Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 1 of 8 PageID #: 157

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 1 of 8 PageID #: 157 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA WESTERN DIVISION BATTLE FLAT, LLC, a South Dakota, Limited Liability Company, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. Civil Action No. 5:13-5070-JLV REPLY MEMORANDUM IN SUPPORT OF THE UNITED STATES MOTION FOR SUMMARY JUDGMENT Battle Flat, LLC initiated this action to seek a refund of penalties the IRS assessed against it under 26 U.S.C. 6698 for its failure to file partnership tax returns for 2007 and 2008 on or before the filing deadlines. Battle Flat admits that it violated Section 6698 in both years and offers insufficient grounds for why Section 6698 s penalty provisions should not apply. Although Section 6698 does not codify any exception to the penalty, the legislative history of the statute and a Revenue Procedure (Rev. Proc. 84-35, issued by the IRS to apply Section 6698 s legislative intent, provides for a reasonable cause exception to penalties. That reasonable cause exception requires individual partners of a small partnership such as Battle Flat to report the tax consequences of the partnership through their own individual tax returns. Plaintiff admits that it cannot meet the express requirements of Rev. Proc. 84-35, which mandates that in order for the reasonable cause exception to apply, all partners must timely file their individual income tax returns. Battle Flat s partners failed to meet this requirement in both 2007 and 2008 and, in some instances, filed their tax returns years after deadlines. Unable to meet the conditions of Rev. Proc. 84-35, Plaintiff disregards applicable case law applied to 1

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 2 of 8 PageID #: 158 Revenue Procedures and asks this Court to invalidate or entirely disregard Rev. Proc. 84-35. Battle Flat then rests its claims for refund solely on an implausible reading of the statute s legislative history, arguing that partners can satisfy the stated legislative intent of Section 6698 (i.e., that full reporting of the partnership income and deductions by each partner is adequate by filing individual income tax returns at any time. H. Rep. No. 95-1445, 95 th Cong. 2d Sess., at 249 (1978. As addressed below, Battle Flat s position and its assertion that the United States should be barred from contesting Plaintiff s claims for 2007 and 2008 penalty refunds because the IRS did not assert penalties in 2006 and 2009, has no merit. Accordingly, summary judgment should be granted to the United States. ARGUMENT I. Rev. Proc. 84-35 is at least entitled to Skidmore deference, thereby precluding Plaintiff s claims for refund. Plaintiff incorrectly contends that IRS Revenue Procedures are entitled to no deference by a court. At a minimum, Rev. Proc. 84-35 is persuasive authority, including its express condition that the reasonable cause exception for Section 6698 penalties requires timely filing of the partners individual income tax returns. To invalidate Rev. Proc. 84-35 or eliminate this timeliness requirement as Plaintiff suggests would abolish any meaningful mandate called for in Section 6698 s legislative history for small partnerships to adequately report their tax liabilities through individual partner returns in lieu of timely filed partnership returns. 1 1 Given Plaintiff s assertion that Rev. Proc. 84-35 should given no deference, it is unclear under what legal basis Battle Flat seeks a refund. Plaintiff cites no authority that the legislative history of 26 U.S.C. 6698 alone is sufficient grounds for obtaining a refund. 2

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 3 of 8 PageID #: 159 Although the Eighth Circuit has not addressed what level of deference trial courts should give to IRS Revenue Procedures either the higher deference standard set forth in Chevron v. U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984, or the vary[ing] deference standard, known as Skidmore deference Rev. Proc. 84-35 carries sufficient persuasive authority under the Skidmore standard to warrant the denial of Plaintiff s claims for refund. 2 See United States v. Mead Corp., 533 U.S. 218 (2001 (reaffirming Skidmore v. Swift & Co., 323 U.S. 134 (1944. Under the Skidmore standard, which Plaintiff fails to address in its summary judgment papers, courts apply a fair measure of deference to an agency administering its own statute, with the level of deference vary[ing] with circumstances. Mead, 533 U.S. at 227-28 (observing that agencies charged with applying a statute necessarily make all sorts of interpretive choices and holding that the well-reasoned views of the agencies implementing a 2 Some Circuits have acknowledged that Revenue Procedures interpreting federal statutes are entitled to deference, but have declined to rule whether to apply the Chevron or Skidmore standard. See, e.g., Tualatin Valley Builders Supply, Inc. v. United States, 522 F.3d 937, 941-942, 944 (9th Cir. 2008 (declining to rule whether Chevron deference was appropriate given that the Revenue Procedure at issue was entitled to deference under Skidmore. Judge O Scannlain opined in his concurring opinion that Revenue Procedures should be examined under the Chevron standard. Other Circuits have suggested that Skidmore deference should apply to Revenue Procedures. See, e.g., Fed. Nat l Mortgage Ass n v. United States, 379 F.3d 1303, 1308-09 (Fed. Cir. 2004 (suggesting that Skidmore deference may apply to Revenue Procedures, but no deference would be given to the Revenue Procedure in that case, Rev. Proc. 99-43, given that it contains no analysis of text or legislative history or any other relevant interpretive guidance ; U.S. Freightways Corp. v. Comm r, 270 F.3d 1137, 1141 (7th Cir. 2001 (deciding that full Chevron deference is not warranted in absence of notice and comment or comparable procedures, but informal agency statements receive more flexible respect, citing Mead; American Express Co. v. United States, 262 F.3d 1376, 1382 (Fed. Cir. 2001 (noting that Revenue Procedures probably would not be entitled to Chevron deference, citing Mead. Treasury Regulations based on the Internal Revenue Code are examined under the Chevron standard, which requires courts to determine whether Congress has directly addressed the precise question at issue, and, if not, to only disturb an agency rule if it is arbitrary or capricious in substance or manifestly contrary to the statute. Mayo Found. for Med. Educ. and Research v. United States, 562 U.S., 131 S.Ct. 704, 711, 714 (2011 (quotations omitted. 3

