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State Tax Notes

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St. Tax Notes



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This installment of Interpretation Matters discusses two related canons of statutory interpretation and illustrates their use in state and local tax controversies. Assume that a state revenue agency or court construes a tax statute and that the construction is later challenged in another case. Between the two cases, the state legislature reenacts the provision without changing it or the legislature takes no action to amend the provision to overturn the construction in the first case. Some courts treat the reenactment without change, or even the inaction, as evidence that the legislature agreed with the construction in the first case, so that the construction should be followed in the second case as well.

Those canons are relatively weak, but they have had traction in some cases. Accordingly, it behooves state-local tax practitioners to be able to use the reenactment and inaction canons when they argue for their client's cause and to be able to defend against them when they are asserted by an opponent.

Part I addresses the reenactment and inaction doctrines in general terms. Part II considers in detail two state tax cases in which those doctrines were examined. Part III offers practical suggestions in advancing and opposing the reenactment and inaction canons in state and local tax controversies.


© 2008 Steve R. Johnson


First published in State Tax Notes.

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