Abstract

http://ssrn.com/abstract=1991565
 


 



Amicus Curiae Brief in Health and Human Services v. Florida (Affordable Care Act Litigation) on Behalf of Tax Law Professors in Support of Vacatur


Jordan M. Barry


University of San Diego School of Law

Bryan Camp


Texas Tech University School of Law

January 13, 2012


Abstract:     
This amicus brief, filed in HHS v. Florida (the Affordable Care Act litigation), has two principal goals.

First, it seeks to aid the Court by giving it an overview of the tax determination and tax collection processes. This background is intended to help the Court understand the relationship between new Internal Revenue Code Section 5000A (which contains both the individual mandate itself and the penalty that enforces it) and the rest of the Internal Revenue Code.

Second, it seeks to correct what we see as an error in the lower courts' analysis of Section 5000A. Section 7421, also known as the Anti-Injunction Act, prohibits lawsuits that restrain the assessment or collection of taxes. Accordingly, whether the 5000A penalty is a tax for purposes of Section 7421 is of great importance for this case. Several judges who concluded that the 5000A penalty is not a tax for purposes of Section 7421, including the majority in the DC Circuit, reached that conclusion, in part, because they thought it significant that Congress limited the IRS‘s ability to collect the 5000A penalty. We think that approach is misguided in this particular case for three reasons. First, these limitations strongly imply that Congress thought the 5000A penalty constitutes a tax for purposes of key tax administrative provisions. Second, 5000A is structured to avoid every procedure that a taxpayer could use to challenge a liability before paying it. Third, in light of the specific limitations that Congress imposed on its collection, the 5000A penalty looks increasingly like a true tax measure, regardless of its label.

This brief assumes that Section 7421 is jurisdictional, as the Court has previously held. This brief does not address arguments that the 5000A penalty is a tax for purposes of Section 7421 by virtue of other Code sections, such as Section 6671 or Section 6201. These arguments are ably presented in the brief filed by the court-appointed amicus curiae and the brief filed on behalf of former IRS commissioners Mortimer Caplin and Sheldon Cohen. Special thanks to Michael de Leeuw and the rest of the Fried Frank team.

Number of Pages in PDF File: 41

Keywords: tax, tax administration, tax collection, tax assessment, assessable penalties, anti-injunction act, standing, tax injunction, injunction, 7421, 6402, 6421, 6431, 5000A, individual mandate penalty, individual mandate, penalty, Affordable Care Act, ACA, setoff, offset, liens, levies, amicus, Obamacare

JEL Classification: H51, I18, K3

working papers series





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Date posted: January 27, 2012  

Suggested Citation

Barry, Jordan M. and Camp, Bryan, Amicus Curiae Brief in Health and Human Services v. Florida (Affordable Care Act Litigation) on Behalf of Tax Law Professors in Support of Vacatur (January 13, 2012). Available at SSRN: http://ssrn.com/abstract=1991565 or http://dx.doi.org/10.2139/ssrn.1991565

Contact Information

Jordan Barry (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
Bryan T. Camp
Texas Tech University School of Law ( email )
1802 Hartford
Lubbock, TX 79409
United States
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