While the Affordable Care Act (“ACA”) was handed down some time ago, I
am still processing the decision. 132 S. Ct. 2566. One of the first
issues the Court had to address is whether the taxpayer had standing to
bring the suit. Under the Anti-Injunction Act (“AIA”), 26 U.S.C.
7421(a), “no
suit for the purpose of restraining the assessment or collection of any
tax shall be maintained in any court by any person, whether or not such
person is the person against whom such tax was assessed.” Before I look
to the Court’s analysis, I want to spend some time on the language of
this section. The language here is very broad and encompassing, such
that it includes “any tax” in “any court’ by “any person.” While there
are limitations imposed prior to the portion of subsection (a), they are
very limited, and not used by the Court in its analysis. The only
question that remains is what is considered a tax. The Court will play
gymnastics in order to say in one section the ACA is not a tax for the
purpose of the AIA, but in the next section claim that the same
provision is a tax for the purposes of constitutionality. The next few
posts are not concerned with the constitutionality of the ACA; that may
be discussed at a later date, but not likely. I will only look at if the
Court can really side-step the AIA in the manner it did, and if it could
not, did it really have standing to hear the case at the time it
did.
If
nothing else, we learn from this case that the Chief Justice apparently
did not sing along at the Court’s annual Christmas party. See Paul L.
Caron, Mamas Don’t
Let Your Babies
Grow Up to
Be Tax Lawyers, 135 Tax Notes 1358, 1362 (relating a tale by Justice
Souter in which he claimed that if he did not sing along at the annual
Christmas party, he would be assigned all the tax cases).