Tuesday, January 8, 2019

Clare E. Connors Nominated as Attorney General for Hawaii (1/8/19)

Clare E. Connors has been appointed to be the Attorney General of the State of Hawaii.  She awaits Senate confirmation.  See Former assistant U.S. attorney picked to be Hawaii's new attorney general (Khon2 1/3/19), here.  Her Wikipedia page is here.

She had previously been nominated by President Obama named to a district court judge slot, but the nomination expired at the end of Obama's term.  See Wikipedia page above; and Clare E. Connors Nominated for Federal District Court Slot (Federal Tax Crimes Blog 9/9/15), here.

Mike Desmond Nomination as Chief Counsel Stymied (1/9/18)

I picked this up from Checkpoint Newstand for 1/9/19:
Sen. Robert Menendez (D-NJ) has remained steadfast in blocking Senate floor action on the nomination of Michael Desmond to serve as IRS chief counsel. As described on the agency's website, the chief counsel "serves as the chief legal advisor to the IRS Commissioner on all matters pertaining to the interpretation, administration, and enforcement of the Internal Revenue Code, as well as all other legal matters". There was some hope that Desmond's nomination would come before the full Senate before the end of December but that was not the case. Menendez's office confirmed to the media that he had delayed floor action on the nomination. On Jan. 3, the Senate Finance Committee returned Desmond's nomination, along with a number of other nominations, to President Trump under the provisions of Senate Rule XXXI, paragraph 6 of the Standing Rules of the Senate. According to the Congressional Research Service, "nominations that are pending when the Senate adjourns sine die or recesses for more than 30 days are returned to the President unless the Senate, by unanimous consent, waives the rule requiring their return. If a nomination is returned, and the President still desires Senate consideration, he must submit a new nomination to the Senate". Menendez has described his opposition to the nomination of Desmond as well as his earlier opposition to the confirmation of current IRS Commissioner Charles Rettig as a protest against the agency's proposed regs, pursuant to the Tax Cuts and Jobs Act (TCJA; P.L. 115-97, 12/22/2017), that would prevent states from declaring certain state and local tax payments as charitable contributions. For the return of the nomination to the President, see here

Monday, January 7, 2019

Sex and Tax (Including the Tax Division) in the Movies (1/7/18; 1/19/19)

Many readers will already know that there is a new movie,  On the Basis of Sex (Wikipedia page here), which revolves around a tax case involving a constitutional issue on gender discrimination in the tax law in a case pitting Ruth Bader Ginsburg (yes, the notorious one, often referred to as RBG) and her husband Marty Ginsburg against the Tax Division.  (Sorry to disappoint, but it is not that kind of sex, although the confluence of sex and tax is usually an oxymoron but surely an attention grabber.)   RBG needs no introduction and, I suspect, neither does Marty who was, in my mind, the smartest tax lawyer around.  I have several Marty stories, but none related to the Tax Division Alumni.

The tax case was Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972), here, cert. denied, 412 U.S. 906 (1973).  According to the movie portrayal, the principal actors from DOJ were:  Jim Bozarth, (Appellate Section line attorney now in private practice, here), Ernest J. Brown (Appellate Section reviewer and former tax professor at Harvard Law School, now deceased), and Erwin Griswold (Solicitor General and former tax professor and Dean at Harvard Law School, now deceased).  The movie does not include the SG tax assistant, Richard Stone, who would likely have been a principal player in the real drama.

Those who worked in the Appellate Section (like me, there at the time) may see some liberties taken in the movie (like the absence of the SG tax assistant who would have pulled the laboring oar in the SG's office, although my experience was that SG Griswold did take special interest in tax cases and would have done so in authorizing the petition for cert).  Whether the SG was materially involved prior to the Tenth Circuit decision seems unlikely.

