                  United States Court of Appeals,

                         Eleventh Circuit.

                             No. 94-6400.

    JEFFERSON COUNTY, A political subdivision of the State of
Alabama, Plaintiff-Appellant,

                                  v.

           William M. ACKER, Jr., Defendant-Appellee.

    JEFFERSON COUNTY, A political subdivision of the State of
Alabama, Plaintiff-Appellant,

                                  v.

                  U.W. CLEMON, Defendant-Appellee,

             The Federal Judges Association, Amicus.

                           Aug. 21, 1995.

Appeal from the United States District Court for the Northern
District of Alabama. (Nos. CV93-M-69-S and CV93-M-196-S), Charles
A. Moye, Jr., Judge.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON,
Senior Circuit Judge.

     BIRCH, Circuit Judge:

     In this case, we decide whether a tax, imposed by a county

government for the privilege of engaging in any occupation within

that county and measured by the taxpayer's gross receipts, can be
                                        1
levied against an Article III judge.         The district court held

that, as applied to federal judges, such a tax violates the

intergovernmental tax immunity doctrine and the Compensation Clause

of Article III.   We REVERSE and REMAND.

     1
      Article III of the United States Constitution vests
judicial power in the Supreme Court "and in such inferior Courts
as the Congress may from time to time ordain and establish."
U.S. Const. art. III, § 1. Article III judges include federal
district court judges, judges for the circuit courts of appeals,
and justices of the Supreme Court.
                                I. BACKGROUND

     As     authorized     by     the      Alabama    state     legislature,

plaintiff-appellant      Jefferson      County,   Alabama,    enacted   a   tax

applicable to all workers who were not already subject to paying

license fees at either the county or the state level.              Variously

styled as an occupational, license or privilege tax, Ordinance 1120

provides:

     It shall be unlawful for any person to engage in or follow any
     vocation, occupation, calling or profession ... within
     [Jefferson] County on and after the 1st day of January, 1988,
     without paying license fees to the County for the privilege of
     engaging in or following such vocation, occupation, calling or
     profession, which license fees shall be measured by one-half
     percent (1/2%) of the gross receipts of each such person.

Jefferson County, Ala., Ordinance 1120, § 2 (Sept. 29, 1987)

[hereinafter Ordinance 1120]. 2         Where a person subject to the tax

     2
      The ordinance provides the following definitions:

                 (A) The word "person" shall mean any natural
            person. Whenever the word "person" is used in any
            clause prescribing and imposing a penalty in the nature
            of a fine or imprisonment, the wor[d] as applied to a
            partnership or other form of unincorporated enterprise
            shall mean the partners or members thereof, and as
            applied to corporations shall mean the officers and
            directors thereof.

                 (B) The words "vocation, occupation, calling and
            profession" shall mean and include the doing of any
            kind of work, the rendering of any kind of personal
            services, or the holding of any kind of position or job
            within Jefferson County, Alabama, by any clerk,
            laborer, tradesman, manager, official or other
            employee, including any non-resident of Jefferson
            County who is employed by any employer ... where the
            relationship between the individual performing the
            services and the person for whom such services are
            rendered is, as to those services, the legal
            relationship of employer and employee, including also a
            partner of a firm or an officer of a firm or
            corporation, if such partner or officer receives a
            salary for his personal services rendered in the
            business of such firm or corporation, but they shall
works both inside and outside Jefferson County, the ordinance

requires the person to compute his or her tax based on the

percentage of work performed within the county.      Id. § 3.    The

ordinance directs employers to withhold the license fees, to file

returns on behalf of their employees, and to maintain records

thereof for five years.   Id. § 4.   Where an employer has failed to

comply with the occupational tax provisions, employees remain

responsible for paying the tax and for filing their own returns.

Id.   Failure to withhold or to pay the occupational tax may result
in the assessment of interest and penalties, plus "punishment

within the limits of and as provided by law for each offense."   Id.




           not mean or include domestic servants employed in
           private homes and shall not include businesses,
           professions or occupations for which license fees are
           required to be paid under any General License Code of
           the County or to the State of Alabama or the County....

                (C) The words "vocation, occupation, calling and
           profession" shall also mean and include the holding of
           any kind of office or position either by election or
           appointment, by any federal, state, county or city
           officer or employee where the services of such official
           or employee are rendered within Jefferson County,
           Alabama.

           ....

                (F) The words "gross receipts" and "compensation"
           shall have the same meaning, and both words shall mean
           and include the total gross amount of all salaries,
           wages, commissions, bonuses or other money payment of
           any kind, or any other considerations having monetary
           value, which a person receives from or is entitled to
           receive from or be given credit for by his employer for
           any work done or personal services rendered in any
           vocation, occupation, calling or profession....

