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SCOTUS Denies Cert. in Kuretski

Posted on May 18, 2015

A quick update on Kuretski from frequent guest blogger Carl Smith.

Today, the Supreme Court denied cert. to review Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014), where the D.C. Circuit had held that the President’s power to remove Tax Court judges at section 7443(f) did not violate the separation of powers.  The move was not a surprise, since no other Circuit court has been presented with the issue, although the Supreme Court often takes separation of powers cases without a Circuit split.

This action now puts the ball on the section 7443(f) issue squarely in the Tax Court’s court, since lawyers at Fuerst Ittleman have, by motion, raised the identical issue presented by Kuretski in seven Tax Court dockets.  The dockets, Circuits of appeal, and judges with jurisdiction over the cases are listed here. I noted last week that the IRS has not filed responses yet to any of those motions – even in three dockets where the Chief Judge had directed responses to be filed by May 8.  At the time of this post, the Chief Judge has still not ruled on the IRS’ motion in those three dockets to extend the time of its responses to June 8, nor has the IRS filed the responses that are now more than a week overdue.  The Circuits to which any Tax Court ruling may be appealed in the seven cases are the Fourth, Ninth, and Eleventh Circuits, although two of the cases are Collection Due Process cases that should be appealable to the D.C. Circuit under Byers v. Commissioner, 740 F.3d 668 (D.C. Cir. 2014),as they do not involve any challenges to the underlying liability.

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