Tax Clinic Partners with Harvard Law School to Write Amicus Briefs for Tax Court

Amicus briefs, T. Keith Fogg and Ted Afield

In partnership with the Harvard Federal Tax Clinic and T. Keith Fogg (left), student attorneys with the Philip C. Cook Low-Income Tax Clinic and Ted Afield, clinic director and associate clinical professor of law, have co-written three amicus briefs in an effort to help influence case rulings that could negatively impact low-income taxpayers.

In partnership with the Harvard Federal Tax Clinic, student attorneys with the Philip C. Cook Low-Income Taxpayer Clinic and Ted Afield, clinic director and associate clinical professor of law, have co-written three amicus briefs in an effort to help influence case rulings that could negatively impact low-income taxpayers.

The partnership began in 2016, when T. Keith Fogg, clinical professor of law and director of the Federal Tax Clinic, Legal Services Center Harvard Law School, approached Afield to co-write a brief for Borenstein v. Commmissioner, 149 T.C. No. 10.

“Private practitioners approached both clinics to write a brief in the Borenstein case, given the potential impact that it would have on low-income taxpayers,” Afield said. “We decided to work together and provide a voice for low-income taxpayers in the matter.”

In the Borenstein case, the U.S. Tax Court examined whether the petitioner, who did not file a timely return, was entitled to a refund from three years prior. The brief requested the court to consider whether the petitioner was eligible for the three-year lookback period specified in Section 6512(b)(3) or limited to the two-year lookback period in Section 6511(a) and (b)(2)(B). The court ruled that she was limited to the two-year period and not entitled to the refund.

According to Fogg, even though they “lost” the case, the amicus brief could help change the law in a broader way.

“Our involvement can help the court realize the broader implications of the decision to the extent that might matter to the low-income taxpayer community,” Fogg said. “Our amicus brief for the Borenstein case points to a very poorly drafted statute. Making good arguments that allow the deciding court to properly highlight the problem with the statute makes it easier to press for remedial legislation. So, losing in the long run could mean winning.”

Based on the quality of work on the Borenstein case brief, the two clinics partnered again to co-write a brief this summer. Afield asked clinic student attorneys Misty Gann (J.D. ’19) and Nikki Bhakhri (J.D. ’18) to get involved.

“Drafting amicus briefs provides students the chance to weigh in on complex and novel issues in a tax controversy that they might not encounter on a day-to-day basis in their cases. This enhances both their substantive knowledge of the tax law, as well as gives them the opportunity to explore a challenging legal issue in considerable depth,” Afield said “This experience enhances their advocacy skills because they get experience writing the type of complex legal brief they may encounter when representing corporate clients or high net worth individuals, while still being able to advocate for how low-income taxpayers could be adversely effected by the outcome in the case.”

The brief, filed in the U.S. Court of Appeals for the Second Circuit, described how low-income taxpayers, seeking to contest certain penalties, suffer when they are required to pay the penalties in-full before being allowed a court hearing.

“The three of us worked with our co-authors to evaluate legal arguments made in the principle case brief and determined that the same legal issue also had the potential to have a devastating impact on our clients,” Bhakhri said.

The court has not yet issued a ruling, but both students found the experience worthwhile.

“It was an honor to be asked and an amazing opportunity,” Gann said.” The experience of writing to courts – while still in law school, with professors who are experienced professionals are offering guidance – is a learning opportunity worth taking. I learned there is a major flaw in the administrative process that allows the IRS to wield an extraordinary amount of power, which under current regulations most times cannot be challenged in the court.”

The clinics are partnering on a third brief this semester. Reena Patel (J.D. ’18) is a co-author.

“When this opportunity came up, I could not say ‘no.’ I was excited for the experience and knew that it would help me become a better writer and researcher,” Patel said. “The Harvard student attorney and I have handled everything from the initial outline to the final editing, with helpful guidance from our professors. The entire process allowed me to work on numerous skills that are necessary for a successful future legal career. I think it is wonderful that students can have an opportunity like this through the tax clinic.”

Fogg says he keeps calling Afield because he’s so pleased with the partnership and finds value in having tax clinics file briefs.

“Georgia State has a terrific tax clinic, with outstanding leadership and students. It is great to partner with it,” Fogg said.  “I also think it is useful for the courts to see the clinics as a place that can make an important legal argument and assist in flushing out the issues. If we make good arguments, even if we lose, I think we gain respect for all low-income tax clinics.”

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