Prof. Grewal Cited by U.S. Supreme Court

In October, Andy Grewal was featured in Iowa Now‘s Friends of the Court post.  The post discussed Grewal’s work drafting an amicus curiae with the United States Supreme Court in a case that would rule on how the IRS imposes penalties on tax shelters.

The Court handed down a unanimous decision Tuesday, December 3—unusual for a Court that reaches unanimous decisions less than half the time—and Grewal’s amicus clearly had an impact on the justices’ thinking. His brief was cited specifically in one footnote, and he says another of the justice’s arguments strongly reflected his argument.

The case—United States v. Woods—is about how the IRS penalizes tax shelters and involved complicated technical details that only tax accountants and attorneys would grasp, but Grewal’s brief did not take a position on the merits of either party’s position. Instead, his argument was focused on how the Court reached its decision. He worried that if the decision cut too broadly, it could create significant and unintended changes to the entire body of tax law, and he hoped his argument persuaded the justices to keep the decision narrow.

It did.

“That was reflected in the first part of the opinion, where the Court expressly said that it was reserving judgment on whether the district courts handled an issue correctly,” says Grewal, a tax law specialist.

His brief also raised an argument that neither party involved in the case took up, an argument that was specifically acknowledged in a citation.

“The Court acknowledged my argument and said it was not expressing a view on it since Woods’ attorneys didn’t raise it,” he says. “This may mean that in future litigation, other litigants can use the argument I raised.”

Although the Court is inundated with amicus briefs during the course of a term, few of them have their arguments so directly reflected in an opinion, and even fewer are specifically cited. Grewal says he’s pleased that his amicus made an impact.

“I believe the Court handled the narrow arguments in front of it in the right way, but this case raises broader issues and the parties overlooked some key arguments,” he says. “I’m glad that the Court held off on addressing the broader issues, as I recommended, meaning that they may be fleshed out in the future.”

The full decision is online at http://www.supremecourt.gov/opinions/13pdf/12-562_k5fl.pdf.