In interpreting the Internal Revenue Code, courts must frequently resolve conflicts between the Code's literal language and its underlying structure and policies. Prof. Zelenak points out that the United States Supreme Court has failed to develop a coherent, consistent approach to resolving such conflicts, thus giving lower courts little guidance as to whether and when nonliteral interpretations of the Internal Revenue Code may be proper. Prof. Zelenak argues that nonliteral interpretations of the Internal Revenue Code may be appropriate when the language of a Code provision, taken literally, conflicts with Code policy or structure. The complexity of the Code does not justify a blanket prohibition against nonliteral interpretation; indeed, in some instances, the Code's complexity may provide a basis for nonliteral interpretation by revealing underlying Code structure and policies with particular clarity. Moreover, Prof. Zelenak contends that the progovernment bias some courts display in addressing questions of nonliteral interpretation is unwarranted and ultimately may prove detrimental to governmental interests. Prof. Zelenak advocates an evenhanded approach to nonliteral interpretation and urges the Supreme Court to develop and apply a coherent method for resolving questions of nonliteral interpretation consistent with the suggestions made in this Article.
Lawrence A. Zelenak, Thinking About Nonliteral Interpretations of the Internal Revenue Code, 64 North Carolina Law Review 623-676 (1985)