For non-U.S. citizens, criminal convictions can have broader reaching consequences, in addition to the already severe criminal and civil penalties. A felony tax evasion conviction in which the revenue loss to the government exceeds $10,000, or even an attempt or conspiracy to evade with over $10,000 in intended losses, is expressly mentioned in the Immigration and Nationality Act, allowing the Department of Homeland Security (DHS) to remove a non-citizen using expedited proceedings. The $10,000 threshold amount for tax losses, often referred to as an aggravated felony, is quickly accumulated, especially in a corporate tax fraud setting. In Evdokimow v. Att’y Gen, No. 20-2051 (3d Cir. 2022), filed on August 4, 2022, the petitioner has experienced this powerful authority that DHS over tax dodgers.

After a jury found him guilty of multiple counts of tax evasion and serving his prison time, the petitioner, Swedish national David Evdokimow, was ordered to leave the United States. He challenged the removal order on the basis of due process, claiming that there was no clear and convincing evidence of an aggravated felony.

David Evdokimow came to the United States on a J-1 visa to study medicine and later established a successful reconstructive surgery practice. His immigration status was changed to an O-1 visa, which is available to people with extraordinary abilities or achievements.

As the 3rd Circuit pointed out, as with his practice, the petitioner’s tax liability also grew. The petitioner responded to the rising tax bill by channeling funds through shell companies. He claimed these funds as business expenses on his corporate return, but used them for personal expenses and left them off his personal tax return. He also failed to report “a large portion of the cash and check payments he received directly from patients.” In this manner, he amassed nearly $3 million in unpaid corporate and personal taxes.

Subsequently, the petitioner was charged with one count of conspiracy to defraud the United States under 18 U.S.C. § 371 and seven counts of tax evasion under 26 U.S.C. § 7201 and 18 U.S.C. § 2. On all counts, the jury found him guilty. After his incarceration ended, DHS issued a notice of intent to issue a Final Administrative Removal Order (FARO), alleging that he was deportable because he had been “convicted of an aggravated felony.  The DHS issued the FARO notice and ordered him to leave the country (Order of Removal).

At issue when the petitioner requested that the United States Court of Appeals review the Order of Removal, was whether the petitioner’s convictions satisfy the “aggravated felony” requirement under 8 C.F.R. § 238.1(b); see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1228(b).

“An aggravated felony includes, among other things, (1) an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” (2) an offense “described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000,” or (3) “an attempt or conspiracy to commit” one of those offenses with over $10,000 in intended losses. 8 U.S.C. § 1101(a)(43)(M), (U); Rad v. Att’y Gen., 983 F.3d 651, 670 (3d Cir. 2020).”. The petitioner did not dispute that his conviction was for an offense listed in the statute, e.g., one that involved fraud or deceit or was described in section 7201 of title 26, but rather he claimed that the threshold requirement of more than $10,000 was not met. Despite the fact that the conviction for tax evasion involved an amount of nearly $3 million, petitioner argued that the tax loss amount was not part of the jury finding.

In relying on Ku v. Att’y Gen., 912 F.3d 133, 139 (3d Cir. 2019 and Nijhawan v. Holder, 557 U.S. 29, 34 (2009), rooted the court’s “circumstance-specific approach,” the court, looked to the specific way the crime was committed rather than only the elements of the crime or the charging document or jury findings.   The court then determined that, based upon the indictment which charged evasion of at least $1.5 million in tax, the presentence report which noted total tax loss of $2,978,774, the jury conviction on all counts, and sentencing-related materials, it was shown by were clear and convincing evidence that the total tax loss was “far beyond $10,000” in the absence of any contradictory evidence.

Fighting a non-U.S.  citizen’s removal after conviction for a tax crime can be insurmountable.  A reminder that addressing tax noncompliance early and, importantly, well before a criminal tax investigation has been initiated is often the most crucial step a non-citizen residing and working in the U.S. can take.  Consulting with an attorney experienced in assisting individuals facing decisions about correcting tax noncompliance, including the potential for a voluntary disclosure submission with the IRS,  may be the best defense to not only a criminal tax investigation but also preventing a removal action with the DHS.

