DOJ Files Gibbs’ Loving Article with DC Circuit

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The other day we summarized Larry Gibbs’ Tax Notes and Villanova Law Review article on Loving v IRS. Following the publication of Larry Gibbs’ article, on Monday, the DOJ filed a supplemental letter with the DC Circuit under Federal Rules of Appellate Procedure 28(j).  The letter states that the IRS seeks to draw “the Court’s attention” to the article. The letter can be found here DOJ28(j)Letter

On Tuesday, the Institute for Justice filed a response opposing the letter, stating it cites “no new legal developments” and  “makes no previously unavailable arguments.” The response can be found here IFJ28(j)response

What’s this dust up about?


Rule 28(j) states the following:

 If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally.

 The Rule also allows for the other party to promptly respond to the letter.

The DOJ 28(j) letter emphasizes Gibbs’ comparing a preparer’s responsibilities to attorneys who represent clients in will drafting. The DOJ letter also highlights Gibbs’ point that there was nothing that he could find indicating that historically the representation at issue in 31 USC Section 330 had to be in person, rather than in writing.

I am partial to Gibbs’ arguments. I think his discussion of the meaning of the term representative adds context. I also think the DOJ should have accepted (or at least argued, as did the amicus brief Gibbs and four former Commissioners filed) that preparing a tax return is also akin to presenting a case.

Despite my support for Gibbs’ arguments, the IFJ response criticizing the DOJ letter makes sense to me. The DOJ cited no place in its brief or argument where it seeks to inject Gibbs’ analysis, as is required by the Rule. The DOJ letter does not point to a specific legal development or new authority, as the Rule also requires.

By most accounts, the September 24 oral argument reflected a panel that was skeptical of the DOJ position. This seems like an attempt to get the Court to think about the merits in a different way than the government has previously argued.  Perhaps that is what this is really about.

Avatar photo About Leslie Book

Professor Book is a Professor of Law at the Villanova University Charles Widger School of Law.


  1. Bob Kamman says

    What this amounts to is rich white people telling poor people of color how to meet their obligations of citizenship. Let’s not call it the Loving case, let’s call it the African-American Woman on the South Side of Chicago Trying to Make An Honest Living case.

    Gibbs served in the Reagan Administration, appointed by a president who told us the homeless were sleeping on the sidewalk grates by choice. IRS had no presence in the ghettos and barrios – a situation that continues today. The real compliance problem is not the people who file returns, but the nonfilers. Instead of creating barriers to entry, IRS should focus on bringing more taxpayers and more tax return preparers into the system.

    There are already laws that allow penalties and prosecution for those who assist others in preparing fraudulent returns. But there is just no desire for enforcement in poverty pockets. The proposed solution is to drive honest preparers underground, where the dishonest already operate. If they stop putting their names on returns and signing them, they will be about as easy to regulate as the myriad of drug dealers and numbers runners who thrive in the same neighborhoods.

    Meet me in Philadelphia PA 19121 (where fewer than half the 7,300 returns with AGI under $25,000 were signed by a preparer), Mr. Gibbs. Let’s ask the residents how they feel about return preparer regulation. Certainly none of the tax journalists or commentators have done that yet. Maybe we can find a foundation that will fund a grant for study of tax compliance in such areas. How many people did not file, because there was no reasonably-priced help available?

    • I am no apologist for the IRS or shill for large commercial preparers. I represented low income taxpayers from Philadelphia for over 7 years when I directed a low income taxpayer clinic. I saw first hand taxpayers who were in the wrong, and heavy handed IRS compliance efforts that unfairly delayed or denied legitimate claims for refund. I saw taxpayers well served by some preparers and fleeced by others.
      The IRS faces very real challenges in addressing moderate to low income taxpayer noncompliance, especially that of refundable credits like the EIC. The two main determinants of EIC eligibility, for example, are earned income and residence of qualifying children, both of which are not easily connected to information reporting. The presence (or absence) of information reporting is a large factor that contributes to preparer and taxpayer willingness to comply with or game the system. The high noncompliance rates and overall gap attributable to self-employed Schedule C taxpayers is evidence of that. While nonfiling is a part of the tax gap, the underreporting component of the tax gap dwarfs nonfiling. I am skeptical that in today’s political environment and at current funding levels IRS will materially reduce underreporting noncompliance with existing tools, even if the tools (like preparer penalties, taxpayer penalties and injunctions) are fully utilized and better managed.

      I believe that Mr. Gibbs, as well as many advocates who favor regulation of preparers, honestly believe that the enhanced accountability and visibility of the regulation regime, along with uniform identification requirements, is a reasonable effort at reducing the error rate. The costs associated with testing and continuing education (including increased preparer cost) must be measured relative to any reduction in error rate that may accompany the IRS plan. Reasonable people can differ as to whether the IRS plan would be effective. I think in combination with other traditional tools IRS has at its disposal it can make a difference.

  2. Richard Jacobus says


    Your read on DOJ’s motive for filing the Gibbs article is on the mark. Will the DC Circuit panel pay this submission any heed? The Institute of Justice’s petty atmospherics about FRAP 28(j) compliance, if anything, may raise the odds the panel will look at the Gibbs article.

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