Many attorneys from the Internal Revenue 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. Despite the doctrine's advantages, breadth, and the fact that it is regularly asserted, the de novo doctrine has received little discussion among practitioners and scholars.
The goal of this article is to help fill this void by examining the de novo doctrine's origins, merits, and vitality as a doctrine of relevancy in tax litigation. This article concludes that articulating the de novo doctrine as a doctrine of relevancy is misguided based on the cases in which the doctrine arose, well-established evidentiary and discovery principles, and the current state of affairs in tax litigation. In other words, the de novo doctrine is not relevant to relevancy.