Changes Coming on the Tax Court and at Chief Counsel

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Congress has under consideration the nominations of three new Tax Court judges: Elizabeth Copeland, Patrick Urda, and Courtney Dunbar Jones for a few months.  This week a fourth new judge, Emin Toro, was nominated. Two of the nominees are graduates of Harvard Law School. I am not sure if this is a court packing scheme on the part of the administration in an effort to help the tax clinic at Harvard which has had its troubles convincing the Tax Court of the correctness of many of its arguments, but the clinic appreciates the efforts of the administration to provide whatever assistance it can.  In addition to the four judicial nominees described below, the administration has nominated a new Chief Counsel, IRS, Michael Desmond, who is also discussed.

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Elizabeth Copeland has the distinction of having been nominated to the Tax Court by both President Obama and President Trump. I suspect she may be the only nominee by these two presidents since their appointments do not ordinarily seem to coincide. Both Presidents made a good choice, which may be why she was renominated by the current administration when her previous nomination lapsed. She has practiced in San Antonio for many years and was named the city’s top tax lawyer in 2017. She is active in the ABA Tax Section and a prior winner of the Janet Spragens Pro Bono award for her work in organizing the Texas Bar to attend and assist at Tax Court calendar calls. Through her practice and her volunteer work, she has a great deal of background in Tax Court issues which will assist her as she assumes her new role. She is the only one of the judicial nominees I personally know, allowing me to attest that the administration has made a great choice. The Committee on Finance unanimously approved her previous nomination, but the nomination was never voted on by the full Senate. Her previous nomination expired with the conclusion of the 114th Congress in January 2017. Copeland is a partner at the law firm Strasburger & Price, LLP. She is a graduate of the University of Texas for both her B.A. and J.D. She worked as an attorney advisor at the Tax Court early in her career.

Courtney Dunbar Jones serves as a senior attorney in the Tax-Exempt and Government Entities division in the Office of Chief Counsel of the Internal Revenue Service. Prior to joining the Chief Counsel’s office six years ago, Ms. Jones practiced for three years in the exempt organizations and intellectual property practice groups of the Washington, D.C.-based firm Caplin & Drysdale. Before relocating to the Washington area, she practiced for four years at Bird, Loechl, Brittain & McCants, a boutique law firm in Atlanta. Since 2015, Ms. Jones has served on the Board of Trustees of Hampton University, where she earned her B.S., magna cum laude, and was the recipient of the President’s Award for Exceptional Achievement. Ms. Jones then earned her J.D. from Harvard Law School, where she served for two years as the editor-in-chief of the Harvard BlackLetter Law Journal, (which has since been renamed the Harvard Journal on Racial & Ethnic Justice). During law school, Ms. Jones was recognized for a variety of achievements; she was named a scholar in the Earl Warren Legal Training Program sponsored by the NAACP Legal Defense and Education Fund, and received the National Bar Institute African American Law Student Fellowship. If confirmed, she will assume the position left vacant by the 2016 retirement of Judge John O. Colvin. Judge Colvin still performs judicial duties as a Senior Judge on recall.

Patrick Urda, serves as counsel to the Deputy Assistant Attorney General in the United States Department of Justice’s Tax Division. Urda received his Bachelor of Arts degree in classics, summa cum laude, from the University of Notre Dame, where he was inducted into Phi Beta Kappa. He received his J.D. from Harvard Law School. At the start of his legal career, Urda spent three years in private practice and served as a law clerk to Judge Daniel A. Manion of the United States Court of Appeals for the Seventh Circuit. In his position as counsel to the Deputy Assistant Attorney General in the U.S. Department of Justice’s Tax Division, Urda advised the Deputy Assistant Attorney General and Tax Division front office on legal and administrative issues facing the Division, particularly regarding appellate and settlement matters. In addition to acting as counsel, he was a member of the Tax Division’s Appellate Section, which he joined in 2006.

While working in the Appellate Section, he has litigated more than eighty appeals from the United States Tax Court and the United States District Courts, and has presented oral argument on behalf of the United States in more than forty-five appeals, including arguments in each of the United States Courts of Appeals. He was also one of the principal drafters of the United States’ successful brief in Hall v. United States, 566 U.S. 506 (2012). Urda is a five-time recipient of the Tax Division’s Outstanding Attorney Award, and has received the IRS’s Mitchell Rogovin Award.