Sandra R. Brown is a Principal at Hochman Salkin Toscher Perez P.C., and former Acting United States Attorney, First Assistant United States Attorney, and the Chief of the Tax Division of the Office of the U.S. Attorney (C.D. Cal). Ms. Brown specializes in representing individuals and organizations who are involved in criminal tax investigations, including related grand jury matters, court litigation and appeals, as well as representing and advising taxpayers involved in complex and sophisticated civil tax controversies, including representing and advising taxpayers in sensitive-issue audits and administrative appeals, as well as civil litigation in federal, state and tax court. 

Steven Toscher is a Principal and Managing Partner at Hochman Salkin Toscher Perez P.C., and specializes in civil and criminal tax litigation. Mr. Toscher is a Certified Tax Specialist in Taxation, the State Bar of California Board of Legal Specialization and represents clients throughout the United States and elsewhere involving federal and state, civil and criminal tax controversies and tax litigation.

Philipp Behrendt is an Associate at Hochman Salkin Toscher Perez P.C., licensed in California as well as in Germany and assists in advising clients in civil and criminal tax controversies as well as international money laundering investigations stemming from tax avoidance structures.  He also focuses on the technical aspects involved in advising voluntary disclosures in connection with DeFis, NFTs, and other crypto assets.

We are pleased to announce that Steven Toscher, Michel Stein along with Thomas Giordano will be speaking at the upcoming Strafford webinar, “IRS Audits of Expatriates: Section 965 Transition Tax, Exit Tax, Non-Filers, and the Examination Process” on Thursday, August 11, 2022, 10:00 a.m. – 11:30 a.m. (PST).

The IRS has and continues to audit a higher proportion of ex-pat tax returns. The IRS 2019 Databook revealed that it selects approximately 10 percent of expatriates’ tax returns for audit. Considering the complexity of the returns, it is not surprising.

The rules for these nonresidents are often the reverse of those for residents. The filing status Married Filing Jointly can require a special election. Self-employed taxpayers usually are not entitled to deduct expenses. A simple presence in the U.S. for 183 days can trigger capital gains. Remarkably, two-thirds of exp-pats file these complicated returns on paper.

In January 2020, the IRS began its compliance campaign focusing on Section 965 transition tax payments. The Service required these payments by U.S. shareholders of certain foreign corporations on unrepatriated (untaxed) earnings as part of the 2017 Tax Act. The IRS stated that these audits could be expanded to other issues, particularly those relative to the 2017 Tax Act.

Tax professionals and advisers working with individuals who have relocated abroad must understand the issues triggering these IRS audits, prepare clients for these audits, and know how to handle these demanding examinations.

Listen as our panel of foreign tax experts discusses reporting requirements of expatriates’ issues for non-filers, guides tax practitioners through the examination process, and explains best practices to withstand the ongoing scrutiny of these taxpayers’ returns.

We are also pleased to announce that we will be able to offer a limited number of complimentary and reduced cost tickets for this program on a first come first serve basis. If you are interested in attending, please contact Sharon Tanaka at 

Click Here for more information.

A recently acquired IRS guide for voluntary disclosure practice (VDP) examiners provides insights into the IRS’s actions and priorities within the practice and could give practitioners more confidence and familiarity with it.

Steven Toscher weighs in and states cooperation has always been an essential condition of the practice, though that is not to say that the IRS’s position toward voluntary disclosure remains unchanged.  Toscher further states “It’s always been be prepared for open kimono,” “The government has morphed cooperation into part of their data gathering function. . . . Maybe 70 percent is you fixing your sins. The other 30 percent — they are not interested in you; they’re interested in other data.” Acknowledging that the data analysis is smart practice on the part of the IRS, Toscher wondered whether the reinvigorated practice would be too much for some taxpayers that signed up to get into compliance and not to be a “data guinea pig.”

He cited the lack of disclosure from the IRS on statistics of voluntary disclosures over the last several years as evidence that some taxpayers may be hesitant to enter the practice.

