Ch J Kathleen (“TBS = The Big Shillelagh”) signed off 3/20/23 on ex-Ch J Maurice B. (“Mighty Mo”) Foley’s proposed Tax Court Rules amendments; included therein was new Rule 151.1, “Brief of an Amicus Curiae.” Said amended Rule, however, took effect only from and after 3/20/23. Wherefore, given the leisurely pace of Tax Court litigation, no post-Amendment exemplar has yet swum into our ken, to give practitioners a view of how the Tax Court Bench deals therewith.

But the fierce fighters of the Federal Tax Clinic at the Legal Services Center of Harvard Law School, ably captained by T. Keith Fogg, Esq., come charging in to assist Catherine L. LaRosa, Docket No. 10164-20, filed 3/26/24, proffering a pre-Amendment brief amicus. Judge Ronald L. (“Ingenuity”) Buch rejects same, and better yet, tells us why, setting forth the criteria that (I hope) will continue to apply when post-Amendment amici deglie amici offer to do judges favors.

Briefly, “(U)nder Fed. R. App. P. 29(b), an amicus must demonstrate ‘why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.’ Under the D.C. District Court’s Local Rule 7(o), an amicus must demonstrate ‘why an amicus brief is desirable, why the movant’s position is not adequately represented by a party, and why the matters asserted are relevant to the disposition of the case.’” Order, at p. 2.

Except.

Neither of the rules cited are Tax Court Rules.

Except.

Pore l’il ol’ Tax Court didn’t have no Rule about briefs amicus before 3/20/23, and Cathy’s trusty attorneys (and man, are they trusty! See infra, as my expensive colleagues say) petitioned years before.

Except, when the Glasshouse cupboard is bare, Tax Court Judges shop locally.

“Where we don’t have rules of our own, we look to the Federal Rules of Civil Procedure and adapt them as appropriate. But the Federal Rules of Civil Procedure do not have a rule specific to the allowance of amicus briefs  In Erwin v. Commissioner, T.C. Memo. 1986-474, we noted our (then) absence of a rule regarding amicus briefs, and consistent with our Rule 1, we looked to the rules of other courts to fill the gap. We noted that amicus briefs are welcomed when they provide information and assistance to the Court beyond what the parties can provide. This may be for the purpose of making points a party is unable or unwilling to make or where the amicus is more knowledgeable than the parties.” Order, at p. 2. (Citation omitted).

And the comment to Rule 151.1 notes it is drawn from the two (count ’em, two) abovecited FRAP and USDCDC local rule.

Bottom line, “Although new Rule 151.1 is effective March 20, 2023, the standard articulated in that Rule is consistent with the Court’s precedent setting forth standards for when amicus briefs are desirable.” Order, at p. 2.

OK, so does the Fogg come in, whether or not on little cat feet?

Negatory, says Judge Ingenuity Buch.

“The issues presented by the Amicus are not helpful to the Court in resolving the narrow issue presented. The Amicus’s primary argument seems to rely on some sort of stare decisis by silence, implying that the Court should be controlled by its failure to address an issue that was not raised in a previous case. But principles such as stare decisis apply to issues actually presented and decided, and ‘drive-by jurisdictional rulings … have no precedential effect.’ The Amicus’s second argument merely posits a counterfactual where innocent spouse relief was sought before the chain of events that actually transpired occurred. But those are not the facts before us. Lastly, the Amicus quibbles with a statement in the Commissioner’s Memorandum, yet misses the point of the statement. The statement with which the Amicus takes issue is, ‘the Code did not permit respondent to assess the amount petitioner and Mr. LaRosa were ordered to repay, because that amount is not a tax liability.’ From this, the Amicus argues that the manner of collection is irrelevant. But that is not the Commissioner’s point. The Commissioner observes that the manner of collection sheds light on the question of whether the erroneous refund in this case is or is not a ‘tax liability.’” Order, at p. 2. (Citation omitted).

OK, but does Cathy need help? That’s a thrashing great negatory, good buddy, says Judge Buch, albeit a lot more elegantly than I.

“…Ms. LaRosa is ably represented in her case. The petition in this case was filed by Paul Butler and Caroline Ciraolo. Mr. Butler has gone on to become the Associate Chief Counsel (Procedure & Administration), heading up one of the largest divisions within the IRS Office of Chief Counsel. But Ms. Ciraolo continues to represent Ms. LaRosa. Ms. Ciraolo is a former Acting Assistant Attorney General of the U.S. Department of Justice’s Tax Division, an adjunct professor in the tax LL.M. program at Georgetown Law, a member and former President of the American College of Tax Counsel, and a former committee chair within the American Bar Association’s Section of Taxation. She has received innumerable accolades for her work and is well known within the tax profession.” Order, at pp. 2-3.

Although neither Mr. Butler nor Ms. Ciraolo went to Harvard, they are indeed trusty attorneys. The IRS OCC types definitely have a foe worthy of their steel.