Supreme Court 2020s: on Corporations

Brett Kavanaugh: Company can challenge onerous IRS reporting requirement

KAVANAUGH wrote a concurrence, in which he characterized the Court's opinion as having "carved out a new exception" to existing case law. "Pre-enforcement suits challenging regulations backed by tax penalties are ordinarily not barred, even though those suits, if successful, would necessarily preclude the collection or assessment of what the Tax Code refers to as a tax."

Elena Kagan: Company can challenge onerous IRS reporting requirement

Kagan wrote, "Simply stated, this suit attempts to get out from under the (non-tax) burdens of a (non-tax) reporting obligation. Of course, if the suit succeeds, CIC will never have to worry about the tax penalty; once the reporting duty disappears, the sanction becomes irrelevant. But that is the suit's after-effect, not its substance. The suit still targets the reporting mandates--the independently onerous reporting mandates--of the Notice itself."

Sonia Sotomayor: Company can challenge onerous IRS reporting requirement

SOTOMAYOR issued a concurrence in which she clarified, "I write separately to highlight that the answer might be different if CIC Services were a taxpayer instead of a tax advisor." Unlike a tax advisor, Sotomayor explained, individual taxpayers may treat a noncompliance penalty "as a rough substitute for the tax liability she has evaded by withholding required information."

Clarence Thomas: Upheld "double windfall": plain text of tax law permits it