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 4 of 8 PageID #: 160 statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance (quotation omitted. This fair measure of deference includes review of a Revenue Procedure s thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. Id. at 228 (quoting Skidmore, 323 U.S. at 140. Courts may also look to the relative expertness of the agency. Id. (citing Aluminum Co. of America v. Cent. Lincoln Peoples Util. Dist., 467 U.S. 380, 390 (1984. As applied to Rev. Proc. 84-35, these factors weigh in favor of deferring to its requirement that partners file timely individual tax returns for the reasonable cause exception to apply to Section 6698 penalties. First, the stated Purpose, Background, and Required Procedures within Rev. Proc. 84-35 detail the rationale for the rule in context with other related provisions of the internal revenue laws. Second, Rev. Proc. 84-35 s predecessor, Rev. Proc. 81-11, addressed the reasonable cause exception to Section 6698 penalties and consistently included the same timel[iness] requirement. Third, given the overall technical complexity of federal tax law, the IRS possesses relative expertness in the application of the [Internal Revenue] Code to particular facts. Ammex, Inc. v. United States, 367 F.3d 530, 535 (6th Cir. 2004 (determining that IRS Revenue Ruling 69-159, which was unchanged for over three decades, is entitled to Skidmore deference. Moreover, the validity of [the] reasoning of Rev. Proc. 84-35 to require timely filing of individual partner returns is self-evident. Mead, 533 U.S. at 228. Admittedly, unlike Rev. Proc. 84-35, the legislative history of Section 6698 lacks specific language requiring timely filing of individual partner tax returns. This silence, however, is precisely why agencies such as the IRS, charged with applying a statute, necessarily make all sorts of interpretive choices. Id. at 227. 4

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 5 of 8 PageID #: 161 To exempt a partnership from Section 6698 penalties, it is reasonable to require partners of small partnerships to timely file their individual tax returns in place of the partnership s tax return so that someone timely reports the tax consequences of the partnership. In contrast, it is entirely unreasonable to apply this exception where, as in this action and as Plaintiff admits, some Battle Flat partners filed individual tax returns years after they were due and/or after Battle Flat already submitted its May 24, 2010 administrative claim to the IRS for refund of 2007 and 2008 penalties. Under Plaintiff s interpretation of reasonable cause, any small partnership could meet the exception if its individual partners eventually filed personal income tax returns, including years after the return filing deadlines, after initiating an IRS administrative refund claim for those penalties, and even after the partnership files a refund lawsuit in U.S. District Court. This interpretation directly conflicts with Rev. Proc. 84-35 and is inconsistent with the legislative history of Section 6698 calling for adequate reporting of taxes either by the partners or the partnership. II. Plaintiff s reliance on IRS actions in other tax years is misplaced and even if considered, those actions fail to support Plaintiff s claims for 2007-2008 refunds. Battle Flat also argues that because the IRS granted it relief from Section 6698 penalties in tax years 2006 and 2009 based on Rev. Proc. 84-35, it should prevail for tax years 2007 and 2008. Battle Flat cites no legal authority for why the IRS s treatment of the partnership s failure to file timely tax returns for 2006 and 2009 tax years not at issue in this case bears upon any interpretation of the reasonable cause exception. Moreover, there is no inconsistency. The removal of Battle Flat s 2006 penalty was not based on application of Rev. Proc. 84-35. As noted in IRS correspondence to Battle Flat produced by Plaintiff in this action, removal of the 2006 penalty was solely a one-time consideration available only for a first-time penalty 5

