Supreme Court Denies Challenge to President’s Removal Authority over Tax Court Judges

The Supreme Court declined to hear a case involving a couple who owed more than $22,000 in unpaid taxes to the Internal Revenue Service, lost their case in Tax Court and then argued that the Tax Court violated the U.S. Constitution.

Peter and Kathleen Kuretski owed federal income taxes for the 2007 tax year, and the IRS assessed the unpaid amount plus penalties and interest, and then attempted to collect from the Kuretskis by means of a levy on the couple’s home. The Kuretskis unsuccessfully challenged the proposed levy in the Tax Court.

They then contended that the Tax Court judge may have been biased in favor of the IRS and thereby infringed on the constitutional separation of powers.

The Kuretskis challenged the IRS’s determination of their income tax liability before a judge of the Tax Court who, under Code section 7443(f), was removable by the opposing litigant—the Executive Branch of the government.

The D.C. Circuit rejected the Kuretskis’ separation-of-powers challenge to the Tax Court judgment against them, holding that the President’s removal authority is constitutional because the Tax Court exercises executive, not judicial, power.

According to the Kuretskis, the question presented was whether the President’s authority to remove Tax Court judges violates the Constitution’s separation of powers.

As they pointed out in their petition, the removal provision in Section 7443(f) is a nearly century-old anachronism, “enacted before the Tax Court was the Tax Court [it was the Board of Tax Appeals] and before its members were judges.” In 1969, Congress replaced the Board of Tax Appeals with the Tax Court.

However, the Supreme Court denied the petition for a writ of certiorari on Monday, leaving intact the D.C. Circuit Court decision.

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