Klehr Harrison Files Amicus Curiae Brief in US Supreme Court Tax Case

PHILADELPHIA (September 22, 2023) — On September 6, 2023, Mark Berg, the Chair of Klehr Harrison’s Tax Practice Group, filed an amicus curiae brief in Moore v. United States. Berg was represented before the Court by Bill Harvey of Klehr Harrison’s Litigation Department.

At issue in Moore is the constitutionality of a tax that was enacted in 2017 and that reportedly raised some $330 billion dollars in revenue. The tax was imposed on the US shareholders of certain non-US corporations on the basis that they were deemed to receive a distribution in 2017 (or in some cases 2018) of the corporation’s undistributed earnings over the prior 30 years (going back to 1987). The Petitioners in Moore argue that this tax is an unconstitutional “direct tax” because it is imposed on shareholders solely because they own shares in certain non-US corporations, and it is not imposed on realized income, so is not permitted under the Sixteenth Amendment. The amicus brief, filed in support of the Petitioners, seeks to allay concerns that a ruling in favor of the Petitioners would call into question the constitutionality of numerous provisions of the tax code by pointing out the fundamental differences between those provisions and the tax at issue in Moore. Click here to read the amicus brief.

Berg has concentrated his practice, for more than 35 years, on advising clients on the federal, New York State, New York City and international tax and business aspects of a variety of complex domestic and cross-border transactions as well as handling high-stakes federal, New York State and New York City tax controversies. Berg is also a frequent author and lecturer. He has been a co-editor of the Business Entities Journal’s International Taxation Department, the pass-through entities columnist and a member of the Board of Advisors and Contributors of the Journal of S Corporation Taxation, and a member of the Board of Advisors of the Journal of Limited Liability Companies.