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Veterans Legal Clinic Welcomes DAV General Counsel for Conversation About His Role & Career Path

Chris Clay answers questions from students and staff at Harvard Law School

Christopher J. Clay, General Counsel of Disabled American Veterans (DAV), shared his perspectives on current challenges facing disabled veterans and his experiences as general counsel of national non-profit organization during a talk at Harvard Law School on October 2. The event was hosted by the Veterans Legal Clinic of the Legal Services Center of Harvard Law School, and was cosponsored by the Harvard Law School Project on Disability, Armed Forces Association, National Security and Law Association, and The Transactional Law Clinics.

Clinical Professor Daniel Nagin—director of the Veterans Legal Clinic—gave opening remarks, introducing both Mr. Clay and Richard E. Marbes, Chair of the Board of Directors of the DAV Charitable Service Trust, who was in attendance at the event. Nagin described DAV’s role as an important resource for veterans seeking access to benefits and supportive services. This year marks the sixth year that the DAV Charitable Service Trust has provided funding to support the work of the Veterans Legal Clinic.

Mr. Clay—a Ph.D-trained philosopher turned lawyer—spoke about his background, his unique career path, and his duties as the general counsel of a large nonprofit.  He answered questions from the audience on a wide range of topics, including how DAV collaborates with other veterans organizations, DAV’s relationship with the Department of Veterans Affairs (VA), and whether the role of general counsel differs between non-profit and for-profit organizations.

Mr. Clay also discussed DAV’s origins, structure, and accomplishments. DAV is a congressionally-chartered organization that was founded in Cincinnati with about 20 members and has now grown to over 1 million members. DAV offers a range of services to veterans, from no-cost advocacy before the VA to free rides to medical appointments. According to Mr. Clay, DAV handled over 250,000 VA disability claims last year and has donated over 4,000 vans and countless volunteer hours over the past few years to transport veterans to medical appointments at VA medical centers nationwide.

In addition to helping veterans access benefits and services, Mr. Clay discussed how DAV has sought to encourage veterans to live fuller lives. One program brings together severely disabled veterans to participate in winter sports and other activities that, Mr. Clay said, help veterans feel that “if I can do this, I can do anything.” Finally, he emphasized that the DAV’s veteran members are the ones that ultimately run DAV, which “ensures that the passion that began DAV remains with DAV.”

 

LSC Engages in Legal Outreach to Homeless Veterans at Stand Down 2018

LSC’s Betsy Gwin, Dana Montalto, Dan Nagin, Julia Schutt, Keith Fogg, Steve Kerns, and Evan Seamone volunteering at Greater Boston’s Stand Down 2018

A team of volunteer students and staff from LSC partnered with Veterans Legal Services to provide legal advice to over 120 veterans who are homeless or at risk of homelessness at Greater Boston Veterans Stand Down 2018. The event, which was held on Friday, September 7, at City Hall Plaza, brings together over 100 community providers in order to provide veterans with access to medical, housing, employment, legal, and other services.

Alongside Veterans Legal Services and pro bono attorneys, LSC staff volunteered in the legal assistance tent to advise veterans on areas of law such as VA benefits, Chapter 115 state veterans’ benefits, other public benefits, tax debt issues, and discharge upgrades. In addition to offering legal advice, LSC staff provided referrals to other service providers and in a few cases has followed up to explore potential legal representation.

Clinic Attorney Evan Seamone, whose work is supported through a generous grant from the Massachusetts Attorney General’s Office in order to provide legal assistance to underserved veterans, reflected on the impact of Stand Down as an outreach event:

In a noteworthy trend this year, a number of veterans at the legal tent shared that they had learned valuable information at the Stand Down after years of failed attempts.  An answer awaited them, but finding it had been a major hurdle.  This year’s Stand Down underscored the incomparable value of concentrating essential services and resources in a single and accessible place.

The event was coordinated by the New England Center and Home for Veterans.  More photos from the event are online here.

Veterans Legal Services, pro bono attorneys, and LSC students and staff at Stand Down 2018

LSC releases report on LGBTQ Veterans Issues

In collaboration with community partners OUTVETS, and Veterans Legal Services, LSC’s Veterans Legal Clinic recently released a report on how to fully honor the service of LGBTQ veterans, especially those who received less-than-fully honorable discharges from the military. The report summarizes the findings made by participants—including dozens of experts on LGBTQ military and veterans matters from the US and Canada—during a two-day summit at Harvard Law School in April 2018 on the unique issues faced by LGBTQ veterans.

