Ballard v. Commissioner
Annotate this Case
544 U.S. 40 (2005)
- Syllabus |
- Opinion (Ruth Bader Ginsburg) |
- Concurrence (Anthony M. Kennedy) |
- Dissent (William Hubbs Rehnquist)
OPINION OF THE COURT
BALLARD V. COMMISSIONER
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 03-184 AND 03-1034
CLAUDE M. BALLARD, et ux., PETITIONERS
COMMISSIONER OF INTERNAL REVENUE
on writ of certiorari to the united states court of appeals for the eleventh circuit
ESTATE OF BURTON W. KANTER, DECEASED, et al., PETITIONERS
COMMISSIONER OF INTERNAL REVENUE
on writ of certiorari to the united states court of appeals for the seventh circuit
[March 7, 2005]
Justice Ginsburg delivered the opinion of the Court.
These cases concern the Tax Court’s employment of special trial judges, auxiliary officers appointed by the Chief Judge of the Tax Court to assist in the work of the court. See 26 U. S. C. §7443A(a). Unlike Tax Court judges, who are appointed by the President for 15-year terms, see §7443(b), (e), special trial judges have no fixed term of office, §7443A(a). Any case before the Tax Court may be assigned to a special trial judge for hearing. Ultimate decision in cases involving tax deficiencies that exceed $50,000, however, is reserved for the Tax Court. §7443A(c).
Tax Court Rule 183 governs the two-tiered proceedings in which a special trial judge hears the case, but the Tax Court itself renders the final decision. The Rule directs that, after trial and submission of briefs, the special trial judge “shall submit a report, including findings of fact and opinion, to the Chief Judge, and the Chief Judge will assign the case to a Judge … of the Court.” Tax Ct. Rule 183(b), 26 U. S. C. App., p. 1619. In acting on the report, the Tax Court judge to whom the case is assigned must give “[d]ue regard … to the circumstance that the [s]pecial [t]rial [j]udge had the opportunity to evaluate the credibility of the witnesses.” Rule 183(c), ibid. Further, fact findings contained in the report “shall be presumed to be correct.” Ibid. The final Tax Court decision “may adopt the [s]pecial [t]rial [j]udge’s report or may modify it or may reject it in whole or in part.” Ibid.
Until 1983, special trial judge reports, as submitted to the Chief Judge, were made public and were included in the record on appeal. A rule revision that year deleted the requirement that, upon submission of the special trial judge’s report, “a copy … shall forthwith be served on each party.” See Rule 183 note, 81 T. C. 1069–1070 (1984). Correspondingly, the revision deleted the prior provision giving parties an opportunity to set forth “exceptions” to the report. Ibid.[Footnote 1] Coincident with those rule changes, the Tax Court significantly altered its practice in cases referred for trial, but not final decision, to special trial judges. Since the January 16, 1984 effective date of the rule revision, the post-trial report submitted to the Chief Judge, then transmitted to the Tax Court judge assigned to make the final decision, has been both withheld from the public and excluded from the record on appeal. Further, since that time, Tax Court judges have refrained from disclosing, in any case, whether the final decision in fact “modi[fies]” or “reject[s] [the special trial judge’s initial report] in whole or in part.” Cf. Rule 183(c), 26 U. S. C. App., p. 1619. Instead, the final decision invariably begins with a stock statement that the Tax Court judge “agrees with and adopts the opinion of the [s]pecial [t]rial [j]udge.” See, e.g., Investment Research Assoc., Ltd. v. Commissioner, 78 TCM 951, 963 (1999), ¶99,407 RIA Memo TC, pp. 2562–2563. Whether and how the opinion thus adopted deviates from the special trial judge’s original report is never made public.
Petitioners are taxpayers who were unsuccessful in the Tax Court and on appeal. They object to the concealment of the special trial judge’s initial report and, in particular, exclusion of the report from the record on appeal. They urge that, under the Tax Court’s current practice, the parties and the Court of Appeals lack essential information: One cannot tell whether, as Rule 183(c) requires, the final decision reflects “[d]ue regard” for the special trial judge’s “opportunity to evaluate the credibility of [the] witnesses,” and presumes the correctness of that judge’s initial fact findings. We agree that no statute authorizes, and the current text of Rule 183 does not warrant, the concealment at issue. We so hold, mindful that it is routine in federal judicial and administrative decisionmaking both to disclose the initial report of a hearing officer, and to make that report part of the record available to an appellate forum. A departure of the bold character practiced by the Tax Court—the creation and attribution solely to the special trial judge of a superseding report composed in unrevealed collaboration with a regular Tax Court judge—demands, at the very least, full and fair statement in the Tax Court’s own Rules.[Footnote 2]
After repeated Internal Revenue Service audits spanning several years, taxpayers Claude Ballard, Burton W. Kanter, and Robert Lisle received multiple notices of deficiency from the Commissioner of Internal Revenue (Commissioner).[Footnote 3] The Commissioner charged that during the 1970’s and 1980’s, Ballard and Lisle, real estate executives at the Prudential Life Insurance Company of America (Prudential), had an arrangement with Kanter, a tax lawyer and business entrepreneur, under which people seeking to do business with Prudential made payments to corporations controlled by Kanter. Those payments, the Commissioner alleged, were then distributed to Kanter, Ballard, and Lisle, or to entities they controlled. Ballard, Kanter, and Lisle did not report the payments on their individual tax returns. See Investment Research Assoc., 78 TCM, at 1058, ¶99,407 RIA Memo TC, pp. 2672–2673; Ballard v. Commissioner, 321 F. 3d 1037, 1038–1039 (CA11 2003); Brief for Petitioner Ballard 3–4; Brief for Petitioner Kanter 11. After the initial deficiency notices, the Commissioner, in 1994, additionally charged that the taxpayers’ actions were fraudulent. See Investment Research Assoc., 78 TCM, at 966, ¶99,407 RIA Memo TC, p. 2693. As to each asserted deficiency, Ballard, Kanter, and Lisle filed petitions for redetermination in the Tax Court. See Ballard, 321 F. 3d, at 1040.
