however undesirable multiple taxation of intangibles
might be, correction must be sought elsewhere than in the Fourteenth Amendment. There has been, however, a curious disinclination on the part of both the Court and its observers to examine critically the basis upon which the Fourteenth Amendment continues to shelter out-of-state tangible property from property and death taxes of the state where the owner resides; indeed, reaffirmation of the Amendment's protective force as to tangibles is to be found in the very decision which, denying that protection to intangibles, said:

".. . it is undeniable that the state of domicile is not deprived, by
the taxpayer's activities elsewhere, of its constitutional jurisdiction
to tax, and consequently that there are many circumstances in
which more than one state may have jurisdiction to impose a tax
and measure it by some or all of the taxpayer's intangibles."

It is the thesis of this article that the Fourteenth Amendment affords no valid basis for denying to the domiciliary state a correspondingly broad power to tax a resident's tangibles, without regard to their location.

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