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Tuesday, October 18, 2005

Cummings on Federal Tax Research in the Internet Age

Tax_analysts_86Jasper L. Cummings, Jr. (Alston & Bird, Atlanta) has published Legal Research in Federal Taxation, 109 Tax Notes 335 (Oct. 17, 2005), also available on the Tax Analysts web site as Doc 2005-20390, 2005 TNT 200-30.  Here is the Introduction:

Just as some animals that were isolated on the Galapagos Islands developed in peculiar ways, legal research in taxation has, for most of us, developed in peculiar ways, primarily due to increased specialization and isolation of tax law from the mainstream of the law and from general legal research.

Meanwhile, tax research has been affected by the prevalence of Internet legal research. To oversimplify, lawyers tend no longer to pull down Corbin on Contracts and turn to the chapter on rescission, but instead enter "rescission/3 contract" into the search screen of some database or other. Similarly, tax lawyers have gone from pulling down the code and regulations to, for example, entering "nonqualified/2 preferred" in the search screen. That shift has both advantages and disadvantages, which I will discuss below.

The Internet shift has been so swift and pervasive that many researchers assume that if the answer cannot be found in their preferred database, it does not exist in the world. Another peril of Internet research is that many users no longer trust or even look for authoritative secondary sources to serve as a portal into other material (even though those authoritative sources can be found online). The search entry is likely to produce so many hits that the inexperienced researcher may not be able to separate the wheat from the chaff by viewing those authoritative sources. And for those with a foot in both the Internet and hard-copy worlds, their old hard-copy sources are rapidly disappearing, or becoming surprisingly expensive.

The peculiar ways of tax research and the issues raised by the change in research materials are seldom examined. The for- profit providers cannot be expected to provide disinterested comparisons, although some of them publish promotional material with surprisingly stark factual comparisons of the contents of their electronic databases. The major online nonprofit provider has not commented on the subject, and has entered into an exclusive relationship with one of the major for-profit providers, which the latter prominently promotes in advertising.

Meanwhile, tax research tends to be left to the more junior professionals, who are either influenced by the peculiar ways of their seniors, or simply follow the law student's standby of searching for the "case on point" in the database they were trained on in law school. That can work fairly well, but the case on point can never be viewed as the final authority.

To address these peculiarities, difficulties, and changes in tax research, I attempt here to review the state of the art of tax research. I have broken the subject down into three progressively more difficult types of legal issues.

  1. The Specific Legal Question
  2. Tax Consequences of a Transaction
  3. How to Accomplish a Result

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