Click Here to read the article. You need to be registered to read the article. If you’re not already registered, just fill in the form to get access.

We are pleased to announce that Evan Davis will be speaking at the upcoming California Lawyers Association Twenty Ninth Annual Estate and Gift Tax Conference on “Protect Your File” on Friday, July 29, 2022, 2:50 p.m. – 3:20 p.m. (PST) at the UC Hastings College of Law, San Francisco.

After the 9th Circuit’s decision in In Re Grand Jury, there is now a three-way split in circuit courts regarding when a dual-purpose communication, a communication between a lawyer and client that has both legal and nonlegal purposes, is covered by the attorney-client privilege. While this case involves a tax lawyer, estate planners also have so much sensitive information regarding their clients and typically clients do not want that information disclosed. Learn how to better safe guard a client’s file from discovery particularly in light of this 9th Circuit opinion.

Click Here for More Information

Posted by: Steven Toscher | July 19, 2022

UCLA 38th Annual Tax Controversy Conference – October 27, 2022

We are pleased to let you know that the planning for the 38th Annual UCLA Extension Tax Controversy Institute is proceeding and we have an exceptional program lined up with top governmental officials and leading private practitioners from around the country. 

As you know the Institute is back in person this year. After two years Covid/Zoom protocols, we are all excited to see old and new friends in person.  Please note that for those of you who are unable to join us in person, there will be a later “virtual” rebroadcast of the event sponsored in conjunction with CalCPA.

The full schedule of programs will be up on the website soon, but we will give you the highlights below.  This year you need to sign up for the early bird special by September 2, 2022, and it is a deal with a $100 discount off the regular rate.  Registration also includes lunch.  Because of Covid restrictions, there will be limitations on seating so sign up early. You can sign up at the following link.

Click Here to Register

We have had amazing sponsors of the program and we encourage those who have sponsored in the past to join us again and we always welcome new sponsors. Go to the following link for sponsorship information.

Click Here for Sponsorship Information

Now, for the Highlights – 

  • The Commissioner of Internal Revenue – Charles P. Rettig – will present a luncheon keynote on the state of Internal Revenue Service. 
  • The Taxpayer Advocate – Erin Collins – will present a breakfast keynote on what the Taxpayer Advocate Service is doing to assist taxpayers and tax administration.  
  • Darren J. Guillot – Deputy Commissioner, Operations and Collection, SB/SE – will present an afternoon keynote on “What IRS Collection Will Look Like Over the Next 10 Years”. 

In addition to these “can’t miss” keynotes, we will be continuing the Institute’s tradition of providing an open forum for distinguished presenters and panelists to discuss and debate sensitive tax practice issues including –

Employment Tax: Employee Retention Credits: “What’s Old Is New Again: IRS’s Renewed Focus on Employee Tax Compliance Issues

”R&D Credits: “If You Build It, They Will Come…The Taxing Authorities Focus on R&D Credits

”How To Resolve Your Cases at IRS Appeals Including Cases Docketed Before the Tax Court

Crypto Compliance & Enforcement

Collection & Offer Specialist Panel & An IRS CampaignBSA & F8300 Compliance

Criminal Tax Enforcement

Click Here for More Information

We are pleased to announce that Steven Toscher, Michel Stein Stigile and Robert Horwitz will be speaking at the upcoming Strafford webinar, “Understanding Opportunity Zone Tax Incentives in Light of New Congressional Oversight and the TIGTA Report” on Wednesday, July 13, 2022, 10:00 a.m. – 11:30 a.m. (PST).

This webinar will provide tax counsel and advisers with a detailed analysis of the qualified opportunity zone (QOZ) tax incentives in light of new congressional oversight and the recent Treasury Inspector General for Tax Administration (TIGTA) report. The panel will discuss recent developments and congressional oversight for QOZ tax incentives and critical challenges for taxpayers stemming from the TIGTA report. The panel will discuss methods to ensure deferral or reduction of capital gains and outline additional tax planning strategies associated with opportunity zone funds and businesses.

