Is the Tax Court Still Constitutional?

Congress is notoriously lousy at terminating the life of government entities. However, in a stroke of sheer genius, it has managed to make one of them homeless: the U.S. Tax Court.

The Omnibus Bill enacted to much acclaim just before Christmas contains the PATH Act (“Protecting Americans from Takes Hikes.” Not to be confused with this PATH Act and yonder PATH Act). It makes a bunch of tax exemptions permanent. And, it contains a provision hilariously named “Clarification Relating to United States Tax Court.” It amends the IRS Code by adding the following language:

The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government.

The provision appears to have been added in response to the D.C. Circuit’s 2014 decision in Kuretski v. Commissioner. Mr. and Mrs. Kuretski challenged an adverse IRS decision in the Tax Court; lost in that forum; and then challenged the Tax Court’s constitutional status in the D.C. Circuit. Their principal argument: judges of the tax court, who are appointed for 15-year terms, are removable (for good cause) by the President; and because the judges exercise the judicial power of the United States, that’s an impermissible interbranch removal provision.

Not really, said the D.C. Circuit. Sure the Tax Court is a court, but that doesn’t mean it’s an Article III court. It’s an Article I court, and it’s part of the Executive—even if its members enjoy substantial independence. Judge Srinivasan’s opinion does some fancy footwork to steer around a particularly confusing Supreme Court decision called Freytag v. Commissioner (1991), but it’s obviously right.

In enacting the above-quoted “clarification,” Congress sought to restore public confidence in the Tax Court’s independence—by sending the Tax Court into a constitutional no-man’s land. The Tax Court isn’t an Article III court, that’s for sure. (If it were, the judges’ tenure could not be limited.) And while non-Article III courts are sometimes called “legislative courts,” that doesn’t mean that they are part of Congress; it just means that they are established under various provisions of Article I or, in the case of Territorial Courts, Article IV. So if, per Congress, the Tax Court isn’t part of the Executive either, it’s out there on its own—a true and pristine Fourth Branch.

The “clarification” has caused a fair bit of perplexity and speculation among tax and AdLaw profs. Daniel Hemel has a fun analysis, and Stephanie Hoffer and Chris Walker explore the subject with added wrinkles and further links. My own view—pending further thought about this earth-shattering subject—is that at least for constitutional purposes it doesn’t matter what Congress calls something. E.g., the Supreme Court has held (twice) that Amtrak is a government agency even though its authorizing statute says it isn’t. Be that as it may: let’s all be a bit more patient and stop kvetching when Congress makes or leaves things murky. Things could be worse: Congress could clarify.