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Follow up on Kuretski and Removal Power of Tax Court Judges

Posted on Oct. 18, 2013

The other day I posted a summary of the separation of powers issue in the Kuretski case.  Here are a few follow up points:

1) I am linking the taxpayers’ initial brief Kuretski Brief the DOJ response; and the reply brief: Kuretski_Reply_Brief_for_Appellants; [update DOJ Brief found here: Kuretski DOJ Brief for Appellee (2)]

2) Jack Townsend in his procedure blog picked up the initial post and raised  other questions, including some broader issues relating to the constitutionality of the Tax Court. Jack’s post has a nice reference to some sources discussing the Tax Court’s overall place in the federal system. For those who want to read more on the broader issues, I recommend  works by Professors Leandra Lederman and Diane Fahey; and

3) I neglected to raise in my initial post the specific relief the taxpayers request in Kuretski. The taxpayers are not challenging the constitutionality of the Tax Court overall. They only claim that the President should not have the power to remove the Tax Court judges under Section 7443(f). Accordingly, the taxpayers urge that Section 7443(f) must be severed from the overall statutory scheme, and request a remand to a Tax Court that is not subject to the removal power.

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