      Ordinance 1120, § 1.
§ 10.3

     Defendants-appellees, the Honorable William M. Acker, Jr. and

the Honorable U.W. Clemon, are federal district judges in the

Northern District of Alabama, which encompasses Jefferson County.

Both Judge Acker and Judge Clemon have their principal offices in

Jefferson County.       With the exception of Judge Acker and Judge

Clemon, all active judges in the Northern District of Alabama have

paid their occupational taxes based on differing percentages of

their salaries4;       additionally, all state district and circuit

court judges in the Tenth Judicial Circuit of Alabama and the three

Alabama Supreme Court Justices with satellite offices in Jefferson

County have paid their occupational taxes based on portions of

their salaries. During their tenures as federal judges, both Judge

Acker    and   Judge   Clemon   have   paid   their   state   income   taxes.

Notwithstanding the frequently articulated boast that they reside

in "God's country", the judges have steadfastly refused to "tithe".

     When Judge Acker and Judge Clemon each failed to pay their

occupational taxes pursuant to Ordinance 1120, Jefferson County

brought suit in state court to recover the delinquent taxes; Judge

Acker and Judge Clemon removed the case to federal court.                 On


     3
      Ordinance 1120 prescribes no punishment other than interest
and penalty payments, but the ordinance grants the county's
Director of Revenue authority to adopt and to enforce binding
regulations pertaining to the enforcement of the license tax.
Id. § 8.
     4
      At least one Article III judge, who is not a party to this
suit, has paid the occupational tax under protest. The late
Honorable Robert S. Vance, United States Circuit Judge, who had
his principal office in Jefferson County, did not pay the
occupational tax from its effective date in January, 1988, until
his death in December, 1989.
cross-motions for summary judgment,5 the district court held that

the   license       tax    was   "imposed    directly    upon   a   governmental

function—the performance in the federal courthouse in Birmingham,

Alabama of federal judicial functions.                 Those functions are the

actual event taxed (the legal incidence of the tax)."                  Jefferson

County    v.    Acker,       850   F.Supp.     1536,     1543   (N.D.Ala.1994).

Accordingly, the court ruled that the occupational tax, as applied

to Article III judges, was a direct tax on the federal judiciary in

violation      of    the     intergovernmental     tax     immunity    doctrine.

Moreover, because the occupational tax "becomes effective even

before the income is earned, and before it is paid, and before it

is received," id. at 1546 n. 14, the court also held that the

occupational tax diminished rather than taxed the judges' salaries,

in violation of the Compensation Clause of Article III.6               The court


      5
      The parties agreed that there were no material facts to be
decided by trial; consequently they stipulated to the facts of
the case and submitted the following issues of law for decision
on summary judgment:

            (1) Does ... Ordinance 1120 discriminate against
            defendants by reason of the federal source of their pay
            or compensation contrary to 4 U.S.C. §§ 105-111?

            (2) If not, does ... Ordinance 1120 contravene the
            Constitution of the United States as applied to the
            defendant Article III judges?

      Jefferson County v. Acker, 850 F.Supp. 1536, 1537
      (N.D.Ala.1994). Because the district court held for the
      county on issue one, the county did not appeal that portion
      of the decision, and we do not address it.
      6
      Article III, Section 1 of the United States Constitution
provides in pertinent part that "[t]he Judges, both of the
supreme and inferior Courts, shall hold their Offices during good
Behavior, and shall, at stated Times, receive for their Services,
a Compensation, which shall not be diminished during their
Continuance in Office." U.S. Const. art. III, § 1.
granted summary judgment on behalf of Judge Acker and Judge Clemon.

The county appealed.

                                 II. DISCUSSION

         The parties have not cited, and we have not found, any

Supreme Court or Court of Appeals precedents addressing whether an

occupational tax levied against Article III judges violates either

the intergovernmental tax immunity doctrine or the Compensation

Clause.7         Consequently,   we   apply   the   Supreme    Court's   general

jurisprudence regarding the intergovernmental tax immunity doctrine

and the Compensation Clause to the tax in question.               We review de

novo the district court's grant of summary judgment.                 Jaques v.

Kendrick, 43 F.3d 628, 630 (11th Cir.1995).

