The Supreme Court is increasingly turning toward textualism in interpreting statutes. This is part of its general hostility toward judge-made law, as evidenced by its recent unanimous decision in Rodriguez that there should be no federal common law except in extraordinary circumstances. Textualism poses a particular danger in the tax context because the Internal Revenue Code is so complicated and lends itself to manipulation so that courts have since the 1930s used a variety of judge-made legal doctrines to prevent such results. The classic Gregory decision from 1935 involved just such a case: The literal application of the code resulted in a clear departure from congressional intent and it was therefore struck down by the Court.
Avi-Yonah, Reuven S. "Rodriguez, Tucker, and the Dangers of Textualism." Tax Notes Fed. 167, no. 1 (2020): 87-95.
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