Preventive Tax Policy: Chief Justice Roger J. Traynor's Tax Philosophy

46 Pages Posted: 3 Sep 2007 Last revised: 9 Feb 2016

See all articles by Mirit Eyal-Cohen

Mirit Eyal-Cohen

University of Alabama - School of Law

Date Written: 2008


Justice Roger J. Traynor is best known for his judicial innovations in the fields of conflict of laws, product liability, and civil procedure. However, few would trace Traynor's roots to the field of tax law. In the late 1930's Traynor collaborated with Stanley S. Surrey, our nation's foremost authorities on federal tax law, and together they called for a substantial transformation of existing mechanisms for settling tax disputes. At that crucial time in history, high marginal tax rates intensified the friction between taxpayers and the government, boosted litigation and multiplied the number of tax controversies. Traynor and Surrey developed the idea of "preventive tax policy" aimed at preventing controversies from arising, and where they cannot be prevented, reducing the area in which they occur. This paper explores the joint project of these extraordinary men in its historical context and its implementation in Justice Traynor's understanding of tax adjudication. Their proposal serves as proxy for the evolution of tax avoidance in a time when tax acts became complex followed by frequent tax revisions enacted in response to tax evasion. It offers valuable guidance for reducing the complexity and vagueness inherent in our tax system, and for improving the relationship between taxpayers and government. Some of today's most important mechanisms to prevent tax avoidance originated in Traynor & Surrey's proposal, such as private letter ruling and advanced pricing agreements. Their proposition for a single court of tax appeals continues to be deliberated.

Keywords: Justice Roger J. Traynor, Stanley S. Surrey, tax disputes, tax law revisions, history of 'preventive tax policy'

Suggested Citation

Eyal-Cohen, Mirit, Preventive Tax Policy: Chief Justice Roger J. Traynor's Tax Philosophy (2008). Hastings Law Journal, Vol. 59, No. 877, 2008; UCLA School of Law Research Paper No. 07-27. Available at SSRN:

Mirit Eyal-Cohen (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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