I do have a friend, Peter Reilly, a tax blogger at Forbes, here, who has tried to gather information about the portrayals in the movie.  He has discussed the movie with me; to date those discussions with Peter were before I saw the movie.  I could then just talk about the working of the Appellate Section and the players involved, including the missing SG tax assistant (Richard Stone) and others.  Most significantly, Peter talked with Jim Bozarth.  As of this writing, Peter has written three blog entries on his sleuthing about the movie, including comments from the screenwriter, Daniel Stiepleman.  I list those current blog entries (updated) below, but urge readers interested in the topic to check back with Peter's blog because there will be later blog entries.  These are presented in chronological order.
  • "On The Basis Of Sex" - What To Read Before You Watch (Forbes Peter Reilly 12/28/18), here.
  • On The Basis Of Sex: How A Tax Case Became A Victory For Gender Equity (Forbes Peter Reilly 12/31/18), here.
  • On The Basis Of Sex: Portrayal Of Opposing Attorney Has No Basis In Reality (Forbes Peter Reilly 1/4/19), here.
  • On The Basis Of Sex - Watch The Other Lawyers (Forbes Peter Reilly 1/13/19), here.  (This is the most focused presentation on the DOJ Tax Appellate lawyers (Brown and Bozarth) and the Solicitor General.
Also, the TaxProfBlog re-posted Peter's first offering here.  Apparently given its very wide readership the TaxProfBlog got some great comments for the article, so I strongly recommend clicking on the Tax Prof Blog link and reading the comments.  Here is my favorite, although not about DOJ Tax lawyers:
My wife and I saw the movie at the Simon Wiesenthal Center in Los Angeles. The movie is a sweet love story, about a tax issue. We both liked the movie. I thought it was lovely. Just about a nice, married couple, and taxation. Who could ask for anything more?
Having now seen the movie, I will say that much of the presentation about the interactions of and with the DOJ Tax lawyers (Brown and Bozarth) did not strike me as what would have really happened.  Some  of Peter Reilly's blogs linked above get into that.  But, I don't think that they are so far off (except in one respect that I will note) that they take away from the overall movie or the zeal with which the DOJ Tax lawyers presented the case.

My only complaint is that they presented the Tenth Circuit argument almost as if it were a jury trial.  My experience with DOJ Tax Appellate is that the attorneys avoided the drama at oral argument (it is a tax case, after all).  The movie had, for example, Bozarth turning from the judges to look at the taxpayer (Moritiz) and the opposing lawyers (the Ginsburgs), and even casting an aspersion that the Ginsburgs promoted the case for reasons other than the client's interest.  I would be stunned if Bozarth did that (he is too class a lawyer for that) and am disappointed that the makers of the movie felt it appropriate to put that fictional (in my view) event in the movie.

I would appreciate comments from DOJ Tax Alumni.  Please make them below or send them to me at jack@tjtaxlaw.com.  Any information, anecdotes, etc., sent to me will not be published or shared with anyone else (including Peter Reilly without express permission).  One thing I am particularly interested in is who the SG tax assistant was (I may know that later today when a document package is delivered to Peter Reilly) and whether, if the SG tax assistant is still alive, how he might be contacted.

Also, those having difficulty posting comments (some do), please email the comments to me with a request to post the comment and I will take care of posting them.

Saturday, November 10, 2018

Article on Mabel Walker Willebrandt, First AAG Tax (11/10/18)

I have just finished reading a wonderful article, William Hoke, Women in Tax Law -- Willebrandt Breaks DOJ Glass Ceiling (Tax Notes Worldwide Tax Daily 11/12/18), here.  (This link may be a temporary link; I have asked Tax Notes for permission to put the article on my Google Docs web site as a permanent link; I have not heard back yet.)  Readers having access to Tax Notes Worldwide Tax Daily may read it before I obtain that permission.

The Hoke article is fascinating with a lot of interesting detail on Willebrandt.  Well written.  Highly recommended.

