John Crim v. Cmsnr. IRS ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2022 Decided May 2, 2023
No. 21-1260
JOHN M. CRIM,
APPELLANT
v.
COMMISSIONER OF INTERNAL REVENUE,
APPELLEE
Appeal from a Decision and Order of
the United States Tax Court
Joseph A. DiRuzzo, III argued the cause for appellant.
With him on the briefs was Daniel M. Lader.
Matthew S. Johnshoy, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
was Michael J. Haungs, Attorney. Julie C. Avetta, Attorney,
entered an appearance.
2
Before: WILKINS and WALKER, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
ROGERS.
Dissenting opinion filed by Circuit Judge WALKER.
ROGERS, Senior Circuit Judge: The Internal Revenue
Service assessed penalties pursuant to 26 U.S.C. § 6700 against
John Crim in connection with his promotion of a tax shelter
scheme. Crim filed a motion to recuse and disqualify all Tax
Court judges on separation of powers grounds. The Tax Court
denied the motion and granted summary judgment for the IRS,
rejecting Crim’s statute of limitations defenses. On appeal
Crim contends that the presidential power to remove Tax Court
judges, 26 U.S.C. § 7443(f), violates the separation of powers
and that assessment of Section 6700 penalties was time-barred
by 26 U.S.C. § 6501(a) or by 28 U.S.C. § 2462. Upon de novo
review of the Tax Court’s legal determinations, Byers v.
Comm’r, 740 F.3d 668, 675 (D.C. Cir. 2014), this court affirms
the Tax Court’s judgment for the following reasons.
I.
Judges of the Tax Court “may be removed by the
President[] after notice and opportunity for public hearing[] for
inefficiency, neglect of duty, or malfeasance in office.” 26
U.S.C. § 7443(f). In Kuretski v. Commissioner, 755 F.3d 929(D.C. Cir. 2014), the court held that the removal power does
not violate the constitutional separation of powers. Tax Court
3
judges neither exercise “judicial power” “in the particular sense
employed by Article III,” id. at 941, nor “legislative power
under Article I,” id. at 943. Because “the Tax Court exercises
its authority as part of the Executive Branch,” id., the court
reasoned, removal does “not involve the prospect of
presidential removal of officers in another branch,” id. at 939.
In Kuretski the court acknowledged that the Tax Court is
independent and is not an Executive agency. First, “the Tax
Court ‘remains independent of the Executive . . . Branch[],’”
Kuretski, 755 F.3d at 943 (quoting Freytag v. Comm’r, 501
U.S. 868, 891 (1991)), and this “described the Tax Court’s
functional independence rather than . . . its constitutional
status,” id. Second, in 1969, Congress, “in departing from the
prior language describing the Tax Court as an executive
‘agency,’ . . . aimed to emphasize the Tax Court’s
independence as a ‘court’ reviewing the actions of the IRS.”
Id. at 944 (citing S. Rep. No. 91-552, at 302).
In 2015, Congress amended Section 7441 to provide that
“[t]he Tax Court is not an agency of[] and shall be independent
of, the executive branch of the Government.” Consolidated
Appropriations Act, Pub. L. No. 114-113, § 441, 129 Stat.
2242, 3126 (2015). Of course, the Supreme Court has
cautioned that “congressional pronouncements are not
dispositive” of the status of a “governmental entity for
purposes of separation of powers analysis under the
Constitution.” Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S.
43, 51 (2015). Here Congress sought only to “ensure that there
is no appearance of institutional bias” when the Tax Court
adjudicates disputes between the IRS and taxpayers. S. Rep.
No. 114-14, at 10. Crim has not demonstrated that
4
congressional action has undermined the separation of powers
analysis adopted in Kuretski.
II.
Crim contends alternatively that assessment of Section
6700 penalties on July 26, 2010 for activities in 1999-2003,
Crim v. Comm’r, 117 T.C.M. (RIA) *1, *2, *6 (2021), was
time-barred by either 26 U.S.C. § 6501(a)’s three-year statute
of limitations or by 28 U.S.C. § 2462’s five-year statute of
limitations. Every court to have considered the argument has
rejected it. The Tax Court ruled that Crim’s statute of
limitations defenses were challenges to his underlying liability,
“forfeited” under 26 U.S.C. § 6330(c)(2)(B) by failing to raise
them prior to the Collection Due Process hearing. Id. at *4.
