Pat Smith Quoted in Tax Notes on New Oral Argument in Altera and on Kavanaugh Nomination

Ivins attorney Pat Smith was quoted in separate stories in Tax Notes on the scheduling of a new oral argument in the Ninth Circuit in the Altera case and on why Judge Kavanaugh’s views on the Anti-Injunction Act are a negative for taxpayers.

Oral Re-Argument in Altera Set for October.

“I’m speculating, but Judge Graber probably looked at the briefs and viewed a recording of the original oral argument, and on the basis of what she learned from all that, decided it would be helpful for her to be able to ask questions,” said Patrick J. Smith of Ivins, Phillips & Barker Chtd.

Smith said he anticipates the parties will address the withdrawn opinions in the oral reargument. “I’d expect each side will respond to the opinion that went against them, and they’ll cite with approval the opinion that sided with them,” he said. After reading tax decisions written by Graber, he said she seems to be a centrist and reasonable.

“The case is essentially up to her at this point,” Smith said.

Meticulous, Maybe Disruptive Kavanaugh Intrigues Tax Bar.

Kavanaugh has more than once denied taxpayers pre-enforcement challenges to fees and regulations, insisting they file suit for refunds or redress after enforcement. Patrick Smith of Ivins, Phillips & Barker Chtd. said Kavanaugh’s record on the Anti-Injunction Act (AIA), which limits federal courts’ injunction power against [federal taxes], was not encouraging for tax plaintiffs.

In the judge’s strongest legal statement on the issue so far — in Florida Bankers Association v. United States, 799 F.3d 1065 (D.C. Cir. 2015) — Kavanaugh ruled that a reporting requirement with a… tax penalty attached was in fact a tax, agreeing with mainstream legal thought that the AIA barred the suit, Smith noted. “So [Kavanaugh’s] a negative for taxpayers, in that sense,” he said.

On balance, tax professionals seemed satisfied with Kavanaugh’s nomination.

After all, he wrote the “excellent” Loving decision, Smith said. “It’s hard to quarrel with that,” he said.