IPT Policy and Procedures Regarding Requests for Amicus Briefs 

 
See also: Amicus Filings.

 

Policy


In addition to its educational mission, the Institute for Professionals in Taxation® is dedicated to the promotion and preservation of fair and nondiscriminatory taxation by state and local governments.  Toward that end, IPT sometimes files briefs as amicus curiae in cases pending before the United States Supreme Court or state supreme courts (i.e., the state appellate court of last resort). As indicated by the rules of the U.S. Supreme Court, the purpose of an amicus brief is to “bring to the attention of the Court relevant matter not already brought to its attention by the parties.”

Procedure


The filing of an amicus curiae brief by IPT requires a favorable recommendation by the Legal Committee and Corporate Counsel, and the approval of IPT’s Board of Governors.  Requests should be made in writing and directed to Chris Muntifering, Executive Director (cmuntifering@ipt.org).  Requests must be received at least thirty (30) days before the deadline for any required motion, brief or other action by the Institute. That 30-day lead time is a minimum.  The longer lead time that IPT has to review the case and solicit the aid of outside counsel on a pro bono basis, the greater the likelihood that IPT will be able to file an amicus brief that follows the criteria below.   The request should identify the party on whose behalf the amicus brief is requested, specify the deadline for filing the amicus brief, and be accompanied by copies of the following: 

1. The final decision with respect to which review by the U.S. Supreme Court or state supreme court is sought.
2. All lower court decisions.
3. All briefs filed by the parties in lower court proceedings (including memoranda of law submitted in connection with the final judgment of the trial court).
4. If and to the extent needed for meaningful review of the request and preparation of an amicus brief, excerpts from the record on appeal.
5. The request should also indicate how the issue or issues under consideration would be of interest to IPT’s membership at large or to those members of one of the five categories of IPT membership (property tax, sales tax, income tax, value added tax, and credits & incentives).  It should also identify any taxpayers, taxpayer associations, or industries that oppose, or could reasonably be expected to oppose, the position taken by the party requesting that IPT file an amicus brief.
6. If permitted by the applicable rules of court, the request should also indicate whether the requesting party proposes to bear any of the direct costs IPT might incur in engaging outside counsel and in printing and securing copies of the amicus brief.  If the requesting party is not willing or permitted to bear those costs, the requesting party should identify local counsel in the jurisdiction who would be willing to prepare the amicus brief on a pro bono basis.  

The following is a list of the most significant criteria that IPT considers in deciding whether to accept a request to file an amicus brief; and it will greatly assist in IPT’s analysis if the request includes, to the extent possible, a discussion of how these criteria are satisfied with respect to the case and the issues involved.

1. Does the case present a significant issue and one of broad import within IPT’s membership? IPT will ordinarily not act favorably on a request in a matter of interest to a small segment of its membership. 
2. Would there be a strong consensus among IPT’s membership for the taxpayer’s position, or would the issue divide the membership?  IPT is obliged to serve its members equally and generally avoids taking positions which pit some of its members’ interests against those of other members.   Note:  The Institute will not necessarily refrain from filing a brief simply because one or a few members oppose doing so if there is otherwise overwhelming support within the membership for the argument(s) to be made in the amicus curiae brief.  The decision in such instances will be made by the Board of Governors on a case-by-case basis, taking into consideration the overarching goal of promoting equitable administration of taxes and the recommendations of the Legal Committee and Corporate Counsel.
3. Is the issue clearly framed as a matter of law? IPT will not appear as a friend of the court where there are disputes over material, underlying facts. 
4. Is the request for a brief to the United States Supreme Court or a state appeals court of last resort?  IPT generally does not file amicus briefs in cases that are still making their way through the lower courts. 
5. Is there an opportunity for an IPT amicus brief to make some meaningful contribution to the court’s deliberation of the case?  The courts do not need or want briefs that simply parrot arguments presented by the parties.  IPT’s policies reflect considerable restraint, in the belief that being selective in the filing of amicus briefs will enhance its credibility with the courts, and that filing friend-of-the-court briefs in cases that do not involve significant legal issues and/or where IPT cannot present a distinct perspective will dilute the impact that IPT’s participation might otherwise have in more appropriate cases.
 6. What other organizations are filing, or are expected to file, amicus briefs in the case?  While the submission of an amicus brief by another entity would not foreclose IPT from accepting an invitation to prepare one of its own, that fact would be a consideration, in that IPT might consider its members’ interests adequately served by the involvement of another group with a similar stake in the case. On the other hand, IPT might consider its participation necessary as a way of sending notice of the importance of the issue under review. 
7. Has the request been made sufficiently in advance for IPT to arrange for a well-conceived and executed brief? Last minute requests cannot be accommodated. 
8. Do the benefits of the preparing and filing the brief justify the resources that IPT will expend on it?  In weighing the costs and benefits, IPT will take into account whether outside counsel in the jurisdiction is willing to prepare the brief on a pro bono basis.
9. Review of state tax disputes by the United States Supreme Court is extraordinarily rare, and review by state supreme courts may be discretionary, so that the chance of securing review is often remote.  Where the request is for IPT to file an amicus brief in support of a taxpayer’s petition for review or other request for the court to hear an appeal, the decision whether to accept the amicus request ordinarily will not be based on the probability that the case will be heard but on IPT’s view of the taxpayer’s position and arguments on the merits of the case, and the likelihood that the taxpayer’s position will prevail in the event that the case is accepted.