Assuming his statute of limitations defenses were properly
before it, id. at *5, the Tax Court rejected them on the merits.
A.
Section 6501(a) provides that “[e]xcept as otherwise
provided in this section, the amount of any tax imposed by this
title shall be assessed within 3 years after the return was filed
(whether or not such return was filed on or after the date
prescribed),” with “‘return’ mean[ing] the return required to be
filed by the taxpayer.” 26 U.S.C. § 6501(a) (emphasis added).
Crim maintains that, because “penalties and liabilities provided
by this subchapter . . . shall be assessed and collected in the
same manner as taxes,” id. § 6671(a), Section 6501(a) applies
to Section 6700 tax-shelter-promotion penalties. We join the
Second, Fifth, and Eighth Circuits in holding that Section
6501(a) is inapplicable to assessment of Section 6700 penalties.
5
See Barrister Assocs. v. United States, 989 F.2d 1290, 1296-97
n.1 (2d Cir. 1993); Sage v. United States, 908 F.2d 18, 24-25
(5th Cir. 1990); Lamb v. United States, 977 F.2d 1296, 1296-
97 (8th Cir. 1992). Here, the statute of limitations is triggered
only when a “return [i]s filed.”
Statutes of limitations against the government are “strictly
construed.” Amoco Prod. Co. v. Watson, 410 F.3d 722, 734
(D.C. Cir. 2005). Congress must “clearly manifest[] its
intention” that the government be bound. United States v.
Nashville, C. & St. L. Ry., 118 U.S. 120, 125 (1886). Section
6700 penalties are assessed against individuals who represent,
with reason to know such representation is false, that there will
be a tax benefit for participating in or purchasing an interest in
an arrangement the individual assisted in organizing.
26 U.S.C. § 6700(a). The conduct penalizable “do[es] not
pertain to any particular tax return or tax year.” Sage, 908 F.2d
at 24. Instead liability turns on the promoter’s activities or gross
income derived by the promoter, not on whether a promoter’s
client decides to claim such benefit on a tax return. See id.Were Section 6501(a) applicable to Section 6700 penalties, the
limitations period on assessment would begin to run in view of
factors unrelated to the source and scope of penalty liability.
Exceptions to Section 6501(a)’s statute of limitations
underscore that it does not apply to Section 6700 penalties and
demonstrate, contrary to our dissenting colleague’s view, that a
promoter’s client’s return could not trigger the statute of
limitations. The exceptions provide that the statute of
limitations does not apply to “a false or fraudulent return with
the intent to evade the tax,” 26 U.S.C. § 6501(c)(1), “a willful
attempt in any matter to defeat or evade [a] tax,” id.§ 6501(c)(2), or “failure to file a return,” id. § 6501(c)(3). The
6
exceptions align with the Tax Code’s general approach of
exempting fraudulent activity from statutes of limitations. In
Mullikin v. United States, 952 F.2d 920 (6th Cir. 1991), the
Sixth Circuit held Section 6501(a) inapplicable to the closely
analogous 26 U.S.C. § 6701 penalties for aiding and abetting
understatement of tax liability, relying in part on the Tax
Code’s approach to fraudulent activity. Id. at 928. Returns
filed by a client not claiming the unlawful tax benefit for which
the promoter is penalized would not fall within the exceptions.
On our dissenting colleague’s view, it is to those returns that
the statute of limitations would apply. Yet the oddity of his
approach appears in the difficulty of determining which of the
taxpayer’s lawful tax returns in subsequent tax years would
trigger the limitations period.
Our dissenting colleague maintains that the IRS’ position
that Section 6671(a) does not render Section 6501(a) applicable
to assessment of Section 6700 penalties is inconsistent with the
IRS’ position that Section 6671(a) renders
26 U.S.C. § 6502(a)’s limitations period on collection
applicable to collection of Section 6700 penalties. But there is
no inconsistency: Section 6502(a), unlike Section 6501(a),
does not make the filing of a return the triggering event for its
limitations period. 26 U.S.C. § 6502(a). Rather Section
6502(a)’s triggering event is “assessment.” Id.Nor does our dissenting colleague’s reliance on two other
penalty provisions of the Tax Code advance his cause. Section
6672 applies to employer withholding obligations, and the
statute of limitations is “the period provided by section 6501,”
26 U.S.C. § 6672(b)(3). He observes that Section 6501 applies
to Section 6672 even though it is a “tax penalty that does not
require the filing of a tax return.” Dis. Op. 4. “The Internal
7
Revenue Code requires employers to withhold from their
employees’ paychecks money representing employees’
personal income taxes and Social Security taxes.” United
States v. Energy Resources Co., 495 U.S. 545, 546 (1990).
