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Innocent Spouse Bench Opinion – Part 2

Posted on Nov. 4, 2022

In Part 1 of this post, I noted that Judge Holmes issued a bench opinion in the case of Bacigalupi v. Commissioner, Dk. No. 20480-21.  I also noted that the bench opinion itself caught my eye because of the handwritten edits on the opinion.  Between the time the judge read the opinion into the record prior to the close of the trial calendar in San Francisco on September 19, 2022, and the entering of the order making the bench opinion public in written form, the judge made the type of editorial corrections one expects occurs in the writing of any opinion but which we do not have the opportunity to view.  The opinion made me start thinking about bench opinions again.  Since we have not posted about them for some time I wanted to separately address that aspect of this case.

We have written about the process of bench opinions here and their non-precedential effect here.  Building on the blog post about this process, I wrote a longer article on bench opinions published in the Journal of Tax Practice and Procedure in 2015 available here. I have not done the work to count the number of bench opinions issued by the Court since 2015 to see if the practice has changed at all in the past several years.

The rules generally make it tough for the judges to issue bench opinions because they must do so within a very short time frame. These opinions get their name from the fact that the judge issuing such an opinion literally sits on the bench and reads the opinion into the record. In many instances the judge does so to a courtroom populated only by the trial clerk and the court reporter. Some judges reach out to the parties before reading the opinion causing one or both of the parties to attend the reading.

This process has been around for 40 years.  Code Sec. 7459 provides in part:

(a) Requirement. —A report upon any proceeding instituted before the Tax Court and a decision thereon shall be made as quickly as practicable. The decision shall be made by a judge, in accordance with the report of the Tax Court, and such decision so made shall, when entered, be the decision of the Tax Court.
(b) Inclusion of findings of fact or opinions in report.—It shall be the duty of the Tax Court and of each division to include in its report upon any proceeding its findings of fact or opinion or memorandum opinion. The Tax Court shall report in writing all its findings of fact, opinions, and memorandum opinions. Subject to such conditions as the Tax Court may, by rule provide, the requirements of this subsection and of section 7460 are met if findings of fact or opinion are stated orally and recorded in the transcript of the proceedings.

The last sentence of subsection (b) provides the foundation for bench opinions and limits the ability of the court to make oral findings both on rules the Tax Court might adopt and on Code Sec. 7460. The language in the last sentence of subsection (b) concerning oral findings was enacted in 1982.

Tax Court Rule 152, entitled Oral Findings of Fact or Opinion, provides the “rule” governing bench opinions. It states:

(a) General. Except in actions for declaratory judgment or for disclosure (see Titles XXI and XXII), the Judge, or the Special Trial Judge in any case in which the Special Trial Judge is authorized to make the decision of the Court pursuant to Code section 7436(c) or 7443A(b)(2) , (3), (4), or (5), and (c), may, in the exercise of discretion, orally state the findings of fact or opinion if the Judge or Special Trial Judge is satisfied as to the factual conclusions to be reached in the case and that the law to be applied thereto is clear.

(b) Transcript. Oral findings of fact or opinion shall be recorded in the transcript of the hearing or trial. The pages of the transcript that contain such findings of fact or opinion (or a written summary thereof) shall be served by the Clerk upon all parties.

(c) Nonprecedential Effect. Opinions stated orally in accordance with paragraph (a) of this Rule shall not be relied upon as precedent, except as may be relevant for purposes of establishing the law of the case, res judicata, collateral estoppel, or other similar doctrine.

The requirement that the judge issue the bench opinion before the end of the trial session giving rise to the bench opinion appears to stem from the implicit requirement in Rule 152(b) relating to the recording of the bench opinion in the transcript of the hearing or trial. The Court views the hearing or trial concluded when the trial session ends although it is possible to hold a case open past the trial session under certain circumstances. Holding the trial session open does not appear to apply to issuing bench opinions under the current interpretation of the Rule.

One of the reasons for the creation of the Tax Court was the desire to create a uniform body of federal tax decisional law. Bench opinions do not go through the same review process in the Chief Judge’s office prior to issuance that other Tax Court opinions do. The review process seeks to make the decisions uniform as well as to decide which opinions should be issued as precedential. The goal of uniformity must be considered alongside the goal of rendering the opinions as quickly as possible.

As discussed in our recent editorial on the speed of Tax Court opinions, I think that Tax Court decision process should speed up.  I am not convinced that uniformity would necessarily suffer from greater speed but acknowledge it as a concern.  The economic hardship aspect of the Bacigalupi shows what appears to be a lack of uniformity in the Tax Court on this issue whether the opinion is reviewed or not.


In order to speed up outcomes in Tax Court cases one way would be to increase the number of bench opinions.  One way to increase that number would be to make it easier for the judges to render such opinions by allowing them to hold open the record of the case for a brief period of time after the trial calendar.  As the Court looks for ways to perhaps move cases more quickly, it might look at the bench opinion process as one opportunity for accomplishing that goal.




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