BALLARD et ux. v. COMMISSIONER OF INTERNAL REVENUE

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40 OCTOBER TERM, 2004
Syllabus
BALLARD et ux. v. COMMISSIONER OF INTERNAL
REVENUE
certiorari to the united states court of appeals for
the eleventh circuit
No. 03–184. Argued December 7, 2004—Decided March 7, 2005*
The Tax Court’s Chief Judge appoints auxiliary officers, called special trial
judges, to hear certain cases, 26 U. S. C. § 7443A(a), (b), but ultimate
decision, when tax deficiencies exceed $50,000, is reserved for the court
itself, § 7443A(b)(5), (c). Tax Court Rule 183(b) governs the two-tiered
proceedings in which a special trial judge hears the case, but the court
renders the final decision. Rule 183(b) directs that, after trial and sub-
mission of briefs, the special trial judge “shall submit a report, including
findings of fact and opinion, to the Chief Judge, [who] will assign the
case to a Judge . . . of the Court.” In acting on the report, the assigned
Tax Court judge must give “[d]ue regard . . . to the circumstance that
the [s]pecial [t]rial [j]udge had the opportunity to evaluate the credibility
of the witnesses,” must “presum[e] to be correct” factfindings contained
in the report, and “may adopt the [s]pecial [t]rial [j]udge’s report or may
modify it or may reject it in whole or in part.” Rule 183(c). Until
1983, such special trial judge reports were made public and included in
the record on appeal. Coincident with a rule revision that year, the
Tax Court stopped disclosing those reports to the public and has ex-
cluded them from the appellate record. Further, Tax Court judges do
not disclose whether the final decision “modi[fies]” or “reject[s]” the spe-
cial trial judge’s initial report. Instead, the final decision invariably
begins with a stock statement that the Tax Court judge “agrees with
and adopts the opinion of the [s]pecial [t]rial [j]udge.” Whether and
how the final decision deviates from the special trial judge’s original
report is never revealed.
Petitioners Claude Ballard, Burton Kanter, and another taxpayer re-
ceived notices of deficiency from respondent Commissioner of Internal
Revenue (Commissioner) charging them with failure to report certain
payments on their individual tax returns and with tax fraud. They
filed petitions for redetermination in the Tax Court, where the Chief
Judge assigned the consolidated case to Special Trial Judge Couvillion.
*Together with No. 03–1034, Estate of Kanter, Deceased, et al. v. Com-
missioner of Internal Revenue, on certiorari to the United States Court
of Appeals for the Seventh Circuit.

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After trial, Judge Couvillion submitted a Rule 183(b) report to the Chief
Judge, who issued an order assigning the case to Tax Court Judge
Dawson “for review [of that report] and, if approved, for adoption.” Ul-
timately, Judge Dawson issued the Tax Court’s decision, finding that the
taxpayers had acted with intent to deceive the Commissioner, and hold-
ing them liable for underpaid taxes and substantial fraud penalties.
That decision, consisting wholly of a document labeled “Opinion of the
Special Trial Judge,” declared: “The Court agrees with and adopts the
opinion of the Special Trial Judge, which is set forth below.”
Based on conversations between Kanter’s attorney and two Tax Court
judges, the taxpayers came to believe that the decision was not in fact
a reproduction of Judge Couvillion’s Rule 183(b) report. According to
a declaration submitted by Kanter’s attorney, Judge Couvillion had con-
cluded that the taxpayers did not owe taxes with respect to some of the
payments at issue and that the fraud penalty was not applicable. The
taxpayers therefore filed motions seeking access to Judge Couvillion’s
initial report as submitted to the Chief Judge or, in the alternative,
permission to place that report under seal in the appellate record. De-
nying the requested relief, the Tax Court stated: “Judge Dawson . . .
and Special Trial Judge Couvillion agre[e] that . . . Judge Dawson
adopted the findings of fact and opinion of . . . Judge Couvillion, . . .
presumed [those] findings of fact . . . were correct, and . . . gave due
regard” to Judge Couvillion’s credibility findings. The order added that
“any preliminary drafts” of the special trial judge’s report were “not
subject to production because they relate to [the court’s] internal delib-
erative processes.” On appeal, both the Eleventh Circuit in Ballard’s
case and the Seventh Circuit in Kanter’s case rejected the taxpayers’
objection to the absence of the special trial judge’s Rule 183(b) report
from the appellate record. Proceeding to the merits, both Courts of
Appeals affirmed the Tax Court’s final decision in principal part.
Held: The Tax Court may not exclude from the record on appeal Rule
183(b) reports submitted by special trial judges. No statute authorizes,
and Rule 183’s current text does not warrant, the concealment at issue.
Pp. 53–65.
(a) Rule 183(c)’s promulgation history confirms the clear understand-
ing, from the start, that deference is due the trial judge’s factfindings
under the “[d]ue regard” and “presumed to be correct” formulations.
Under Rule 183’s precursor, the Tax Court’s review of the special trial
judge’s report was a transparent process. The report was served on
the parties, who were authorized to file objections to it, and the regular
Tax Court judge reviewed the report independently, on the basis of the
record and the parties’ objections. Parties were therefore equipped to

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42 BALLARD v. COMMISSIONER
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argue to an appellate court that the Tax Court failed to give the special
trial judge’s findings the required measure of respect. On adoption of
the 1983 amendments, however, the Tax Court stopped acknowledging
instances in which it rejected or modified special trial judge findings.
Instead, it appears that the Tax Court inaugurated a novel practice
whereby the special trial judge’s report is treated essentially as an in-
house draft to be worked over collaboratively by the regular Tax Court
judge and the special trial judge. The regular Tax Court judge then
issues a decision purporting to “agre[e] with and adop[t] the opinion of
the Special Trial Judge.”
Nowhere in the Tax Court’s current Rules is this joint enterprise
described or authorized. Notably, the Rules provide for only one spe-
cial trial judge “opinion”: Rule 183(b) instructs that the special trial
judge’s report, submitted to the Chief Judge before a regular Tax Court
judge is assigned to the case, shall consist of findings of fact and opinion.
It is the Rule 183(b) report, not some subsequently composed collabora-
tive report, that Rule 183(c), tellingly captioned “Action on the Report,”
instructs the Tax Court judge to review and adopt, modify, or reject.
It is difficult to comprehend how a Tax Court judge would give “[d]ue
regard” to, and “presum[e] to be correct,” an opinion he himself collabo-
rated in producing.
The Tax Court, like all other decisionmaking tribunals, is obliged to
follow its own Rules. See, e. g., Service v. Dulles, 354 U. S. 363, 388.
Although the Tax Court is not without leeway in interpreting its Rules,
it is unreasonable to read into Rule 183 an unprovided-for collaborative
process, and to interpret the formulations “due regard” and “presumed
to be correct,” to convey something other than what those same words
meant prior to the 1983 rule changes. Pp. 53–59.
(b) The Tax Court’s practice of not disclosing the special trial judge’s
original report, and of obscuring the Tax Court judge’s mode of review-
ing that report, impedes fully informed appellate review of the
Tax Court’s decision. In directing the regular judge to give “due
regard” to the special trial judge’s credibility determinations and to
“presum[e] . . . correct” the special trial judge’s factfindings, Rule 183(c)
recognizes a well-founded, commonly accepted understanding: The
officer who hears witnesses and sifts through evidence in the first in-
stance will have a comprehensive view of the case that cannot be con-
veyed full strength by a paper record. Fraud cases, in particular, may
involve critical credibility assessments, rendering the appraisals of the
judge who presided at trial vital to the ultimate determination. In the
present cases, for example, the Tax Court’s decision repeatedly draws
outcome-influencing conclusions regarding the credibility of Ballard,

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Kanter, and other witnesses. Absent access to the special trial judge’s
Rule 183(b) report in this and similar cases, the appellate court will be
at a loss to determine (1) whether the credibility and other findings
made in that report were accorded “[d]ue regard” and were “pre-
sumed . . . correct” by the Tax Court judge, or (2) whether they were
displaced without adherence to those standards.
The Tax Court’s practice is extraordinary, for it is routine in federal
judicial and administrative decisionmaking both to disclose a hearing
officer’s initial report, see, e. g., 28 U. S. C. § 636(b)(1)(C), and to make
that report part of the record available to an appellate forum, see, e. g.,
5 U. S. C. § 557(c). The Commissioner asserts a statutory analogy, how-
ever, 26 U. S. C. § 7460(b), which instructs that when the full Tax Court
reviews the decision of a single Tax Court judge, the initial one-judge
decision “shall not be a part of the record.” This Court rejects the
Commissioner’s endeavor to equate proceedings that differ markedly.
Full Tax Court review is designed for resolution of legal issues. Re-
view of that order is de novo. In contrast, findings of fact are key to
special trial judge reports. Those findings, under the Tax Court’s
Rules, are not subject to de novo review. Instead, they are measured
against “due regard” and “presumed correct” standards. Furthermore,
all regular Tax Court members are equal in rank, each has an equal
voice in the Tax Court’s business, and the regular judge who issued the
original decision is free to file a dissenting opinion recapitulating that
judge’s initial opinion. The special trial judge, who serves at the pleas-
ure of the Tax Court, lacks the regular judges’ independence and the
prerogative to publish dissenting views.
Given this Court’s holding that the Tax Court’s practice is not de-
scribed and authorized by that court’s Rules, this Court need not reach,
and expresses no opinion on, the taxpayers’ further arguments based on
due process and other statutory provisions. Should the Tax Court
some day amend its Rules to adopt the idiosyncratic procedure here
rejected, the changed character of the Tax Court judge’s review of spe-
cial trial judge reports would be subject to appellate review for consist-
ency with the relevant federal statutes and due process. Pp. 59–65.
No. 03–184, 321 F. 3d 1037; No. 03–1034, 337 F. 3d 833, reversed and
remanded.
Ginsburg, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined.
Kennedy, J., filed a concurring opinion, in which Scalia, J., joined, post,
p. 65. Rehnquist, C. J., filed a dissenting opinion, in which Thomas, J.,
joined, post, p. 68.

