Section of Taxation Publications

VOL. 61
NO. 1
FALL 2007

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Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.

Textualism and Intentionalism in Tax Litigation
David F. Shores*

*Professor of Law, Wake Forest University School of Law; University of Iowa, B.B.A., 1965;
University of Iowa, J.D., 1967; Georgetown University Law Center, LL.M (Taxation), 1969.


Tax cases frequently turn on issues of statutory construction. The statute might be general in nature, such as section 162, which allows a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Alternatively, the statute might be highly specific, providing a clear answer to the question at hand. General statutory provisions of the first type bristle with interpretative questions. For example, what is the meaning of “ordinary and necessary?” What is a deductible “expense,” as opposed to a nondeductible capital expenditure? When is an expense “paid or incurred,” and does it matter whether the taxpayer reports income using the cash or accrual method of accounting? What is the meaning of “carrying on” a trade or business? What is a “trade or business?” In answering questions of this type, courts will often look to legislative history, statutory structure, or tax policy in an effort to determine exactly what Congress intended when it adopted the provision or term in question. Such an intentionalist approach is, of course, in keeping with conventional rules of statutory construction that call for a determination of congressional intent when no clear answer can be obtained by applying the statutory language to the issue at hand.

In some instances the statute will be highly specific. A court might then adopt a textual or plain meaning approach to statutory interpretation, closing its eyes to legislative history, statutory structure, or tax policy, suggesting a congressional intent at odds with the result dictated by the language of the statute. Indeed, the court might not view such a case as involving an issue of statutory construction at all. To construct or construe a statute implies a need to determine its meaning. But, if the meaning is clear, the court merely needs to apply the statute according to its text. Construction is unnecessary. It is in cases of this type that courts are likely to part company, with some taking a textual approach, and others adopting an intentionalist approach to reach a result viewed as consistent with legislative intent in spite of its inconsistency with the statutory language. As the Supreme Court has observed, “the plain meaning of the statute should be conclusive except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’” It is the rare case of this type that is the subject of this Article.


Published by
Section of Taxation, American Bar Association
in Collaboration with the
Georgetown University Law Center


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