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Writing and Filing Effective Amicus Briefs in Tax Cases

Posted on Aug. 13, 2015

We welcome back frequent guest blogger Carl Smith.  Keith

Les’ post on the Ninth Circuit’s combined opinion in Voss and Sophy got me to thinking about writing this post on amicus briefs in tax cases.  In Voss and Sophy, a group of 11 tax professors, headed by Professor Patricia Cain of the Santa Clara Law School of the University of Iowa, moved to submit an amicus brief on behalf of the National Center for Lesbian Rights in which they supported the taxpayers’ interpretation of mortgage interest limitations on same-sex California registered domestic partners who had to file single tax returns in the years 2006 and 2007 – before same-sex marriage was possible in California.  Ironically, the issue in Voss and Sophy is less likely to come up in the future, now that same-sex couples will more often be married and subject to a marriage penalty that the mortgage interest limitations impose – at least as the Ninth Circuit interpreted the Code.

In its response to the motion to file the amicus brief in the Voss and Sophy cases, the DOJ was ambivalent.  The DOJ criticized the movants for not giving good reasons for filing the amicus brief, and the DOJ quoted a comment by Judge Posner from Voices for Choices v. Illinois Bell Telephone Co., 339 F.3d 542, 545 (7th Cir. 2003) (“In my experience in two decades as an appellate judge, however, it is very rare for an amicus curiae brief to do more than repeat in somewhat different language the arguments in the brief of the party whom the amicus is supporting”). But, ultimately, the DOJ took no position on the granting of the amicus brief motion (admitting that the DOJ had ample time to respond to the amicus brief in its answering brief), and the panel granted the amicus brief motion on the day it issued the opinion. Since the DOJ had some good points in its comments on the amicus brief motion, I thought it would be useful to do a post on what makes a good amicus brief in a tax case and how best to get it filed.

I have some personal experience that I can hopefully share, since I have filed 11 amicus briefs in tax cases in the last five years, and any motions I filed to get those briefs admitted were all granted. Some of the briefs were not cited by the courts (some probably because the briefs discussed a point that the courts ultimately decided that they did not need to reach). While other briefs have been cited by the courts in their opinions, and the briefs altered the course of the courts’ rulings. See, e.g., Mayo Foundation v. United States, 562 U.S. 44, 56 (2011); Manella v. Commissioner, 631 F.3d 115, 121 (3d Cir. 2011);  Rand v. Commissioner, 141 T.C. 376, 381-382 (2013).

The Tax Court has no rules about the filing of amicus briefs, but its judges are clearly influenced by the specific amicus brief procedures of Federal Rules of Appellate Procedure (FRAP) 29 and Supreme Court Rule (SCR) 37. So, this post focuses on those procedures. Under FRAP 29(e) and SCR 37(3)(a), amicus briefs can be filed up to 7 days after the opening brief is filed by the party that the amicus is supporting. If the amicus is not supporting either party, the brief must be filed up to 7 days after the opening brief of the appellant.

The reason for the 7-day window is that the courts want the amicus to read the brief of the party that the amicus is supporting (or at least the appellant’s brief), so as to avoid having the amicus brief argue points that were adequately made and supported by adequate authority in the parties’ briefs. If you are going to do an amicus brief, I suggest you get up a rough draft of the brief before the parties’ briefs are filed and that you carefully edit your draft brief, before filing it, to remove any proposed content that is now repetitious of the brief of the party that you are supporting. This will avoid writing the kind of amicus brief that annoys judges like Judge Posner (who, I think, speaks for most judges on this issue).

Second, in the Tax Court and the Circuit courts, amicus briefs are submitted in proposed form attached to a motion. FRAP 29(a).  Like all motions, the amicus is required to tell the court whether the motion is opposed, so you must contact the parties to see whether they oppose the motion.  In my experience, to get a motion agreed to by the DOJ Tax Division, you will at least have to show them, in advance, your draft of the brief.