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 6 of 8 PageID #: 162 charge given Battle Flat s compliance history. See Declaration of Russell J. Edelstein ( Edelstein Decl., dated September 26, 2014, Exhibit 1. For the 2009 penalty, it is unclear whether Plaintiff contends that any Battle Flat partner failed to timely file an individual tax return for that year. Compare Plaintiff s Opposition Brief, p. 1 (Doc. No. 20 ( not all partners timely filed their income tax returns in those years [i.e., 2006-2009] with Plaintiff s Statement of Additional Undisputed Facts No. 2 (Doc. No. 19 (asserting untimely individual tax return filings only for 2006, 2007, and 2008 ; see also United States Response to Plaintiff s Statement of Additional Undisputed Facts (explaining how 26 U.S.C. 6103 bars the Government from disclosing taxpayer information of the individual Battle Flat partners for 2009 given that the 2009 tax year is not at issue in this action. If Battle Flat s partners timely filed individual tax returns in 2009, the IRS properly removed that Section 6698 penalty, and there is no inconsistency as Plaintiff alleges. Furthermore, if any of the partners failed to timely file a 2009 individual tax return, the IRS erroneously remove[d] Section 6698 penalties for that year. However, as the IRS explained to Battle Flat, IRS removal of 2009 penalties was based on [Battle Flat s] statement that [it] qualif[ies] for penalty relief under Rev. Proc. 84-35, and [t]he penalty will be reassessed if we later find that you do not qualify for relief, including if [a]ny partner filed late. Edelstein Decl., Exhibit 2 (IRS letter for Tax Period December 31, 2009, produced by Plaintiff in this action. Any IRS failure to verify that Battle Flat s partners did not timely file individual tax returns for 2009 to qualify for the reasonable cause exception under Rev. Proc. 84-35 does not preclude or otherwise estop the United States from opposing Battle Flat s claims for relief in this action. See, e.g., Tigrett v. United States, 213 Fed.Appx. 440, 449-50 (6th Cir. 2007 (noting that the the IRS s erroneous treatment of an issue one year does not preclude its 6

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 7 of 8 PageID #: 163 subsequent correction of its error in other tax years (citations omitted; Knights of Columbus Council No. 3660 v. United States, 783 F.2d 69, 73 (7th Cir. 1986 ( The doctrine of equitable estoppel is not a bar to the correction by the Commissioner of an error of law. ; Hawkins v. Comm r, 713 F.2d 347, 351-52 (8th Cir. 1983 ( even if the Commissioner erroneously may have accepted the tax treatment of certain items in previous years, he is not precluded from correcting that error in a subsequent year (citations omitted; see also United States Responses to Plaintiff s First Set of Interrogatories, Doc No. 18-2, p. 2 (citing case law, including Kliethermes v. United States, 27 Fed. Cl. 111, 114 (Fed. Cl. 1999, which holds that [e]ach tax year stands on its own and [t]he IRS may challenge matters even when it accepted similar matters in previous years. For these reasons, and those addressed in the United States memorandum in support of its motion, the Court should grant summary judgment in favor of the United States, dismiss all claims with prejudice, and grant such further relief as the Court deems proper. 3 3 Plaintiff also suggests that it might challenge the United States responses to Battle Flat s written discovery in order to further develop[] a record to support its claims if the Court denies the Government s summary judgment motion. (Plaintiff s Opp. Br., p. 2, n.1 (Doc. No. 20. Plaintiff never raised a discovery dispute with Government counsel prior to the close of discovery or the filing of the summary judgment motion. See Edelstein Decl., 1. Plaintiff fails to explain why it is first raising a dispute after the close of six-months of discovery, why it did not comply with the Court s Scheduling Order regarding discovery disputes, or how it can show good cause for reopening, repeating, and compelling discovery after summary judgment. See, e.g., Wagner v. City of St. Louis Dept. of Public Safety, 2014 WL 3529678, *4 (E.D. Mo. Jul. 16, 2014 (denying motion to compel after summary judgment given movant s failure to timely pursue the matter (citing Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717 (8th Cir. 2008; Henneman v. Fed. Check Recovery, 2011 WL 1900183, *3 (E.D. Wis. 2011 ( [f]aced with an objection to a discovery request, it is incumbent upon the requesting party to promptly pursue his remedies under Rule 37, and motions to compel filed after the close of discovery are almost always deemed untimely, especially when brought only after a motion for summary judgment is filed (citations omitted. 7

Case 5:13-cv-05070-JLV Document 21 Filed 09/26/14 Page 8 of 8 PageID #: 164 Respectfully submitted, BRENDAN JOHNSON United States Attorney TAMARA W. ASHFORD Acting Assistant Attorney General Tax Division DATED: September 26, 2014 /s/ Russell J. Edelstein f RUSSELL J. EDELSTEIN, MA #663227 Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 7238 - Ben Franklin Station Washington, D.C. 20044 Telephone: (202 616-2704 Fax: (202 514-6770 E-mail: russell.j.edelstein@usdoj.gov Counsel for Defendant CERTIFICATE OF SERVICE I hereby certify that on September 26, 2014, I electronically filed the foregoing with the Clerk of the Court through the CM/ECF system, which will send notice of such filing to all registered participants. /s/ Russell J. Edelstein RUSSELL J. EDELSTEIN U.S. Department of Justice d 8