When Les and I went to the last Tax Court judicial conference, we were told that we needed to follow the rules of the press at the conference which involved, inter alia, not attributing comments to specific speakers so everyone felt comfortable in the space. It felt funny to be treated as part of the press, but there can be advantages. Recently, a FOIA request was made in which PT asked to be treated as the press to obtain expedited treatment. A request was also made by PT regarding early receipt of the National Taxpayer Advocate’s annual report. The IRS agreed to both requests. With thousands of subscribers, millions of page views, and a body of posts, I think it is fair to say that we qualify as the press and there is some court precedent supporting bloggers as members of the press as well as blog posts suggesting bloggers are members of the press.
Today, the Boechler case is being argued in the Supreme Court. The issue is one the Harvard Tax Clinic has been working on for six years, and I wanted to attend the hearing. The problem with attending the hearing is that because of the pandemic the justices would just as soon not sit in a room filled with hundreds of strangers, so the hearings before the Supreme Court at present are ones in which only essential Court personnel, the litigants and the press can attend.
A nice Tax Court judge who heard me talk about my desire to watch the Boechler oral argument suggested to me that perhaps I should seek to attend the hearing as a member of the press. After all, no news outlet has provided more coverage of this case than PT, even if our audience may not be as large as some news vendors. So I thought why not ask. It turns out the Supreme Court has two categories of press passes – day passes and hard passes. There’s a reason they are called hard passes. They are definitely hard to come by. Here is a list of the persons holding hard passes. No bloggers on there, not even someone from the SCOTUSblog. For a SCOTUSblog post on the case, look here.
I thought I might have a shot at a day pass, and maybe I did; you can see the requirements here with additional details here, and I had a need to report from the Court for all of you – our faithful readers, but unfortunately the current restrictions only allow members of the press with hard passes and not day passes. When I spoke to the friendly person at the Supreme Court about attendance, I did not get warm fuzzy feelings that she was interested in having me attend, but she did point me to the broadcast of the argument. I pass along to any of you who have not listened to Supreme Court arguments but who might be interested in listening to this morning’s argument that same possibility.
If you go to this link at 10:00 AM ET this morning, you should be able to hear the oral argument. Melissa Sherry of Latham & Watkins is making the argument for the petitioner. She and her team of Caroline Flynn and Amy Feinberg, a former student of the Harvard Tax Clinic who argued this issue before the 4th Circuit while a student and this case before the 8th Circuit remotely during the pandemic, have done an outstanding job of briefing the case. I anticipate Melissa will make an excellent argument. When I have had the opportunity to go to the Supreme Court in person in the past and see oral arguments, the person arguing for the Solicitor General’s office has always done an excellent job. I expect no less today.
I provided links to the opening brief by the petitioner and the amicus briefs in this post. Here are the answering brief of the government and the reply brief of the petitioner for those of you interested in a complete set. At the ABA Tax Section mid-year meeting which starts at the end of this month, I will join Bryan Camp, Kandyce Korotky and Amy Feinberg on a panel taking place on February 2, 2022, from 12:30 – 2:00 PM ET to discuss the case and its possible impact. You can register for the meeting here.