As a result of decades of discrimination against LGBTQ servicemembers, enshrined in military policies like “Don’t Ask, Don’t Tell” and predecessor policies, more than 100,000 servicemembers were discharged prematurely based on their sexual orientation. These discharges not only impose profound stigma on LGBTQ veterans, they also have the potential to erect barriers that prevent LGBTQ veterans from receiving critically needed veterans benefits, healthcare, and supports. Despite the repeal of “Don’t Ask, Don’t Tell,” to this day thousands of LGBTQ veterans are still denied access to essential veterans services—with dire consequences for their mental and physical health, financial wellbeing, and peace of mind.  The Department of Defense’s procedures for changing a veteran’s discharge status remains totally reactive, requiring individual veterans to submit a detailed application rather than identifying and notifying veterans of applicable changes in standards. Once a veteran does apply, it can take between 12 to 18 months just to receive a response. The majority of LGBTQ veterans eligible—estimated to be as many as 92%—have not applied for a discharge upgrade.

Titled “Do Ask, Do Tell, Do Justice: Pursuing Justice for LGBTQ Military Veterans,” this report details the Summit’s findings about how to begin breaking down the considerable barriers LGBTQ veterans face as they pursue justice and access to essential services.  The report concludes that LGBTQ veterans, while far from a homogenous group, do face common challenges as a result of prior discriminatory policies enforced the U.S. military and their ongoing legacies. Many stakeholders are actively working to meet the needs of LGBTQ veterans, but greater coordination between organizations, institutions, and individuals is needed to ensure that all LGBTQ veterans seeking help or supports have meaningful access. The report recommends that current efforts should not just continue, but should be enhanced and expanded:

Advocates for and allies of the LGBTQ veterans community should not be satisfied with the status quo of well-intentioned but (thus far) unsuccessful attempts at federal legislation to remedy the effects of discriminatory discharge policies, nor with the low rate—just 8%—of eligible veterans who actually seek relief through discharge upgrade processes.

The report’s recommendations include proposals for increasing outreach and media coverage, pursuing new litigation strategies, improving cultural competency, and engaging in policy reform and political action.

Read it here: Do Ask Do Tell Do Justice – Summit Report June 2018

Students Help Challenge the Exorbitant Cost of Calling from Jail

When does a simple 10 minute phone call from one spot in Massachusetts to another cost nearly $5?

When you are in the county lock-up in Bristol County in the southeast corner of the state.

These exorbitant fees can mount quickly and are a huge burden for families of people awaiting trial or serving sentences. They are now also the focus of a class action lawsuit that has given a pair of Harvard Law School students the opportunity to help frame both the legal and media strategies for prosecuting a high profile case to upend a lucrative prison telephone company contract that exploits inmates while enriching one county sheriff’s coffers.

Kelly Ganon,’19, Dylan Herts ’19 and Roger Bertling, Harvard Lecturer on Law.

The case was filed in May against Bristol County (Massachusetts) Sheriff Thomas M. Hodgson and Securus Technologies, Inc., a Texas-based company that provides phone services for inmates across the country. Brought by four named plaintiffs – two of them inmates—the case alleges that the contract between the sherrif’s office and Securus represents an illegal kickback scheme that nearly doubles the cost of calls made from the county jail.

Organizations filing the litigation on behalf of the plaintiffs were the Consumer Protection Clinic at the Legal Services Center of Harvard Law School, the National Consumer Law Center, Prisoners’ Legal Services, and Bailey & Glasser. The lawsuit seeks an injunction to halt the payment scheme and monetary relief to return the money extracted from class members.

Which legal arguments to use

“We are representing a group of people who are caught between a rock and a hard place,” says Kelly Ganon ’19, who was a paralegal in the Economic Crimes Unit at the U.S. Attorney’s Office in Boston before coming to law school. Ganon also worked in the Massachusetts Attorney General’s Office the summer after her first year in law school. “It was fascinating to work with seasoned attorneys to strategize about how to put the best foot forward on a case,” Ganon said.

