- 55 -
the-line subtraction from the deficiency, but as an above-the-
line (negative) element of the deficiency itself. See sec.
6211(a)(1)(B).
There is a long and honorable tradition of using legal
fictions to overcome the rigidity of the law in order to make the
legal system function fairly.2 A legal fiction is a falsehood
that is deemed to be true for limited purposes designed to bridge
the gap between concept and reality.3 "A doctrine which is
plainly fictitious must seek its justification in considerations
of social and economic policy; a doctrine which is nonfictitious
2 See ACLU of Mississippi, Inc. v. Finch, 638 F.2d 1336,
1340 n.7 (5th Cir. 1981), and texts cited. This case and these
texts conclude that legal fictions can be useful and justified
if employed with the understanding of producer and consumer of
their character as such. See also United States v. Dalm, 494
U.S. 596, 612-623 (1990) (Stevens, J., dissenting), discussed
infra pp. 7-8.
3 In effect, when we engage in a fiction, we
redefine reality to comport with existing law as
a method of changing the law to meet new realities
* * *. This method of adapting the law to changing
circumstances and perceptions is saved from absurdity
by its underlying rationality. * * * when used
properly the legal fiction is a rule of law embodying
an unconcealed falsehood at one level and a deeper
truth at another more important level. The falsehood
is often made necessary because of the pre-existing
structure of the law, and is justified (if it is
justified) by the deeper underlying truth contained
within the falsehood.
Miller, "Liars Should Have Good Memories: Legal Fictions and the
Tax Code", 64 U. Colo. L. Rev. 1, 26 n.109 (1993).
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