A. Intergovernmental Tax Immunity Doctrine

         Rooted in the Supremacy Clause,8 the intergovernmental tax

immunity doctrine is a core tenet of federalism that prevents

either     the    federal   government   or   the   state     governments   from

directly taxing the activities of the other.            See generally United


     7
      In James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct.
208, 82 L.Ed. 155 (1937), the Court did find that a license tax
levied against a government contractor did not violate the
intergovernmental tax immunity doctrine. Id. at 138, 161, 58
S.Ct. 211, 221. In that opinion, however, the Court explicitly
noted that the tax had been levied upon an independent
contractor, rather than an officer of the federal government.
Id. at 149, 58 S.Ct. at 216. Thus, while James rejected "[t]he
theory, which once won a qualified approval, that a tax on income
is legally or economically a tax on its source," Graves v. New
York ex rel. O'Keefe, 306 U.S. 466, 480, 59 S.Ct. 595, 598, 83
L.Ed. 927 (1939), the Court did not confront the specific
question of whether an occupation tax levied on a federal officer
is a direct tax on the United States government.
     8
      "This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof ... shall be the supreme Law
of the Land...." U.S. Const. art. VI, cl. 2.
States v. New Mexico, 455 U.S. 720, 730-33, 102 S.Ct. 1373, 1380-

82, 71 L.Ed.2d 580 (1982) (describing the history of this " "much

litigated and often confused field' " (quoting        United States v.

City of Detroit, 355 U.S. 466, 473, 78 S.Ct. 474, 478, 2 L.Ed.2d

424 (1958))). At the pinnacle of its application, the doctrine was

interpreted to exempt federal employees from any state taxation.

After its decision in James v. Dravo Contracting Co., 302 U.S. 134,

58 S.Ct. 208, 82 L.Ed. 155 (1937), however, the Supreme Court has

upheld state taxation of federal employees except in instances of

discriminatory taxes directed against federal employees or direct

taxation of the federal government by the states:

     "[U]nder current intergovernmental tax immunity doctrine the
     States can never tax the United States directly but can tax
     any private parties with whom it does business, even though
     the financial burden falls on the United States, as long as
     the tax does not discriminate against the United States or
     those with whom it deals."        Absolute tax immunity is
     appropriate only when the tax is on the United States itself
     "or on an agency or instrumentality so closely connected to
     the Government that the two cannot realistically be viewed as
     separate entities, at least insofar as the activity being
     taxed is concerned."

California State Bd. of Equalization v. Sierra Summit, Inc.,         490

U.S. 844, 848-49, 109 S.Ct. 2228, 2232, 104 L.Ed.2d 910 (1989)

(alteration   in   original)   (citation   omitted)   (emphasis   added)

(quoting South Carolina v. Baker, 485 U.S. 505, 523, 108 S.Ct.

1355, 1366, 99 L.Ed.2d 592 (1988) and New Mexico, 455 U.S. at 735,

102 S.Ct. at 1383);   see also United States v. California, --- U.S.

----, ----, 113 S.Ct. 1784, 1788-89, 123 L.Ed.2d 528 (1993); Davis

v. Michigan Dept. of Treasury, 489 U.S. 803, 811, 109 S.Ct. 1500,

1505, 103 L.Ed.2d 891 (1989).      Thus, under the intergovernmental

tax immunity doctrine, we must strike down Ordinance 1120 if it
discriminates against federal employees9 or if it taxes the federal

government directly.

1. Discrimination Against Federal Employees

         A state tax does not discriminate unconstitutionally against

federal employees if the tax is imposed equally upon similarly

situated constituents of the state, see United States v. County of

Fresno, 429 U.S. 452, 462, 97 S.Ct. 699, 704-05, 50 L.Ed.2d 683

(1977), particularly those constituents who are in privity with the

state imposing the tax, see Davis, 489 U.S. at 815 n. 4, 109 S.Ct.

at 1507 n. 4.     The Jefferson County tax expressly includes within

its scope elected and appointed officials at the municipal, county,

and state levels.     See Ordinance 1120, § 1(C).10   Jefferson County

has applied the occupational tax to state district and circuit

court judges and to Alabama Supreme Court Justices serving in the

county, and all of these state judges and justices have complied

with the ordinance.

