masaccio commented on the blog post Chief Justice Roberts’ Incoherent Decision Shackles Congress, Screws Millions of Uninsured
That’s a good read of the dissent. They hide the ball, though, by dealing with IRC sect. 6671 in footnote 6:
6The amicus appointed to defend the proposition that the Anti-Injunction Act deprives us of jurisdiction stresses that the penalty forfailing to comply with the mandate “shall be assessed and collectedin the same manner as an assessable penalty under subchapter B ofchapter 68,” 26 U. S. C. §5000A(g)(1) (2006 ed., Supp. IV), and that such penalties “shall be assessed and collected in the same manneras taxes,” §6671(a) (2006 ed.). But that point seems to us to confirm the inapplicability of the Anti-Injunction Act. That the penalty is to be “assessed and collected in the same manner as taxes” refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act. Moreover, elsewhere in the Internal Revenue Code, Congress has provided both that a particular payment shall be “assessed and collected” in the same manner as a tax and that no suit shall be maintained to restrain the assessment or collection of the payment. See, e.g., §§7421(b)(1), §6901(a); §6305(a), (b). The latter directive would be superfluous if the former invoked the Anti-Injunction Act. Amicus also suggests that the penalty should be treated as a taxbecause it is an assessable penalty, and the Code’s assessment provision authorizes the Secretary of the Treasury to assess “all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by this title.” §6201(a) (2006 ed., Supp. IV). But the fact that such items are included as “taxes” for purposes ofassessment does not establish that they are included as “taxes” for purposes of other sections of the Code, such as the Anti-Injunction Act,that do not contain similar “including” language.
Section 6671 says that a penalty is a tax for purposes of the Internal Revenue Code. Scalia deals with it only in the context of the Anti Injunction Act, not in the context of the statutory intent, as Roberts does in the majority opinion.
