August 26, 2016 Pro Bono Matters

A Sit-Down with Professor Keith Fogg

By Andrew R. Roberson, McDermott Will & Emery, Chicago IL

Editor’s Note: With the next ABA Tax Section meeting set for September 29 – October 1, 2016, in Boston, Massachusetts, we thought it would be appropriate to talk with someone who has provided pro bono services in the Northeast region. Andy Roberson interviewed Professor Keith Fogg in mid-July. Keith directs the Harvard Federal Tax Clinic and is a visiting professor from Villanova Law School. He joined the Villanova faculty in 2007 after working for over 30 years with the IRS Office of Chief Counsel. Keith is a tireless advocate for low-income taxpayers, and is a past recipient of the ABA Tax Section Janet R. Spragens Pro Bono Award. He is co-author of the popular procedurallytaxing.com blog, which focuses on current issues regarding tax procedures, and serves as the editor of the ABA Tax Section publication “Effectively Representing Your Client Before the IRS.” He also authored the collection chapters in “IRS Practice & Procedure” created by Michael Saltzman. Keith previously served as Chair of the ABA Tax Section Pro Bono and Tax Clinics Committee. In this interview, Keith discusses his tax career, with a focus on helping low-income taxpayers and what others can do to become more involved in pro bono efforts.

Q: You were with the Office of Chief Counsel for over 30 years before joining Villanova.  What was the transition like for you?

A: I found the transition remarkably easy. My goal as a Chief Counsel attorney was to find the right answer. I never felt any pressure to resolve a case or give advice that did not involve the right answer. As a clinic director, I also seek the right answer. Ethical issues concerning client representation dictate some differences in what I do with the right answer, but generally the path of a case follows a similar course in the clinic and in the government.

In the Chief Counsel’s office, I served as a manager for many years. In some respects the manager of a small Chief Counsel field office manages a group of attorneys similar in size to the group of clinic students I usually manage. Many similarities exist between the two functions with respect to organization and management of the office and motivation of employees. In the clinic my staff turns over every four months or so instead of every 30 years or so. That has advantages and disadvantages since problems go away much quicker but experience is lacking.

My law school did not have clinics when I attended. My first experience with clinical education happened when I taught the class the first semester. My clinic colleagues provided constant assistance to help me prepare and teach the clinic class. Their assistance made the transition much easier. My first semester in the clinic Les Book, the tax clinic director I replaced, co-taught the clinic with me. That also provided me a great opportunity to learn how to run a clinic.

The easiest part of the transition occurred with respect to the freedom allowed to academics. I could voice any opinion I wanted to whomever I wanted. That freedom is liberating after 30 years of carefully controlled communication as a government employee. I do not mention this to criticize Chief Counsel’s office or the government in general; however, academic freedom serves as a refreshing change. It comes with responsibility and a much smaller safety net but still makes the job wonderful.

Q: What are some of the accomplishments during your career, whether it was with the Office of Chief Counsel or after leaving the government, of which you are most proud?

A: The part of the job I enjoy the most is finding solutions for my clients. A field attorney in Chief Counsel’s office litigates Tax Court cases (and for many years also handled bankruptcy cases); however, much of the work involves providing guidance to local IRS employees. My goal was to provide appropriate guidance in a reasonable time frame and to develop a trusting relationship with my clients from all functions of the IRS. I was generally successful in making this happen and it was an important accomplishment.

As a litigator I had some success on small fact-based cases. As an advisor and instructor on collection cases I had enough success in my field office to become recognized on a broader level.

During the period leading up to passage of the IRS Restructuring and Reform Act of 1998 (RRA 98), I represented the first IRS employees who went before the Senate staff investigating IRS abuses. I believe I convinced the staff on the case in which I was involved that the IRS employees acted properly and even generously toward the taxpayer who complained about their actions. The investigation of that case stopped at the staff level. During that same period, I received a call one day from the Chief Counsel asking me to draft collection provisions that would benefit taxpayers and the IRS. Recently retired Deputy Chief Counsel Chris Sterner (working in Richmond with me at the time) and I spent a weekend drafting about 25 provisions. Six of them made it into the legislation. After the passage of RRA 98, I temporarily headed the National Office Division of Chief Counsel’s office in charge of the collection provisions of the code. In that position I got to supervise the writing of the Collection Due Process regulations and other collection regulations and guidance needed in the immediate aftermath of that legislation.

As a clinic director there have been several cases where the representation by the clinic has made a significant difference in the lives of our clients. Those cases are important accomplishments even if they are system accomplishments. One of the cases my clinic handled in my first semester has perhaps had the largest impression on me. We represented a young adult who came to us because of a levy on his wages. The clinic was able to show the IRS that he did not owe the money, get the taxes abated, and obtain a return of all of the money taken from him through the levy. His life was transformed. I could recount several stories where the clinic has made a significant difference for our clients and where the experience of making that difference has made a real difference to the students who handled the case.

Working with the ABA Tax Section I have had the opportunity to make a difference on a broader scale. Partnering with other attorneys at the ABA to achieve some of the broader victories for low-income taxpayers has made me proud. Receiving the Janet Spragens Pro Bono Award from the ABA was very meaningful to me.

