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 that warrants Supreme Court review, describing this as “the first case since the enactment of the research credit in 1981 that has presented the question of what supply costs are eligible for the credit when a taxpayer simultaneously performs research on a production process and produces products for sale in the ordinary course of its business.”

The government spills more ink addressing Union Carbide’s argument that Supreme Court review is appropriate in order to reject the Second Circuit’s allegedly overbroad application of “Auer deference” to the government’s interpretation of its research credit regulations.  Clearly unenthused about the prospect of the Court re-examining this issue, the government gives a plethora of reasons why it should stay away:  (1) the taxpayer did not raise in the court of appeals its objection that the government should not be entitled to Auer deference when it has a financial interest in the outcome of the case (because the government had not explicitly requested Auer deference in its brief); (2) no other court of appeals has “expressly addressed” this argument; (3) although the Second Circuit invoked Auer deference, that did not affect its decision because it would have interpreted the regulation the same way even without resort to deference principles; (4) Union Carbide’s argument is wrong; and (5) Union Carbide did not claim the credit in question on its tax return and therefore the agency could not apply its interpretation of the regulations until after litigation had commenced.

Given the absence of a conflict and the government’s strong opposition, Union Carbide’s petition faces a steep,a nd likely insurmountable, uphill climb.  The Court is expected to act on the cert petition on March 18.

Union Carbide – Brief in Opposition