Wyden, Crapo Push to Fill Tax Court Vacancies

As the Tax Court nominees approved by the Senate Finance Committee last month await full Senate consideration, the committee considered three more nominations on July 10 — bringing the Tax Court closer to being fully staffed.

Chairman Ron Wyden (D-OR) said he and ranking member Mike Crapo (R-ID) are trying to get all six nominees through and are “targeting before the Senate leaves for the August break.”

The most recent set of nominees include Jeffrey S. Arbeit of the Joint Committee on Taxation, Cathy Fung of the IRS’ Office of Chief Counsel, and affordable housing attorney Benjamin A. Guider. Two of the nominees, Arbeit and Fung, are former Tax Court clerks. President Biden announced yesterday’s nominees in May.

Last month, the committee considered and advanced nominations of three other candidates: Rose E. Jenkins, Adam B. Landy, and Kashi Way. Biden had announced those nominations in February, but despite being reported by the Senate Finance Committee over a month ago, they have yet to be considered by the full Senate.

Under Code Sec. 7443(a), the Tax Court is fully staffed at 19 members. The court’s fiscal year 2025 Congressional Budget Justification indicates it has a total of six vacancies. Meanwhile, over 21,000 cases were filed with the court in fiscal year 2023. And more than 31,000 cases were closed and 294 were opinions issued by the court during that same period.

Wednesday’s hearing was brief, with only Wyden and Crapo asking questions of the nominees. The committee leadership was united in their stance that Tax Court judges must ensure that taxpayer litigants — particularly those who appear without counsel — must “get a fair shake.”

People are “scared when they come into your courtroom, and they want to know they’re going to get fairness,” said Crapo. “What Senator Wyden and I are both angling from you is just a solid commitment that you will assure that the taxpayers receive fairness,” he added.

Wyden noted the complexities of the Tax Court and said he wanted all six nominees to be part of a group that “people talk about as exceptionally committed to throwing open this odd system” and making it intelligible — particularly for people who “don’t have power, don’t have clout, don’t have counsel.”

Arbeit indicated he would ensure taxpayers that appear before him know when they may have access to legal representation. Guider and Fung both talked about how they would ensure taxpayers are prepared before they appear in court. They would conduct an informational call or pretrial meeting to give taxpayers an introduction to the litigation process, and ensure taxpayers know what to expect and what to bring to the courtroom.

Chevron. Crapo also zeroed in on the US Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo overturning the Chevron doctrine — a doctrine which had provided that courts should defer to an agency’s interpretation of an ambiguous statute. Crapo told the nominees that in light of that decision, there will be a “heightened importance for judicial awareness of agencies’ actions and review of agencies’ interpretations of the very law that will be interpreted in [their] courtrooms.”

All three nominees indicated they would be willing to find Treasury guidance invalid if it does not align with the relevant statute and legislative history — as is now required under Loper Bright.