FEDERAL COURTS LAW REVIEW - 2004 Fed. Cts. L. Rev. 3
THE RECLUSIVE REPORT: THE TAX COURT DENIES DUE PROCESS BY NOT DISCLOSING SPECIAL TRIAL JUDGE REPORTS TO LITIGANTS
By Eric Winwood
[a.1] The Tax Court uses Special Trial Judges as adjuncts in a manner similar to the District Court's use of Magistrate Judges and the Court of Federal Claims' prior use of Trial Judges. One similarity is that when not authorized to make the court's final decision, the Special Trial Judges and Magistrate Judges compile reports of their findings of fact and conclusions of law. These reports are reviewed by a Tax Court or District Court judge. While the Magistrate Judge reports are made available to District Court litigants, since 1984 Special Trial Judge reports are deliberately withheld from the litigants in the Tax Court by virtue of a change in the Tax Court Rules of Practice and Procedure. Moreover, pursuant to a recent Eleventh Circuit decision, the Special Trial Judge and Tax Court judge can collaborate in the drafting of the report. As a result, the litigants are unable to view or object to the contents in the report, do not know whether the report has been altered, and cannot ascertain the Special Trial Judge's viewpoint, compromising the parties' right to due process. By comparing the status and authority of Special Trial Court Judges to Magistrate Judges and Court of Claims Judges, this paper argues for a change in this practice in Tax Court.