Miller & Chevalier's Tax Appellate Blog

Briefing Complete and Argument Scheduled in CIC Services

Alan Horowitz — Mon, 16 Nov 2020 20:26:24 +0000

The Supreme Court has scheduled oral argument in the CIC Services case for December 1. As has been the practice at the Court since March because of the pandemic, the argument will not occur in person, but rather will be conducted by telephone. And the questioning therefore will be more structured instead of the traditional free-for-all. After the advocate is allowed to give a brief, two-minute introduction without interruption, each Justice then will have a turn to ask questions — approximately three minutes for each Justice beginning with the Chief Justice and moving on in descending order of seniority from … Read More

Government Brief Filed in CIC Services

Alan Horowitz — Wed, 09 Sep 2020 21:46:20 +0000

The government has now filed its answering brief in CIC Services, defending the divided Sixth Circuit’s decision to dismiss an APA challenge to a reporting requirement on the ground that the lawsuit violated the Anti-Injunction Act. See our previous reports here.

Like the taxpayer’s brief, the government focuses most of its attention on analyzing the statutory text. Like the court of appeals, it argues that the terms of the statute literally apply because the penalties for noncompliance with the reporting requirements are defined in the Code as “taxes” and the lawsuit, if successful, would have the effect of … Read More

Ninth Circuit Addresses Rules Governing Waiver of Work-Product Protection in Sanmina

Alan Horowitz — Tue, 18 Aug 2020 17:23:46 +0000

In the Sanmina case, the Ninth Circuit dealt the government a defeat on appeal in its efforts to obtain the legal analysis contained in memoranda prepared by a taxpayer’s in-house counsel. As we have described in our prior coverage of the case, the dispute involves in-house analysis of the tax consequences of a transaction. DLA Piper later relied upon those memoranda in preparing a valuation report that was disclosed to the IRS. The district court ruled that the memoranda were privileged to begin with, but the taxpayer’s actions waived both the attorney-client privilege and the work-product protection.

The Ninth Circuit … Read More

Briefing Underway in CIC Services

Alan Horowitz — Wed, 29 Jul 2020 21:09:44 +0000

The opening briefs have now been filed in CIC Services, which involves the applicability of the Anti-Injunction Act, 26 U.S.C. § 7421(a), to an Administrative Procedure Act challenge to a reporting requirement that carries with it a “tax” penalty for noncompliance. See our prior report here. Showing a restraint that is fairly unusual today in Supreme Court litigation, the taxpayer’s brief (linked below) comes in well under the maximum length permitted by the Court’s rules. Showing somewhat less restraint, a variety of organizations and individuals filed a total of ten different amicus briefs in support of the taxpayer’s … Read More

Supreme Court Denies Cert in Altera

Appellate Tax Update — Mon, 22 Jun 2020 14:51:00 +0000

Despite the glut of high-powered amicus briefs in support of the taxpayer’s petition for certiorari and last week’s landmark APA decision on DACA (the relevance of which to the issues in Altera we covered here), the Supreme Court declined to review the Ninth Circuit’s decision in Altera this morning.… Read More

Supreme Court’s DACA Decision May Affect Altera

Appellate Tax Update — Thu, 18 Jun 2020 23:42:07 +0000

Altera’s petition for certiorari is pending at the Supreme Court. With the support of several amici, Altera has asked the Court to review the Ninth Circuit’s decision (see our prior coverage here) to uphold the validity of Treasury’s transfer-pricing regulation (Treas. Reg. § 1.482-7A(d)(2)) requiring taxpayers to include employee-stock-option costs in the pool of costs that parties to cost-sharing arrangements must share. Two APA arguments loom large in Altera’s petition. Today’s Supreme Court decision on Deferred Action for Childhood Arrivals (DACA) and the APA in Department of Homeland Security v. Regents of the University of California, No. 18-587, … Read More

Supreme Court to Hear Tax Anti-Injunction Act Dispute in the Fall

Alan Horowitz — Wed, 10 Jun 2020 16:10:26 +0000

The Supreme Court granted certiorari in CIC Services, LLC v. IRS, No. 19-930, to address the scope of the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a). The briefing in the case will occur over the summer, with oral argument to occur sometime in the fall.

The basic issue in the case is how narrowly to read the Act’s prohibition on actions seeking to enjoin “the assessment or collection of any tax.” That prohibition means taxpayers who dispute a tax assessment must pay their taxes first before they can litigate the dispute in a refund suit. The CIC case, however, … Read More

Waiver of Attorney-Client Privilege and Work-Product Protection Issues Return to Ninth Circuit in Sanmina

Alan Horowitz — Mon, 10 Feb 2020 19:31:06 +0000

We previously reported on the Ninth Circuit’s earlier consideration of attorney-client privilege and waiver issues in the Sanmina case here. That first appeal ended with a whimper of an unpublished opinion when the court of appeals decided that it could better assess the issues after the trial court had reviewed the relevant documents in camera. As explained in more detail in our previous reports, the taxpayer sought to protect the contents of two memoranda prepared by in-house counsel concerning the tax consequences of certain transactions. Those memoranda were furnished to DLA Piper for its use in preparing a stock … Read More

Ninth Circuit Preparing for Oral Argument in Mazzei

Alan Horowitz — Thu, 06 Feb 2020 16:38:48 +0000

We have previously reported at length on the taxpayers’ pending appeal in Mazzei involving the Tax Court’s rejection on substance-over-form grounds of what the IRS has described as an “abusive Roth IRA transaction,” notwithstanding the Sixth Circuit’s pro-taxpayer ruling in Summa Holdings regarding essentially the same kind of transaction.

Oral argument in the case is scheduled for February 14, and the Ninth Circuit has now announced the three-judge panel that will hear the case: Senior Circuit Judge Jay Bybee (appointed by Bush in 2003), Circuit Judge Daniel Collins (appointed by Trump in 2019), and Senior District Judge Barry Ted Moskowitz … Read More

Cert Denied in SIH Partners

Alan Horowitz — Mon, 13 Jan 2020 16:29:33 +0000

As expected, the Supreme Court this morning declined to review the Third Circuit’s decision in SIH Partners, thus bringing the litigation to a close.… Read More