The Infield Fly Rule and the Internal Revenue Code: An Even Further Aside

Abstract

Baseball’s infield fly rule and certain provisions of the Internal Revenue Code are similar. The purpose of the infield fly rule is to prevent the defense from making a double play by subterfuge, at a time when the offense is helpless to prevent it. In baseball, as in life, fairness is an elusive concept that defies precise definition. Considering the infield fly rule, the “unfairness” derives from the infielder’s ability to manipulate a situation without incurring any risk. Federal tax law, like the rules of baseball, recognizes and responds to the “manipulation without risk” phenomenon. Section 267 of the Internal Revenue Code requires a determination either that the sale between related parties is an unfair bargain or that the seller has retained an indirect interest in the property. There are differences between the rules of baseball and certain provisions of the Internal Revenue Code. The concept of judicial review, allowing time for fact-finding, is a difference between the the two. In baseball, the umpire is the ultimate fact-finder. By analogy, Section 267 allows for a Commissioner to review the transaction, with due time, to make a determination of fairness. Life and baseball are not identical, but simply imitate each other. The existence of functionally similar manipulation-without-risk rules in baseball and federal taxation indicates that similarities do exist