Generally, under the doctrine of sovereign immunity, the government can avoid civil liability unless there is a statute that gives a party the right to sue the government. Earlier this week in Rothkamm v US, the Fifth Circuit issued an opinion that considered whether a wife’s application for a Taxpayer Assistance Order (TAO) concerning a recovery of funds levied from her bank account to satisfy her husband’s tax debt tolled the nine-month wrongful levy statute of limitations. The Fifth Circuit held that the wife’s application for assistance to the Taxpayer Advocate Service tolled the statute, thus preventing the government from using sovereign immunity as a defense to the suit.
The case is important. It touches on the intersection of requests for assistance from TAS and statutes of limitation generally, and contains a full-throated consideration of the effect of requests for Taxpayer Assistance Orders on the time for bringing an action for a wrongful levy. That alone merits consideration in PT but the case’s reasoning and spirited dissent also suggest that it will have an impact on other matters that are subject to Taxpayer Advocate Service assistance requests.
In this post I will summarize the facts and highlight the main points in the majority and the dissenting opinion.
read more...Summary of Facts
Kathryn Rothkamm and her husband filed separate tax returns. Kathryn also had a separate bank account which she claimed consisted of her separate property. IRS issued a notice of levy on March 6, 2012 to collect on the husband’s tax debt. In response, the bank remitted the full amount of account (over $73,000) to the IRS on April 18, 2012. Within two weeks of the bank remitting the funds pursuant to the IRS levy, Kathryn filed an application for assistance with Taxpayer Advocate Service. In October of 2012 TAS responded to Kathryn and said it could not help. By May 15, 2013 Kathryn filed an administrative claim for wrongful levy under Section 6343(b) with the IRS. IRS denied the claim in July 2013. In September of 2013 Kathryn filed a suit for wrongful levy.
Statutory Background—Is the Wife a Taxpayer for These Purposes?
There is a nice labyrinth of statutes here and I will lay them out in this section.
Section 7426(a) provides the authority for a person “other than the person against whom is assessed the tax out of which such levy arose” to bring a suit for a wrongful levy in federal district courts.
Section 7426(i) provides that the nine-month statute of limitations in Section 6532(c)(1) applies for those suits. Section 6532(2) generally suspends the sol during the administrative consideration of the wrongful levy claim under Section 6343(b).
Superimposed on the scheme for wrongful collection claims and suits is Section 7811(a), which authorizes the NTA to issue Taxpayer Assistance Orders when “the taxpayer is suffering or about to suffer a significant hardship as a result of the manner in which the internal revenue laws are being administered by the Secretary…”
Section 7811(b)(1) and Section 7811(b)(2) provide that a TAO can be issued to “require the Secretary to release property of the taxpayer levied upon”, or “to cease any action, take any action as permitted by law, or refrain from taking any action, with respect to the taxpayer” pertaining to a variety of matters, including collection.
Section 7811(d) provides the tolling provision that was the key to the case (and which I will return to later):
The running of any period of limitation with respect to any action described in [7811(b)] shall be suspended for—
(1) the period beginning on the date of the taxpayer’s (emphasis added) application under [7811(a)] and ending on the date of the National Taxpayer Advocate’s decision with respect to such application, and
(2) any period specified by the National Taxpayer Advocate in a Taxpayer Assistance Order issued pursuant to such application.
Those provisions also relate to Section 7701(a), which defines terms in Title 26 “where not otherwise distinctly expressed or manifestly incompatible with the intent thereof…” In particular, Section 7701(a)(14) provides that the “term “taxpayer” means any person subject to any internal revenue tax.”
Bringing it Back to Rothkamm
The issue as the Fifth Circuit discussed was thus the following:
As the district court explained, the IRS levied Rothkamm’s account on April 18, 2012. Thus, the general statute of limitations would have expired on January 18, 2013, absent any tolling. Rothkamm’s administrative wrongful levy claim, which she filed on May 15, 2013, would toll the running of the statute of limitations if filed within the statute of limitations. Thus, the core question is whether, as Rothkamm contends, the statute of limitations was tolled while her application for a TAO was pending before the TAS. If so, her administrative claim under § 6343(b) would also have been timely, and the statute of limitations for filing suit would have been suspended until January.