     Significantly, the occupational tax does not discriminate

against judges vis-a-vis other professions.     The ordinance imposes

a general tax, exempting only those workers who already are subject

to state or county license fees.     Cf. Fresno, 429 U.S. at 464-65,

97 S.Ct. at 705-06 (holding that a state tax imposed solely on

lessees of land owned by tax-exempt entities is not discriminatory


     9
      Because it found that Ordinance 1120 directly taxed the
United States government, the district court did not decide
whether the Jefferson County occupational tax discriminated
against federal employees. Acker, 850 F.Supp. at 1548. We
address the issue for the first time on appeal.
     10
      See also Ordinance 1120, § 1(H) ("The word "county' shall
mean Jefferson County, Alabama.").
because the law leaves such lessees "no worse off" than tenants who

rent from landowners who are taxed). Although employees subject to

the Jefferson County tax in some instances may be taxed more than

professionals subject to state professional fees, this slight

difference   in   economic   burden    does   not   compel     a   finding   of

discrimination.      There   is   no   evidence     in   the   ordinance     of

"crippling obstruction of any of the Government's functions, no

sinister effort to hamstring its power, not even the slightest

interference with its property."       City of Detroit v. Murray Corp.

of Am., 355 U.S. 489, 495, 78 S.Ct. 458, 462, 2 L.Ed.2d 441 (1958).

Thus, the occupational tax does not discriminate unconstitutionally

against federal employees.

2. Direct Tax on Federal Government

      The Supreme Court has adopted a number of tests to determine

whether a state tax falls upon the federal government directly,

rather than upon a private individual dealing with the federal

government. An individual's employment with the federal government

is insufficient to transform that person into a part of the federal

government for the purpose of the intergovernmental tax immunity

doctrine.    Instead, to qualify for tax immunity, the taxed entity

must "actually "stand in the Government's shoes,' " United States

v. New Mexico, 455 U.S. at 736, 102 S.Ct. at 1383 (quoting City of

Detroit v. Murray Corp., 355 U.S. at 503, 78 S.Ct. at 491)

(separate opinion of Frankfurter, J., concurring in part and

dissenting in part), or be " "so intimately connected with the

exercise of a power or the performance of a duty' by the Government

that taxation of it would be " "a direct interference with the
functions of government itself," ' "       id. (quoting James v. Dravo

Contracting Co., 302 U.S. at 157, 58 S.Ct. at 219) (quoting Metcalf

& Eddy v. Mitchell, 269 U.S. 514, 524, 46 S.Ct. 172, 174-75, 70

L.Ed. 384 (1926)).11
     In this case, the federal judges must pay the occupational tax

out of their own resources.      If the tax had been imposed upon the

Eleventh Circuit or the Northern District of Alabama, then the

ordinance would tax directly the federal government.        Article III

judges, however, are federal officers rather than " "an arm of the

Government,' " id. at 736-37, 102 S.Ct. at 1384 (alteration in

original) (quoting Department of Employment v. United States, 385

U.S. 355, 359-60, 87 S.Ct. 464, 467, 17 L.Ed.2d 414 (1966)).         The

legal incidence of the occupational tax thus falls upon federal

employees, not upon the federal government directly. Consequently,

because   Ordinance    1120   neither   discriminates   against   federal

employees nor taxes the United States directly, the county may

apply the tax to Article III judges without violating the Supremacy

     11
      Other formulations of this test state that, to tax the
federal government directly, the tax must be levied against an
entity " " "so assimilated by the Government as to become one of
its constituent parts," ' " New Mexico, 455 U.S. at 736, 102
S.Ct. at 1384 (quoting United States v. Boyd, 378 U.S. 39, 47, 84
S.Ct. 1518, 1523, 12 L.Ed.2d 713 (1964) (quoting United States v.
Township of Muskegon, 355 U.S. 484, 486, 78 S.Ct. 483, 485, 2
L.Ed.2d 436 (1958))), " " "so incorporated into the government
structure as to become instrumentalities of the United States," '
" id. (quoting Boyd, 378 U.S. at 48, 84 S.Ct. at 1524), "
"virtually ... an arm of the Government,' " id. at 736-37, 102
S.Ct. at 1384 (alteration in original) (quoting Department of
Employment v. United States, 385 U.S. 355, 359-60, 87 S.Ct. 464,
467, 17 L.Ed.2d 414 (1966)), or " "integral parts of [a
governmental department],' and "arms of the Government deemed by
it essential for the performance of governmental functions,' "
id. at 737, 102 S.Ct. at 1384 (alteration in original) (quoting
Standard Oil Co. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168,
1170, 86 L.Ed. 1611 (1942)).
Clause.

     While the district court acknowledged that the economic burden

of Ordinance 1120 was on the individual judges, it nevertheless

concluded that the legal incidence of the tax was on the United

States.   The district court reasoned that a true income tax is laid

upon the privilege of receiving income, which is the property of

the taxpayer once it is received as compensation for his services.

In contrast, a license or privilege tax is laid upon the privilege

of practicing or engaging in one's trade, occupation or profession.

Whereas an income tax levied on federal employees burdens the

property of those employees, a license tax levied on federal

employees burdens the functions of the federal government itself.

