Professor Suggests Changes to Tax Court's Official Reporter to Enhance 'Readability'

Please change the format in which cases are described in the Index-Digest to the Court's official reporter. The format is cumbersome. It defeats readers' attempts to comprehend the descriptions or, at the least, puts readers to unnecessary inconvenience and expenditure of time in reading and understanding the descriptions.

The cause of the difficulties is the present practice of shoe-horning the whole of the description of the case into a single sentence. This results in sentences which often are hundreds of words long, consume all or most of whole pages, and contain numerous discrete thoughts separated by semicolons.

There is, I appreciate, some tradition behind this "each case only one sentence, no matter how long that sentence may be" approach. But the law's attachment to the archaic eventually yields to functionality. There have been movements in some jurisdictions to write or re-write legal instruments in more readily comprehensible English. That spirit could be profitably applied to the Index-Digest.

Enhanced "readability" could be achieved through quite modest changes, entailing no change of substance. The main change would be breaking up the single, often indigestible description sentence into a number of sentences. This would be accomplished simply by replacing semicolons with periods.

A second change would be to use two paragraphs in long case descriptions: the first setting out the relevant facts and the second setting out the Court's holding(s). This second change would be unnecessary in short descriptions. The change would be helpful in long case descriptions, but it could be omitted. The main change is more important than this second change.

The format change should not entail any additional labor for the personnel who prepare the descriptions. Indeed, it should be easier for them and so should save time. The way we all write is through sentences with periods, not through run-ons studded with multiple semicolons. The present format is unnatural, which must cause the responsible personnel time and effort in translating normal communication into the ritualized form.

The suggestions in this letter, and the reasons for them, are best grasped through an example, drawn from the most recent issue of the REPORTS to have crossed my desk (124 T.C. nos. 3-4, containing cases from March 1 to April 30, 2005). Page IX of the Index-Digest describes the Estate of Bongard case, the text of which begins on page 95 of the REPORTS.

Attachment A to this letter is the description of Estate of Bongard as it appears on page IX. That description is over 300 words. It contains at least nine conceptually discrete facts and four holdings by the Court. Yet all of that material is packed into a single sentence, occupying the great bulk of the page. Our high school English teachers and our law school writing professors would have been appalled if any of us had submitted such a product to them.

What benefit is gained from such difficulty? The descriptions in the Index-Digest are so hard to read that I skip them whenever possible, and I'm confident that many other consumers of the REPORTS do as well. Formatting that causes the Index-Digest to be ignored cannot be in anyone's interest. If, for some reason, I do have to slog through a dense Index-Digest description, I do so in a spirit of annoyance, asking myself why the Tax Court is forcing me (and every other reader of the REPORTS) to suffer unnecessary inconvenience.

Attachment B to this letter is a possible revision of the Estate of Bongard description. The revision is substantively identical to Attachment A and uses essentially unaltered words. The revision differs from Attachment A only in (1) breaking the single long sentence into manageable shorter sentences by replacing semicolons with periods and (2) putting into separate paragraphs the long statement of the facts and the long recitation of the Court's holdings. As said above, the first change is more important than the second.

I hope that you will find time to read Attachment A then read Attachment B. The latter is much easier to comprehend. I hope, therefore, that you will consider switching to the latter format.

Attachment C to this letter are pages 95-96 of the above number of the REPORTS. These pages contain the headnote to the Estate of Bongard case. As you will see, the headnote uses multiple sentences, and the multiple sentences make reading easier. If that format is used in the case headnotes, why not also use it in the Index-Digest descriptions?

Thank you for your consideration of this request.

Court determined that (1) decedent's transfer of X stock to Y satisfied sec. 2036(a) bona fide exception because decedent had legitimate and significant nontax reason for transfer; (2) decedent's transfer of Y class B membership units to FLP did not satisfy bona fide sale exception; (3) implied agreement existed whereby decedent retained 2036(a) interest in class B membership units transferred to FLP; and (4) value of Y class B membership units allocable to decedent's gift to spouse of 7.72-percent partnership interest in FLP was includable in gross estate under sec. 2035(a). Estate of Bongard v. Commissioner. . . .

Lillian D. Brigman and R. Scott Shieldes, for respondent.

GOEKE, Judge: Respondent determined a $52,878,785 Federal estate tax deficiency against the Estate of Wayne C. Bongard (the estate). After concessions and stipulations, two issues remain for decision: First, whether the shares of Empak, Inc. (Empak), decedent transferred to WCB Holdings, LLC. (WCB Holdings), are included in his gross estate pursuant to sections 2035(a)¹ and 2036(a) and (b); and second, whether the WCB Holdings membership units decedent transferred to the Bongard Family Limited Partnership (BFLP) are included in his gross estate under sections 2035(a) and 2036(a). The resolution of these issues depends on the applicability of section 2036(a) to decedent's respective transfers of Empak stock to WCB Holdings and of WCB Holdings membership units to BFLP.

Decedent resided in Minnesota on November 16, 1998, the date of his death. On December 9, 1998, the First Judicial District Court, Probate Court Division, Carver County, Minnesota, appointed James A. Bernards (Mr. Bernards) personal representative of decedent's estate. At the time the petition was filed, Mr. Bernards resided in Minnesota. On February 4, 2003, respondent issued a notice of deficiency to the estate with respect to its timely filed Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return.