Recently in Tax Law Category

In a case involving the founder of Adelphia and his son, denial of defendants' motion to dismiss conspiracy charges in a Pennsylvania indictment, claiming that their conviction for conspiracy and substantive fraud counts in the Southern District of New York violated their right to be free from double jeopardy, is remanded as 18 U.S.C section 371 creates a single statutory offense and defendants established a prima facie case that there was only one conspiratorial agreement.  However, denial of defendants' motion to dismiss tax evasion charges in the Pennsylvania Indictment is affirmed.  

Read US v. Rigas, No. 08-3218

On Appeal from the United States District Court for the Middle District of Pennsylvania

(No. 05-cr-00402)  

District Judge: Honorable John E. Jones III.

Opinion Filed October 21, 2009

Judges

Before:  Rendell, Fuentes, and Roth, Circuit Judges

Opinion by Fuentes, Circuit Judge 

Counsel

Counsel for Appellant:  Lawrence G. McMichael, Matthew P. Faranda-Diedrich, Patrick M. Northern, Joseph U. Metz, Dilworth Paxson

Counsel for Appellee:  George J. Rocktashel, Martin C. Carlson, Office of the United States Attorney, Lorna N. Graham, Office of the United States Attorney

A municipality's petition for review of the Department of Transportation's (DOT) order declaring its ordinance imposing tax on airlines every time one of their flights lands within the municipality's borders invalid is denied as the Anti-Head Tax Act, 49 U.S.C. section 40116 text unambiguously demonstrates that subsection (c) is not a savings clause for flight-related taxes. 

Read Township of Tinicum, Delaware County, Pennsylvania v. DOT, No. 08-1830

Appellate Information

On Petition for Review of an Order of the United States Department of Transportation

Opinion Filed September 14, 2009

Judges

Before: Chagares and Hardiman, Circuit Judges and Garbis, District Judge 
Opinion by Chagares, Circuit Judge 

Counsel

Counsel for Appellant: Francis G.X. Pilleggi, Sheldon K. Rennie, Sophia Siddiqui

Counsel for Appellee:  Dale C. Andrews, Paul M. Geier, Mary F. Withum, Robert B. Nicholson, Robert J. Wiggers 

Convictions for conspiracy to defraud the IRS are affirmed where: 1) materiality is an essential element of the charged 18 U.S.C. section 286 offense, but is not required to show a section 287 violation; 2) despite the fact that the indictment did not use the term material, it sufficiently alleged facts that warrant an inference of materiality  and 3) the deficiency in the jury instructions as to materiality was harmless error. 

Read US v. Saybolt, No. 07-4392

Appellate Information

On Appeal from the District Court for the Eastern District of Pennsylvania (Nos. 05-CR-00618-2 & 05-CR-00618-1))
District Judge: Honorable Gene E.K. Pratter
Argued January 28, 2009
Opinion Filed August 18, 2009

Judges

Before: Scirica, Chief Judge, Ambro and Smith, Circuit Judges 
Opinion by Smith, Circuit Judge 

Counsel

Counsel for Appellants: Daniel I. Siegel, Esq. and Andrew F. Erba, Esq.

Counsel for Appellees:  Pamela Foa

In a dispute involving a federal income tax refund, summary judgment in favor of the government is affirmed where the court properly held that that 26 U.S.C. sec. 162(k)(1) disallows plaintiff from claiming the deduction available under 26 U.S.C. sec. 404(k)(1) for payments to an Employee Stock Ownership Plan trust in redemption of the preferred stock, as it inevitably involves an amount paid or incurred by a corporation in connection with the reacquisition of its stock.    

Read Conopco, Inc. v. US, No. 07-3564

Appellate Information
Appeal from the United States District Court for the District of New Jersey.
Argued January 6, 2009
Filed July 13, 2009

Judges
Before: FUENTES and FISHER, Circuit Judges, and PADOVA, District Judge.
Opinion by FISHER, Circuit Judge.

Counsel
For Appellant: Ronald S. Rolfe, Cravath, Swaine & Moore.

For Appellee: Ellen P. DelSole, United States Department of Justice.

In an appeal from the District Court's order finding the Government of the Virgin Islands in contempt for violating a consent decree relating the assessment of commercial real property taxes, the order is affirmed where the government failed to create a functioning Board of Tax Review that consistently held hearings and reached determinations on appeals.

Read the full decision in Berne Corp, et al. v. Government of the Virgin Islands, No. 08-3897.

Appellate Information:

On Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John. Honorable Curtis V. Gomez.
D.C. Civil Action Nos. 3-00-cv-00141, 3-00-cv-00167, 3-01-cv-00151, 3-01-cv-00155, 3-01-cv-00181, 3-01-cv-00196, 3-01-cv-00197, 3-01-cv-00228, 3-02-cv-00057
Argued on January 29, 2009
Opinion filed on June 16, 2009

Judges:

Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.

Opinion by SCIRICA, Chief Judge.

Counsel:

Attorney for Appellants - TERRYLN M. SMOCK, Esq. (ARGUED)
Office of Attorney General of Virgin Islands
Department of Justice,

Attorney for Appellees - JAMES M. DERR, Esq. (ARGUED), DAVID A. BORNN, Esq. (ARGUED) of The Bornn Firm, SORAYA D. COFFELT, Esq.

In the IRS's appeal from an order allowing a carry-back for certain of Debtor's claimed expenses, the order is affirmed in part, where a distributor's inability to resell a defective product does not qualify as "damage to or loss of the use of property" under I.R.C. section 172(f)(4)(A); but reversed in part, where the Debtor's pension plan payments qualified as specified liability losses.

Read the full decision in In re Harvard Indus., Inc., No. 07-3006.

Appellate Information:

On Appeal from the United States District Court for the District of New Jersey. District Judge Honorable Garrett E. Brown, Jr.
(D.C. No. 07-cv-00305)
Argued September 11, 2008
Filed June 17, 2009

Judges:

Before McKEE, SMITH, and WEIS, Circuit Judges.

Opinion by McKee, Circuit Judge.

Counsel:

Attorney for Appellant - JAMES N. LAWLOR, Esq. (Argued) Wollmuth Maher & Deutsch LLP, One Gateway Center, Ninth Floor Newark, New Jersey 07102.

Attorney for Appellee - KENNETH L. GREENE, Esq., ARTHUR T. CATTERALL, Esq., RACHEL I. WOLLITZER, Esq. (Argued). Tax Division, Department of Justice, 950 Pennsylvania Avenue, N.W. Post Office Box 502, Washington, D.C. 20044-0000