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Kuretski v. Commissioner: The Tax Court’s Identity Crisis

By Spencer P. Williams

The Tax Court’s independence is an essential characteristic in maintaining the integrity of its decisions. Congress and the U.S. Supreme Court have provided for and recognized the Tax Court’s independence from its executive branch past. Nevertheless, a recent decision of the D.C. Circuit Court of Appeals has potentially undermined the Tax Court’s independence. In Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 2309, 191 L. Ed. 2d 977 (2015), the D.C. Circuit heard a challenge to Section 7443(f), which provides for presidential removal of Tax Court judges as a violation of the separation of powers. Kuretski held that despite the exclusively judicial nature of the Tax Court and its statutory designation as an Article I court of record, the Tax Court exercises its powers as an executive branch entity. This article argues that the Kuretski decision misinterprets Supreme Court precedent and undermines decades of development of the Tax Court.

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