While you’re in regulation faculty, you typically dream about having a case that makes it to the Supreme Courtroom. Rachael E. Rubenstein of Clark Hill is aware of that feeling—and in her case, it truly occurred.

Statistically, that dream is a protracted shot. The Time period of the Supreme Courtroom begins on the primary Monday in October and lasts till the primary Monday in October of the subsequent yr. Roughly 5,000-7,000 new instances are filed with the Supreme Courtroom every Time period. Of these, plenary—or full—assessment with oral arguments by attorneys is granted in about 80 every Time period. The Courtroom sometimes disposes of about 100 or extra instances with out a plenary assessment.

(You will discover a current breakdown of the Courtroom’s caseload by quantity right here.)

In terms of federal tax issues, you sometimes start resolving disputes instantly with the IRS. That is one thing that Rubenstein fell into early in her profession working at a low-income taxpayer clinic at St. Mary’s College Faculty of Regulation in San Antonio, Texas—that is additionally her alma mater. There, she additionally tackled affect litigation instances—these are lawsuits which are supposed to alter legal guidelines or insurance policies and have the potential to affect a number of taxpayers.

Assembly Bittner

Just a few years after regulation faculty, Rubenstein joined Strasburger & Worth—now Clark & Hill—the place she met Farley Katz. Rubenstein describes Katz, who had beforehand served 5 years with the Justice Division, Tax Division, as a mentor. Katz was additionally a litigator, briefing and arguing instances within the federal appellate courts. Notably, he briefed the Supreme Courtroom victory in Dickman v. Commissioner, which held {that a} collection of interest-free demand loans resulted in taxable presents.

Katz launched Rubenstein to a shopper of the agency, Alexandru Bittner, a twin Romanian-US citizen, who was trying to maneuver into tax compliance. She quickly joined the group of legal professionals assigned to assist.

The case was eye-opening for Rubenstein, who famous that early on, it wasn’t the federal government that recognized the errors on beforehand submitted FBARs—the taxpayer did. What adopted, she stated, had been years of makes an attempt to resolve the case. It was clear, she believed, that the taxpayer had not recognized concerning the FBAR requirement. The federal government did not argue in a different way. They merely took the place that non-willful penalties would apply to every account not precisely or well timed reported, leading to a $2.72 million penalty.

The federal government ultimately sued to gather. There was, Rubenstein says, “Actually no solution to not combat it.” And so Bittner went to court docket the place he argued that the right penalty must be per return, not per account.

The district court docket denied Bittner’s affordable trigger protection, however diminished the penalty to $50,000. That was fairly a blow to the IRS and his authorized group knew that the federal government would enchantment. “So,” Rubenstein says, “We appealed first.”

Enchantment

There are 13 Circuits within the U.S. Courtroom of Appeals that hear instances from the Tax Courtroom and the District Courts. Appeals are sometimes critiques of choices primarily based on arguments that there have been errors in process or interpretation of the regulation—you’re typically barred from elevating new arguments or points at enchantment.

In Bittner’s case, with the info and arguments on the file, the Fifth Circuit sided with the IRS. Bittner’s authorized group, together with Rubenstein, acknowledged that the Fifth Circuit choice was at odds with a 2021 Ninth Circuit choice (United States v. Boyd). That is when Rubenstein says she realized, “This case goes to Supreme Courtroom.”

Supreme Courtroom

The Supreme Courtroom has authentic jurisdiction over sure sorts of instances outlined by statute (28 U.S.C. §1251)—they go straight to the Supreme Courtroom. An instance of a case with authentic jurisdiction could be a dispute between the states.

Most instances do not have authentic jurisdiction. There is a course of for listening to these instances which were argued in one other court docket and now desire a shot in entrance of the very best court docket. To be heard on the Supreme Courtroom, you file a petition searching for a assessment of the case—you are petitioning for a writ of certiorari—Latin which means a written order “to be extra totally knowledgeable.”

If the Supreme Courtroom decides to listen to the matter, it is referred to as a grant of certiorari. Often, certiorari is granted in a case of appreciable significance, or one involving a circuit break up to resolve the difficulty for consistency. The latter is what occurred in Bittner —on June 21, 2022, the Supreme Courtroom agreed to listen to the matter, granting certiorari.

Process

As soon as briefs are filed with the Supreme Courtroom, the justices hear oral arguments, that are sometimes brief with no witnesses. The justices might ask questions throughout the hearings to assist them make clear any excellent points. As soon as they’ve heard the arguments, they meet as a bunch to resolve the result of the case.

Daniel L. Geyser argued Bittner’s case on the Supreme Courtroom on November 2, 2022. A seasoned tax litigator, he’s the chair of the U.S. Supreme Courtroom Follow and a member of the Appellate Group at Haynes Boone.

It was an opportunity for Rubenstein to look at one of many prime tax legal professionals within the nation go to work. The expertise working with Geyser, Rubenstein says, “was so fabulous… such a pleasure.” The caliber of his work, she says, with just a bit awe in her voice, was “unmatched.”

Resolution

After Geyser and the federal government argued their factors, the ready sport started. In contrast to court docket dramas you see on tv the place the decide renders a verdict in open court docket hours or days after arguments, Supreme Courtroom choices are made public by a written opinion printed weeks or months later.

The Supreme Courtroom issued the Bittner opinion on Feb. 28, 2023. It was an enormous win for Bittner though the margin was slim—the vote was 5-4.

Bittner, Rubenstein says, is completely happy to have the win.

She is, too. She plans to proceed to work on tax controversy issues and front-end tax compliance planning as a part of her observe at Clark Hill. However wanting again at the previous few years, she clearly would not change a factor. “I realized a ton,” she says.

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