Amicus Curiae Briefs
The Center for Taxpayer Rights submits amicus curiae briefs in pending cases that raise taxpayer rights and due process and equal protection issues. An amicus curiae brief — literally, “friend of the court” — is submitted by a person who is not a party to the case and who, with the court’s permission, assists the court by offering insight, information or expertise on issues raised in the case.
At present, the Tax Clinic at the Legal Services Center of Harvard Law School, along with others, has submitted the following amicus briefs on the Center’s behalf. In filing these briefs, the Center seeks to alert the Court to the consequences of the government’s position on low income and other vulnerable taxpayers, or to protection of taxpayer rights in general.
CIC Services, LLC
Internal Revenue Service
United States Supreme Court No. 19-930, on writ of certiorari to the United States Court of Appeals for the Sixth Circuit
Amicus filed 14 July 2020
The issue before the United States Supreme Court is whether a pre-enforcement suit challenging a regulatory requirement is barred by the Anti-Injunction Act, 26 U.S. C. § 7421(a), which divests federal courts of jurisdiction over any suit brought “for the purpose of restraining the assessment or collection of any tax.” CIC Services, LLC, an advisor to taxpayers who engage in micro-captive insurance transactions, sought a preliminary injunction against the IRS’s enforcement of Notice 2016-66 which identified certain micro-captive transactions as “reportable transactions”, and triggered substantial penalties against taxpayers and their advisors if they failed to disclose information pertaining to those transactions. The Sixth Circuit Court of Appeals affirmed the district court’s denial of a preliminary injunction and grant of the government’s motion to dismiss for lack of jurisdiction, accepting the government’s position that the Anti-Injunction Act bars such a suit.
In its amicus brief to the United States Supreme Court, the Center, represented by Keith Fogg and Carlton Smith of the Legal Services Center for Harvard Law School, Leslie Book of Villanova Charles Widger School of Law, and Meagan Horn of Thompson & Knight, LLC, writes:
The Center believes that information requests from the IRS can be particularly burdensome on low-income taxpayers and impact their ability to comply with the tax law, or worse, create a deterrence from taking valid tax positions on their return. Such a deterrence could create a situation where the validity of the information requests are effectively exempted from meaningful review. For these reasons, while the Center recognizes the right of the IRS to request information, it believes that such requests should be susceptible to challenges prior to full payment of any penalties associated with failing to comply with the potentially burdensome requirements.
Commissioner of Internal Revenue
U.S. Court of Appeals for the 2nd Circuit
on appeal from Tax Court Docket No. 18336-19L
Amicus brief filed 09 June 2020
IRC § 6330(d)(1) provides a 30-day period in which in which a taxpayer may file a Tax Court petition challenging the IRS’s notice of determination in a Collection Due Process (CDP) administrative proceeding. The notice of determination is issued by an independent appeals officer when the taxpayer requests an administrative CDP hearing, challenging the appropriateness of the IRS’s lien or levy action.
The petitioner, represented by the Low Income Taxpayer Clinic at Fordham University School of Law, did not actually receive the notice of determination and learned of its existence more than thirty days after the mailing of the notice. Upon learning about the notice of determination, petitioner filed an appeal of the determination in the United States Tax Court, challenging the IRS’s determination to proceed with the collection action. The petitioner argued that the petition filing deadline under IRC § 6330(d)(1) is not jurisdictional and is subject to equitable tolling.
The Tax Court dismissed the case for lack of jurisdiction because the petition was not timely filed. In its amicus brief to the Second Circuit Court of Appeals, the Center for Taxpayer Rights, represented by Keith Fogg and Carlton Smith of the Tax Clinic of the Legal Services Center of Harvard Law School, states:
This brief first sets out relevant parallel statutory and judicial background in two non-CDP Tax Court jurisdictions of which Congress was aware when Congress created CDP. The brief then contrasts that statutory background with language in CDP, which uses the words “last known address” in one place, but notably not in § 6330(d)(1). The brief then quotes from the Conference Committee report for CDP, which suggests Congress’ concern that taxpayers not timely receiving certain IRS notices (i.e., notices of deficiency and notices of intention to levy) still be given, through CDP, prepayment fora (both administrative and judicial) to contest those notices. The brief argues that, consistent with the structure and legislative history of CDP, § 6330(d)(1) should be interpreted to allow the Tax Court to hear cases where the taxpayer did not actually receive the notice of determination during the 30-day period. The brief concludes with a section on why the interpretation sought herein would not present significant new administrative burdens for the IRS.
District of Columbia
Amicus filed 18 May 2020
Mr. Silver is a US citizen and tax attorney residing in Israel, where he operates his law practice through a wholly owned U.S. corporation. Mr. Silver challenged the validity of proposed and final regulations relating to the application of IRC § 965 transition tax and §951A tax on global intangibles low-taxed income (GILTI) by alleging the Treasury Department and IRS violated the Regulatory Flexibility Act (RFA). The RFA requires federal agencies to (1) ensure affected small entities participate in the agency’s rulemaking process; (2) issue an initial regulatory flexibility analysis; and (3) issue a final regulatory flexibility. A federal agency can avoid these requirements only if it certifies the rule will not have a “significant economic impact” on “a substantial number of small entities.” 5 U.S.C. 605(b). The Center, represented by Dana Montalto of the Legal Services Center of Harvard Law School, urges the court to ensure that Treasury and the IRS fulfull their obligation under the RFA and complete the required regulatory flexibility analysis on small entities. The brief states:
Clinic clients, or individuals seeking their advice, typically are not U.S. shareholders of the specified foreign corporations to whom I.R.C. § 965 would apply. However, in the instant case, the IRS violated the Regulatory Flexibility Act (“RFA”), among other administrative taxpayer protections, in imposing burdensome regulations under I.R.C. § 965, which sets a regulatory precedent that could indeed harm low-income taxpayers in the future. Were this Court to find that the IRS properly complied with the RFA, low-income taxpayers, particularly those who are self-employed and those with small businesses, could be disproportionately affected by similar regulatory action designed to increase information reporting in the sharing economy sector.
However, the Treasury Department (“Treasury”) and the IRS have consistently sidestepped the regulatory flexibility analysis on small entities required by the RFA through the excessive use of the exemption certifications.