Shakespeare, Building Your Vocabulary… And Taxes

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Tax cases can be interesting not only for the facts or legal issue involved, but also sometimes for how the judge writes the opinion. A recent example is Fresenius Medical Care Holdings, Inc. v. U.S., No. 13-2144 (1st Cir. 8/13/14). The tax issue was whether any portion of $385 million paid by the taxpayer to the government under a False Claims Act matter should be treated as a non-deductible penalty. There was already agreement that $101 million of the total of $486 million was a non-deductible criminal fine.

The legal issue is interesting, but I’ll save that for another post.

Here, I’ll just focus on the intriguing language of Judge Bruce M. Selya in writing the opinion. It includes footnote 5:

“The government conjures up a parade of horribles suggesting, for example, that corporations may stall settlement negotiations in order to build up imputed interest. Despite these glum predictions, we are confident that the world will remain firmly on its axis. Viewed in real-world terms, we think that – if we may borrow a phrase – the government’s “[p]resent fears [a]re less than horrible imaginings.” William Shakespeare, Macbeth, act 1, sc. 3 (circa 1606).”

And one more phrase – “to paint the lily” which a Google search tells me is from Shakespeare’s King John (page 16).

The case also includes vocabulary worthy of preparatory study for the SAT exam. Do you know what these terms mean? (For assistance, check out

infelicitous asymmetry
patina of plausibility

And some poetic language, referring to a particular case as offering “an indistinct beacon by which to steer” (page13).

Despite the advanced vocabulary spread throughout the opinion, Judge Selya also uses some everyday terms that are often not used in legal opinions, such as referring to $95 million as “a large chunk of money.” (page 2)

A Google search on Judge Selya will tell you he has used complex vocabulary in other opinions.

Original Post By:  Annette Nellen

Annette Nellen, CPA, Esq., is a professor in and director of San Jose State University’s graduate tax program (MST), teaching courses in tax research, accounting methods, property transactions, state taxation, employment tax, ethics, tax policy, tax reform, and high technology tax issues.

Annette is the immediate past chair of the AICPA Individual Taxation Technical Resource Panel and a current member of the Executive Committee of the Tax Section of the California Bar. Annette is a regular contributor to the AICPA Tax Insider and Corporate Taxation Insider e-newsletters. She is the author of BNA Portfolio #533, Amortization of Intangibles.

Annette has testified before the House Ways & Means Committee, Senate Finance Committee, California Assembly Revenue & Taxation Committee, and tax reform commissions and committees on various aspects of federal and state tax reform.

Prior to joining SJSU, Annette was with Ernst & Young and the IRS.

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