January 7, 2011
The taxpayer has filed its response brief in the D.C. Circuit in Intermountain. The brief does not add much new to the debate, which is hardly surprising at this point. It relies in the alternative on all of the different rationales advanced by the various Tax Court opinions for rejecting the IRS’s position (and adds an additional argument that the basis was adequately disclosed on the return). The taxpayer does not jump into the National Muffler Dealers vs. Chevron debate, content to argue that there is no Chevron deference owed in these circumstances under the established rules for Chevron analysis. The taxpayer does not directly address whether the issuance of final regulations changes that analysis, instead arguing that it is too late for the government to rely on the issuance of the final regs because it did not refer to them in its opening brief.
In the companion UTAM case, the briefing lags the Intermountain schedule by a month. The government has just opened the briefing in that case, and the taxpayer’s response brief is due February 7, 2011. Again not surprisingly, the government’s brief looks a lot like the brief it filed in Intermountain a month ago, though it does refer to the final regulations. The new briefs in the two cases are attached below.
The cases are both scheduled for oral argument on April 5, 2011.