Today, the Supreme Court decided to review the case of Department of Justice v. McNutt, which challenges a federal law banning home distilleries. The key question in the case is whether the law in question is justified by the combination of the tax power and the Necessary and Proper Clause (which gives Congress the power to make laws "necessary and proper" for executing other powers granted to the federal government). This is likely to be most important Supreme Court Necessary and Proper Clause decision since at least NFIB v. Sebelius (2012), which ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power; it cannot be a "great, substantive and independent" power. This case is likely to further clarify the meaning of "proper," perhaps by explicating in more detail what counts as a "great…and independent" power.

In the lower court decision in this case, the Fifth Circuit ruled that the law is not "proper" and even that it isn't "necessary." There is also a Sixth Circuit decision that went the other way, thereby creating a circuit split.

As explained in my earlier posts on the Fifth and Sixth Circuit decisions (linked above), I think this law is not "proper," and I hope the Supreme Court strikes it down. I summarize the reasons why in my post on the Fifth Circuit ruling:

The Fifth Circuit… concludes that the law in question exceeds Congress' authority under the Necessary and Proper Clause, which grants the power to makes laws "necessary and proper" for carrying into execution other federal powers. I think the court is right that the law in question is not "proper." The Supreme Court, in NFIB v. Sebelius(2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. See my analysis in this article. The power claimed here is clearly "great and independent." As Judge [Edith] Jones notes, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

I elaborated further in the post criticizing the Sixth Circuit decision:

[T]he Sixth Circuit is badly wrong to conclude that the law is "proper." As explained in  my earlier post, the Supreme Court, in NFIB v. Sebelius (2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. The power to ban any home-based activity that might serve a substitute for taxable activity outside the home is clearly a "great and independent power." As Judge Edith Jones explains in the Fifth Circuit ruling, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

The Sixth Circuit tries to address this point by claiming alcohol is somehow special….

This distinction between alcohol and all other commodities is totally arbitrary. The same reasoning could justify banning home production of anything else that is more easily taxed if produced outside the home. And there is a long history of home production of all kinds of other commodities taxed or severely regulated by the government, ranging from cigarettes to illegal drugs, to pornographic videos.

While Judge Edith Jones (author of the Fifth Circuit decision) is one of that circuit's most conservative judges, the ruling was also joined by liberal Obama appointee Judge James Graves. On the other hand, the Sixth Circuit decision was written by prominent conservative Judge Raymond Kethledge. We shall see if the Supreme Court also divides on this issue in a way that cuts across conventional ideological and jurisprudential lines.

As noted in my post on the Fifth Circuit case, I think Judge Jones is not persuasive in arguing that the home distillery ban isn't "necessary," as well as improper. That argument is unlikely to prevail under the Supreme Court's expansive definition of "necessary, "  dating back to McCulloch v. Maryland (1819), where Chief Justice John Marshall famously ruled that "necessary" includes any measures that may be "useful" or "convenient" for implementing an enumerated power.

As also noted in my posts on the two lower court rulings, I think the government has a better argument that this law is authorized by the Supreme Court's badly misguide precedent on federal power under Commerce Clause (which grants Congress power to regulate interstate commerce). But the Supreme Court is apparently not going to review that issue. The question presented submitted to the Court in McNutt is limited to the Necessary and Proper Clause.

The post Supreme Court Will Hear Necessary and Proper Clause Case on Federal Law Banning Home Distilleries appeared first on Reason Magazine.

The annual decline was about $70 billion. Companies are writing off billions in A.I. investments, taking advantage of tax cuts that President Trump signed into law.

© Haiyun Jiang/The New York Times

For many Americans overseas, the scariest day this month is not Halloween, but October 15—the final extended deadline for filing income tax returns with the Internal Revenue Service (IRS).  

An estimated 3.3 million U.S. citizens live abroad, although the number is likely an undercount because the government doesn't keep a comprehensive list or require Americans overseas to register their residence. Still, American citizens and resident aliens living abroad must pay U.S. income taxes and comply with domestic tax filing requirements, regardless of where they live or work. They must also complete the dizzying process of reporting any foreign bank accounts, assets, and financial interests in foreign institutions. 