Ganon and fellow student Dylan Herts ’19 researched a range of legal arguments that they or the attorneys posited could be used. “I’d never been involved in a civil case from the beginning, looking critically at all the various ways the case can be taken, the legal arguments that can be made, and making decisions about what will stand up best,” said Herts.

Herts, who prior to coming to HLS worked as an economic litigation consultant providing expert witnesses to firms defending clients in securities and antitrust litigation, observed: “This was my first experience coming from the plaintiff side. It was amazing to have the whole universe available to consider in terms of how to frame the litigation. What can we bring up? What should we bring up?”

The ability to take Securus to court only arose when the company moved over the past few years to be viewed as an internet service provider rather than a phone utility. “As a traditional phone utility, it could not be sued on these claims, but as an internet company providing phone calls over the internet it could be,” says Harvard Law School Lecturer on Law Roger Bertling, who leads the Consumer Protection Clinic at LSC and is the lead attorney from Harvard on the case.

Fees and kickbacks

Massachusetts law prohibits sheriffs from charging prisoners fees to subsidize the cost of their incarceration unless such fees are authorized by the legislature. Rather than attempt to assess unauthorized fees directly, the BCSO arranges for Securus, a private vendor, to extract revenues from individuals like family members, friends and attorneys, who accept collect phone calls from prisoners which are unrelated to the cost of providing the phone service. Those revenues, called “commissions,” are then redirected to the sheriff’s office pursuant to the contract between the County and the company, thus circumventing the legal prohibition, Bertling explains.

Between August 2011 and June 2013, Securus paid the Bristol County Sheriff’s office $1.7 million in exchange for an exclusive contract to provide inmate phone services. It paid the sheriff’s office $200,00 per year plus a lump sum of $820,000 to cover 2016 to 2020. To offset these costs, Securus charged inmates, their families and friends and attorneys exorbitant fees for phone calls. Inmates had no choice but to use Securus. Bertling adds: “We are not challenging a filed rate already agreed to by the Commonwealth, but rather commissions that have not been authorized by the legislature.”

Fees for calls in Bristol include $3.16 for the first minute and 16 cents for each additional minute. If calls are disconnected – a common complaint from inmates – reconnecting results in a recurrence of the $3.16 charge for the first minute. A simple 10 minute phone call can cost $4.76.

Statewide and nationwide impact

If the case is ultimately successful, it could have an impact on thousands of inmates in Massachusetts. It could also impact numerous inmates in other states whose correction facilities have entered into similar telephone servicer provider agreements. Securus provides phone and video calling services for jails in 10 of the 14 counties in Massachusetts, as well as for the state’s prisons. Contract terms vary widely among jurisdictions. In the Massachusetts state prisons, for example, phone calls are 10 cents per minute with no special fee for the first minute.

Impact litigation and media

“When you are doing impact litigation like this case, the lawyers are doing a lot that is not litigation,” notes Herts, who says he is hoping to do consumer protection antitrust work with the government in the future. “Media coverage was an extremely important facet of this case. When the litigation was filed, I saw an article about it online in the Boston Globe. Then a few days later the Globe also did an editorial,” he said.

The editorial sided with the arguments being made in the lawsuit and against the practices of Securus and the Bristol Country Sheriff’s department. It also called for legislative reforms that would prevent similar price-gouging practices.

“An immense amount of discussion among the groups working on this suit were focused on how are we going to tell this story,” Ganon says. “We focused a lot of time on the narrative that sets the stage for the legal arguments in the filing.”

Consumer protection offers great experience

As students in the Consumer Protection clinic course, Ganon and Herts began their semesters helping individual consumers facing credit card debt cases in state district court, which was equally rewarding.

“At the beginning of the semester, Professor Bertling asked each student what they wanted to do after graduation and I told him I wanted to be a trial attorney,” Ganon says. She was given the opportunity to represent clients in state district court and work on a case requesting a stay for a client who was battling nine lawsuits related to student loan debt.

Herts, who also had the opportunity to represent clients in state district court as well as working on the prison phone call case, says he hopes to stay involved with the case next semester by either taking an advanced level course with the Consumer Protection Clinic, or through another route. “The experience is teaching me a lot – and the issue is really important.”