Under Section 6672, the individual responsible for these
obligations is liable for a penalty equivalent to the unpaid sum.
26 U.S.C. § 6672. As acknowledged by the Sixth Circuit in
United States v. Neal, 93 F.3d 219 (6th Cir. 1996), a case cited
by our dissenting colleague, Dis. Op. 4, where an employer “is
required to remit withheld taxes, it [is] also required to file
Form 941s,” which is a return that accounts for the amount
withheld in the taxable period. Id. at 223 (citing 26 C.F.R.
§ 31.6011(a)). This is the relevant return for the statute of
limitations period “[s]ince [Section 6672] assessment is ‘based
on’ the underlying liability of the employer, the filing of the
employer’s employment tax return triggers the period of
limitation applicable to the penalty.” Robinson v.
Commissioner, 117 T.C. 308, 318 (2001). By contrast,
assessment of Section 6700 penalties against a promoter is not
based on the underlying liability of the client.
Second, Section 6696(d)(1) sets the limitations period on
penalties against tax preparers for errors and misstatements in
the tax returns they prepared. Our dissenting colleague argues
that Section 6501(a)’s statute of limitations could be triggered
by a return filed by a promoter’s client because some of the Tax
Code’s limitations periods, like Section 6696(d)(1), begin to
run when a return is filed by someone other than the penalized
individual. Dis. Op. 4. Yet the plain text of Section 6696(d)(1)
provides those penalties are assessed with respect to the returns
themselves, which are the source of liability for the penalties:
Section 6696 penalties, “shall be assessed within 3 years after
the return or claim for refund with respect to which the penalty
8
is assessed was filed.” 26 U.S.C. § 6696(d)(1) (emphasis
added). By contrast, liability for Section 6700 penalties arises
independent of returns.
B.
Crim’s alternative contention is that 28 U.S.C. § 2462’s
five-year statute of limitations applies. Appellant’s Br. 42-46.
It provides that, “[e]xcept as otherwise provided by Act of
Congress, an action, suit or proceeding for the enforcement of
any civil fine, penalty, or forfeiture, pecuniary or otherwise,
shall not be entertained unless commenced within five years
from the date when the claim first accrued if, within the same
period, the offender or the property is found within the United
States in order that proper service may be made thereon.” 28
U.S.C. § 2462.
The Second and Eighth Circuits persuasively reason that
Section 2462’s statute of limitations is inapplicable to Section
6700 penalty assessment. See Capozzi v. United States, 980
F.2d 872, 874-75 (2d Cir. 1992); Lamb, 977 F.2d at 1297.
Similarly, the Sixth Circuit has held Section 2462 inapplicable
to analogous Section 6701 penalties for aiding and abetting
understatement of tax liability. Mullikin, 952 F.2d at 929.
These courts point out that Congress has “otherwise provided”
a relevant statute of limitations in Section 6502(a) that requires
collection of an assessed tax penalty within ten years of
assessment. See id.; see also Lamb, 977 F.2d at 1297.
Distinguishing assessment of a tax penalty from “an action, suit
or proceeding,” 28 U.S.C. § 2462, the Second Circuit states in
Capozzi, 980 F.2d at 872, that Section 2462 “implicate[s] some
adversarial adjudication, be it administrative or judicial,” while
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“assessment of a penalty . . . is an ex parte act” that “is merely
the determination of the amount of the penalty and the official
recording of the liability,” id. at 874. So too this court
concluded in 3 M Co. v. Browner, 17 F.3d 1453 (D.C. Cir.
1994), noting that the Second Circuit’s “action, suit or
proceeding” reasoning was “consistent with [its] analysis” that
EPA proceedings under the Toxic Substances Control Act were
“action[s], suit[s] or proceeding[s]” in part because they are
“adversarial adjudications.” Id. at 1459 n.11.