     The district court concluded that

     [t]he tax imposed by Ordinance 1120 is not an income tax as
     such is generally understood, nor is it any income tax under
     Alabama law. That is so because it is not, in fact, a tax
     upon the receipt of income, pay, or compensation ... but
     rather, is a license or privilege tax which finds its taxable
     event, or incidence, in the performance of a federal judicial
     function. Its incidence, thus, is upon the performance of
     judicial functions by a judicial officer, antecedent to the
     point that the salary therefor having been paid by the
     government becomes the property of the individual citizen of
     Alabama ... subject to the protection and benefits he receives
     as a citizen of Alabama.

Acker, 850 F.Supp. at 1547-48 (citations omitted).             The court

acknowledged that the occupational tax was measured by the judges'

gross receipts;     nevertheless, it held, "the actual event taxed

(the legal incidence of the tax)" is the privilege of acting as a

federal district judge.       Id. at 1543.   Hence, the tax constituted

a   direct   tax   on   the   United   States,   thereby   violating   the

intergovernmental tax immunity doctrine.

     Support for the view that Ordinance 1120 imposes a license tax
rather than an income tax can be found in the plain language of the

ordinance.      The ordinance is entitled the "Occupational Tax of

Jefferson County Alabama," and its stated purpose is to establish

a "license or privilege tax on persons engaged in any vocation,

occupation, calling or profession in Jefferson County who is not

required by law to pay any license or privilege tax to either the

State of Alabama or the County as set out herein."        Ordinance 1120.

The ordinance requires the payment of "license fees" and makes it

"unlawful for any person to engage in or follow any vocation,

occupation, calling or profession ... without paying license fees."

Ordinance 1120, § 2 (emphasis added).

     Additionally, judicial interpretation of Ordinance 1120 and

similar occupational taxes by the Alabama Supreme Court supports

the claim that the Jefferson County tax is a license tax.               The

Supreme Court of Alabama has held that Ordinance 1120 was enacted

pursuant   to   a   state   law   "authorizing   [counties]   to   impose   a

privilege or license tax."         Bedingfield v. Jefferson County, 527

So.2d 1270, 1274 (Ala.1988).        The court has also held that a city

ordinance similar to the one at bar imposed a license tax rather

than an income tax.     McPheeter v. City of Auburn, 288 Ala. 286, 259

So.2d 833, 837 (1972).       In     McPheeter, the City of Auburn had

imposed a tax upon the privilege of engaging in a trade, occupation

or profession in the city and upon the privilege of using the

city's facilities while so engaged;        the tax was measured based on

a percentage of each taxpayer's gross salary or wages.              Id. 259

So.2d at 834-35.     The court reasoned that

     [t]he tax is occasioned when the taxpayer performs services
     within the Auburn city limits, and not when the taxpayer
     receives income. Therefore, the ordinance taxes the privilege
     of working and the engagement of rendering services within the
     City of Auburn, and it only measures the tax due by the amount
     of the taxpayers' gross receipts which result from such
     privilege.... It is evident that the tax is not even measured
     by a person's income, but only by his salary or wages earned.
     So in no sense can the Auburn tax be considered an income tax.

Id. 259 So.2d at 837 (citation omitted) (emphasis added).12
      Nevertheless, in deciding whether Ordinance 1120 taxes the

judges' income or the federal judicial function itself, we are not

constrained   by   the   formal   phrasing   of   the   Jefferson   County

Commission or the labels assigned by state courts.

     [I]n passing on the constitutionality of a state tax "we are
     concerned only with its practical operation, not its
     definition or the precise form of descriptive words which may
     be applied to it." Lawrence v. State Tax Comm'n, 286 U.S.
     276, 280, 52 S.Ct. 556, 557, 76 L.Ed. 1102. Consequently in
     determining whether these taxes violate the Government's
     constitutional immunity we must look through form and behind
     labels to substance.

City of Detroit v. Murray Corp. of Am., 355 U.S. at 492, 78 S.Ct.

