Wednesday, November 20, 2013
Michael D. Kummer (Bingham, Washington, D.C.), The De Novo Doctrine: Irrelevant to Relevancy in Civil Tax Litigation, 14 Fla. Tax Rev. 115 (2013):
Part II of this article describes the origins of the de novo doctrine in Tax Court and in Federal district courts and the Court of Federal Claims, which suggest it is unwarranted to apply the doctrine to preclude discovery or introduction of facts and information that might prove the merits of a tax case. Part III of this article examines several recent contexts in which courts have struggled to apply the de novo doctrine in a coherent, justifiable manner to discovery or evidentiary disputes. Part IV introduces other problems with applying the de novo doctrine as a doctrine of relevancy that courts have not addressed, including how to reconcile the doctrine with instances in which the Service asks courts to defer to its litigating position or when the Service assumes a litigating stance that is contrary to the position it took during audit. Part V of this article concludes that courts should return to the de novo doctrine's origins and scrap the doctrine as a standard of relevancy in the discovery or evidentiary contexts. An alternative is to establish a principled approach to the de novo doctrine as a relevancy standard that avoids the confusion recent cases have engendered. Doing so could prevent costly discovery and evidentiary battles but raises other questions courts should answer.