Accordingly, because neither Crim nor our dissenting
colleague has shown that Congress clearly manifested an
intention the government be bound by the statutes of limitation
on which they rely, and because Crim’s separation of powers
claim is barred under the analysis in Kuretski, the judgment of
the Tax Court is affirmed.
WALKER, Circuit Judge, dissenting:
John Crim promoted an illegal tax shelter. Seven years
later, the Internal Revenue Service assessed tax penalties
against him. Pointing to a statute of limitations in the tax code,
Crim says those assessments came too late.
That argument has some merit. Congress enacted a three-
year statute of limitations for tax assessments. 26 U.S.C.
§ 6501(a). Congress also defined taxes to include tax penalties.
Id. § 6671(a). Here, the IRS assessed tax penalties against
Crim. So the three-year statute of limitations applies to his
case.
Because the Tax Court found that the statute of limitations
did not apply, I would reverse and remand for the Tax Court to
consider whether the statute of limitations prevents the IRS
from collecting Crim’s penalties.
I
John Crim is a convicted tax cheat. Between 1999 and
2003, he ran an illegal tax shelter, encouraging investors to
evade federal taxes. See United States v. Crim, 451 F. App’x
196, 200 (3d Cir. 2011). In 2010, while Crim was in prison,
the IRS assessed that he owed $256,000 in tax-shelter-
promotion penalties. Crim did not seek a hearing to contest
that assessment. When he got out, the IRS notified him that it
intended to collect.
Crim contested the penalties at a hearing. He argued that
the IRS could not collect because its assessment of penalties
came too late. The Tax Code’s catch-all statute of limitations
on assessments, he said, meant that the IRS had just three years
to assess penalties against him, yet it waited seven years to do
so.
2
Unpersuaded, the hearing officer rejected Crim’s
argument because he presented “[n]o statu[t]e” to support his
position. JA 78.
Crim appealed to the Tax Court. It affirmed, agreeing with
the hearing officer that tax-shelter-promotion penalties have no
statute of limitations for assessments. It also rejected Crim’s
new argument that it couldn’t decide his case because the Tax
Court’s structure violates the separation of powers.
Crim appealed to this Court. We review the Tax Court’s
“legal conclusions” and “grant of summary judgment” de novo.
Ryskamp v. Commissioner of Internal Revenue, 797 F.3d 1142,
1147 (D.C. Cir. 2015); see 26 U.S.C. § 7482(a)(1).
Applying that standard, I agree with the majority that the
Tax Court’s structure is constitutional. But because Crim’s
statute-of-limitations argument has some merit, I would vacate
and remand to the Tax Court.
II
The tax code’s three-year statute of limitations for tax
assessments applies to the tax-shelter-promotion penalties
levied against Crim.
True, when Congress applies a statute of limitations to the
government, it must speak clearly. See Amoco Production Co.
v. Watson, 410 F.3d 722, 734 (D.C. Cir. 2005); cf. BP America
Production Co. v. Burton, 549 U.S. 84, 95-96 (2006) (though
“statutes of limitations are construed narrowly against the
government,” that rule has “no application” when “the text of
the relevant statute” is clear).
But here, the text is clear.
3
1. The tax code’s general statute of limitations for tax
assessments says “[t]he amount of any tax imposed by
[the tax code] shall be assessed within 3 years after the
return was filed.” 26 U.S.C. § 6501(a).
2. The tax code defines “tax” to include “tax penalties”:
“any reference . . . to ‘tax’ . . . shall be deemed also to
refer to . . . penalties.” Id. § 6671(a).
3. So in effect, the general statute of limitations says:
“any [penalty] . . . shall be assessed within 3 years
after the return was filed.” Id. § 6501(a) (emphasis
added).
4. Because a tax-shelter-promotion penalty is a
“penalty,” the statute of limitations applies. Id. § 6700
(setting out tax-shelter-promotion penalties).
The IRS concedes that this textual argument works for
other statutes of limitations in the tax code. It even accepts that
the limitations period for tax collections in § 6502(a) covers
collection of tax-shelter-promotion penalties. JA 160; see also
Mullikin v. United States, 952 F.2d 920, 927 (6th Cir. 1991)
(accepting that § 6502 applies to tax penalties).