The Tax Court is composed of 19 regular judges appointed by the President for 15-year terms, and several special trial judges appointed, from time to time, by the Tax Court’s Chief Judge. See 26 U. S. C. §7443(a)–(b), (e), 7443A(a).[Footnote 4] The statute governing the appointment and competence of special trial judges, §7443A,[Footnote 5] prescribes no term of office for them, but sets their salaries at 90% of the salary paid to regular judges of the Tax Court, see §7443A(d). The Tax Court may authorize special trial judges to hear and render final decisions in declaratory judgment proceedings, “small tax cases,” and levy and lien proceedings. See §7443A(b)(1)–(4), (c); Tax Ct. Rule 182, 26 U. S. C. App., p. 1619; Brief for Respondent 3. If the amount of the taxes at issue exceeds $50,000, a special trial judge may be assigned to preside over the trial and issue a report containing recommended factfindings and conclusions as to the taxpayers’ liability, but decisional authority is reserved for the Tax Court. See §7443A(b)(5), (c); Freytag v. Commissioner, 501 U. S. 868, 881–882 (1991) (noting that special trial judges “take testimony, conduct trials, [and] rule on the admissibility of evidence,” but “lack authority to enter a final decision” in certain cases). Tax Court Rule 183 governs the Tax Court’s review of the special trial judge’s findings and opinion. See supra, at 1–2.
After Ballard, Kanter, and Lisle sought review in the Tax Court, the Chief Judge assigned the consolidated case to Special Trial Judge D. Irvin Couvillion for trial. Judge Couvillion presided over a five-week trial during the summer of 1994, and the parties’ briefing was completed in May 1995. App. 7; see also Ballard, 321 F. 3d, at 1040. The post-trial proceedings in the case are not fully memorialized in either the Tax Court’s docket records or its published orders, but certain salient events can be traced. On or before September 2, 1998, Judge Couvillion submitted to the Chief Judge a report containing his findings of fact and opinion, “as required by [Tax Court] Rule 183(b).” Order of Dec. 15, 1999, in No. 43966–85 etc. (TC), App. to Kanter Pet. for Cert. 113a–114a. On September 2, 1998, the Chief Judge assigned the case to Tax Court Judge Howard A. Dawson, Jr., “for review [of the special trial judge’s report], and if approved, for adoption.” Id., at 114a.[Footnote 6] Fifteen months later, on December 15, 1999, the Chief Judge “reassigned” the case “from [Judge] Couvillion to [Judge] Dawson.” Id., at 113a. That same day, Judge Dawson issued the decision of the Tax Court.
Judge Dawson found that Ballard, Kanter, and Lisle had acted with intent to deceive the Commissioner, and held them liable for underpaid taxes and substantial fraud penalties. See, e.g., Investment Research Assoc., 78 TCM, at 1071, 1075, 1085, ¶99,407 RIA Memo TC, pp. 2689, 2692–2693, 2705–2706. In so ruling, Judge Dawson purported to adopt the findings contained in the report submitted by Judge Couvillion: “The Court agrees with and adopts the opinion of the Special Trial Judge, which is set forth below.” Id., at 963, ¶99,407 RIA Memo TC, pp. 2562–2563. Judge Dawson’s decision consists in its entirety of a document, over 600 pages in length, labeled “Opinion of the Special Trial Judge.” Ibid.
The taxpayers came to believe that the document titled “Opinion of the Special Trial Judge” was not in fact a reproduction of Judge Couvillion’s Rule 183(b) report. A declaration, dated August 21, 2000, submitted by Kanter’s attorney, Randall G. Dick, accounts for this belief. Dick attested to conversations with two Tax Court judges regarding the Tax Court’s decision. According to the declaration, the judges told Dick that in the Rule 183(b) report submitted to the Chief Judge, Judge Couvillion had concluded that Ballard, Kanter, and Lisle did not owe taxes with respect to payments made by certain individuals seeking to do business with Prudential, and that the fraud penalty was not applicable. Decl. of Randall G. Dick ¶4, App. to Ballard Pet. for Cert. 308a–309a. Attorney Dick’s declaration further stated:
“In my conversations with the judges of the Tax Court, I was told the following: That substantial sections of the opinion were not written by Judge Couvillion, and that those sections containing findings related to the credibility of witnesses and findings related to fraud were wholly contrary to the findings made by Judge Couvillion in his report. The changes to Judge Couvillion’s findings relating to credibility and fraud were made by Judge Dawson.” Id., ¶5, at 309a.