at 460 (emphasis added);     cf. Railway Express Agency v. Virginia,

347 U.S. 359, 363, 74 S.Ct. 558, 561, 98 L.Ed. 757 (1954) (stating

in the context of the Commerce Clause that " "neither the state


     12
      However, the effect of McPheeter is not altogether clear.
Even as it ruled that the Auburn ordinance imposed a license tax
rather than an income tax, the McPheeter court also held that the
"license tax" did not violate the intergovernmental tax immunity
doctrine as applied to either state or federal employees.
McPheeter, 259 So.2d at 836. Auburn University employees had
argued that they "perform[ed] essential functions for the
operation of [the state] government," id. 259 So.2d at 835;
accordingly, as applied to them, the Auburn license tax was a
direct burden upon the Alabama state government. The Alabama
Supreme Court rejected this argument and reasoned that the
license tax created no condition precedent to state employment.
Id. 259 So.2d at 835-36 (" "Payment of the tax is not a
prerequisite to being appointed or elected, nor does continuation
to the state position depend on payment of the tax.' " (quoting
Hamilton v. City and County of Denver, 176 Colo. 6, 490 P.2d
1289, 1293 (1971))).
courts nor the legislatures, by giving the tax a particular name or

by the use of some form of words, can take away our duty to

consider its nature and effect,' in which inquiry "we are concerned

only with its practical operation' " (citations omitted)).

     The critical question, therefore, is whether the practical

effect of Ordinance 1120 is to tax the income that federal judges

derive from the performance of their judicial functions or to

impose a license tax as a precondition to the performance of those

functions.13   Viewed   in   this   light,   the   practical   effect   of

     13
      Although the Supreme Court has not defined a license tax
in the context of the intergovernmental tax immunity doctrine, it
has done so in the context of the First Amendment. In Murdock v.
Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943),
the Court considered a city ordinance which required solicitors
to pay a flat rate license tax before they could operate in the
city. The Court struck down the ordinance as facially
unconstitutional, noting that "[a] state may not impose a charge
for the enjoyment of a right granted by the federal
constitution." Id. at 113, 63 S.Ct. at 875. In doing so, the
Court described at length "the nature of this tax":

          It is a license tax—a flat tax imposed on the exercise
          of a privilege granted by the Bill of Rights.... [T]he
          license tax is fixed in amount and unrelated to the
          scope of the activities of petitioners or to their
          realized revenues. It is not a nominal fee imposed as
          a regulatory measure to defray the expenses of policing
          the activities in question. It is in no way
          apportioned. It is a flat license tax levied and
          collected as a condition to the pursuit of activities
          whose enjoyment is guaranteed by the First Amendment.
          Accordingly, it restrains in advance those
          constitutional liberties of press and religion and
          inevitably tends to suppress their exercise. That is
          almost uniformly recognized as the inherent vice and
          evil of this flat license tax.

     Id. at 113-14, 63 S.Ct. at 875 (citations and footnote
     omitted) (emphasis added). The Court was careful to
     distinguish a license tax from a tax on the income of one
     who engages in religious activities. "It is one thing to
     impose a tax on the income or property of a preacher. It is
     quite another thing to exact a tax from him for the
     privilege of delivering a sermon." Id. at 112, 63 S.Ct. at
Ordinance 1120 is that of an income tax, rather than a license tax.

The ordinance does not impose a flat fee on those performing

federal functions, nor does it create a condition precedent to the

performance of those functions.14   By the terms of the ordinance,

the required license fees "shall be measured by one-half percent

(1/2%) of the gross receipts" of each person subject to the tax.

Ordinance 1120, § 2.   Thus, it is only if a federal employee is

compensated that he or she becomes liable to Jefferson County for

the occupational tax. A federal employee in Jefferson County could

refuse to pay any license fees and still lawfully perform his or

her federal duties under the ordinance so long as that employee

received no income from performing those duties. Consequently, the

occupational tax is not a precondition to the performance of any

federal government functions but a consequence of receiving any

compensation therefor.15


     874; see also Jimmy Swaggart Ministries v. Board of
     Equalization, 493 U.S. 378, 386-87, 110 S.Ct. 688, 694, 107
     L.Ed.2d 796 (1990) (distinguishing between sales and use
     taxes and flat license taxes).
     14
      Significantly, Jefferson County probably could not obtain
an injunction, pursuant to Ordinance 1120, to prevent a federal
judge from "unlawfully" performing his or her judicial functions
without paying the required license fee. Before granting such
equitable relief, a court would have to find that Jefferson
County would suffer irreparable harm in the absence of an
injunction and that the county has no adequate remedy at law.
United Steelworkers of Am. v. USX Corp., 966 F.2d 1394, 1404
(11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1386, 122
L.Ed.2d 762 (1993). It is doubtful that Jefferson County could
make either showing in a tax collection case: the loss of
revenues from a single taxpayer is not likely to cause the county
irreparable harm; further, garnishing the taxpayer's wages would
afford the county an adequate remedy at law.
     15
      This result is not altered by the fact that Article III
guarantees that the salaries of federal judges shall not be
diminished during their tenure. See supra note 5. To contend
     As suggested by the Alabama Supreme Court in McPheeter, it may

