Oral Argument Scheduled in Rodriguez

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February 27, 2013

The Fifth Circuit has scheduled oral argument in the Rodriguez case for April 3 in New Orleans.  As discussed in our prior posts, the issue in the case is whether section 951 inclusion income should be taxed at the lower rate applicable to qualified dividends.  The identities of the three judges who will hear the case will be announced the week before the argument.… Read More

Justices Explore a Variety of Topics in PPL Oral Argument

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February 25, 2013

[Note: Miller & Chevalier filed a brief in this case in support of PPL on behalf of American Electric Power Co.]

Seven Justices (all but Justices Thomas and Alito) asked questions in the oral argument in PPL on February 20, but they did not obviously coalesce around any particular view of the case. Even in cases where the questioning can be more neatly categorized, it is always hazardous to try to predict the outcome based on the questioning at oral argument. At this point, the parties’ work is done, and they are reduced to waiting for a decision, which is … Read More

Briefing Completed on Union Carbide Cert Petition

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February 20, 2013

To close the loop on yesterday’s post on the Union Carbide certiorari petition, the taxpayer has now filed its reply brief in support of the petition.  The reply brief focuses primarily on the Auer deference issue, distinguishing the cases cited by the government in its defense of the application of Auer deference.  The reply brief also vigorously disputes the government’s contention that the Second Circuit would have reached the same result if it had not deferred to the government’s interpretation of the regulation.

Union Carbide – Taxpayer’s Certiorari Stage Reply BriefRead More

Government Opposes Supreme Court Review in Union Carbide

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February 19, 2013

The government has filed a brief in opposition to Union Carbide’s request for review of the Second Circuit’s decision denying its research credit claim.  See our prior reports on the cert petition and the court of appeals’ decision here and here.  With respect to the basic legal issue, the government’s concise analysis tracks that of the Second Circuit, arguing that the taxpayer would get a “windfall” if it received “a credit for the cost of supplies that the taxpayer would have incurred regardless of any qualified research.”  The government emphasizes that there is no circuit conflict on this issue … Read More

Briefing Complete in PPL

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February 13, 2013

[Note:  Miller & Chevalier filed an amicus brief in this case on behalf of American Electric Power Co. in support of PPL.]

PPL has filed its reply brief in the Supreme Court, thus completing the briefing.  The brief responds at length to the government’s contention that the U.K. Windfall Tax should be viewed as a tax on value because it assertedly resembles “familiar” and “well-established” methods of measuring value.  In fact, the reply brief maintains, the tax “is a tax on value in name only.”  The reply brief observes that the tax involves “a backward-looking calculation driven entirely by actual, … Read More

Taxpayer Seeks Supreme Court Review in Historic Boardwalk

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February 11, 2013

[Note:  Miller & Chevalier filed an amicus brief in the Third Circuit in this case on behalf of National Trust for Historic Preservation]

We have previously reported extensively (see previous reports here) on the Third Circuit’s decision in Historic Boardwalk denying a claim for historic rehabilitation tax credits by the private partner in a public/private partnership that rehabilitated a historic property on the Atlantic City boardwalk.  Although the Third Circuit declined to rehear the case, the taxpayer has now filed a petition for certiorari seeking Supreme Court review (docketed as No. 12-901).

With no conflict in the circuits on … Read More

Briefing Complete in Bergmann

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February 8, 2013

The Bergmanns participated in a listed transaction promoted by KPMG, known as the Short Option Strategy.  When the Bergmanns filed their amended return in March 2004, the IRS had already served KPMG with summonses targeted at KMPG’s promotion of the Short Option Strategy.  As discussed in an earlier post, the Tax Court held that the Bergmanns failed to timely file a qualified amended return and thus were subject to the 20-percent accuracy related penalty.  Under the regulations in effect when the taxpayers filed their return, the time for filing a qualified amended return terminated when “any person described in … Read More

Briefing Underway in Ninth Circuit on Question of Mortgage Interest Deduction for Non-married Couples

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February 6, 2013

Last spring, the Tax Court held in Sophy v. Commissioner, that the limitations on indebtedness for the mortgage interest deduction are applied on a per residence rather than per taxpayer basis.  The taxpayers appealed to the Ninth Circuit (Nos. 12-73257 and 12-73261), and filed their opening brief on January 30.  The government’s response is due in March.

Under I.R.C. § 163(h)(3), taxpayers are allowed to deduct “qualified residence interest,” which includes interest paid or accrued on acquisition indebtedness with respect to any qualified residence of the taxpayer, or home equity indebtedness with respect to any qualified residence of the … Read More

Amicus Brief Filed in Support of the Government in PPL

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February 3, 2013

[Note:  Miller & Chevalier filed amicus briefs in this case on behalf of American Electric Power Co. in support of PPL in both the Third Circuit and the Supreme Court.]

A group of legal academics, led by Professor Michael Graetz of Columbia who authored the brief, has filed an amicus brief in PPL in support of the government.  The brief argues that the UK tax should be treated as a tax on value, in line with the labels attached to it by Parliament, because it “was designed to redress both undervaluation at privatization . . . and subsequent lax regulation.”  … Read More