Concerned that Judge Dawson had modified or rejected special trial judge findings tending in their favor, see Tax Ct. Rule 183(c), the taxpayers filed three successive motions in the Tax Court; each motion sought access to the report Special Trial Judge Couvillion had submitted to the Chief Judge or, in the alternative, permission to place the special trial judge’s report under seal in the record on appeal. See Order of Aug. 30, 2000, in No. 43966–85 etc. (TC), App. to Kanter Pet. for Cert. 99a–101a; Motion of May 25, 2000, in No. 43966–85 etc. (TC), App. to Kanter Pet. for Cert. 105a. The Tax Court denied the motions. See Order of Aug. 30, 2000, supra, at 100a–101a, 103a. In response to the taxpayers’ third motion, filed in August 2000, the Tax Court elaborated: “Judge Dawson states and Special Trial Judge Couvillion agrees, that, after a meticulous and time-consuming review of the complex record in these cases, Judge Dawson adopted the findings of fact and opinion of Special Trial Judge Couvillion, … Judge Dawson presumed the findings of fact recommended by Special Trial Judge Couvillion were correct, and … Judge Dawson gave due regard” to Judge Couvillion’s credibility findings. Id., at 102a. To the extent that the taxpayers sought “any preliminary drafts” of the special trial judge’s report, the Tax Court added, such documents are “not subject to production because they relate to the internal deliberative processes of the Court.” Id., at 101a (quoting Order of Apr. 26, 2000, in No. 43966–85 (TC), supra, at 109a).
Appeals from Tax Court decisions are taken to the court of appeals for the circuit in which the taxpayer resides. 26 U. S. C. §7482(b)(1)(A). Ballard therefore appealed to the Eleventh Circuit, Kanter to the Seventh Circuit, and Lisle to the Fifth Circuit. All three Courts of Appeals accepted the Commissioner’s argument that the special trial judge’s signature on the Tax Court’s final decision rendered that decision in fact Special Trial Judge Couvillion’s report. Estate of Kanter v. Commissioner, 337 F. 3d 833, 840–841 (CA7 2003); Ballard, 321 F. 3d, at 1042; accord Estate of Lisle v. Commissioner, 341 F. 3d 364, 384 (CA5 2003) (adopting the reasoning of the Seventh and Eleventh Circuits without elaboration). The appeals courts further agreed with the Commissioner that the special trial judge’s original report, submitted to the Chief Judge pursuant to Rule 183(b), qualified as a confidential document, shielded as part of the Tax Court’s internal deliberative process. See Kanter, 337 F. 3d, at 841–844; Ballard, 321 F. 3d, at 1042–1043; accord Estate of Lisle, 341 F. 3d, at 384.
Having rejected the taxpayers’ objection to the absence of the special trial judge’s Rule 183(b) report from the record on appeal, the Seventh and Eleventh Circuits proceeded to the merits of the Tax Court’s final decision and affirmed that decision in principal part. See Kanter, 337 F. 3d, at 873–874; Ballard, 321 F. 3d, at 1044.[Footnote 7] The Fifth Circuit’s judgment, which is not before this Court, reversed the fraud penalties assessed against Lisle for evidentiary insufficiency but upheld the Tax Court’s determination of tax deficiencies for certain years. See Estate of Lisle, 341 F. 3d, at 384–385.[Footnote 8] Seventh Circuit Judge Cudahy dissented on the issue of the special trial judge’s initial report, maintaining that intelligent review of the Tax Court’s decision required inclusion of that report in the record on appeal. See Kanter, 337 F. 3d, at 874, 884–888.
We granted certiorari, 541 U. S. 1009 (2004), to resolve the question whether the Tax Court may exclude from the record on appeal Rule 183(b) reports submitted by special trial judges. We now reverse the decisions of the Seventh and Eleventh Circuits upholding the exclusion.
Central to these cases is Tax Court Rule 183, which delineates the procedural framework and substantive standards governing Tax Court review of special trial judge findings. Rule 183(b), captioned “Special Trial Judge’s Report,” provides that after the trial of a case and submission of the parties’ briefs, “the Special Trial Judge shall submit a report, including findings of fact and opinion, to the Chief Judge, and the Chief Judge will assign the case to a Judge … of the Court.” 26 U. S. C. App., p. 1619.[Footnote 9] Rule 183(c), directed to the Tax Court judge to whom the case is assigned for final decision, reads:
“Action on the Report: The Judge to whom … the case is assigned may adopt the Special Trial Judge’s report or may modify it or may reject it in whole or in part, or may direct the filing of additional briefs or may receive further evidence or may direct oral argument, or may recommit the report with instructions. Due regard shall be given to the circumstance that the Special Trial Judge had the opportunity to evaluate the credibility of witnesses, and the findings of fact recommended by the Special Trial Judge shall be presumed to be correct.”
