Thoughtful Article on the Meek and Aggressive Tax Practitioner (10/1/12)

In the UH Tax Procedure class, we studied the gradations in confidence in tax reporting positions.  I cut and paste this from the Tax Procedure book:

The tax law has developed the following jargon in quantifying levels of confidence in reporting return positions, with the percentage being the projected chances for success if litigated:
nonfrivolous = 10 percent or better chance of winning
reasonable basis = 20 to 25 % or better chance of winning
realistic possibility of success = 33 1/3 % or better chance of winning
substantial authority = perhaps 35 to 40 % chance of winning
more likely than not = more than 50 % chance of winning
probable = 70 to 80 % chance of winning 

These standards can be stated in the inverse:
nonfrivolous = 90% chance of losing
reasonable basis = 75-80% chance of losing
realistic possibility of success = 66 2/3 % chance of losing
substantial authority = perhaps 60 to 65% chance of losing
more likely than not = less than 50 % chance of losing
probable = 20-30 % chance of losing

An Interesting Ethical Question (9/27/12)

The Volokh Conspiracy Blog has an interesting blog at the intersection of NFL Football and Legal Ethics.  Eugene Volokh, An Interesting Ethical Question (The Volokh Conspiracy 9/26/12), here.

The lead in is:

Prof. Richard Painter (Legal Ethics Forum) asks: 

If a referee’s call is wrong, does the “winning” player have to say: “Sorry ref, you got it wrong; I did not have the ball; the other guy had it”? No, he does not (please let me know if there is a NFL rule on this that I am not aware of). 

What are the obligations of a lawyer if a judge makes or is about to make a wrong call in litigation? See Rule 3.3. The answer turns on why the judge is getting it wrong. 

What about the same issue in the context of an IRS agent or the Tax Court making the same call?