1 Matching Annotations
  1. Feb 2014
    1. Beginning the issue with “are” or “is” often leads to a clearer and more concise expression of the issue than beginning it with “may,” “can,” “does,” or “should.” The latter beginnings may lead to vague or ambiguous versions of the issue. Examine the following alternative statements of the judicial issue from Aiken Industries, Inc. (TC, 1971), acq.: Issue 2 (Poor): Are the interest payments exempt from the withholding tax? Issue 2 (Poor): Should the taxpayer exempt the interest payments from withholding tax? In the first version of issue 2 above, to which interest payments and which withholding tax is the writer referring? The issue does not stand alone since it cannot be precisely understood apart from separately reading the brief�s facts. The extreme brevity leads to ambiguity. In the second version, the question can be interpreted as a moral or judgment issue rather than a legal one. Whether the taxpayer should do (or should not do) something may be a very different issue than the legal question of what the law requires. A legal brief, however, should focus on the latter. Rewriting issue 2 as follows leads to a clearer expression of the precise issue: Issue 2 (Better): Are interest payments exempt from the U.S. 30% withholding tax when paid to an entity established in a tax treaty country for no apparent purpose other than to escape taxation on the interest received?

      Extreme brevity leads to ambiguity. The summary of the issue should be written to avoid opening the question to interpretation as a moral or judgment issue; instead focus on the legal question.