The Tax Court judge assigned to take action on the special trial judge’s report in these cases invoked none of the means Rule 183(c) provides to supplement the record. He did not “direct the filing of additional briefs[,] receive further evidence or … direct oral argument.” See ibid. Nor does the record show, or the Commissioner contend, see Brief for Respondent 14–15, that the Tax Court judge “recommit[ed] the [special trial judge’s] report with instructions.” Rule 183(c).[Footnote 10] From all that appears on the record, then, Judge Dawson’s review of the factfindings contained in Judge Couvillion’s report rested on the Rule 183(b) report itself, the trial transcript, and the other documents on file. Rule 183(c) guides the appraisal of those filed materials.
Rule 183(c)’s origin confirms the clear understanding, from the start, that deference is due to factfindings made by the trial judge. Commenting in 1973 on then newly adopted Rule 182(d), the precursor to Rule 183(c), the Tax Court observed that the Rule was modeled on Rule 147(b) of the former Court of Claims. Tax Ct. Rule 182 note, 60 T. C. 1150 (Tax Court review procedures were to be “comparable” to those used in the Court of Claims). Rule 182(d)’s “[d]ue regard” and “presumed to be correct” formulations were taken directly from that earlier Rule,[Footnote 11] which the Court of Claims interpreted to require respectful attention to the trial judge’s findings of fact. See Hebah v. United States, 456 F. 2d 696, 698 (Ct. Cl. 1972) (challenger must make “a strong affirmative showing” to overcome the presumption of correctness that attaches to trial judge findings). The Tax Court’s acknowledgment of Court of Claims Rule 147(b) as the model for its own Rule, indeed the Tax Court’s adoption of nearly identical language, lead to the conclusion the Tax Court itself expressed: Under the Rule formerly designated Rule 182(b), now designated 183(c), special trial judge findings carry “special weight insofar as those findings are determined by the opportunity to hear and observe the witnesses.” Tax Ct. Rule 182 note, 60 T. C. 1150 (1973); see Stone v. Commissioner, 865 F. 2d 342, 345 (CADC 1989).
Under Rule 182 as it was formulated in 1973, the Tax Court’s review of the special trial judge’s report was a transparent process. Rule 182(b) provided for service of copies of the special trial judge’s report on the parties and Rule 182(c) allowed parties to file exceptions to the report. 60 T. C., at 1149. The process resembled a district court’s review of a magistrate judge’s report and recommendation: The regular Tax Court judge reviewed the special trial judge’s report independently, on the basis of the record and the parties’ objections to the report. See Rule 182(c), (d), id., at 1149–1150. In years before 1984, the Tax Court acknowledged instances in which it “disagree[d] with the Special Trial Judge,” see Rosenbaum v. Commissioner, 45 TCM 825, 827 (1983), ¶83,113 P–H Memo TC, p. 373, or modified the special trial judge’s findings, see Taylor v. Commissioner, 41 TCM 539 (1980), ¶80,552 P–H Memo TC, p. 2344 (adopting special trial judge’s report with “some modifications”). Parties were therefore equipped to argue to an appellate court that the Tax Court failed to give the special trial judge’s findings the measure of respect required by Rule 182(d)’s “[d]ue regard” and “presumed to be correct” formulations.
In 1983, the Tax Court amended the Rule, which it simultaneously renumbered as Rule 183. The 1983 change eliminated the provision, formerly in Rule 182(b), for service of copies of the special trial judge’s report on the parties; it also eliminated the procedure, formerly in Rule 182(c), permitting the parties to file exceptions to the report. See Rule 183 note, 81 T. C., at 1069–1070. The Tax Court left intact, however, the Rule’s call for “[d]ue regard” to the special trial judge’s credibility determinations and the instruction that “the findings of fact recommended by the Special Trial Judge shall be presumed to be correct.” Rule 183(c), id., at 1069. Further, the 1983 amendments did not purport to change the character of the action the Tax Court judge could take on the special trial judge’s report; as before, the Tax Court could “adopt” the report, “modify it,” or “reject it in whole or in part.” Ibid. In practice, however, the Tax Court stopped acknowledging instances in which it rejected or modified special trial judge findings. Judge Cudahy, in dissent in the Seventh Circuit, commented on the “extraordinary unanimity” that has prevailed since the 1983 amendments: “Never, in any instance since the adoption of the current Rule 183 that I could find,” Judge Cudahy reported, “has a Tax Court judge not agreed with and adopted the [special trial judge’s] opinion.” Kanter, 337 F. 3d, at 876; cf. Tr. of Oral Arg. 44 (Counsel for the Commissioner, in response to the Court’s question, stated: “We’re not aware of any cases in which the Tax Court judge has rejected the [special trial judge’s] findings … .”).
