Paul L. Caron

Wednesday, November 15, 2023

Graetz: To Avoid The Moore Morass, The Court Should DIG It (Dismiss As Improvidently Granted)

Michael J. Graetz (Columbia), To Avoid the Moore Morass, the Court Should DIG It — But It Probably Won’t, 181 Tax Notes Fed. 1253 (Nov. 13, 2023):

Tax-notes-federalIn this article, Graetz examines several of the briefs filed in Moore and argues that regardless of who wins the case, there will be no good outcomes if the Supreme Court holds that realization is a constitutional requirement. This article is based on a presentation on Moore to the International Tax Policy Forum in Washington on October 20. It has been updated to reflect amicus briefs in support of the government that were filed by October 23.

The justices and their clerks have a large stack of briefs to read, understand, and evaluate between now and December 5th, when the oral argument is scheduled in Moore. Based on grading exams at the Yale and Columbia law schools for many years — I was always disappointed how poorly I had taught the course because of what the exams revealed about the depth of the students’ knowledge. My successors may be doing better than I did in that regard, but I would be surprised if there are many tax experts among the justices and clerks of the Supreme Court now. I hope this does not cause major problems for the income tax.

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