They know everything there is to know about legislative drafting and would have no trouble implementing an order to rewrite Title 15

IV. IMPLEMENTATION OF A FAMILY TAX LAW SUBDIVISION OF THE CODE

As discussed above, the last reorganization of the Internal Revenue Code occurred under President Ronald Reagan in 1986.145 It was meant *281 to be a comprehensive overhaul of the entire body of American Income taxation.146 Prior to the 1986 overhaul, the Internal Revenue Code of 1954 replaced the Internal Revenue Code of 1939.147 In the thirty years since the last reorganization of the Code, family law has emerged as a discrete area of legal specialization. As mentioned above, there is currently a political will to address family law issues in the context of federal tax reform.148 Implementation of the proposal to create a family tax law subdivision will require identification of existing sections of the Code that should be included within the subdivision. This article has identified those sections. Next, it will be necessary to determine where in the Code to place the subdivision. This includes placing the subdivision at the appropriate level of the existing organization. The subdivision may be a subchapter, part, or subpart of the Code. This will require knowledge about both family law and the organizational structure of the entire Internal Revenue Code.

There is already an organization with the knowledge necessary to accomplish the second part of that task. Reorganizing the Internal Revenue Code will require collaboration between those familiar with family law and those familiar with the organization of the Internal Revenue Code. The Office of the Law Revision Counsel (“OLRC”) will be charged with the latter responsibility.

A. Classification of Laws in the United States Code

The OLRC is responsible for organizing and maintaining the structural integrity of the United States Code (“U.S. Code”).149 The *282 OLRC classifies laws that are generally applicable and not temporary for placement within the U.S. Code.150 The U.S. Code is divided into two important types of law: positive law and non-positive law.151 The OLRC's use of the term “positive law” differs in meaning from its other well-established jurisprudential meaning of legislative rather than natural law.152 Positive law, as used by the OLRC, refers to an entire title *283 of the U.S. Code that has been enacted in its totality.153 Non-positive law refers to the provisions that are compilations of statutes that the OLRC has organized into the U.S. Code.154 The distinction between positive and non-positive law has both legal significance and editorial significance. Non-positive law provisions in the U.S. Code are only prima facie evidence of the law, whereas positive law provisions of the U.S. Code constitute evidence of the law itself.155

The distinction between when a provision provides only prima facie evidence of the law and when a provision constitutes evidence of the law itself has been important and has potentially been a source of embarrassment. In Royer's, Inc. v. United States, for example, the Commissioner relied on the U.S. Code, which incorrectly included a provision that had been eliminated prior to final enactment of the law.156 The court ruled that the statutes at large, rather than the U.S. Code, provided proof of the law and the taxpayer prevailed.157

For purposes of this discussion, however, the distinction between positive law and non-positive law is less significant than that of the OLRC's editorial authority. Title 26 of the U.S. Code is non-positive *284 law.158 Non-positive law is subject to limited editorial discretion under the supervision of the OLRC.159 This is not to suggest that the OLRC could reorganize provisions of the Internal Revenue Code on its own. The OLRC could, however, provide guidance to Congress, based on the goals of coherent drafting, and aid in interpretation, based on efficient use of language and ease of navigation (otherwise known as findability).

The first priority of the OLRC is accuracy.160 For purposes of this discussion, accuracy can be assumed. The OLRC lists two other priorities for non-positive law organization. The first is “consistent drafting style and consistent word choices.”161 The second is to “enable the reader to navigate more easily within the [U.S.] Code.”162 These are the reasons that compel the conclusions that the I.R.C should be amended to further these goals in a family tax law subdivision, and that the OLRC may play an important role in showing Congress the way to accomplish that reorganization.

Word choice is one of the two language canons that Professors Brudney and Ditslear discussed in their article on statutory *285 interpretation.163 The second language cannon they discussed concerns “presumptions about the larger cohesion or structural integrity of the text.”164 Brudney and Ditslear apply these canons to better understand the Supreme Court's interpretation of the Code.165 Taken together, the two statutory canons further the goals of better drafting and better interpretation.

Coherent drafting will include better findability through the use of a subdivision organized around family tax law. In the words of the OLRC, “[w]hen a provision of a statute is included in a non-positive law title, certain technical changes are made in the wording and organization to integrate the provision into the Code. These changes enable the reader to navigate more easily within the Code ....”166

V. CONCLUSION

“Traditionally statutes have been unreadable, indefinite, confusing, and misleading.”167 Better taxonomy can remedy that problem. The role of the OLRC will be critical in any congressional attempt at reorganizing the Internal Revenue Code.

“In its role as custodian of the Code, the OLRC decides where laws go.”168 The benefits of aggregating sections of the Internal Revenue Code that concern matters that arise out of family relations include better drafting, better interpretation, and better findability. Sections of the Internal Revenue Code that address family law issues are scattered throughout Chapter One of the Code. This article has identified those sections that might be organized into a family tax law subdivision. In determining whether a section of the Internal Revenue Code is a good candidate for inclusion in such a subdivision, the applicable test is whether the section contains rules governing economic transactions between and among related individuals arising as a result of those relationships.

This article does not specify where a subdivision on family tax law should be located in the Internal Revenue Code. No opinion is offered on whether the subdivision should be a chapter, subchapter, part, or subpart. That can safely be left to the experts at the OLRC. It seems *286 likely, given the thirty years since the last major revision, that the Internal Revenue Code will be considered for major revision soon, and the OLRC will be called upon to help Congress organize the new Internal Revenue Code. When it does, perhaps it will consider the advantages described in this article in organizing a subdivision dedicated to family tax law.