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IRS Request for Stay Pending Appeal in Case of EIP for Incarcerated Individuals

Posted on Oct. 23, 2020

We recently wrote about the significant victory for incarcerated individuals.  The victory opens the door for these individuals to receive the EIP reversing the position the IRS took in an FAQ it first published in May which FAQ reversed the initial position of the IRS regarding the payment of EIP to incarcerated individuals.

Earlier this week the government filed an emergency motion seeking a stay of the district court’s order pending appeal arguing that if a stay was not granted by 1:00 today the IRS would have to take action and warning that the action would be irreversible because it would be unable to recover the payments made to incarcerated individuals. The government does not focus on the basis for its position that the incarcerated individuals are not entitled to EIP but relies on procedural arguments for its position that it should not be ordered to make payments.

Counsel for the incarcerated individuals filed a responsive brief yesterday in this super expedited case.  Perhaps by early afternoon, the 9th Circuit will have ruled regarding this unusual request.

Update: The government has filed its reply to plaintiffs’ opposition to the stay.

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