In the Trump era, I made several posts that explored how separation-of-powers principles might protect the President from prosecution, regarding his alleged interference with Department of Justice investigations. I have now written a longer piece, The President’s Criminal Immunity. The abstract is below: This Essay addresses a monumental question that the Supreme Court will soon […]
In a widely anticipated move, the House Ways & Means Committee released a report on how the IRS audited Donald Trump’s tax returns. The W&M report along with the related Joint Committee on Taxation report show that Trump had ongoing audits with the IRS before he assumed office. The IRS continued those audits throughout the […]
As discussed in a prior post, the Sixth Circuit in Whirlpool v. Commissioner, 19 F.4th 944 (6th Cir. 2021), embraced phantom regulations. The court concluded that a statute that contemplated rules applying “under regulations” could operate regardless of whether regulations had been issued under the statute. Though in Whirlpool the Treasury had issued regulations relevant […]
A few decades ago, various federal trial and appellate courts adopted an odd approach towards tax statutes that call for Treasury regulations but for which no regulations had been issued. These courts decided that they would not wait for the Treasury to act. Instead, they would apply the statutes without regulations. In doing so, they […]
As many litigators know, federal courts often take substantial time before they rule on motions or issue their opinions. Weeks, months, or sometimes even years may pass between an argument over an issue and a court’s disposition of that issue. Parties usually have little choice but to wait. In the U.S. Tax Court, delays may present an especially acute problem. In Tax Court trials, no jury renders […]
In Transunion v. Ramirez, the Supreme Court illustrated the limits on Congress’s authority to establish an Article III “injury in fact.” Though the case involved a lawsuit by private plaintiffs against a private company, the Court’s decision will likely affect standing doctrine in other contexts. As discussed here, the Transunion case may negatively affect congressional […]
This week, the Supreme Court decided Trump v. Mazars. That case involved congressional subpoenas for financial information related to President Trump. It did not expressly involve a subpoena for the President’s tax return information. The House has brought a separate lawsuit for that information, which remains pending in front of a federal district court. See […]
This week, the Supreme Court heard oral arguments in CIC Services v. IRS. That case involves a challenge to Notice 2016-66. Under that notice, material advisors to some reportable transactions face substantial reporting requirements. A failure to satisfy those reporting requirements subjects the taxpayer to potentially severe penalties. See 26 U.S.C. §§ 6111(a) and 6707A(a)-(b). […]
Through a White House memorandum, President Trump directed the Treasury Department to exercise the authority conferred by Section 7508A. Under that statute, the Treasury may extend various otherwise strict deadlines under the tax code, including those for the payment of taxes. The White House memorandum contemplates that the Treasury will use Section 7508A to extend […]
I’ve posted my forthcoming article, Congressional Subpoenas in Court, 98 N.C. L. Rev — (2020), on SSRN. Comments are welcome, and the abstract is here: The ongoing political battles between President Trump and House Democrats have sparked substantial debates over the legislature’s authority to oversee the executive branch. The House has not been discouraged by […]
In CREW v. Trump, some private parties have alleged that President Trump has violated the Constitution’s emoluments clauses through his continued business activities. They believe that the Constitution forbids a President from transacting with foreign or domestic governments, and that President Trump’s doing so harms them. They claim that their businesses compete with the President’s […]
The taxpayers in Tucker v. Commissioner recently filed a petition for certiorari with the Supreme Court, asking it to review whether their complex transaction generated benefits under the federal tax code. The Fifth Circuit held that compliance with federal tax statutes was not enough, and that the judge-made economic substance doctrine “empowers the federal courts […]
My prior posts have explored some of the constitutional issues related to the battle for President Trump’s tax returns. I’ve now posted a full length law review article, “The President’s Tax Returns,” and would appreciate reader comments. Here’s the abstract: The President’s Tax Returns This Article examines whether congressional committees enjoy the unrestricted authority to demand […]
Since the control of the House switched earlier this month, Democrats have reiterated their desire to obtain President Trump’s tax returns. According to a recent Wall Street Journal article, Rep. Richard Neal, the chairman of the Ways & Means Committee, intends to request those returns from the IRS. My prior posts have examined some of […]
The U.S. Attorney for the Southern District of New York (the SDNY) recently filed its sentencing memo in U.S. v. Michael Cohen. That memo has led to substantial speculation over whether the SDNY has evidence that President Trump criminally violated the Federal Election Campaign Act (FECA). Many commentators believe that the SDNY does, particularly because […]