Is The Tax Court an Agency or a Court for FOIA Purposes?

0 Flares 0 Flares ×

We welcome back frequent guest blogger Carl Smith discussing a different wrinkle in the Kuretski case – getting information from the Tax Court if it is an agency.  Keith  

For purposes of the constitutionality of the President’s removal power over Tax Court judge at section 7443(f), whether the Tax Court is a court, or an Executive agency, or exercises the judicial power of the United States are issues that were litigated in Kuretski v. Commissioner, 755 F.3d 529 (D.C. Cir. 2014), and that continue to be litigated in other cases before the Tax Court.  In Kuretski, the D.C. Circuit held that the Tax Court was part of the Executive Branch, so section 7443(f) presented no constitutionally-impermissible inter-branch removal power.  Whether the Tax Court is a court or agency for statutory — i.e., non-constitutional — purposes has also been the subject of litigation in the past, and it will apparently soon again be litigated in the context of the Freedom of Information Act (FOIA).

This post is to alert readers to an impending litigation in the D.C. district court that will force that court to confront the issue of the Tax Court’s status, since the Tax Court recently denied a FOIA request because, according to the Tax Court, it is a “court” for purposes of the exception to the application of FOIA.  As will be discussed below, the FOIA suit will shortly be brought by the intrepid pro se taxpayer Ronald Byers, who recently won a venue dispute but lost the underlying other issues in a CDP levy case named Byers v. Commissioner, 740 F.3d 668 (D.C. Cir. 2014).  Disclaimer:  I have had no hand in encouraging Mr. Byers to bring this FOIA suit.


Earlier this year, Mr. Byers made a FOIA request to the Clerk of the Tax Court for copies of certain of the Tax Court’s internal procedures.

5 U.S.C. sec. 552(a) requires that “[e]ach agency shall make available to the public information . . . .”   An “agency,” for purposes of FOIA, “as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”  5 U.S.C. sec. 552(f)(1).  5 U.S.C. sec. 551(1), in relevant part, states that “‘agency’ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include– . . . (B)  the courts of the United States”.  IRC sec. 7441 establishes the Tax Court as a “court of record” under Article I.

On April 28, 2015, the Tax Court Clerk wrote a letter to Mr. Byers (copying the Chief Judge), stating in full:

This letter is in response to your Freedom of Information Act (FOIA) request, received by the Court on March 18, 2015.


The United States Tax Court is a court of law.  26 U.S.C. sec. 7441; Freytag v. Commissioner, 501 U.S. 868, 891 (1991) (“The Tax Court exercises judicial power to the exclusion of any other functions”).  Consequently, the Tax Court is not an “agency” subject to FOIA.  See 5 U.S.C. sec. 552(f)(1) (incorporating definition of “agency” as set forth in 5 U.S.C. sec. 551(1)).  Section 551(1)(B) of Title 5 provides that an “agency” does not include the courts of the United States. Megibow v. Clerk of the United States Tax Court, 432 F.3d 387 (2d Cir. 2005), aff’g 94 AFTR 2d 5804 (S.D.N.Y. 2004 (holding that the Tax Court is not an “agency” for purposes of FOIA); Ostheimer v. Chumbley, 498 F.Supp. 890,892 (D. Mont. 1980) (same), aff’d, 746 F.2d 1487 (9th Cir. 1984).  Contrary to the assertion in your submission, Kuretski v. Commissioner, 755 F.3d 929, 932 (D.C. Cir. 2014), did not hold that the Tax Court is an “agency” for purposes of FOIA and did not otherwise disturb the well-established law in this regard.  See id. at 944 (stating that Congress established the Tax Court “as a ‘court’ rather than an ‘agency'”).


I have read the two district court opinions cited, and both do not merely rely on the fact that section 7441 calls the Tax Court a “court”, but also on the fact that the Tax Court functionally has the powers of and acts like an Article III court (the Megibow case even citing to and quoting Freytag‘s majority’s reasoning).  If the D.C. Circuit in Mr. Byers’ FOIA case rules that the Tax Court is a “court” for purposes of FOIA, though is part of the Executive Branch for purposes of separation of powers, the D.C. Circuit may not be able to rely on the reasoning of the district courts to the extent that they rely on a functional justification for calling the Tax Court a “court” for purposes of FOIA.  The Courts of Appeals in Megibow and Ostheimer just summarily affirmed the district courts without stating any reasoning (Megibow merely calling the district court’s opinion thorough and well-reasoned).  It appears that no district court or Court of Appeals beyond these two cases has ever ruled on the issue of FOIA’s applicability to the Tax Court.

