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DOJ Files Gibbs’ Loving Article with DC Circuit

Posted on Oct. 23, 2013

The other day we summarized Larry Gibbs’ Tax Notes and Villanova Law Review article on Loving v IRS. Following the publication of Larry Gibbs’ article, on Monday, the DOJ filed a supplemental letter with the DC Circuit under Federal Rules of Appellate Procedure 28(j).  The letter states that the IRS seeks to draw “the Court’s attention” to the article. The letter can be found here DOJ28(j)Letter

On Tuesday, the Institute for Justice filed a response opposing the letter, stating it cites “no new legal developments” and  “makes no previously unavailable arguments.” The response can be found here IFJ28(j)response

What’s this dust up about?

Rule 28(j) states the following:

If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally.

The Rule also allows for the other party to promptly respond to the letter.

The DOJ 28(j) letter emphasizes Gibbs’ comparing a preparer’s responsibilities to attorneys who represent clients in will drafting. The DOJ letter also highlights Gibbs’ point that there was nothing that he could find indicating that historically the representation at issue in 31 USC Section 330 had to be in person, rather than in writing.

I am partial to Gibbs’ arguments. I think his discussion of the meaning of the term representative adds context. I also think the DOJ should have accepted (or at least argued, as did the amicus brief Gibbs and four former Commissioners filed) that preparing a tax return is also akin to presenting a case.

Despite my support for Gibbs’ arguments, the IFJ response criticizing the DOJ letter makes sense to me. The DOJ cited no place in its brief or argument where it seeks to inject Gibbs’ analysis, as is required by the Rule. The DOJ letter does not point to a specific legal development or new authority, as the Rule also requires.

By most accounts, the September 24 oral argument reflected a panel that was skeptical of the DOJ position. This seems like an attempt to get the Court to think about the merits in a different way than the government has previously argued.  Perhaps that is what this is really about.

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