Justice Scalia, speaking at the William & Mary Law School 2014 commencement on the topic of the reform of legal education, said: “One can practice various aspects of law without knowing much about the whole field. I expect that someone could be taught to be an expert real-estate conveyancer in six weeks, or a tax advisor in six months.”1
I was surprised to see Justice Scalia using tax law in this example given its reputation for being a technical field where practitioners takes years to develop competency. For instance, Justice Scalia previously said that if members of the public watched Supreme Court proceedings on television they would realize the Court is “not usually contemplating our navel, should there be a right to this or that? Should there be a right to abortion? [T]hat’s not usually what we’re doing. We’re usually dealing with the [I]nternal [R]evenue [C]ode, with ERISA, with patent law, with all sorts of dull stuff that only a lawyer could understand and perhaps get interested in.”2
So is tax law similar to “patent law” and “dull stuff that only a lawyer could understand” or is it a discipline that one can advise on after six months of study?
Here’s what the esteemed Judge Learned Hand of the Second Circuit said about tax law:
the words of such an act as the Income Tax, for example, merely dance before my eyes in a meaningless procession: cross-reference to cross-reference, exception upon exception-couched in abstract terms that offer no handle to seize hold of-leave in my mind only a confused sense of some vitally important, but successfully concealed, purport, which it is my duty to extract, but which is within my power, if at all, only after the most inordinate expenditure of time.3
Justice Scalia has referred to Judge Hand in 235 opinions (including dissents).4 If Judge Hand required “the most inordinate expenditure of time” to interpret a single provision of tax law, is it realistic for Justice Scalia to characterize being a tax advisor as something that could be achieved in six months of study?
The title tax advisor is not bestowed on a professional lightly. For instance, “tax advisor” is the title the Treasury Department assigns to non-lawyer accountants and economists who work in its Office of Tax Policy.5
Justice Scalia has said: “Words have meaning. And their meaning doesn’t change.”6 I think it is unreasonable to associate the meaning of the term “tax advisor” with one who has studied tax law for six months. The tax law does have the status of “enrolled agent.” An enrolled agent must pass an exam. It is likely true that many a college graduates with six months of diligent study could pass the enrolled agent exam. However, few tax professionals would attach the term “tax advisor” to a newly-minted enrolled agent, and few taxpayers would turn to such a person for much more than tax return preparation. As “words have meaning,” perhaps Justice Scalia should have referred to “enrolled agent” or “tax return preparer” in his commencement speech.
1 Antonin Scalia, Reflections on the Future of the Legal Academy, May 11, 2014.
3 Learned Hand, Eulogy of Thomas Walter Swan, 57 Yale L. J. 167, 169 (1947), quoted in Welder v. United States, 329 F. Supp. at 741-42 (S. D. Tex. 1971).
4 Lexis search of the Supreme Court database on May 25, 2014 for opinions by Justice Scalia that refer to “Learned Hand.”
5 See, e.g., Hillsboro Nat’l Bank v. Commissioner, 460 U.S. 370, 394 (1983) (referring to the “statement of Dr. T. S. Adams, tax advisor, Treasury Department”).