Hoke cites in the article this "posthumous" interview of Mabel Walker Willebrandt, here, by Jasper L. Cummings, Jr.,a and Alan J.J. Swirski.  Excerpts from this interview:
Mabel Walker Willebrandt headed what became the Tax Division of the U.S. Justice Department from 1921 to 1929. She was famous at the time not for her tax duties but for her duties in enforcing the Volstead Act (Prohibition), which also was handled by her division. She was the second female Assistant Attorney General.*
* See generally Elizabeth K. MacDonald, “The Justice Department and Some Problems of Enforcement:” Mabel Walker Willebrandt, “Prohibition Portia” (posted at Women’s Legal History Project, Stanford University); Mabel Walker Willebrandt, The Inside of Prohibition (1929); Dorothy M. Brown, Mabel Walker Willebrandt: A Study of Power, Loyalty and Law (1984) (which was serialized in the New York Times); The Frederick A. Cook Society website; New York Times obituary, Apr. 9, 1963, at 31; various New York Times Archive articles, including Jan. 11 and 19, 1925, Nov. 17, 1925, Sept. 27, 1928, May 28, 1929, Apr. 15, 1934, and Oct. 22, 1950. 
Q What did you do before you joined the Justice Department?
A I graduated from the law school of the University of California in 1916 and largely defended prostitutes in police court. I served as the first public defender for women in Los Angeles, without pay, and represented over 2000 women. I did become active in Republican Party politics. 
Q Why were you appointed to head Prohibition enforcement?
A Well, as one of my friends said: “Nobody in the Justice Department wanted that job. It had no political  advantages at all. So, of course, they gave it to Mabel.” So I certainly did not seek out that part of the job. Eventually the opposition of the wets kept me from being appointed as the first female federal judge.Q Was there any conflict between your responsibility for Prohibition enforcement and for tax appeals?
A Some would say so. I recall the time I ruled that imported bootleg alcohol could be sold by the  Federal Marshals tax free. Secretary Mellon and the Commissioner were against me on that one and took it up with the Attorney General and Congress. The Times headline said I “overruled Mellon.” 
Q How many cases did you argue in the Supreme Court?
A My office submitted 278 cases on certiorari to the Supreme Court and I personally argued many of them; I am listed on 172 cases. Of course, my staff wrote most of the briefs.

Monday, October 29, 2018

Death of Rick Halberstein (10/29/18)

Richard ("Rick") Halberstein, a DOJ Tax alumni, who served in the Appellate Section according to my records, died on August 29, 2018.  His WAPO obituary, here (scroll down), is short, so I cut and paste it:
Richard Halberstein, 
Richard Halberstein, 75, a Washington lawyer and Capitol Hill neighborhood activist who was a founder and treasurer of the Capitol Hill Community Foundation, died Aug. 29 at his home in Fort Lauderdale, Fla. The cause was respiratory failure, said his wife, Leona Atkins. 
Mr. Halberstein was born in Marion, Ohio, and came to Washington in 1970. He was a tax lawyer with the Justice Department and the House Ways and Means Committee before opening a private law practice in 1976. His specialties included tax, probate, real estate, family law and services to small businesses and organizations. He was co-director of the Capitol Hill Free Tax Clinic. He retired and moved to Fort Lauderdale last year.
I have fond memories of Rick for the short period we overlapped in the Appellate Section.

Sorry for the late posting on this, but just received notice recentlty.

Saturday, September 15, 2018

Pat Mullarkey Retires (9/15/18)

Keith Fogg has this great write up on Pat Mullarkey:  Recognizing Pat Mullarkey (Procedurally Taxing Blog 9/13/18), here. Highly recommended reading for DOJ Tax Alumni!

I am sure that all of us who came within the ambit of Pat's broad influence at DOJ Tax learned from him and wish him the best.

Saturday, September 1, 2018

Chad Muller Lifetime Achievement Profile in Texas Lawyer (9/1/18)

Chad Muller is recognized in the Texas Lawyer lifetime achievement profie: ALM Staff, Lifetime Achievement: Charles J. Muller, Chamberlain, Hrdlicka, White, Williams & Aughtry (Texas Lawyer 8/31/18), here.

Wednesday, August 8, 2018

Interesting History on Carlton Fox, DOJ Tax, and His Compilations of Legislative History (8/8/18)