It appears from these cases and from the Commissioner’s representations to this Court that the Tax Court, following the 1983 amendments to Rule 183, inaugurated a novel practice regarding the report the special trial judge submits post-trial to the Chief Judge. No longer does the Tax Court judge assigned to the case alone review the report and issue a decision adopting it, modifying it, or rejecting it in whole or in part. Instead, the Tax Court judge treats the special trial judge’s report essentially as an in-house draft to be worked over collaboratively by the regular judge and the special trial judge. See id., at 38 (Counsel for the Commissioner acknowledged that the special trial judge and regular Tax Court judge engage in “a collegial deliberative process,” and that such a process, “involving more than one person . . . in the decision-making,” is “unusual”); see also id., at 29–30 (referring to “the deliberative process” occurring after the special trial judge submits his report to the Chief Judge); Kanter, 337 F. 3d, at 876–877 (Cudahy, J., dissenting). Nowhere in the Tax Court’s Rules is this joint enterprise described.[Footnote 12]
When the collaborative process is complete, the Tax Court judge issues a decision in all cases “agree[ing] with and adopt[ing] the opinion of the Special Trial Judge.” See supra, at 3. The extent to which that “opinion” modifies or rejects the special trial judge’s Rule 183(b) findings and opinion, and is in significant part prompted or written by the regular Tax Court judge, is undisclosed. Cf. Order of Apr. 26, 2000, at 108a (denying motion for access to original special trial judge report prepared under Rule 183(b), Tax Court Judge Dawson stated: “Special Trial Judge Couvillion submitted his report … pursuant to Rule 183(b), which ultimately became the Memorandum Findings of Fact and Opinion … filed on December 15, 1999.”).[Footnote 13]
Judge Cudahy appears accurately to have described the process operative in the Tax Court:
“[T]here are two ‘[special trial judge’s] reports’ in many … Tax Court cases—the original ‘report’ filed under Rule 183 with the Chief Judge of the Tax Court, which is solely the work product of the [special trial judge] (and which represented the [special trial judge’s] views at the end of trial) and the later ‘opinion’ of the [special trial judge], which is a collaborative effort, but which the Tax Court then ‘agrees with and adopts’ as the opinion of the Tax Court.” Kanter, 337 F. 3d, at 876.
Notably, however, the Tax Court Rules refer only once to a special trial judge “opinion”: “[T]he Special Trial Judge shall submit a report, including findings of fact and opinion, to the Chief Judge.” Tax Ct. Rule 183(b), 26 U. S. C. App., p. 1619 (emphasis added). That opinion, included in a report completed and submitted before a regular Tax Court judge is assigned to the case, is the sole opinion properly ascribed to the special trial judge under the current Rules. Correspondingly, it is the Rule 183(b) report, not some subsequently composed collaborative report, that Rule 183(c), tellingly captioned “Action on the Report,” instructs the Tax Court judge to review and adopt, modify, or reject. See Rule 183(c) (the Tax Court judge “may adopt the Special Trial Judge’s report”).[Footnote 14] In the review process contemplated by Rule 183(c), the Tax Court judge must accord deference to the special trial judge’s findings. Ibid. One would be hard put to explain, however, how a final decisionmaker, here the Tax Court judge, would give “[d]ue regard” to, and “presum[e] to be correct,” an opinion the judge himself collaborated in producing.
However efficient the Tax Court’s current practice may be, we find no warrant for it in the Rules the Tax Court publishes. The Tax Court, like all other decisionmaking tribunals, is obliged to follow its own Rules. See Service v. Dulles, 354 U. S. 363, 388 (1957) (Secretary of State “could not, so long as the Regulations remained unchanged, proceed without regard to them”); see also Vitarelli v. Seaton, 359 U. S. 535, 540 (1959) (Secretary bound by regulations he promulgated “even though without such regulations” he could have taken the challenged action); id., at 546 (Frankfurter, J., concurring in part and dissenting in part) (observing that an agency, all Members of the Court agreed, and “rightly so,” “must be rigorously held to the standards by which it professes its action to be judged”). Although the Tax Court is not without leeway in interpreting its own Rules, it is unreasonable to read into Rule 183 an unprovided-for collaborative process, and to interpret the formulations “due regard” and “presumed to be correct,” to convey something other than what those same words meant prior to the 1983 rule changes. See supra, at 12–14.
The Tax Court’s practice of not disclosing the special trial judge’s original report, and of obscuring the Tax Court judge’s mode of reviewing that report, impedes fully informed appellate review of the Tax Court’s decision. In directing the Tax Court judge to give “due regard” to the special trial judge’s credibility determinations and to “presum[e] … correct” the special trial judge’s factfindings, Rule 183(c) recognizes a well-founded, commonly accepted understanding: The officer who hears witnesses and sifts through evidence in the first instance will have a comprehensive view of the case that cannot be conveyed full strength by a paper record.
Fraud cases, in particular, may involve critical credibility assessments, rendering the appraisals of the judge who presided at trial vital to the Tax Court’s ultimate determinations. These cases are illustrative. The Tax Court’s decision repeatedly draws outcome-influencing conclusions regarding the credibility of Ballard, Kanter, and several other witnesses. See, e.g., Investment Research Assoc., 78 TCM, at 1060, ¶99,407 RIA Memo TC, p. 2675 (“We find Kanter’s testimony to be implausible.”); id., at 1083, ¶99,407 RIA Memo TC, p. 2703 (“[W]e find Ballard’s testimony vague, evasive, and unreliable.”); id., at 1079, ¶99,407 RIA Memo TC, p. 2698 (“The testimony of Thomas Lisle, Melinda Ballard, Hart, and Albrecht is not credible.”); id., at 1140, ¶99,407 RIA Memo TC, p. 2776 (“[T]he witnesses presented on behalf of [Investment Research Associates] in this case were obviously biased, and their testimony was not credible.”). Absent access to the special trial judge’s Rule 183(b) report in this and similar cases, the appellate court will be at a loss to determine (1) whether the credibility and other findings made in that report were accorded “[d]ue regard” and were “presumed … correct” by the Tax Court judge, or (2) whether they were displaced without adherence to those standards. See Kanter, 337 F. 3d, at 886 (Cudahy, J., concurring in part and dissenting in part) (“I can think of no single item of more significance in evaluating a Tax Court’s decision on fraud than the unfiltered findings of the [special trial judge] who stood watch over the trial.”).
