Uniformity and Jurisdiction in U.S. Federal Court Tax Decisions - The Debate On Uniformity and Deference in Tax Decisions

The Debate On Uniformity and Deference in Tax Decisions

With the unlikely prospects for a national court of tax appeals, a number of commentators have argued for going back to a ‘’Dobson’’ era approach with great deference given by the circuit courts, as well as other courts of original jurisdiction to Tax Court decisions to the extent the decisions address the law rather than factual issues. Professor Shores, for instance, argues that, short of a national court of tax appeals that would provide consistent decisions about what the tax law means, substantial improvement in the level of consistency would be provided by the appellate courts adopting the ‘’Dobson’’ approach of great deference to Tax Court decisions. While Shores takes the view that the Tax Court is more likely to correctly interpret federal tax laws than generalist courts, he appears to prize uniformity in interpretation of the tax code as the primary virtue to be sought, quoting with favor a view that “it is more important that the applicable rule of law be settled than it be settled right.”

Professor Andre Smith also argues for increased deference to Tax Court decisions, but primarily for interpretations of the tax code, where he sees the Tax Court having a comparative advantage because of its expertise in tax law, but with room for the appellate courts to disagree when constitutional or other areas of law such as the common law or the operation of state law suggest a better decision. Professor Johnson, however, doesn’t think that greater deference to Tax Court decisions will result in a second-best solution to the problem of uniformity compared to instituting a national court of tax appeals. His view is that a deferential approach to Tax Court decisions would lead to two sets of precedents at the appellate level: one deferential to the Tax Court within each circuit when deciding cases on appeal from the Tax Court, but a second set based on de novo review of district court decisions. He believes that this would lead to an increase in “intercircuit non-uniformity,” “a whole new layer of procedural uncertainty,” and “increased rewards for forum shopping, allowing taxpayers to game the system to the consistent disadvantage of the government.” He also sees this as potentially eroding the number of tax law cases brought to the Tax Court, thereby further reducing the current level of uniformity. Professor Johnson’s conclusion is that, “a rule requiring greater deference to Tax Court decisions – if superimposed upon the present highly fragmented and taxpayer-driven trial and appellate structure – would leave us worse off than no ‘reform’ at all.”