Note why that is so. The limitations period for tax
collections applies to tax-shelter-promotion penalties only
because the tax code defines a “tax” to include a “tax penalty.”
See Capozzi v. United States, 980 F.2d 872, 875 n.2 (2d Cir.
1992) (“[T]hough section 6502(a) speaks only of the collection
of taxes, 26 U.S.C. § 6671 states that any reference to a ‘tax’ is
also a reference to a penalty.”). If that logic works for tax
collections, it should also work for tax assessments.
4
True, the limitations clock for tax assessments starts to run
“after [a tax] return [is] filed,” and tax-shelter-promotion
penalties may be levied even if no tax return is ever filed. 26
U.S.C. § 6501(a). But that proves only that in some tax-
shelter-promotion penalty cases, the statute of limitations never
starts running because no return ever triggers it. It does not
prove that the statute of limitations does not apply at all. For
example, a statute of limitations applies to fraud, but it is not
triggered “until after . . . discover[y] . . . [of] the alleged
deception.” Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946).
For the IRS’s theory to persuade, it would have to be true
that no tax return could ever trigger the statute of limitations
for assessments in a tax-shelter-promotion case. But that is not
self-evident. Why couldn’t the statute of limitations be
triggered by a return filed by a tax shelter’s client? Oral Arg.
Tr. 9-10 (giving hypotheticals). Other statutes of limitations in
the tax code are triggered when returns are filed by someone
other than the penalized person. See, e.g., 26 U.S.C. § 6696(setting out the statute of limitations for tax-preparer penalties).
Plus, the statute of limitations for assessments expressly
applies to another tax penalty that does not require the filing of
a tax return. Section 6672 imposes a penalty when a person
“willfully fails to collect . . . and pay over” to the IRS a tax he
is “required to collect.” 26 U.S.C. § 6672(a). The IRS may
levy that penalty even when a tax return is not filed. See United
States v. Energy Resources Co., 495 U.S. 545, 547 (1990)
(describing liability under § 6672); see also United States v.
Neal, 93 F.3d 219, 221 (6th Cir. 1996) (noting that § 6672 does
not “impose[ ] a requirement to file a return”).
Consider this example. An employer is required to collect
federal income taxes from his employees’ paychecks. He fails
to do so. Can the IRS penalize him even though he has not
5
filed a return? Yes. See 26 U.S.C. § 6672(a). And does the
statute of limitations in § 6501(a) apply? Again, yes. To
collect the penalty, the IRS must mail a notice “before the
expiration of the [statute-of-limitations] period provided by
section 6501 for the assessment of such penalty.” Id.
§ 6672(b)(3). Of course, if no return is ever filed, the statute of
limitations in § 6501 is not triggered, and the IRS has an
infinite amount of time to mail the required notice. Cf.
§ 6501(c)(3) (if no return is filed “the tax may be assessed . . .
at any time”). But if a return is filed, the clock starts running.
If Congress expressly made the catch-all statute of
limitations in § 6501(a) applicable to one tax penalty that can
be assessed without a tax return (§ 6672), there’s no reason to
think Congress did not make it applicable to Crim’s tax penalty
(§ 6700). Both tax penalties are considered a “tax” for
limitations purposes. Id. § 6671(a). And neither tax penalty
requires the filing of a tax return.
To be sure, it is harder to figure out which tax return
triggers the limitations clock for tax-shelter-promotion
penalties than it is for penalties under § 6672 (tax collector
penalties) and § 6696 (tax preparer penalties). Maj. Op. 6. But
that’s no reason to ignore the clear text of the catch-all statute
of limitations in § 6501(a). Cf. United States v. Long, 997 F.3d
342, 356 (D.C. Cir. 2021) (“courts may not . . . set aside the
plain text unless the absurdity and injustice of [doing so] would
be so monstrous that all mankind would . . . unite in rejecting
the [plain text’s] application” (cleaned up)).
Rather than deciding, as the majority does, that no return
can ever trigger § 6501(a)’s statute of limitations in a tax-
shelter-promotion case, I would let the Tax Court determine,
on a case-by-case basis, whether a tax return has triggered the
6
limitations clock. Today, I would resolve only whether
§ 6501(a) applies to tax-shelter-promotion penalties. 1
The tax code’s text unambiguously suggests that it does.
