Author Topic: New court decision destroys the last element of justice system  (Read 154 times)

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Offline rangerrebew

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Offline EC

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Re: New court decision destroys the last element of justice system
« Reply #1 on: April 21, 2014, 07:10:54 AM »
We have compared the current trajectory of the USA to 1930s Germany a fair bit recently.

This decision by the courts has shifted the goalposts way back - the US is now looking more and more like 11th Century England.
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Online Oceander

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Re: New court decision destroys the last element of justice system
« Reply #2 on: April 21, 2014, 02:13:17 PM »
I don't disagree with the basic premise that so-called fundamental rights like due process, presumption of innocence, and the like, only matter if one has the internal and financial fortitude to make it to an appeals court, and the smarts to hire a trial attorney who properly preserves a record for appeal.

that being said, warrants are always issued in a one-sided affair where only the government gets to have its say and this would be the case even if the criminal justice system faithfully observed everyone's rights down to every last punctilio.  the problem with FISA warrants is that its almost impossible for the target to get the warrant reviewed even after the warrant has been executed.  it's the lack of after-the-fact judicial review that makes FISA warrants so subject to abuse.

The tax court case is interesting and a little curious, but i think it's ultimately unsound, or at least that its conclusions are premature.  the basic idea:  that you give up your attorney-client privilege if you put those discussions in issue - typically by saying something along the lines of "I did this because my attorney said it was ok."  and if one is defending against penalties in a tax case on the ground that one reasonably relied on the advice of a tax professional, then the rule clearly applies:  there is no way to know if your reliance on that advice was reasonable unless we can see what that advice was.

but that isn't the case here, at least not at the stage of the matter.  The defense the partnerships have raised is that they - i.e., their internal staff conducted a thorough analysis based on the law and the facts and came to the asserted conclusions - and have not raised any issue with respect to what their attorneys told them.  Whether their attorneys' advice contradicts the position they took, or not, is irrelevant at this point because it is perfectly reasonable to believe that after the partnerships got negative advice from their attorneys, they did an even better job of analysis, both factual and legal, and thus in good faith arrived at conclusions different from those their attorneys reached.

since they have asserted that they did all the work themselves, the proper avenue of inquiry should be to force the partnerships to prove that they in fact did sufficient legal and factual analysis to arrive at the conclusions in question.  And for that, the IRS would be entitled to get discovery of all of their internal papers relevant to the matter including not only accounting work papers but also all emails from employees up to senior staff related to that question.  son-of-BOSS transactions are not easy or simple to set up or analyse, so if the partnerships did not actually do their own research and analysis, that would become evident fairly quickly.  Also, emails from employees might be quite revealing as to whether they were doing actual analysis themselves or were just trying to replicate what the law firm had done on its own.  only if the IRS managed to sustain the burden of persuading the court that the partnerships could not have reasonably done the actual analysis themselves should the contents of their attorney's opinion letters become relevant under the implied waiver doctrine.  of course, by that time, getting those opinions would probably be irrelevant because it would be obvious that whatever analysis the partnerships did on their own - as they claim - was not sufficient and thus that relying on their own analysis was unreasonable, and thus the IRS would have won on the issue of reasonable belief even without getting a look-see at the opinions.

it seems to me that this is a case of lazy irs attorneys who don't want to actually do the hard work of proving their own case and of a court that is pissed off at the taxpayers and is willing to let the IRS have its way because the court is already subjectively convinced that the taxpayers are not being honest.  the taxpayers' attorneys in this case have probably also dragged their feet and done a lot of cute things to confuse the issues, and the court has probably gotting pissed at them as well - the sanctions issue definitely implies that.


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