TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

A Member of the Law Professor Blogs Network

Monday, December 12, 2011

Dorf & Siegel: The Tax Anti-Injunction Act Does Not Bar Constitutional Challenges to ObamaCare

Michael C. Dorf (Cornell) & Neil S. Siegel (Duke), 'Early-Bird Special' Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision, 121 Yale L.J. Online ___ (2012):

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a “tax” for purposes of the TAIA. We argue that the Supreme Court need not resolve this issue because the TAIA does not apply for a distinct reason: the present challenges to the ACA do not have “the purpose” of restraining tax assessment or collection. In order for the TAIA not to bar refund suits, the TAIA must be read to bar suits with the immediate purpose of restraining tax assessment or collection. The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded. Among other virtues, this resolution of the TAIA question does not predetermine whether the tax power justifies the minimum coverage provision.

See also their op-ed, A Health Care Law That Everyone in Congress Can Agree Upon

http://taxprof.typepad.com/taxprof_blog/2011/12/dorf-siegel-.html

Scholarship, Tax | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341c4eab53ef01675e9d425e970b

Listed below are links to weblogs that reference Dorf & Siegel: The Tax Anti-Injunction Act Does Not Bar Constitutional Challenges to ObamaCare:

Comments

These two fellas have a brillian career ahead of them--defending tax protestors.

Posted by: Publius Novus | Dec 13, 2011 7:37:52 AM