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44 BALLARD v. COMMISSIONER
Opinion of the Court
Stephen M. Shapiro argued the cause for petitioners in
both cases. On the briefs in No. 03–184 were Vester T.
Hughes, Jr., Robert E. Davis, David J. Schenck, Christopher
D. Kratovil, Steven S. Brown, Royal B. Martin, and William
G. Sullivan. With Mr. Shapiro on the briefs in No. 03–1034
were Richard H. Pildes, Peter J. Rubin, N. Jerold Cohen,
Teresa Wynn Roseborough, Philip Allen Lacovara, and
Randall G. Dick.
Deputy Solicitor General Hungar argued the cause for
respondent in both cases. With him on the brief were Act-
ing Solicitor General Clement, Assistant Attorney General
O’Connor, Deputy Assistant Attorney General Morrison,
Traci L. Lovitt, Kenneth L. Greene, and Steven W. Parks.†
Justice Ginsburg delivered the opinion of the Court.
These cases concern the Tax Court’s employment of special
trial judges, auxiliary officers appointed by the Chief Judge
of the Tax Court to assist in the work of the court. See
26 U. S. C. § 7443A(a). Unlike Tax Court judges, who are
appointed by the President for 15-year terms, see § 7443(b),
(e), special trial judges have no fixed term of office,
§ 7443A(a). Any case before the Tax Court may be assigned
to a special trial judge for hearing. Ultimate decision in
cases involving tax deficiencies that exceed $50,000, however,
is reserved for the Tax Court. § 7443A(c).
Tax Court Rule 183 governs the two-tiered proceedings in
which a special trial judge hears the case, but the Tax Court
itself renders the final decision. The Rule directs that, after
†Briefs of amici curiae urging reversal in both cases were filed for
the National Federation of Independent Business Legal Foundation by H.
Christopher Bartolomucci; and for Senator David Pryor et al. by Roder-
ick M. Hills, Jr.
Scott L. Nelson, Alan B. Morrison, and Steven R. Shapiro filed a brief
for Public Citizen, Inc., et al. as amici curiae urging reversal in
No. 03–1034.
Leandra Lederman, pro se, filed a brief as amicus curiae.

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trial and submission of briefs, the special trial judge “shall
submit a report, including findings of fact and opinion, to the
Chief Judge, and the Chief Judge will assign the case to a
Judge . . . of the Court.” Tax Ct. Rule 183(b), 26 U. S. C.
App., p. 1619. In acting on the report, the Tax Court judge
to whom the case is assigned must give “[d]ue regard . . .
to the circumstance that the [s]pecial [t]rial [j]udge had the
opportunity to evaluate the credibility of the witnesses.”
Rule 183(c), ibid. Further, factfindings contained in the re-
port “shall be presumed to be correct.” Ibid. The final
Tax Court decision “may adopt the [s]pecial [t]rial [j]udge’s
report or may modify it or may reject it in whole or in
part.” Ibid.
Until 1983, special trial judge reports, as submitted to the
Chief Judge, were made public and were included in the rec-
ord on appeal. A rule revision that year deleted the re-
quirement that, upon submission of the special trial judge’s
report, “a copy . . . shall forthwith be served on each party.”
See Rule 183 note, 81 T. C. 1069–1070 (1984). Correspond-
ingly, the revision deleted the prior provision giving parties
an opportunity to set forth “exceptions” to the report.
Ibid.1 Coincident with those rule changes, the Tax Court
significantly altered its practice in cases referred for trial,
but not final decision, to special trial judges. Since the Jan-
1 Unlike other judicial and administrative bodies, the Tax Court does not
maintain a formal practice of publicly disclosing proposed amendments to
its Rules. See Estate of Kanter v. Commissioner, 337 F. 3d 833, 877–878,
n. 2 (CA7 2003) (Cudahy, J., concurring in part and dissenting in part)
(describing the Tax Court’s lack of a “formal documented procedure” for
amending its Rules as “oddly out of sync with prevailing practices in other
areas of the law”). Although the Tax Court solicits comments on pro-
posed rule changes from the American Bar Association’s Section on Taxa-
tion, see ABA Members Suggest Modifications to Proposed Amendments
of Tax Court Rules, 97 Tax Notes Today, p. 167–25 (Aug. 28, 1997), the
court apparently does not publish its proposals to, or accept comments
from, the general public.

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46 BALLARD v. COMMISSIONER
Opinion of the Court
uary 16, 1984 effective date of the rule revision, the post-trial
report submitted to the Chief Judge, then transmitted to the
Tax Court judge assigned to make the final decision, has
been both withheld from the public and excluded from the
record on appeal. Further, since that time, Tax Court
judges have refrained from disclosing, in any case, whether
the final decision in fact “modi[fies]” or “reject[s] [the special
trial judge’s initial report] in whole or in part.” Cf. Rule
183(c), 26 U. S. C. App., p. 1619. Instead, the final decision
invariably begins with a stock statement that the Tax Court
judge “agrees with and adopts the opinion of the [s]pecial
[t]rial [j]udge.” See, e. g., Investment Research Assoc., Ltd.
v. Commissioner, 78 TCM 951, 963 (1999), ¶ 99,407 RIA
Memo TC, pp. 2562–2563. Whether and how the opinion
thus adopted deviates from the special trial judge’s original
report is never made public.
Petitioners are taxpayers who were unsuccessful in the
Tax Court and on appeal. They object to the concealment
of the special trial judge’s initial report and, in particular,
exclusion of the report from the record on appeal. They
urge that, under the Tax Court’s current practice, the parties
and the Court of Appeals lack essential information: One can-
not tell whether, as Rule 183(c) requires, the final decision
reflects “[d]ue regard” for the special trial judge’s “opportu-
nity to evaluate the credibility of [the] witnesses,” and pre-
sumes the correctness of that judge’s initial factfindings.
We agree that no statute authorizes, and the current text of
Rule 183 does not warrant, the concealment at issue. We so
hold, mindful that it is routine in federal judicial and adminis-
trative decisionmaking both to disclose the initial report of a
hearing officer, and to make that report part of the record
available to an appellate forum. A departure of the bold
character practiced by the Tax Court—the creation and at-
tribution solely to the special trial judge of a superseding
report composed in unrevealed collaboration with a regular

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Tax Court judge—demands, at the very least, full and fair
statement in the Tax Court’s own Rules.2
I
After repeated Internal Revenue Service audits spanning
several years, taxpayers Claude Ballard, Burton W. Kanter,
and Robert Lisle received multiple notices of deficiency from
the Commissioner of Internal Revenue (Commissioner).3
The Commissioner charged that during the 1970’s and 1980’s,
Ballard and Lisle, real estate executives at the Prudential
Life Insurance Company of America (Prudential), had an
arrangement with Kanter, a tax lawyer and business entre-
preneur, under which people seeking to do business with
Prudential made payments to corporations controlled by
2 The dissent observes that the parties did not discretely refer to the
ground on which our decision rests. See post, at 68, n. 1 (opinion of Rehn-
quist, C. J.); Brief for Petitioner Kanter (i) (asking whether Tax Court
Rule 183 requires Tax Court judges to uphold findings made by special
trial judges unless “clearly erroneous” (internal quotation marks omit-
ted)). The meaning of Rule 183, however, is a question anterior to all
other questions the parties raised, and the requirements of the Rule were
indeed aired in the taxpayers’ briefs. See id., at 34–39; Reply Brief for
Petitioner Ballard 2–3, 8–10; Reply Brief for Petitioner Kanter 3–8.
Under the circumstances, we think it evident that our disposition is in
entire accord with “our own Rule.” Compare post, at 68, n. 1 (opinion of
Rehnquist, C. J.), with this Court’s Rule 14.1(a) (“The statement of any
question presented is deemed to comprise every subsidiary question fairly
included therein.”); and R. A. V. v. St. Paul, 505 U. S. 377, 381, n. 3 (1992).
See generally R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme
Court Practice 414 (8th ed. 2002) (observing that “[q]uestions not explicitly
mentioned but essential to analysis of the decisions below or to the correct
disposition of the other issues have been treated as subsidiary issues fairly
comprised by the question presented” (internal quotation marks omitted)).
3 Petitioners here are Ballard; his wife, who was included in the notices
of deficiency because she filed joint returns with her husband; Kanter’s
estate; Kanter’s executor; and Kanter’s wife. Brief for Petitioner Ballard
(ii); Brief for Petitioner Kanter (ii). Lisle’s estate is not a petitioner be-
fore this Court. See infra, at 52, and n. 8. For convenience, this opinion
will refer to the petitioners simply as “Ballard” and “Kanter.”

