August 15, 2013
The taxpayer has filed its brief in opposition in the Supreme Court in Quality Stores. (See our earlier report on the certiorari petition here.) The government has the option of filing a reply brief, which has no specific due date, but likely would be filed no later than early September.
The brief in opposition argues at length that the Sixth Circuit’s decision is correct on the merits. With respect to the government’s reliance on a circuit conflict, the taxpayer describes this as a “shallow conflict” that does not justify a grant of certiorari. Specifically, the taxpayer acknowledges a conflict with the Federal Circuit’s decision in CSX, but argues that the other decisions from regional circuits cited by the government do not conflict “because they all involved payments made to employees who had accepted some form of voluntary separation from employment or payments otherwise materially different in character from SUB payments.” The taxpayer argues that the conflict with the Federal Circuit “may have no practical effect” because taxpayers can always choose to seek a refund in district court and thus avoid the CSX precedent. The taxpayer also suggests that “it is possible” that the Federal Circuit could reconsider its position in light of information about the IRS’s prior administrative practice that was presented to the Sixth Circuit but not to the CSX court.
The Court has scheduled the certiorari petition for consideration at its September 30 conference. Although the Court does not formally begin its new Term until the following Monday (the traditional “First Monday in October”), it has adopted the practice in recent years of announcing grants of certiorari in advance of that date, in order to give the lawyers an opportunity to start on the briefing. Thus, if cert is granted in Quality Stores, an order could issue as early as the afternoon of September 30.