On Feb. 7, 2022, TIGTA issued a final report assessing IRS implementation of the QOZ program providing critical insight into the actions likely to be taken by the IRS in auditing qualified opportunity funds (QOFs) and their investors. Tax counsel and advisers must understand the QOZ rules and challenges in light of the TIGTA report to effectively advise clients.

The QOZ program allows taxpayers to defer and reduce capital gains by allowing the taxpayer to reinvest capital gain proceeds in a QOF. This new incentive investment program subsidizes growing businesses in low-income communities through short- and long-term capital gains deferral, providing a substantial step-up in tax basis and tax abatement on the post-investment appreciation.

To take advantage of the program’s tax benefits, a taxpayer must reinvest capital gain proceeds in a QOF within 180 days from the date of the sale or exchange of a capital asset. A QOF must hold at least 90 percent of the fund’s assets in QOZ property.

The recently issued TIGTA report concluded that (1) additional actions are needed to address QOF noncompliance with the QOZ program requirements; (2) additional actions are needed to identify and address inaccurate or incomplete investor reporting on Form 8997, and (3) additional tracking recommendations are needed to ensure compliance and effectively identifying false information and noncompliance.

Tax counsel and advisers must understand and develop planning techniques to assist individuals or businesses seeking to invest capital, raise funds, or that will recognize significant capital gains in the next few years.

Listen as our panel discusses critical provisions of the TIGTA report and its impact on the QOZ program, QOZ tax incentives as an investment tool for taxpayers, the necessary legal requirements and processes to achieve the tax benefits, and techniques to ensure deferral or reduction of capital gains, as well as a discussion of critical open issues, analysis, and recommended guidance for counsel and advisers.

We are also pleased to announce that we will be able to offer a limited number of complimentary and reduced cost tickets for this program on a first come first serve basis. If you are interested in attending, please contact Sharon Tanaka at 

Click Here for more information.

Please join us July 15, 2022 for the USD School of Law – RJS Law Tax Controversy Institute at the Joan B. Kroc Institute for Peace and Justice Center at University of San Diego.

The USD School of Law – RJS LAW Tax Controversy Institute is held on an annual basis. The Institute is the premier tax controversy event in San Diego. The region’s top tax attorneys, CPAs, and law/business school professors, along with key government speakers including IRS Commissioner Charles Rettig, will discuss current topics of interest to the IRS and State taxing authorities to assist tax practitioners with  properly advising clients about the latest developments in tax controversy  issues.

We have an excellent line up of programs –

Criminal Tax Workshop
Featuring Sandra Brown

The Tax Lawyers’ Guide to Bankruptcy
Featuring Robert Horwitz

Taking Cryptic out of Crypto
Featuring Jonathan Kalinski

Click Here for more information.

I am somewhat remiss in not writing sooner about the Supreme Court’s decision in Boechler, P.C. v. Commissioner, 142 S.Ct. 1493 (April 21, 2022).  It may be the most significant procedural tax case in recent years, addressing whether time deadlines in the Internal Revenue Code (in this case the deadline for filing a collection due process (CDP) petition) are jurisdictional.  To get to the punchline, the deadline for filing a CDP petition is not jurisdictional.  Keith Fogg at Procedurally Taxing, posted a series of informative blogs about Boechler and its potential ramifications in the weeks following issuance of the Supreme Court’s opinion.  You may want to read his take on the opinion.  I’ll give you my take.

 The facts in this case are simple.  Boechler, P.C., is a Fargo, North Dakota law firm. The IRS assessed an intentional disregard penalty against Boechler.  Subsequently, the IRS issued a CDP levy notice.  Boechler made a timely request for a hearing with the Office of Appeals.  Appeals issued a determination sustaining the IRS’s proposed levy action.   Boechler had 30 days within which to petition the Tax Court for review of the determination.  It filed its petition one day late.  The Tax Court dismissed the petition for lack of jurisdiction and the Eighth Circuit affirmed.  967 F.3d 760 (2020).  This deepened a circuit split over the question of whether the CDP statute’s deadline for petitioning the Tax Court was jurisdictional.  Compare Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018) (deadline is jurisdictional) with Myers v. Commissioner, 928 F.3d 1025 (D.C. Cir. 2019) (deadline is not jurisdictional).  The Supreme Court granted certiorari to resolve the circuit split.