The Commissioner urges, however, that the special trial judge’s report is an internal draft, a mere “step” in a “confidential decisional process,” and therefore properly withheld from a reviewing court. See Brief for Respondent 16–17 (citing United States v. Morgan, 313 U. S. 409, 422 (1941) (courts should not “probe the mental processes” of decisional authorities (internal quotation marks omitted))); accord Order of Aug. 30, 2000, at 101a. Our conclusion that Rule 183 does not authorize the Tax Court to treat the special trial judge’s Rule 183(b) report as a draft subject to collaborative revision, see supra, at 16–17, disposes of this argument. The Commissioner may not rely on the Tax Court’s arbitrary construction of its own rules to insulate special trial judge reports from disclosure. Cf. Kanter, 337 F. 3d, at 888 (Cudahy, J., concurring in part and dissenting in part) (access on appeal to the special trial judge’s Rule 183(b) report should not be blocked by the Tax Court’s “concealment of [its] revision process behind th[e] verbal formula” through which the Tax Court judge purports to “agre[e] with and adop[t]” the opinion of the special trial judge (internal quotation marks omitted)).
We are all the more resistant to the Tax Court’s concealment of the only special trial judge report its Rules authorize given the generally prevailing practice regarding a tribunal’s use of hearing officers. The initial findings or recommendations of magistrate judges, special masters, and bankruptcy judges are available to the appellate court authorized to review the operative decision of the district court. See 28 U. S. C. §636(b)(1)(C) (magistrate judge’s proposed findings must be filed with the court and mailed to the parties); Fed. Rule Civ. Proc. 53(f) (special masters); Fed. Rule Bkrtcy. Proc. 9033(a), (d) (bankruptcy judges); Fed. Rule App. Proc. 10(a) (record on appeal includes the original papers filed in the district court). And the Administrative Procedure Act provides: “All decisions, including initial, recommended, and tentative decisions, are a part of the record” on appeal. 5 U. S. C. §557(c); see also §706 (the reviewing court shall evaluate the “whole record”). In comparison to the nearly universal practice of transparency in forums in which one official conducts the trial (and thus sees and hears the witnesses), and another official subsequently renders the final decision, the Tax Court’s practice is anomalous. As one observer asked: “[I]f there are policy reasons that dictate transparency for everyone else, why do these reasons not apply to the Tax Court?” Kanter, 337 F. 3d, at 874 (Cudahy, J., concurring in part and dissenting in part); cf. Mazza v. Cavicchia, 15 N. J. 498, 519, 105 A. 2d 545, 557 (1954) (“We have not been able to find a single case in any state … justifying or attempting to justify the use of secret reports by a hearer to the head of an administrative agency.”).[Footnote 15]
The Commissioner asserts, however, that the Tax Court’s practice of replacing the special trial judge’s initial report with a “collaborative” report and refusing to disclose the initial report is neither “unique” nor “aberrational.” Brief for Respondent 31. As a “direct statutory analog,” ibid., the Commissioner points to 26 U. S. C. §7460(b), the provision governing cases reviewed by the full Tax Court. Section 7460(b) instructs that when the full Tax Court reviews the decision of a single Tax Court judge, the initial one-judge decision “shall not be a part of the record.” For several reasons, we reject the Commissioner’s endeavor to equate proceedings that differ markedly.
First, as the Commissioner himself observes, omission of the single Tax Court judge’s opinion from the record when full court review occurs has been the statutory rule “[f]rom the earliest days of the Tax Court’s predecessor.” Brief for Respondent 31 (citing Revenue Act of 1928, ch. 852, §601, 45 Stat. 871). To this day, Congress has ordered no corresponding omission of special trial judge initial reports. Understandably so. Full Tax Court review is designed for the resolution of legal issues, not for review of findings of fact made by the judge who presided at trial. See L. Lederman & S. Mazza, Tax Controversies: Practice and Procedure 247 (2000). When the full Tax Court reviews, it is making a de novo determination of the legal issue presented. In contrast, findings of fact are key to special trial judge reports. See Tax Ct. Rule 183(c), 26 U. S. C. App., p. 1619. And those findings, under the Tax Court’s Rules, are not subject to review de novo. Instead, they are measured against “due regard” and “presumed correct” standards. Ibid.; see supra, at 12–14.
