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Legal Docket - How late is too late?

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WORLD Radio - Legal Docket - How late is too late?

The Supreme Court considers a case about tax filing deadlines


An American flag waves in front of the Supreme Court building on Capitol Hill in Washington, Nov. 2, 2020. Patrick Semansky/Associated Press Photo

MARY REICHARD, HOST: It’s Monday, February 28th and you’re listening to The WORLD and Everything in It. We thank you for listening! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

One ruling from the U.S. Supreme Court for you today: it came last week in a copyright dispute between two clothing companies.

The court ruled 6-3 to protect a company’s copyright. The majority said you’re not allowed to invalidate a copyright, merely by pointing out inadvertent errors in documents used to register the copyright.

The fight was over a fabric design on a jacket. One company said the other company’s copyright documents contained mistakes. Therefore, the argument went, the copyright wasn’t actually valid and so the fabric design was fair game.

But a majority of justices disagreed. The company challenging the copyright gave no evidence that the copyright holder knew its information was wrong.

The ruling overturns a decision of the U.S. Court of Appeals for the Ninth Circuit.

REICHARD: Also last week the justices accepted a new case, fast-tracked to be argued and decided this term.

It’s over the “Remain in Mexico” policy that former President Trump put in place. The policy requires asylum seekers at the southern border to stay in Mexico during the time the government works on their asylum applications.

President Biden rescinded the rule last year, but a lower court said the president violated federal law in rescinding it, and ordered it reinstated.

Now the high court will soon decide the matter.

EICHER: Alright. Now on to the last of oral arguments from January. Two of them.

The first one has to do with taxes. Founding Father Benjamin Franklin wrote about them back in 1789. In a letter to a French scientist, Franklin wrote: “Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”

Now, that idea had been expressed before, but Franklin’s is the most famous version.

And so we can say that along with the certainty of taxes is the certainty of death and deadlines.

REICHARD: Right, tax deadlines and deadlines related to deadlines, such as how late is too late?

Suppose you miss a filing deadline, the IRS imposes a penalty, and then says it will levy your bank account?

Suppose you respond in time but then the tax authorities say too bad, you lose anyway.

And then you respond to that with a petition to review the decision, but you’re a day past that particular deadline?

Here’s what the law in question says: “[A person] may within 30 days of a determination under this section, petition the Tax Court for review of that determination.”

But here’s a question: Is that 30-day time limit hard and fast, or is it subject to tolling? Meaning, can we pause the clock while working out the dispute?

EICHER: Sounds simple, but then if it were, it’d probably not be a matter for the Supreme Court.

The lawyer for the presumably late taxpayer argued that Congress didn’t intend a hard deadline under these circumstances. A natural reading supports her client. Here’s lawyer Melissa Arbus Sherry trying to make that point:

SHERRY: Congress enacted this collection due process regime in order to protect taxpayers from IRS abuses. It would not have included a rare and harsh jurisdictional deadline to close those courthouse doors.

REICHARD: Besides, if Congress meant a hard deadline, it would have said so outright. But it didn’t say that.

Here’s the IRS argument: Timely means 30 days from the time the IRS determines a matter, period. The taxpayer’s petition contesting that IRS determination did not arrive within that 30-day frame. It arrived on day 31.

That’s too late.

But Justice Stephen Breyer consulted a layman’s tool that leaned in favor of the tardy taxpayer.

BREYER: The law dictionary says equitable tolling is a court’s discretionary extension of a legal deadline. So they extended the legal deadline, therefore, it is timely.

“Equitable,” meaning fair to all parties. And Sherry for the taxpayer reminded the court of what’s really going on in many of these tax cases:

SHERRY: The majority of people are really asking for collection alternatives. They're saying there's a hardship. There’s a reason why you shouldn't levy on this particular piece of property. And a refund action after the fact once a levy's already occurred is not going to solve for any of those harms, which is what Congress was really trying to get at here.

But the lawyer for the IRS warned a ruling in favor of soft deadlines will create what an economist would call a perverse incentive—giving taxpayers a cause to misuse the deadlines. Something like deliberately filing a petition late, knowing you can assert the time limit tolled at some point in the past.

