Asked how the tax preparers would answer the government’s argument, Dan Alban, lead attorney on the case with the Institute of Justice, conceded that the government’s reply brief is the last brief that will be filed in this series of briefs on the government’s request for a stay. “We don’t have an opportunity to respond,” he said. “The ball is in the court’s court now. It’s up to the D.C. Circuit now to decide the matter.”
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However, Alban does not believe the government’s arguments will do much to change the original ruling. “I would say that their reply is rather boilerplate and tends to just go through the motions and only responds to our arguments in a rather perfunctory way,” he said. “I doubt that the D.C. Circuit will find it very persuasive. I think if you compare their reply brief to our response, there’s a marked difference in the level of specificity and evidence offered. There’s nothing in their reply brief that gives us pause.”
Alban pointed out that the government’s reply brief did contain one important development, however. In one of the footnotes, it mentioned that the Solicitor General had authorized an appeal in the case, removing one possible obstacle in allowing the appeal to proceed.
Next it will be up to the D.C. Circuit Court of Appeals to set a schedule for further briefings on the appeal. Once the D.C. Circuit sets a briefing schedule, it will receive the record of the case from the District Court, and the IRS would typically have 40 days to file its first brief on the appeal. Meanwhile, both the IRS and the tax preparer plaintiffs will await a decision from D.C. Circuit on the IRS’s motion for a stay on Judge Boasberg’s ruling, which could come at any time.