A fourth judge has recently been nominated to fill the seat being vacated by Judge Goeke, whose term expires on April 21. Because the statute requires Tax Court judges to assume senior status at age 70 and because Judge Goeke, like many of us who are baby boomers, is not too far from that age, he may not have sought to go through the nomination process and instead can assume senior status at the end of his appointment. Moving to senior status means that a judge no longer participates in court conferences to decide those cases in which the full court participates; however, it still allows the judge to hear as many cases as he or she may want. The new nominee is Emin Toro. The nomination states the following about Mr. Toro:

Emin Toro is a partner in the Washington, D.C., office of Covington & Burling LLP, where he represents and counsels multinational companies in tax controversies. Mr. Toro’s tax controversy experience includes audits, administrative appeals, litigation, as well as advance pricing agreement and competent authority proceedings. He is also a Fellow of the American College of Tax Counsel. Upon graduation from law school, Mr. Toro served as a law clerk to Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the District of Columbia Circuit and to Justice Clarence Thomas of the Supreme Court of the United States. Mr. Toro earned his B.A., summa cum laude, from Palm Beach Atlantic University and his J.D., with highest honors, from the University of North Carolina School of Law, where he was inducted into the Order of the Coif and served as an articles editor of the North Carolina Law Review.

Adding four judges at once changes the face of the Tax Court in a relatively major way. Other changes to the Court may be coming before long as additional vacancies may be on the horizon.

In addition to the changes at the Tax Court, the President has nominated Michael Desmond for the position of Chief Counsel. No doubt the selection was heavily influenced by the fact that he has been a guest blogger on PT, with posts found here, here and here. Other factors that may have influenced his selection could have been his wide ranging litigation experience at the Department of Justice and private practice, and his additional government experience in the Treasury Department. Like Elizabeth Copeland, he has been active in the Tax Division of the ABA. I am jealous of the fact that he bicycled across the United States a few years ago with Tax Court Judge Buch.  He will form a team with Chuck Rettig, the nominee for IRS Commissioner. As we featured prominently in discussing the nomination of Mr. Rettig, Mr. Desmond has extensive tax procedure experience. Just as previous tax lawyers who have served as Commissioner have not always come with extensive tax litigation and tax procedure experience, the same can be said of prior Chief Counsels. Having two individuals at the top of the IRS with this much practical tax procedure experience should be a good thing for improving processes at the IRS. The most recent Chief Counsel formed a band, The Traveling Helverings, which we have featured before in a post. If the new Chief Counsel and Commissioner, both of whom are coming from the Los Angeles area, decide to form a band maybe it will be known as the Beach Boys if that name is still available.

 

 

 

Comments

  1. Carl Smith says:

    Keith and I actually have a small connection to Mr. Urda, who neither of us has ever met. There is pending in the Ninth Circuit a pair of companion cases involving California-based cannabis dispensaries, where the fact patterns are virtually identical to Guralnik v. Commissioner, 146 T.C. 230 (2016), except it was not a snow day that prevented FedEx from delivering on the last date to file, but either some police activity or construction in front of the Tax Court that made the driver have to come back the following day — and the cases are deficiency cases, not CDP. Because, unlike in Guralnik, the Tax Court Clerk’s Office was actually still open on the 90th day, though, in unpublished orders, the Tax Court dismissed both cases for lack of jurisdiction. (As in Guralnik, the FedEx First Overnight service used by the taxpayers had not yet (by a few weeks) been designated a qualified private delivery service under section 7502(f).) Organic Cannabis Foundation v. Commissioner, Ninth Circuit Docket No. 17-72874, and Northern California Small Business Assistants v. Commissioner, Ninth Circuit Docket No. 17-72877. Just as the Harvard clinic submitted an amicus brief in Guralnik, the clinic sought to submit amicus briefs in the two Ninth Circuit cases. In the briefs, the clinic expands upon one of the arguments raised by the taxpayers — that the deficiency filing deadline in section 6213(a) is not jurisdictional and is subject to equitable tolling under recent Supreme Court case law (an argument recently rejected by the only Circuit to yet have considered the matter; Tilden v. Commissioner, 846 F.3d 882 (7th Cir. 2017)).

    Mr. Udra is counsel for the government in these Ninth Circuit cases and graciously agreed to allow the clinic to file its amicus brief on consent of the parties (i.e., without having to go through the more cumbersome and uncertain process of making a motion). The DOJ brief in each case is due May 9, pursuant to an extension requested by Mr. Urda on April 2 — proving that he is still at work at the DOJ. Given how slow the Ninth Circuit is to schedule oral arguments after briefs are filed (typically over a year), I fully expect Mr. Urda to long have been a Tax Court judge by the time that the Ninth Circuit cases are argued. So, some other DOJ attorney will have to do the oral argument.

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