In a nutshell, the Fifth Circuit concluded that the district court was wrong when it found that Kathryn was not the taxpayer for purposes of Section 7811(d):
In this case, we conclude the district court erred in determining the definition of “taxpayer” under § 7811 by failing to supply the Internal Revenue Code’s generally applicable definition set out in § 7701; and the court further erred in its interpretation of § 7811(d)’s tolling provision by failing to follow theplain language of the statute and associated regulations.
The opinion is dense on this point, but here are some of the highlights.
There is a discussion of how Section 7701(a)(14) defines the term taxpayer and how the 1995 Supreme Court decision US v Williams found that a third party who paid an assessed tax to remove a federal tax lien from her property was a “taxpayer” that was entitled to bring an administrative refund claim:
Following Williams, Congress did not revise § 7701(a)(14), so the Supreme Court’s interpretation stands. Thus, under § 7701(a)(14), the word “taxpayer” means not only the person against whom a tax is assessed (here, Rothkamm’s husband) but also the person who actually pays the tax (here, Rothkamm herself). Pursuant to § 7701(a), that definition applies throughout Title 26 “where not otherwise distinctly expressed or manifestly incompatible with the intent thereof.
On appeal, IRS attempted to distinguish the significance of Williams with the 2007 Supreme Court case EC Term of Years Trust. In the lower court’s view that case provided support for the “proposition that the definition of “taxpayer” is somehow limited to the person against whom the tax is assessed in the wrongful levy context.”
The Fifth Circuit disagreed. EC Term of Years Trust held that a third party had to use the 9-month SOL under 7426 rather than the general refund suit SOL under 28 USC 1346. The Fifth Circuit found that EC Term of Years Trust did nothing to alter its conclusion that taxpayer should be defined to include third parties like the wife in this case:
All of which is to say that Williams defined “taxpayer” broadly under§ 7701(a)(14) to include not only the assessed taxpayer but also a person who actually pays the tax, and the 2007 Supreme Court decision EC Term of Years Trust did nothing to alter that definition. It simply held that a third-party (relative to the assessed taxpayer) whose property is wrongfully levied must bring suit under § 7426(a)(1) rather than § 1346(a)(1) because § 7426(a)(1) specifically covers that situation. In this case, Rothkamm brought suit under § 7426(a)(1) and has always conceded that the nine-month statute of limitations applies to her case.
Recall, however, that Section 7701(a) in the introductory language provides an out if an alternate statute contradicts the language or is “manifestly incompatible” with the definitional parts of 7701(a)(14). The Fifth Circuit opinion discusses how the TAO statute (section 7811) does not limit the definition of taxpayer so that in its view the definition in Section 7701(a)(14) controls:
Similarly, the statute governing TAOs, § 7811, neither “specifically expresses” a more limited definition of “taxpayer” nor is “manifestly incompatible” with § 7701(a)(14)’s broad definition.
Nor in its view did the regulations under Section 7811 alter the conclusion that Kathryn was a taxpayer:
The associated regulations also do not “specifically express” a more narrow definition of “taxpayer.” Indeed, at least four of the ten example situations set out in the regulations, all concerning wrongful levies, are written without specifying whether the TAO applicant is an assessed taxpayer or a third-party taxpayer who pays the tax assessed to another. In short, neither the statutes (§§ 7803 and 7811) nor the regulations are “manifestly incompatible” with § 7701(a)(14)’s broad definition of “taxpayer.” Thus, the district court erred in holding that Rothkamm is not a “taxpayer” under § 7811.
(citations omitted)
Focus on Section 7811(d)-Even if The Wife is the Taxpayer Does The 7811(d) Tolling Provision Apply?
The opinion is perhaps more significant for its view on Section 7811(d). It rejected the district court’s alternative holding that even if the wife was a taxpayer the statute itself did not provide for tolling in her circumstances. The majority opinion did so because it felt that the statute made no reference to which party should benefit from the tolling.
The district court held that the tolling related to situations when the application for assistance prejudiced the IRS; in other words the tolling was a tool to help IRS with its assessment or collection but not taxpayers who sought assistance and then sought for example a refund or return of levied funds.
