The Constitutional Nature of the United States Tax Court

59 Pages Posted: 22 Oct 2015 Last revised: 18 Jul 2016

See all articles by Brant J. Hellwig

Brant J. Hellwig

Washington and Lee University - School of Law

Date Written: September 25, 2015


The article examines the nature of the United States Tax Court in the constitutional scheme of government. The article begins by tracing the institutional evolution of the Tax Court, noting the court’s origins as an independent agency within the Executive Branch of Government as well the developments leading up to Congress rechartering the court as a “court of record” established under Article I of the Constitution as part of the Tax Reform Act of 1969. The article analyzes the Supreme Court’s interpretation of the 1969 legislation in Freytag v. Commissioner, 501 U.S. 868 (1991), wherein the Court concluded that the Tax Court constitutes one of the “Courts of Law” for purposes of the Appointments Clause. The article then moves on to a more contemporaneous examination of the Tax Court’s constitutional status. In the case of Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014), the D.C. Circuit Court of Appeals rejected the separation-of-powers challenge to the President’s qualified power to remove a sitting judge of the Tax Court by concluding that no inter-branch conflict existed. Rather, the D.C. Circuit determined that the Tax Court exercised its power as part of the Executive Branch of government. The article details how the Kuretski decision is difficult to square with the legislative history of the 1969 Act as well as the Supreme Court’s decision in Freytag.

After detailing the tension between the Kuretski decision and the 1969 legislation that chartered the Tax Court as an Article I court of record (as well as the Freytag Court’s interpretation of that legislation), the article examines each possible location of the Tax Court in the tripartite structure of government. No one option emerges as definitively correct. The article explains that the two most plausible conclusions are (1) that the Tax Court indeed remains part of the Executive Branch as a default matter, and (2) that the Tax Court forms part of the functional Judicial Branch that encompasses more than Article III courts. The article ultimately concludes there exists no immediate need to solve the structural location issue exists, as the separation-of-powers challenge presented in Kuretski and other pending cases does not involve the level of interference between governmental branches — if indeed two branches of government are implicated — that gives rise to constitutional concern.

Keywords: Constitutional Scheme of Government, Executive Branch of Government, Freytag v. Commissioner, 501 U.S. 868 (1991), Tax, Tax Court, Tax Reform Act of 1969

Suggested Citation

Hellwig, Brant J., The Constitutional Nature of the United States Tax Court (September 25, 2015). Virginia Tax Review, [ Vol. 35: 271 2016 ], Available at SSRN:

Brant J. Hellwig (Contact Author)

Washington and Lee University - School of Law ( email )

Sydney Lewis Hall
Lexington, VA 24450
United States

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