I have never heard of a motion to which both parties consented not being granted.  But, it is my experience and that of Lavar Taylor (whose Center for Fair Administration of Taxes often files Circuit court amicus briefs in tax cases) that the government will usually oppose your motion, unless the amicus has a really direct interest in the outcome of the litigation.  A rare example of where the DOJ consented to a filing of an amicus brief I co-wrote was the amicus brief on venue on appeal of Collection Due Process (CDP) cases that the Kuretskis filed in the case of Byers v. Commissioner, 740 F.3d 668(D.C. Cir. 2014).  Like Mr. Byers, the Kuretskis (who I represented) had filed a notice of appeal in the D.C. Circuit, even though they did not live in the D.C. Circuit.  Their appeal was pending, and the DOJ was likely to move to transfer their appeal to the Second Circuit if Byers upheld the government position that all Tax Court CDP cases are properly appealable only to the Circuit of residence.  But, on the other hand, Lavar and I have had the experience that the Tax Division’s routine opposition to any of our other proposed amicus brief motions – where we could not state such a direct interest – was pointless, since the courts have always granted our motions.

Perhaps it is the quality of our briefs (I doubt it), but the Circuit courts seems quite lenient on granting DOJ-opposed amicus brief motions – particularly in the kinds of cases that involve low-income taxpayers.  Indeed, while some Circuits, like the Ninth, have no policy on the kinds of amicus briefs they like to take, it is the stated policy of the Seventh Circuit “to grant permission to file an amicus brief . . . when . . . a party is not adequately represented (usually, is not represented at all)”.  Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000).  So, especially consider doing amicus briefs in pro se appeals, as I successfully did in Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2015), where the appellant was originally pro se and my filing led to the panel to assign him a pro bono counsel to rebrief the appellant’s case.

The DOJ Tax Division is particularly hostile to Circuit court amicus brief from professors who want to give advice to the courts on a point of law, but who have no clients affected by the issue.  In explaining why the Voss and Sophy proposed amicus brief really did not comply with the rules for filing amicus briefs, the DOJ wrote:

As law professors who do not assert that they represent any individuals affected by the Tax Court’s interpretation of the Code, they claim only an academic interest in this appeal, seeking to persuade the Court that their interpretation is preferable. See American College of Obstetricians & Gynecologists v. Thornburgh, 699 F.2d 644, 645 (3d Cir. 1983) (panel majority denied motion for leave to file an amicus brief because the proposed amici, a group of law professors, “d[id] not purport to represent any individual or organization with a legally cognizable interest in the subject matter at issue, and [gave] only their concern about the manner in which this court will interpret the law”). [DOJ response to amicus brief motion at p. 3]

It may help to file an amicus brief if you are a professor with a tax clinic with clients who you can say might be affected by the ruling.  But, in my experience, the DOJ opposes amicus motions by tax clinic heads on the same ground – that we are merely officiously-intermeddling professors.

In surprising contrast to the hostility of the DOJ Tax Division to amicus briefs from professors, when a case gets to the Supreme Court, in my recent experience, the Solicitor General’s Office routinely announces that all amicus briefs, from anyone, are welcome.  And the taxpayers’ lawyers in such cases also routinely consent to amicus briefs.  In the Supreme Court, the parties usually file papers with the Court announcing that all amicus briefs are welcome, and this obviates the need for filing any motion.  SCR 37(a)(3) (“A petitioner or respondent may submit to the Clerk a letter granting blanket consent to amicus curiae briefs, stating that the party consents to the filing of amicus curiae briefs in support of either or of neither party. The Clerk will note all notices of blanket consent on the docket.”) Check the docket sheet before you bother to contact the parties to a Supreme Court case asking for special letters consenting to your amicus brief. Thus, the same tax professors who the DOJ tried to keep out of the Courts of Appeals portion of the litigation are welcomed to file their meddling briefs if the matter gets to the Supreme Court.  Go figure.

In the appeals courts and the Supreme Court, any motion to file the brief and the brief itself must state the “interest of the amicus”.  SCR 37(5); FRAP 29(b) and (c).  And section headings of the Supreme Court amicus brief are quite minimal:  “[I]t suffices to set out in the brief the interest of the amicus curiae, the summary of the argument, the argument, and the conclusion).” SCR 37(5). In the courts of appeal, the sections are the same, except that there is no summary of argument required. FRAP 29(c). Not that I have had any problem with writing anything in the interest of the amicus section, but I think it advisable that anyone proposing to do an amicus brief spend some time thinking about how he or she can tie in this particular case to his or her clients (past, present, or future), so as not to seem to be a mere meddling lawyer or law school professor.