Interestingly, the D.C. Circuit in Kuretski realized there might be some tension between its holding and Megibow.  Here is what the D.C. Circuit said in Kuretski about Megibow:

And while we have no need to reach the issue here, Congress, in establishing those entities [ — i.e., the Article I Tax Court and the Article I Court of Appeals for the Armed Forces — ] as a “court” rather than an “agency,” perhaps also exempted them from statutes that apply solely to executive “agencies.” Cf. Megibow v. Clerk of the U.S. Tax Court, No. 04-3321, 2004 U.S. Dist. LEXIS 17698, at *13-22 (S.D.N.Y. Aug. 31, 2004) (Tax Court is a “court of the United States” and not an “agency” under the Administrative Procedure Act, 5 U.S.C. § 551(1)), aff’d, 432 F.3d 387 (2d Cir. 2005) (per curiam).

Kuretski, 755 F.3d at 744.

The goal of Mr. Byers’ suit apparently is to force the D.C. Circuit to reach the issue that it only speculated about in Kuretski.  Currently pending before the Senate is a bill, S. 903, that might affect this FOIA litigation, as it would add a new sentence to section 7441 reading:  “The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government.”We’ll see what happens.



Carlton Smith About Carlton Smith

Carlton M. Smith worked (as an associate and partner) at Roberts & Holland LLP in Manhattan from 1983-1999. From 2003 to 2013, he was the Director of the Cardozo School of Law tax clinic. In his retirement, he volunteers with the tax clinic at Harvard, where he was Acting Director from January to June 2019.


  1. D. Michael O'Meara says

    As it presently stands; it is NOT a court of law or equity, it IS a “Court of Record” as so stated in the current statute — therefore, it may make decisions administratively with open and standing consequences to Article III courts. Even, the IRS chief counsel issues AOD (Action on Decisions) on whether the IRS will follow or not follow Tax Court’s opinion.

  2. If the D.C. Circuit in Kuretski is right, then the Tax Court better budget ample funds for its new FOIA disclosure unit. Despite Kuretski’s speculation, I don’t see how an entity that exercises Executive Branch authority would not also be an agency subject to the FOIA.

    The FOIA definition of “agency” is broadly worded. And that law’s open government purpose fits neatly within a free republic. The Tax Court will therefore be hard-pressed to persuade the D.C. Circuit that, although it exercises authority in the Executive Branch, it is not an agency under the FOIA. I view Kuretski’s dicta about the APA as an implicit warning that the Tax Court could be subject to the FOIA if only someone brought the right case. The intrepid pro se Mr. Byers seems on track to do that.

    Of course, in Mr. Byers’ FOIA case the D.C. Circuit (ultimately) could “distinguish” Kuretski. But how could it do other than (a) overrule Kuretski en banc or (b) effectively decide that the United States Tax Court is now the United States Tax Chameleon Court-Agency?

    I would ask that Carl update his FOIA post to include some cases to which he only alludes. He tells us, “[w]hether the Tax Court is a court or agency for statutory — i.e., non-constitutional — purposes has also been the subject of litigation in the past….” Off the top of my head, I cannot recall that litigation or its outcomes.

    As for the Senate bill that Carl cites, I don’t see how such a law would help the Tax Court in Mr. Byers’ case. If Kuretski is right, then the Tax Court’s denial of Mr. Byers’ FOIA request is wrong. Congress’s mere statement that the Tax Court is outside the Executive Branch would not conclude the matter.

    So the Tax Court might be subject to the Freedom of Information Act. That means another federal government component’s records would be subject to public inspection and disclosure. Would that prospect not redound to the public good?

    • Carl Smith says

      The case law about the status of the Tax Court for statutory purposes that I mentioned in the quote in the first paragraph was, at least, Megibow and Ostheimer, which cases were cited by the Tax Court in its letter to Mr. Byers. I have not done an exhaustive search to see in what other statutory contexts the issue has already come up.

Comment Policy: While we all have years of experience as practitioners and attorneys, and while Keith and Les have taught for many years, we think our work is better when we generate input from others. That is one of the reasons we solicit guest posts (and also because of the time it takes to write what we think are high quality posts). Involvement from others makes our site better. That is why we have kept our site open to comments.

If you want to make a public comment, you must identify yourself (using your first and last name) and register by including your email. If you do not, we will remove your comment. In a comment, if you disagree with or intend to criticize someone (such as the poster, another commenter, a party or counsel in a case), you must do so in a respectful manner. We reserve the right to delete comments. If your comment is obnoxious, mean-spirited or violates our sense of decency we will remove the comment. While you have the right to say what you want, you do not have the right to say what you want on our blog.

Speak Your Mind