Here is language from the district court:
But even if the Court assumes for sake of argument that Rothkamm is a taxpayer within the meaning of 26 U.S.C. § 7811, she still cannot prevail because a plain reading of section 7811(d) shows that the time periods tolled relate to actions available to the IRS, not actions available to the taxpayer. See 26 U.S.C. § 7811(c), (d). This conclusion is reinforced by the relevant administrative regulations, which state unequivocally: “A taxpayer’s right to administrative or judicial review will not be . . . expanded in any way as a result of the taxpayer’s seeking assistance from TAS.” 26 C.F.R. § 301.7811–1 (emphasis added); see Demes v. United States, 52 Fed. Cl. 365, 373 (Fed. Cl. 2002) (“I.R.C. § 7811(a) . . . . does not go to the tolling of the statute of limitations in court, but rather confers the IRS with discretion to effect tolling upon a taxpayer’s request. Plaintiffs therefore cannot sue in a court for a refund under this provision, nor can the court use it as a basis to toll the statute of limitations in plaintiffs’ case:”
The district court’s interpretation was consistent with internal IRS advice, such as PMTA 2007-00429, which noted that it was possible to read Section 7811(d)’s tolling provision as applying to all matters before the TAS in a TAO request but that in its view that was an improper reading of the statute:
Section 7811 (d) provides for the suspension of any period of limitations relating to an action described is section 7811 (b). The actions identified in section 7811 (b) generally relate to the assessment or collection of tax. Treasury Regulation § 301.7811-1 (e) states that in general the limitations period for any action that is the subject of a TAO shall be suspended. The regulation does not specifically address the part of the statutory provision requiring the action to be one described in section 7811(b). Without addressing action under section 7811 (b), it could be inferred from the regulation that the filing of an application for a TAO results in the suspension of the applicable period of limitation for any action included therein. We do not believe that the regulatory provision should be interpreted this broadly. Such an interpretation would be inconsistent with the statutory language and inconsistent with the examples provided in the regulation, which specifically link suspension periods to actions described in section 7811 (b) of the statute.
Therefore, a filed application for a TAO will suspend the running of limitations periods for assessment or collection of tax under IRC §§ 6501 and 6502, because the failure to suspend the running of these periods of limitations could potentially prejudice the interests of the Service. A filed application for a TAO will not however, suspend the period of limitations for filing refund claims. If the intent of section 7811(d) is to provide protection to the Service while a taxpayer’s issue/problem is being addressed, failing to suspend the limitations period in section 6511 (b) does not injure or prejudice the interests of the Service. The interests of the taxpayer can be protected by filing a protective claim for refund.
The majority opinion flatly rejects the district court view of the scope of the tolling provision, looking to what it believes is a plain reading based on the statutory language in Section 7811(d) which refers to all actions in Section 7811(b) overall rather than any limiting language:
By its plain terms, § 7811(d)(1) applies to toll the running of any statute of limitations for any action described in § 7811(b) from the time the taxpayer files an application for the optional TAO until a decision is reached. Section 7811(d)(1) does not require that a TAO actually be issued or that any relief be granted. It simply provides that any statute of limitation for an action described in subsection (b) is tolled from the time an application is filed until the National Taxpayer Advocate reaches a decision.
It is plain from the language of the statute that because subsection (d) applies to all of subsection (b), it benefits both the IRS and the taxpayer, essentially pausing the running of the statutes of limitations applicable to both parties so that neither one is prejudiced by the TAO process. For instance, subsection (d), through subsection (b)(2)(A), tolls the statute of limitations for collection actions by the IRS, meaning the IRS does not lose any time to pursue collections when a taxpayer pursues a TAO. Likewise, subsection (d), through subsection (b)(1), tolls the statute of limitations for actions “to release property of the taxpayer levied upon.” By definition, such an action is one by the taxpayer, and any tolling on such an action necessarily benefits the taxpayer. (It is also, of course, precisely the action at issue in this case.) Thus, the taxpayer may pursue a TAO without fear that the process—which Congress expressly designed to assist taxpayers—will prejudice her administrative or judicial rights in the event she does not obtain TAO relief. Subsection (d)’s plain language means that neither the IRS nor the taxpayer is any worse off when a taxpayer decides to pursue TAO relief because all relevant statutes of limitations are tolled. Under the plain terms of the statute, this tolling occurs automatically until the National Taxpayer Advocate reaches a decision on the TAO application, without regard to any discretion on the part of the IRS.
Chevron and the Regulations Under Section 7811
The Fifth Circuit took aim at the district court’s view of the regulations under Section 7811 as well as cases that concluded that tolling was subject to IRS discretion.