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Kanter. Those payments, the Commissioner alleged, were
then distributed to Kanter, Ballard, and Lisle, or to entities
they controlled. Ballard, Kanter, and Lisle did not report
the payments on their individual tax returns. See Invest-
ment Research Assoc., 78 TCM, at 1058, ¶ 99,407 RIA Memo
TC, pp. 2672–2673; Ballard v. Commissioner, 321 F. 3d 1037,
1038–1039 (CA11 2003); Brief for Petitioner Ballard 3–4;
Brief for Petitioner Kanter 11. After the initial deficiency
notices, the Commissioner, in 1994, additionally charged that
the taxpayers’ actions were fraudulent. See Investment
Research Assoc., 78 TCM, at 966, ¶ 99,407 RIA Memo TC,
p. 2693. As to each asserted deficiency, Ballard, Kanter, and
Lisle filed petitions for redetermination in the Tax Court.
See Ballard, 321 F. 3d, at 1040.
The Tax Court is composed of 19 regular judges appointed
by the President for 15-year terms, and several special trial
judges appointed, from time to time, by the Tax Court’s
Chief Judge. See 26 U. S. C. §§ 7443(a)–(b), (e), 7443A(a).4
The statute governing the appointment and competence of
special trial judges, § 7443A,5 prescribes no term of office
for them, but sets their salaries at 90% of the salary paid
to regular judges of the Tax Court, see § 7443A(d). The
Tax Court may authorize special trial judges to hear and
render final decisions in declaratory judgment proceedings,
“small tax cases,” and levy and lien proceedings. See
§ 7443A(b)(1)–(4), (c); Tax Ct. Rule 182, 26 U. S. C. App.,
p. 1619; Brief for Respondent 3. If the amount of the taxes
at issue exceeds $50,000, a special trial judge may be as-
4 Special trial judges were called “commissioners” when the office was
created in 1943. The Tax Court changed the title to “special trial judge”
in 1979. See Tax Ct. Rule 182 note, 71 T. C. 1215 (1979); Brief for Peti-
tioner Kanter 6.
5 Section 7443A was amended and renumbered in 1998, some years after
the 1994 trial in these cases. See Pub. L. 105–206, § 3401(c), 112 Stat. 749.
The alterations did not change the statute’s text in any relevant respect.
This opinion refers to the current version of the statute.

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signed to preside over the trial and issue a report containing
recommended factfindings and conclusions as to the tax-
payers’ liability, but decisional authority is reserved for the
Tax Court. See § 7443A(b)(5), (c); Freytag v. Commissioner,
501 U. S. 868, 881–882 (1991) (noting that special trial judges
“take testimony, conduct trials, [and] rule on the admissibil-
ity of evidence,” but “lack authority to enter a final decision”
in certain cases). Tax Court Rule 183 governs the Tax
Court’s review of the special trial judge’s findings and opin-
ion. See supra, at 44–45.
After Ballard, Kanter, and Lisle sought review in the Tax
Court, the Chief Judge assigned the consolidated case to
Special Trial Judge D. Irvin Couvillion for trial. Judge
Couvillion presided over a five-week trial during the summer
of 1994, and the parties’ briefing was completed in May 1995.
App. 7; see also Ballard, 321 F. 3d, at 1040. The post-trial
proceedings in the case are not fully memorialized in either
the Tax Court’s docket records or its published orders, but
certain salient events can be traced. On or before Septem-
ber 2, 1998, Judge Couvillion submitted to the Chief Judge
a report containing his findings of fact and opinion, “as
required by [Tax Court] Rule 183(b).” Order of Dec. 15,
1999, in No. 43966–85 etc. (TC), App. to Kanter Pet. for
Cert. 113a–114a. On September 2, 1998, the Chief Judge
assigned the case to Tax Court Judge Howard A. Dawson,
Jr., “for review [of the special trial judge’s report] and, if
approved, for adoption.” Id., at 114a.6 Fifteen months
later, on December 15, 1999, the Chief Judge “reassigned”
the case “from [Judge] Couvillion to [Judge] Dawson.” Id.,
6 Judge Dawson is a retired Tax Court judge who served two terms,
from 1962 until 1985, as a regular member of the court. He was recalled
to judicial duties by the Chief Judge of the Tax Court in 1990. See 26
U. S. C. § 7447(c). Recalled judges serve “for any period . . . specified by
the chief judge.” Ibid. Their salary, unlike that of special trial judges,
see supra, at 48, is equal to that of Tax Court judges.

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50 BALLARD v. COMMISSIONER
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at 113a. That same day, Judge Dawson issued the decision
of the Tax Court.
Judge Dawson found that Ballard, Kanter, and Lisle had
acted with intent to deceive the Commissioner, and held
them liable for underpaid taxes and substantial fraud penal-
ties. See, e. g., Investment Research Assoc., 78 TCM, at
1071, 1075, 1085, ¶ 99,407 RIA Memo TC, pp. 2689, 2692–2693,
2705–2706. In so ruling, Judge Dawson purported to adopt
the findings contained in the report submitted by Judge
Couvillion: “The Court agrees with and adopts the opinion
of the Special Trial Judge, which is set forth below.” Id.,
at 963, ¶ 99,407 RIA Memo TC, pp. 2562–2563. Judge
Dawson’s decision consists in its entirety of a document, over
600 pages in length, labeled “Opinion of the Special Trial
Judge.” Ibid.
The taxpayers came to believe that the document titled
“Opinion of the Special Trial Judge” was not in fact a repro-
duction of Judge Couvillion’s Rule 183(b) report. A declara-
tion, dated August 21, 2000, submitted by Kanter’s attorney,
Randall G. Dick, accounts for this belief. Dick attested to
conversations with two Tax Court judges regarding the Tax
Court’s decision. According to the declaration, the judges
told Dick that in the Rule 183(b) report submitted to the
Chief Judge, Judge Couvillion had concluded that Ballard,
Kanter, and Lisle did not owe taxes with respect to pay-
ments made by certain individuals seeking to do business
with Prudential, and that the fraud penalty was not applica-
ble. App. to Ballard Pet. for Cert. 308a–309a, ¶ 4. Attor-
ney Dick’s declaration further stated:
“In my conversations with the judges of the Tax Court,
I was told the following: That substantial sections of the
opinion were not written by Judge Couvillion, and that
those sections containing findings related to the credibil-
ity of witnesses and findings related to fraud were
wholly contrary to the findings made by Judge Couvil-
lion in his report. The changes to Judge Couvillion’s

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findings relating to credibility and fraud were made by
Judge Dawson.” Id., at 309a, ¶ 5.
Concerned that Judge Dawson had modified or rejected
special trial judge findings tending in their favor, see Tax Ct.
Rule 183(c), the taxpayers filed three successive motions in
the Tax Court; each motion sought access to the report Spe-
cial Trial Judge Couvillion had submitted to the Chief Judge
or, in the alternative, permission to place the special trial
judge’s report under seal in the record on appeal. See
Order of Aug. 30, 2000, App. to Kanter Pet. for Cert. 99a–
101a; Motion of May 25, 2000, id., at 105a. The Tax Court
denied the motions. See Order of Aug. 30, 2000, id., at
100a–101a, 103a. In response to the taxpayers’ third mo-
tion, filed in August 2000, the Tax Court elaborated: “Judge
Dawson states and Special Trial Judge Couvillion agrees,
that, after a meticulous and time-consuming review of the
complex record in these cases, Judge Dawson adopted the
findings of fact and opinion of Special Trial Judge Couvil-
lion, . . . Judge Dawson presumed the findings of fact recom-
mended by Special Trial Judge Couvillion were correct,
and . . . Judge Dawson gave due regard” to Judge Couvil-
lion’s credibility findings. Id., at 102a. To the extent that
the taxpayers sought “any preliminary drafts” of the special
trial judge’s report, the Tax Court added, such documents
are “not subject to production because they relate to the in-
ternal deliberative processes of the Court.” Id., at 101a
(quoting Order of Apr. 26, 2000, id., at 109a).
Appeals from Tax Court decisions are taken to the court
of appeals for the circuit in which the taxpayer resides. 26
U. S. C. § 7482(b)(1)(A). Ballard therefore appealed to the
Eleventh Circuit, Kanter to the Seventh Circuit, and Lisle to
the Fifth Circuit. All three Courts of Appeals accepted the
Commissioner’s argument that the special trial judge’s signa-
ture on the Tax Court’s final decision rendered that decision
in fact Special Trial Judge Couvillion’s report. Estate of
Kanter v. Commissioner, 337 F. 3d 833, 840–841 (CA7 2003);

