Can a Taxpayer Obtain Relief in the Tax Court if the President’s Limited Power to Dismiss Tax Court Judges is Unconstitutional? (12/11/24)

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?) 

Myers’ appellate brief (pp. 7-30) does a nice job of laying out the history related to that issue. The law is clear that the Tax Court is not an Article III court. But the Courts have commoted over its precise fit between Articles I and II and seem as yet unsettled (if there can even be a precise fit) . I won’t try to discuss that commotion or attempt any type of definitive or even intelligent answer. I will post as updates to this blog the subsequent briefing (the IRS answer and Meyer’s reply) as I obtain them. Then, we can just await the next development, the D.C. Circuit opinion if it chooses to address the issue.

My problem is that I have difficulty understanding how Myers has standing ((if that is the right concept) to raise the issue of the constitutionality of § 7443(f). At best, if Myers prevails on the § 7443(f) claim, that means that the President can dismiss Tax Court judges without cause. It does not mean that Myers prevails in the case. And, if § 7443(f) is so critical to the whole Tax Court structure that the Tax Court falls in its entirety, that means that Myers has no relief. So, I just wonder how he has standing to raise the issue.

I think the § 7443(f) issue can be raised in one of two ways:

1. If a litigant like Myers can show that he would gain relief if § 7443(f) is ruled unconstitutional (though it’s unclear how this could apply in Myers’ case).

2. If the President attempts to dismiss a Tax Court Judge without cause. Say, hypothetically, President Trump’s team of sleuths finds something in the past where the Tax Court Judge said something derogatory about Trump and, as a result, Trump attempts to dismiss the Judge. Then the Judge can litigate the issue of the constitutionality of § 7443(f).

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