Georgetown Law Professor Marty Ginsburg (pictured left with Marty McMahon) presented a talk to the Graduate Tax Students at the University of Florida Fredric G. Levin College of Law on September 21, 2006 on The Controversy Side of Tax Practice and Tax Law. He was accompanied on his trip to Gainesville, by his wife, Supreme Court Associate Justice, Ruth Bader Ginsburg, who used the trip as an opportunity to address the remainder of the student body on the operation of the Supreme Court.
Among the vintage Ginsburg anecdotes was a story Marty told about an occasion shortly after Bush v. Gore came down. He and Justice Ginsburg went to a play in New York. As they walked down the aisle to their seats, the audience burst out in sustained applause. Marty leaned over to Ruth, and in the loudest stage whisper he could muster, said “I bet you didn’t know there was a big tax conference in New York right now.”
Marty’s talk had two major themes, discussed below the fold.
First, tax planners need to get into the courtroom from time to time to see how their tax planning plays out in the real world of judges and juries, and to see how their tax planning will be described and characterized in that world. The firm’s litigators need people in the firm’s tax department with a feel for what happens in tax litigation. Second, tax planners, should keep an eye out for the chance to do good, and perhaps do well, in the seemingly insignificant little case that you may take on a pro bono or reduced fee basis.
Cases in point: in his early days in tax practice, Marty was assigned a little case involving repair costs — or were they improvement costs? — on the client’s water pipeline. The fix was so good and so long-lasting that the government said it had to be capitalized. But Marty persuaded the Tax Court that the fix simply cleaned up the operational problems and did not increase the pipeline’s strength and capacity. The influence of the insignificant little case, Plainfield-Union Water Co., can be seen writ large in recent years in the environmental remediation provisions of the Code.
Second case in point: Moritz v. Commissioner, a little case that the taxpayer handled and lost on a pro se basis before the Tax Court, where he objected to the denial of a dependent care deduction that the statute allowed to a woman, a widower, or to a divorced man, but which was not allowed to him as a single man. Joined on the brief on appeal by his wife, Ruth Bader Ginsburg, in her pre-Judge Ginsburg days, in their only appearance together on a brief, they succeeded in having the restricted deduction held unconstitutional by the Tenth Circuit, and succeeded in having the remedy be the expansion of the deduction to Moritz rather than the loss of the deduction for everyone else. In response to a question asking for his comment on the recent Murphy case, Marty expressed his regret that Moritz has to share with Murphy — at least for now — the rarity of a tax decision holding in favor of the taxpayer on constitutional grounds.