Grammar at the Supreme Court

I did become a grandpa a couple of weeks ago, but the subject of this post is not “Mrs. Rasmusen goes to Washington,” but an attempt to make grammar more interesting for my middle schoolers. So how do you make grammar interesting?

Simple. Use the Spoonful of Sugar principle, and mix in something more fun than grammar, to dilute it and make it delicious to consume. What can we mix in?

Procedural tax law, naturally. Then what was boring becomes fun. Or, at least it becomes important, and the stakes at issue over correct grammar go up considerably.¹ So let’s bring in Boechler, P.C v. Commissioner of Internal Revenue (U.S. Supreme Court, April 21, 2022, Barrett, J.) and Section 6330(d)(1) of the Tax Code. That bit of the Tax Code says

The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).

What does this mean? We need to back up a little. If the IRS decides you underpaid your taxes, they’ll send you a notice. If you disagree, you have the right to a Collection Due Process Hearing, where the IRS people will listen seriously to your reasons for thining they’re wrong. After all, the IRS doesn’t actually enjoy oppressing the taxpayer, whom they know is also usually a voter.²If they still want to charge you, you have 30 days to file an appeal to Tax Court, which is a real court, not just part of the IRS. And if you keep losing, you can appeal eventually to the U.S. Supreme Court, which is what happened here.

The question at issue is whether Tax Court will listen to excuses if you miss the 30-day deadline for a good reason. This listening to excuses is called “equitable tolling”. Usually courts will listen to excuses, but Tax Court said that in these 30-day cases it would not, because of the word “jurisdiction”. A court has jurisdiction only if Congress says it can hear that kind of case, and if it doesn’t have jurisdiction to hear cases past the 30-day deadline, it can’t hear excuses about missing the deadline either.

Thus, the case came down to which of two meanings the Tax Code has:

The Tax Code. The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).

1. Tax Court Interpretation: The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination. If he does, the Tax Court shall have jurisdiction with respect to such matter.

2. Supreme Court Court Interpretation: The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination. The Tax Court shall have jurisdiction with respect to review of IRS determinations.

I call the second the Supreme Court interpretation because that is what the Court unanimously decided. Peter J. Reilly puts it very well in his Forbes article, from which I’ve taken my information about the case:

In the oral arguments, Chief Justice Roberts joked that it might come down to sentence diagramming - something he had not done in a while. Here is how Justice Barrett frames the issue:

• The answer depends on the meaning of “such matter,” the phrase marking the bounds of the Tax Court’s jurisdiction. Boechler contends that it refers only to the immediately preceding phrase: a “petition [to] the Tax Court for review of such determination.” If so, the filing deadline is independent of the jurisdictional grant. The Commissioner, by contrast, argues that “such matter” refers to the entire first clause of the sentence, sweeping in the deadline and granting jurisdiction only over petitions filed within that time. On this reading, the deadline is jurisdictional.

This is where the homage to the late Justice Scalia comes in as we get a cite to Reading Law: The Interpretation of Legal Texts which Justice Scalia coauthored. I checked my copy for the relevant rule and here it is.

• 18. Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent

From that Justice Barrett got

• And Boechler links “such matter” to the phrase immediately preceding the jurisdictional parenthetical, while the Commissioner stretches back one phrase more. This is hardly a slam dunk for Boechler, but it is one reason to prefer its reading—or at least to regard the Commissioner’s as not clearly right.

Reilly goes on to talk about what Lew Taishoff thinks. Taishoff is the other columnist who with Reilly makes tax law interesting and flashy. Taishoff doesn’t like the Supreme Court’s ruling. He says that the Tax Court had good reason for not wanting to avoid hearing excuses about missing the 30-day deadline, because such excuses are almost always lousy excuses that waste the court’s time and are meant to just delay having to pay your taxes. As he puts it,

If equitable tolling is adopted in CDP cases, then IRS may have started collection, then have collection stayed by Section 6330(e) on the late-filed petition after the original thirty-day jurisdictional cutoff, then unstayed by Tax Court after trial or summary J, and possibly restayed on appeal. This is chaos.

Taishoff is probably right. But the way Congress wrote Section 6330(d)(1) of the Tax Code, the Supreme Court got it right: it allows excuses. And the response of Tax Court ought not to be to change what the Code means, but to do a good job of juding. What that means is that if the taxpayer files suit late with excuses, the Tax Court should take a quick look and ordinarily see that the excuse is bad and return the suit the next day with a minimal “Too bad” written opinion and no oral argument. Equitable tolling is an equitable remedy, not a remedy of right, and courts have a lot of discretion with it. If the court wants to be stingy with excuses, that’s perfectly proper.

There I should end. I thought of going on to talk about the lovely ways in which grammar and middle-school math intersect, particularly in the context of Order of Operations and in Algebra, but I think I’ll let that wait till another time.

1. This raises another pedagogical possibility. How about showing the students two different ways to write a sentence and asking them to bet on which is correct? The teacher could use a pari mutuel system, so that if a student bets on the minority viewpoint, he wins more. If cash bets seem too crude, candy would do just as well.

Note: Do not try this at Harvard. I am told that one rule at Harvard is that in undergraduate classes students can never, ever, lose money, even if betting is completely optional. I’ll some day as part of my Old Man’s Stories series tell how I learned this.

2. On this, see J. Mark Ramseyer & Eric Rasmusen, "Why the Japanese Taxpayer Always Loses," Southern California Law Review, 72: 571-596 (January/March 1999). Translated and reprinted, Doshite Nihon no nozeisha wa katenai no ka [Why Can’t Japanese Taxpayers Win?], in Kohogaku no ho to seisaku: ge [Law and Policy in Public Law: vol. 2] 147 (Mitsuaki Usui, et al., eds., Tokyo: Yuhikaku, 2000). The tax office wins most cases in Japan. We think about why this might be. We find that although judges who rule in favor of the taxpayer do not suffer in their future careers, if the loser-- whether governemnt or taxpayer-- appeals and wins, the reversed judge's career does take a turn for the worse. This implies that the government cares more about accurate judging than about pro-government judging. Data is here. http://rasmusen.org/published/Rasmusen-99.SCLR.jpntax.pdf