Procrastinators among us know this is true.

Justice Elena Kagan noted one guideline for writing laws called the “clear statement” rule. It says courts ought not interpret a statute in a way that will bring a particular result unless the statute makes it crystal clear its intent is to achieve that result.

And Justice Kagan revealed something rather unsettling:

KAGAN: If I have more than a suspicion that Congress has no idea what we're talking about in this area, that we keep on saying these words and presuming that Congress understands them, and I don't see any evidence that Congress really does. I mean, my gut is that Congress has never read any of our cases in this area. What should I do then?

This is an ongoing problem with the justices wanting to push Congress to do a better job in drafting laws. Some justices would prefer to focus on the equitable nature of a case, such as here, and favor the taxpayer.

I’d expect a narrow ruling here.

Ok, final case today. It’s a dispute over how to apply a federal law that reduced the penalties for crimes involving crack cocaine.

Back in the 1980s, it was common for courts to hand out much longer prison sentences for those convicted of using crack cocaine than for those convicted of using powder cocaine.

The effect of that was a racial disparity: Black people were more likely to use crack cocaine instead of powder cocaine and so they tended to be on the receiving end of harsher sentences.

About 30 years later, Congress attempted to remedy the disparity. It passed the Fair Sentencing Act in 2010 and former President Donald Trump made that law retroactive in 2018.

Here’s where the dispute originates:

A man named Carlos Concepcion received a 19 year prison sentence when he pleaded guilty to crack-cocaine charges. He received his sentence before the legal changes back in 2010 and 2018.

Concepcion wants a new sentencing hearing and argues that judges must consider how the law has changed.

But lower courts have denied him that, saying they’ve no obligation to re-evaluate his case.

The federal government argues that a district court may consider legal and factual developments after Concepcion’s conviction and it may order a reduced sentence. But it shouldn’t have to.

Even as the government agrees he is eligible for another hearing.

Justice Breyer wasn’t buying it.

BREYER: I thought Congress solved this. And the way I thought they solved it was they created a Sentencing Commission, and now, as discretionary, they said to the lower -- the district judge: Judge, you don't have to apply these rules, and if you don't, give us your reason. And then you can appeal, I thought, your sentence to the courts of appeals, who will decide whether your decision on these matters is reasonable. Now, I mean, that's been going on since 1986, and I don't think it's worked perfectly, but I don't think it's been a disaster.

Justice Samuel Alito wasn’t so sure about that in this exchange with government lawyer Matthew Guarnieri:

ALITO: One judge says, I think we should take these into account because I'm resentencing this person. I want to make sure it's appropriate for this human being who's standing before me. Another judge says, no, this person was sentenced before. I think that the --person should get the sentence that this person merited on the day when that person was sentenced. That would be permissible as well?

GUARNIERI: Yes.

ALITO: So why -- and so I -- I come back to a question Justice Gorsuch provided to you. Why in the world…would Congress want that?

Yet Justice Brett Kavanaugh worried about disparate treatment of other kinds of crimes that involve cocaine and the career criminal in this exchange with lawyer for Concepcion, Luke McCloud:

KAVANAUGH: And my concern about saying, “oh, yeah, you can come in and get the benefit of the change in the career offender guideline” is that what about the defendants who are in prison for armed robbery or what have you?

Those people don’t get the benefit of a reduction in prison time.

McCloud answered that the racial disparities in sentencing prompted Congress to create an individualized process so district courts could correct problems.

And, he pointed out a painful truth.

MCCLOUD: Our sentencing system isn't perfect and it relies on imperfect human beings to make these decisions about other imperfect human beings standing before them. And so there will be some variation in the decisions that get made. I think that's true under any possible rule in this case, though.

KAVANAUGH: I think that’s probably right.

Carlos Concepcion is set to be released in early 2024. He has support from groups typically on opposite sides, for example, the liberal ACLU and the conservative Americans for Prosperity.

And that’s this week’s Legal Docket.


WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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