That’s Judge Emin (“Eminent”) Toro’s version of Treasury’s reply to Robert Rowen, 156 T. C. 8, filed 3/30/21. Rob (that’s Doc Rob, as he’s a travelling MD with family and friends in Singapore and China, and patients all over the world) claims Section 7345, the delinquents’-passports-grab, is unconstitutional (Fifth Amendment due process) and UN Dec of Human Rights (which the Supremes said confers no rights enforceable in US courts).

Review is record-rule. But in this case it doesn’t much matter.

Judge Eminent Toro takes a close look at the FAST Act. That’s Fixing America’s Surface Transportation Act of 2015. That enactment sets up the mechanism for the passport grab.

“To summarize the foregoing, the FAST Act authorizes different Government actors to make different decisions and carry out different actions. Pursuant to section 7345, the Commissioner is charged with determining whether a seriously delinquent tax debt exists, making a certification of that fact, and notifying the taxpayer of that certification. Also pursuant to section 7345, the Secretary of the Treasury is charged with transmitting the certification made by the Commissioner to the Secretary of State. By contrast, pursuant to FAST Act section 32101(e), the Secretary of State acts with respect to the passport of an individual who has been certified to have a seriously delinquent tax debt. The Secretary of State is permitted, in his discretion, to revoke a passport that has already been issued. And he is prohibited from issuing a new passport or renewing an expiring one, although the prohibition is not absolute. He retains discretion to issue a new passport or renew an expiring one ‘in emergency circumstances or for humanitarian reasons.’ FAST Act sec. 32101(e)(1)(B).” 156 T. C. 8, at p. 16.

And Doc Rob has serious tax debt, like $474K worth. His SOL argument is an affirmative defense, not a jurisdictional bar. Btw, at time of trial State hadn’t yet grabbed his passport.

Tax Court, like all Federal courts, tries to avoid ruling over-broadly on constitutional questions. Whether the statute as applied to State is constitutional is not before Tax Court.

Summary J for IRS.