Home Concrete Decision Leaves Administrative Law Questions Unsettled While Excluding Overstatements of Basis from Six-Year Statute of Limitations

[A shorter version of this blog post appears on SCOTUSblog.]

The Supreme Court last week ruled 5-4 in favor of the taxpayer in Home Concrete, thus putting an end to the long-running saga of the Intermountain litigation on which we have been reporting for the past 18 months.  The opinion was authored by Justice Breyer and joined in full by three other Justices, but Justice Scalia joined only in part.  The result is a definitive resolution of the specific tax issue – the six-year statute of limitations does not apply to an overstatement of basis.  But the Court’s … Read More

Supreme Court Debates Whether Anti-Injunction Act Is Jurisdictional

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

Tax Anti-Injunction Act Issue Set to Lead Off Supreme Court Consideration of Health Care Act

The Supreme Court is preparing to hold oral arguments on its long-awaited consideration of the constitutionality of the health care legislation.  The arguments will cover four distinct issues in three different cases and occur over three days, March 26-28.  The most prominent issue, of course, is whether the “individual mandate” requiring almost everyone to have health insurance is constitutional.  Additional issues are “severability” (whether the entire law must be struck down if the individual mandate provision is unconstitutional or whether other portions of the law can survive) and whether the Medicaid expansion provisions of the law are impermissibly “coercive.”

But … Read More

Supreme Court Rules in Kawashima, Finding That Section 7206 Offenses Can Justify Deportation

The Supreme Court (opinion attached below) has affirmed the Ninth Circuit’s decision in Kawashima, ruling that resident aliens who pled guilty to making (or assisting in making) a false tax return in violation of Code section 7206 had committed “aggravated felonies” that made them deportable.  The vote was 6-3, with Justice Thomas writing the opinion and Justices Ginsburg, Breyer, and Kagan dissenting.

As we have previously reported, the Kawashima case involves the interplay between two subsections of the deportation statute’s definition of aggravated felonies, 8 U.S.C. § 1101(a)(43).  Subsection (M)(i) broadly includes offenses “involv[ing] fraud or deceit”; subsection (M)(ii) … Read More

Lively Oral Argument in Home Concrete Leaves Outcome in Doubt

The Supreme Court heard oral argument in the Home Concrete case on January 17, with the Justices vigourously questioning both sides on both the statutory and administrative deference issues.  The Court will issue its decision by the end of June.  The following is a recap of the argument that is also published at SCOTUSblog.  A full transcript of the oral argument can be found here.

Home Concrete involves the scope of the extended six-year statute of limitations applicable when a taxpayer “omits from gross income an amount properly includible therein.”  The case presents two main issues:  (1) whether … Read More

Home Concrete Argument Preview

The long journey of the Intermountain cases toward a definitive resolution enters its final phase on Tuesday morning when the Supreme Court hears oral argument in the Home Concrete case.  (The final brief, the government’s reply brief, was filed last week.)  Each side will have 30 minutes for its argument, with the government going first and having the opportunity for rebuttal (using whatever portion of the 30 minutes that remains after its opening argument).  Deputy Solicitor General Malcolm Stewart (the Deputy SG in charge of tax cases) will argue for the government.  Gregory Garre, who served as Solicitor General … Read More

Taxpayer and Supporting Amicus Briefs Filed in Home Concrete

The taxpayer has filed its brief in Home Concrete.  The brief argues forcefully that the case is controlled by Colony, characterizing the underlying statutory issue as “settled by stare decisis.”   The brief disputes the government’s arguments that the changes made by Congress in the 1954 Code had the effect of extending the six-year statute to overstatements of basis outside the trade or business context, observing that the 1954 Code changes were all designed to favor taxpayers. 

With respect to the regulations, the taxpayer first argues that Colony should be understood as having held that the statutory language was … Read More

Supreme Court Briefing Underway and Argument Date Set in Home Concrete

The Supreme Court has set January 17 as the date for the oral argument in Home Concrete, the case in which it will decide the “Intermountain” issues concerning the applicability of the six-year statute of limitations to overstatements of basis, on which we have reported extensively many times before.  (See here and here for a sample.)  In the meantime, the briefing has commenced with the filing of the government’s opening brief (linked below).

The brief covers what is mostly familiar ground at this point, but it does further develop some of the arguments that have emerged … Read More

Supreme Court Agrees to Hear Home Concrete Case to Address Six-Year Statute Issues

The Court this morning granted certiorari in the Home Concrete case from the Fourth Circuit, thus paving the way for a definitive, nationwide resolution of the issues presented in the Intermountain cases.  We had previously indicated that it was more likely that the Court would hear the Beard case, since the petition in that case was filed first.  It is ironic that the Court chose to hear the Home Concrete case, since that is the one case that neither party urged the Court to take.  (The government asked the Court to grant Beard and hold the Home Concrete case, and … Read More

Update on Intermountain Cases

Although our blog coverage might reasonably be accused of hibernating over the summer, court calendars inexorably marched on, and there were several developments in the various Intermountain cases.  If the Supreme Court grants cert in Beard on September 26, as we have predicted, these developments will not be of much moment, since all of the cases will likely be governed by the Supreme Court’s decision in Beard.  The one possible exception is the Federal Circuit’s decision in Grapevine, where the taxpayer’s cert petition has been fully briefed and is ready for consideration by the Supreme Court on September 26 … Read More

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