be argued that Ordinance 1120 directly taxes the performance of

government functions and is only measured by the income which

results from the exercise of that privilege.            The Supreme Court,

however, repeatedly has distinguished between the taxation of a

constitutional right and the taxation of receipts flowing from the

exercise of a constitutional right;          it has held that the latter is

permissible.    See, e.g., Jimmy Swaggart Ministries v. Board of

Equalization, 493 U.S. 378, 390-92, 110 S.Ct. 688, 696-97, 107

L.Ed.2d 796 (1990) (holding that a state sales tax based on a

taxpayer's realized revenues constitutionally may be imposed on

religious activity);       Arkansas Writers' Project, Inc. v. Ragland,

481 U.S. 221, 229, 107 S.Ct. 1722, 1727, 95 L.Ed.2d 209 (1987)

(noting that "a genuinely nondiscriminatory tax on the receipts of

newspapers   would    be   constitutionally       permissible").     Because

Ordinance    1120    imposes    not   even    a   nominal   burden   on   the

uncompensated practice of any vocation, occupation, calling or

profession, no matter how extensive, we conclude that the tax is

not merely measured by but actually laid upon the taxpayer's

receipts.    Accordingly, the practical effect of the ordinance is

that of an income tax;         the ordinance does not directly tax the

operations of the federal government.

B. Compensation Clause


that the performance of federal judicial functions is inseparable
from compensation under Article III (and thus taxation of the
latter implies taxation of the former) is to argue that the
intergovernmental tax immunity doctrine also prevents state,
perhaps even federal, income taxation of the federal judiciary.
This argument is unavailing. See O'Malley v. Woodrough, 307 U.S.
277, 282, 59 S.Ct. 838, 840, 83 L.Ed. 1289 (1939).
      The Compensation Clause provides that the compensation of

Article III judges shall not be diminished during their tenure in

office.     U.S. Const. art. III, § 1;        for text of Compensation

Clause, see supra note 6.      In order to prevail on a Compensation

Clause claim, the judges must show a "direct, discriminatory

assault on judicial independence, [a] "plan fashioned by the

political branches ... ineluctably operating to punish the judges

qua judges....' "      Duplantier v. United States, 606 F.2d 654, 669

(5th Cir.1979) (quoting Atkins v. United States,           556 F.2d 1028,

1054, 214 Ct.Cl. 186, cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54

L.Ed.2d 751 (1978)) (second and third alterations in original),

cert. denied, 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981).

"   "Indirect,     nondiscriminatory       diminishments      of    judicial

compensation, those which do not amount to an assault upon the

independence of the third branch or any of its members, fall

outside the protection of the Compensation Clause....' "                 Id.

(quoting Atkins, 556 F.2d at 1045).

     The    district   court   concluded    that   the   Jefferson   County

occupational     tax   constitutes   a   diminishment    of   the    judges'

salaries.      The court relied upon its earlier conclusion that

Ordinance 1120 "is not, in fact, a tax upon the receipt of income,

pay, or compensation, (the taxable event held in O'Malley to be

constitutionally permissible), but rather is a license or privilege

tax which finds its taxable event, or incidence, in the performance

of a federal judicial function."           Acker, 850 F.Supp. at 1547.

Because the incidence of the tax is thus "antecedent to the point

that the salary therefor having been paid by the government becomes
the property of the [judges]," the court reasoned, the ordinance

diminished rather than taxed the judges' salaries.

      As discussed supra, however, the practical effect of Ordinance

1120 is that of an income tax.            It is well established that the

Compensation Clause does not forbid the federal government from

levying an income tax on federal judges.                 O'Malley v. Woodrough,

307 U.S. 277, 282, 59 S.Ct. 838, 840, 83 L.Ed. 1289 (1939).

Moreover, Judge Acker and Judge Clemon have failed to show that the

judges are being taxed purely for their judicial function.                 By its

terms, Ordinance 1120 taxes persons "holding ... any kind of office

or position either by election or appointment, by any federal,

state, county or city officer or employee," Ordinance 1120, § 1(C)

(emphasis added);      this provision applies equally to the executive

and   legislative   branches     as     well   as   to   the   judicial   branch.

Consequently, the Jefferson County occupational tax " "do[es] not

amount to an assault upon the independence of the third branch or

any of its members,' " Duplantier, 606 F.2d at 669 (quoting Atkins,

556 F.2d at 1045), and as such its application to Article III

judges is not barred by the Compensation Clause.

