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Reflections on the VLS Shachoy Symposium

Posted on Oct. 4, 2013

I’m a little late on posting this, as the symposium happened about a week ago.  The live video can be found here.  West’s CLE center will eventually offer this content with CLE, which I think can be found here. However, it has not yet posted.  My content below is not heavy on legal analysis, but Tax Notes did a nice write up on each panel on Monday, and those can be found here, here, and here.

This post reflects only my thoughts, and I am definitely not speaking for Keith, Les or Villanova.  I really enjoyed myself last Friday, and thought the panels and speaker were great.  Admittedly, I like tax procedure way more than even most tax practitioners (and I really like the folks who set the symposium up), but it was really interesting and well run.  I hope Villanova elects to do this again in the near future.  If you are interested in any of the topics discussed, I would watch or listen to the content.

I have a couple of comments about each panel and the key note speaker, which are below.

Panel I was on the whistleblower provisions and administration of them.  Professor Harvey, as moderator, set the stage well, and then letting the panelist delve into the topic.  This was a panel of personalities, meant only in the best way.  A few specific points on the panelists and their discussions:

  • Professor Ventry, from UC Davis, was very insightful on the underlying law,  the application of the program, and its history.  He was a very entertaining speaker, and his classes must be wonderful at Davis.
  • Jeremiah Coder, although practicing again now, provided quality journalistic analysis from his time at Tax Notes, including good statistics and anecdotes from his interviews with whistleblowers.  Over the last few years, I thought Mr. Coder’s commentary in Tax Notes regarding tax policy and procedure was some of the best.
  • Dean Zerbe was the last person on the panel.  Dean was one of the highlights of the whole day.  My post will not do him justice, but he had the crowd cracking up laughing on multiple occasions.  He also provided a lot of practical information about the process, how he makes claims, and how to handle disputing determinations.  Very, very helpful if you want to practice in this area.

Panel II was the Loving panel, and dealt with the tax return preparer regulations.  Les Book was the moderator, and also did a great job of setting the table.  A few notes on the panelists:

  • Professor Michelle Drumbl started the discussion explaining her interaction with folks in the low income taxpayer clinic who are often at the mercy of tax return prepares for a variety of reasons.  Her base position is that these people need help, but she was skeptical that the regulations will solve the problem.  I am paraphrasing, and may be incorrect, but she indicated that the lack of real consequences for preparers who are acting inappropriately is more of an issue than testing and continuing education.  Attorneys and accountants may be disbarred or sanctioned, which puts them at odds with clients who want to cheat.  There are less consequences similar to that, and how the industry is set up puts the preparer and the taxpayer on the same side of on trying to increase refunds.
  • Dan Alban spoke next.  As we have discussed before, Dan just argued the practitioners side of Loving last Tuesday, and the consensus seems to be that he bested the government.  One of the few non-tax people participating, he came stocked with statistics, and was very persuasive that these regulations are unfair to the “mom and pop” preparers, while benefitting the H&R Blocks of the world.  I need to review how the regulations apply to large paid preparer companies.  I still believe 100% that we need regulation in this area, but Mr. Alban definitely was persuasive in making you question whether we are doing it correctly. I do wish Mr. Alban had more time to really get into his legal arguments.  He touched on them, but I am sure he had more in the tank.
  • The next panelist was Mr. Lawrence Gibbs, former Commissioner of the IRS, who spoke in defense of the regulations.  Mr. Gibbs had watched Mr. Alban’s argument, and came prepared for rebuttal.  Mr. Gibbs must be a master of opening and closing arguments.  His speech was informative and moving. His legal analysis and retort to the statutory construction was very strong.  It would have been nice to put up two podiums and have Mr. Gibbs and Mr. Alban duke it out.
  • Professor Johnson, now of Florida State, rounded out the panel.  Professor Johnson is a prolific scholar, and is obviously a wonderful professor.  I can’t put my finger on it, but he has a different manner of speaking and holding himself, which makes him even more interesting.  His outline of how Chevron is being applied by the Courts, and the arguments that remain outstanding was very helpful in understanding what other options are really on the table with the regulations.
  • My only qualm with this panel is that it could have been another 30 minutes.  Given the timeliness and the folks on the panel, I was disappointed when the time was up.

Keynote, View from the DOJ, speech was done by Ms. Kathryn Keneally, who is the head of the tax division.  Her talk focused on a larger, systemic issue in the tax controversy world, and really the tax profession and legal profession in general, which is inclusion.  The inclusion was in a very broad sense, in that we should all go out of our way to include, mentor, and help everyone to make our bar stronger.  We should also ensure we aren’t overtly or unintentionally creating barriers.   I suspect I was not the only one who reflected on their last few weeks and found at least one instance where there was an unintentional barrier created.

One great line from this speech, and I am paraphrasing, but I believe not misstating, was that she thought Windsor was the best case DOJ had ever lost.

Panel III, Criminal Tax Sentencing, was moderated by Attorney Peter Hardy, who was with the DOJ tax division, and is now a white collar defense attorney who handles a lot of complex criminal tax work.  Peter ran his panel slightly differently, with more Q&A, which was a nice change of pace.  My thoughts on this panel are:

  • I’ve met Peter before, and respect him as a lawyer greatly.  I’ve also heard he is a very strong adjunct professor. Like the other moderators, he did a great job of explaining the sentencing guidelines and how they have been implemented over the years.
  • I thought Professor Steve Chanenson, a non-tax guy, brought some really good insight into how tax sentencing differs from other criminal sentencing.  He is also a very entertaining speaker.
  • Ms. Keneally participated in the panel, and the other panelists had lots of questions for her, which she did a great job explaining.  She also provided wonderful information about how the DOJ formulates its sentencing suggestions and areas where the DOJ really has no wiggle room.
  • One of my favorite comments was by Ms. Keneally, who stated that a lot of the best current statistics the DOJ had on case outcomes (presumably, it takes the government a while to compile these) came from Jack Townsend’s criminal tax blog.  Jack was also on the panel.
  • Attorney Caroline D. Ciraolo, who is a criminal tax attorney in Baltimore, also participated in the panel.  I did not know Ms. Ciraolo prior to this panel, but found her comments about her experiences to be incredibly helpful to the conversation.  She had great presence, was very funny, and did a good job of conveying complicated information.  If she is not currently an adjunct somewhere, University of Baltimore should give her a call.
  • Professor Scott Schumacher also participated on this panel.    He acted as a jack of all trades for this panel.  Very entertaining guy.  He really assisted in explaining the law and the history, the statistics, and he had great anecdotes.
  • The last panel participant was Jack Townsend.  I get the impression that Mr. Townsend is sort of like the Godfather in this area.  I think he probably could have spent the entire panel providing stories.  I was very happy I got the chance to meet him, and to hear him speak.
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