Following up on my prior posts on the D.C. Circuit's remarkable opinion in Cohen v. Commissioner, No. 08-5088 (D.C. Cir. Aug. 7, 2009):

• D.C. Circuit Slams IRS, Opens Door to Billions of Dollars Telephone Excise Tax Refunds (Aug. 7, 2009)
• Hickman:  D.C. Circuit Delivers a Doozy (Aug. 8, 2009)

The D.C. Circuit has agreed to hear the case en banc, with oral argument on September 29, 2010.  Kristin E. Hickman (Minnesota) has filed an amicus brief in support of the Plaintiff-Appellants.  Here is her Summary of Argument:

Contemporary tax practices raise several APA compliance issues that are at the heart of or relate significantly to this case and the Plaintiff-Appellants’ underlying APA procedural challenge against Notice 2006-50. Some of these questions are currently at issue in cases pending before other circuits: which Treasury and IRS pronouncements must be submitted to APA notice-and-comment rulemaking; which Treasury and IRS pronouncements carry the “force of law”; and whether the “force of law” means the same thing for APA rulemaking requirements as it does in assessing eligibility for judicial deference under United States v. Mead Corp., 533 U.S. 218 (2001), and Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

This case also concerns the proper interpretation not only of the AIA and the DJA, but also of how those two provisions interact with the APA. The APA serves important congressional goals. This Court should construe the AIA and the DJA narrowly to effectuate those purposes and give effect to all three statutes by allowing APA challenges to the substantive and procedural validity of Treasury regulations and IRS rulings, including but not limited to the procedural claim raised by the Plaintiff-Appellants. This Court should interpret the AIA and the DJA coterminously and narrowly, focusing on the AIA’s careful textual emphasis on assessment and collection. Pursuing this approach is consistent not only with the AIA’s text but also with the historical context in which Congress adopted the AIA, the DJA’s tax exception, and the APA. Existing Supreme Court jurisprudence regarding the proper interpretation of the AIA does not at all preclude such an interpretation of these three statutes, working together. At the very least, even if the Court concludes that the AIA and the DJA bar judicial review of APA challenges against substantive interpretations of law contained in Treasury regulations and IRS rulings, the Court nevertheless should interpret the AIA and the DJA to permit APA procedural challenges against those agency actions, including but not limited to the Plaintiff-Appellants’ claims.

Here is the brief of the Plaintiff-Appellants.