When you write the brief, be especially focused on bringing new material to the court that the parties (or other amicus) have not brought. For example, in Mayo Foundation, neither party had argued about the standard of review of tax regulations – other than the IRS saying it relied on Chevron and the taxpayer saying it relied on National Muffler. All of the more than dozen other amicus briefs (save for that filed by Professor Kristin Hickman of the University of Minnesota Law School responding to mine) were filed by medical organizations that likewise had no interest in discussing the review standard issue (and they had also not discussed this issue in their amicus briefs at the cert. stage). So, my amicus brief at the merits stage (and Kristin’s) were the only ones that brought to the Supreme Court’s attention a number of its opinions on tax regulation review standards that the Court took the opportunity to cite or overrule in the final Mayo opinion.

In the tax area, you brief can incorporate information from the IRS Data Book about the possible impact of the case on taxpayers. You can also cite to discussions of the issue presented, or a related issue, in the National Taxpayer Advocate Reports. The courts will take judicial notice of the Data Book statistics; see United States v. Brockamp, 519 U.S. 347, 352 (1997) (quoting statistics on tax return filing and refund claim issuance from the 1995 IRS Data Book); and the NTA Reports. See Wilson v. Commissioner, 705 F.3d 980, 992 (9th Cir. 2013) (quoting a passage from the 2011 NTA annual report relating to innocent spouse). Don’t expect appellate judges who are not tax experts to know things that you read in your daily tax newspapers.

One of the best passages in the Voss and Sophy amicus brief, in my view, was its description of a current practice, apparently prevalent in the Bay Area, of selling houses, or portions of houses, to people as tenants in common – whether or not the buyers were in any social relationship – and where one buyer, but not the other(s), might enter into a second mortgage borrowing to finance his or her share of the purchase.  Such a situation produces bizarre and unworkable results if the mortgage interest limitations are applied on the basis of all the mortgage debt on the residence, rather than on a per-taxpayer basis.  Thus, real-world examples of different fact patterns can readily aid the court’s thinking when the parties have been over-focused on the particular facts in the case.

Finally, while amici love to have their briefs cited in the court’s opinion, don’t file a motion to file an amicus brief expecting that to happen. Indeed, my feeling is that, even if, for some reason, I doubt the court will formally file my brief, I will do the motion accompanied by the brief anyway, because I know human nature.  Amicus briefs are short – half the 14,000 word-limit of a court of appeals party brief; FRAP 29(d) and 32(a)(7); and only 9,000 words in a Supreme Court amicus brief, where a party’s brief is 15,000 words.  SCR 33(g).  Conversations with former law clerks and judges over the years have taught me that, since tax cases attract only rare amicus briefs, someone in the chambers is going to read the proposed brief out of curiosity.  I can remember Judge Tannenwald, many years ago on a panel at a Tax Court judicial conference, saying that if it was technically probably too late to file an amicus brief, he would suggest the proposed amicus move to file it anyway, as he would inevitably want to take a peek at what the brief said, even if he would not grant the motion to file.  Thus, the brief will have an effect, even where the court pretends not to have read the brief and doesn’t formally file it or cite it.  So, if you see something, say something, even if it ends up to you looking like you just gave an anonymous tip to the courts.  It was probably a tip that someone ran down.

UPDATE 8/13 2:45 PM

After reading Carl’s excellent post, I was reminded of  the amicus brief that PT Guest Poster Professor Bryan Camp submitted in the BASR case Robin Greenhouse blogged last week involving a third party’s fraud and the statute of limitations. The DOJ did not oppose Bryan’s filing the amicus on behalf of the taxpayer. I note that the majority and the concurring opinion appear to be heavily influenced by Bryan’s arguments about how the Code section at issue should be construed in relation to other Code sections.  Les

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