June 12, 2014
The government has now filed its reply brief in MassMutual. The brief begins by asserting that the taxpayer has abandoned on appeal an argument that had persuaded the trial court — namely, “reliance on its annual-dividend obligation to individual policyholders to establish the fact of its liability under the dividend guarantees.” In the government’s view, that “about-face is fatal to its case.” The reply brief then addresses the taxpayer’s reliance on the Washington Post case. See our previous report here. It argues that, “unlike the group obligations in Washington Post, the alleged group obligations in this case were not otherwise fixed as to liability in the years in which the dividend guarantees were adopted” for reasons unconnected to the indeterminate membership of the group. The rest of the brief hews more closely to the topics discussed in the government’s opening brief, including the Supreme Court’s decision in Hughes Properties and the Second Circuit’s decision in New York Life. See our previous report here. The reply brief also argues again that its economic performance regulation is entitled to Auer deference.
The Federal Circuit has not yet announced a date for oral argument.