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Tuesday, December 26, 2006

D.C. Circuit Panel Agrees to Rehear Murphy

The D.C. Circuit panel in Murphy v. United States, 460 F.3d 79 (D.C. Cir. 8/22/06), on Friday vacated the judgment and agreed to rehear the case.  The panel had held that § 104(a)(2) is unconstitutional under the 16th Amendment as applied to a recovery for a non-physical personal injury unrelated to lost wages or earnings.  The panel set the following briefing schedule for the rehearing:

  • Brief and Appendix for Appellant: January 22, 2007
  • Brief for Amicus for Appellant: January 22, 2007
  • Brief for Appellee: February 21, 2007
  • Reply Brief for Appellant: March 7, 2007

As a result of the panel's action, the D.C. Circuit dismissed the Government's en banc petition (filed 10/5/06) as moot.

For three excellent articles on Murphy, see:

For prior TaxProf Blog coverage of Murphy, see

https://taxprof.typepad.com/taxprof_blog/2006/12/dc_circuit_pane.html

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Listed below are links to weblogs that reference D.C. Circuit Panel Agrees to Rehear Murphy:

» Rehearing in Murphy from Appellate Law
Just in case you missed it, the DC Circuit Panel that held 26 U.S.C. § 104(a)(2) is unconstitutional under the 16th Amendment as applied to a recovery for a non-physical personal injury unrelated to lost wages or earnings caved to [Read More]

Tracked on Dec 26, 2006 8:47:05 AM

» Murphy Rehearing: from The Volokh Conspiracy
The U.S. Court of Appeals for the D.C. Circuit has granted the petition for rehearing in Murphy v. IRS. In Murphy, a unanimous three-judge panel held unconstitutional a provision of the Internal Revenue Code that t... [Read More]

Tracked on Dec 26, 2006 10:12:28 AM

» MURPHY'S LAW UNDONE? from Roth & Company, P.C.
A three-judge panel of the Federal Circuit Court of Appeals shocked the tax world in August when they barred as... [Read More]

Tracked on Dec 26, 2006 11:07:10 AM

» D.C. Circuit Panel to Rehear Controversial Tax Case from ACSBlog: The Blog of the American Constitution Society
A three judge panel of the D.C. Circuit, which issued a widely criticized decision in Murphy v. IRS, has vacated its original decision and will rehear the case. In its now-vacated opinion, the panel held that damage awardsfor non-physical i... [Read More]

Tracked on Dec 26, 2006 2:25:54 PM

» Murphy Undone from Taxable Talk
Thanks to Paul Caron of the TaxProf Blog for letting us know that the D.C. Circuit has vacated the Murphy decision. The Murphy case was the one that said ... [Read More]

Tracked on Dec 26, 2006 4:12:13 PM

» "The Power to ___ is the Power to Destroy"? from A Stitch in Haste
(Originally posted August 23, 2006 -- updated below.) A federal appellate case that one would have thought would be of interest only to scholars and specialists has suddenly [Read More]

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» Federal appellate panel rehearing vs. rehearing en banc from BeldarBlog
Linking TaxProf Blog and How Appealing, Prof. Jonathan Adler over on The Volokh Conspiracy writes (italics in original) that [t]he U.S. Court of Appeals for the D.C. Circuit has granted the petition for rehearing in Murphy v. IRS. In Murphy, a unanimou... [Read More]

Tracked on Dec 27, 2006 6:48:46 PM

» Murphy's Law applies to short-lived Murphy tax ruling from Don't Mess With Taxes
Back in August, a Washington, D.C., federal appeals court judge ruled in Murphy v. The United States that the federal government cannot tax money individuals receive as compensation for emotional distress and other intangible injuries. Now, however, th... [Read More]

Tracked on Dec 28, 2006 3:52:08 AM

Comments

Not a tax prof, but I work with personal injury trial lawyers. A lot of criticism of Murphy focuses on the fact that a person's health and well being has no basis. But the amount a plaintiff receives in a verdict or settlement is in satisfaction of a cause of action for legal injury. Such causes of action are deemed personal property, even by the IRS. They are bought and sold all the time. The basis is the amount required to reverse legally recognized harm, the best evidence of which is the verdict. Full compensation for a legally recognized injury does not result in an accretion of wealth.

Posted by: Jeffrey White | Jan 4, 2007 12:23:31 PM

Isn't this just a so-so result for the government? After all, the rationale for granting a petition for rehearing could be simply to correct their most obvious error regarding the unconstitutionality of an exclusion provision and perhaps to soften some of their language. Then, the appeals process would have to start all over again. I suppose they could have corrected an error without a rehearing, but I don't know how common that is.

Posted by: Anon | Dec 26, 2006 1:24:31 PM

So the three same judges are going to have to write a unanimous opinion reversing themselves? How embarrasing...if they did it en banc, at least they could say something like "We are persuaded by the compelling arguments of our colleagues, and change our position." Now they are just going to have to say "We don't know how to interpret statutes."

Posted by: andy | Dec 26, 2006 10:50:13 AM

Merry Christmas... so does this mean I shouldn't take a position on my 06 return relying on Murphy?

Posted by: randomjohn | Dec 26, 2006 9:54:36 AM