Second Circuit to Resolve Disagreement Between Tax Court and Federal Circuit Over Availability of Interest Netting for Pre-1998 Tax Periods

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April 24, 2012

[Note:  Miller & Chevalier represents the taxpayer Exxon Mobil Corp. in this case.]

The government has appealed the Tax Court’s decision on interest netting in Exxon Mobil Corp. v. Commissioner, 136 T.C. No. 5 (Feb. 3, 2011).  The briefing is now complete, and the Second Circuit (Judges Cabranes, Walker, and Winter) is scheduled to hear oral argument on April 25.

Congress expressly required global interest netting by enacting Code section 6621(d) in 1998.  Before then, the IRS had sometimes taken advantage of the differential interest rates established in 1986 to collect net interest when no net tax was due.  … Read More

Supreme Court Debates Whether Anti-Injunction Act Is Jurisdictional

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April 3, 2012

As we previously reported, Day 1 of last week’s oral argument in the Supreme Court on the challenges to the health care legislation focused on whether the Anti-Injunction Act bars the lawsuits.  The excitement about the argument on that issue was largely gone as soon as it was over, because it was fairly apparent that the Court will not find the Act to be an obstacle to reaching the merits of the health care dispute.  Indeed, Robert Long, the lawyer who argued as amicus for that position, has predicted that he will not get a single vote.  Certainly the … Read More

Second Circuit Considering Important Research Credit Issue in Union Carbide

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April 2, 2012

We present here a guest post by our colleague Patricia Sweeney:

On March 29, 2012, the Second Circuit heard oral arguments in Union Carbide Corp. & Subsidiaries v. Commissioner, No. 11-2552 (Judges Straub, Pooler & (visiting district court Judge) Korman on the panel ).  The case involves Union Carbide Corp’s (“UCC’s”) claim for research and experimentation credits with respect to 106 research projects.  In order to resolve the issues expeditiously, the parties agreed that the Tax Court would limit trial to the five largest projects.  All five projects involved process experimentation after products were placed in commercial operation.  For … Read More