Paul L. Caron

Thursday, January 6, 2022

Grewal: Lobbying The Tax Court

Andy Grewal (Iowa; Google Scholar), Lobbying the Tax Court:

As many litigators know, federal courts often take substantial time before they rule on motions or issue their opinions. Weeks, months, or sometimes even years may pass between an argument over an issue and a court’s disposition of that issue. Parties usually have little choice but to wait.

In the U.S. Tax Court, delays may present an especially acute problem. In Tax Court trials, no jury renders an immediate verdict. The fact finders are the Tax Court judges themselves. Thus, in complex cases, the judges hold off on a decision until they can review, for example, post-trial briefs from the parties. Delays inevitably occur between the close of trial and the Tax Court’s disposition of a case.

In a recent interview, Judge Albert Lauber noted that the Tax Court has internal procedures to expedite substantially delayed cases. Judge Lauber also observed that Congress could provide a potentially helpful resource for taxpayers. The Tax Court, created by statute, depends on Congress for its funding. Thus, Judge Lauber advised, if taxpayers face something like a 6-year delay in their cases, the “best thing” would be for the taxpayers to “contact their congressmen.” Then, Congress might “contact the Chief Judge” to “express unhappiness” over the court’s delay in a matter. This approach, Judge Lauber observed, “tends to get results,” because the Tax Court would “never want Congress to be unhappy.” See Substantial Authorities: The Tax Podcast with Matt Frank, 51:10 – 52:12.

This practice apparently reflects a departure from that adopted by the Article III federal courts.

The chief judges of the federal district or federal appellate courts probably do not entertain direct communications from legislators over pending matters. Instead, they directly entertain comments from Congress only through publicly filed amicus briefs. ...

The Tax Court’s Chief Judge should consider whether to end any congressional influence over the disposition of cases. Additionally, Congress should consider how to enhance the Tax Court’s independence. Based on Judge Lauber’s remarks, the Chief Judge entertains congressional communications because of the power that the legislature wields over the Tax Court. Ceding some of that power, and enhancing the Tax Court’s independence, would likely serve the tax system.

Tax, Tax News | Permalink