When the Bough Breaks: The U.S. Tax Court's Branch Difficulties

Abstract

This essay highlights the confusion over which of the three branches of government (if any) is home to the U.S. Tax Court, which hears over 95% of litigated federal tax cases. Some authorities say the Tax Court is in the judicial branch, some locate it in the legislative branch, and others in the executive. Even the federal government has made inconsistent statements in this regard. Moreover, this uncertainty about the Tax Court's location within the federal government recently resulted in a separation of powers challenge to the court. The essay argues that there is a pressing need to resolve this issue, so as to decrease the Tax Court's insularity and reduce the prospect of future structural challenges to the court.

Keywords: Tax Court, separation of powers, judicial branch, legislative branch, execultive branch, Article I

JEL Classification: H11, H29, K34, K40