Four More Tax Court Cases Challenging the Removal Power of Tax Court Judges

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Carl follows up on his post discussing post-Kuretski litigation from earlier this week. Les

In my prior post of January 5, I reported that on December 19, attorney Joseph A. DiRuzzo, III of Fuerst Ittleman David & Joseph, PL in Miami filed a motion in Emles v. Commissioner, Tax Court Docket No. 24872-14L, to have the President’s power to remove Tax Court judges at section 7443(f) declared unconstitutional.  I pointed out, though, that, since Elmes was a Collection Due Process proceeding, it was unclear whether the Circuit to which the case could properly be appealed was the 11th Circuit (the Circuit of residence) or the D.C. Circuit.  Mr. DiRuzzo’s goal is to generate a Circuit split, just in case the Supreme Court does not grant a currently-pending petition for a writ of certiorari to the D.C. Circuit in the Kuretski case that raises the same issue.  As an update, on January 5, Mr. DiRuzzo filed similar motions regarding section 7443(f)’s removal power in four other Tax Court cases.  All the other cases are deficiency cases at a pretrial stage and currently assigned to a judge.  By contrast to Elmes, appeals from any of these four deficiency cases will certainly go to the Circuit of residence under section 7482(b)(1)(A).  The cases, judges assigned, and Circuits involved are as follows:  Teffeau v. Commissioner, Tax Court Docket No. 27904-10 (Judge Jacobs) (4th Circuit);Thompson v. Commissioner, Tax Court Docket No. 6613-13 (Judge Wherry) (9th Cir.); Battatt v. Commissioner, Tax Court Docket No. 17784-12 (Judge Nega) (11th Cir.); and Meggs v. Commissioner, Tax Court Docket No. 14604-12 (Judge Nega) (11th Cir.).

The issue may be more complicated in the case before Judge Jacobs, since he is a Senior Status judge sitting on cases after being recalled to do so by the Chief Judge under section 7447(c).  However, I think the problem of the removal power indirectly extends to judges recalled on Senior Status, since, because of the removal power applicable to the Chief Judge under section 7443(f), the Chief Judge may not be inclined to recall judges who rule too often against the IRS.

As a further update, on January 6, Chief Judge Thornton ordered the IRS to file any objection to the Elmes motion by March 9 — which, ironically, is likely to be the day the Supreme Court announces whether it will grant certiorari in Kuretski.


Carlton Smith About Carlton Smith

Carlton M. Smith worked (as an associate and partner) at Roberts & Holland LLP in Manhattan from 1983-1999. From 2003 to 2013, he was the Director of the Cardozo School of Law tax clinic. In his retirement, he volunteers with the tax clinic at Harvard, where he was Acting Director from January to June 2019.

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