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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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