The key regulatory provision in the district court’s view was Reg Section 301.7811-1(b). That provides that “[a] taxpayer’s right to administrative or judicial review will not be diminished or expanded in any way as a result of the taxpayer’s seeking assistance from TAS.”
The Fifth Circuit believed that the statutory analysis above was clear so that there was no need to even get into the weeds of the regulations under 7811:
First, under Chevron, if the language of the statute, § 7811(d), clearly provides for tolling (i.e., a waiver of sovereign immunity), then that ends the inquiry. The regulation cannot alter what Congress has clearly set out in the statute.
Moreover, the Fifth Circuit noted that the regulation the district court relied on (Reg Section 301.7811-1(b)) does not address tolling but only pertains to a general discussion of TAOs. In contrast, in the regulation addressing tolling, 301.7811-1(e), the court found no limitations on tolling once the TAO request is made:
[The]relevant language of section 301.7811-1(e) and the associated examples show that the running of the statute of limitations is tolled until a decision on the TAO application is reached. Importantly, this specific subsection on tolling says nothing about tolling being subject to the IRS’s discretion. Rather, the regulation notes that the Ombudsman (i.e., the representative of the Office of the Taxpayer Advocate, not the IRS) has the authority to lengthen—but not shorten—the period of tolling beyond the decision date…
The opinion goes on to criticize case such as Demes, a Court of Federal Claims opinion from 2002 (at page 25) which concluded that tolling is subject to IRS discretion as citing “no relevant support” for its conclusion.
Dissenting Opinion
This is an interesting dissent, looking to the broader context of the statute and also touching on its view of the regulations under 7811(d) as supporting the IRS position. The main difference between the majority and dissenting views revolves around the relationship between Section 7811(d) and 7811(b), with the dissent adopting the view that the tolling in Section 7811(d) relates to only actions implicated in Section 7811(b)(2) rather than Section 7811(b) generally:
In short, the majority holds that subsection (d) suspends the period of limitation for “any action described in subsection (b)” and subsection (b)(1) describes a wrongful levy action. That is, the period of limitation for filing an administrative request was tolled during the pendency of Rothkamm’s application for a Taxpayer Assistance Order (“TAO”), and she can rely on § 6532(c)(2).
Appealing in its simplicity, this plain language argument does not survive closer scrutiny for it steps past critical language. Subsection (d) provides that an application for a TAO suspends the running of the period of limitation for “action[s] described in subsection (b).” We should not assume that Congress’s use of the word “action” was accidental. To the contrary, “[a] normal rule of statutory interpretation is that when Congress uses the same word in different parts of a statute, it intended each to carry the same meaning.” In this case, this rule dictates that “action” has the same meaning in subsection (b) that it does in subsection (d). That is, subdivision (d) suspends the period of limitation only for the suits and proceedings in subdivision (b) that Congress described using the word “action.” Since Congress did not use the word “action” in subsection (b)(1), § 7811(d) did not toll the period of limitation for Rothkamm’s wrongful levy claim – and her suit is untimely.
The majority counters that this reading of § 7811 ignores that subsection (d) refers to all “action[s]” in subsection (b), not just those in subsection (b)(2). But this argument fails on its own terms; I contend only that subsection (b)(1) does not describe an “action,” not that subsection (d) does not apply to, or embrace, subsection (b)(1). If Congress had intended to suspend the period of limitation for all suits or proceedings described in subsection (b), it could have used either of those words – but it chose not to do so.
The dissent also looks to the overall role of TAS as supporting the IRS view in the case:
Although it may seem inequitable that subsection (d) only suspends the period of limitations for actions brought by the IRS, this was a sensible choice given that TAS – the agency that issues TAOs – lacks the power to direct taxpayers to do anything. As a result, nothing prevents a taxpayer from pursuing other remedies while seeking a TAO. In fact, a TAO “is intended to supplement existing procedures if a taxpayer is about to suffer or is suffering a significant hardship,” not “to be a substitute for an established administrative or judicial review procedure.”
In addition to disagreeing with the majority’s statutory analysis, the dissent also points out that the IRS’s own interpretation of the regulation in the IRM and Program Manager Technical Advice was subject to at least Skidmore deference. As I discuss above, in the PMTA, the IRS had noted that the regulation might be read in a way that the majority opinion does but that in its view that was the incorrect result.
