Access to Judicial Review in Non-Deficiency Tax Cases

39 Pages Posted: 28 Jan 2019

See all articles by Keith Fogg

Keith Fogg

Tax Clinic at Legal Services Center of Harvard Law School

Date Written: January 15, 2019

Abstract

In the case of Flora v. United States the Supreme Court determined that the jurisdictional statute governing tax refund suits did not make clear whether a taxpayer must fully pay the tax before filing suit to obtain a refund. Despite the lack of clarity in the statute, a split in the circuits and no strong reasons for its decision, a 5-4 majority of the Court decided in its second try at the case that a taxpayer who received a statutory notice of deficiency and failed to petition the Tax Court could not pay a partial amount of the tax and sue for refund.

Seventeen years later in the case of Laing v. United States, the Solicitor General argued that Flora was limited to situations in which the taxpayer had received a notice of deficiency and failed to petition the Tax Court and did not create a bar to partial payment in other situations. Despite its weak foundation and its narrow scope, the Flora decision now stands as a broad bar to taxpayers seeking a refund who do not fully pay the tax before bring the suit. The IRS and the Department of Justice have completely reversed course from the argument made by the Solicitor General in Laing.

The result of the current interpretation of Flora by the lower courts is that for taxpayers who never have the opportunity to petition the Tax Court prior to assessment or who missed the opportunity to go to Tax Court but can never scape together enough money to fully pay the tax the opportunity for judicial review of the actions of the IRS may be lost. The recent case of Larson v. United States brings this home in stark fashion. Mr. Stark promoted tax shelters. The IRS assessed against him, and others, a tax shelter promotion penalty of approximately $160 million. Because the penalty was an assessable penalty which did not exist when Flora was decided and because he does not have $160 million with which to satisfy the assessment, Mr. Larson is barred from judicially contesting this assessment.

This paper analyzes how we reached the situation that certain taxpayers have no opportunity for judicial review of the actions of the IRS and suggests a path that would allow ever taxpayer the opportunity for judicial review of their tax assessment.

It appeared that Congress attempted to provide an opportunity for judicial review when it passed the Collection Due Process provisions in 1998; however, the regulations written by the IRS have the effect of cutting off judicial review in situations in which the taxpayer has the opportunity for administrative review. The paper suggests that relatively small changes to the Collection Due Process provisions could provide the opportunity for judicial review of tax assessments to everyone. It also explores other avenues that could provide this opportunity.

Suggested Citation

Fogg, Keith, Access to Judicial Review in Non-Deficiency Tax Cases (January 15, 2019). Available at SSRN: https://ssrn.com/abstract=3316915 or http://dx.doi.org/10.2139/ssrn.3316915

Keith Fogg (Contact Author)

Tax Clinic at Legal Services Center of Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States
6173902532 (Phone)
6175220109 (Fax)

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