We have previously blogged on the criminal tax proceedings related to former US Tax Court Judge Kroupa (see here and here). In October 2016, Judge Kroupa pleaded guilty to multiple tax criminal charges related to her tax returns and interactions with the Internal Revenue Service. Based on sentencing guidelines, the recommended sentence was between 30‒37 months. Judge Kroupa and the government submitted filings on the appropriate sentence, in which Judge Kroupa provided detailed reasons why she believed the court should impose a sentence of 20 months imprisonment. These filings can be found here and here. According to a report in today’s BNA Daily Tax Report, the court sentenced Judge Kroupa to 34 months in prison and ordered her to pay $457,000 in restitution, which is owed jointly with her former husband. She was also sentenced to three years of supervised release. Judge Kroupa’s former husband was sentenced to 24 months in prison and one year of supervised release.
A Lot Is Going on at the Tax Court
The US Tax Court is alive with action these days. First, two new judges will start soon after they are sworn in. Ms. Elizabeth Copeland and Mr. Patrick Urda were nominated on August 2017 for 15-year terms to fill openings created by retiring tax court judges. They were confirmed on August 28, 2018. Ms. Copeland will replace Judge James S. Halpern, who retired from the court on August 28, 2018, but continues to perform judicial duties as a Senior Judge on recall. Mr. Urda will replace Judge Diana L. Kroupa, who retired from the court in June 2014.
Second, the Tax Court announced that Senior Judge Carolyn P. Chiechi will retire, effective October 19, 2018. Judge Chiechi was appointed by President George H.W. Bush October 1, 1992, and took senior status in 2007. Any cases submitted or assigned to Judge Chiechi will be reassigned.
Finally, Senior Judge David Laro passed away on September 21, 2018. More information about Judge Laro can be found on the TaxProf Blog. Judge Laro started at the Tax Court in 1992 and was involved in several important cases. In addition, he is well known among practitioners for his use of concurrent expert testimony (also referred to as “hot tubbing”). We have previously written about Judge Laro’s use of hot tubbing here.
Prior coverage of Tax Court nominations can be found in our previously shared articles.
President Trump to Nominate Greaves to Tax Court; Senate Confirms Copeland and Urda
On August 27, 2018, President Trump announced his intent to nominate Mr. Travis A. Greaves to serve as a judge on the United States Tax Court (Tax Court). This marks the fifth new person that President Trump has nominated to the Tax Court since becoming president, joining Elizabeth Copeland, Patrick Urda, Courtney Dunbar Jones and Emin Toro. President Trump also nominated for reappointment current Tax Court Judge Mark Holmes. To date, two of the five nominees—Ms. Copeland and Mr. Urda—have been approved by the Senate Finance Committee and confirmed by the Senate. No action, however, has been taken on the other nominees.
Mr. Greaves currently serves as Deputy Assistant Attorney General for Appellate and Review in the US Department of Justice Tax Division where he oversees all civil tax appellate litigation, including appeals from the US Tax Court. He has held that role since May 2017. From January 2017 to May 2017, Mr. Greaves was a partner at Greaves & Wu, LLP, and from September 2013 to January 2017, he was a lawyer at Caplin & Drysdale, Chartered, where his practice focused on civil and criminal tax controversy matters. From May 2011 to January 2013, he was an associate at Reed Smith LLP. Additionally, from September 2009 to May 2011, Mr. Greaves was an attorney advisor at the US Tax Court for Judge Diane Kroupa. From September 2010 to January 2015, he served as an adjunct professor at Georgetown University Law Center. Mr. Greaves received his BA from the University of Tennessee, his JD, cum laude, from South Texas College of Law, and an LLM in Taxation, with distinction, from Georgetown University Law Center.
President Trump Nominates Copeland and Urda to US Tax Court
On August 3, 2017, President Donald Trump nominated two judges to the US Tax Court. The nominations were received in the US Senate (Senate) and referred to the Committee on Finance.
One of the nominees, Elizabeth Copeland, was previously nominated by President Barack Obama. Her previous nomination expired with the conclusion of the 114th Congress in January 2017. The Committee on Finance unanimously approved her previous nomination, but the nomination was never voted on by the full Senate. Copeland is a partner at the law firm Strasburger & Price, LLP. If confirmed, she will be assuming the position left vacant by the 2015 retirement of Judge James S. Halpern. Judge Halpern still performs judicial duties as a Senior Judge on recall.
The second nominee, Patrick Urda, is counsel to the deputy assistant attorney general in the US Department of Justice’s Tax Division. If confirmed, he will be assuming the position left vacant by the 2014 retirement of Judge Diane L. Kroupa. We previously covered the circumstances of Judge Kroupa’s retirement and related criminal proceedings.
Former Tax Court Judge Pleads Guilty to Tax Crimes
Following up on our prior coverage (see here), former US Tax Court Judge Diane L. Kroupa pleaded guilty on Friday to multiple tax criminal charges related to her tax returns and interactions with the Internal Revenue Service. The government stipulated during the hearing that all charges except defrauding the United States would be dropped if Kroupa agreed to be sentenced on the fraud charge. Based on sentencing guidelines, the recommended sentence is between 30-37 months, although the judge may ultimately sentence Kroupa to more or less time. A copy of the Change of Plea Hearing can be found here.
