Annotation 49 - Article I

  Clause 5. Duties on Exports from States

Taxes on Exports

This prohibition applies only to the imposition of duties on goods by reason of exportation. 1770 The word ''export'' signifies goods exported to a foreign country, not to an unincorporated territory of the United States. 1771 A general tax laid on all property alike, including that intended for export, is not within the prohibition, if it is not levied on goods in course of exportation nor because of their intended exportation. 1772 Where the sale to a commission merchant for a foreign consignee was consummated by delivery of the goods to an exporting carrier, the sale was held to be a step in the exportation and hence exempt from a general tax on sales of such commodity. 1773 The giving of a bond for exportation of distilled liquor was not the commencement of exportation so as to exempt from an excise tax spirits that were not exported pursuant to such bond. 1774 A tax on the income of a corporation derived from its export trade was not a tax on ''articles exported'' within the meaning of the Constitution. 1775  

In United States v. IBM Corp., Supp.39 the Court declined the Government's argument that it should refine its export-tax-clause jurisprudence. Rather than read the clause as a bar on any tax that applies to a good in the export stream, the Government contended that the Court should bring this clause in line with the import-export clause Supp.40 and with dormant-commerce-clause doctrine. In that view, the Court should distinguish between discriminatory and nondiscriminatory taxes on exports. But the Court held that sufficient differences existed between the export clause and the other two clauses, so that its bar should continue to apply to any and all taxes on goods in the course of exportation.

Stamp Taxes .--A stamp tax imposed on foreign bills of lading, 1776 charter parties, 1777 or marine insurance policies, 1778 was in effect a tax or duty upon exports, and so void; but an act requiring the stamping of all packages of tobacco intended for export in order to prevent fraud was held not to be forbidden as a tax on exports. 1779  


[Footnote 1770] Turpin v. Burgess, 117 U.S. 504, 507 (1886). Cf. Almy v. California, 65 U.S. (24 How.) 169, 174 (1861).

[Footnote 1771] Dooley v. United States, 183 U.S. 151, 154 (1901).

[Footnote 1772] Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin v. Burgess, 117 U.S. 504, 507 (1886).

[Footnote 1773] Spalding & Bros. v. Edwards, 262 U.S. 66 (1923).

[Footnote 1774] Thompson v. United States, 142 U.S. 471 (1892).

[Footnote 1775] Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper Co. v. Bowers, 266 U.S. 373 (1924).

[Footnote 39 (1996 Supplement)] 116 S. Ct. 1793 (1996).

[Footnote 40 (1996 Supplement)] Article I, Sec. 10, cl. 2, applying to the States.

[Footnote 1776] Fairbank v. United States, 181 U.S. 283 (1901).

[Footnote 1777] United States v. Hvoslef, 237 U.S. 1 (1915).

[Footnote 1778] Thames & Mersey Inc. Co. v. United States, 237 U.S. 19 (1915). In United States v. IBM Corp., 116 S. Ct. 1793 (1996), the Court adhered to Thames & Mercy, and held unconstitutional a federal excise tax upon insurance policies issued by foreign countries as applied to coverage for exported products. The Court admitted that one could question the earlier case's conflating of a tax on the insurance of exported goods as the same as a tax on the goods themselves, but it observed that the Government had chosen not to present that argument. Principles of stare decisis thus cautioned observance of the earlier case. Id. at 1800-01. The dissenters argued that the issue had been presented and should be decided by overruling the earlier case. Id. at 1804 (Justices Kennedy and Ginsburg dissenting).

[Footnote 1779] Pace v. Burgess, 92 U.S. 372 (1876); Turpin v. Burgess, 117 U.S. 504, 505 (1886).

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