26 U.S.C. §§ 6501(a), 6671(a). 2
III
Crim also claims that the Tax Court’s structure violates the
separation of powers. He says a recent change to the Tax
Court’s authorizing statute means that it is no longer part of the
executive branch. And that, he argues, creates an interbranch-
removal problem because the President has the power to
remove tax judges.
If the Tax Court were outside of the executive branch, the
President’s power to remove its judges would be problematic.
But because the Tax Court is inside the executive branch, there
is no such problem.
1
True, the statute of limitations likely was not triggered in Crim’s
case. When the Third Circuit affirmed Crim’s conviction, it said that
“[b]ased on instructions provided by [Crim’s firm], many of [its]
clients did not file federal tax returns.” United States v. Crim, 451 F.
App’x 196, 200 (3d Cir. 2011). And in this litigation, Crim’s counsel
said that he did not “dispute” that many of Crim’s clients did not file
tax returns. Oral Arg. Tr. 9. But on the record before us, I cannot
rule out of the possibility that one of Crim’s clients filed a relevant
return. So remand to the Tax Court is appropriate.
2
As I have explained, I disagree with those circuits that have held
otherwise. See Barrister Associates v. United States, 989 F.2d 1290,
1296-97 n.1 (2d Cir. 1993); Sage v. United States, 908 F.2d 18, 24-
25 (5th Cir. 1990); Lamb v. United States, 977 F.2d 1296, 1296-97
(8th Cir. 1992).
7
True, in 2015 Congress amended the Tax Court’s
authorizing statute to say the “Tax Court is not an agency of,
and shall be independent of, the executive branch of the
Government.” 26 U.S.C. § 7441. But that amendment did not
change the Tax Court’s position within our system of
government. So the Tax Court remains part of the executive
branch, just as it was before the amendment. See Kuretski v.
Commissioner, 755 F.3d 929, 939 (D.C. Cir. 2014) (“the Tax
Court exercises its authority as part of the Executive Branch”).
If Congress wishes to change the Tax Court’s
constitutional position, it can. But to do so, it must do more
than simply tell the judiciary that the Tax Court is outside the
executive branch. See Department of Transportation. v.
Association of American Railroads, 575 U.S. 43, 51 (2015).
Instead, Congress would need to alter the court’s substantive
features by amending, for instance, the powers it exercises and
who controls it. Cf. Stern v. Marshall, 564 U.S. 462, 486–87
(2011) (statutory amendment to the structure of the Bankruptcy
Court did not change the “powers . . . wielded” by bankruptcy
judges).
Here, Congress’s amendment did not meaningfully change
the Tax Court’s structural features. As before, the President
can remove tax judges. 26 U.S.C. § 7443(f). That power gives
the President some control over the Tax Court, suggesting that
it is part of the executive branch. See Bowsher v. Synar, 478
U.S. 714, 727-732 (1986) (Congress’s power to remove the
Comptroller General meant that he was part of the legislative
branch).
Plus, Congress’s amendment does not change the Tax
Court’s powers. Those powers are, and have always been,
executive. See Direct Marketing Association v. Brohl, 575
U.S. 1, 9 (2015). Since at least 1798, Congress has vested the
8
power to assess and collect taxes in the executive branch. See,
e.g., Act of July 9, 1798, ch. 70, §§ 8, 20 1 Stat. 580, 585, 588
(authorizing executive-branch “commissioners” to assess
taxable property and providing an administrative appeals
process for contesting “inequality or error” in those
assessments).
Rather than changing the Tax Court’s structure,
Congress’s statement that the court is “independent of[ ] the
executive branch” merely confirms that tax judges have
statutorily fixed terms and for-cause removal protection. See
26 U.S.C. §§ 7441, 7443(e)-(f). Of course, tax judges cannot
be truly and fully “independent” because “lesser officers must
remain accountable to the President, whose authority they
wield.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020).
I express no opinion about whether tax judges’ removal
protection is constitutional. Cf. id
* * *
The Tax Court does not violate the separation of powers.
But because the tax code’s statute of limitations for tax
assessments applies to tax-shelter-promotion penalties, I would
vacate and remand to the Tax Court.
I respectfully dissent.