Opinion
398-21L
07-25-2024
CHARLTON C. TOOKE, III, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Courtney D. Jones, Judge
Currently before the Court are several motions filed by Mr. Tooke, including "Petitioner's Motion to Declare IRS Independent Office of Appeals, Appeals Officer(s) An 'Officer Of The United States' & Remand To The IRS Independent Office of Appeals" (Doc. 9) (Appointments Clause Motion) and "Motion to Declare IRS Independent Office of Appeals Unconstitutional As Violating Separation of Powers & Set Aside IRS Independent Office of Appeals Actions" (Doc. 6) (Separation of Powers Motion).
The Court will schedule the case for hearing on the Appointments Clause and Separation of Powers Motions (the Motions). At the hearing, the Court expects that the parties will follow the general instructions and address the questions set forth below. The parties should also expect that additional questions, not provided below but generally related to the issues raised in the Motions, will be presented by the Court.
General Instructions
Both parties should use the oral arguments to emphasize their key points. When discussing those key points, please refer to the relevant page numbers in the parties' respective briefs (using the page number from the paper copies).
General Question
• For both parties: Explain how the IRS Independent Office of Appeals (Appeals) has or is delegated power, and explain how and through whom that power is exercised.
Standing Questions
• For both parties: How should the Court construe the statements about standing from the U.S. Court of Appeals for the District of Columbia in Landry v. FDIC, 204 F.3d 1125, 1130-31 (D.C. Cir. 2000). The D.C. Circuit stated that "judicial review of an Appointments Clause claim will proceed even where any possible injury is radically attenuated." Id. at 1131. Is it correct to presume that the causation element of the standing analysis is satisfied as it relates to the Chief of Appeals? See also Cirko on behalf of Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 154 (3d Cir. 2020) ("An individual litigant need not show direct harm or prejudice caused by an Appointments Clause violation . . . But this difficulty to show direct harm does not diminish the important individual liberty safeguarded by the Appointments Clause. Such harm is presumed."); but see Jefferson v. Harris, 285 F.3d 173, 187 (D.C. Cir. 2018) ("Challenges under the Appointments Clause may require a lesser degree of causation between the alleged harm and the constitutional violation, but it does not follow that any asserted injury is cognizable in such contexts.").
• For Petitioner: Did the Chief of Appeals directly or indirectly influence Mr. Tooke's CDP hearing? Is your theory of causation premised more on a direct impact or that, by virtue of leading Appeals, the Chief had an indirect effect on Mr. Tooke's CDP hearing?
• For both parties: For purposes of the standing analysis, is the opinion of the U.S. Court of Appeals for the Eleventh Circuit in Baughcum v. Jackson, 92 F.4th 1024 (11th Cir. 2024), applicable to the instant case?
Merits of Appointments Clause Motion
• The parties dispute whether the position of "appeals officer" is "established by Law." See U.S. Const. Art. II, § 2, cl. 2.
• For Petitioner: The position of Appeals Team Manager existed prior to the enactment of the CDP regime as part of the Restructuring and Reform Act of 1998. See, e.g., Internal Revenue Manual 12(16)0, 1998 WL 35251635 at Delegation Order 11 (Rev. 26). Does that not indicate that Congress used the phrase "appeals officer" with a general, and not specific meaning, and that the Court's interpretation in Tucker v. Commissioner, 135 T.C. 114 (2010) was correct?
• For Respondent: The position of "appeals officer" existed for at least 20 years prior to the enactment of the CDP regime as part of the Restructuring and Reform Act of 1998. See Tucker, 135 T.C. at 136 (citing IRS Document 7225, History of Appeals 60th Anniversary Edition 3-6 (Nov. 1987)). In light of the fact that sections 6330(c)(1) and (3) use the term "appeals officer," why should the Court preserve the interpretation set forth in Tucker v. Commissioner, 135 T.C. 114, 152 (2010)?
• For Petitioner: Why are you entitled to a new hearing or any other remedy? If the Court rules that the Chief of Appeals is an Officer who was not appointed within the mandates of the Appointments Clause, then is it not true that the hearing would have been appropriate pursuant to the Commissioner's authority under section 7803(a)(1) and 7804, just as it was before the Taxpayer First Act?
• For Respondent: If the Court concludes that there is an Appointments Clause violation: (1) what would the remedy be for this case (if any); and (2) what would be the impact of that ruling on cases currently in Appeals, cases currently docketed at the Court, and Court cases that are currently closed?
Merits of Separation of Powers Motion
• For Petitioner: you have argued that the term "report," as it appears in section 7803(e)(2)(A), cannot be interpreted in any manner such that the Commissioner has control or meaningful oversight over the Chief of Appeals. If the Court were to adopt that interpretation, then must it also adopt the same interpretation of the term "report" in section 7803(e)(6)? Does this interpretation lend to a result that the Constitutional Doubt Canon counsels courts to avoid? See Scalia & Garner, supra at 247-51 ("A statute should be interpreted in a way that avoids placing its constitutionality in doubt.").
In view of the foregoing, it is
ORDERED that this case is calendared for hearing during the Court's August 26, 2024, Washington, D.C., special hearing session beginning at 9:30 a.m. Eastern Time in the Center Courtroom of the United States Tax Court, 400 Second Street, N.W., Washington, D.C. 20217.