Neil Gorsuch and the Tax Law

On Friday, the Senate confirmed Neil Gorsuch as the newest Justice on the Supreme Court, and today he was officially sworn in, taking the seat that Justice Scalia’s passing left vacant.

When Justice Scalia passed away, I looked at the tax opinions he had authored. It turns out, Justice Scalia didn’t author a whole lot of tax opinions, and those that he did author were, as I said, “workmanlike,” without the verbal pyrotechnics, wit, and flair he was known for.

I was curious whether Justice Gorsuch would bring anything different to that seat, so I looked for tax opinions he had authored.[fn1] My search terms brought up 34 hits; the vast majority were not actually cases dealing with the federal income tax.[fn2] In fact, I only saw two cases dealing with federal income tax issues, and neither of them really dealt with the tax law.

United States v. Sing, 653 Fed.Appx. 646 (2016)

Ms. Sing and Mr. Timmerman sold tax shelters; apparently, they convinced their clients that a corporation sole would shield their assets from the IRS. But that question is irrelevant to the case; they don’t, and apparently Sing and Timmerman acknowledged that they don’t. Instead, the question was how much tax loss they caused (because the amount of tax loss caused is used in determining the appropriate sentence). Judge Gorsuch didn’t go into detail about the tax loss; rather, he held that district courts don’t have to calculate tax loss with certainty, and that courts of appeal will only reverse the district court’s calculation upon showing of “clear error.” Because the defendants didn’t show clear error, the district court’s calculation stood.

Rader v. Comm’r, 616 Fed.Appx. 391 (2015)

Ah, a nice tax protestor case. Mr. Rader bought strategies from a well-known tax protestor, and the tax court ultimately found that he owed nearly $1 million in unpaid taxes and penalties.

His wife tried to appeal, but, Judge Gorsuch said, the tax court hadn’t found any liability on her part, and couldn’t otherwise demonstrate any personal injury she suffered as a result.[fn3]

Mr. Rader also appealed his case, but Judge Gorsuch basically dismissed him out of hand. While he had standing, even construing his complaint liberally, Judge Gorsuch found no fault with the tax court’s decision.

What Does This Tell Us About Justice Gorsuch and Tax?

Almost nothing. I mean, two decisions, both of which deal with relatively frivolous complaints, doesn’t give us any kind of insight into his philosophy of tax. It does tell us, though, that he views the tax law as a legitimate body of law, and that he sees frivolous tax arguments for what they are. And that’s not nothing.

[fn1] (To find his tax opinions, I searched advanced: neil /3 gorsuch AND tax! on Westlaw.

[fn2] In fact, the vast majority were criminal cases where the word “tax” came up in some context or another.

[fn3] It looks like the must have filed separately, I guess? Her allegation was that the tax judgment put clouds over the title of property she’d sold years earlier, but Judge Gorsuch held that she hadn’t carried her burden with that. He didn’t discuss filing status, but, otoh, it’s probably not worth spending a ton of time on obviously frivolous tax protestor arguments.

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