656 HARVARD LAW REVIEW so chooses, may be measured more or less by reference to the riches of the person taxed." ^° To this is added: "It is unnecessary to consider whether the distinction between a tax measured by certain property and a tax on that property could be in- voked in a case like this. Flint v. Stone Tracy Co., 220 U. S. 107, 146, 162 et seq. Whichever this tax technically may be, the authorities show that it must be sustained." ^^
- ° Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54, 58, 38 Sup. Ct. Rep.
40 (191 7). '* Ibid., 59. This passage was quoted by Chief Justice Rugg of the Massachusetts supreme court in Maguire v. Tax Commissioner, 230 Mass. 503, 510-11, 120 N. E. 162 (1918), which sustained the power of Massachusetts to tax income received by a Massachusetts cestui from a Pennsylvania trust. "That reasoning," said the Chief Justice, "appears to us to be equally applicable to the facts here disclosed. ... It is of no consequence in this aspect whether the tax is levied on income in truth re- ceived by the resident taxpayer from intangible property held for his benefit by a trustee resident in a sister State or on intangible property owned by the taxpayer but all in fact kept by him in a sister State. There is not apparent to us any difference in principle between the two cases" (230 Mass. 503, 511). It is interesting to note that the Massachusetts court calls the income tax a prop>- erty tax and justifies it as such, and then adds further justification which seems to proceed on the notion that it is tax on the person rather than one on property. Evi- dently the nomenclature is not of controlling importance. Substantial considerations of public pohcy appear to be the basis on which the taxability of residents on income from extra-state sources is sustained. The pertinent paragraphs of the opinion are as follows: "The cestui que trust has important legal rights respecting the trust fimd which are personal to her. They are rights in the nature of property. They cannot be taken away from her by arbitrary or irrational procedure. They attach to her person wherever she goes. One of these is the right to receive the income. That is a property right. The income when received is property. The tax here in question is a property tax. Tax Commissioner v. Putnam, 227 Mass. 522, 531, 532. Whether it be regarded as a tax on the right of the cestiii que trust or a tax on the income as received, in either event a property tax is permissible. Of necessity a tax on income requires time as an element in its calculation. It must be levied on the income re- ceived during a period of time. It is not necessary that income be reinvested before it can be taxed. It may be spent as received and yet be subject to taxation. The contention of the petitioner in principle reaches much further than to the facts of the present case. In its logical application and extension it apparently would render invalid income from annuities, certificates in partnerships, associations and trusts, and perhaps other sources, originating in sister States, and not having a place of business in this Commonwealth. Of course, if the principle is sound, its disturbing effect is no argument against its recdgnition and adoption. But a contention which in its results would seriously cripple the practical operation of any comprehensive system of State income taxation has no presumption in its favor and ought not to be adopted except because of compelling considerations. We perceive no such re- quirement as to the tax here in controversy. Whatever may be the effect of Pollock
