Teaching Tax Law

Just as growing older encourages you to take cognizance of the effect of your family of origin on your later experiences, phobias and decisions, so growing older in your profession should encourage you to think of the ways that you learned about the profession. Since I am more of a "thinker" than anything else, I think a lot about the ways I learn and was taught. The focus of this and the next three essays is to consider how I learned, and how I think one ought to teach, tax law. Then, I will look at America's first tax, which spawned a tax result. For similar thoughts on constitutional law, see here.

Tax Law, the "Typical" Approach

The typical course in law school is case-driven. Sometimes policy-oriented courses are aware of political or philosophical argument, but mostly law school teaching, in my experience, is tied to the casebook. So it was with my experience of learning "fed tax" as it was called. I always find most interesting where people begin a class and why the begin where they begin. I was often never told why a course started where it did; I am not sure that the professor actually knew, except that was where the book began.

Let's use "fed tax" as an example. We began with the subject of "income," its definition and a somewhat cutesy case on finding a treasure trove of things and deciding if it constituted "income." We then quickly went to the Internal Revenue Code provisions which looked at income and then began to make distinctions between taxable and non-taxable income. By that time, my head was swimming with objections and questions, but I decided to go along for the ride because, frankly, I just wanted to be # 1 in the class and get a high-paying job. I admit it. I was 45 years old at the time, had a family, felt I wouldn't function well in lots of law firm contexts and wanted the most "prestigious" job in the private sector after law school.

But now it is 10 years later and I don't really have a need to do many things simply to please others. The high-paying job is long gone, as is a subsequent one. But my objections and questions have become, if anything, more urgent. Here they are. When you begin a new subject, it seems to me that you need to pay loads of attention to three issues: the authority that justifies your field, the history which explains why your field is as it is, the way your field is basically divided. Thus, for "fed tax," you would need to spend a lot of time on the nature of the federal government as a taxing entity, some historical "moves" to implement federal taxes over the years and the definitions of various taxes that the government could assess.

For example, I think you ought begin a course on tax with the issue of constitutional and statutory authority to tax as well as the basic kinds of tax that can be imposed (i.e., sales, real property, personal, asset, income, excise, consumption, etc.). I think you also ought to begin with a historical "moment" or occasion in which a tax was imposed or contemplated and do some deep study regarding the web of historical issues that arose because of that tax/attempt. That is, the goal of studying "fed tax" is to connect taxation with our history, our concept of government and larger themes in the story of this land.

I propose in this and the next two essays that a fruitful entree into federal taxation is to study the Federal Property Tax Act of 1798 and its repercussions. If you did a complete job you would have to know the impetus for the tax (i.e., a threatened war with France), the statutes authorizing the tax, the archival issues in the past five years relating to the discovery of some of the actual assessment and property lists (PA and CT), the immediate result of imposing the tax (the Fries rebellion in Pennsylvania), the longer-term result (indictment and conviction of Fries for treason), the pardon of Fries, the impeachment of US Supreme Court Justice Samuel Chase, who was one of the two judges in the Fries trial at the circuit court level and may have committed an impeachable offense at the trial, and finally, the doctrine of judicial independence that grew up largely in response to the Chase impeachment. By so studying a tax law, we will also acquaint students with how to read an old (1798) statute closely as well as the historic debate over the meaning of impeachment. In short, by looking at tax law in this more "organic" way, you will provide a mini-legal education to students before you even get to the concept of "income."

Finally, by looking at tax law in this way, you will encourage students to look at other event in US history to try to understand important "tax" moments as well as other events tied to tax events. I could see some students wanting to write a paper on the 1893 attempt (and US Supreme Court striking down of the attempt) to impose an income tax or the debates surrounding the passage of thr 26th Amendment, the nature of the first four or five revenue acts, the notion of an income tax "code" in 1937 or other significant tax "moments" in US history.

Conclusions

Tax law is probably the most balkanized subject in the law school curriculum. No one tries to connect it with any other subject in the curriculum. No constitutional law professor cites a tax case; contracts, torts, and property professors ignore it. Occasionally mention is made of it in courses on wills or trusts. But what I am proposing here is to integrate tax law into the heart of the law school curriculum. Legal education would never look the same again.

Let's turn now to the Federal Property Tax law of 1798.

2961