Professor Keith Fogg, right, who heads the Tax Clinic, with Fellow Audrey Patten
Tax Clinic students and faculty fight for clients’ rights, file potentially precedent-setting appeals.
The client worked at a minimum wage retail job earning $13,000 a year and was the family’s sole breadwinner. Because she and her aging mother had agreed to foster a relative’s child whose parents had been incarcerated, she filed a federal tax return claiming the earned income tax credit and advanced child tax credit, both of which are designed to benefit low-income households.
Then an IRS audit ruled her ineligible for those benefits – which would have brought an additional $5,000 into the household – saying the child’s foster care status did not qualify her as a dependent for purposes of these credits. But thanks to tenacious legal research and petition-filing by a Harvard Law School student working in the Tax Clinic of the Legal Services Center at HLS, the IRS ruling was overturned and the client received much needed additional income.
Leveling the playing field
Low-income clients come to Harvard’s Tax Clinic because they need an advocate to fight for their legal rights – rights that are meaningless if clients lack access to a lawyer to stand up for them.
Tax debt and the liens which the IRS files can prevent clients from getting jobs, while fixing tax problems allows them to reenter the job market and has a positive impact on their credit ratings.
Tax Clinic clients are military veterans, immigrants, or survivors of domestic violence. They find themselves under audit or in Tax Court because they have been victimized by scoundrel fly-by-night tax preparers who submit faulty returns on their behalf. Or they have survived abusive domestic relationships only to discover that spouses kept them in the dark about nefarious, unreported financial dealings that have potentially devastating tax consequences. Still others are vets who fail to file tax returns after losing jobs or businesses because they suffer from service-related post-traumatic stress disorder.
Others who wind up at the Tax Clinic have been wrongly incarcerated and are now receiving monetary settlements for their pain and suffering. Or they were exploited by for-profit schools and colleges and are now having their government student loans forgiven. Helping these individuals avoid unintended tax consequences of these settlements is another goal of the Tax Clinic.
In the earned income tax credit case, dogged research by law student Jimin He, HLS ’17, determined that the client had, in fact, done everything right — but the IRS auditors reviewing her case were apparently unaware of the temporary regulations recognizing foster siblings. Gathering the necessary documentation to prove guardianship and to show eligibility to claim the foster sister as a dependent, Jimin He prepared and filed the petition. The IRS conceded almost immediately, releasing to the client a much-needed check for $5,000 that had been previously frozen.
A new effort to set precedent
The Tax Clinic is led by Keith Fogg, who came to Harvard in 2015 as a visiting professor from Villanova to serve as founding director. He has recently been appointed Clinical Professor of Law at HLS to lead the growing tax clinic enterprise on a permanent basis.
Professor Fogg is a national authority on tax procedure, especially in the area of collection and bankruptcy law as it relates to tax. He worked for 30 years in the Office of the Chief Counsel of the Internal Revenue Service. The recipient of numerous honors, he was chosen as the IRS Chief Counsel Robert H. Jackson National Attorney of the Year in 2007 and the ABA Tax Section Janet R. Spragens Pro Bono Award winner in 2015. He co-authors a blog with Villanova Professor Leslie Book, procedurallytaxing.com, which focuses on current tax procedure issues and is an exceptionally popular ABA Top 100 Law Blog. He is also the editor of Effectively Representing Your Client before the IRS, which is published by the ABA and is the tax practitioner’s bible for IRS advocacy.
Professor Fogg’s goal is not only to offer the help of Harvard Law students to dozens of low-income clients with tax matters each year under supervision by LSC lawyers. Equally important, he wants to establish precedents that make tax laws and processes more favorable to low-income clients. In fact, Harvard’s is perhaps the only tax clinic among the 40 US law schools with such clinics that systematically sets out to use the courts and administrative processes to create new precedents that will benefit low income taxpayers nationwide. In the past year alone, the Clinic has been to Circuit Courts of Appeal twice arguing cases that it hopes will set new precedent about the rights of taxpayers.
“Keith is at the vanguard of the low-income tax movement,” says Caleb Smith, who was a Clinical Fellow in the Tax Clinic during the 2016-2017 academic year and now leads the Tax Clinic at the University of Minnesota Law School. “He thinks not only about how to solve individual tax problems, but he focuses on bigger systemic issues. He thinks broadly and creatively about how to advocate for low-income clients by advocating for bigger rule changes, whether it be by filing amicus briefs, commenting on administrative rules changes, or taking unfair decisions in Tax Court to the appellate courts.”
