Tax Court - CDP Constitutional Appointments Clause Challenge Progresses

Cardozo Professor Carlton Smith reports progress in a Tax Court case where he filed a motion and supporting memorandum on behalf of a client denied OIC relief by IRS Appeals. Prof. Smith based his motion:

"On the IRS' admitted failure to appoint CDP hearing officers at Appeals pursuant the the requirements of the Appointments Clause of the Constitution (Art. II, sec.2, cl. 2). All other ALJs in non-tax departments of the Executive Branch are appointed, and I did not see why CDP hearing officers were exempt from the Constitution's mandate."

Last week Prof. Smith informed tax clinicians that his case was awaiting rulings on cross motions for summary judgment separate from the constitutional motion and the case at that time was under the jurisdiction of Special Trial Judge Dean. However, on Thursday the motion was restyled to remand the case to Appeals and it was ordered that cross motions for summary judgment be held in abeyance with jurisdiction reassigned to Chief Trial Judge Colvin.

The IRS was ordered to file a response to Prof. Smith's motion by October 31. In support of his motion, Prof. Smith includes:

"Supreme Court cases, such as Freytag v. Commissioner, 501 U.S. 868 (1991) (holding that Tax Court Special Trial Judges had to be appointed), and a DOJ Office of Legal Counsel memorandum from April 2007 (2007 OLC LEXIS) setting out the DOJ's position on which government employees need to be appointed."

Further, Prof. Smith advises tax clinicians:

"Any of you who are representing petitioners in the Tax Court who are contesting CDP notices of determination and are facing the abuse of discretion review standard should consider raising the Appointments Clause issue yourselves in your case. The issue is a nonjurisdictional one, according to the Supreme Court in Freytag, so if you do not raise it in your case before a decision becomes final, you can not raise it later."

Prof. Smith welcomes any amicus briefs (for or against). Tax Court practice requires the filing of a motion for leave to file an amicus brief before the due date of the parties' briefs and a copy of the proposed amicus brief must accompany the motion for leave to file. In this case, any such motion and amicus brief must be filed by October 31. -jl Download Memo_of_law_-_Appointments_Clause.doc