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Summary Opinions Grab Bag

Posted on June 14, 2015

Here are some items of interest from the past month or so that warrant attention. Keith

Tax Court Memorandum Opinions

At the recent Tax Court judicial Conference, one panel was entitled “And What Weight Do They Have? Agency Guidance Not Eligible for Chevron Deference and Court Dispositions Not Selected for Publication.”  Judge Halpern moderated the panel which included two PT guest bloggers, Pat Smith and Andy Roberson, as well as Emily Lesniak from Chief Counsel Procedure and Administration and Mary Hevener from Morgan, Lewis & Bockius.  In addition to the lengthy and helpful handout for the session, Judge Halpern put his law clerk to work to create a historical stat sheet comparing the number of regular and memorandum opinions dating back to 1928.  The 1928 Court puts the current Tax Court to shame from a productivity perspective knocking out 1,438 TC opinions (compared to 38 in 2013).  A reasonable explanation for the difference in productivity no doubt exists but the panel did not focus on that issue.  Of course, in 1928 almost every opinion of the new Court set new precedent.

Janis Joplin

“O Lord won’t you buy me a Mercedes Benz.”  So far, the Lord has not bought me one but her husband did buy Ms. Tamra Hansen a Mercedes 300 SLK in 2011 for Valentine’s Day.  Aside from trying to make the rest of us look bad with a Valentine’s Day gift of that magnitude, one small problem existed – Mr. Hansen owed the IRS about $350K at the time of the purchase meaning that the federal tax lien existed at the time of the purchase meaning that the federal tax lien attached to the car meaning that the lien still existed when the IRS came to take the car away.  Ms. Hansen argued that she and her husband were having marital problems as that Valentine’s Day rolled around and he bought her the car to “buy her love” so she was a purchaser under the definition of the statute allowing her to defeat the unfiled federal tax lien.  For some reason the court did not “buy” her argument.  I am sure that the husband who bought the Mercedes at the IRS auction this year gave it to his wife for Valentine’s Day as well.  I hope that works out better.  Catch the details at 2015 TNT 73-18 or Doc. 2015-8922 D. Utah April 16, 2015 (No. 2:13-cv-00736).

Tax Procedure and Politics

It’s not often that tax procedure and politics mix; however, a state Senate race in central Virginia has caused the joinder of the two.  Senate candidate Dan Gecker, a tax lawyer, created a plan to promote historic tax credits.  After he had sold the plan to a number of clients, the IRS determined that the plan did not provide the tax benefits claimed on the return.  While the Tax Court agreed with Mr. Gecker, the 4th Circuit most decidedly did not.  Pretty routine tax stuff until Mr. Gecker decided to run for state Senate.  His opponent is featuring the tax decision prominently in his ads arguing that the electorate does not want a Senator who promotes bad tax deals.  Check it out here.  Who knew that a Tax Court case could lead to political ads.  The ads, however, did not succeed.  Mr. Gecker won the primary and his opponent running the ads came in a distant third in a three way race.

The Federal Circuit Rejects the Suit by the National Taxpayer Advocate Concerning Who is Essential Employee During a Government Shutdown

As we reported here, the National Taxpayer Advocate brought suit before the Merit System’s Protection Board stemming from the failure of the prior IRS Commissioner to designate her as an essential employee during the government shutdown in 2013.  The she sought to raise involved lines of authority rather than judgment over who was essential; however, the MSPB rejected the case as moot since following the shutdown, the NTA was restored to her position with full pay and benefits for the time off.  She appealed.  Oral argument occurred before the Federal Circuit on June 2 (a podcast of the argument is available here.)  On June 4, the Federal Circuit issued an unpublished order sustaining the decision of the MSPB.

Publication of Updated History of Tax Court

At the recent Tax Court Judicial Conference, Chief Judge Thornton announced the publication of “The United States Tax Court – An Historical Analysis.”  This publication is an expanded second edition of the seminal Tax Court history published by Professor Harold Dubroff in the late 1970s.  The Tax Court commissioned Professor Brant Hellwig, soon to be Dean Hellwig, of Washington and Lee to update Dubroff’s work.  All attendees to the conference received a thumb drive at the conference containing not only the conference materials but also a copy of the new publication

For those practicing in the Tax Court the book provides valuable insights concerning the operation of the Tax Court today and how it came to that point.  The book includes a discussion of the ongoing argument concerning the constitutional status of the Court.  Professor Hellwig is writing a separate article on that issue and we hope to have a blog post from him describing that article and the current status of the Tax Court upon its completion.

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