This morning, I was reading this article:  Nicholas Parillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266 (2013), here.  I cut and paste a paragraph with footnotes on an early comprehensive compilation of tax legislative history compiled by Carlton Fox of the Tax Division:
As a third example, take the DOJ Tax Division. Founded in 1919 and greatly expanded in the 1930s, the division in 1931 hired an attorney named Carlton Fox, n229 who became "a pioneer in the field of legislative histories." n230 By the late 1930s, Fox had assembled scrapbooks of primary material on the internal revenue laws - apparently consisting largely of legislative history - that totaled forty-five volumes. n231 When a private tax attorney published a one-volume "legislative history" of the internal revenue laws in 1938, Griswold criticized it in the Harvard Law Review, arguing that it was not "much more than a digest or partial index," declaring that the "only place where the complete sources may now be found is in the compilations which have been made by Carlton Fox, Esq., of the Department of Justice," and concluding that "the final story on the legislative history of the Revenue Acts will not be told until Mr. Fox's compilations can be made more readily available." n232 The Tax Division apparently took advantage of its legislative history to guide the DOJ field service, sending circulars to the U.S. Attorneys' Offices with legislative history on commonly litigated questions. n233
   n229. 1934 DOJ Register, supra note 199, at 3.
   n230. Hudon, supra note 73, at 325.
   n231. A copy of the set was donated to the Supreme Court and discussed in Oscar D. Clarke, The Library of the Supreme Court of the United States, 31 Law Libr. J. 89, 91 (1938). Clarke describes the collection as forty-five volumes and covering "tax laws, regulations, and legislative history," id., but it appears the bulk of it was legislative history. See the description by Griswold, infra note 232 and accompanying text. A description of the collection's various parts as of 1950 (by which point it had been further expanded to 160 volumes) indicates that 107 of the volumes consisted entirely of legislative history and another 27 partly of legislative history. Federal Taxation, 32 Chi. B. Rec. 180 (1950); see also id. at 190 (confirming that the donation to the Court occurred in 1937 and that the collection is "adequately indexed").
   n232. Griswold, supra note 161, at 718. Griswold added that copies of Fox's volumes were available in the libraries at Harvard and two of the U.S. circuit courts. Id.
   n233. E.g., Circular Letter to All United States Attorneys, Circular No. 2730, Re: Memorandum of authorities with respect to the applicability of the Federal Declaratory Judgment Act to suits for the recovery of taxes 10-13 (Aug. 1, 1935), Box 182, Folder 1, Freund Papers, supra note 201. The DOJ Criminal Division and Claims Division would likewise acquire their own legislative history libraries, while DOJ's central library would provide such material to the other divisions. McKavitt, supra note 220, at 276; William Mitchell, Government Law Libraries: Guideposts to Research, 20 Fed. B.J. 281, 283 (1960).
Particularly while in the Appellate Section, I worked in legislative history a lot.  I had heard of Fox's compilations, but I don't recall that I ever accessed them.  I do recall working with Seidman's volumes on legislative history of the tax laws.

Parillo's point in the article is that such compilations back in Fox's day were not readily available to the private tax bar.  For this interested in this niche of history, read Parillo's article.

Does anyone out there remember either Carlton Fox or his legislative histories?

The NYU website, here, has a link to HeinOnLine saying the following:
Taxation & Economic Reform in America Parts I & II, 1781-2010, HeinOnline
"This historical archive contains . . . legislative history materials and other documents. It includes the complete Carlton Fox Collection which contains nearly 42 years of historical legislation related to the internal revenue laws from 1909-1950. It includes more than 100 other legislative histories related to taxation, economic reform, and stimulus plans. ." (HeinOnline)
One other interesting matter related to legislative history is that there was some secret legislative history dealing, as I recall it, primarily for legislation in the 1930s (at least that was the period I accessed).  We had volumes of that secret legislative history in the Appellate Section library and we had to get permission from the appropriate committee if we wanted to cite the legislative history.  I accessed it in a merger case after my reviewer kept sending me back to the history to find some point he insisted was there but which neither I nor he could ever find.

Sunday, July 29, 2018

Tax and Bankruptcy AUSA Position in S.D. Alabama (7/29/18)

A DOJ Tax Alumnus has advised that an opening is expected soon for a tax and bankruptcy AUSA position in the USAO for SD Alabama (link here).  I understand that the job is not posted at this time.  The target attorney for the job includes a current Tax Division attorneys, but recent alumni might be considered as well.

Those who may be interested can contact Charles Baer <charlesbaer03216@gmail.com> for information about the job, the USAO and the area.

Thursday, July 12, 2018

Pat Mullarkey Retirement Celebration on 9/14/18 - Invitation (7/12/18)

I received this notice from DOJ Tax:
Save the Date:  Retirement Celebration for D. Patrick Mullarkey on 9/14/18 
Pat Mullarkey, Chief of the Civil Trial Section, Northern Region, DOJ Tax Division, is retiring on August 3, 2018, after more than 52 years of outstanding service to the Tax Division.  His retirement celebration will be held on Friday, September 14, 2018, in the Great Hall in the RFK Main Justice Building from 3:00 to 6:00 p.m.    Please Save The Date!   If you would like to receive updates on this event, please send an e-mail to Karen Hamilton, at Karen.C.G.Hamilton@usdoj.gov, or Henry J. Riordan, at Henry.J.Riordan@usdoj.gov.  
Having worked with Pat while I worked at DOJ Tax and have observed him from outside the wall ever since.  I can say that he is the type of public servant we can all be proud of.  Well, done, Pat, and best wishes for retirement.