Abstract
This chapter advances the claim that judges have an ethical obligation of competence that requires them to enhance their knowledge about language (in the context of statutory interpretation) and income tax law design and policy. It articulates some of the foundational understandings that support that competence and provides a simple hierarchy of approaches to interpreting income tax law. It concludes by contending that greater competence is not only more ethical but also advances other important societal goals fulfilled by the imposition of income tax systems.
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Notes
- 1.
Occasionally the requirement of competence is made express. See, for example, Canadian Judicial Council (2004) Ethical principles for judges. https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf. Accessed 1 Aug 2018 which includes a “Diligence” requirement. Judges are required to “take reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for judicial office” (see principle 4.2). The obligation to maintain and enhance knowledge is to be balanced against the “burden of work, the adequacy of resources including staff, technical assistance and time for research, deliberation, writing and other judicial duties… [and] [t]he importance of the judge’s responsibility to his or her family is also recognized.” (Commentary 4.3).
- 2.
For the art and archeology metaphor see Sullivan (2016, 29).
- 3.
See e.g., Eskridge (2016, 27) “Statutory interpretation has always been, and ought to be, a pragmatic exercise in textual exegesis in light of democratic projects and the larger norms that bind together our community.”
- 4.
See e.g., Beaulac (2008, 5) “…a satisfactory interpretation of a statute cannot stop after the examination of the communicational support of normativity, that is, after looking at the legislative text; it must continue to include more elements of what has been recognized over the years as a legitimate means of ascertaining statutory meaning….”.; Sullivan (2016, 32) “The second assumption [that the legislature’s views are discoverable by judges] seems dubious in light of modern theories of meaning that emphasize the role of the listener or reader in constructing the meaning of a communication.”; Driedger (1983, 3) “Words, when read by themselves in the abstract can hardly be said to have meanings.”; Sullivan (2002, 161) “The meaning of a word depends on the context in which it is used. This basic principle of communication applies to all texts, including legislation.”; Côté (2000, 280–281) “Without going so far as to say that words have no intrinsic meaning, their dependence on context for real meaning must be recognized.”; Sullivan (2014, 8) “Research in psycholinguistics has shown that the way readers understand the words of a text depends on the expectations they bring to their reading. While these expectations are rooted in linguistic competence and shared linguistic convention, they are also dependent on the wide-ranging knowledge, beliefs, values and experience that readers have stored in their brain.”
- 5.
- 6.
See Eskridge (2016, 17) …“evidence from several fields of law suggests that a stringent canons-based textualism generates less certainty in the law and constrains judges less reliably than more context-based approaches….”
- 7.
The position aligns with the school of thought that suggests judges are “cooperative partners” in making sense of statutes and not simply agents of the legislature.
- 8.
In some idiosyncratic jurisdictions, like the United States, perhaps under the control should be replaced with allocated to the benefit of.
- 9.
Hart and Sacks (1958) famously asserted that the “hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”
- 10.
This list of terms is drawn from West (2018).
- 11.
See e.g., Inland Revenue Commissioners v Westminster (Duke), [1936] AC 1 at 19 (HL).
- 12.
See e.g., Hansen et al (1992, 679). The authors cite a quote from one of Judge Learned Hand’s decisions where he asserts, “[o]ver and over again the courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible” (Commissioner v. Newman, 159 F.2d 848 (CA-2, 1947) as illustrative of the kind of language that reinforces the perception that “[t]he tax practitioner’s ultimate goal is tax minimization for clients. This goal has the blessing of the courts…”
- 13.
These kinds of judicial tax-minimization statements might be contrasted with claims by some tax lawyers and academics that, for example, a citizen owes “his government and his neighbours the duty of paying his share of taxes”. Imagine if judges repeated that mantra (which may similarly not help resolve the cases before them) instead of the tax minimization mantra. Cahn et al. (1952, 9) (statements by Jerome Hellerstein).
- 14.
Alm and Torgler (2011, 641) “…compliance is decreased, often collapsing virtually to zero, when there is a social expression via group selection by voting of the fiscal regime of a willingness to tolerate tax evasion, such as a majority vote in favor of reduced enforcement on detected evasion; however, compliance can be increased when there is a social expression of an unwillingness to tolerate tax evasion.”
- 15.
For the connection between norms (and enforcement) and compliance see Lederman (2003).
- 16.
Alm and Torgler (2011, 640) “These surveys conclude, among other things, ….that compliance is higher if a “moral appeal” to taxpayer[s] is made by government, that the low social standing of tax evaders can be an effective deterrent…”
- 17.
See e.g., Bank (2017), arguing that the path to acceptability of tax avoidance has been longer than the recent spate of public stories would suggest.
- 18.
See e.g., Payne and Railborn (2018), who argue that using “the strict letter of the law” to avoid paying tax is ethically unacceptable in a globalized world. Presumably this argument could be extended to suggest that where judges engage in the identified behaviour the ethical ramifications are similarly (perhaps more) troubling.
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Brooks, K. (2020). The Ethical Tax Judge. In: van Brederode, R. (eds) Ethics and Taxation. Springer, Singapore. https://doi.org/10.1007/978-981-15-0089-3_16
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