Norman R. Williams (Willamette) has published Special Trial Judges After Ballard: A Call for Reform, 107 Tax Notes 1033 (May 23, 2005), also available on the Tax Analysts web site as Doc 2005-9983, 2005 TNT 99-49:
In early March, the U.S. Supreme Court issued its decision in Ballard v. Commissioner, wreaking havoc on the Tax Court and its use of special trial judges (STJs). In certain, high-value tax cases, STJs serve a function akin to that performed by magistrate judges in the U.S. district courts — STJs conduct the trial and prepare a report, which is reviewed by a Tax Court judge who has ultimate decisional authority to render judgment. In Ballard, the Supreme Court invalidated the Tax Court’s clandestine adjudicatory process in which the STJ’s report was concealed from both parties and appellate courts alike and held that Tax Court Rule 183 requires the Tax Court to include the STJ’s report in the record. The Court, however, stopped short of expressly requiring the Tax Court to distribute the STJ’s report to the parties and to allow them to file objections to the STJ’s report. In so doing, the Supreme Court created a novel and confusing hybrid adjudicatory process that is sure to dissatisfy both the Tax Court and counsel alike. Indeed, while the Supreme Court was surely right to reject the Tax Court’s secretive process, it left the job only half-done, necessitating further changes to Rule 183 to make the Tax Court adjudicatory process fully transparent, fair, and efficient.




