IS IT A TAX OR NOT?

The penalty in the PPACA for not purchasing health insurance has been described as a tax by some conservatives but the Administration has claimed it isn't a tax.  During the SC hearing today, there was an interesting exchange between Justice Alito and Solicitor General:

13 JUSTICE ALITO: General Verrilli, today you
14 are arguing that the penalty is not a tax. Tomorrow you
15 are going to be back and you will be arguing that the
16 penalty is a tax.
17 Has the Court ever held that something that
18 is a tax for purposes of the taxing power under the
19 Constitution is not a tax under the Anti-Injunction Act?
20 GENERAL VERRILLI: No, Justice Alito, but
21 the Court has held in a license tax cases that something
22 can be a constitutional exercise of the taxing power
23 whether or not it is called a tax. And that's because
24 the nature of the inquiry that we will conduct tomorrow
25 is different from the nature of the inquiry that we will

1 conduct today. Tomorrow the question is whether
2 Congress has the authority under the taxing power to
3 enact it and the form of words doesn't have a
4 dispositive effect on that analysis. Today we are
5 construing statutory text where the precise choice of
6 words does have a dispositive effect on the analysis.

This reply seems to finesse the issue and Lyle Denniston seems to agree:

Verrilli had to take a bit of a tease that he was arguing on Monday that the mandate was not a tax but would be arguing on Tuesday that it was (a seeming anomaly for which the Solicitor General did have an explanation), but his basic plea to move on to decide what he called “issues of great moment” got a largely sympathetic hearing.