Is Tax Litigation Irrational?

Is Tax Litigation Irrational?

According to Supreme Court barrister Robert A. Long it may well be.

Our beloved world of tax litigation had its 15 minutes of fame this morning as the first argument challenging President Obama's health care law involved the applicability of the Anti-Injunction Act. Probably best known among tax procedure wonks as the statute that prevents Federal district courts from hearing state tax disputes, the Anti-Injunction Act basically denies jurisdiction to challenge the merits of a tax until it has been paid. The argument facing the Court was whether the penalty provision for not participating in the Obama health care plan, which is enforced through the Internal Revenue Code, had to be imposed against an individual before the Court had jurisdiction to determine the Constitutionality of the law. Alas, early reports indicate that the assembled Justices were not impressed by the argument.

All of that aside, what really caught our attention was this exchange, reported by Politico, between Justice Scalia and counselor Robert A. Long:
Justice Scalia: ...If it's not jurisdictional what's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent...
Mr. Long: Well, and, Justice Scalia, I can't predict what would happen, but I would say that not all people who litigate about federal taxes are necessarily rational.

Gee, Mr. Long, we're not gonna take that to heart.

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