The De Novo Doctrine: Irrelevant to Relevancy in Civil Tax Litigation

Abstract

"A tax case is a de novo proceeding and the thoughts, procedures, conclusions, reasoning, or factual findings of Internal Revenue Service employees about a taxpayer's liability are irrelevant."

Any attorney who has handled a tax case on a taxpayer's behalf has likely heard this argument, or a variation of it, during the discovery process, during motion practice, or even in the courtroom when attempting to introduce evidence. Many attorneys from the Internal Revenue Service ("Service") or Department of Justice who defend or bring tax cases on the government's behalf have likely asserted some version of the "de novo doctrine." Indeed, the Service and Department of Justice commonly raise the de novo doctrine in an attempt to defeat taxpayers' requests to discover or introduce into evidence information about the Service's audit or facts and information gathered by the Service and contained in its audit file.2 The asserted ground for withholding such information from taxpayers is that none of it is relevant to the court's inquiry, which is to determine the merits of taxpayers' liabilities.