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Florida Tax Review

Abstract

In December 1999, the Supreme Court decided Drye v. United States. The Court's unanimous opinion should infuse tax lien litigation with greater clarity and precision.

This article explores whether this promise is being realized. Although Drye was decided only fairly recently, several dozen lower court cases have applied it. Have they done so well? Part II of this article describes Drye and contemporary tax lien analysis in light of it. Part II assesses whether Drye changed the law or just clarified what had been the law but often was misunderstood. Although ammunition exists to fight for either interpretation, I conclude that the latter is the case. Part III is not purely historical. It demonstrates that loose language in several pre-Drye decisions by the Court created confusion, indeed error, for decades thereafter. That fact places courts and counsel now under a burden to state Drye precisely, to avert new rounds of confusion and error.

Parts IV, V, and VI examine post-Drye decisions, assessing whether they have met this burden and displayed fidelity to the Supreme Court's teaching. These Parts describe, respectively, the good, the bad, and the ugly. That is, good: cases which recognize the importance of Drye and apply it properly; bad: cases which misapply Drye and reach results inconsistent with Drye's teaching; ugly: cases which understand or describe Drye imprecisely but, by the grace of providence or because of strong facts, nonetheless reach the correct result.

The conclusion that will emerge from this examination is that, despite mostly encouraging results, greater care will be required in future cases, both in the statement of doctrine and in its application, if the full promise of Drye is to be realized. In addition to providing a critical examination of the cases, this article will comment on matters remaining unsettled after Drye, suggesting desirable directions for future elaboration of tax lien doctrine.

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