November 24, 2011 - Phil Hodgen

Tax answers come when you ask the right question

This is another in my “now and then” series of posts for young tax lawyers.  I do these because I was helped as a young tax lawyer.  I think the training opportunities for young tax lawyers are severely limited now, compared to when I escaped from law school in 1982.

If you’ve never heard of Bryan Garner, you have undoubtedly seen the fruits of his labor — Black’s Law Dictionary.

But there is something else Bryan does — he travels the country giving seminars, helping lawyers learn to write.  I have attended his seminars a few times.  It’s probably time for me to go again, in fact.  It never hurts to keep learning how to write.

If your employer will not pay for you to attend, you should pay out of your own pocket.

One of the points that Bryan will tattoo onto your brain (hat tip for that phrase to Hal R., long ago at Wednesday Roxbury) is this:  spend an inordinate amount of time on refining your question, and it will be remarkably easy to find (and explain) the answer.

Sit down with a piece of paper, a pen, and a trash can.  Write your facts out.  Then write the question you want to answer.

Remember to write the question so that it demands a binary answer:  YES/NO.  There are no other kinds of questions.  Amarite?  Yes/No.  🙂

If you live in the Land of Courtrooms and Judges, you will understand this.  The purpose of a judge is to be asked a question and answer with a yes or no.  Guilty or not guilty.  Liable or not liable.  Judges don’t answer open-ended questions.  Similarly, the IRS doesn’t handle open-ended questions well — tax returns don’t contain answers to open-ended questions.  Tax returns are how you talk to the IRS.  The language that the IRS speaks is checkboxes and numbers.

In my experience, a proper question to answer in tax law does not have the word “should” in it.

I find with each successive iteration that I uncover gaps in the facts that I didn’t see before.  I find that I have to narrow the scope of the question I am asking.  I find that I start to uncover the sequence of problems I have to solve.

Write it out.  By hand.  Throw it away.  Write it again, better.  Throw it away.  Write it again.