Furthermore, the judges composing the full Tax Court and the individual Tax Court judge who made the decision under review are presidential appointees equal in rank. Each has an equal voice in the business of the Tax Court. To the extent that the individual judge disagrees with his colleagues, he is free to file a dissenting opinion repeating or borrowing from his initial decision. The special trial judge, serving at the pleasure of the Tax Court, lacks the independence enjoyed by regular Tax Court judges and the prerogative to publish dissenting views. See Kanter, 337 F. 3d, at 879–880 (Cudahy, J., concurring in part and dissenting in part).[Footnote 16]
We note, finally, other arguments tendered by the taxpayers. Ballard and Kanter urge that the Due Process Clause requires disclosure of a trial judge’s factfindings that have operative weight in a court’s final decision. Brief for Petitioner Ballard 43–48; Brief for Petitioner Kanter 19–27. They also argue that, just as reports of special masters, magistrate judges, and bankruptcy judges form part of the record on appeal from a district court, so special trial judge reports must form part of the record on appeal from the Tax Court. They base this argument on the appellate review statute, 26 U. S. C. §7482(a)(1), which instructs courts of appeals to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” Brief for Petitioner Ballard 23–27 (internal quotation marks omitted); Brief for Petitioner Kanter 27, 34–35. In addition, they maintain that 26 U. S. C. §§7459(b) and 7461(a) require disclosure of all reports generated in Tax Court proceedings, absent specific exemption. Brief for Petitioner Kanter 42–44. Because we hold that the Tax Court’s Rules do not authorize the practice that the Tax Court now follows, we need not reach these arguments and express no opinion on them.
The idiosyncratic procedure the Commissioner describes and defends, although not the system of adjudication that Rule 183 currently creates, is one the Tax Court might some day adopt. Were the Tax Court to amend its Rules to express the changed character of the Tax Court judge’s review of special trial judge reports, that change would, of course, be subject to appellate review for consistency with the relevant federal statutes and due process.
For the reasons stated, the judgments of the Courts of Appeal for the Seventh and Eleventh Circuits are reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Unlike other judicial and administrative bodies, the Tax Court does not maintain a formal practice of publicly disclosing proposed amendments to its Rules. See Estate of Kanter v. Commissioner, 337 F. 3d 833, 877–878, n. 2 (CA7 2003) (Cudahy, J., concurring in part and dissenting in part) (describing the Tax Court’s lack of a “formal documented procedure” for amending its Rules as “oddly out of sync with prevailing practice in other areas of the law”). Although the Tax Court solicits comments on proposed rule changes from the American Bar Association’s Section on Taxation, see ABA Members Suggest Modifications to Proposed Amendments of Tax Court Rules, 97 Tax Notes Today, p. 167–25 (Aug. 28, 1997), the court apparently does not publish its proposals to, or accept comments from, the general public.Footnote 2
The dissent observes that the parties did not discretely refer to the ground on which our decision rests. See post (opinion of Rehnquist, C. J.), at 1, n. 1; Brief for Petitioner Kanter (i) (asking whether Tax Court Rule 183 requires Tax Court judges to uphold findings made by special trial judges unless “clearly erroneous” (internal quotation marks omitted)). The meaning of Rule 183, however, is a question anterior to all other questions the parties raised, and the requirements of the Rule were indeed aired in the taxpayers’ briefs. See id., at 34–39; Reply Brief for Petitioner Ballard 2–3, 8–10; Reply Brief for Petitioner Kanter 3–8. Under the circumstances, we think it evident that our disposition is in entire accord with “our own Rule.” Compare post (opinion of Rehnquist, C. J.), at 1, n. 1, with this Court’s Rule 14.1(a) (“The statement of any question presented is deemed to comprise every subsidiary question fairly included therein.”); and R. A. V. v. St. Paul, 505 U. S. 377, 381, n. 3 (1992). See generally R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002) (observing that “[q]uestions not explicitly mentioned but essential to analysis of the decisions below or to the correct disposition of the other issues have been treated as subsidiary issues fairly comprised by the question presented” (internal quotation marks omitted)).Footnote 3
Petitioners here are Ballard; his wife, who was included in the notices of deficiency because she filed joint returns with her husband; Kanter’s estate; Kanter’s executor; and Kanter’s wife. Brief for Petitioner Ballard (ii); Brief for Petitioner Kanter (ii). Lisle’s estate is not a petitioner before this Court. See infra, at 9, and n. 8. For convenience, this opinion will refer to the petitioners simply as “Ballard” and “Kanter.”Footnote 4
Special trial judges were called “commissioners” when the office was created in 1943. The Tax Court changed the title to “special trial judge” in 1979. See Tax Ct. Rule 182 note, 71 T. C. 1215 (1979); Brief for Petitioner Kanter 6.Footnote 5
Section 7443A was amended and renumbered in 1998, some years after the 1994 trial in these cases. See Pub. L. 105–206, §3401(c), 112 Stat. 749. The alterations did not change the statute’s text in any relevant respect. This opinion refers to the current version of the statute.Footnote 6
Judge Dawson is a retired Tax Court judge who served two terms, from 1962 until 1985, as a regular member of the court. He was recalled to judicial duties by the Chief Judge of the Tax Court in 1990. See 26 U. S. C. §7447(c). Recalled judges serve “for any period … specified by the chief judge.” Ibid. Their salary, unlike that of special trial judges, see supra, at 5, is equal to that of Tax Court judges.Footnote 7
Finding one of Kanter’s deductions legitimate, the Seventh Circuit reversed the Tax Court’s ruling on that issue. See Kanter, 337 F. 3d, at 854–857.Footnote 8
Lisle’s estate did not seek this Court’s review of the adverse portions of the Fifth Circuit’s decision.Footnote 9
Rule 183 has been amended since these cases were before the Tax Court, but the substantive provisions of the Rule have not been altered in any relevant respect. Compare Tax Ct. Rule 183, 26 U. S. C. App., p. 1483 (1994 ed.), with Tax Ct. Rule 183 (interim amendment), 26 U. S. C. App., p. 1670 (2000 ed.). Citations in this opinion are to the version of the Rule reprinted in the 2000 edition of the United States Code.Footnote 10
The record does contain an order stating in its entirety:
“For cause, it is ORDERED: That these cases are reassigned from Special Trial Judge D. Irvin Couvillion to Judge Howard A. Dawson, Jr., for disposition.