Q: You led the charge a few years ago to ensure that the Tax Court had 100% coverage at its calendar calls.  What led you to undertake this challenge and what benefits do you see with the calendar call program?

A: I was the chair of the Low Income Taxpayers Committee (now called the Pro Bono and Tax Clinics Committee) at the time. Obtaining full coverage seemed like an attainable goal and one that could meaningfully impact taxpayers at a time of significant stress in their lives. Clinicians were becoming more interested in and less frightened of Tax Court representation. Chief Judge Colvin and his successor Chief Judge Thornton were extremely supportive. It was the right time.

I think the calendar call program has benefits for every party. For the taxpayer it gives the individual a chance to feel the system treated them fairly. Even if a clinician or pro bono attorney tells them that they should concede their case, they hear it from someone with no stake in the case but to assist them. They feel better, not bitter, about the Tax Court experience. While it does not happen at every calendar, many individuals have won because of this representation. It also serves as a place to connect the individuals with representation for the collection phase of the case when some liability exists. For Chief Counsel’s office it allows resolution of cases without requiring them to devote time and resources to a trial for a matter that should be resolved by agreement or concession. For the Court it eliminates needless trials and keeps the judges from having to try to find the right answer without the proper adversarial representation on both sides. The ABA Tax Section should be very proud of the work it has done to contribute to the Tax Court process.

Q: As someone who has been involved with the low-income taxpayer community and a vocal advocate of pro bono services, what are some of the ways that you encourage private practitioners to become more involved and what benefits are there for these volunteers?

A: The aspect of tax clinics that surprised me the most was how hard it is for most clinicians. Academic clinicians generally have a good support network at the school both in resources and tax knowledge. The tax clinicians at independent clinics and legal services clinics often have no support network at their clinic and few research resources. As a District Counsel, my office faced the Community Tax Law Project led by Nina Olson. I was accustomed to a clinic with a very knowledgeable practitioner who worked hard to obtain resources. I knew Nina was extraordinary but I did not appreciate how extraordinary until I began to learn about all of the clinics. Before she started CTLP, Nina had been a tax practitioner for more than 15 years and obtained her LL.M. in tax at Georgetown.

In many low-income tax clinics the director previously worked as a consumer lawyer, housing lawyer, domestic lawyer, etc. and then the organization in which the tax clinic is housed obtained a grant under section 7526 and the lawyer with little or no tax experience becomes the tax director. Not only is the new tax clinic director someone with little or no tax clinic experience but they have no one in their organization to mentor them. With no other tax lawyers in the organizations, the new tax clinic directors have to learn tax procedure and tax law on their own.

Tax lawyers can provide valuable mentoring to clinicians in addition to taking cases. Finding a clinic to partner with can provide a great benefit to the clinic and a great mentoring opportunity for the experienced tax lawyer or tax firm. Tax attorneys in the United States are very generous with their time compared to attorneys around the world. I think they are so generous because they feel good when they are able to assist someone and because they know that their work can have a life-changing impact on the individual assisted as well as on the tax system. Many low-income taxpayers make difficult clients. Volunteering does not always create a feel-good experience. Volunteering requires some persistence. It can be a great way to learn about tax procedure and tax law the attorney might otherwise not experience. It also provides significant insight into the lives of those living in economically marginal circumstances. It is too easy for many of us to live privileged lives and never obtain significant insight into those in different economic circumstances.

Q: I’ve noticed that you have become more active in recent years in providing your services, either through direct representation or through amicus briefs, in Tax Court cases involving novel issues.  How have you become involved in these cases and what suggestions would you give to others that want to become more involved in providing these types of pro bono services?

A: I am trying at the Harvard clinic to identify broad issues on which we could make an impact through litigation in addition to working routine cases in which we are assisting clients in our community in Boston. Identifying and litigating the cases involving novel issues requires significant assistance from experienced practitioners. Students can add value when they work on such cases but generally lack the ability to identify the appropriate cases or grasp some of the necessary nuances within the time period offered by litigation. Going after the cases with novel issues where litigation might make a difference requires that we partner with the best practitioners. So far, Harvard has been very fortunate to partner with two Janet Spragens Award recipients, Carl Smith and you. The knowledge and experience that each of you brought to the cases has allowed the students to learn and to make the appropriate arguments.

These types of cases may be easier for academic clinics to pursue than for non-academic groups, because of the possibility of partnering with others to add deep experience. As clinics become more sophisticated and experienced, I expect that they will bring more impact litigation in the future. I am glad that Harvard is able to do this. I hope that we can bring issues to the attention of courts that will have a positive impact on low income taxpayers.

Q: With all the work that you do—teaching, running a tax clinic, litigating cases, co-authoring a blog and acting as editor for other publications, and being involved in the ABA Tax Section—what sort of activities do you do outside the tax world?

A: I relax by riding my bicycle. In nice weather I try to ride for a couple of hours each day on the weekend or when I am on vacation. I enjoy travel. My sons find interesting places to live and for me to visit. My daughter lives in our hometown, Richmond, Virginia. I enjoy visiting her family and seeing my grandchildren.