TaxProf Blog

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

Sunday, June 17, 2018

The Tax Court's Constitutional Home

Allen Madison (South Dakota) & Sharyn M. Fisk (California State Polytechnic), The Tax Court's Home, 157 Tax Notes 1249 (Nov. 27, 2017):

This article analyzes issues related to the Tax Court’s constitutional status. Although the issue has been debated for decades, recent litigation has revived the issue. In Battat v. Commissioner, [148 T.C. No. 2 (Feb. 2, 2017),] the primary issue before Tax Court was whether the President’s limited removal power over tax judges violates the Constitution’s separation of powers. In addressing this issue, the Tax Court outlined the background on the Tax Court’s status to show the Tax Court is not in the Executive branch. Further, the Battat opinion holds that even though the court exercises judicial power, the Tax Court does not exercise the “judicial power of the United States” reserved for Article III courts. Thus, the President’s limited removal power presents no separation of powers violation. The Tax Court did not reach an ultimate answer as to which branch of the government it resides, but it does provide background showing that it lies outside the Executive branch.

To determine which branch the Tax Court resides, the article first examines whether the Tax Court is an Article III court. As an Article III court, the Tax Court would be in the Judicial branch. Under the two approaches in the case law permitting non-Article III courts to exercise limited judicial power, the formalistic approach would suggest the Tax Court is not an Article III court. However, recent cases applying the second approach (i.e., the functional approach) could reach a contrary determination. Next, this article looks at whether the Tax Court may reside in the Judicial branch even if it does not exercise the “judicial power of the United States.” For reasons related to the how the Constitution set up the government, the Tax Court likely may call the Judicial branch its home.

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