Sonya C. Bishop

Obtained historically low sentence for European-based investment banker in major offshore criminal tax case. Represented lead individual in DOJ criminal investigation into an overseas military fuel business operating post 9/11. Obtained full abatement of Bank Secrecy Act penalty for failures to report account information. Representing major pharmaceutical company in transfer pricing dispute with IRS.

The last two years have shown courts' growing appetite to curtail the IRS's authority to tax. Cases like Boechler P.C. v. Commissioner, Culp v. Commissioner, Farhy v. Commissioner, Bittner v. United States, and Moore v. United States, reflect the judiciary's increasingly commonly held belief that tax procedure is not so exceptional (equitable tolling applies to tax, too), the government is constrained by the Code when imposing penalties, and the authority to tax may actually have some Constitutional limitations.

On June 26, 2023, the Supreme Court granted certiorari in Moore v. United States, a case challenging the constitutionality of the transition tax, the keystone provision of the Tax Cuts and Jobs Act of 2017. If the Supreme Court ultimately holds that the transition tax is unconstitutional because it is not a tax on income within the meaning of the Sixteenth Amendment, that decision will render it void ab initio. On this point, the authors are neither advocating for nor predicting a particular outcome. Instead, as indicated above, this article highlights one challenge we anticipate: If the transition tax is held to be unconstitutional, how can taxpayers recover a 2017. tax in 2024?