Struggling with Words in Tax Jurisprudence - The Revival of Textualism in the Supreme Court of the United States of America

Innumerable tax cases have illustrated that the method of interpretation has a critical impact on the equal distribution of the tax burden among taxpayers. In order to preserve the integrity of the Internal Revenue Code, the federal courts have not shrunk from giving preference to statutory purposes over statutory language. In Gitlitz v. Commissioner, the U.S. Supreme Court has now rebuffed the previous tax jurisprudence of the federal courts and applied a strict literal approach. Gitlitz increases the confusion about whether and when a non-literal interpretation of the Code is permissible. This uncertainty in the current tax jurisprudence creates the risk that the different players on the tax field will not apply an objective standard when interpreting the Code but will elect the interpretation method which most likely produces the result which reflects their personal notion of sound tax policy and tax justice. An equal treatment mode of analysis is encouraged.