Recently in Tax Law Category

In taxpayers' appeal of a tax court decision granting summary judgment for the IRS and permitting it to proceed with its collection action relating to petitioners' 1990 tax liability, the order is affirmed where the statute of limitations regarding collection was tolled during the pendency of petitioners' bankruptcy proceedings.

Read Severo v. Comm'r of Int'l Rev., No. 08-70817

Appellate Information

Argued and Submitted October 9, 2009

Filed November 20, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellants:

Michael V. Severo, Law Offices of Michael V. Severo, Los Angeles, CA

For Appellee:

Curtis C. Pett, Department of Justice, Tax Division, Washington, DC

In an appeal from the tax court's decision denying taxpayers' appeal from an IRS collection due process hearing, the order is affirmed where the taxpayers' waiver of their right to receive a notice of deficiency did not require acceptance by the IRS to become effective, and the taxpayers had waived their pre-collection right to contest liability.

Read Ulrich v. Comm'r. of Int'l. Rev., No. 08-70718

Appellate Information

Argued and Submitted September 17, 2009

Filed November 3, 2009

Judges

Per Curiam

Counsel

For Petitioners:

Joe Alfred Izen, Jr., Bellaire, TX

For Respondent:

Nathan J. Hochman and Steven W. Parks, Attorneys, Tax Division, Department
of Justice, Washington, DC

Defendant's sentence for filing false tax returns is vacated where the district court failed to adequately explain the grounds for the sentence because: 1) the record was not clear that defendant's incarceration would harm his father's business; 2) the district court understated the severity of the offense; and 3) the district court improperly relied on prompt satisfaction of a substantial monetary sanction to impose a non-custodial sentence.

Read US v. Bragg, No. 08-10221

Appellate Information

Argued February 9, 2009

Submitted September 17, 2009

Judges

Opinion by Judge Noonan

Dissent by Judge Smith

Counsel

For Appellant:

Mark Determan

For Appellee:

Anthony E. Colombo

In an appeal from a tax court's judgment denying nonrecognition treatment for the parties' like-kind real estate transactions, the order is affirmed where the exchanges did not qualify for nonrecognition treatment under 26 U.S.C. section 1031, because they took their peculiar structure for no apparent purpose except to avoid Section 1031.

Read Teruya Bros. v. Comm'r. of Int'l. Rev., No. 05-73779

Appellate Information

Argued February 11, 2009

Filed September 8, 2009

Judges

Opinion by Judge Thomas

Counsel

For Petitioner:

Renee M.L. Yuen, Honolulu, HI

For Respondent:

Jonathan S. Cohen, Attorney, Tax Division, Department of Justice, Washington, DC

Bridget M. Rowan, Attorney, Tax Division, Department of Justice, Washington, DC

In an action seeking an order declaring that the debtors' state tax obligations from the year 2000 were discharged at the conclusion of their Chapter 13 bankruptcy proceeding in 2004, summary judgment for the state tax board is reversed where only taxes incurred post-petition may be treated as postpetition claims under 11 U.S.C. section 1305(a).

Read Joye v. Franchise Tax Bd., No. 07-15676

Appellate Information

Argued and Submitted October 24, 2008

Filed August 21, 2009

Judges

Opinion by Judge Wallace

Dissent by Judge Graber

Counsel

For Appellants:

Robert N. Kolb, Antioch, CA

For Appellee:

Randall P. Borcherding, Supervising Deputy Attorney General, San Francisco, CA

Kristian D. Whitten, Deputy Attorney General, San Francisco, CA

In an action against a U.S. territory seeking recovery of income tax rebates and accrued interest under the territorial tax code, dismissal of the complaint is affirmed where the rebate provisions of the tax code provided the legal basis for plaintiff's rebate claims and thus the claims did not "arise under federal law" under 28 U.S.C. section 1331.

Read Armstrong v. N. Mariana Islands, No. 07-16126

Appellate Information

Argued and Submitted November 18, 2008

Filed August 7, 2009

Judges

Opinion by Judge Paez

Counsel

For Appellant:

Alexis Ann Fallon, Fallon Law Offices, Saipan, MP

For Appellee:

Gregory Baka, Deputy Attorney General, Office of the Attorney General, Saipan, MP

In an action under 26 U.S.C. section 7431(a) claiming that the IRS disclosed false tax information regarding plaintiffs in violation of 26 U.S.C. section 6103(a), summary judgment for defendants is vacated where section 7431(d)'s statute of limitations is jurisdictional, and the district court therefore needed to determine whether the claim was timely filed.

Read Aloe Vera of Am., Inc. v. US, No. 07-15577

Appellate Information

Argued and Submitted October 24, 2008

Filed July 30, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellants:

Terrence D. Woolston, Woolston & Tarter, P.C., Phoenix, AZ

Tim A. Tarter, Woolston & Tarter, P.C., Phoenix, AZ

For Appellee:

Richard T. Morrison, Acting Assistant Attorney General, Washington, DC

Jonathan S. Cohen, Tax Division, Department of Justice, Washington, DC

In an action against Internet travel companies such as Hotels.com, Priceline.com, and Travelocity.com, claiming that they failed to calculate and remit hotel occupancy taxes in violation of a city ordinance, dismissal of the complaint is affirmed in part where plaintiff-city failed to assess the tax as required by the ordinance.

Read Oakland v. Hotels.com LP, No. 07-17258

Appellate Information

Argued and Submitted April 17, 2009

Filed July 16, 2009

Judges

Opinion by Judge McKeown

Counsel

For Appellant:

Monique Olivier, The Sturdevant Law Firm, San Francisco, CA

For Appellees:

Darrel J. Hieber, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, CA

In a Tax Court petition challenging an IRS deficiency notice, judgment for Petitioner is affirmed, where a taxpayer does not "omit[ ] from gross income an amount properly includible therein" for purposes of 26 U.S.C. section 6501(e)(1)(A) by overstating its basis.

Read the full decision in Bakersfield Energy Partners v. Commissioner of Internal Revenue, No. 07-74275.

Appellate Information:

Appeal from a Decision of the United States Tax Court
Argued and Submitted February 9, 2009 -- Pasadena, California
Filed June 17, 2009

Judges:

Before: Andrew J. Kleinfeld, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

Counsel:

Steven R. Mather, Beverly Hills, California, for the petitioners-appellees.

Joan I. Oppenheimer, Washington, D.C., for the respondent-appellant.

In a motion to quash a summons issued by the IRS and served on the U.S. more than twenty days after it was issued, the District Court's order dismissing the action for lack of jurisdiction is reversed where, although a party filing a motion to quash must commence a proceeding to quash the summons within twenty days after the notice is given, the party is permitted 120 days to serve the motion on the U.S.

Read the full decision in Mollison v. US, No. 07-16035.

Appeal Information:

Appeal from the United States District Court for the District of Nevada. Howard D. McKibben, District Judge, Presiding.

Submitted March 11, 2009, San Francisco, California. The panel unanimously finds this case suitable for decision without oral argument.

Filed June 15, 2009

Judges:

Before Sidney R. Thomas and Jay S. Bybee, Circuit Judges, and Roger T. Benitez, District Judge. The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation.

Opinion by Judge Thomas

Counsel:

Edward Robbins, Jr. and Heather K. Lee, Hochman, Salkin, Rettig, Toscher & Perez, P.C., Beverly Hills, California, for the appellants.

Andrea R. Tebbets and Ivan C. Dale, United States Department of Justice, Washington, D.C., for the appellees.