Hastings Law Journal


Mary L. Heen


This Article examines the Supreme Court's interpretive approach in recent tax cases. Although the Supreme Court increasingly has applied a "plain meaning" approach in statutory construction cases, the Court does not consistently follow any one approach to statutory interpretation. Professor Heen argues that the Court's inconsistency leads to doctrinal incoherence, as illustrated by three recent tax decisions in which the Court used different interpretive approaches in construing the same statutory provision. Even if the plain meaning approach were more consistently applied as a decision-making procedure in tax cases, misinterpretations of the tax code would result from the inherent limitations of that approach.

A strict application of plain meaning keeps the Court from considering the tax code's interpretive context and policy background and, at the same time, makes deference to the Treasury's expertise less likely. Professor Heen concludes that the broader implications of any increased reliance on "plain meaning" in tax cases must be carefully evaluated in light of costs and benefits, including the costs of legislative correction and the relative risks of agency capture, taking into account the roles played by the various governmental branches in the development of tax law.

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