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Florida State University Law Review

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Fla. St. U. L. Rev.



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King Vertigorn, it is said, wished to build a castle to defend Britain against invaders. Each day, his mason raised and set the stones. Each night, however, the earth would rumble, bringing the work crashing to the ground. Vexed, Vertigorn asked Merlin for an explanation. Merlin’s mystical divination revealed that, in a cavern far below the surface, there resided two foes, a red dragon and a white dragon. In their perpetual struggle for dominance, first one dragon then the other would gain temporary ascendancy. Their jostling unsettled the ground, rendering all construction temporary.

In federal tax procedure, the red dragon and the white dragon are facilitation of revenue collection and fairness to taxpayers. Numerous times during the first century of the modern federal income tax, the courts have noted the centrality of the first value: “taxes are the life-blood of government, and their prompt and certain availability an imperious need.” But, were that the only value, we could return to brutal efficiency of the proscription system. We have refrained from doing so because our limited government traditions demand that citizens’ claims to due process under the law be taken seriously.

Thus, tax administration in the United States – before, during, and (no doubt) after the income tax’s first one hundred years – has involved and will involve the balancing of the revenue facilitation and fairness protection imperatives. Just as the power balance between the red and white dragons fluctuated, so have the relative weights accorded the two tax imperatives. During times of international or domestic crisis, we have looked to Government to save us from threats. This demands opening wider the spigot of fiscal flows, so the first tax value receives greater weight. During more placid times, menace recedes, causing the virtues of the second value to appear more attractive.

In short, the pendulum swings between emphasis on revenue maximization and taxpayer protection. This affects legislative, regulatory, and judicial actions, and it implicates not just substantive rules of tax liability and tax rates but also styles of statutory interpretation and the rules and devices of tax procedure.

This article is about the procedural rules. Specifically, it considers the mechanisms by which disputes as to federal tax liabilities are resolved. The article identifies an agenda for reforming federal tax litigation. Fully developing the justifications for and the particulars of the proposed changes necessarily is the work of more than one article. Thus, this article sets the agenda, describing the core elements of the changes (and, in some cases, the reaffirmations) I propose. Subsequent articles will develop specific proposals in greater detail.


© 2013 Steve R. Johnson


First published in Florida State University Law Review.

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