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Tax Law

Law Students argue in front of the Ninth Circuit Court of Appeals

May 21, 2015

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On Monday, May 4, 2015, the Ninth Circuit Court of Appeals heard argument in Barbara Knudsen v. CIR, a case concerning statutory interpretation of the Tax Code.   Making the argument before the court was Lewis & Clark Law student Ashley McDonald. 

Ashley McDonald and classmate Caleb Smith enrolled as advanced legal interns in the Low Income Tax Clinic (LITC) in spring 2015, where they gained experience working with taxpayers on legal issues involving the IRS.  Under the supervision of Professor Jan Pierce and volunteer appellate attorney Denis Vannier, Attorney for the City of Portland, they prepared to argue the case in front of the Ninth Circuit.  Mr. Vannier mentored the students and provided experience from nearly 100 previous appearances before the Appellate Court and Ninth Circuit Court of Appeals.

I was thrilled when Professor Pierce asked me if I would present an oral argument in the Ninth Circuit. I was at first overwhelmed at the prospect of preparing myself for my very first court appearance, in the Ninth Circuit no less. However, I quickly learned how helpful the Portland legal community is. I had an incredible support network that educated, challenged, and encouraged me.“ – Ashley McDonald, J.D. Candidate

The case, Knudsen v. CIR, involves the clinic’s claim for attorney fees and the issue of unilateral concession by the IRS after trial.  If this is upheld as a settlement, the clinic will receive no compensation for fees.  The team argued the legislative intent of Congress under the 1998 statute, under which the clinic claimed fees, was to encourage the IRS to settle cases.  The tax court’s holding that a unilateral concession by the IRS after trial constitutes a settlement frustrates Congressional intent.  Per the tax court’s opinion in this case, the IRS can now wait until after trial, and if the trial does not go well, they can then concede and avoid paying fees.

The argument phase lasted a total of 24 minutes, and included rapid questions by Judges William Fletcher, Andrew Hurwitz and Donald Walter.  The long hours of preparation and four practice rounds served McDonald well, as she quickly replied to the questions asked, and reacted with both knowledge and confidence.  The courtroom audience comprised several members of the L&C community, including Dean Jennifer Johnson and Director of the Business Law Programs, Steve Goebel.

It was amazing to play a role in the process of creating law and to recognize that, with all the time the Clinic had spent on the case, we truly were the “experts” on the issue. Oral arguments have often been described as a “conversation” with the judges, and that description seems quite apt. The questions of the 9th Circuit Judges (and of the experienced Portland appellate lawyers that served as judges during our mock arguments) really showed that they are concerned with better understanding the argument so that they could write a reasoned opinion -not so they could stump the lawyer.” – Caleb Smith, J.D Candidate

The final decision of the court is still pending, but the experience is one that will last a lifetime to these students, and the team at the Low Income Tax Clinic.  A full video of the argument is available here.

“To be able to appear in the Ninth Circuit is a rare opportunity for a lawyer, but even more so for a law student. Lewis & Clark has provided me with a multitude of opportunities that I never would have thought possible. Appearing in the Ninth Circuit has been a bright finish to my three year career at Lewis & Clark and has provided me with a deep appreciation for the Portland legal community that I am about to enter. “ – Ashley McDonald