The Never Ending Battle
Texas Tech University School of Law
March, 22 2009
Tax Notes, Vol. 111, No. 3, 2006
In every era and area of law one finds a never-ending battle between two groups of legal thinkers: formalists and functionalists. Each is connected to long-standing and honorable traditions in Anglo-American jurisprudence. The formalists tend towards the law side of those traditions-the search for order and certainty-and the functionalists tend towards the equity side-the search for justice and meaning. All can agree that there is a time and a place for each mode of analysis, but the devil is in the details. Thus, the never-ending battle. In a prior article I looked at a particularly interesting example of that battle: a dispute between Judges Posner and Easterbrook over what constituted a taxpayer's return in deciding whether a particular tax should be discharged by bankruptcy.
This article focuses on how the never-ending battle plays out in interpreting IRC Section 6020. For 30 years the IRS took a functionalist approach to problem debated by Posner and Easterbrook but has recently shifted into a formalist approach. I argue that the current approach, adopted in Rev. Rul. 2005-59, is an excellent illustration of misplaced formalism, both in analysis and effect. So this article will linger once again in that part of the tax administration forest where grows the tangle of doctrines over what constitutes a "return." Part I starts by putting the issue in its current statutory context. Part II puts the issue into its historical tax administration context. Part III explains the functional approach of Rev. Rul. 74-203. Part IV looks at the formalist foreshadowing of Rev. Rul. 2005-59. I will leave a more detailed analysis of Rev. Rul. 2005-89 to a future paper.
Number of Pages in PDF File: 10
Keywords: Posner, Easterbrook, tax return, tax administration, definition, functionalism, formalism, substitute for return, 6020
JEL Classification: K2, K23, K3, K34, K4, K42Accepted Paper Series
Date posted: March 24, 2009
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