Form Over Substance in Fifth Circuit Tax Cases




Camp, Bryan T.

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Texas Tech Law Review


As with most litigation, tax litigation comes down to substance and procedure. By "substance" Professor Camp means controversy over the proper amount of tax. By "procedure" he means litigation over the proper process of enforcing the Internal Revenue Code (the "Code"), either through, criminal prosecution or through civil examination or collection. As is typical when faced with complexity, the cases exhibit a strong desire to simplify. Unfortunately, it is often simpler to focus on form and avoid substance. As this article discusses, this seems to be the tendency of the Fifth Circuit during this survey period, particularly in the five substantive cases summarized for this survey period. The top five cases are labeled “substantive” and are separated from the other procedural cases with a heavier, darker line. Viewed one way, the Fifth Circuit seems to disagree with the Tax Court on almost all matters. Viewed another way, however, the Fifth Circuit simply appears to review the substantive cases more carefully than it does the procedural cases. This article suggests that the former is the correct view.



Fifth Circuit, Tax litigation, Employment taxes, Estate valuation, Bankruptcy


34 Tex. Tech L. Rev. 733