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52 BALLARD v. COMMISSIONER
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Ballard, 321 F. 3d, at 1042; accord Estate of Lisle v. Commis-
sioner, 341 F. 3d 364, 384 (CA5 2003) (adopting the reasoning
of the Seventh and Eleventh Circuits without elaboration).
The appeals courts further agreed with the Commissioner
that the special trial judge’s original report, submitted to the
Chief Judge pursuant to Rule 183(b), qualified as a confiden-
tial document, shielded as part of the Tax Court’s internal
deliberative process. See Kanter, 337 F. 3d, at 841–844;
Ballard, 321 F. 3d, at 1042–1043; accord Estate of Lisle, 341
F. 3d, at 384.
Having rejected the taxpayers’ objection to the absence of
the special trial judge’s Rule 183(b) report from the record
on appeal, the Seventh and Eleventh Circuits proceeded to
the merits of the Tax Court’s final decision and affirmed that
decision in principal part. See Kanter, 337 F. 3d, at 873–
874; Ballard, 321 F. 3d, at 1044.7 The Fifth Circuit’s judg-
ment, which is not before this Court, reversed the fraud pen-
alties assessed against Lisle for evidentiary insufficiency but
upheld the Tax Court’s determination of tax deficiencies for
certain years. See Estate of Lisle, 341 F. 3d, at 384–385.8
Seventh Circuit Judge Cudahy dissented on the issue of the
special trial judge’s initial report, maintaining that intelli-
gent review of the Tax Court’s decision required inclusion of
that report in the record on appeal. See Kanter, 337 F. 3d,
at 874, 884–888.
We granted certiorari, 541 U. S. 1009 (2004), to resolve the
question whether the Tax Court may exclude from the rec-
ord on appeal Rule 183(b) reports submitted by special trial
judges. We now reverse the decisions of the Seventh and
Eleventh Circuits upholding the exclusion.
7 Finding one of Kanter’s deductions legitimate, the Seventh Circuit re-
versed the Tax Court’s ruling on that issue. See Kanter, 337 F. 3d, at
854–857.
8 Lisle’s estate did not seek this Court’s review of the adverse portions
of the Fifth Circuit’s decision.

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53 Cite as: 544 U. S. 40 (2005)
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II
Central to these cases is Tax Court Rule 183, which delin-
eates the procedural framework and substantive standards
governing Tax Court review of special trial judge findings.
Rule 183(b), captioned “Special Trial Judge’s Report,” pro-
vides that after the trial of a case and submission of the
parties’ briefs, “the Special Trial Judge shall submit a report,
including findings of fact and opinion, to the Chief Judge, and
the Chief Judge will assign the case to a Judge . . . of the
Court.” 26 U. S. C. App., p. 1619.9 Rule 183(c), directed to
the Tax Court judge to whom the case is assigned for final
decision, reads:
“Action on the Report: The Judge to whom . . . the case
is assigned may adopt the Special Trial Judge’s report
or may modify it or may reject it in whole or in part, or
may direct the filing of additional briefs or may receive
further evidence or may direct oral argument, or may
recommit the report with instructions. Due regard
shall be given to the circumstance that the Special Trial
Judge had the opportunity to evaluate the credibility of
witnesses, and the findings of fact recommended by the
Special Trial Judge shall be presumed to be correct.”
The Tax Court judge assigned to take action on the special
trial judge’s report in these cases invoked none of the means
Rule 183(c) provides to supplement the record. He did not
“direct the filing of additional briefs[,] receive further evi-
dence or . . . direct oral argument.” See ibid. Nor does
the record show, or the Commissioner contend, see Brief for
Respondent 14–15, that the Tax Court judge “recommit[ed]
9 Rule 183 has been amended since these cases were before the Tax
Court, but the substantive provisions of the Rule have not been altered
in any relevant respect. Compare Tax Ct. Rule 183, 26 U. S. C. App.,
p. 1483 (1994 ed.), with Tax Ct. Rule 183 (interim amendment), 26 U. S. C.
App., p. 1670 (2000 ed.). Citations in this opinion are to the version of
the Rule reprinted in the 2000 edition of the United States Code.

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54 BALLARD v. COMMISSIONER
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the [special trial judge’s] report with instructions.” Rule
183(c).10 From all that appears on the record, then, Judge
Dawson’s review of the factfindings contained in Judge
Couvillion’s report rested on the Rule 183(b) report itself,
the trial transcript, and the other documents on file. Rule
183(c) guides the appraisal of those filed materials.
Rule 183(c)’s origin confirms the clear understanding, from
the start, that deference is due to factfindings made by the
trial judge. Commenting in 1973 on then newly adopted
Rule 182(d), the precursor to Rule 183(c), the Tax Court
observed that the Rule was modeled on Rule 147(b) of the
former Court of Claims. Tax Ct. Rule 182 note, 60 T. C.
1150 (Tax Court review procedures were to be “comparable”
to those used in the Court of Claims). Rule 182(d)’s “[d]ue
10 The record does contain an order stating in its entirety:
“For cause, it is ORDERED: That these cases are reassigned from Spe-
cial Trial Judge D. Irvin Couvillion to Judge Howard A. Dawson, Jr., for
disposition.
“After the Special Trial Judge submitted a report, as required by Rule
183(b), Tax Court Rules of Practice and Procedure, these cases were re-
ferred to Judge Dawson on September 2, 1998, for review and, if approved,
for adoption.
. . . . .
“Dated: Washington, D. C. December 15, 1999.” App. to Kanter Pet.
for Cert. 113a–114a.
One might speculate, from the reference to a “reassign[ment],” that at
some point between September 1998 and December 1999, Judge Dawson
“recommitted” the report to Judge Couvillion, who subsequently submit-
ted a revised report to the Chief Judge who, in turn, referred that report
to Judge Dawson. The Commissioner does not urge such an interpreta-
tion of the December 15, 1999 order, however, and it is, in any event,
implausible. The Tax Court’s docket reveals no action taken between the
initial assignment and the enigmatic reassignment. Had Judge Dawson
turned back the report after first receiving it, an order recommitting the
case to Judge Couvillion “with instructions,” Rule 183(c), should have me-
morialized that action. Moreover, Judge Dawson rendered the final deci-
sion of the Tax Court on the same day the case was “reassigned” to him.
Had he faced a recast Rule 183(b) report, it is doubtful that he could have
absorbed and acted upon it so swiftly.

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55 Cite as: 544 U. S. 40 (2005)
Opinion of the Court
regard” and “presumed to be correct” formulations were
taken directly from that earlier Rule,11 which the Court of
Claims interpreted to require respectful attention to the
trial judge’s findings of fact. See Hebah v. United States,
456 F. 2d 696, 698 (Ct. Cl. 1972) (per curiam) (challenger
must make “a strong affirmative showing” to overcome the
presumption of correctness that attaches to trial judge find-
ings). The Tax Court’s acknowledgment of Court of Claims
Rule 147(b) as the model for its own Rule, indeed the Tax
Court’s adoption of nearly identical language, lead to the con-
clusion the Tax Court itself expressed: Under the Rule for-
merly designated Rule 182(b), now designated 183(c), special
trial judge findings carry “special weight insofar as those
findings are determined by the opportunity to hear and ob-
serve the witnesses.” Tax Ct. Rule 182 note, 60 T. C. 1150
(1973); see Stone v. Commissioner, 865 F. 2d 342, 345
(CADC 1989).
Under Rule 182 as it was formulated in 1973, the Tax
Court’s review of the special trial judge’s report was a trans-
parent process. Rule 182(b) provided for service of copies
of the special trial judge’s report on the parties and Rule
182(c) allowed parties to file exceptions to the report. 60
T. C., at 1149. The process resembled a district court’s re-
view of a magistrate judge’s report and recommendation:
The regular Tax Court judge reviewed the special trial
judge’s report independently, on the basis of the record and
the parties’ objections to the report. See Rule 182(c), (d),
id., at 1149–1150. In years before 1984, the Tax Court ac-
11 Court of Claims Rule 147(b) provided:
“The court may adopt the [trial judge’s] report, including conclusions of
fact and law, or may modify it, or reject it in whole or in part, or direct
the [trial judge] to receive further evidence, or refer the case back to him
with instructions. Due regard shall be given to the circumstance that the
[trial judge] had the opportunity to evaluate the credibility of the wit-
nesses; and the findings of fact made by the [trial judge] shall be presumed
to be correct.” 28 U. S. C. App., p. 7903 (1970 ed.).

