motion to vacate

More documents

Recommendations

Info

opinion in this case under the motion for reconsideration ofthe opinion filed simultaneously herewith (for the reasons stated in that motionf Ifthis motion is granted on the constitutional ground, petitioners do not request a new trial or additional briefing, but request that, after the Court declares that its judges are not subject to the removal power and thus are no longer potentially substantially influenced by the improper threat ofinterbranch removal, the Court decide this case once again, ab initio, on the record and briefing previously submitted and consider all legal and factual arguments made in the motion for reconsideration as ifthey were made in the petitioners' opening brief- i.e., not under the standards applicable to motions for reconsideration ofopinion, but under standards ofwhat may be argued in opening briefs. IN SUPPORT OF THIS MOTION, the petitioners show as follows: 1. In 1924, Congress established the Board ofTax Appeals (the "Board") as "an independent agency in the executive branch of Government." Revenue Act of 1924, ch. 234, sec. 900(k), 43 Stat. 338. Congress authorized the President to appoint members ofthe Board with the advice and consent ofthe Senate - in accordance with the procedures for principal Officers ofthe United States required by the Appointments Clause 2 John P. L. Miscione, Esq. and Professor Tuan Samahon, Esq. assisted in drafting this motion. Both expect to enter appearances in this matter presently. 2
ofthe Constitution (Art. II, sec. 2, cl. 2). Id., at sec. 900(b), 43 Stat. 336. After initial two-year terms ofoffice, Congress authorized the President to appoint successor Board members eventually having 10-year terms ofoffice. Id., 43 Stat. 336-337. Without any public hearing, Board members could be removed by the President for "inefficiency, neglect ofduty, or malfeasance in office, but for no other reason". Id., 43 Stat. 337. 2. In 1926, Congress amended Title IX ofthe Revenue Act of 1924 to provide, at section 900, that the Board "is hereby continued as an independent agency in the Executive Branch ofthe Government". Revenue Act of 1926, ch. 27, sec. 1000,44 Stat. 105-106. Congress also at that time altered the normal term ofoffice ofBoard members to 12 years; id., at sec. 901 (b), 44 Stat. 106; and inserted into the removal provision a requirement that there be a public hearing before a member could be removed. Id., at sec. 901(a), 44 Stat. 106. 3. Without any change in the removal language, section 11 02(±) of the Internal Revenue Code of 1939 provided that members ofthe Board "may be removed by the President, after notice and opportunity for public hearing, for inefficiency, neglect ofduty, or malfeasance in office, but for no other cause." Pub. Act No.1, 76 th Cong, 53 Stat. 159. Section 1100 ofthe 3
Page 1: UNITED STATES TAX COURT PETER KURET
Page 5 and 6: eport (S. Rept. No. 91-552, 91st Co
Page 7 and 8: "the judicial power ofthe United St
Page 9 and 10: Comptroller General would reasonabl
Page 11 and 12: 14. In the alternative, even ifthe
Page 13 and 14: Court, few have been found to hold
Page 15 and 16: Congress had established the Commis
Page 17 and 18: ackup system for the sequestration
Page 19 and 20: Congress later preferred, it could
Page 21 and 22: 32. Even more recently, in Intercol
Page 23 and 24: 35. Finally, in the alternative, ev

motion to vacate

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?