Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Johnson v. Commissioner

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-60054

Opinion Date: August 25, 2020

Judge: Jerry Edwin Smith

Areas of Law: Tax Law

The Fifth Circuit affirmed the tax court's denial of petitioners' motion for costs under 26 U.S.C. 7630. Petitioners moved for costs after a dispute over an IRS notice of deficiency assessing them about $51,000 in taxes, penalties, and interest that resulted in their favor. The court held that, given the available facts, the tax court did not abuse its discretion by concluding that the IRS's position was substantially justified. In this case, the record plainly reflects a discrepancy between petitioners' return and the IRS's third-party material. Furthermore, when the Commissioner answered, the IRS had not received any substantiating documents from petitioners. Therefore, the tax court did not abuse its discretion.

Abcarian v. Levine

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-55129

Opinion Date: August 25, 2020

Judge: Daniel P. Collins

Areas of Law: Government & Administrative Law, Tax Law, Utilities Law

The Ninth Circuit affirmed the district court's dismissal of an action brought by plaintiffs, customers of the DWP, claiming that DWP overcharged for electric power and then transferred the surplus funds to the City, thereby allowing the City to receive what amounts to an unlawful tax under California law. Plaintiffs alleged claims under the Hobbs Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), and 42 U.S.C. 1983, as well as claims under state law. The panel agreed with its sister circuits that the Hobbs Act does not support a private civil right of action; held that municipal entities are not subject to liability under RICO when sued in their official capacities, but the RICO claims in this case were asserted against the defendant City and DWP officials in their personal capacities; held that the RICO claim was nonetheless properly dismissed because it failed as a matter of law because it did not adequately allege a predicate act in extortion under California law or the Hobbs Act, mail and wire fraud, or obstruction of justice; and held that, under the Johnson Act, the district court lacked jurisdiction over the the section 1983 claims. Because plaintiffs have provided no basis for concluding that any of these deficiencies could be cured by an amendment of the complaint, and based upon the panel's own thorough review of the record, the panel held that amendment would be futile.

Prang v. L.A. County Assessment Appeals Board No. 2

Court: California Courts of Appeal

Docket: B301194(Second Appellate District)

Opinion Date: August 27, 2020

Judge: Brian M. Hoffstadt

Areas of Law: Tax Law

The Court of Appeal affirmed the trial court's issuance of a writ of administrative mandamus allowing the Assessor to levy more than four years' worth of escape assessments under Revenue and Taxation Code section 532, subdivision (b)(3). The court held that every single one of the prerequisites for the escape assessments challenged by Downey SPE is not only satisfied, but is undisputedly so. The court also held that the filing requirement set forth in section 480.1 is not satisfied when the taxpayer acquiring the legal entity recorded a document with less than all the information required by section 480.1. Therefore, taxpayers must strictly comply with those aspects of the notice requirements of section 480.1. In this case, it is undisputed that Downey SPE's act of recording the Certificate with the County Recorder's Office did not strictly comply with section 480.1's informational requirements (because it lacked several categories of information) or with section 480.1's requirement that the information be provided to the State Board.