The Income Tax Cases and Jurisdictional “Waiver”

On the issue of whether the Anti-Tax Injunction Act is jurisdictional or an affirmative defense, I would note that in Pollock v. Farmers’ Loan and Trust Co. (the 1895 cases striking down the federal income tax statute as unconstitutional), the Court concluded that the United States waived the Anti-Tax Injunction Act bar.  Pollock described that as a jurisdictional waiver, which makes no sense, but if the Act is not really jurisdictional then it can be waived. History repeating itself?

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2 Responses

  1. nidefatt says:

    maybe it’s personal jurisdiction over the government that is barred. you can waive that.

  2. Scott Dodson says:

    Jurisdictional waivability is more complicated than the rhetoric makes it out to be. In addition to PJ, the 11th Amendment’s limitation of “judicial power” can be waived. Also, as Michael Collins has persuasively shown, equity jurisdiction was conceived of quite differently in 1895 than it is now.