— Julie Rafferty

Photo credit: Martha Stewart

 

LSC To Celebrate Its 40th Anniversary April 5, 2019

The Legal Services Center of Harvard Law School  turns 40 in 2019.  A series of activities, culminating in a celebration on Friday, April 5, 2019, will recognize the organization’s  40 years of fighting for fairness and justice and its work meeting the community’s legal needs, training the next generation of lawyers, and fostering legal, economic, and social change.

Check back to this page for details on activities planned and for more information about the Friday, April 5, 2019 celebration.

Kensinger Named Co-winner of 2018 ABA Tax Section Spragens Pro Bono Award

Legal Services Center volunteer tax attorney Dale Kensinger has been named recipient of the Janet Spragens Pro Bono Award from the American Bar Association’s Tax Section. He will receive the award at a luncheon on February 10, when the Tax Section holds its mid-year meeting in San Diego, California.

The ABA Tax Section established the award in 2002 “to recognize one or more individuals or law firms for outstanding and sustained achievements in pro bono activities in tax law. In 2007 the award was renamed in honor of the late Janet Spragens, who received the award in 2006 in recognition of her dedication to the development of low income taxpayer clinics throughout the United States.”

The Janet Spragens Pro Bono Award is the only annual award given by the Tax Section.

Co-winner of this year’s award is co-winner is Kathryn Sedo.  Sedo directed the low income taxpayer clinic at the University of Minnesota for 35 years before her retirement in May 2016

Kensinger has been a tax lawyer for almost five decades. Through years of service he has demonstrated an ongoing commitment to pro bono activities assisting individuals with their federal tax obligations. He currently volunteers with the Federal Tax Clinic at the Legal Services Center (LSC) of Harvard Law School, and over the past several years he has volunteered an average of more than 500 hours per year both directly representing clients and assisting students with their cases.

Kensinger also played a vital role in assisting with the start-up of the Tax Clinic at LSC.

In 2012, LSC started a Veterans Legal Clinic. As the Veterans Legal Clinic became operational, its staff noticed that many of its clients needed assistance with tax issues. Because LSC did not have a tax clinic, the Veterans Legal Clinic sought a means of assisting its clients with their tax problems and providing holistic representation wherever possible.

Through conversations with tax lawyers in Boston, the Clinic director learned that the incredibly talented and dedicated former director of the University of Missouri-Kansas City Low Income Tax Clinic (UMKC-LITC) had retired and happened to be living in Boston in order to be nearer family.

A cold call to Kensinger in 2013, followed quickly by a meeting at the Legal Services Center to discuss the unmet tax needs of low-income veterans were all that the former UMKC- LITC director needed to be brought out of retirement. Soon, volunteer law students from Harvard were working under Kensinger’s expert tutelage and praising his kind, patient, and thoughtful mentorship.  As he began to help more and more clients — especially veterans — additional waves of clients began to seek the assistance of the new pro bono project.

As the client base grew, the Veterans Legal Clinic became convinced that it would be beneficial to start a tax clinic at LSC. Out of Kensinger’s volunteer work — and with his expert guidance — grew the Federal Tax Clinic at the Legal Services Center of Harvard Law School.

Current Federal Tax Clinic Director Keith Fogg — who first worked with Dale in 1977 when they were assigned to the same branch in the Refund Litigation Division of the Office of Chief Counsel, IRS—says “the award could not be going to a more deserving recipient.  Dale’s commitment to low income taxpayers provides a model for lawyers who still have much to offer as they enter the retirement phase of their careers.  We are extremely fortunate to have such a knowledgeable and caring volunteer working in the tax clinic.”

Dan Nagin, Director of the Legal Services Center and the person who recruited Kensinger to work in establishing the tax clinic, stated that “in short order after I reached out to Dale, he was enthusiastically heading a new pro bono project focused on tax at the Legal Services Center and representing scores of clients from the Veterans Clinic before the IRS.”

Kensinger graduated from University of Pennsylvania Law School and served in the military for three years during the Vietnam War era.  Upon the completion of his military obligation, he worked for over three decades with the Office of Chief Counsel, IRS, spending the bulk of his time in the Kansas City field office where he served for many years as the Assistant District Counsel.

