Hundreds of cases involving different aspects of the inheritance tax have come before state and Federal courts, and with but few exceptions the decisions have given this form of revenue a firmer place in fiscal systems. Nothing more will be attempted here than to mention a few of the more important aspects of the tax which have been established.1
The constitutionality of this form of tax was formerly an important question. In regard to this Ross says:
The constitutionality of the general principles of inheritance taxation has been affirmed by a multitude of decisions, so that the competency of Congress, or the legislatures of the several states, to impose an inheritance tax is universally conceded. The inherent justice and
1 Those who desire to go extensively into this aspect of the inheritance tax will do well to consult the exhaustive work, Inheritance Taxes, by Blakemore and Bancroft, and a similar work by P. V. Ross, Inheritance Taxation.
wholesomeness of this system of taxation have so appealed to the judicial mind that all the assaults that wealth, in its aversion to bear its just burdens, has conceived, have proved unavailing. The general doctrine that a state or the United States may raise revenue, and in bountiful quantities, by levying tribute upon estates in the course of transmission from decedents to their successors, is no longer doubted, and most of the attacks now made upon inheritance taxation are upon other than constitutional grounds.1
The use of the tax by the Federal government has been sanctioned by the courts on the ground that it is an indirect or excise tax, and therefore does not have to follow the rule of apportionment. It has been held further that this comes under the taxing power of the Constitution, and is not undertaken for the purpose of regulating the transmission of property. Since the state governments are governments of residual powers, there is no restriction upon their use of the inheritance tax unless the restriction be imposed by their own constitutions or statutes. The use of progressive rates has been held not to infringe upon the uniformity clause of many constitutions - that taxes shall be levied uniformly.
Inheritance Not a Natural Right. - The courts of nearly every state - those of Massachusetts and Wisconsin being the principal exceptions - have held that the right of inheritance is not a natural right, but a privilege created by the state, and subject to whatever regulations the state may see fit to impose. It has been frequently held that the tax is in the nature of an excise or franchise tax on the succession of the property, and not on the property itself. As one decision describes it, it is not a tax upon the property or money bequeathed, but a diminution of the amount that otherwise would pass under the will, and hence what the legatee really receives is not taxed at all. It is that which is left after the tax has been taken off. It is imposed only once, and that is before the legacy has reached the legatee and before it has become his property.2
1 P. V. Ross, Inheritance Taxation, p. 20.
2 In re Finnen, 196 Pa. St. 72.
Some courts have held, however, that the tax is on the right to receive property rather than on the permission or the right to transmit it.
Properly understood, it is not the right to transmit, but the right and privilege to receive, that is taxed. ... It is clear that the right is distinct and separate from the property itself, and the state may tax this right to receive property.1
This brief summary of a particular line of decisions indicates how firm a legal footing the inheritance tax has attained. Litigation involving inheritance tax laws still arises at times, but it seldom has to do with the constitutionality or the power to impose such a tax. Many technicalities have arisen, but none of the decisions have vitiated the principle of inheritance taxes. As far as any difficulties may have existed in the past from the legal viewpoint, they may now be considered as practically settled, and legislative bodies may feel themselves free to make an extended use of the tax if they have not already done so.