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Where Have All the Judges Gone (and Other Information from the ABA May Meeting) Part 1

Posted on May 23, 2023

At the Court Procedure and Practice Committee of the ABA Tax Section Tax Court Chief Judge Kerrigan presented as part of the panel and provided information about the Tax Court. One of the first things she mentioned concerned judicial staffing at the Court. At present, the Court is operating with 16 Presidentially appointed judges out of a possible 19 due to judges in need of reappointment, such as Judge Holmes, and judges who have reached the age of 70 when they age out of being “regular” Tax Court judges and have the opportunity to move into senior status.

Judges Lauber and Marvel moved to senior status recently. This doesn’t mean judges who turn 70 immediately stop trying cases if they are willing to continue working which they seem to be, but it does exclude them from Court conference on cases of importance and it does open up slots for further Presidentially appointed judges who can help with the overall workload of the Court.

Chief Judge Kerrigan stated that three more vacancies will occur by the end of the summer – two because judges, Judge Morrison and Judge Paris, will come to the end of their terms and one because a judge, Judge Gale, will reach age 70. The two judges who will reach the end of their terms can be reappointed. Most Presidents seem to do that although not all. Even if reappointed, the process seems to move quite slowly rather than seamlessly creating a gap in the time the judges can act as regular judges forcing them to go onto senior status for the period of the gap. Once their term ends, judges under 70 who have not been reconfirmed by the Senate move to senior status until the reconfirmation occurs. Judge Holmes has now been in this status since 2018 though readers of Tax Court opinions know that he is still very active.

The backed up judicial appointments because of the health of Senator Feinstein on the Judiciary Committee has been much in the news; however, that should not be a barrier to appointing new Tax Court judges and having them confirmed. Unlike Article III judges, the appointment of Tax Court judges goes through the Finance Committee where Chairman Wyden seems to be active and well. But the Finance Committee can’t act if the President doesn’t send up any names. I don’t know why the President wouldn’t send up names for appointment or reappointment so the Tax Court can operate at full strength. There are a number of time-consuming cases on the Court’s docket. From what I can tell, it could use the extra members.

The Tax Court could expand the current number of special trial judges in an effort to process more cases. Once upon a time special trial judges (STJs) got assigned to large trials. When an STJ was assigned to a large case, the STJ would handle everything and issue a preliminary opinion. Because STJs cannot issue opinions in regular cases, to become final the opinion would be adopted by a Presidentially appointed judge. That process generally seemed to work well. Over the years many STJs had as much or more trial experience as Presidentially appointed judges and did a nice job of conducting large trials as well as trials in small tax cases. In the 1980s when the Tax Court’s inventory was high, there were 10 STJs for much of the decade. The practice of assigning STJs to handle large trials of regular cases went into disfavor after the Supreme Court’s decision in Ballard v. Commissioner, 544 US 40 (2005). The unwanted exposure created by the decision seems to have stopped the practice of assigning STJs to help with the large case workload of the Court.

STJs should or could operate in the Tax Court much like magistrate judges in the District Courts and there have been legislative proposals to rename the STJs in the past to align the name with the title in District Court. In District Court cases the parties can elect to have their case heard by a magistrate judge with the ability for the magistrate judge to issue the final decision without review by a District Court judge. Perhaps Congress could consider amending the Code to give greater power to STJs or more flexibility to the Chief Judge to use them to the Court’s highest advantage. IRC 7443A(b)(4) and (6) gives STJs the ability to hear any CDP or whistleblower case. These cases could all be moved to small tax calendars though the volume, and type, of these cases may not provide much relief.

The Court does seem to be making a move to use the STJs to greater advantage as it sets up the calendars for the fall. Chief Judge Kerrigan said that regular judges will be holding more special sessions in the coming year and that STJs will handle calendars with cases involving more than $50,000 at issue for one period. I expect this reflects the large number of big cases sitting on the Court’s docket.

At the May meeting of the ABA Tax Section, I participated for the first time on the committee which the Tax Section has to vet judicial appointments to the Tax Court. For those readers older enough to remember commercials by Maytag from 50 years ago, members of this committee are like the Maytag repairman in those commercials – they have nothing to do. Perhaps I should be happy to be on a committee that has nothing to do. What I noticed about the committee was that it contained a number of individuals who would make excellent Tax Court judges. Since I am over 70, I don’t have to worry about being appointed, but I note for whoever is on President Biden’s judicial appointment staff that looking at the members of this committee could provide a ready source of well qualified appointees in addition to the judges available for reappointment.

In Part Two I will talk about some of the case and other statistics provided during the committee meeting.

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