Taxpayer Argues First Circuit Should Not Follow Tax Court Decision by Judge Indicted for Tax Fraud
On August 15, 2016, the taxpayer in Santander Holdings USA filed its brief to the US Court of Appeals for the First Circuit in its case involving what the Internal Revenue Service (IRS) has labeled a “foreign tax credit generator” transaction. The taxpayer prevailed at the district court level and the IRS appealed that decision, arguing that the lower court’s opinion was contrary to existing precedent in the Tax Court and other appellate courts. Much has been written about these cases and the issue presented, but this post focuses on an interesting argument raised by the taxpayer regarding the weight to be afforded to a prior Tax Court opinion.
The taxpayer’s brief argues that the Tax Court opinion in Bank of New York Mellon should not be followed because “the judge in that case—Judge Diane Kroupa—faced a disabling conflict when she rendered” the opinion due to the fact that she was indicted for tax fraud in April 2016 and was under audit by the IRS and allegedly committing further tax fraud at the time she was considering the Bank of New York Mellon case. Citing an opinion by the US Court of Appeals for the Ninth Circuit, the taxpayer argued that the alleged misconduct directly implicated the character and integrity of Judge Kroupa and that the other appellate opinions on this issue heavily relied on her factual findings in deciding their cases. It further argued that the government’s reliance on “Judge Kroupa’s defective factual findings, [which were] made in a tainted proceeding … should be given no weight here.” Finally, the taxpayer, referencing the Eaton case, stated that, “[r]ecognizing Judge Kroupa’s inherent conflict of interest in any case, the Tax Court has already permitted one taxpayer to move for reconsideration more than three years out of time.” We have previously discussed the indictment of Judge Kroupa here and here.
It remains to be seen how the Tax Court will act in Eaton, as the parties continue to brief the matter raised in the motion for reconsideration, and what reaction the government and the First Circuit will have to the taxpayer’s argument in Santander Holdings USA. We will continue to follow these matters and provide updates in the future.
Tax Court Adopts Rules for Judicial Conduct and Judicial Disability Complaints
In a June 14, 2016 press release (available here), Chief Judge L. Paige Marvel of the United States Tax Court announced the adoption of rules for judicial conduct and judicial disability complaints. The rules conform with the Rules for Judicial Conduct and Judicial Disability Proceedings promulgated by the Judicial Conference of the United States. Links to the rules can be found here.
On a somewhat related point, at least one taxpayer has filed a motion for reconsideration related to an unfavorable ruling made by former Judge Diane L. Kroupa. It remains to be seen how the Tax Court will deal with that motion and the fall-out from Judge Kroupa’s criminal indictment for tax evasion while she was a Tax Court judge. Prior coverage of Judge Kroupa’s indictment for tax evasion can be found here.
Senate Finance Committee Approves Tax Court Nominees Copeland and Stoll
Senate Finance Committee Ranking Member Ron Wyden (D-Oregon) issued an April 18, 2016 statement noting the committee’s approval of Tax Court nominees Elizabeth Copeland and Vik Stoll. In 2015, President Obama nominated Copeland and Stoll to be judges at the US Tax Court.
Copeland is a partner at the law firm Strasburger & Price, LLP. If confirmed, she will be assuming the position left vacant by the 2014 retirement of Judge Diane L. Kroupa.
Stoll is Deputy Chief Administrative Officer and Director of Collections for Jackson County, Missouri. If confirmed, he will be assuming the position left vacant by Judge James S. Halpern, who took senior status in late 2015.
Former Tax Court Judge Indicted for Tax Evasion
On April 4, 2016, the US Attorney for the District of Minnesota announced a federal grand jury indictment charging former US Tax Court Judge Diane L. Kroupa and her husband with conspiring to evade the assessment of taxes. In a multi-count indictment, both were charged with conspiracy, tax evasion, making and subscribing false tax returns and obstruction of an IRS audit. According to the indictment and documents filed in court, Kroupa and her husband fraudulently claimed personal expenses as business deductions, failed to report income from a land sale, and falsely claimed financial insolvency. They also allegedly concealed certain documents from their taxpayer preparer and an IRS agent during an audit, and caused misleading documents to be delivered to the IRS. The indictment alleges that between 2004 and 2010, Kroupa and her husband purposely understated their taxable income by approximately $1 million and the amount of tax owed by at least $400,000.
Judge Kroupa was appointed to the Tax Court in June 2003, and retired from the court in June 2014. While she was on the bench, Kroupa was very active—the Tax Court’s website indicates that she authored 234 opinions, including 31 division or “T.C.” opinions, 180 “memorandum” opinions, and 23 “summary” opinions. Some of her more notable opinions were Canal Corp., Bank of NY Mellon, BMC Software, Samueli and Eaton.
Here is a link to a press release issued by the U.S. Department of Justice: Former United States Tax Court Judge and Husband Indicted for Conspiracy to Commit Tax Evasion and Obstruction of an IRS Audit.