“After the Special Trial Judge submitted a report, as required by Rule 183(b), Tax Court Rules of Practice and Procedure, these cases were referred to Judge Dawson on September 2, 1998, for review and, if approved, for adoption.
“Dated: Washington, D. C. December 15, 1999.” App. to Kanter Pet. for Cert. 113a–114a.
One might speculate, from the reference to a “reassign[ment],” that at some point between September 1998 and December 1999, Judge Dawson “recommitted” the report to Judge Couvillion, who subsequently submitted a revised report to the Chief Judge who, in turn, referred that report to Judge Dawson. The Commissioner does not urge such an interpretation of the December 15, 1999 order, however, and it is, in any event, implausible. The Tax Court’s docket reveals no action taken between the initial assignment and the enigmatic reassignment. Had Judge Dawson turned back the report after first receiving it, an order recommitting the case to Judge Couvillion “with instructions,” Rule 183(c), should have memorialized that action. Moreover, Judge Dawson rendered the final decision of the Tax Court on the same day the case was “reassigned” to him. Had he faced a recast Rule 183(b) report, it is doubtful that he could have absorbed and acted upon it so swiftly.Footnote 11
Court of Claims Rule 147(b) provided:
“The court may adopt the [trial judge’s] report, including conclusions of fact and law, or may modify it, or reject it in whole or in part, or direct the [trial judge] to receive further evidence, or refer the case back to him with instructions. Due regard shall be given to the circumstance that the [trial judge] had the opportunity to evaluate the credibility of the witnesses; and the findings of fact made by the [trial judge] shall be presumed to be correct.” 28 U. S. C. App., p. 7903 (1970 ed.).Footnote 12
Nor does any other Tax Court publication, such as an interpretive guide or policy statement, suggest that the 1983 amendments to Rule 183 altered the internal process by which the Tax Court judge reviews the special trial judge’s findings.Footnote 13
The Tax Court’s post-1983 process for reviewing special trial judge reports appears not to have been comprehended, even by cognoscenti, prior to the airing it has received in these cases. See Cahill, Tax Judges Decide Cases They Do Not Hear, 37 ABA J. E-Report 3 (Sept. 27, 2002) (quoting tax attorney Gerald Kafka’s statement that “[w]hen this case surfaced, a lot of people scratched their heads” (internal quotation marks omitted)).Footnote 14
The Tax Court, we are confident, would not woodenly apply its Rules to prevent a special trial judge from correcting a clerical error. But see post (opinion of Rehnquist, C. J.), at 4, n. 6. Moreover, if the special trial judge, on re-reading his Rule 183(b) report post-submission, detects an error of substance, the special trial judge might ask to have the report “recommit[ted]” for modification. See Rule 183(c).Footnote 15
It is curious that the Commissioner, always a party in Tax Court proceedings, argues strenuously in support of concealment of the special trial judge’s report. As Judge Cudahy noted, the Tax Court’s current practice allows it “very easily [to] reverse findings (credibility-related and otherwise) of [special trial judges] in a manner that is detrimental to the Commissioner as well as to” taxpayers. Kanter, 337 F. 3d, at 888 (concurring in part and dissenting in part). Inclusion of the report in the record on appeal would therefore seem “a procedural result that may benefit all parties.” Ibid.; see Tr. of Oral Arg. 28 (Court inquired of counsel for the Commissioner: “[A]ren’t there situations where it might be that the special trial judge would call a credibility question in the Government’s favor and then the Government loses the case before the Tax Court judge and might like to know, before it goes to the court of appeals, how solid the credibility findings were?”).Footnote 16
The Commissioner also notes that “numerous boards of contract appeals established by various agencies … do not require disclosure of initial reports prepared by presiding judges.” Brief for Respondent 31–32. This analogy, too, is unimpressive. The contract dispute resolution panels to which the Commissioner points issue decisions after reviewing the initial report of a “presiding judge,” designated to conduct an evidentiary hearing on behalf of the panel. Only the final decision is served on the parties and included in the record on appeal. Ibid. Unlike the situation of the special trial judge, however, the presiding judge holds a position equal in stature to that of the other panel members, and can file a dissent. See Reply Brief for Petitioner Kanter 15.
In discussing the text of Rule 183(b) and (c), and the Tax Court’s current interpretation of that text, we surely do not intend to “impugn the integrity” of any Tax Court judge. Compare post (opinion of Rehnquist, C. J.), at 5–6, with Kanter, 337 F. 3d, at 880, n. 6 (Cudahy, J., dissenting) (“I am not suggesting that … the judges of the Tax Court … exert undue influence over [special trial judges]. The judicial independence of finders of fact, however, is a structural principle.”).