Giants in Tax Law: Roger John Traynor (10/26/19; 8/26/23)

I am spending more time than perhaps I should reading some old law review articles by giants in the tax law.  I will do a series of posts introducing these giants to younger lawyers whose knowledge of them may be hazy or nonexistent and offering some of the nuggets I have found in my reading.

I start with Roger John Traynor.  Traynor's Wikipiedia entry is here.  Wikipedia reports that Traynor "is widely considered to be one of the most creative and influential judges as well as legal scholars of his time."  Some other items from Wikipedia:

• At Boalt Hall of UC Berkeley, Traynor wrote groundbreaking articles on taxation, while serving as editor-in-chief of the California Law Review, and became a full-time professor in 1936.
• Traynor took leave from Boalt Hall "in 1937 to help the Treasury Department draft the Revenue Act of 1938."

From their work on the 1938 act, and the mitigation provisions specifically, Traynor and two of his colleagues wrote what, in my mind, is one of the finest article ever written on a Code subject, specifically the mitigation provisions (now in §§ 1311-1314 of the 1986 Code).  John M. Maguire, Stanley S. Surrey and Roger John Traynor, Section 820 of the Revenue Act of 1938, 48 Yale L. J. 509 (Part 1), here, and 719 (Part 2), here (1939). Fans of tax history should recognize the co-authors -- Maguire and Surrey, but perhaps more on them later.  If you want a good introduction to the mitigation provisions of the Code, I highly recommend the article.  For grins, I provide at the bottom of this blog entry an anecdote from my personal experience with the mitigation provisions involving yet another giant in the tax law, Harvard Law Dean Erwin Griswold, then Solicitor General of the United States.

Traynor wrote another law review article from his work on the 1938 Revenue Act:  Roger John Traynor, Administrative and Judicial Procedure for Federal Income, Estate, and Gift Taxes-A Criticism and a Proposal, 38 Colum. L. Rev. 1393 (1938).  Unfortunately, I do not have a link to the article.  I obtained a copy from HeinOnLine, here.  But retrieving the article requires subscriptions.  I obtained my copy from the UVA Law Library, but I don't think I am authorized to post it, so I just have to leave readers to their own resources to obtain a copy if they are interested.

Traynor surveys some big issues with tax administration and tax procedure, many of which are still with us today.  I will discuss and quote some of this article:

1.  Traynor laments the process of self-assessment, examination, notice of deficiency, litigation (Board of Tax Appeals (now Tax Court) and district and Claims Court and Courts of Appeals) and how inefficient it is when the taxpayer starts off with all of the relevant facts (certainly as compared with the IRS) which, if the IRS is to protect the revenue, the IRS must learn afresh and may not learn at all.  Traynor is armed with a lot of statistics to back up his arguments.  He proposes a procedure that would force the taxpayer to divulge facts earlier in the process (and be limited to the facts so divulged) so that the IRS can make decisions on the basis of those facts (unless the IRS contests them) and the taxpayer then limited to the record presented to the IRS rather than having de novo review.  (Of course, that happens in the refund suit via the required claim for refund and variance doctrine, but Tax Court litigation in deficiency cases is de novo.)