                                III. CONCLUSION

      The   district    court    held    that   the      intergovernmental    tax

immunity doctrine and the Compensation Clause exempt federal judges

from Jefferson County's occupational tax.16               The occupational tax

      16
      We reject without discussion the judges' alternative
argument that federal judges, as practicing attorneys, are
subject to state bar fees and thus are exempt from Ordinance
1120. See Ala.Code § 40-12-49 ("Each attorney engaged in the
practice of law shall pay an annual license tax to the state, but
none to the county." (emphasis added)); Ala.Code § 34-3-11
(prohibiting the practice of law by judges). The Committee on
neither discriminates against federal judges, nor does it impede

the operation of the federal judiciary. Additionally, the tax does

not punish judges qua judges. Therefore, the Jefferson County tax,

as applied to Article III judges, is valid.                   We REVERSE the

district court's opinion and REMAND for a determination of the

taxes owed.

      TJOFLAT, Chief Judge, dissenting:

      I respectfully dissent.

      The main issue to be decided in this case "is whether the

Jefferson    County    tax   is    "imposed     directly    on'    the   federal

government."    Jefferson County v. Acker, 850 F.Supp. 1536, 1541

(N.D.Ala.1994).       I agree with the district court's reasoning and

its conclusion that "the Jefferson County occupational tax is

imposed directly upon a governmental function—the performance in

the federal courthouse in Birmingham, Alabama of federal judicial

functions.    Those functions are the actual event taxed (the legal

incidence of the tax)."          Id. at 1543.

      This is not a question of the taxation of an independent

contractor or agency official (parties in other cases challenging

taxes).   See, e.g., James v. Dravo Contracting Co., 302 U.S. 134,

58 S.Ct. 208, 82 L.Ed. 155 (1937).        The federal judiciary is surely

"so   assimilated     by   the    Government    as   to   become   one   of   its

constituent parts."        Ante at 3160 n. 11 (quoting cases).           "Here,

the tax is on the privilege of performing the federal judicial


Codes of Conduct of the Judicial Conference of the United States
encourages, but does not require, federal judges to participate
in local bar associations. See Advisory Opinion No. 85,
Committee on Codes of Conduct (June 14, 1991).
function itself—one of the three grand (Legislative;        Executive;

Judicial) federal functions." Acker, 850 F.Supp. at 1542. Article

III judges are not independent contractors.     The judiciary is not

merely a building or an administrative organizational body—it is

"an arm of the Government."      Ante at 3160 (quoting cases).       The

individual judges who administer justice are the judicial branch of

government.   Taxation (based on income or an alternative measure)

of the performance of federal judges is, therefore, taxation of the

federal government.

     Additionally, I would find for the judges on the Compensation

Clause claim because the Jefferson County occupational tax is a

"direct, discriminatory assault on judicial independence." Ante at

3163 (quoting cases).     The court's opinion does not address the

onerous   recordkeeping   and   reporting   requirements   imposed   by

Ordinance 1120.   The ordinance requires every judge to divide his

or her performance1 within Jefferson County from those functions

performed outside the county and to allocate compensation earned

only within Jefferson County for tax assessment.            Thirty-one

counties comprise the Northern District of Alabama.        28 U.S.C. §

81(a).2   Although Judge Acker and Judge Clemon maintain chambers in

     1
      One wonders how a judge is even to define "performance" for
purposes of compliance with the ordinance. Does thinking about a
case that is not being prosecuted in Jefferson County while
driving home in Jefferson County constitute performance? Does
carrying court documents across Jefferson County to get to
another county in which court is being held constitute
"performance within Jefferson County"? Does work on a case
brought in another county but which has an impact on Jefferson
County fall within the meaning of the ordinance?
     2
      The Northern District of Alabama encompasses Jefferson
County along with the counties of Colbert, Franklin, Lauderdale,
Cullman, Jackson, Lawrence, Limestone, Madison, Morgan, Blount,
Jefferson County, they routinely perform judicial functions in

other    counties3   and   their   decisions   affect   citizens   of   other

counties.    Ordinance 1120 creates an administrative nightmare that

"impede[s] the operation of the federal judiciary."          Ante at 3164.

        Because this tax is a direct assault on the administration of

justice, I dissent.




Shelby, Calhoun, Clay, Cleburne, Talladega, Bibb, Greene,
Pickens, Sumter, Tuscaloosa, Cherokee, De Kalb, Etowah, Marshall,
Saint Clair, Fayette, Lamar, Marion, Walker, and Winston.
     3
      Congress has mandated that, in addition to Birmingham,
court be held at Florence, Huntsville, Decatur, Anniston,
Tuscaloosa, Gadsden, and Jasper. 28 U.S.C. § 81(a).
