Document Type


Publication Title

Virginia Tax Review

Publication Date

Winter 2016


Is the United States Tax Court part of the Executive Branch of government? One would expect that question would be capable of being definitively answered without considerable difficulty. And as recently expressed by the Court of Appeals for the District of Columbia Circuit, that indeed is the case. In the course of addressing a challenge to the President's ability to remove a judge of the Tax Court for cause on separation of powers grounds, the D.C. Circuit rejected the premise that the removal power implicates two branches of government: "the Tax Court exercises Executive authority as part of the Executive Branch."

This seemingly innocuous observation by the D.C. Circuit is difficult to reconcile with the congressional treatment of the United States Tax Court. Although the court originated as an executive agency in the Board of Tax Appeals (later to be renamed the Tax Court of the United States that expressly remained an executive agency), Congress sought to change the court's constitutional status through the Tax Reform Act of 1969. Troubled by the propriety of one executive agency sitting in judgment of the determinations of another, Congress eliminated the statutory reference to the Tax Court being an independent agency within the Executive Branch. In its place Congress established "under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court." The Senate report accompanying the legislation indicated that the statutory change was intended to establish the Tax Court as an Article I court, "rather than an executive agency." Given the statutory change to the Tax Court's charter and the committee reports attendant to the 1969 legislative revision, the Tax Court comfortably observed in a 1971 case that Congress "removed the Tax Court from the Executive Branch" by establishing it as court of record under Article I.


This article first appeared in the Virginia Tax Review in Volume 35, Number 02, Winter 2016.



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