The opinion
Smith, dissenting:
In Helvering v. Gerhardt, 304 U. S. 405 , it was said:
The basis upon which constitutional tax immunity of a state has been supported is the protection which it affords to the continued existence of the state. To attain that end it is not ordinarily necessary to confer on the state a competitive advantage over private persons in carrying on the operations of its government. There is no such necessity here, and the resulting impairment of the federal power to tax argues against the advantage. The state and national governments must co-exist. Each must be supported by taxation of those who are citizens of both. The mere fact that the economic burden of such taxes may be passed on to a state government and thus increase to some extent, here wholly conjectural, the expense of its operation, infringes no constitutional immunity. Such burdens are but normal incidents of the organization within the same territory of two governments, each possessed of the taxing power.
It seems to me that the principle upon which the Gerhardt case was decided was that immunity from Federal income tax of the salary and wages of officers and employees of a state depends upon whetlaer the imposition of the tax puts a substantial burden upon the state. Absent evidence of such burden the tax attaches.
*1233 I think the opinion of the Supreme Court in the Gerhardt case overrules the principle of Collector v. Day, 11 Wall. 113 , and “a century of precedents,” as stated by Mr. Justice Butler in his dissenting opinion.
In the instant proceeding there is no evidence that the imposition of the Federal income tax upon the petitioner’s salary was a substantial burden upon the State of Massachusetts or the town of Lexington.