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56 BALLARD v. COMMISSIONER
Opinion of the Court
knowledged instances in which it “disagree[d] with the Spe-
cial Trial Judge,” see Rosenbaum v. Commissioner, 45 TCM
825, 827 (1983), ¶ 83,113 P–H Memo TC, p. 373, or modified
the special trial judge’s findings, see Taylor v. Commis-
sioner, 41 TCM 539 (1980), ¶ 80,552 P–H Memo TC, p. 2344
(adopting special trial judge’s report with “some modifica-
tions”). Parties were therefore equipped to argue to an ap-
pellate court that the Tax Court failed to give the special
trial judge’s findings the measure of respect required by
Rule 182(d)’s “[d]ue regard” and “presumed to be correct”
formulations.
In 1983, the Tax Court amended the Rule, which it simul-
taneously renumbered as Rule 183. The 1983 change elimi-
nated the provision, formerly in Rule 182(b), for service of
copies of the special trial judge’s report on the parties; it also
eliminated the procedure, formerly in Rule 182(c), permitting
the parties to file exceptions to the report. See Rule 183
note, 81 T. C., at 1069–1070. The Tax Court left intact, how-
ever, the Rule’s call for “[d]ue regard” to the special trial
judge’s credibility determinations and the instruction that
“the findings of fact recommended by the Special Trial Judge
shall be presumed to be correct.” Rule 183(c), id., at 1069.
Further, the 1983 amendments did not purport to change the
character of the action the Tax Court judge could take on
the special trial judge’s report; as before, the Tax Court
could “adopt” the report, “modify it,” or “reject it in whole
or in part.” Ibid. In practice, however, the Tax Court
stopped acknowledging instances in which it rejected or
modified special trial judge findings. Judge Cudahy, in
dissent in the Seventh Circuit, commented on the “extraordi-
nary unanimity” that has prevailed since the 1983 amend-
ments: “Never, in any instance since the adoption of the cur-
rent Rule 183 that I could find,” Judge Cudahy reported,
“has a Tax Court judge not agreed with and adopted the
[special trial judge’s] opinion.” Kanter, 337 F. 3d, at 876;
cf. Tr. of Oral Arg. 44 (Counsel for the Commissioner, in re-

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57 Cite as: 544 U. S. 40 (2005)
Opinion of the Court
sponse to the Court’s question, stated: “We’re not aware of
any cases in which the Tax Court judge has rejected the
[special trial judge’s] findings . . . .”).
It appears from these cases and from the Commissioner’s
representations to this Court that the Tax Court, following
the 1983 amendments to Rule 183, inaugurated a novel prac-
tice regarding the report the special trial judge submits
post-trial to the Chief Judge. No longer does the Tax Court
judge assigned to the case alone review the report and issue
a decision adopting it, modifying it, or rejecting it in whole
or in part. Instead, the Tax Court judge treats the special
trial judge’s report essentially as an in-house draft to be
worked over collaboratively by the regular judge and the
special trial judge. See id., at 38 (Counsel for the Commis-
sioner acknowledged that the special trial judge and regular
Tax Court judge engage in “a collegial deliberative process,”
and that such a process, “involving more than one person . . .
in the decision-making,” is “unusual”); see also id., at 29–30
(referring to “the deliberative process” occurring after the
special trial judge submits his report to the Chief Judge);
Kanter, 337 F. 3d, at 876–877 (Cudahy, J., dissenting). No-
where in the Tax Court’s Rules is this joint enterprise
described.12
When the collaborative process is complete, the Tax Court
judge issues a decision in all cases “agree[ing] with and
adopt[ing] the opinion of the Special Trial Judge.” See
supra, at 46. The extent to which that “opinion” modifies
or rejects the special trial judge’s Rule 183(b) findings and
opinion, and is in significant part prompted or written by the
regular Tax Court judge, is undisclosed. Cf. Order of Apr.
26, 2000, App. to Kanter Pet. for Cert. 108a (denying motion
for access to original special trial judge report prepared
12 Nor does any other Tax Court publication, such as an interpretive
guide or policy statement, suggest that the 1983 amendments to Rule 183
altered the internal process by which the Tax Court judge reviews the
special trial judge’s findings.

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58 BALLARD v. COMMISSIONER
Opinion of the Court
under Rule 183(b), Tax Court Judge Dawson stated: “Special
Trial Judge Couvillion submitted his report . . . pursuant
to Rule 183(b), which ultimately became the Memorandum
Findings of Fact and Opinion . . . filed on December 15,
1999.”).13
Judge Cudahy appears accurately to have described the
process operative in the Tax Court:
“[T]here are two ‘[special trial judge’s] reports’ in many
. . . Tax Court cases—the original ‘report’ filed under
Rule 183 with the Chief Judge of the Tax Court, which
is solely the work product of the [special trial judge] (and
which represented the [special trial judge’s] views at the
end of trial) and the later ‘opinion’ of the [special trial
judge], which is a collaborative effort, but which the Tax
Court then ‘agrees with and adopts’ as the opinion of
the Tax Court.” Kanter, 337 F. 3d, at 876.
Notably, however, the Tax Court Rules refer only once to a
special trial judge “opinion”: “[T]he Special Trial Judge shall
submit a report, including findings of fact and opinion, to the
Chief Judge.” Tax Ct. Rule 183(b), 26 U. S. C. App., p. 1619
(emphasis added). That opinion, included in a report com-
pleted and submitted before a regular Tax Court judge is
assigned to the case, is the sole opinion properly ascribed to
the special trial judge under the current Rules. Corre-
spondingly, it is the Rule 183(b) report, not some subse-
quently composed collaborative report, that Rule 183(c),
tellingly captioned “Action on the Report,” instructs the Tax
Court judge to review and adopt, modify, or reject. See
Rule 183(c) (the Tax Court judge “may adopt the Special
13 The Tax Court’s post-1983 process for reviewing special trial judge
reports appears not to have been comprehended, even by cognoscenti,
prior to the airing it has received in these cases. See Cahill, Tax Judges
Decide Cases They Do Not Hear, 37 ABA J. E-Report 3 (Sept. 27, 2002)
(quoting tax attorney Gerald Kafka’s statement that “[w]hen this case sur-
faced, a lot of people scratched their heads” (internal quotation marks
omitted)).

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59 Cite as: 544 U. S. 40 (2005)
Opinion of the Court
Trial Judge’s report”).14 In the review process contem-
plated by Rule 183(c), the Tax Court judge must accord def-
erence to the special trial judge’s findings. Ibid. One
would be hard put to explain, however, how a final decision-
maker, here the Tax Court judge, would give “[d]ue regard”
to, and “presum[e] to be correct,” an opinion the judge him-
self collaborated in producing.
However efficient the Tax Court’s current practice may be,
we find no warrant for it in the Rules the Tax Court pub-
lishes. The Tax Court, like all other decisionmaking tribu-
nals, is obliged to follow its own Rules. See Service v.
Dulles, 354 U. S. 363, 388 (1957) (Secretary of State “could
not, so long as the Regulations remained unchanged, proceed
without regard to them”); see also Vitarelli v. Seaton, 359
U. S. 535, 540 (1959) (Secretary bound by regulations he pro-
mulgated “even though without such regulations” he could
have taken the challenged action); id., at 546–547 (Frank-
furter, J., concurring in part and dissenting in part) (ob-
serving that an agency, all Members of the Court agreed,
and “rightly so,” “must be rigorously held to the standards
by which it professes its action to be judged”). Although
the Tax Court is not without leeway in interpreting its
own Rules, it is unreasonable to read into Rule 183 an
unprovided-for collaborative process, and to interpret the
formulations “[d]ue regard” and “presumed to be correct”
to convey something other than what those same words
meant prior to the 1983 rule changes. See supra, at 54–56.
The Tax Court’s practice of not disclosing the special trial
judge’s original report, and of obscuring the Tax Court
judge’s mode of reviewing that report, impedes fully in-
14 The Tax Court, we are confident, would not woodenly apply its Rules
to prevent a special trial judge from correcting a clerical error. But see
post, at 71, n. 6 (Rehnquist, C. J., dissenting). Moreover, if the special
trial judge, on rereading his Rule 183(b) report postsubmission, detects an
error of substance, the special trial judge might ask to have the report
“recommit[ted]” for modification. See Rule 183(c).

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60 BALLARD v. COMMISSIONER
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formed appellate review of the Tax Court’s decision. In
directing the Tax Court judge to give “[d]ue regard” to the
special trial judge’s credibility determinations and to “pre-
sum[e] . . . correct” the special trial judge’s factfindings, Rule
183(c) recognizes a well-founded, commonly accepted under-
standing: The officer who hears witnesses and sifts through
evidence in the first instance will have a comprehensive view
of the case that cannot be conveyed full strength by a
paper record.
Fraud cases, in particular, may involve critical credibility
assessments, rendering the appraisals of the judge who
presided at trial vital to the Tax Court’s ultimate determina-
tions. These cases are illustrative. The Tax Court’s deci-
sion repeatedly draws outcome-influencing conclusions re-
garding the credibility of Ballard, Kanter, and several other
witnesses. See, e. g., Investment Research Assoc., 78 TCM,
at 1060, ¶ 99,407 RIA Memo TC, p. 2675 (“We find Kanter’s
testimony to be implausible.”); id., at 1083, ¶ 99,407 RIA
Memo TC, p. 2703 (“[W]e find Ballard’s testimony vague, eva-
sive, and unreliable.”); id., at 1079, ¶ 99,407 RIA Memo TC,
p. 2698 (“The testimony of Thomas Lisle, Melinda Ballard,
Hart, and Albrecht is not credible.”); id., at 1140, ¶ 99,407
RIA Memo TC, p. 2776 (“[T]he witnesses presented on behalf
of [Investment Research Associates] in this case were obvi-
ously biased, and their testimony was not credible.”). Ab-
sent access to the special trial judge’s Rule 183(b) report in
this and similar cases, the appellate court will be at a loss to
determine (1) whether the credibility and other findings
made in that report were accorded “[d]ue regard” and were
“presumed . . . correct” by the Tax Court judge, or
(2) whether they were displaced without adherence to those
standards. See Kanter, 337 F. 3d, at 886 (Cudahy, J., concur-
ring in part and dissenting in part) (“I can think of no single
item of more significance in evaluating a Tax Court’s decision