Recall that the majority sidestepped the issue of whether and to what extent the IRS should be entitled to deference in its view of the regulation because in its view the statute was clear in supporting tolling. The dissent disagreed, suggesting that the statute was plausibly read in a way consistent with the IRS view, thus leading to under Chevron a dismissal of the suit as untimely so long as the IRS view was reasonable (and in its view it was).
Conclusion
The case is a messy one and seems to turn in part on what the majority felt was an unfair outcome. The fairness here though is one that is in the eye of the beholder. Consider that the dissent also criticized the wife’s diligence; it was not clear why she waited several months after TAS did not help her before she filed her administrative wrongful levy claim, which she still could have filed in the 9-month period had she done so promptly. That delay suggests that her lack of diligence was not enough for equitable tolling to have applied though the court does not mention whether this 9-month period can or cannot be equitably tolled, an issue we have discussed on many occasions and which the Ninth Circuit in Volpicelli has concluded can be equitably tolled (though the dissent in footnote 29 refers to a Third Circuit case pre-Volpicelli holding no equitable tolling in a wrongful levy context).
Moreover, as the dissent points out there is a compelling reason for taxpayers to have a short window of time to bring these actions, that is to allow the IRS to go after other assets if in fact it has improperly levied on assets.
The majority opinion raises many questions. For example, how far does it extend in other cases when taxpayers request TAOs? When precisely is the tolling triggered and when does it end? As a policy and legal matter, what should trigger the tolling? I frankly had not thought much about these and other questions in considering the impact of Section 7811 on a variety of statutes of limitation. Steve and I are in the process of rewriting the Saltz/Book chapter on statutes of limitation, and this case will cause us to think hard about the reach of the statute.
About Leslie Book
Thanks, Les. This is an excellent discussion. Rothkamm is just one of the possible continuing ripples from Williams.
While the majority rejected the reasoning of the PMTA that held that the 7811 only tolls SOLs running against the government — and the PMTA did so in the context of considering 6511(a)’s period being tolled — I don’t think that one should read the majority as necessarily being willing to hold that the 6511(a) period to file a refund claim is subject to tolling under 7811 when a taxpayer sought TAS assistance at some point (say, during the audit). The majority noted that tolling was required because the issue was one of collection. It did not indicate that tolling would apply outside collection areas, such as 6511(a) refund claims.
I read to the second page of the opinion, where it identifies the defendant as “the United States of American” (along with IRS) and started wondering where these distinguished Southern jurists came from and where they hired their clerks. I found that they were born in 1936 (Davis, who wrote the opinion), 1937 (Jolly), and 1938 (Higginbotham, who dissented). Two were born in Alabama and one in Mississippi. All three were appointed by Ronald Reagan.
(PACER indicates that a revised opinion was published September 22, 2015, so maybe the error was corrected there. It’s available only to those who sign in to the CM/ECF system.)
Not to suggest any significance, but the District Court judge (Brian Jackson) is an Obama appointee from Louisiana, born 1960 and of another ethnic origin. Nor do I suggest that age is an issue. The average age of the three circuit judges is about the same as Pope Francis, and he’s infallible.
Google informed me that there is a Rothkamm Law Firm in Baton Rouge, where Ms. Rothkamm filed her claim. The principal there is “C. James Rothkamm Jr.” Ms. Rothkamm’s husband is identified in the opinion as “Chester J. Rothkamm Jr.” Further research confirms that C. James and Chester J. are one and the same. This reminds us of the French adage, “cherchez l’avocat” often encountered in unusual tax cases.
What I started out seeking was any indication of whether the Taxpayer Advocate was represented or otherwise involved in this case. The TAS is fond of referring to IRS as an alien organization, not remotely linked to its independent function. I did not find even an amicus appearance setting forth the position of TAS on this issue – not that I expected one.
Continuing the discussion of professional incompetence started under another recent post, who in their right mind would advise this unfortunate woman to seek help from TAS in the first place? And then, to wait more than five months for the TAS response of (surprise!) “Sorry, we can’t help.”
That’s the lesson for law students from this case. It’s an SOL case, all right. It teaches that if your client is out $73K and you expect help from TAS, you will find yourselves SOL.
Bob, so nicely expressed. And I love it when you speak French.
Louisiana is a community property state. Perhaps that fact controlled TAS’s response, which, like a broken clock, may have been right that time. I must agree with you, though, that TAS is generally useless. So many TAO applications supposedly don’t “fit TAS criteria” that it’s amazing TAS is as busy as Nina Olson claims it is.
