Robert M. Howard Getting a Poor Return, Courts, Justice, and Taxes (2009)

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Harry A. Haines 4/22/03 No Yes Yes No
James S. Halpern 7/3/90 Yes Yes Yes No
Mark V. Holmes 6/30/03 No No Yes Yes
Diane L. Kroupa 6/13/03 Yes No Yes Yes
L. Paige Marvel 4/6/98 No No Yes Yes
Stephen J. Swift 12/1/00 No No Yes Yes
Michael Thornton 3/8/98 No Yes Yes Yes
Juan F. Vasquez 5/1/95 Yes Yes Yes No
Thomas B. Wells 10/13/86 No Yes Yes No
Robert Wherry 4/23/03 No Yes Yes No
Renato Beghe* 3/26/91 No No Yes No
Herbert Chabot* 4/3/78 No Yes Yes Yes
Carolyn Chiechi* 10/1/92 No Yes Yes Yes
How. Dawson* 8/21/62 Yes No Yes No
Joel Gerber* 6/18/84 Yes Yes No No
Julian I. Jacobs* 3/30/84 Yes Yes Yes No
David Laro* 11/2/92 No Yes Yes No
Arthur Nims, III* 6/29/79 Yes Yes Yes No
Robert P. Ruwe* 11/20/87 Yes No No No
Laur. Whalen* 11/22/87 Yes Yes Yes No
Percent All 44% 60% 88% 40%
Percent Regular 33% 53% 93% 53%
Percent Senior 60% 70% 20% 20%
* Senior Judge
column lists governmental experience exclusive of the IRS. For example,
the judge might have been a counsel to a congressional tax, fi nance, or
ways and means committee. The bottom three rows list the percentages for
each column for all the judges. I then divide the percentages into senior
judges and regular judges.
Several interesting details emerge. First, and contrary to common per-
ception, on the modern Tax Court only a minority of judges have actual IRS
or government experience. Most judges have a private practice background,
and most also have a specialized background in taxation. However, when
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TAX DECISION MAKING
one examines the differences between the senior and regular judges, one
observes much greater disparity and this examination shows a change in the
background of the judges over time. The majority of the senior judges do
have IRS experience, but only a small percentage worked in private practice.
That is, on average, the older judges have a very different background from
the newer judges. The newer judge is unlikely to have worked for the IRS,
but instead has both private fi rm experience and has worked for a congres-
sional committee. This would suggest that the newer judges would not have
a bias to the IRS and, if anything, would be more sympathetic to both the
taxpayer (because of their private fi rm background) and to the preferences
of Congress (because of their governmental background).
The appointment process and background mark Tax Court judges as
similar to nominees of the other specialized courts (see Unah 1998). While
expertise is important and necessary, the process of appointment is political.
Republicans want Republican and conservative judges and Democrats want
Democratic and liberal judges. This makes the nomination and confi rmation
process of advice and consent for Tax Court judges the same as it is for
other federal judges (Epstein and Segal 2005). As previously mentioned, an
earlier study found a signifi cant positive correlation between judicial liberal-
ism and support for the IRS (Howard and Nixon 2002). Given their lack
of independence with the concomitant fewer number of judges and shorter
tenure, in the time frame of this study one would expect the Tax Court to
decide cases on ideology and personal policy preferences at least as much
as the longer-tenured, larger, more independent District Court.
This can move beyond just conservative ideology favoring the taxpayer;
it can also mean that certain judges are far more likely to favor wealthy
taxpayers. This preference would be in accordance with tax policy, which,
at least since 1981, seems to favor the wealthy at the expense of the less
well-off (Johnston 2003). Given the prominence of antitax and anti-IRS
rhetoric from 1981 onward, one would expect ideological and pro wealthy
Tax Court IRS rulings to increase, with liberals supporting tax collection
efforts and conservatives opposing such efforts, and court rulings in general
supporting wealthy litigants.
Because there are more judges, and these judges have a longer tenure,
the independent Article III District Court should not exhibit the same
ideological tendencies in its decisions. The shorter tenure of the Tax Court
allows greater control of the court outcomes than the longer time-framed,
much larger District Court. The ability of the dominant political coalition
to align the judiciary with its policy preferences was observed many years
ago by Robert Dahl (1958), who noted that presidents appoint about two
justices every four years to the U.S. Supreme Court. Because of this, even
with lifetime tenure, the very small, nine-member Supreme Court is inevi-
tably part of the dominant political coalition (1958, p. 293).
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GETTING A POOR RETURN [ Pobierz całość w formacie PDF ]

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