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61 Cite as: 544 U. S. 40 (2005)
Opinion of the Court
on fraud than the unfiltered findings of the [special trial
judge] who stood watch over the trial.”).
The Commissioner urges, however, that the special trial
judge’s report is an internal draft, a mere “step” in a “con-
fidential decisional process,” and therefore properly withheld
from a reviewing court. See Brief for Respondent 16–17
(courts should not “probe the mental processes” of decisional
authorities (quoting United States v. Morgan, 313 U. S. 409,
422 (1941))); accord Order of Aug. 30, 2000, App. to Kanter
Pet. for Cert. 101a. Our conclusion that Rule 183 does not
authorize the Tax Court to treat the special trial judge’s
Rule 183(b) report as a draft subject to collaborative revi-
sion, see supra, at 59–60, disposes of this argument. The
Commissioner may not rely on the Tax Court’s arbitrary con-
struction of its own rules to insulate special trial judge re-
ports from disclosure. Cf. Kanter, 337 F. 3d, at 888 (Cudahy,
J., concurring in part and dissenting in part) (access on ap-
peal to the special trial judge’s Rule 183(b) report should not
be blocked by the Tax Court’s “concealment of [its] revision
process behind th[e] verbal formula” through which the Tax
Court judge purports to “agre[e] with and adop[t]” the opin-
ion of the special trial judge (internal quotation marks
omitted)).
We are all the more resistant to the Tax Court’s conceal-
ment of the only special trial judge report its Rules authorize
given the generally prevailing practice regarding a tribunal’s
use of hearing officers. The initial findings or recommenda-
tions of magistrate judges, special masters, and bankruptcy
judges are available to the appellate court authorized to re-
view the operative decision of the district court. See 28
U. S. C. § 636(b)(1)(C) (magistrate judge’s proposed findings
must be filed with the court and mailed to the parties); Fed.
Rule Civ. Proc. 53(f) (special masters); Fed. Rule Bkrtcy.
Proc. 9033(a), (d) (bankruptcy judges); Fed. Rule App. Proc.
10(a) (record on appeal includes the original papers filed in

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62 BALLARD v. COMMISSIONER
Opinion of the Court
the district court). And the Administrative Procedure Act
provides: “All decisions, including initial, recommended, and
tentative decisions, are a part of the record” on appeal. 5
U. S. C. § 557(c); see also § 706 (the reviewing court shall eval-
uate the “whole record”). In comparison to the nearly
universal practice of transparency in forums in which one
official conducts the trial (and thus sees and hears the wit-
nesses), and another official subsequently renders the final
decision, the Tax Court’s practice is anomalous. As one ob-
server asked: “[I]f there are policy reasons that dictate
transparency for everyone else, why do these reasons not
apply to the Tax Court?” Kanter, 337 F. 3d, at 874 (Cudahy,
J., concurring in part and dissenting in part); cf. Mazza v.
Cavicchia, 15 N. J. 498, 519, 105 A. 2d 545, 557 (1954) (“We
have not been able to find a single case in any state . . .
justifying or attempting to justify the use of secret reports
by a hearer to the head of an administrative agency.”).15
The Commissioner asserts, however, that the Tax Court’s
practice of replacing the special trial judge’s initial report
with a “collaborative” report and refusing to disclose the ini-
tial report is neither “unique” nor “aberrational.” Brief for
Respondent 31. As a “direct statutory analog,” ibid., the
Commissioner points to 26 U. S. C. § 7460(b), the provision
15 It is curious that the Commissioner, always a party in Tax Court pro-
ceedings, argues strenuously in support of concealment of the special trial
judge’s report. As Judge Cudahy noted, the Tax Court’s current practice
allows it “very easily [to] reverse findings (credibility-related and other-
wise) of [special trial judges] in a manner that is detrimental to the Com-
missioner as well as to” taxpayers. Kanter, 337 F. 3d, at 888 (concurring
in part and dissenting in part). Inclusion of the report in the record on
appeal would therefore seem “a procedural result that may benefit all par-
ties.” Ibid.; see Tr. of Oral Arg. 28 (Court inquired of counsel for the
Commissioner: “[A]ren’t there situations where it might be that the special
trial judge would call a credibility question in the Government’s favor and
then the Government loses the case before the Tax Court judge and might
like to know, before it goes to the court of appeals, how solid the credibility
findings were?”).

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63 Cite as: 544 U. S. 40 (2005)
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governing cases reviewed by the full Tax Court. Section
7460(b) instructs that when the full Tax Court reviews the
decision of a single Tax Court judge, the initial one-judge
decision “shall not be a part of the record.” For several
reasons, we reject the Commissioner’s endeavor to equate
proceedings that differ markedly.
First, as the Commissioner himself observes, omission of
the single Tax Court judge’s opinion from the record when
full court review occurs has been the statutory rule “[f]rom
the earliest days of the Tax Court’s predecessor.” Brief for
Respondent 31 (citing Revenue Act of 1928, ch. 852, § 601, 45
Stat. 871). To this day, Congress has ordered no corre-
sponding omission of special trial judge initial reports. Un-
derstandably so. Full Tax Court review is designed for the
resolution of legal issues, not for review of findings of fact
made by the judge who presided at trial. See L. Leder-
man & S. Mazza, Tax Controversies: Practice and Procedure
247 (2000). When the full Tax Court reviews, it is making
a de novo determination of the legal issue presented. In
contrast, findings of fact are key to special trial judge re-
ports. See Tax Ct. Rule 183(c), 26 U. S. C. App., p. 1619.
And those findings, under the Tax Court’s Rules, are not
subject to review de novo. Instead, they are measured
against “[d]ue regard” and “presumed correct” standards.
Ibid.; see supra, at 54–56.
Furthermore, the judges composing the full Tax Court and
the individual Tax Court judge who made the decision under
review are presidential appointees equal in rank. Each has
an equal voice in the business of the Tax Court. To the
extent that the individual judge disagrees with his col-
leagues, he is free to file a dissenting opinion repeating or
borrowing from his initial decision. The special trial judge,
serving at the pleasure of the Tax Court, lacks the independ-
ence enjoyed by regular Tax Court judges and the preroga-
tive to publish dissenting views. See Kanter, 337 F. 3d, at

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64 BALLARD v. COMMISSIONER
Opinion of the Court
879–880 (Cudahy, J., concurring in part and dissenting in
part).16
We note, finally, other arguments tendered by the taxpay-
ers. Ballard and Kanter urge that the Due Process Clause
requires disclosure of a trial judge’s factfindings that have
operative weight in a court’s final decision. Brief for Peti-
tioner Ballard 43–48; Brief for Petitioner Kanter 19–27.
They also argue that, just as reports of special masters, mag-
istrate judges, and bankruptcy judges form part of the rec-
ord on appeal from a district court, so special trial judge
reports must form part of the record on appeal from the Tax
Court. They base this argument on the appellate review
statute, 26 U. S. C. § 7482(a)(1), which instructs courts of
appeals to review Tax Court decisions “in the same manner
and to the same extent as decisions of the district courts in
civil actions tried without a jury.” Brief for Petitioner Bal-
lard 23–27 (internal quotation marks omitted); Brief for Peti-
tioner Kanter 27, 34–35. In addition, they maintain that 26
U. S. C. §§ 7459(b) and 7461(a) require disclosure of all re-
16 The Commissioner also notes that “numerous boards of contract ap-
peals established by various agencies . . . do not require disclosure of initial
reports prepared by presiding judges.” Brief for Respondent 31–32.
This analogy, too, is unimpressive. The contract dispute resolution panels
to which the Commissioner points issue decisions after reviewing the ini-
tial report of a “presiding judge,” designated to conduct an evidentiary
hearing on behalf of the panel. Only the final decision is served on the
parties and included in the record on appeal. Ibid. Unlike the situation
of the special trial judge, however, the presiding judge holds a position
equal in stature to that of the other panel members, and can file a dissent.
See Reply Brief for Petitioner Kanter 15.
In discussing the text of Rule 183(b) and (c), and the Tax Court’s current
interpretation of that text, we surely do not intend to “impugn the integ-
rity” of any Tax Court judge. Compare post, at 72 (opinion of Rehn-
quist, C. J.), with Kanter, 337 F. 3d, at 880, n. 6 (Cudahy, J., concurring
in part and dissenting in part) (“I am not suggesting that . . . the judges
of the Tax Court . . . exert undue influence over [special trial judges].
The judicial independence of finders of fact, however, is a structural
principle.”).

