The Un-Precedented Tax Court
40 Pages Posted: 30 Mar 2015 Last revised: 14 Sep 2016
Date Written: March 29, 2015
Around the turn of this century, a "highly-charged" debate erupted over unpublished federal appellate court opinions. Some argued that the common prohibition against citation to those opinions posed no constitutional problems, while others argued that no-citation rules improperly eliminated a significant check on the judicial power.
This debate might have been expected to reach, but has not yet reached, issues related to the purportedly nonprecedential nature of most Tax Court opinions. Under court practices, Memorandum Opinions nominally lack precedential value. And by Congressional fiat, Summary Opinions cannot be cited as precedent.
This Article explores the constitutional and practical problems raised by non-precedential Tax Court opinions. It argues that the Tax Court should abandon the nonprecedential designation of Memorandum opinions, especially because taxpayers, the IRS, Article III courts, and the Tax Court itself frequently treat those opinions as persuasive or binding authority. The Article also argues that Congressional control over the precedential status of Summary Opinions triggers separation of powers problems and that Congress should eliminate its restrictions on those opinions.
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