Deadlines to sue the United States are viewed as a condition to the waiver of sovereign immunity.  As such, courts have traditionally held such waivers to be jurisdictional.  As a result, if a suit against the United States or a federal agency was filed late, the court had no jurisdiction and the case had to be dismissed.  This began to change with the Supreme Court’s decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), where the Court held that (i) there was a rebuttable presumption that deadlines to sue the government can be equitably tolled, (ii) the deadline for bringing suit against the Department was subject to equitable tolling, (iii) that equitable relief, such as equitable tolling, was only applied sparingly, and (iv) the petitioner did not fall within the narrow category of cases where equitable tolling applied.

Beginning in the early 2000s, the Court began addressing the question of whether deadlines in a host of statutes for suing the Government were jurisdictional.  If they were, equitable tolling, waiver, and similar concepts would not apply.  The Court fashioned a rule that statutory deadlines are presumptively not jurisdictional and are subject to equitable tolling unless Congress has made a clear statement that the deadline is jurisdictional.   United States v. Kwai Fun Wong, 575 U.S. 402, 409 (2015).  Absent such a clear statement, courts are to treat the deadline as not jurisdictional.  Sibelius v. Auburn Re’l Med. Center, 568 U.S. 145, 153 (2012).

It was against the backdrop of this line of cases that the Supreme Court considered whether the 30-day deadline for filing a CDP petition is jurisdictional and, if it is, whether it is subject to equitable tolling.  If the deadline was jurisdictional, it could not be waived, it could be raised at any time, including by the court sua sponte, and was not subject to equitable exceptions.  A procedural requirement is treated as jurisdictional “only if Congress ‘clearly states’ that it is.”  A clear statement does not require the use of magic words.  Instead, the courts are to apply traditional rules of statutory construction to determine whether a filing deadline or other procedural requirement is jurisdictional.  The statutory language in question, IRC sec. 6330(d)(1), reads:

The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).

The narrow question was to what did the parenthetical phrase apply?  Did “such matter” refer to the phrase “petition the Tax Court for review of such determination,” as Boechler argued, or did it refer to the entire portion preceding the parenthetical, as the Commissioner argued.  The Court stated that the statutory language did not clearly mandate the jurisdictional meaning, since there was no obvious antecedent for the phrase “such matter.”  The phrase “such matter” could refer to more than just “petition” or the entire portion of the sentence preceding the parenthetical.  It could refer to Appeals’ determination or the list of “matters” that can be considered in a CDP hearing, neither of which would make the filing deadline jurisdictional.  The Court pointed out that other sections of the Code, such as sec. 6404(g)(1) (interest abatement) and sec. 6015(e) (innocent spouse relief), clearly tie the Tax Court’s jurisdiction to the taxpayer meeting a filing deadline.  This was not the case here.

The Court acknowledged that the Commissioner’s interpretation was plausible, but this was not enough to make the filing deadline clearly jurisdictional.  “To satisfy the clear statement rule, the jurisdictional condition must be just that: clear.”  The Commissioner’s interpretation was not “clear.”  It was not enough that the jurisdictional grant and the filing deadline appear in the same sentence.  Proximity of the grant of jurisdiction and the filing deadline is not enough because “the important feature is the one that is missing here: a clear tie between the deadline and the jurisdictional grant.”

The Commissioner pointed to sec. 6330(e)(1), which gives the Tax Court jurisdiction to enjoin a levy or other collection proceeding only if “a timely petition has been filed under subsection (d)(1).”  According to the Court, this provision may make the Commissioner’s argument better, but his “interpretation must be not only better, but clear.”  Again, it was not clear that sec. 6330(d)(1)’s filing deadline was jurisdictional.

