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Supreme Court’s Decision on Monday in Arkison Could Impact Kuretski Case and Constitutionality of the Removal Clause for Tax Court Judges

Posted on June 11, 2014

Last fall Les blogged on the Kuretski case here and here. Professor Tuan Samahon, a constitutional scholar and colleague of Les’ and mine at Villanova, argued for the taxpayer before the D.C. Circuit in late November, 2013 that the removal clause for Tax Court judges contained in IRC 7443(f) is unconstitutional because the presidential removal authority over Tax Court judges renders their exercise of the judicial powers subservient to an executive officer. This subservience, the taxpayers argue, violates the separation of powers constitutional principle.  The taxpayers originally raised the constitutional issues in a post-decision motion to vacate. The Tax Court declined to address the constitutional issues in an unpublished order finding that the argument was not timely made.

When a case is in the posture of Kuretski, awaiting an opinion but after the parties have completed their arguments, Federal Rule of Appellate Procedure 28(j) allows a party to write to the Court to inform it of some matter that has happened after the arguments that could impact the outcome of the case. It has now been six and one half months since Kuretski was argued which is a relatively long time for the D.C. Circuit to wait before issuing an opinion. On Monday, the Supreme Court issued an opinion in a bankruptcy case where the Supreme Court discussed the issue of severability when a portion of a statute is challenged on constitutional grounds. That issue came up in the oral argument in Kuretski. Professor Samahon wrote to the D.C. Circuit pursuant to the rule to advise the Court of the language in the Supreme Court’s opinion.

At oral argument the issue of what would happen if IRC 7443(f) were determined to be unconstitutional was addressed by the parties with the taxpayer and the Department of Justice presenting different views of the result. The Arkison case could shed light on that aspect of the case and it is possible that the D.C. Circuit, aware that the Supreme Court was going to decide Arkison, has been waiting for this decision before it ruled.

If you want to know more about this case, you could obtain from the ABA Tax Section the program on Kuretski presented at the May 2014 meeting in the Pro Bono and Tax Clinic Committee. An audio recording of the meeting can be purchased from the ABA here. This case is one where the taxpayer received initial assistance at a calendar call program and the initial assistance of the volunteer lawyers at the calendar call in New York City has led to constitutional challenge of a type not often heard in Tax Court cases. Stay tuned to find out if the constitutional challenge to the Internal Revenue Code by someone who is not a tax protestor can succeed.

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