Estate of Algerine Allen Smith, Deceased, James Allen Smith, Executor - Page 40

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          different from other non-Article III tribunals by virtue of this            
          Court’s “exclusively judicial role”.  Id. at 892.                           
               F.  This Court Has Equitable Powers That Its                           
               Predecessors Did Not                                                   
               Following Freytag v. Commissioner, supra, many Courts of               
          Appeals now agree that this Court has equitable powers that this            
          Court’s predecessors did not have and that this Court’s powers              
          are harmonious with the powers of a District Court.  In Estate of           
          Branson v. Commissioner, 264 F.3d at 908, for example, the Court            
          of Appeals for the Ninth Circuit stated that this Court’s                   
          exercise of judicial powers                                                 
               includes the authority to apply the full range of                      
               equitable principles generally granted to courts that                  
               possess judicial powers.  Even if the Tax Court does                   
               not have far-reaching general equitable powers [a                      
               statement that presumably was made in reply to the                     
               Supreme Court’s dictum in Commissioner v. McCoy,                       
               484 U.S. 3, 7 (1987) that this Court “lacks general                    
               equitable powers”5], it can apply equitable principles                 

               5 That dictum, when taken in context, is not remarkable.               
          Nor is it inconsistent with my view that this Court has district            
          courtlike equitable powers.  The context of this dictum indicates           
          that the Supreme Court was merely noting the well-settled rule              
          that no court of law may ignore the express intent of Congress as           
          to the imposition of interest and penalties.  See Commissioner v.           
          McCoy, 484 U.S. 3, 7 (1987); see also Flight Attendants Against             
          UAL Offset v. Commissioner, 165 F.3d 572, 578 (7th Cir. 1999)               
          (“In context, the Supreme Court’s dictum in Commissioner v.                 
          McCoy, 484 U.S. 3, 7, 98 L. Ed. 2d 2, 108 S. Ct. 217 (1987) (per            
          curiam), that the Tax Court lacks “general equitable powers”                
          means only that the Tax Court is not empowered to override                  
          statutory limits on its power by forgiving interest and penalties           
          that Congress has imposed for nonpayment of taxes--but then no              
          court is, unless the imposition would be unconstitutional.”).  In           
          fact, the Court made no mention of McCoy when it decided Freytag            
                                                             (continued...)           





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