The Commissioner’s final and “weakest” argument was that when sec. 6330 was enacted, lower courts had consistently interpreted the analogous deficiency petition provisions of sec. 6213(a) as jurisdictional.  The problems with this argument were that (i) the cases all predated the Supreme Court’s campaign “to bring discipline” to use of the term “jurisdictional” and (ii) none were Supreme Court cases.

Nonjurisdictional limitations are presumptively subject to equitable tolling and there was nothing that would rebut the presumption that the filing deadline of sec. 6330(d)(1) was subject to equitable tolling.  Sec. 6330 was easily distinguishable from the deadline for filing a refund claim under sec. 6511, which the Court in United States v. Brockamp, 514 U.S. 347 (1997), held was not subject to equitable tolling.  Sec. 6511 repeated the deadline for filing refund claims several times and contained a detailed list of six exceptions to the filing deadline.  This indicated that there were no implied exceptions.  Sec. 6330, on the other hand, contained only one statutory exception and played a far more limited role in the tax assessment and collection process.

The Court remanded the case for further proceedings, i.e., to determine whether equitable tolling applied in Boechler’s case.

The Court’s discussion of sec. 6213(a) raises the question whether the 90 (or 150) day deadline for filing a petition to redetermine a deficiency is jurisdictional.  Prior to Boechler, the Tax Court and all Courts of Appeal that considered the issue, held that it was jurisdictional.  Most recently, the Ninth Circuit in Organic Cannabis Foundation, LLC v. Commissioner, 962 F.3d 1082, rehearing den. 2020 U.S. App. LEXIS 27583 (2020), rejected the argument that under the Supreme Court’s recent line of cases on filing deadlines the deadline for filing a Tax Court petition was not jurisdictional.  I believe this decision was wrong.

The language of sec. 6213(a) does not contain a “clear statement” that the deadline is jurisdictional.  There are five sentences in that subsection.  The first sentence provides that a taxpayer “may” file a petition during the 90-day period following the issuance of a notice of deficiency.  The second sentence states that the IRS may not assess or collect a deficiency unless a notice of deficiency has been mailed to the taxpayer, and the IRS may not assess or collect a deficiency during the 90-day filing period or while a Tax Court proceeding is pending. The third sentence states a taxpayer may sue to enjoin improper assessment or collection of a deficiency. The fourth sentence states the Tax Court lacks jurisdiction to enjoin a proceeding or order a refund unless a petition is timely filed. Finally, the fifth sentence states any petition filed with the Tax Court on or before the last day specified for filing by the IRS in the notice of deficiency shall be treated as timely filed. 

The provision granting the Tax Court jurisdiction over a petition challenging a notice of deficiency is in sec. 6214(a), which states:

Except as provided by section 7463, the Tax Court shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any additional amount, or any addition to the tax should be assessed, if claim therefor is asserted by the Secretary at or before the hearing or a rehearing.

This section does not tie the Tax Court’s jurisdiction to a timely filed petition.  Nor does the fourth sentence of sec. 6213(a) make the filing of a petition within 90-days of the notice of deficiency jurisdictional.  If the court holds that the deadline was equitably tolled, or that the Commissioner waived the defense that the petition was untimely, it is timely and the Tax Court would have jurisdiction to enjoin collection or order a refund.

As Keith Fogg pointed out in one of his blog posts, treating the filing deadline in sec. 6213(a) as not jurisdictional will not impose any additional work on either the Tax Court or IRS Counsel.  Currently if the Tax Court sua sponte raises the issue of whether a petition was timely, or if the Commissioner moves to dismiss because the petition was not timely, the taxpayer is given an opportunity to respond.  If the taxpayer establishes that the petition was filed timely, the petition will not be dismissed.  If the deadline is not jurisdictional, unless the taxpayer establishes that either (a) the petition was filed within the 90-day period or (b) grounds exist for tolling the deadline, the petition will be dismissed. 

The Tax Court will soon address whether sec. 6213(a)’s filing deadline is jurisdictional in Hallmark Research Collective v. Commissioner, Docket No. 21284-21, where on May 2, 2022, the taxpayer filed a motion to vacate an order dismissing its petition for lack of jurisdiction.  The Tax Court has ordered the Commissioner to respond to the motion by June 23, 2022, and the taxpayer to reply by July 22, 20122.  Judge Gustafson is assigned to rule on the motion.

