I picked up some articles on a recently filed appellate brief in Myers v. Commissioner, T.C. # 2181-15W), from the Tax Court Order of Dismissal dated 5//24/24, here, (The Tax Court docket sheet is here.) The appeal is docketed as Myers v. Commissioner (D.C. Cir. No. 2181-15W) and Myers’ corrected opening brief is here. One of the articles is Anna Scott Farrell, Whistleblower Asks DC Circ. To Strike Tax Court Judge Shield, 2024 Law360 340-53 (12/5/24).
In Myers, the relevant events are:
1. Myers, a whistleblower, filed his Tax Court
petition late.
2. The Tax Court dismissed the case due to the
untimely filing.
3. The D.C. Circuit reversed, ruling that the timing
period was not jurisdictional and thus could be subject to equitable tolling.
4. On remand, the Tax Court dismissed again, stating
Myers did not demonstrate entitlement to equitable tolling.
Predicate
Constitutional Claim: As his predicate argument on appeal, Myers urges that §
7443(f)’s requirement of “for cause” dismissal of Tax Court Judges violates the
President’s Article II executive powers to dismiss without cause. The Tax Court
rejected the argument, and now Myers raises it in the D.C. Circuit.
I focus on the Constitutional Claim. The substance of the argument turns upon the unsettled location of the Tax Court in the Constitutional structure. Is the Tax Court located in the legislative branch (§ 7441 says that it is “established, under article I of the Constitution of the United States”) or is it in the executive branch? (And my question below is does it matter in this case?)
