Does the Golsen Rule Apply to Tax Court Rules?

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For many years the Tax Court did not concern itself with circuit court precedent in deciding cases and decided cases as it thought best.  The leading case for the Tax Court’s thinking on this issue was Lawrence v. Commissioner, 27 T.C. 713 (1957), decided based on the nationwide jurisdiction of the Tax Court and the desire for uniform application of federal tax laws, which caused the creation of Court almost a century ago:

One of the difficult problems which confronted the Tax Court, soon after it was created in 1926 as the Board of Tax Appeals, was what to do when an issue came before it again after a Court of Appeals had reversed its prior decision on that point. Clearly, it must thoroughly reconsider the problem in the light of the reasoning of the reversing appellate court and, if convinced thereby, the obvious procedure is to follow the higher court. But if still of the opinion that its original result was right, a court of national jurisdiction to avoid confusion should follow its own honest beliefs until the Supreme Court decides the point. The Tax Court early concluded that it should decide all cases as it thought right.

The downside of that practice was that it forced petitioners or the IRS with favorable circuit court precedent to file an appeal and obtain an easy victory in the circuit court overturning the decision of the Tax Court.  Eventually, the Tax Court decided that making taxpayers and the IRS engage in a two-step process to reach an outcome already dictated by circuit precedent did not make sense and it announced a change in its practice in the case of Golsen v. Commissioner, 54 T.C. 742 (1970).  Reversing the Lawrence decision, the Tax Court held:

we think that we are in any event bound by Goldman since it was decided by the Court of Appeals for the same circuit within which the present case arises. In thus concluding that we must follow Goldman, we recognize the contrary thrust of the oft-criticized case of Arthur L. Lawrence, 27 T.C. 713. Notwithstanding a number of the considerations which originally led us to that decision, it is our best judgment that better judicial administration. requires us to follow a Court of Appeals decision which is squarely in point where appeal from our decision lies to that Court of Appeals and to that court alone.

Fifty years later the Tax Court still follows Golsen and even if the Tax Court has issued a precedential opinion on an issue, the Tax Court will follow the precedent of the circuit to which the case will be appealed.  For that reason, the place where the taxpayer resides at the time of filing the petition can have an outcome-changing impact.


While the Tax Court has bowed to the will of circuits in the cases it decides, does or should the same recognition of authority apply to the rules it creates?  If the Tax Court has a rule that conflicts with circuit precedent, should the Tax Court follow the circuit precedent in writing its rules?  You might question how the Tax Court can write rules that reflect varying precedent among the circuits.  Certainly, writing a set of rules that vary based on circuit precedent would be challenging and in most rules unnecessary, but what about rules that apply to cases appealable to only one circuit?  If every case the Tax Court decides will go to one circuit, shouldn’t the rules of the Tax Court follow the law of the circuit rather than the position of the Tax Court?  Such a view of the rules would seem faithful to the precedent in Golsen.  It would also alert parties practicing before it of the law that would be applied in a given situation, rather than having a rule that could mislead practitioners or the 70% of petitioners who file pro se.

Tax Court Rule 13(c) provides:

Timely Petition Required: In all cases, the jurisdiction of the Court also depends on the timely filing of a petition.

The Court may not need a rule that states a legal conclusion, but if it has such a rule and if the Golsen rule applies to the Court’s rules, it would seem that Tax Court Rule 13(c) should recognize that in two of the types of cases it describes in Rule 13(b) the jurisdiction of the Court does not depend on timely filing.  Certainly, timely filing is very important but in whistleblower cases and in passport cases timely filing is not a jurisdictional prerequisite.  We have discussed the decisions in the D.C. Circuit on the jurisdictional issue, holding that timely filing is not a jurisdictional prerequisite here and here

Since the appeal of any whistleblower case or passport case from the Tax Court would go only to the D.C. Circuit under the catchall language at the end of IRC 7482(b)(1), it would seem that precedent from that circuit would control the outcome of a Tax Court case regarding jurisdiction under the Golsen rule.  If it would control the outcome of a Tax Court case in which the Court was writing an opinion, why wouldn’t the circuit court precedent also control the Tax Court rules?


