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Frequent guest blogger Carl Smith keeps us up to date with many items that he tracks. Carl is headed to Hawaii for a well-deserved vacation from his busy retirement but before he left he provided us with an update on a number of cases on which we have previously reported. Because we usually pick cases of some importance on which to write, it is not surprising that many of them continue on past the initial decision. For those interested in knowing what is happening on some of the cases on which we have blogged, Carl has left us with a guide to the cases moving forward to oral argument on appeal in the next couple of months.
- The first case is one on which Les blogged here and here over two years ago. The issue in the case concerns the effect of fraud on the return by a third party and whether that fraud can hold open the statute of limitations even if the taxpayer did not commit fraud in filing the return. On Nov. 8, the 11th Cir. will hear the appeal of Finnegan v. Commissioner, T.C. Memo. 2016-188, in which the Tax Court held that the fraudulent conduct of a return preparer extended the SOL of 6501 indefinitely (per its Allen opinion). The Tax Court refused to follow the Fed. Cir.’s BASR’s holding to the contrary, but which is possibly distinguishable as a TEFRA partnership case. Frank Agostino will do oral argument for the taxpayers. The DOJ argues that the Tax Court’s interpretation of 6501 is correct and that the taxpayers waived raising any argument that the Tax Court’s position in Allen is wrong. The briefs are here: Appellant; Appellee; Reply. We note in our earlier posts that fellow bloggers Jack Townsend and Bryan Camp think Allen is wrong. I happen to think it is right. Aside from obviously turning on the language of the statute, the issue is one of where should the focus lie. Should the IRS receive an unlimited time period within which to make an assessment because of the deceit on the return or should the taxpayer have a normal statute of limitations since the taxpayer did not engage in fraud even if the taxpayer benefited from the action. It would not be surprising to find that this issue eventually ended up in the Supreme Court.
- On Nov. 9, the 9th Cir. will hear oral argument in Crim v. Commissioner, one of the cases in which Joe DiRuzzo is arguing the Kuretski issue. Carl blogged about the case here mentioning the forthcoming oral argument and providing links to the briefs. The Kuretski issue for those of you not following it closely involves the power of the President to remove Tax Court judges which raises issues of separation of powers depending on where the Tax Court lands inside the government. Is it a part of the executive branch as the D.C. Circuit determined in Kuretski making the removal provision constitutional sound or is it a part of one of the other two branches of government as signaled by the Supreme Court in an earlier case not involving the removal provision. Should the 9th Circuit decide to place the Tax Court in the Judicial or Legislative branch, this case to could end up in the Supreme Court.
- Any regular reader of PT knows that the most blogged about issue in 2018 involves the Graev decision and its many permutations. On April 4, 2018, Carl blogged about the RERI case which involves the application of IRC 6751(b) to penalties imposed on partnerships. On Nov. 9, the D.C. Cir. will have oral argument in this TEFRA partnership case, among whose arguments are that the IRS did not prove compliance with 6751(b). This may result in getting a Court of appeals to accept the Tax Court’s holding in Dynamo Holdings that 7491(c) does not put the burden on the IRS to prove compliance with 6751(b) because TEFRA partnerships are not “individuals”.
- On Nov. 13, the 2d Cir. hears oral argument in Borenstein v. Commissioner. I blogged about this case here. The Federal Tax Clinic at the Legal Services Center of Harvard Law School together with the tax clinic at Georgia State filed an amicus brief in the Tax Court and again in the Second Circuit. This case has to do with the Tax Court’s overpayment jurisdiction under 6512(b) in an odd fact pattern in which the taxpayer filed a late return seeking a refund. The timing of the refund falls into a legislative donut hole because she requested an extension of time to file her return. The case will not have broad applicability though it is possible that others could fall into this potential trap. The issue requires parsing the language of the statute and discerning its meaning in the overall context of filing a late tax return which contains a refund claim.
- On Dec. 4, the D.C. Cir. will hear oral argument from Joe DiRuzzo (again) in the whistleblower case of Myers v. Commissioner. Carl blogged this case on May 21, 2018 in which he linked to the appellants brief and to the brief filed by the Federal Tax Clinic at the Legal Services Center of Harvard, but not the later-filed appellee and reply briefs). The issue in this case concerns whether the IRS sent a valid determination letter to the whistleblower. In whistleblower cases the statute does not make clear exactly what must be sent to provide a ticket to the Tax Court. The IRS sent him by regular mail a series of letters, none of which said that he should file in the Tax Court if he disagreed. After many months contacting various other people in government for help with his claim, Mr. Myers eventually took a flyer on filing a Tax Court petition. The Court decided that each letter in the series had been a ticket to the Tax Court, and Mr. Myers had filed late — dismissing his case for lack of jurisdiction. Because Congress has created new jurisdictional bases for the Tax Court in whistleblower and in passport revocation without setting out the type and formality of correspondence that the IRS must send to provide the ticket to court, these types of cases are needed in order to sort out when to come to court. Because Mr. Meyers is pro se, he may be one of many unrepresented individuals who will struggle to pick the right correspondence if the correspondence does not clearly alert him to its importance as a ticket to court.