SCOTUS Denies Cert. in Kuretski

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A quick update on Kuretski from frequent guest blogger Carl Smith.

Today, the Supreme Court denied cert. to review Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014), where the D.C. Circuit had held that the President’s power to remove Tax Court judges at section 7443(f) did not violate the separation of powers.  The move was not a surprise, since no other Circuit court has been presented with the issue, although the Supreme Court often takes separation of powers cases without a Circuit split.

This action now puts the ball on the section 7443(f) issue squarely in the Tax Court’s court, since lawyers at Fuerst Ittleman have, by motion, raised the identical issue presented by Kuretski in seven Tax Court dockets.  The dockets, Circuits of appeal, and judges with jurisdiction over the cases are listed here. I noted last week that the IRS has not filed responses yet to any of those motions – even in three dockets where the Chief Judge had directed responses to be filed by May 8.  At the time of this post, the Chief Judge has still not ruled on the IRS’ motion in those three dockets to extend the time of its responses to June 8, nor has the IRS filed the responses that are now more than a week overdue.  The Circuits to which any Tax Court ruling may be appealed in the seven cases are the Fourth, Ninth, and Eleventh Circuits, although two of the cases are Collection Due Process cases that should be appealable to the D.C. Circuit under Byers v. Commissioner, 740 F.3d 668 (D.C. Cir. 2014),as they do not involve any challenges to the underlying liability.

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.


  1. Anonymous says

    And SCOTUS correctly denied cert. in this academia-protestor case.

  2. The Court will take the case eventually, although I suspect that it makes sense to let things percolate for a while and let other circuits also deal it and related issues regarding e.g. the court of federal claims.

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