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My Dad and the Tax Court are Almost the Same Age

Posted on Aug. 21, 2015

My Dad was born in 1925 and the predecessor to the Tax Court in 1924.  Their lives have some parallels given that they have walked through the same era together.  I am in the process of writing a short article about the Tax Court’s history and in the process of planning, with my sisters, an appropriate birthday celebration for my Dad’s 90th birthday on December 1.  Suggestions regarding the celebration are welcome.  It will not involve skydiving.

Both the Tax Court and my Dad had difficult births.  You can read in great detail about the birth of the Tax Court in the recently released second edition of the wonderfully detailed book “The History of the Tax Court – An Historical Analysis” (available for purchase here or can be viewed online here.) Brant Hellwig, the new dean at Washington and Lee Law School, updated and expanded the original work done by Harold Dubroff over three decades ago.  The original book came out in 1977 at almost the same time my Dad retired from a 3+ decade career with the IRS.  Brant’s update covers the period of my Dad’s retirement which coincides with the period during which I have practiced before the Court.

At its birth, the Tax Court was the center of much controversy.  About 10 years before it was born, the 16th Amendment had passed and the income tax reinstated.  With the coming of a new area of law came many questions and litigation and much debate over the application of the new law as well as who would interpret it.  Eventually, enough cases were pent up in the system that Congress felt the need to take action.  The Administration wanted a deliberative body it could control while Congress took the view that the adjudicative role should be a little more balanced than the Treasury Department deciding what the tax laws really meant.  Congress created a temporary fix in 1924 that it really did not formalize until 1926 after the initial judges of the Board of Tax Appeals worked almost 24/7 for two years to eliminate the backlog and demonstrate their value to the system.

Meanwhile, my grandmother was quite ill when my Dad was born and he had severe asthma.  He suffered through his first few years struggling to gain a foothold on life while coping with the breathing problems.  Because of my grandmother’s condition, he was an only child.  Despite the physical difficulties he and his mother suffered, he persevered like the early Tax Court and survived as a stronger person.

The late teenage years also proved eventful for the Tax Court and my Dad.  Congress took another look at the Board of Tax Appeals and decided it really was a Court (see Dubroff & Hellwig at 217-28.)  Thus, it received a new name and some new duties (see Dubroff & Hellwig at 186-217.) Congress, and the world, had other plans for my Dad.  He was drafted at the age of 17 after being rejected as a volunteer and ended up serving in the Navy during the last two years of WWII.  He served in waters off of Okinawa where kamikaze pilots hit the ships on either side of his.  As a radio operator he had the right to be at the top of the ship.  After seeing what happened to the other ships, he decided to stay above deck for 2+ days for fear of being trapped in his berth way in the bowels of the ship.  Eventually, the need for sleep overcame his fear of being at the bottom of the ship if it was hit.  While he was proud to have served in the war effort, his few stories of that time never involve bravery but always survival or the insanity of the events.

Forty five was a tough age for the Tax Court and my Dad.  In 1969 Congress got serious about where the Tax Court fit in the world of the judiciary.  Yet again, it debated whether to make the Court an Article III Court and give the judges life tenure (see Dubroff & Hellwig at 146-55 for a history of the life tenure debate.)  Yet again, it chose not to do so.  Still amid the disappointment about Article III status, the Tax Court did move from an agency court to an Article I Court and did get the promise to move out of the IRS building at 1111 Constitution Avenue.  The bad news for the Tax Court about this timing was that approval for it to have its own building came at a time when architecture may have hit an all-time nadir.  The building it received, while it has a cool cantilevered main courtroom, does not rank high on my list of beautiful courthouses.  (And we will not even discuss how the low bidding contractor installed the ceiling beams that came crashing to the floor a decade later.)

In 1970 when my Dad turned 45 he was diagnosed with lung cancer which made for a turbulent year.  The good news was that he found out about it early due to receiving a free X-ray at the Virginia State Fair.  As a result the doctors were able to remove the cancer before it spread, and he made a full recovery.  While he did not have any architectural issues, in 1970 I did move into an ugly 1960s designed dorm on the otherwise beautiful campus of William & Mary.

In the 1970s the Tax Court flourished with its new status and its new building.  The 1969 Act formalized the special trial judges, and, inter alia, it created the Small Case status (see Dubroff & Hellwig at 883-86). The Tax Court entered its modern era as a full blown court and came out from the shadow of the IRS both literally, with its new lodging, and figuratively.

Meanwhile, my Dad’s life undoubtedly got better as my sister and I moved out of the house.  His work at the IRS culminated with the Office of Appeals where he spent his last 15 years of government service.  Throughout the 1970s he handled the most difficult cases in the Richmond Appeals Office where he routinely met with opposing counsel for the largest corporations in Virginia.  I was hired by the Office of Chief Counsel, IRS because the District Counsel who interviewed me knew my Dad and decided to take a chance on me.  My Dad is proud that in the 15 years he served as an Appeals Officer in only one case did the Tax Court hold favorably for the taxpayer in a case he could not settle.

As it passed the age of 90, the Tax Court seems quite strong.  Despite small nagging questions about it constitutional status, it has found a great place in the judiciary.  The Court has also made tremendous efforts in the past decade to make sure that the 70% of petitioners who file pro se get a fair shake.  My Dad is still going pretty strong as he approaches 90.  He lives independently.  He has adapted to life as a single person in the seven years since my Mom passed away.  He still drives despite my suggestions to the contrary and still does his own tax returns.  He loves his status as the great grandfather of three (soon to be four) young children.  Both the Tax Court and my Dad have had good lives.

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