When filing their income tax returns, most Americans living abroad have zero tax liability. In its 2025 Annual Report to Congress, the Taxpayer Advocate Service—an independent organization within the IRS that helps people navigate tax problems—found that for Americans overseas, "the percent of individual international tax returns reporting no tax liability is significantly higher than domestic taxpayers." Yet, the agency reports that the filing process is "complex, overlapping, and punitive." The report says failure to comply results in "harsh and disproportionate penalties…even when taxpayers make good-faith mistakes or owe no U.S. tax."

The U.S. income tax rate is low compared to other high-income countries, so Americans living overseas typically pay more in local taxes than they would here. Still, Brandon Mitchener, executive director at Tax Fairness for Americans Abroad, tells Reason that Americans living outside the U.S. are often oblivious to their income tax obligations, assuming they're exempt because they already pay taxes in their country of residence. He says that complex U.S. tax laws and financial regulations force many Americans living overseas to request an extension to October 15. 

The date also coincides with the final deadline for the Foreign Account Tax Compliance Act (FATCA) and the Report of Foreign Bank and Financial Accounts (FBAR)—regulations that require Americans with foreign financial assets above a certain threshold to declare the value of their assets to the IRS or Treasury Department. 

Under FATCA, Americans living overseas with foreign financial assets exceeding $200,000 at year-end or more than $300,000 at any point during the year must declare their assets when filing their income tax return. The law also requires foreign financial institutions to report information about U.S. account holders directly to the IRS. Originally enacted to catch Americans overseas engaged in tax evasion or other criminal financial activity, it has instead made American citizenship an impediment for expatriates looking to save or invest money outside the U.S.

"Because of FATCA, many foreign financial institutions shun American clients," Mitchener says. This includes Trade Republic, a German digital bank and online brokerage firm that doesn't accept U.S. citizens living abroad, a category of people it tellingly describes as "FATCA customers."

"Some charge a premium for banking-while-American," he adds, while some have "even de-banked American clients." The latter is a very real concern for Madison Berry, an American living in the Netherlands. She tells Reason she's "a little bit worried" that her European bank will one day "come back and be like, 'Oh, you're a U.S. citizen. We're gonna close your account.'"

This "reduces choice and raises the cost and complexity of everyday financial products for Americans abroad, from basic savings accounts to mortgages and retirement savings," Mitchener says, creating problems unique to America and Eritrea, the only two countries that tax citizens living outside their borders. 

Compounding matters, Americans with foreign financial accounts exceeding $10,000 must file an FBAR with the Treasury Department's Financial Crimes Enforcement Network, even though the form duplicates much of the same information already reported through FATCA. The reporting requirements make investing or saving money abroad prohibitive for Americans and foreign financial institutions, with foreign banks opting to close existing accounts or outright denying Americans the opportunity to open a bank account, according to a 2019 report by the Government Accountability Office. Seven years later, little has changed. The IRS itself admits that its systems and functions are "inaccessible to or incompatible with the needs of taxpayers living abroad, creating unnecessary barriers to compliance." 

Berry says figuring out her tax obligations and reporting requirements has left her "in a financial limbo." "I seriously considered renouncing my U.S. citizenship as part of the process just to make life easier." She's not alone. 

Several Americans living overseas who spoke to Reason on condition of anonymity said they were also considering renouncing their U.S. citizenship rather than deal with the onerous annual tax filing process. One American living in Ireland who owns and operates a U.S.-based business says she uses a remote desktop and virtual private network to access her financial institutions to avoid scrutiny. 

Another tells Reason she's considering renouncing her citizenship because America's tax system is "predatory in how complicated it is and how much responsibility it puts on ordinary people to figure everything out themselves."

The post Why Some Americans Living Abroad Would Rather Renounce Their Citizenship Than File Taxes appeared first on Reason Magazine.

Every year, the Indonesian government forgoes taxes it could collect. Through tax holidays, rate cuts and exemptions, it courts investment while easing the burden on households and small businesses. Economists call this “tax expenditure” because giving up revenue is another way of spending public money. The Ministry of Finance expects it to reach 564 trillion […]

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