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65 Cite as: 544 U. S. 40 (2005)
Kennedy, J., concurring
ports generated in Tax Court proceedings, absent specific
exemption. Brief for Petitioner Kanter 42–44. Because we
hold that the Tax Court’s Rules do not authorize the practice
that the Tax Court now follows, we need not reach these
arguments and express no opinion on them.
The idiosyncratic procedure the Commissioner describes
and defends, although not the system of adjudication that
Rule 183 currently creates, is one the Tax Court might some-
day adopt. Were the Tax Court to amend its Rules to ex-
press the changed character of the Tax Court judge’s review
of special trial judge reports, that change would, of course,
be subject to appellate review for consistency with the rele-
vant federal statutes and due process.
* * *
For the reasons stated, the judgments of the Courts of
Appeals for the Seventh and Eleventh Circuits are reversed,
and the cases are remanded for further proceedings consist-
ent with this opinion.
It is so ordered.
Justice Kennedy, with whom Justice Scalia joins,
concurring.
I concur in the opinion of the Court and note some points
that may be considered in further proceedings, after the
cases are remanded.
The Court is correct, in my view, in holding, first, that
Tax Court Rule 183(c) mandates “that deference is due to
factfindings made by the [special] trial judge,” ante, at 54,
and, second, that “it is the Rule 183(b) report . . . that Rule
183(c) . . . instructs the Tax Court judge to review and adopt,
modify, or reject,” ante, at 58.
The latter holding is supported by the most natural read-
ing of the text of Rule 183. Accepting the Commissioner
of Internal Revenue’s contrary construction would require
reading the word “report” in subdivisions (b) and (c) to mean

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66 BALLARD v. COMMISSIONER
Kennedy, J., concurring
two different things. One additional indication in the text,
moreover, is contrary to the Commissioner’s position. Rule
183(c) authorizes the Tax Court judge to “recommit the
report with instructions” to the special trial judge. Recom-
mittal is generally a formal mechanism for initiating recon-
sideration or other formal action by the initial decisionmaker.
See, e. g., Fed. Rule Civ. Proc. 72(b) (“The district judge may
accept, reject, or modify the recommended decision, receive
further evidence, or recommit the matter to the magistrate
judge with instructions”); Fed. Rule Civ. Proc. 53(e)(2)
(amended 2003) (“The court after hearing may adopt the
[special master’s] report or may modify it or may reject it in
whole or in part or may receive further evidence or may
recommit it with instructions”); cf. Kansas v. Colorado, 543
U. S. 86, 106 (2004) (“We accept the Special Master’s recom-
mendations and recommit the case to the Special Master
for preparation of a decree consistent with this opinion”).
Given that Tax Court Rule 183(c) provides a formal channel
for the Tax Court judge to send a report back to the special
trial judge for reconsideration, it is difficult to interpret the
Rule to permit the informal process the Commissioner and
the dissenting opinion defend here.
If the Tax Court deems it necessary to allow informal con-
sultation and collaboration between the special trial judge
and the Tax Court judge, it might design a rule for that
process. If, on the other hand, it were to insist on more
formality—with deference to the special trial judge’s report
and an obligation on the part of the Tax Court judge to de-
scribe the reasons for any substantial departures from the
original findings—without requiring disclosure of the initial
report, that would present a more problematic approach. It
is not often that a rule requiring deference to the original
factfinder exists, but the affected parties have no means of
ensuring its enforcement.
That brings us to the questions of how these cases should
be resolved on remand and how the current version of the

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67 Cite as: 544 U. S. 40 (2005)
Kennedy, J., concurring
Rule should be interpreted in later cases. As to the former,
this question is difficult because we do not know what hap-
pened in the Tax Court, a point that is important to under-
score here. From a single affidavit, the majority extrapo-
lates “a novel practice” whereby the Tax Court treats the
initial special trial judge report as “an in-house draft to be
worked over collaboratively by the regular judge and the
special trial judge.” Ante, at 57. I interpret the opinion as
indicating that there might be such a practice, not that there
is. The dissent, in contrast, appears to assume that any
changes to the initial report were the result of reconsidera-
tion by the special trial judge or informal suggestions by the
Tax Court judge. Post, at 70–71 (opinion of Rehnquist,
C. J.). Given the sparse record before us, I would not be so
quick to make either assumption, particularly given that the
Commissioner, charged with defending the Tax Court’s deci-
sion, is no more privy to the inner workings of the Tax Court
than we are.
Given the lingering uncertainty about whether the initial
report was in fact altered or superseded, and the extent of
any changes, there are factual questions that still must be
resolved. If the initial report was not substantially altered,
then there will have been no violation of the Rule. If, on
the other hand, substantial revisions were made during a
collaborative effort between the special trial judge and the
Tax Court judge, the Tax Court might remedy that breach
of the Rule in different ways. For instance, it could simply
recommit the special trial judge’s initial report and start
over from there. More likely in these circumstances the
remedy would be for the Tax Court to disclose the report
that Judge Couvillion submitted on or before September 2,
1998.
This leads to the question of how Rule 183 should be inter-
preted in future cases. Rule 183’s requirement of deference
to the special trial judge surely implies that the parties to
the litigation will have the means of knowing whether defer-

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68 BALLARD v. COMMISSIONER
Rehnquist, C. J., dissenting
ence has been given and of mounting a challenge if it has
not. Thus, a reasonable reading of the Rule requires the
litigants and the courts of appeals to be able to evaluate any
changes made to the findings of fact in the special trial
judge’s initial report. Including the original findings of fact
in the record on appeal would make that possible.
All of these matters should be addressed in the first in-
stance by the Courts of Appeals or by the Tax Court.
With these observations, I join the Court’s opinion.
Chief Justice Rehnquist, with whom Justice Thomas
joins, dissenting.
The Court reverses the judgments of the Courts of
Appeals on the ground that Tax Court Rule 183 does not
“authorize the practice that the Tax Court now follows.”
Ante, at 65.1 I disagree. The Tax Court’s compliance with
its own Rules is a matter on which we should defer to the
interpretation of that court. I therefore dissent.
The Tax Court interprets Rule 183 not to require the dis-
closure of the report submitted by the special trial judge
1 It bespeaks the weakness of the taxpayers’ arguments that the Court
hinges its conclusion on an argument not even presented for our consider-
ation. See Tr. of Oral Arg. 46 (Deputy Solicitor General Hungar noting
that compliance with Rule 183 was not included within the questions pre-
sented). This Court does not consider claims that are not included within
a petitioner’s questions presented. See this Court’s Rule 14.1(a); Yee v.
Escondido, 503 U. S. 519, 535–538 (1992). Two of the taxpayers’ three
claims included in the four questions presented do not even mention Rule
183, instead claiming violations of due process, U. S. Const., Art. III, and
governing federal statutes, 26 U. S. C. §§ 7459, 7461, and 7482. The only
question presented that mentions Rule 183 is limited to asking whether
Rule 183 requires the Tax Court to uphold findings of fact made by a
special trial judge unless they are “ ‘clearly erroneous.’ ” Kanter Pet. for
Cert. (i). Nor was this argument contained within the taxpayers’ certio-
rari petitions or in their briefs submitted to the Courts of Appeals. See
Lopez v. Davis, 531 U. S. 230, 244, n. 6 (2001). Only by failing to abide by
our own Rules can the Court hold that the Tax Court failed to follow
its Rules.

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69 Cite as: 544 U. S. 40 (2005)
Rehnquist, C. J., dissenting
pursuant to paragraph (b) when the Tax Court judge adopts
the special trial judge’s report. In 1983, the Tax Court
amended the Rule to eliminate the requirement that the spe-
cial trial judge’s submitted report be disclosed to the parties
so that they could file exceptions before the Tax Court judge
acted on the report. See Tax Ct. Rule 183 note, 81 T. C.
1069–1070 (1984). The 1983 amendment also changed the
Rule to require that the special trial judge “submit” his re-
port to the Chief Judge instead of “file” it, see Tax Ct. Rule
182(b), 60 T. C. 1150 (1973), thereby removing the initial re-
port from the appellate record. See Fed. Rule App. Proc.
10(a)(1) (requiring the record on appeal contain “the original
papers and exhibits filed in the district court” (emphasis
added)).2
Consistent with these amendments, in an opinion signed
by Judge Dawson, Special Trial Judge Couvillion, and Chief
Judge Wells, the Tax Court held that disclosure of the Rule
183(b) report was not required in these cases because “[t]he
only official Memorandum Findings of Fact and Opinion by
the Court in these cases is T. C. Memo. 1999–407, filed on
December 15, 1999, by Special Trial Judge Couvillion, re-
viewed and adopted by Judge Dawson, and reviewed and ap-
proved by former Chief Judge Cohen.” Order of Aug. 30,
2000, in No. 43966–85 etc. (TC), App. to Kanter Pet. for Cert.
102a (hereinafter Order of Aug. 30, App. to Kanter Pet. for
Cert.).3 The Commissioner’s brief makes clear that any
2 By contrast, a “magistrate judge shall file his proposed findings and
recommendations . . . with the court and a copy shall forthwith be mailed
to all parties.” 28 U. S. C. § 636(b)(1)(C) (emphasis added).
3 See also Order of Aug. 30, App. to Kanter Pet. for Cert. 102a (“Judge
Dawson states and Special Trial Judge Couvillion agrees, that, after a
meticulous and time-consuming review of the complex record in these
cases, Judge Dawson adopted the findings of fact and opinion of Spe-
cial Trial Judge Couvillion, . . . Judge Dawson presumed the findings of
fact recommended by Special Trial Judge Couvillion were correct, and
. . . Judge Dawson gave due regard to the circumstance that Special
Trial Judge Couvillion evaluated the credibility of witnesses”); Order of

