The Tax Court's Home

15 Pages Posted: 7 Jun 2018  

Allen Madison

University of South Dakota Law School

Sharyn M. Fisk

California State Polytechnic University, Pomona

Date Written: November 27, 2017

Abstract

This article analyzes issues related to the Tax Court’s constitutional status. Although the issue has been debated for decades, recent litigation has revived the issue. In Battat v. Commissioner, the primary issue before Tax Court was whether the President’s limited removal power over tax judges violates the Constitution’s separation of powers. In addressing this issue, the Tax Court outlined the background on the Tax Court’s status to show the Tax Court is not in the Executive branch. Further, the Battat opinion holds that even though the court exercises judicial power, the Tax Court does not exercise the “judicial power of the United States” reserved for Article III courts. Thus, the President’s limited removal power presents no separation of powers violation. The Tax Court did not reach an ultimate answer as to which branch of the government it resides, but it does provide background showing that it lies outside the Executive branch.

To determine which branch the Tax Court resides, the article first examines whether the Tax Court is an Article III court. As an Article III court, the Tax Court would be in the Judicial branch. Under the two approaches in the case law permitting non-Article III courts to exercise limited judicial power, the formalistic approach would suggest the Tax Court is not an Article III court. However, recent cases applying the second approach (i.e., the functional approach) could reach a contrary determination. Next, this article looks at whether the Tax Court may reside in the Judicial branch even if it does not exercise the “judicial power of the United States.” For reasons related to the how the Constitution set up the government, the Tax Court likely may call the Judicial branch its home.

Suggested Citation

Madison, Allen and Fisk, Sharyn M., The Tax Court's Home (November 27, 2017). Tax Notes, Vol. 157, No. 9, 2017. Available at SSRN: https://ssrn.com/abstract=3181107

Allen Madison (Contact Author)

University of South Dakota Law School ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

HOME PAGE: http://www.usd.edu/faculty-and-staff/Allen-Madison

Sharyn M. Fisk

California State Polytechnic University, Pomona

3801 W. Temple Avenue
Pomona, CA 91768
United States

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