Other provisions of the Code will be impacted by the Boechler decision.  The deadlines for filing suits for refund of tax under sec. 7422 and suits for wrongful levy under sec. 7426 are contained in sec. 6532, which does not mention jurisdiction and nothing in either sec. 7422 or 7426 refers to the period for filing suit contained in sec. 6532.  Other sections include sec. 6234 (judicial review of BBA partnership adjustments), former sec. 6226 (judicial review of TEFRA partnership adjustments), sec. 7428 (declaratory judgment action to determine status as a sec. 501(c)(3) organization), sec. 7429 (judicial review of jeopardy and termination assessments), sec. 7431 (action for illegal disclosure or return information), and sec. 7436 (proceeding to determine employment status).  Many of these sections do not have any language in them tying jurisdiction to the time for filing an action. 

Both IRS counsel and DOJ Tax Division attorneys have been trained to view the filing deadlines for judicial proceedings against the Government as jurisdictional.  If a plaintiff (in district court or Court of Federal Claims) or a petitioner in a Tax Court proceeding did not file the complaint or petition by the statutory due date, the attorney would file a motion to dismiss for lack of jurisdiction and the court would dismiss the case.  This could be done at any time during the case, even while an appeal was pending.  In United States v. Brockamp, 519 U.S. 347 (1997), the Court held that the time period for filing a claim for refund with the IRS was jurisdictional, based upon an analysis of the language of Code sec. 6511.  We can anticipate that the IRS in Tax Court and DOJ in district courts, the Court of Federal Claims and courts of appeal will argue that Boechler is inapplicable to cases brought under provisions of the Code other than sec. 6330.  Whether the courts will reject such arguments remains to be seen, but Boechler demonstrates that the Supreme Court is “not inclined to carve out an approach … good for tax law only.”  Mayo Foundation v. United States, 562 U.S. 44, 55 (2011).  Get used to it.

Robert S. Horwitz is a Principal at Hochman Salkin Toscher Perez P.C., former Chair of the Taxation Section, California Lawyers’ Association, a Fellow of the American College of Tax Counsel, a former Assistant United States Attorney and a former Trial Attorney, United States Department of Justice Tax Division.  He represents clients throughout the United States and elsewhere involving federal and state administrative civil tax disputes and tax litigation as well as defending clients in criminal tax investigations and prosecutions. Additional information is available at

Evan Davis represents a law firm in a cutting-edge dispute about whether communications with a lawyer for both legal advice and other reasons are protected by the attorney client privilege.  This is the second legal privilege case that Evan has handled in the trial court and on appeal in the Ninth Circuit, and the present case is being considered by the U.S. Supreme Court as there are now different tests applied in three judicial circuits. 

The U.S. Chamber of Commerce and legal groups recently weighed in to support Evan’s brief, and urged the U.S. Supreme Court to find Evan’s client’s (a tax law firm) communications are protected by attorney-client privilege and that the Ninth Circuit ruling to the contrary risks eroding the bedrock legal principle.

The Chamber of Commerce, the California Lawyers Association, and the Washington Legal Foundation, “told the justices in amicus briefs that they should wade into the dispute over the applicability of attorney-client privileges to client communications involving both legal and nonlegal advice.”

“Evan J. Davis of Hochman Salkin Toscher Perez PC, told Law360 on Wednesday that the amicus briefs effectively addressed the practical ramifications of the Ninth Circuit decision. He’s hopeful that the justices will take on the case, he added.”

Click Here to read the article. You need to be registered to read the article. If you’re not already registered, just fill in the form to get access.

We are pleased to announce that Michel Stein along with William Abrams, Mark Pariser, and Michael Hacia will be speaking at the upcoming CalCPA Entertainment Industry Conference on “What Everyone Should Know About California Residency” on Tuesday, June 21, 2022, 8:35 a.m. – 9:35 a.m. (PST).

Click Here for more information.

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