Professor Steve R. Johnson, in part quoting Professor David F. Shores, characterizes the diversity as follows: "'It is difficult to imagine an adjudication system less conducive to uniform decisionmaking than the current fragmented system of federal tax trials and appeals.
[13] With this number of original jurisdiction courts involved in making legal determinations on federal tax matters and thirteen United States courts of appeals exercising appellate jurisdiction, observers recognize and are concerned that the tax laws can be interpreted differently for like cases.
As examples, Supreme Court decisions in the well-known cases of Kowalski (whether state policemen could exclude meal reimbursements from gross income) and Dalm (whether a taxpayer could get a refund for overpaid gift taxes otherwise time-barred, when the delay was caused in resolving income tax deficiencies) show the Supreme Court resolving diametrically opposed decisions from two or more of the circuit courts.
[16] As a general matter, reviewers of the issues of decision uniformity and court diversity take the position that identical sets of facts in a tax case should result in identical court decisions.
[22] Under the approaches advocated, tax litigation could begin in the courts of original jurisdiction, as is currently the case, but the appeals would have to be made to a single, specialized court of tax appeals which would develop great expertise on tax law as well as reconcile divergent interpretations from the lower courts so that one consistent set of interpretations would prevail.
[24] Despite favoring this position, the preponderant view appears to be that Congress will not support a single appellate court approach.
Professor Johnson, a proponent of a national court of tax appeals, for instance, states that, "whatever its desirability, it is abundantly plain that, for the foreseeable future, creation of a national court of tax appeals is a political impracticability.
"[25] Johnson attributes this to a view that the generalist judges in circuit courts have a perceived breadth of understanding and greater familiarity with non-tax sources such as state law and non-tax federal statutes, which may be important to the outcome of certain cases.
[27] His view is that district court judges have a comparative advantage in sifting facts, and that they and the circuit courts have a substantial advantage on non-tax issues that touch on many tax controversies such as the common law, operation of state law and constitutional questions.
[33] Professor Johnson's conclusion is that, "a rule requiring greater deference to Tax Court decisions – if superimposed upon the present highly fragmented and taxpayer-driven trial and appellate structure – would leave us worse off than no 'reform' at all.