TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, January 31, 2006

Camp on Posner and Easterbrook's Disagreement on the Meaning of "Tax Return" in Payne

Camp_2 Tax_analysts_257Bryan T. Camp (Texas Tech) has published The Function of Forms, 110 Tax Notes 531 (Jan. 30, 2006), also available on the Tax Analysts web site as Doc 2006-979, 2006 TNT 20-39. Here is part of the Introduction:

Judges Posner and Easterbrook [disagreed] in the case of In re Payne, 2005 U.S. App. LEXIS 27243 (7th Cir. Dec. 14, 2005) [blogged here]. There, two of the greatest legal minds on the current federal bench quarrel over the meaning of the term "return" (as in tax return), with one preferring form to function and the other vice versa. Although that case was a bankruptcy case, their disagreement provides a wonderful window into substance and form in tax administration. So this column explores the function of the formal requirement in section 6011 that taxpayers "make a return or statement according to the forms and regulations prescribed by the Secretary." Part I maps out the borderlands of tax administration and bankruptcy. Part II reviews the facts and opinions in Payne, which presents the most common interplay of tax and bankruptcy administration. Part III explains why Judge Posner is right and Judge Easterbrook is wrong in applying the tax administration concept of "return" to bankruptcy cases like Payne. Part IV then argues that Judge Posner is wrong to adopt a facts and circumstances test. Finally, Part V looks at the likely (ill) effects of the recently enacted bankruptcy reform legislation on those types of cases. So sit back, open some uneaten holiday candy, and read on.

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