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).