Susannah Camic Tahk, The Tax Separation of Powers, 78 TAX LAW. 167 (Winter 2025).
Abstract
Traditional accounts of the separation of powers start from a familiar premise: within the federal government, different branches perform different functions. Put simply, the legislature writes the law and the judiciary interprets it. Using original data from the first large-scale comparative study of the tax judiciary and legislature, this Article finds that the separation of powers in tax law diverges from this standard account. In tax, the branches not only perform different functions, but they also deal with different subjects. This Article empirically documents how some sections of the Internal Revenue Code belong to the Tax Court and others belong to Congress. Those sections differ significantly in their substance. This Article proposes a theoretical framework for understanding this previously unnoticed substantive separation between the Tax Court’s “judicial Code” and Congress’s “legislative Code.”
The Article makes three key contributions to the existing literature. First, its large-scale comparative study provides the first account of the separation of powers in tax law. Second, the Article theorizes the separation and examines potential reasons for it, offering explanations in terms of textual factors and factors of political economy. Third, the Article draws out what its novel account brings to the broader literature on separation of powers. Specifically, the idea that separation of powers can be about substance as well as function upends many of the literature’s foundational assumptions and introduces a crucial new dimension to the traditional analysis. The Article also considers normative implications of its findings for both tax law and broader questions about distribution of government power.