After a distinguished career with the government, Kensinger began a second career as a professor and the highly successful co-director of the low income tax clinic at the University of Missouri, Kansas City.  During his time as the director of the low income taxpayer clinic at UMKC, he served in leadership on the Low Income Taxpayer Committee of the Section of Taxation for several years. Kensinger taught at UMKC for a decade before retiring again and moving to Boston in order that he and his wife could live near his daughter — a professor at Boston College — and help care for a granddaughter.

Tax Clinic Student Argues Case Before US Court of Appeals

In December, Amy Feinberg ’18 became the second Federal Tax Clinic student to have the exhilarating experience of arguing an appeal in circuit court since the Clinic opened at Legal Services Center of Harvard Law School in 2015.

Clinical Professor of Law Keith Fogg, who directs the Federal Tax Clinic, notes that many attorneys can be practicing for 10 or more years before they get the kind of experience that Feinberg has gotten while taking the Clinic.

Other students  have had the opportunity to file amicus briefs and help prepare appeals for court.  All students work directly with clients and carry a docket of cases. And almost all have the opportunity to negotiate directly with the IRS and state tax authorities – experiences that many lawyers seldom get, even if they are tax attorneys.

“The opportunity to appear in the circuit courts, file amicus briefs, and to promote law change through policy advocacy if necessary is an outgrowth of a strategy that the Federal Tax Clinic has developed to assist taxpayers, many of whom are low income, who have missed the deadline to file a petition in the United States Tax Court by one or more days because of misleading information or notices sent by the IRS, “ Fogg says.

Learn more about Feinberg’s experience and the work of the Federal Tax Clinic on this issue here.

Tax Lawyer from India Describes Her LSC Federal Tax Clinic Experience

Varsha Bhattacharya L.L.M. ’18  is a tax lawyer hailing from India who previously dealt primarily with corporate clients and is now getting an L.L.M. degree at Harvard Law. As a student  in LSC’s Federal Tax Clinic, she not only needed to learn an entirely new body of tax law and administrative proceedings, she also found herself working with low-income individuals rather than corporations.   As she notes:  “A lot about getting the work right lies in caring about the client. The moment I call a client, hear their story, and feel a direct connection with them, as their representative I feel a greater responsibility to give them the best chance in their cases.”  Learn more

Is VA Wrongfully Excluding Hundreds of Thousands of Veterans from Needed Care

In a publication of the Penn State Law Review, Dana Montalto of the Legal Services Center of Harvard Law School, along with colleague Bradford Adams of Swords to Plowshares, provides a legal history and analysis of how the Department of Veterans Affairs (VA) determines who is eligible for basic health care and support services – and who should be excluded.  Although the 1944 GI Bill of Rights makes clear that only those veterans who “engaged in severe or repeated misconduct without explanation” should be barred from receiving benefits, Montalto and Adams argue that the VA incorrectly interprets the law, thereby unfairly preventing hundreds of thousands of former service members from receiving needed benefits.

Since World War II, the VA has been required to provide veterans’ benefits to all service members who left under conditions classified as “other than dishonorable,” so that only those who received or should have received a “dishonorable discharge” should be barred.  Service members who engaged in less severe misconduct, who were experiencing mental illness, or who suffered from other hardships should still be eligible for benefits.  Montalto explains that the VA has improperly implemented Congress’s statutory standard, excluding former service members for minor disciplinary problems during service and failing to consider extenuating or mitigating circumstances.

Montalto and Adams propose that the VA adopt a more holistic approach when determining whether a veteran is eligible for benefits.  Some changes to the VA’s eligibility review procedure could include starting with a presumption of eligibility instead of ineligibility for former service members, including a consideration of positive or mitigating factors in each eligibility case, and providing access to basic healthcare while eligibility reviews are pending.

Read the entire article at http://pennstatelawreview.org/wp-content/uploads/2017/11/Adams-Montalto-article.pdf

For more information regarding the Veterans Legal Clinic’s advocacy on behalf of veterans with bad paper discharges, read the following publications:

https://www.swords-to-plowshares.org/wp-content/uploads/Underserved.pdf

https://www.swords-to-plowshares.org/wp-content/uploads/VA-Rulemaking-Petition-to-amend-regulations-interpreting-38-USC-10122.pdf

 

Helping Low-Income Clients Navigate the IRS

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.”