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Abuse of Discretion
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Introduction. II. The Concept of Tax Justice. III. Criteria for Assessing Tax Justice. IV. Evidence of a Deferential Difference. A. The Abuse of Discretion Standard. B. The Abuse of Discretion Standard in Cases Involving Corporate Taxpayers. 1. Code Section 446 Cases. 2. Code Section 482 Cases. 3. Other Tax Court Abuse of Discretion Cases Involving Corporate Taxpayers. C. The Abuse of Discretion Standard in Cases Involving Individual Taxpayers. 1. Tax Court Review of Collections Cases. 2. Tax Court Review of Innocent Spouse "Equitable Relief Determinations. V. Social Science Explanations for the Deferential Difference. A. Sociological Theory and Social Psychology. 1. Homans' Theory. 2. The Progeny of Homans. 3. Prospect Theory. 4. Application of Sociological Theory to Judicial Deci...
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Inequitable division of residence; No abuse of discretion in choosing between appraisals; No abuse of discretion in named residential parent
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In 1974 Congress enacted the Employee Retirement Income Security Act (ERISA) to protect policyholders against the potential abuses that arise out of the private pension administration of the insurance plans. ERISA provides an extremely complicated scheme that preempts state insurance law on many points. One major aspect of ERISA is that it affords statutory protections to policy holders when they have been denied benefits from their plans. ERISA's passage was the product of many years of failed attempts to regulate the private pension system through various mechanisms. The result was a comprehensive statute that has effectively regulated the insurance industry since its passage, providing much needed guidance and uniformity in the system. The current movement toward eliminating the use ...
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(This article was originally published in Missouri Lawyers Weekly, St. Louis, MO, another Dolan Media publication.) A trial court's severance of tort and uninsured motorist claims arising from an auto accident was an abuse of discretion, the Missouri Court of Appeals held. The court found that splitting the claims was inconvenient to the plaintiff and failed to promote judicial economy.
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Because it is more difficult to get new statutes passed or to amend statutes that have been adopted, presidential administrations may resort to adopting new "interpretations" of statutes in order to further their policy agendas. In the literature, this strategy has often been among those included within "the administrative presidency." Since the Nixon administration, the administrative presidency approach has become an accepted and expected part of a president's strategy for furthering his administration's policy goals. This article reviews Supreme Court cases that illustrate how the two most recent presidential administrations have abused this approach to policy transformation and suggests that among the longer-term impacts of such abuse may be the undermining of the U.S. Constitution,...
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Courts should use a sliding scale of deference for abuse of discretion review. The Supreme Court ruled in Koon v. United States in favor of the de novo standard of judicial review of certain aspects of departure from the federal sentencing guidelines. Koon's portrayal of its abuse of discretion standard as a unitary standard should be reformulated as a sliding scale of deference. A more simplified expression of the de novo, clearly erroneous and abuse of discretion standards should also be given.
