Third Circuit Panel Announced for Historic Boardwalk Oral Argument
June 14, 2012
[Note: Miller & Chevalier represents amicus National Trust for Historic Preservation in this case.]
The Third Circuit has scheduled oral argument in the Historic Boardwalk case for June 25 in Philadelphia. (The argument previously had been tentatively scheduled for April, but was postponed.) The panel will consist of Judges Sloviter, Chagares, and Jordan.… Read More
Federal Circuit Deals Utilities a Major Victory on Interest Capitalization and Invalidates Regulation on APA Grounds
June 8, 2012
Last year’s decision in Mayo Found. for Med. Educ. and Research v. United States, 131 S. Ct. 704 (2011), was generally hailed as a big victory for the government in holding that deference to Treasury Regulations would henceforth be governed by the generally applicable Chevron standards, not by the less deferential National Muffler Dealer standards that had previously applied in tax cases. See our report here. In Dominion Resources v. United States, CAFC No. 2011-5087 (May 31, 2011), however, the Federal Circuit reminded Treasury that being treated like every other agency is not always a bed of … Read More
Taxpayers Ask Federal Circuit to Overturn “Harsh” Application of Statute of Limitations
May 30, 2012
In Cadrecha v. United States, No. 11-152 (Apr. 2, 2012), the Court of Federal Claims ruled that the taxpayers could not escape the clutches of the statute of limitations, even though the failure to file a timely lawsuit was largely attributable to contradictory and confusing IRS communications. The taxpayers have now appealed, hoping that the Federal Circuit will be more sympathetic.
The Court of Federal Claims acknowledged that the result was “harsh” on these facts. The taxpayers filed a timely amended return in March 2007, styled as a protective claim for refund, on the theory that a recent Court … Read More
Bush TEFRA Claims Whacked for the Final Time
May 29, 2012
Long-time readers of the blog may recall our coverage of the Federal Circuit’s stumbles through TEFRA in the Bush litigation, where a panel issued a surprising decision finding that a notice of deficiency was required to make what was previously understood as a mere TEFRA computational adjustment, but that the IRS’s failure to issue the notice was harmless error. Both sides cried foul, and the en banc court overturned the panel’s decision. The Supreme Court this morning today denied the taxpayers’ petition for certiorari, meaning that the case has reached the end of the line, which turns out to be … Read More
Home Concrete Decision Leaves Administrative Law Questions Unsettled While Excluding Overstatements of Basis from Six-Year Statute of Limitations
May 3, 2012
[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
Ninth Circuit to Rule on Timing for Filing a Qualified Amended Return for an Undisclosed Listed Transaction
May 1, 2012
The taxpayers in Bergmann v. Commissioner are appealing an adverse Tax Court decision, 137 T.C. No. 10, holding that they failed to timely file a qualified amended return for 2001 and thus are liable for the 20-percent accuracy related penalty. The taxpayers participated in a listed transaction promoted by KPMG, known as the Short Option Strategy. In 2004, two years after the IRS issued a summons to KPMG specifically identifying the Short Option Strategy transaction, the Bergmanns filed an amended return disclaiming the tax benefits of the transaction. The case concerns the interpretation of Treas. Reg. § 1.6664-2(c)(3)(ii) (2004), which … Read More
Second Circuit to Resolve Disagreement Between Tax Court and Federal Circuit Over Availability of Interest Netting for Pre-1998 Tax Periods
April 24, 2012
[Note: Miller & Chevalier represents the taxpayer Exxon Mobil Corp. in this case.]
The government has appealed the Tax Court’s decision on interest netting in Exxon Mobil Corp. v. Commissioner, 136 T.C. No. 5 (Feb. 3, 2011). The briefing is now complete, and the Second Circuit (Judges Cabranes, Walker, and Winter) is scheduled to hear oral argument on April 25.
Congress expressly required global interest netting by enacting Code section 6621(d) in 1998. Before then, the IRS had sometimes taken advantage of the differential interest rates established in 1986 to collect net interest when no net tax was due. … Read More
Supreme Court Debates Whether Anti-Injunction Act Is Jurisdictional
April 3, 2012
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
Second Circuit Considering Important Research Credit Issue in Union Carbide
April 2, 2012
We present here a guest post by our colleague Patricia Sweeney:
On March 29, 2012, the Second Circuit heard oral arguments in Union Carbide Corp. & Subsidiaries v. Commissioner, No. 11-2552 (Judges Straub, Pooler & (visiting district court Judge) Korman on the panel ). The case involves Union Carbide Corp’s (“UCC’s”) claim for research and experimentation credits with respect to 106 research projects. In order to resolve the issues expeditiously, the parties agreed that the Tax Court would limit trial to the five largest projects. All five projects involved process experimentation after products were placed in commercial operation. For … Read More
Tax Anti-Injunction Act Issue Set to Lead Off Supreme Court Consideration of Health Care Act
March 16, 2012
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
