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  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.

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