August 31, 2015
The government has filed its opening brief in the Eleventh Circuit in the Clarke case. The case is now back in that court for the second time after a remand from the Supreme Court that did not persuade the district court to retreat from its prior denial of an evidentiary hearing. See our previous report here.
On the merits, the appellants’ primary argument is that they are entitled to a hearing to explore their allegation that the government is misusing the summons enforcement process to obtain discovery for pending Tax Court proceedings. To that end, the appellants ask the court not to restrict its consideration of the validity of the summons to the situation existing on the date it was issued, but instead to look at the later decision to enforce the summons – well after the statute of limitations had expired. Secondarily, the appellants argue that the district court erred in refusing to allow them to make supplemental submissions in the wake of the Supreme Court’s remand, which arguably changed the legal standard to be applied to appellants’ contentions.
The government’s response brief is due in late September.
In the Microsoft case, the district court held an evidentiary hearing on August 25 and has ordered the parties to submit supplemental briefs on September 2.