  1. Robert Kantowitz says

    Golsen is premised on judicial economy and implicitly on litigation economy more broadly: don’t waste everyone’s time and money by requiring an appeal whose outcome is a foregone conclusion. That should apply to rules as well when the failure to do so would allow the loser to take the appeal and easily and certainly obtain a reversal. One very small area, perhaps, in which the Tax Court might properly have greater scope to depart from Circuit precedent than a District Court is where the court is convinced that the Circuit would reverse itself, but as anyone who is familiar with appellate procedure is aware, this occurs only rarely, mainly when there has been an intervening Supreme Court case on point or that has unavoidable implications and the Circuit has not yet formally overruled its old jurisprudence. A Circuit split is not enough to justify this even if the Tax Court is convinced that the Supreme Court might eventually overrule the Circuit in question.

  2. Tom Greenaway says

    Thanks for posting on this topic, Keith. For me, it raises a related old question that, as far as I know, has not been resolved as a general matter (but I haven’t looked at the issue in a long while, I admit).

    Proceedings in the Tax Court are conducted under the Tax Court Rules and the Federal Rules of Evidence applicable to trials without a jury in the District Court of the District of Columbia. Therefore, D.C. Circuit law should probably control on admissibility questions. E.g., Johnston v. Commissioner, 119 T.C. 27, 33 (2002) (attorney-client privilege question decided under D.C. Circuit precedent). As far as I know, however, the Tax Court has never squarely adopted this proposition as a general matter. In the right case, if controlling geographic circuit law would provide a more favorable answer than the DC Circuit law under the Golsen rule, it probably makes sense to make that argument.

    Having said that, the contested evidence probably would come in “for what it’s worth” and I can’t remember a Tax Court appeal that turned on an evidentiary objection.

    Curious to hear others’ thoughts on this one.

    • Carl Smith says

      Tom, In 2015, Congress amended section 7453 which you paraphrased to eliminate the reference to the D.C. District Court. That section now reads: “Except in the case of proceedings conducted under section 7436(c) or 7463, the proceedings of the Tax Court and its divisions shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Tax Court may prescribe and in accordance with the Federal Rules of Evidence.” See Pub. L. 114-113, Div. Q, sec. 425(a). Prior to the amendment, the Tax Court had been inconsistent on applying evidentiary rules. Sometimes, it would use D.C. Cir. precedents, and sometimes, it would use Golsen to the Circuit of residence. The amendment was intended to have the Tax Court, under Golsen, follow the Circuit of residence in all evidentiary rulings.

  3. Carl Smith says


    On the related question of whether a court of appeals must give deference to a Tax Court rule stating that a filing deadline is jurisdictional, here’s the view of former Judge Posner in Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572, 577 (7th Cir. 1999) (involving the time period to file a section 7476 declaratory judgment petition in the Tax Court and Tax Court Rule 210(c)(3)):

    Taking a tack independent of Brockamp, the government argues that because the Tax Court, being a court of limited jurisdiction (Brockamp was a refund case and thus originated in a district court rather than the Tax Court), lacks the power to recognize equitable defenses not specified by Congress. This is also the position of the Tax Court. Rule of Practice and Procedure of U.S. Tax Court 210(c)(3); Calvert Anesthesia Associates v. Commissioner, 110 T.C. 285 (1998); Estate of Rosenberg v. Commissioner, 73 T.C. 1014, 1017-18 (1980). Rule 210(c)(3) states that the Tax Court does not have “jurisdiction” over a suit for declaratory judgment under 26 U.S.C. § 7476 if it is filed after the statutory deadline.

    Had Congress delegated to the Tax Court the power to establish nonwaivable jurisdictional rules, akin to those that limit the time for taking appeals, e.g., Fed. R. App. P. 26(b); Torres v. INS, 144 F.3d 472, 475 (7th Cir. 1998); Nowak v. INS, 94 F.3d 390, 391 (7th Cir. 1996), we would be bound. But neither the government, nor the Tax Court in the Calvert or Rosenberg decisions, has claimed this; nor have we found any indication that this was Congress’s intention in authorizing the Tax Court to adopt procedural rules. 26 U.S.C. § 7453. If, therefore, Rule 210(c)(3) is merely the Tax Court’s interpretation of the Internal Revenue Code, and of the principles of federal common law that guide the resolution of procedural issues to which the Code does not speak, we are not bound. The Tax Court is a trial court rather than an appellate court, and its views on questions of law are not entitled to deference from the courts of appeals. Prussner v. United States, 896 F.2d 218, 224 (7th Cir. 1990) (en banc); Cadwallader v. Commissioner, 919 F.2d 1273, 1274 (7th Cir. 1990).

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