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70 BALLARD v. COMMISSIONER
Rehnquist, C. J., dissenting
changes that might exist between the special trial judge’s
initial opinion and his final opinion “would presumptively be
the result of the [special trial judge’s] legitimate reevaluation
of the case.” Brief for Respondent 11; accord, Brief for Ap-
pellee in No. 01–17249 (CA11), pp. 92–93; Brief for Appellee
in No. 01–4316 etc. (CA7), pp. 122–123. Thus, consistent
with its practice during the more than 20 years since Rule
183 was adopted in its current form, the Tax Court inter-
prets Rule 183 as not requiring disclosure of “any prelimi-
nary drafts of reports or opinions.” Order of Apr. 26, 2000,
in No. 43966–85 etc. (TC), App. to Kanter Pet. for Cert. 109a.
Because this interpretation of Rule 183 is reasonable, it
should be accepted. An agency’s interpretation of its own
rule or regulation is entitled to “controlling weight unless
it is plainly erroneous or inconsistent with the regulation.”
Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414
(1945); see also United States v. Cleveland Indians Baseball
Co., 532 U. S. 200, 219–220 (2001); Martin v. Occupational
Safety and Health Review Comm’n, 499 U. S. 144, 150–157
(1991).4
Notwithstanding the deference owed the Tax Court’s legit-
imate interpretation of this Rule, the Court reads the Rule
as requiring disclosure of the submitted report because para-
graph (c) requires action on “the Special Trial Judge’s [ini-
tial] report.” See ante, at 58–59 (internal quotation marks
omitted). To the contrary, Rule 183 mandates only that ac-
tion be taken on “the Special Trial Judge’s report.” The
Rule is silent on whether the special trial judge may correct
Apr. 26, 2000, in No. 43966–85 etc. (TC), id., at 108a (noting that findings
of fact and credibility assessments made by Special Trial Judge Couvillion
were “reflected in the Memorandum Findings of Fact and Opinion (T. C.
Memo. 1999–407)”).
4 Though the Tax Court is an Article I court and not an executive
agency, Freytag v. Commissioner, 501 U. S. 868, 887–888 (1991), there is no
reason why Seminole Rock deference does not extend to the Tax Court’s
interpretation of its own procedural rules. See ante, at 59 (“[T]he Tax
Court is not without leeway in interpreting its own Rules”).

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71 Cite as: 544 U. S. 40 (2005)
Rehnquist, C. J., dissenting
technical or substantive errors in his original report after it
is submitted to the Chief Judge and before the Tax Court
judge takes action, either on his own initiative or by informal
suggestion. Paragraph (c)’s use of the possessive “Special
Trial Judge’s report” is most naturally read to refer to the
report authored and ascribed to by the special trial judge.5
If the special trial judge changes his report, then the new
version becomes “the Special Trial Judge’s report.” It is
the special trial judge’s signature that makes the report at-
tributable to him. At the very least, it is not unreasonable
or arbitrary for the Tax Court to construe the Rule as not
requiring the disclosure of preliminary drafts or reports.6
See Estate of Kanter v. Commissioner, 337 F. 3d 833, 841
(CA7 2003) (“[I]t is clear that the Tax Court’s own rules do
not require the report to be disclosed . . . ”).
Nor does the Court’s claim that judicial review is impeded
withstand scrutiny. Because paragraph (c) can be read, as
the Tax Court does, to permit the adoption of the report
authored and signed by the special trial judge, the Courts of
5 There can be no claim made that Tax Court Judge Dawson, and not
Special Trial Judge Couvillion, wrote and controlled the content of the
report. See, e. g., Brief for Respondent 11 (noting that any changes to a
special trial judge’s report “would presumptively be the result of the STJ’s
legitimate reevaluation of the case”); Tr. of Oral Arg. 31 (“The only way
it is possible for there to be a change is for the special trial judge himself
to determine, in the exercise of his responsibility as a judicial officer, that
he made a mistake”); Order of Aug. 30, App. to Kanter Pet. for Cert.
102a (indicating the adopted report was written “by Special Trial Judge
Couvillion” and “adopted by Judge Dawson”).
6 Indeed, following the Court’s interpretation that a Tax Court judge
must act on the report submitted pursuant to paragraph (b), a Tax Court
judge would be required to presume correct any factual findings that a
special trial judge had disclaimed. For example, if the Special Trial
Judge, after submitting a copy of his report to the Chief Judge, found a
critical typographical error that the Tax Court judge might not recognize
as such, then the Tax Court judge would be required, under the Court’s
view, to defer to the report as initially drafted instead of a corrected ver-
sion of the report.

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72 BALLARD v. COMMISSIONER
Rehnquist, C. J., dissenting
Appeals both determined that Tax Judge Dawson expressly
adopted Special Trial Judge Couvillion’s report. Id., at 840–
841; Ballard v. Commissioner, 321 F. 3d 1037, 1038–1039
(CA11 2003). There can be no doubt that in adopting Spe-
cial Trial Judge Couvillion’s findings of fact as well as his
legal conclusions in their entirety, Tax Court Judge Dawson
complied with whatever degree of deference is required by
Rule 183(c).
Contrary to the Court’s claimed distinctions, the statutory
requirement that a Tax Court judge’s initial opinion not be
published when the Chief Judge directs that such opinion be
reviewed by the full Tax Court is quite analogous to the Tax
Court’s interpretation of Rule 183. See 26 U. S. C. § 7460(b);
Estate of Varian v. Commissioner, 396 F. 2d 753 (CA9 1968).
A Tax Court judge whose decision is being reviewed may
dissent from the full court’s decision. Similarly, the special
trial judge may choose not to change his initial findings of
fact and opinion. In order to distinguish § 7460(b), the
Court implies that Tax Court Judge Dawson exercised, or at
least may have exercised, undue influence or improper con-
trol over Special Trial Judge Couvillion.7 See ante, at 62.
This Court generally does not assume abdication or impro-
priety, see Freytag v. Commissioner, 501 U. S. 868, 872, n. 2
(1991); United States v. Morgan, 313 U. S. 409, 422 (1941);
Fayerweather v. Ritch, 195 U. S. 276, 306 (1904), and should
not impugn the integrity of judges based on an unsubstanti-
ated, nonspecific affidavit.8
7 Any implication that Judge Dawson used his higher “rank” to exert
improper influence or control is particularly inapt in these cases: Judge
Dawson, as a retired Tax Court judge recalled into duty by the Chief
Judge, has absolutely no authority over Special Trial Judge Couvillion as
both serve at the will of the Tax Court’s Chief Judge. See 26 U. S. C.
§§ 7443A, 7447(c).
8 The mere absence of any post-1983 decisions in which a Tax Court
judge disagreed with a special trial judge does not support the Court’s
broad charges. A similar degree of agreement was evident prior to 1983
when the special trial judge’s report was filed and served on the parties,

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73 Cite as: 544 U. S. 40 (2005)
Rehnquist, C. J., dissenting
In sum, Rule 183 is silent on the question whether the
report submitted to the Chief Judge pursuant to paragraph
(b) must be the same report acted on by the Tax Court judge
under paragraph (c). This Court should therefore defer to
the Tax Court’s interpretation of the Rule, as amended in
1983, allowing the disclosure of only the special trial judge’s
report that was adopted by the Tax Court judge.
As every Court of Appeals to consider the arguments has
concluded, the taxpayer’s statutory and constitutional argu-
ments are not colorable. See Estate of Lisle v. Commis-
sioner, 341 F. 3d 364, 384 (CA5 2003); Estate of Kanter v.
Commissioner, supra, at 840–843; Ballard v. Commissioner,
supra, at 1042–1043. I agree with those conclusions.9
For these reasons, I would affirm the Courts of Appeals.
who had the opportunity to file exceptions. From 1976 to 1983, for exam-
ple, less than one percent (6 out of 680) of special trial judge reports were
not adopted by the Tax Court judge, only 1 case reversed the special trial
judge, and only 14 cases involved adoption with mostly minor modifica-
tions. See Brief for Respondent 17–18, and n. 4.
9 With respect to the taxpayers’ statutory arguments, 26 U. S. C. §§ 7459
and 7461 require only the disclosure of reports adopted by the Tax Court
and not those reports that are not adopted. See §§ 7459 (“shall be the
duty of the Tax Court . . . to include in its report upon any proceeding its
findings of fact or opinion or memorandum opinion” (emphasis added)),
7461 (“[R]eports of the Tax Court” shall be public records (emphasis
added)). Section 7482, which requires courts of appeals to review “deci-
sions of the Tax Court” in the same manner as they review similar district
court decisions, was passed to eliminate any special deference paid to Tax
Court decisions, see Dobson v. Commissioner, 320 U. S. 489 (1943), does
not portend to govern the record on appeal, cf. Fed. Rules App. Proc. 10
and 13, and addresses only the decisions of the Tax Court—not special
trial judge reports.
As to their constitutional arguments, neither due process nor Article III
requires disclosure. Disclosure of any report that has been abandoned by
the special trial judge is in no way necessary to effective appellate review
because the adoption of the special trial judge’s report ensures that suffi-
cient deference was given. Nor must all reports be disclosed in order for
the Tax Court procedure itself to comport with due process. See Morgan
v. United States, 298 U. S. 468, 478, 481–482 (1936).