Oh, well, like his 5th Circuit cohorts, not even Pope Francis is deemed infallible on tax doctrine.
Bob-
Wth???
Bob,
It’s a small point, but TAS has no ability to file amicus briefs. Nina Olson wanted to do one when the Lantz litigation occurred concerning the innocent spouse 2-year regulatory deadline to request 6015(f) relief, but was told that the DOJ Tax Division represented all of the government in the case. So, in her annual report, she then asked for legislation giving her the right to file amicus briefs. That proposal has not gone anywhere, sadly.
“Was told.” Leaving the passive voice, who told her? And how did Lantz involve Section 7811?
She has no authority to pal around with academics from Australia, either, but I can’t find any law prohibiting her from doing so. How is that different from, or more important than expressing her own opinion to Alabama judges? Who would fire her, if she did file an amicus brief? And if that happened, why would she want the job anyway?
To my earlier comment, I should add that lawyers who want to show they have pursued all administrative remedies, in order to collect attorney fees when they win a tax case, might want to check off TAS as one of the offices within IRS where they sought relief. Just don’t allow more than thirty days for TAS to refuse to help.
Bob,
I used the passive voice because I am not sure exactly which person told Nina that she could not file briefs, but, as you will see below, Chief Counsel issued a PMTA in 2002 saying she couldn’t. Lantz did not involve section 7811.
In her 2011 Annual Report to Congress at Vol. I, page 573, Nina wrote:
The National Taxpayer Advocate is not authorized to participate in litigation.2
2 See 28 U.S.C. § 516 (“Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice”); 5 U.S.C. § 3106 (“Except as otherwise authorized by law, the head of an Executive department or military department may not employ an attorney or counsel for the conduct of litigation in which the United States, an agency, or employee thereof is a party”); IRC § 7452 (indicating that the Secretary of the Treasury “shall be represented by the Chief Counsel”).
On page 579-80, she wrote:
The National Taxpayer Advocate, who is mandated to report annually to Congress on
frequently litigated tax issues and serious taxpayer problems, may comment on issues
developing in the courts, but has no authority to submit her independent perspective to the judiciary.47
47 See Program Manager Tech. Assistance 00566, Authority for the National Taxpayer Advocate to File Amicus Briefs with the Courts of the United States (Oct. 2, 2002).
On page 575, she wrote:
[in Lantz,] the Tax Court invalidated the regulatory limitation, only to spawn protracted litigation in multiple circuits of the Courts of Appeals, which reversed the Tax Court and upheld the validity of the regulation. In the 2010 Annual Report to Congress, the National Taxpayer Advocate published a comprehensive analysis of the legislative history for Internal Revenue Code (IRC) § 6015(f), which could not be submitted as an amicus brief in pending appellate litigation under present law.15
15 National Taxpayer Advocate 2010 Annual Report to Congress vol. 2, 1 (Research Study: Unlimit Innocent Spouse Equitable Relief).
On page 576, Nina asked for legislation that would
Authorize the National Taxpayer Advocate to submit amicus curiae briefs in federal
appellate litigation on matters relating to the protection of taxpayer rights that the
National Taxpayer Advocate has identified as concerns in her Annual Reports to
Congress.
On page 477, she phrased her request slightly differently:
[T]he National taxpayer advocate should have the authority to submit amicus curiae briefs in federal appellate litigation on matters relating to the protection of taxpayer rights that the National taxpayer advocate has identified as a Most litigated issue or Most Serious problem.
Nina did not ask for authority to file amicus briefs in any case, just those in areas on which she has previously complained to Congress. I am not sure that the Rothkamm case would have fallen into either category of those for which Nina (so far unsuccessfully) has requested Congressional authority to file amicus briefs.
She’s not the head of an Executive Department, so 5 USC 3106 does not apply. “Conduct of litigation” in 28 USC 516 is not defined, but I have not read anywhere that law professors, for example, who file amicus briefs believe they are conducting litigation.
For greater sinecure protection, an alternative would have been to state a position on this issue in one of the required reports to Congress (and where does it state that interim reports are not allowed?) and let the Rothkamm attorneys quote it.
Section 7803 creates both positions of NTA and Chief Counsel. What you are saying is that because of the PMTA, Chief Counsel can tell the NTA what to do. I suppose what I am asking is, why?