“While tax law represents a substantial and critical part of the Law School curriculum, before the Tax Clinic was established there was no clinic through which students could receive hands-on legal training in the actual practice of tax law,” says Daniel Nagin, Clinical Professor of Law, Vice Dean for Experiential and clinical Education, and Faculty Director of the WilmerHale Legal Services Center (LSC) at Harvard Law School. “It’s exciting that we can pursue these important teaching goals, respond to the unmet legal needs of vulnerable communities — and potentially set legal precedents that will benefit large numbers of low-income clients,” he says.
Students experience IRS negotiations, appellate court work
Many of the students who enroll in the Clinic have a deep interest in tax law. Others are not committed to a tax law career but are curious about a topic so central to the social safety net and have an interest in exploring public service law careers. Still others are motivated by a desire to deepen their understanding of administrative law practice and/or hone their appellate advocacy skills.
“I have one student who is a young associate at a well-respected law firm, and it turns out she is the only one on the team she is working with who has ever negotiated with the IRS, an experience she gained in the Clinic,” says Professor Fogg. “And so, at a very early stage in her career, she has become the lead person in at least one case because she has more expertise than her more senior colleagues in dealing directly with the IRS.”
In the last six months, students have appealed Tax Court decisions on behalf of low-income clients in the Fourth and Tenth Circuit Courts, in addition to arguing cases before the Second and Third Circuits. The appellate cases are focused on developing jurisprudence on equitable tolling in tax law, an historically neglected area that can allow low income taxpayers who have been misled by the IRS to have their day in court. The Clinic has also filed amicus briefs on this topic in the Tax Court and in the Ninth Circuit.
In each of these potentially precedent-setting cases, the Clinic’s student lawyers argued that the IRS misled their clients concerning the date by which they could file an appeal of a Tax Court ruling in an innocent spouse or collection due process case. The individuals with whom the Tax Clinic is now working clearly filed responses before the dates the IRS had told them verbally or in writing the responses were due – but because the IRS employees miscalculated the correct date or provided misleading communication, the taxpayers responses arrived beyond the timely filing window.
In their appeals, Tax Clinic attorneys and students argue that the statute of limitations should not bar the client’s claim in these cases. Each of the clients the Tax Clinic represents in these cases has a compelling reason for missing the deadline for filing and a good underlying case. In making the tolling argument, the Tax Clinic raises issues of equity and fairness. The Tax Clinic interprets recent Supreme Court decisions regarding the time frame to petition courts as giving the Tax Court the authority to allow late claims in appropriate cases.
Even if the Tax Clinic ultimately loses on the merits of these cases, the compelling nature of the issue and of the cases presented should provide a strong basis for seeking legislation to allow the Tax Court’s doors to be opened when a petitioner files late for a valid reason, Fogg says.
Fighting tax code trip wires
Bryan Camp, George H. Mahon Professor of Law at Texas Tech Law School and an expert in tax and bankruptcy law, writes extensively in Tax Notes and other major tax publications about the kinds of issues Fogg and the Tax Clinic seek to address. “The Tax Code is full of trip wires that prevent people from getting the relief they deserve, he says. “Keith’s work and the work of Harvard’s Tax Clinic is doing God’s work to convince courts to cut people a break.”
For students, the opportunity to prepare cases at an appellate level is almost unheard of in many law schools. Jeff Zink, HLS 2017, had the unusual opportunity to provide oral argument before a federal court of appeals as a third-year law student this past spring in one Tax Clinic case. “Most lawyers don’t get to do that until after many years of practice,” he says.
Zink answered questions from a three-judge panel, and opposing counsel was an experienced government tax attorney. “It was nerve-wracking,” he admits. “But it was an incredible learning opportunity. Preparing for oral argument is a challenging and unique process. Having gone through it once already will help me throughout my career.” Zink is now clerking for the First Circuit Court of Appeals in Boston. He plans to pursue a career in tax.
While appellate judges have ruled against the Tax Clinic’s clients in the Second and Third Circuit Courts on equitable tolling issue, the Tax Clinic is marching forward to present the issue in other circuits. Fogg hopes one of the remaining circuits will rule favorably given the strength of the cases and legal arguments. And if a circuit does decide favorably, it would be a precedent-setting ruling that would benefit many low-income taxpayers in the future.
Giving clients a voice
In addition to direct client work and the appellate work, the Tax Clinic has also submitted amicus briefs in cases involving areas such as innocent spouse issues and refund jurisdictions. It has also filed comments to the IRS on proposed rule changes that affect low-income taxpayers, such as those that relate to Tax Court rules and the Earned Income Tax Credit, the latter of which, in many ways, is the federal government’s largest anti-poverty program.
“Low-income taxpayers generally lack a voice in rulemaking that impacts their lives,” says Fogg. “And so, whether we are working on behalf of individual clients, filing potentially precedent setting appeals, or commenting on IRS rulemaking, our ultimate goal in the Tax Clinic is to make sure that low-income taxpayers have their voices heard.”