On January 9, 2017, the US Supreme Court denied the petitions for certiorari filed in two federal tax cases.

In Chemtech Royalty Assoc. LP v. United States, Sup. Ct. Dkt. No. 16-810 (2016), 823 F.3d 282 (5th Cir. 2016),

Dow Chemical Co. challenged the decisions by the US Court of Appeals for the Fifth Circuit finding that the partnerships were a “sham” that should be disregarded for tax purposes and imposing the 40 percent substantial understatement penalty. In its petition, Dow complained of the “especially stringent” scrutiny applied by the Fifth Circuit to review a taxpayer’s decision to use the partnership form. “Applying that improper presumption against partnerships, the court became the first court in the nearly seventy years since Culbertson [337 US 733 (1949)] to hold that an investor that contributes its own capital in exchange for an equity interest in the partnership can be disregarded for tax purposes if its equity stake, like preferred stock, is relatively protected against fluctuations in profits and losses.”

The US Supreme Court also denied the petition filed by Dynamo Holdings Ltd. Partnership, Dynamo Holdings Limited Partnership v. United States, Sup. Ct. Dkt. No. 16-358 (2016) 816 F.3d 1310 (11th Cir. 2016),seeking review of an Eleventh Circuit decision that upheld the enforcement of IRS summonses. Dynamo asked the Supreme Court to consider whether it was unfairly denied a request to amend the case submission to support an evidentiary hearing under then new standard established by this Court in an earlier appearance of this case. Dynamo complained that “this Court held for the first time, United States v. Clarke, 573 US ___, 134 S. Ct. 2361 (2014), that an individual or entity that receives an IRS summons is entitled to a limited evidentiary hearing to obtain discovery to support the claim that the summons should be quashed where that party points to specific facts or circumstances plausibly raising an inference of bad faith.” In contrast, “[W]hen this case began in 2011, the standard in the Eleventh Circuit was that an individual or entity was entitled to an evidentiary hearing based upon the mere allegation of improper purpose . . . [and Dynamo was found by] the Eleventh Circuit to have satisfied that standard. On remand from Clarke, the district court denied Petitioners request to make amended submissions to meet the new standard, and the district court and Eleventh Circuit ruled that Petitioners’ former submissions did not meet the new standard.”

Practice Tip:

In deciding whether to file a petition for certiorari, the party should consider the likelihood of the petition being granted and whether the Court’s denial of the petition will result in an adverse negative inference for a continuing issue that is being litigated in other jurisdictions. These cases illustrate how difficult it is to have the Supreme Court grant review. The Supreme Court accepts few petitions each year and in the absence of a split in the circuits, a petition is unlikely to succeed unless the party is able to persuade the Court that the circuit court decision is in direct conflict with established Supreme Court principles. Here, Chemtech sought to persuade the Court that the “stringent scrutiny” was contrary to long-standing Supreme Court precedent. Dynamo’s petition was based on equitable principles, seeking an opportunity to amend its pleadings to assert the facts necessary to satisfy the new legal standard imposed by the Court in it prior review.