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Chapter 28

Chapter 28. Working With the Tax Law START - Research Process - Below. Tax Sources. Primary Sources - Code Legis Hist Regs IRS pronouncements Court decisions. Statutory Sources. Statute Codifications - 39, 54, 86 Rev Acts part of Code Numbering 39 54 & 86 Seidman’s.

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Chapter 28

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  1. Chapter 28 Working With the Tax Law START - Research Process - Below

  2. Tax Sources • Primary Sources - • Code • Legis Hist • Regs • IRS pronouncements • Court decisions

  3. Statutory Sources • Statute • Codifications - 39, 54, 86 • Rev Acts part of Code • Numbering • 39 • 54 & 86 • Seidman’s

  4. Legis Hist • H Rep (Ways & Means) • S Rep (SFC) • Conf Comm Rep • Code Arrangement • Overall (OH) • Within a Section (OH)

  5. Administrative Sources • Not precedent (i.e., precedent only loosely) • but substantial authority (Conc Sum 28-1) (OH)

  6. Regs: • Numbering, citation • final / prop / temp • legis/inter/proc • Final + Temp = force of law • prop = law brief; • Judicial review

  7. Other IRS Issuances • Rev Ruls • Ltr Ruls - post 84 sub auth; sanitized • TD’s • Anns, Notices • det ltrs • TAMs, GCMs • AODS

  8. Judicial Sources • court config (Fig 28-3)(OH): cts of orig jurisd, cts of app jurisd • stare decisis: binding v. advisory precedent, or controlling v. persuasive; holding v. dicta

  9. Trial Courts: • cts - T.C., D.CT., U.S.Ct. Fed Cl. • # judges • location • juries • b4 payment v. refund (C S 28-2)(OH)

  10. Appellate Cts: • 11 + D.C. + Fed Cir; (CA - 9th Cir) (Fig 28-5) (OH) • US Ct of Fed Cl (new name 10/92) - appeal to Fed Cir Ct App • T.C. appeal to one of 11 or DC - Golsen rule; no appeal small cases division (50000)

  11. “appeal” to USSC = writ of cert (certiorari) (discretionary) • role of app ct (review of applic law) • maj, diss, concur opins - app cts and panel at TC, US Ct Fed Cl • affirm, reverse, remand-app cts

  12. Judicial Cites - Courts & Reporters • Case name, followed by reporters, Ct. (OH) • (1) TC (pre 43 BTA) • reg cases, mem cases, small tax cases • acq and NA by IRS, memorandum or regular cases • CCH, PH (now RIA) pub; only official T.C.

  13. (2) USDC, Ct of Fed Cl, CT App • USTC, AFTR • also F Supp, F3d, Cl Cts (82)/Fed.Cl (92)

  14. (3) USSC - US, SCt, LEd, USTC, AFTR

  15. Research • The process (as applied to assigned problem) • issue (state it) • sources (decide which) • look at (sources) • write (samples)

  16. Research = method to determine available solution to situation with tax conseqs; i.e., to find applicable law to solve problem

  17. Planning = consideration of alternatives, if any • Steps - ID & refine problem (state issue) • locate appropriate sources (decide what to look at & look at) • weigh validity (conflicts - IRS v. code v. courts possible)(put it together)

  18. Solution, includg nontax (memo: issue, law, reasoning, conclusion) (write) • communicate to t/p (t/p decision) • F/U (where to approp - no duty unless take on)

  19. Locating Appropriate Sources • Usually tax service 1st • CCH SFTR, RIA USTR (Prev PH Taxes)

  20. Also: BNA Tax Man Portfolios; RIA Tax Coord; Mertens, R&J, Bender (now in CCH)

  21. Careful • Update • Annotations - see full • Periodicals: - Index: Goldstein, CCH, Lexis • “More Useful” (OH) • Careful - Reading the Code • Assessing Validity - diff sources, with RA • Communicating - Memo Form

  22. Planning • Minimization of Tax AND other business goals (social?) (deferral) • Avoidance v. Evasion • Judge Learned Hand • Cant = hypocritically pious language

  23. The now classic words of Judge Learned Hand in Commissioner v. Newman reflect the true values a taxpayer should have: Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced extractions, not voluntary contributions. To demand more in the name of morals is mere cant.

  24. Computers in Tax Practice • Tax Software for returns, planning - professional (e.g., Lacerte, CCH) home use (Tax Cut, Turbo Tax) • Microcomputer spreadsheets

  25. Research: Lexis + Westlaw, CCH Research Network, RIA Checkpoint (on line) • Word arrangement v. legal theory/fact pattern (logic) • up to the minute • CD ROM • Internet

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