dissenting.
I think the question should be answered in the affirmative. The implied immunity of one government, either national or state, from taxation by the other should not be enlarged. Immunity of the one necessarily involves curtailment of the other’s sovereign power to tax. The practical effect of enlargement is commonly to relieve individuals from a tax, at the expense of the government imposing it, without substantial benefit to the government for whose theoretical advantage the immunity is invoked. Compare Metcalf & Eddy v. Mitchell, 269 U. S. 514, 522-4; South Carolina v. United States, 199 U. S. 437, 455; Railroad Co. v. Peniston, 18 Wall. 5, 30-31; see also Missouri v. Gehner, 281 U. S. 313, 323; Macollen Co. v. Massachusetts, 279 U. S. 620, 637.
This is especially the case where, as here, the sole ground of the immunity is that, although the tax is an excise collected by one government from an individual normally subject to it, the incidence of the tax may conceivably be shifted to the other government. In such a case it is not clear how a recovery by the taxpayer would benefit directly the government supposed to be burdened; and the assumption of indirect benefit in the case of a tax of this type necessarily rests upon speculation rather than reality. See Lash’s Products Co. v. United States, 278 U. S. 175. It is significant that neither the federal nor any state government has appeared by intervention or otherwise to support this claim of immunity in cases in which the taxpayer has urged it upon us.
The court has many times held, and as recently as in Educational Films Cory. v. Ward, 282 U. S. 379, that an excise tax, imposed directly on the individual, is not invalid because indirectly it may burden either the state or the national government. See also Willcuts v. Bunn, 282 U. S. 216, 225; Denman v. Slayton, 282 U. S. 514. A bequest *581to the United States or a state may be subjected to an inheritance tax by the other, United States v. Perkins, 163 U. S. 625; Snyder v. Betiman, 190 U. S. 249; see Greiner v. Lewellyn, 258 U. S. 384, although the consequent indirect burden is apparent. Even if it could be said that there is some reason, which the Court has never attempted to state, for the distinction which was made by the decision in Panhandle Oil Co. v. Mississippi, 277 U. S. 218, between an excise on sales to a government and one on legacies, the fact of the shifting of the burden would seem to be at least less apparent in the case of a sale.
In the Panhandle Oil case, it was held that this shifting of the burden of a state tax from the seller to the buyer was sufficient to render the tax invalid where the buyer was an agency of the United States, and it was assumed that the burden of the sales tax involved was so inevitably passed on to the buyer as to require this result. With this assumption economists would not, I believe, generally agree. Many hold that whether the burden of any tax paid by the seller is actually passed on to the buyer depends upon considerations so various and complex as to preclude the assumption a priori that any particular tax at any particular time is passed on.1 In some conditions of the market, the burden remains with the seller, or even may be shifted back from the seller to the producer by the reduction of the producer's price, rather than forward to the consumer by an increase of the seller's price.2
*582Whatever factors determine whether the burden does in fact shift, I do not think it can be said that a tax paid by the seller in any given case necessarily burdens the purchaser either more or less, because in form laid on the sale, as in the Panhandle Oil case, or upon transportation of goods sold f. o. b. destination, as in Wheeler Lumber Co. v. United States, 281 U. S. 572, or on manufacture alone of articles intended for sale, see Cornell v. Coyne, 192 U. S. 418, or on both manufacture and sale.
These considerations are, to me, persuasive that the broad rule announced in the Panhandle Oil case ought not to be extended, even if we were not required by our own decisions to limit it; and that we ought not to strain the words of the statute to bring this case within the authority of that,one. It seems to, be conceded that if the tax in the present case were levied on manufacture alone, we would be bound to hold it valid, Cornell v. Coyne, supra; see Lash’s Products Co. v. United States, supra.
The rule of the Panhandle Oil case has been limited in Wheeler Lumber Co. v. United States, supra, holding that a tax on transportation, which in that case was necessary to effect delivery by the seller, was valid because not in terms a tax on the sale, as it was in the former. Even if verbal distinction, unfounded in economic realities, must be made between the two cases so that both may stand as authoritative expositions of the Constitution, consid*583erations of substance rather than of form should lead us to choose that one which would restrict the doctrine of the Panhandle Oil case to the tax imposed in unqualified terms on sales to which it was applied in that case. The present tax is not levied in such terms, exclusively on sales, but is effective only when the seller both manufactures or imports and sells. With respect to the incidence of its burden on the buyer, so far as we can know, it does not differ from a tax on the manufacture of goods, payable when sold. See Lash’s Products Co. v. United States, supra. I think that the Wheeler Lumber case, rather than the Panhandle Oil case, should control in determining its validity.
Me. Justice Brandéis concurs in this opinion.Bastable, Public Finance (3rd ed.) pp. 372-377, 387-388, 548, 577-578, 588; Brown, The Economics of Taxation, pp. 95-96,134-135, 326-328; Bye and Hewitt, Applied Economics, pp. 453-456; Ely, Outlines of Economics (5th ed.) p. 794; Hobson, Taxation in the New State, pp. 52-56; Lutz, Public Finance, pp. 317-319; Marshall, Principles of Economics, (6th ed.) pp. 413-415; Nicholson, Elements of Political Economy, pp. 456-460; Seligman, Shifting and Incidence of Taxation, (5th ed.). pp. 218-219, 253-254; Shoup, The Sales Tax in France, pp, 322-327; Proceedings, National Tax Association, 1907, p. *582432; id., 1920, pp. 175-176, 179, 212, 266; id., 1922, pp. 108-109; id., 1923, pp. 297-298; id., 1924, pp. 307, 314, 347-349, 354, 355; id., 1929, pp. 271, 406-407; Bulletin, National Tax Association, 1923-1924, p. 170; id., 1929-1930, p. 260; National Industrial Conference Board, General Sales or Turnover Taxation, pp. 52-54. Others, without discussion of those factors which affect and often obscure the fact of shifting, hold the contrary: Comstock Taxation in the Modern State, p. 121; Bulletin, National Tax Association, 1923-1924, p. 174.
Bastable, pp. 376, 548; Brown, p. 96; Lutz, p. 319; Hobson, p. 54; Marshall pp. 413-414; all supra Note 1; Bulletin, National Tax Association, 1923-1924, p. 170.