Byron White

“ We have great difficulty in believing, and nothing in this record convinces us, that one who wishes to purchase marihuana will comply with a seller's request that he incriminate himself with federal and local authorities and pay $100 per ounce in taxes in order to secure the order form. The possibility is particularly unlikely in view of the fact that the Fifth Amendment relieves unregistered buyers of any duty to pay the transfer tax and secure the incriminating order form. ”

“ The Act also imposes a tax on transfers of marihuana, to be paid by the transferee; the rate for those who have registered and paid the occupational tax is $1 per ounce; for those who have not or who cannot register the rate is $100 per ounce. Under § 4742 (a) it is illegal to transfer marihuana except pursuant to a written order of the transferee on a form obtained by the latter at the time he pays the transfer tax. The order form when issued must carry the name and address of both buyer and seller and the amount of marihuana to be purchased. ”

“ Since for all practical purposes there is thus no legitimate dealing in heroin, any attempt to use an order form to purchase the drug would almost certainly subject the buyer to prosecution under 26 U.S.C. § 4705 (g) :↑ See U.S. Treasury Department, Bureau of Narcotics, Traffic in Opium and Other Dangerous Drugs 22, 42 (1968) .↑ Even if the hypothetical became a reality, it is doubtful that the incriminating information would get back to the Government via the buyer, who would himself be guilty of a violation of the narcotics laws. See n. 10, supra. ”

“ Except that they are sources of marihuana, sellers have no magic power over buyers; and the characteristics of marihuana do not suggest that buyers would be driven by such urgent need that to get the drug they would incriminate themselves at the seller's behest and pay the prohibitive tax imposed on the transfer. As insistent as sellers might be, it is extremely unlikely that buyers would comply. ”

“ A statute does not cease to be a valid tax measure because it deters the activity taxed, because the revenue obtained is negligible, or because the activity is otherwise illegal. See, e.g., Marchetti v. ”

“ United States, 395 U.S. 6, 21-22, 89 S.Ct. 1532, 1540 1541, 23 L.Ed.2d 57 (1969) . The regulation restricting registration to those 'lawfully entitled' to deal in narcotic drugs, 26 CFR § 151.24, finds specific support in the language of the Act. ”