The opinion
PARKER, J., dissenting: I agree with Judge Goffe’s views on the merits of the case, and normally would simply join in his concurring opinion. Here, however, I must dissent from what I perceive as the majority’s unwarranted arrogation of judicial power.
I am mindful that this Court, although a trial court, functions as a collegial body. Nonetheless, such untrammeled exercise of majoritarian power as has occurred in this case could, I fear, threaten the necessary and wholesome judicial independence of the individual trial judge of this Court. Rather than serving as an instrument to assure uniform application and/or development of the tax law, the Court Conference could well become a committee of revision to try to force the individual trial judge to address some pet legal theory not presented by the case and not tried, argued, or briefed by the parties.
Judge Goffe, as the trial judge who heard this case, proposed to dispose of the case by following a well-established line of authority of this and other courts in the captive insurance area. He should have been permitted to do so. The majority does not disagree with that case law nor with the result flowing from application of that case law to the facts of this case. On the contrary, the majority reaches the same result but does so by a most unfortunate route. The majority wrested the case from the presiding tried judge, seizing it as a vehicle in which to expound a novel legal theory not presented by the pleadings, trial, arguments, and briefs of the parties, and without giving the litigants an opportunity to address this theory.
In my opinion, the majority is reaching out to decide an issue that is not before it. I view such practice as particularly mischievous in this case where there may well be little practicable incentive to seek appellate review. This novel theory does not necessarily come into operation on the facts and for the years before the Court, and the bottom-line result would be the same either way. A litigant may have little desire to incur the expense to appeal the basis on which he won or lost his case, where the outcome remains unchanged.