July 29, 2011
The government has now filed its response to the taxpayer’s petition for certiorari in Beard, the first of the Intermountain cases to reach the Supreme Court. As expected, the government filed an “acquiescence,” meaning that it told the Court that the Seventh Circuit had correctly ruled against the taxpayer, but the government agreed that it is appropriate for the Supreme Court to hear the case in order to resolve the conflict in the circuits. In the words of the response, “[a]lthough the decision below is correct, . . . [i]n light of the square circuit conflict, and the importance of the uniform administration of federal tax law, the petition for a writ of certiorari should be granted.”
It is very likely that the Supreme Court will agree to hear the case in light of the government’s acquiescence. The Court does not issue orders on certiorari petitions over its summer recess, but will sometimes issue them during the week before the Court’s formal return on the first Monday in October. Look for an order granting certiorari to issue on September 26 or soon thereafter.
July 22, 2011
While we wait to see what the government will say to the Supreme Court on the Intermountain issue, litigation continues in the courts of appeals. (The government’s response to the certiorari petition in Beard is currently due on July 27.) The taxpayer has filed a petition for rehearing en banc in Salman Ranch. It is hard to imagine that the Tenth Circuit will head down that road when it appears that the Supreme Court will address the issue. Salman Ranch, however, does present one wrinkle not present in the other cases — namely, whether the government was precluded by collateral estoppel from relitigating the issue against this taxpayer because Salman Ranch had prevailed in the Federal Circuit on the same issue in another tax year. The Tenth Circuit panel ruled that collateral estoppel did not apply because, in light of the issuance of the regulations, it was not true that the “applicable legal rules remain unchanged.”
The petition for rehearing, as well as the other briefs in this case, are linked below.
July 7, 2011
[Note: Miller & Chevalier represents amicus curiae American Electric Power Co. in this case.]
The PPL case is now fully briefed in the Third Circuit and ready for oral argument, which has been tentatively scheduled for September 22. PPL’s response brief addresses in detail the considerable evidence presented to the Tax Court regarding the operation and effect of the U.K. windfall tax, arguing that the evidence conclusively shows that the tax operated like a typical U.S. excess profits tax and therefore should qualify for a foreign tax credit. Amerian Electric Power Co. filed an amicus curiae brief in support of PPL that focuses primarily on discussing the precedents that call for courts to consider the kind of extrinsic evidence introduced by PPL. The government’s reply brief, like the one it filed in the companion Entergy case (see here), backs away from its previous argument that the court cannot ever consider extrinsic evidence. The government maintains, however, that PPL’s evidence was not probative and that the Tax Court should have denied creditability because the UK windfall tax describes the tax as being on “value.”