With the blizzard of guidance promulgated under the TJCA, challenges to many new regulations are a virtual certainty. In the meantime, the Tax Court has developed its jurisprudence on application of the APA to tax cases. Have we reached the end of “tax exceptionalism”? What does Treasury’s “Policy Statement on the Tax Regulatory Process” mean for deference in tax litigation? How will the APA apply to the blizzard of new regulations under the TCJA? This panel addresses these questions and explores the current state of the law on the Administrative Procedures Act as it applies to tax.
Identify rules and cases that underlie and inform legal challenges to regulations.
Steve Dixon is a Member in the Tax Department, where he has been litigating federal tax cases for corporate and individual taxpayers for over 16 years. Mr. Dixon has represented Fortune 500 taxpayers in high-profile trials before the Tax Court (including a multi-billion-dollar transfer-pricing case in that venue), the Court of Federal Claims, and in federal district court. He has been recognized as a Tax Controversy Leader by International Tax Review as well as in Legal 500 United States for tax controversy.
Starling Marshall is a trial lawyer who represents a wide range of clients in commercial litigation, tax controversies, and compliance matters. She also regularly advises clients on privilege and proprietary protections. She previously served as a Trial Attorney in the U.S. Department of Justice’s Tax Division, Court of Federal Claims Section, where she conducted all aspects of litigation, including fact and expert discovery, depositions, oral argument, briefing, settlement, and trial. She served on the Tax Division’s task force on employment tax enforcement.
Ms. Marshall’s previous experience includes handling litigation to determine employment status of workers throughout the entertainment industry, a proceeding against a large power company regarding nuclear decommissioning liabilities, 1603 grant litigation, cases to recover trust fund penalties against responsible officers, cases of first impression including: a case to determine the effect of a TEFRA judgment on penalties against partners, a case regarding the proper treatment of earn-out rights, and large loss insurance coverage litigation.
Diana Erbsen has more than two decades of experience in the tax controversy area, where she focuses on federal, state and local tax controversies, including criminal tax matters. Diana has significant experience representing clients in all aspects of sophisticated, challenging tax disputes. She has been recognized by the American College of Tax Counsel as a Fellow and is a frequent speaker at national tax conferences and forums.
From 2014 to 2017, Diana served as the Deputy Assistant Attorney General for Appellate and Review for the Tax Division of the US Department of Justice, a position to which she was appointed by President Barack Obama. In this role, Diana oversaw the Appellate Section (responsible for all appellate litigation, including to the Supreme Court), the Office of Review (responsible for civil settlements), and the Financial Litigation Unit (tasked with collecting judgments secured by the Trial Sections of the Tax Division). Additionally, Diana was actively involved in the management and operations of the Civil and Criminal Sections of the Tax Division and represented the DOJ on the Advisory Committee on Bankruptcy Rules. She was recognized in January 2017 by IRS Chief Counsel William Wilkins, with the Chief Counsel Award (the highest honor that can be conferred by that office) for her leadership and oversight of the Appellate Section. Her contributions to the precedent-setting Altera v. Commissioner case, a model for the government's defense of cases pending in the District Court and the Tax Court, were specifically noted.
Kelley is a partner in Reed Smith's Tax Group. Significant aspects of her practice involve complex federal tax controversies, state and federal tax issues involving closely held entities, state tax planning and litigation and tax planning issues involving e-commerce, cloud computing, and state nexus. Kelley has extensive experience working with tax-exempt organizations, including structuring joint ventures between tax-exempt and for-profit entities. She regularly advises clients on federal and state tax planning opportunities and she has experience representing clients in civil and criminal tax matters before state tribunals and administrative agencies, state courts, and federal courts. Kelley routinely represents clients before the Internal Revenue Service. She has written and spoken widely on numerous federal and state tax topics for clients representing a broad spectrum of industries, including exempt organizations.
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