Opinion
22550-17
10-30-2023
ALAN MICHAEL BERKUN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Patrick J. Urda Judge.
On July 18, 2023, petitioner Alan Michael Berkun filed a motion to strike, urging this Court to declare unconstitutional section 7443(f) , which sets forth the President's removal power for Judges of the Tax Court. Mr. Berkun argues that the "for-cause restriction on the President's removal powers over Tax Court judges violates the Constitution by preventing the President from exercising the exclusive duty to 'take Care that the Laws be faithfully executed.'" [Doc. 157 at 29.]
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C. (I.R.C.), in effect at all relevant times. "Doc." references are to the record documents compiled by the Clerk of this Court, utilizing .pdf pagination.
We have previously considered the constitutionality of this provision, repeatedly concluding that it passes muster. Battat v. Commissioner, 148 T.C. 32, 52 (2017) ("regardless of the branch location of the Tax Court, provisions authorizing removal of Tax Court Judges are constitutional."). Despite taking a different intellectual path, the U.S. Court of Appeals for the D.C. Circuit has twice reached the same conclusion. See Crim v. Commissioner, 66 F.4th 999, 1001 (D.C. Cir. 2023) (finding that the 2015 amendment to section 7441 does not "undermine[] the separation of powers analysis adopted in Kuretski"), aff'g T.C. Memo. 2021-117; Kuretski v. Commissioner, 755 F.3d 929, 939 (D.C. Cir. 2014) (finding that removal under section 7443(f) "would be entirely consistent with separation-of-powers principles."). We see no grounds to depart from our precedent.
Mr. Berkun lived in Florida when he filed this petition and appeal of this case lies (in the ordinary course) to the U.S. Court of Appeals for the Eleventh Circuit. I.R.C. § 7482(b)(1)(A). As that court has not spoken directly to this issue, we "foster uniformity by giving effect to our own views," Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971), i.e., those expressed in Battat.
Given the venerable age of this case, the Court will plan to hold trial in late 2024 or the first half of 2025. The Court will allow the parties to confer regarding trial dates from October 15, 2024 through June 27, 2025. The parties shall file a joint status report on or before November 27, 2023 indicating their preferred trial dates and location. Should the parties not reach an agreement, the Court will set the trial as it sees fit.
Upon due consideration, it is ORDERED that Mr. Berkun's motion to strike [Doc. 157], filed July 18, 2023, is denied. It is further
ORDERED that, on or before November 27, 2023, the parties shall confer and file a joint status report informing the Court as to the parties' preferences as to the date and location of trial.