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December 18, 2015


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Leandra Lederman

The Tax Court faces multiple issues because of its unclear status in the federal government. Ad hoc "clarifying" legislation like this may ward off future Kuretski-type challenges but resolves little, as you point out. Interestingly, the Court of Federal Claims, another Art. I court that hears trial-level federal tax cases, is in the judicial branch "for administrative purposes" (quoting from memory). The Tax Court is not, perhaps because of its pre-1969 agency history. The Tax Court seemingly falls between the cracks of government; the Kuretski problem is just the latest manifestation of that.

Leandra Lederman

To be clear, by "Kuretski-type challenges," I meant issues that arise from the Tax Court's unclear status. For example, legislation saying that the Tax Court isn't an agency in the executive branch could help ward off claims under FOIA or other rules applicable to administrative agencies.

Leandra Lederman

I've now posted more detailed thoughts on the "clarifying" language over on TaxProf Blog (http://goo.gl/DC8Cvi), in case you're interested!

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