Article by David A. Hyman
The disagreement between Dean Martinez and myself is narrow, but significant. In the interest of sharpening the discussion and preserving scarce timber resources, I will not repeat the analysis of the scope of the summons power and the specifics of the Tax Court's discovery rules which appear in my earlier article and in Dean Martinez's reply. Instead, I will focus on what I find unpersuasive in Dean Martinez's three claims. The response closes with an abbreviated discussion of why tax is not (and should not be) different—even if tax lawyers are.
As a fellow taxpayer, I have a great deal of sympathy for Dean Martinez's argument. After all, why should I (or the reader) pay more taxes because another taxpayer exploits a procedural intersection to avoid paying his “fair” share? If the information is helpful in determining the correct tax liability, it should be available to the court, and the IRS should be allowed—if not encouraged—to engage in circumvention when the government is “protecting the revenue.”
Unfortunately, the issue is not so simple. “Protecting the revenue” is important, but there are still limits on what the government can do to accomplish that goal. Many of the other activities engaged in by government are also important—but circumvention is proscribed in those areas, and it is hard to see why tax should be treated differently. In addition, as noted previously, procedures serve values apart from guaranteeing correct outcomes—and deviations from perfection (defined in outcome-based terms) are acceptable in light of such interests. If the deviation is too large to accept, the appropriate remedy is to fix the rule across the board, rather than make ad hoc determinations that the more restrictive rule should not be enforced in any given case.
About the Author
David A. Hyman. Associate Professor, University of Maryland School of Law.
Citation
71 Tul. L. Rev. 1729 (1997)