Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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General Mills, Inc. v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1124

Opinion Date: April 23, 2020

Judge: Raymond T. Chen

Areas of Law: Tax Law

GMI is the parent corporation of several partners of General Mills, an LLC that is treated as a partnership for tax purposes (the Partnership). GMI alleges that after certain partnership-level audits of the Partnership’s returns for the 2002–2006 tax years were settled with the IRS, the IRS erroneously collected $5,958,695 in “large corporate underpayments” (LCU) interest (I.R.C. 6621(c)), by selecting incorrect “applicable dates” to start interest accrual. GMI paid the interest and filed unsuccessful administrative refund claims, then sued the government. The Claims Court dismissed for lack of subject matter jurisdiction, concluding that GMI failed to file its claims within the six-month limitations period, I.R.C. 6230(c). GMI argued that the general two-year tax refund limitations period (I.R.C. 6511(a)) applied. Section 6230(c) provides that “[a] partner may file a claim for refund on the grounds that . . . the [IRS] erroneously computed any computational adjustment necessary . . . to apply to the partner a settlement” and that any such claim “shall be filed within 6 months after the day on which the [IRS] mails the notice of computational adjustment to the partner.” The Federal Circuit affirmed. The essence of GMI’s challenge is to the IRS’s computation of the change in its tax liability resulting from the Partnership’s settlement of partnership items; interest was “clearly contemplated” as part of the Partnership settlement agreements. GMI received adequate notice but filed its refund claims well outside the six-month period,