Further Thoughts on Kanter and Ballard

12 Pages Posted: 26 Nov 2004

See all articles by Steve R. Johnson

Steve R. Johnson

Florida State University - College of Law

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Abstract

In addition to its "regular" judges, the United States Tax Court has a number of Special Trial Judges ("STJ"). Both statutes and Tax Court rules define the types of cases STJs may hear and the procedures to be followed in such cases. In a set of related cases, taxpayers alleged that the report of the assigned STJ had been altered by a "regular" judge and that, contrary to Tax Court practice, the STJ's original report should have been made available to the parties. The taxpayers alleged that the failure to release the original report violated both statutes and the Due Process component of the Fifth Amendment. The controversy engaged three federal appellate courts and the Supreme Court, which resolved the cases on narrow grounds, avoiding the interesting statutory and constitutional issues. The clash in the cases involves a recurring theme in tax procedure: the tension between actual or perceived fairness to particular taxpayers or litigants on the one hand versus procedural regularity, i.e., the normal operation of general rules and procedures, on the other hand. This article asserts the importance of the latter value. It supports the process considerations that courts speak through their opinions and that it would be unwise to go behind those opinions to examine judges' thought processes and motivations. The article maintains that courts should be able to craft rules that reflect their needs and safeguard their internal deliberative processes. The article also addresses, and rejects, the statutory, constitutional, and policy arguments made by the taxpayers.

Keywords: Tax, tax procedure, tax court rules

Suggested Citation

Johnson, Steve R., Further Thoughts on Kanter and Ballard. Tax Notes, Vol. 105, No. 10, p. 1235, November 29, 2004, Available at SSRN: https://ssrn.com/abstract=626141

Steve R. Johnson (Contact Author)

Florida State University - College of Law ( email )

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