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May 26, 2022 Pro Bono Matters

The Intersection of Pro Bono Counsel and Amici Curiae

Andrew R. Roberson

A prior column considered the difference pro bono volunteers make in tax litigation. Although that column did not specifically touch on the intersection of pro bono counsel and amicus curiae, some of those cases did involve the participation of amicus curiae. This column focuses on recent efforts and developments involving the participation of pro bono counsel and amicus curiae in tax litigation.

The term “pro bono”—short for the Latin phrase “pro bono publico”—means “for the public good”. And the Latin phrase “amicus curiae” means “friend of the court”. The participation of pro bono counsel and amicus curiae in cases can be an effective way of ensuring that courts have all necessary information and arguments in deciding difficult cases. As discussed below, this is particularly true in tax cases where a decision on a common issue may impact many more than just the actual litigants.

Background

Amicus briefs are common, and even encouraged, at the U.S. Supreme Court level. This is not surprising, given that the Supreme Court grants writ of certiorari to only a small number of petitioners and generally does so only in cases involving a circuit split or questions of national importance. Amicus briefs are also not uncommon in federal appellate cases, which is also not surprising since appellate courts often have the last word, given the few cases that reach the Supreme Court. Amicus briefs are relatively rare at the trial court level. Indeed, most trial courts do not even have rules in place for receipt of amicus briefs.

In both the Supreme Court and the federal appellate courts, an amicus curiae may file a brief without leave of the courts if all parties to the case consent to the filing. If one or more parties withholds consent, then the amicus curiae must file a motion for leave requesting permission to file its brief. The Supreme Court and most appellate courts (the Seventh Circuit being an exception) are liberal in granting leave so long as the amicus brief is not a “me, too” brief and includes important information that provides a different perspective on the issue at hand. Indeed, the Supreme Court has proposed amending its rules to remove any requirement to obtain consent or file a motion for leave before submitting an amicus brief.

Amicus Briefs in Tax Cases

On March 23, 2022, the U.S. Tax Court proposed new Rule 152 providing procedures for filing an amicus brief. The new rule is similar to the Supreme Court’s own rule and the Federal Rules of Appellate Procedure, with some minor differences. The ABA Section of Taxation is in the process of finalizing comments to the Tax Court on the proposed rule (as well as on other recently proposed rules or amendments to existing rules).

The participation of amicus curiae in Tax Court cases has increased in recent years. This increase is positive for many reasons. It may highlight the importance of a case to the Tax Court and the impact of an issue on other taxpayers. It may also provide a voice for unrepresented taxpayers who cannot financially afford counsel and lack the ability to make the best arguments.

In pro bono and/or low-income taxpayer-related cases, several organizations are making an impact. The Center for Taxpayer Rights, a nonprofit organization dedicated to furthering taxpayer rights, in the United States and internationally, and the Harvard Law School Federal Tax Clinic have championed several issues for taxpayers in amicus briefs. Some recent examples include nationwide issues relating to jurisdiction and equitable tolling, the proper application of the factors for relief from joint and several liability under section 6015(f), the determination of when a return is treated as filed, and the proper application of the Anti-Injunction Act and the Regulatory Flexibility Act.

The most recent example of the interaction between pro bono counsel and amicus curiae is in the case of Boechler, P.C. v. Commissioner, 596 U.S. __ (Apr. 22, 2022). There, the taxpayer received pro bono assistance before the Eighth Circuit from a large law firm , and the Harvard Tax Clinic filed an amicus brief in support of the taxpayer. At the Supreme Court, the same law firm represented the taxpayer, and various tax organizations submitted several amicus briefs. The end result was a 9-0 victory for the taxpayer. The case is important for all taxpayers who file petitions with the Tax Court in collection due process (CDP) cases past the 30-day limit set forth in section 6330(d)(1). Moreover, the case could reach beyond the CDP context to petitions in deficiency cases that are filed past the 90-day time period in section 6213(a). It is doubtful that such a result would have been reached had it not been for the efforts of pro bono counsel and amicus curiae.

I have personally experienced the interaction of pro bono counsel and amicus curiae. Several years ago, I represented low-income taxpayers in a Tax Court case involving the proper application of the 20-percent penalty under section 6662 when refundable tax credits are disallowed and there is little or no underpayment of tax. The taxpayers advanced a primary argument (that would result in no penalty) and an alternative argument (that would result in a de minimis penalty). Carlton Smith, on behalf of the Cardozo Law Clinic, submitted an amicus brief providing arguments supporting the alternative argument. In a court-reviewed opinion—Rand v. Commissioner, 141 T.C. 376 (2011)—the Tax Court adopted the alternative argument, resulting in a significant win not just for those taxpayers but also for taxpayers throughout the country. Thus, the combined efforts of pro bono counsel and amicus curiae resulted in a successful outcome.

The Tax Court has signaled its appreciation for amicus briefs in the past in novel cases. For example, in the 2014 Perez v. Commissioner case, the issue was whether funds the taxpayer received under contracts with a clinic before she underwent a series of painful medical procedures to retrieve her unfertilized eggs for transfer to infertile couples were excludable from gross income under section 104(a)(2). This was a high-profile case: the Tax Court acknowledged it had received publicity in tax and nontax publications. Ultimately, the taxpayer was unsuccessful. The court held that the funds were not damages under section 104(a)(2) because the taxpayer voluntarily signed a contract to be paid to ensure the medical procedures. Judge Holmes specifically expressed his gratitude, however, to pro bono counsel and amici.

The Court thanks petitioner’s counsel [Richard A. Carpenter, Jody N. Swan, and Kevan P. McLaughlin] for their outstanding pro bono work on the unprecedented question that this case raised. It also thanks the amici curiae who filed briefs in this case: Professor Bridget Crawford of Pace University School of Law; Professor Lisa Milot of University of Georgia School of Law; and Professor Timothy M. Todd of Liberty University School of Law.

Final Thoughts

A common theme at the Pro Bono & Tax Clinics Committee and in this column is that tax counsel should strive to give back through pro bono efforts. This can take the form of direct representation of a taxpayer or as an amicus curiae. As noted above, several organizations have taken up the challenge to give back by participating as amicus curiae. Law firms can do the same, whether in their own capacity or through representing a tax organization.

    Andrew R. Roberson

    McDermott Will & Emery LLP, Chicago, IL

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