DC Circuit Decides Proper Venue for CDP Appeals Not Involving Challenge to Liability (1/18/14)

Professor Leslie Book has this great post on the DC Circuit's decision yesterday in Byers v. Commissioner, ___ F.3d ___, 2014 U.S. App. LEXIS 933 (DC Cir. 2014), here.  See DC Circuit Decides Byers: Venue in Appeal of CDP Cases Upended (Procedurally Taxing 1/17/14), here.  Professor Book aptly summarizes the holding as:

Byers essentially held that in CDP cases where there is no challenge to the underlying liability, venue for an appeal is the DC Circuit Court of Appeals, unless the parties stipulate otherwise. For CDP cases where there is a mixed question of liability and collection matters, or a CDP case where there is solely a question as to the amount or existence of an underlying liability, venue for individuals would likely be tied to the legal residence of the taxpayer at the time of filing the petition, or, if a corporation, the principal place of business or principal office or agency of the corporation.

I strongly recommend Professor Book's blog entry for much more nuanced discussion of the issues.

For related discussion, see Golsen and Small Cases -- S Cases -- in the Tax Court (Procedurally Taxing 1/15/14), here.

Golsen and Small Cases -- S Cases -- in the Tax Court (1/15/14)

Professor Keith Fogg of the Procedurally Taxing Blog has this excellent blog:  Forum Shopping in the Tax Court – Small Tax Case Procedure and the Rand Decision (Procedurally Taxing 1/14/14), here.  Here is an interesting blurb from  it that I hope encourage tax procedure enthusiasts to read and savor Keith's entire blog entry.

IRC 7463(a) creates a special procedure for cases in which less than $50,000 is in dispute for each taxable period, the Small Tax Case procedure (S procedure – so named because of the S that appears after the Tax Court docket number of these cases.)  To qualify for the S procedure the taxpayer must make an election to use this procedure and the Tax Court must concur.  The election usually occurs at the time the petition is filed but may be made at any time prior to the trial of the case pursuant to the statute and Tax Court Rule 171(b).  If the taxpayer elects the S procedure and if neither the taxpayer nor the Government requests the discontinuation of such procedure prior to the entry of the case as permitted by IRC 7463(d), then the decision of the Tax Court is the final decision of the case pursuant to IRC 7463(b) and is not subject to appeal. There are two excellent articles exploring the issue of the Golson rule and the S procedure.  Carl Smith, Does the Tax Court’s Use of its Golsen rule in Unappealable Small Tax Cases Hurt the Poor?, 11 J. Tax Prac. & Proc. 35 (2009-2010) and Saul Mezei and Joseph Judkins, “A Square Peg in a Round Hole: The Golsen Rule in S Cases” Tax Notes Today, January 8, 2012.  While it is unclear why the Tax Court decided to apply the Golson rule to cases that cannot receive appellate review, it is clear that it does so and has consistently done so for over 40 years.

Prefessor Fogg has a second installment on the subject, Current status of Rand cases and Praise for Tax Court Search Feature (Procedurally Taxing 1/15/14), here.

Incidentally, Professor Fogg advises of the Tax Court's new web search feature:

Today, I write to praise a really nice feature of the Tax Court’s electronic system, which is the ability to search for orders.  This is a remarkable feature of the Tax Court electronic system unlike search capabilities in other electronic court databases and deserves high praise.  It can be accessed from the home page of the Tax Court web site.  

For readers not familiar with the Golsen rule, here is the discussion in my Federal Tax Procedure book (footnotes omitted except for the final footnote):

c. The Golsen Rule.

The Tax Court follows the law of the Court of Appeals to which an appeal would be taken.  This is referred to in tax litigator jargon as the Golsen rule, named after the Tax Court case establishing the rule.  Accordingly, in determining whether the Tax Court is a favorable or unfavorable forum, you look not only to the precedent of the Tax Court but also the precedent of the Court of Appeals to which an appeal may be taken.  Unfavorable Tax Court precedent but favorable appellate court precedent will produce a winner in the Tax Court; favorable Tax Court precedent but unfavorable appellate court precedent will produce a loser in the Tax Court, in which case relief will come only if you can convince the Court of Appeals that it messed up in its earlier precedent (usually unlikely).