What’s in a Name?

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Identifying and addressing implicit and explicit biases are necessary to ensure that every taxpayer and tax professional recieves the benefits of “The Right to Quality Service” and “The Right to a Fair and Just Tax System.”  This free ABA outreach event at the ABA’s 38th National Institute on Criminal Tax Fraud and the Eleventh Annual National Institute on Tax Controversy will start by reviewing how tax professionals can identify bias.  The panelists will then discuss the role of the Taxpayer Advocate Service, the IRS Office of Equity, Diversity & Inclusion and the United States Tax Court in ensuring that taxpayers and tax professionals receive the full measure of procedural and substance due process necessary to protect civil rights – including the rights of disabled and Limited English Proficiency taxpayers.  You can RSVP for the event by clicking https://conta.cc/3Dhpgt6 or emailing Frank Agostino at FAgostino@AgostinoLaw.com.  For more information about the National Institute click ambar.org/CTF2021 or email Donna Prather Williams, Meetings Manager, ABACLE, Donna.Williams@americanbar.org

Chief Counsel Notice CC-2022-001 tells us to look for a new name on some documents coming out of that office.  A little over a year after the election and more than 300 days since inauguration, the new administration has not appointed anyone to serve as the new Chief Counsel.  So, the top non-political appointees continue to run the agency.  The former Chief Counsel resigned, as per tradition, when the new administration began.  The team in place at the top of Chief Counsel is quite good and quite experienced but there is some benefit to having a political appointee in place rather than individuals who must essentially work two jobs for extended periods of time.

Perhaps it’s difficult to replace the Chief Counsel because it took so long for Congress to approve the prior Chief Counsel.  Through no fault of his own, the prior Chief Counsel, Michael Desmond, had his nomination held up for quite some time as described here and here despite the fact that he was a former guest blogger for PT and had many other qualifying years of experience.  It’s not easy to put your professional life on hold for such a long period only to find your nomination is delayed because a Senator is unhappy about an IRS regulation you had nothing to do with.  Maybe the administration cannot find someone willing to go through the process or maybe it’s not trying.

Over at the Department of Justice Tax Division it seems that the White House, no matter who occupies it, no longer wants to appoint a leader.  Chief Counsel Notice CC-2022-002 tells us to look for a new name on some documents coming out of that office. The acting head, Dave Hubbert, is fantastic.  When I was District Counsel in Richmond, he was my lawyer as the head of the civil trial section of the Tax Division that covered Virginia.  I could not have asked for a better lawyer to handle the cases coming out of my office.  He is undoubtedly doing a great job running the Tax Division, but it’s now been seven and a half years since there was a political appointee at the Tax Division.  Why is it so hard to find someone to do this job?

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This leads back to the Chief Counsel Notice.  The subject of the notice is the new signature block, but the legal substance of the notice concerns the time period that limits having someone carry the title as Acting Chief Counsel (or Acting Deputy Attorney General.)  The notice explains the law:

Principal Deputy Chief Counsel and Deputy Chief Counsel (Technical) William M. Paul assumed the position of Acting Chief Counsel on January 20, 2021 upon the resignation of former Chief Counsel Michael J. Desmond. See Chief Counsel Notice 2021-003, Chief Counsel Signature Block (January 19, 2021); Chief Counsel Notice 2017-002, Designation of the First Assistant to the Chief Counsel (December 29, 2016). By operation of the Vacancies Reform Act of 1998 (5 U.S.C. § 3345, et seq.), Mr. Paul’s 300-day tenure as Acting Chief Counsel expires as of November 16, 2021. In addition, under the Vacancies Reform Act, no one may serve as Acting Chief Counsel until a nominee has been named by the President. Therefore, as of November 17, 2021, and until a nominee for Chief Counsel is named by the President, there will be no Acting Chief Counsel for the Internal Revenue Service. Instead, the duties and responsibilities of the Chief Counsel will be shared between the Principal Deputy Chief Counsel and Deputy Chief Counsel (Technical), and the Deputy Chief Counsel (Operations) for matters under their respective jurisdictions. Upon the nomination of a candidate for Chief Counsel by the President, the Principal Deputy Chief Counsel and Deputy Chief Counsel (Technical) will resume the position of Acting Chief Counsel.

In Chief Counsel’s Office the structure at the top has two deputies immediately under the political appointee, each controlling a portion of the workforce.  Mr. Paul, the Principal Deputy Chief Counsel and Deputy Chief Counsel (Technical), heads the part of Chief Counsel principally targeted at producing guidance.  Most of the employees in the National Office would eventually report up the management chain to him.  Ms. Drita Tonuzi, the Deputy Chief Counsel (Operations), heads the part of Chief Counsel that principally handles litigation.  Some of the National Office employees and essentially all of the field office employees report up the management chain to her. 

Since the clock has run on the current period during which someone can carry the title of Acting Chief Counsel, the Notice basically explains that they will each get their names on the signature block as the representative of the agency depending on the correspondence or other matter needing a formal signature.  Because Ms. Tonuzi heads up litigation, her name will now appear in documents signed by Chief Counsel in the Tax Court.  Because some documents were signed prior to November 17, 2021, using the former signature block, the Notice provides:

If a Tax Court document has been signed by a petitioner or petitioner’s representative (e.g., stipulated decision, stipulation of facts, or joint motion), but has not been sent to or e-filed with the Tax Court before November 17, 2021, the document need not be re-executed.

When Chief Counsel’s office writes to the leaderless (from a political appointee perspective) Tax Division, the person whose name appears on the correspondence will depend on which division of Chief Counsel sends the letter.  If sent by one of the divisions reporting to Mr. Paul, his signature will appear.  If sent by a division reporting to Ms. Tonuzi, her signature will appear.  I suspect the Tax Division will see many more letters with her signature because of the nature of the work referred to the Tax Division.  If regulatory guidance is issued, Mr. Paul’s name will appear much more frequently, though not exclusively.

Maybe it doesn’t matter that many readers will start to see a lot more of Ms. Tonuzi’s name until the President decides to appoint someone to become Chief Counsel, but sometimes knowing why you see a particular name provides a bit of comfort.  As long as you see these names, you also know a job opening exists for which you might want to apply.  Maybe someday the administration will appoint a new Chief Counsel, and a new head of the Tax Division at the Department of Justice.

Comments

  1. Hoping that we will soon see nomination for Chief Counsel, now that Lily Batchelder is in place as Treasury’s Assistant Secretary for Tax Policy to participate in selection.

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