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State Tax Notes

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St. Tax Notes



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In part, Interpretation Matters is about the craft of advocacy, how statutory interpretation arguments can be effectively made – and effectively countered – in state and local tax cases. For example, when one’s opponent in such a case invokes one or another of the canons of construction, how is that canon to be blunted?

One strategy we often have explored is fighting fire with fire – that is, identifying and asserting another recognized canon that leads to an opposite conclusion. One of the most famous articles on statutory interpretation arrayed dozens of pairs of canons that seemingly contradict each other. Thus, we have noted the possibility of exploiting the following pairs of dueling canons:

  • “plain meaning”' versus legislative intent;
  • “construe exemptions and deductions narrowly” versus “remedial statutes should be liberally construed”
  • pro-taxpayer versus pro-government construction of ambiguous revenue laws;
  • statutory purpose versus “specific statutes control over general statutes”; and
  • “clear meaning” versus the reenactment and inaction canons.

What is the advocate to do, however, if he or she is opposed by a canon and the circumstances of the case do not allow a countering canon to be asserted? This installment of the column addresses that situation. The strategy it describes involves two competing approaches to statutory interpretation: so-called reasonable interpretation, in which the court operates on a level “playing field” without constructional precepts favoring any particular outcome, versus “tilted interpretation,” in which the playing field is unbalanced by a values-laden canon. When an advocate can enlist no canon in support of his or her position, the natural strategy would be to attempt to persuade the court to engage in reasonable interpretation by dispensing with all canons (all of which, it just so happens, line up on the other side).

The first part describes tilted interpretation – that is, interpretation influenced by one or more substantive canons. The second part discusses reasonable interpretation. The third part gives examples from federal and state tax cases of the clash between these two styles and of how those clashes were resolved.


© 2010 Steve R. Johnson


First published in State Tax Notes.

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