Clinical and Pro Bono Programs

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Tag: Keith Fogg

Shutdown Inflicted ‘Real Harm’ on Taxpayers, IRS Watchdog Says

Via The Wall Street Journal

By: Richard Rubin

The recent government shutdown damaged the Internal Revenue Service, an agency already struggling with budget cuts and aging computer systems, according to the IRS’s in-house watchdog.

IRS employees are working through more than five million pieces of correspondence and tens of thousands of backlogged audit responses and amended returns, according to an annual report released Tuesday.

In the week after the shutdown ended, the wait time on the IRS accounts-management phone line was 17 minutes, up from four minutes last year. And only 48% reached a live person, down from 86% in the equivalent week last year. Wait times were even longer on other IRS hotlines.

“Make no mistake about it, these numbers translate into real harm to real taxpayers,” wrote Nina Olson, the national taxpayer advocate, in her report. Ms. Olson operates as an ombudsman within the IRS and oversees employees who assist the public in dealing with the tax agency.

The way the IRS operated during the shutdown also hurt vulnerable taxpayers, Ms. Olson wrote. Before and during the shutdown, the IRS continued sending notices that had “serious consequences” but made it difficult or impossible for taxpayers to get the information they needed to respond.

For example, taxpayers couldn’t get seizures of their property reversed even if they were facing severe economic hardship and banks may already have removed the money from their accounts. Ms. Olson’s employees often assist with that work, but they were largely furloughed and unable to do so.

In some cases, taxpayers’ Tax Court petitions were returned to sender during the shutdown, meaning that tax collection continued even in cases where the law would suspend it. Fixing that problem will cost money for the court and for the IRS, Ms. Olson wrote.

“It is unconscionable for the government to allow its employees to enforce collection of taxes without the concomitant taxpayer rights protections enacted by Congress,” she wrote, recommending that lawmakers change the rules for future shutdowns.

Low-income taxpayers, in particular, are at risk of getting discouraged when the government stops responding, which could lead to accumulating interest and penalties.

“No one’s there and so there’s a higher likelihood that they could disengage entirely,” said Jennifer Breen, a partner at Morgan, Lewis & Bockius LLP who represents low-income and corporate clients.

On the corporate side, the shutdown is having lingering effects as IRS employees pick up cases they set aside months ago while interest costs accrue and companies spend money on advisers. Ms. Breen said she spent time on calls with IRS employees on Tuesday preparing for how to handle cases if another shutdown happens.

“Any time you stop the train from moving, the act of starting it back up again takes so much more effort,” Ms. Breen said. “We’re still figuring out all of the delays and all of the impacts.”

Tony Reardon, the president of the National Treasury Employees Union, which represents IRS workers, said the public should be alarmed by the “damage that has been done to the agency’s workforce and the taxpayers they want to serve.”

“Today’s report brings into sharp relief just how difficult it is for an underfunded, understaffed agency to function at a high level when most of its workforce was locked out for a month before the start of the filing season,” Mr. Reardon said.

In a statement about Ms. Olson’s report, the IRS said it is committed to improving its technology, enforcement and service.

“The IRS successfully reopened operations following the shutdown, and the agency is seeing a good start to the 2019 filing season,” the statement said. “We are continuing to assess the impact of the shutdown on our various operations across the agency and remain proud of the many IRS employees who have risen to the resulting challenges.”

Ms. Olson’s calls for tax simplification, taxpayer rights and a customer-service approach at the IRS have at times translated into change. The IRS and Congress have adopted some of her suggestions, including requiring brokers to report on the cost basis of stocks and adjusting some filing deadlines.

The shutdown came as the IRS was implementing the first filing season under the 2017 tax law, which came with new forms, new rules and changes to withholding and deductions that are confusing some taxpayers.

The new Form 1040, which has a postcard-style front page and backup schedules, increases the potential for errors, Ms. Olson wrote.

Also, experts expect average refunds are likely to be larger this year, but fewer people are likely to get them, which presents its own challenge for the IRS. Keith Fogg, a clinical professor of law at Harvard Law School, said Tuesday that if 1% or 2% of taxpayers shift to owing money at filing time, that can create lots of extra work for the IRS as employees negotiate installment plans and respond to collections notices.

“Even people who owe only a small amount of money, if they don’t have that small amount of money, [they] are going to put a big burden on the system,” he said.

Those immediate issues come alongside a longer-term shift at the IRS from a model that offers taxpayers more assistance to one that relies more heavily on them to navigate the system, Mr. Fogg said.

“Every time they have to interact with the IRS in some way, we make it really hard for them now,” he said.

Tax Clinic Student Amy Feinberg ’18 argues in the U.S. Court of Appeals for the Fourth Circuit

Via Harvard Law Today

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

For Feinberg, appearing before the U.S. Court of Appeals for the Fourth Circuit was also the first time she had ever been in a courtroom. Second on the docket that day, she had to wait nearly an hour to put forward her client’s case, even though Feinberg was “hyped and ready to go” almost since she arrived in Richmond, VA., the night before.

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, and her predecessor Jeff Zink ’17, have gotten while enrolled in the Clinic.

Other students in the Clinic 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.

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T. Keith Fogg named clinical professor of law

Via Harvard Law Today

Credit: Bob Laramie

Credit: Bob Laramie

Keith Fogg, an expert in tax law and procedure and director of Harvard Law School’s Federal Tax Clinic at the Legal Services Center, has been named clinical professor of law at HLS.

For more than 30 years, Fogg worked in the Office of Chief Counsel of the Internal Revenue Service. He joined the faculty of Villanova Law School, and has been a visiting professor at Harvard Law School. He developed a course for the Georgetown LL.M. program, Federal Taxation of Bankruptcy and Workouts, which he taught there for 15 years as an adjunct. He has also taught as an adjunct professor at William and Mary and University of Richmond law schools and as a visiting professor at University of Arizona.

“Keith brings years of experience within the government to his pioneering development of clinical opportunities in tax law, and shares with students and colleagues his remarkably broad and detailed knowledge of tax law and policy, in theory and in practice,” said Martha Minow, dean of Harvard Law School. “As a contributor to teaching, writing, policy making, and the improvement of actual law-in-practice, Keith is fabulous, and I will watch with delight as he grows the tax clinic here.”

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Lessons Learned with the Federal Tax Clinic

By Jonathan Holbrook, J.D. ’16

When I began working in Professor Keith Fogg’s Federal Tax Clinic, I already knew that I was interested in tax and would be practicing in the field after graduation. But I did not know how the clinic would operate, nor exactly how my clinical experience would relate to future practice. I now move forward from a semester in the Tax Clinic with three major takeaways: a better idea of how part of the IRS functions; a set of practical lawyering skills; and an understanding of how to use those skills to help low-income taxpayers.

Working with the Federal Tax Clinic meant learning a great deal about how the IRS works, the pressures it is under, and how taxpayers interface with its system. The cases I worked on offered an opportunity to interact with IRS employees and to strategize about how best to persuade them of our client’s case. It was particularly interesting to discuss clinical work with other students in the Clinic. Together, we were able to put into practice what we learned in the Clinic’s accompanying class sessions.

As part of the Clinic we were also able to attend the Tax Court when it visited Boston. We observed and assisted as Professor Keith Fogg helped pro se taxpayers prepare their cases. It was a valuable opportunity to see cases at a different stage than we saw in our day-to-day clinical work, as well as to get a taste of tax litigation.

Working with the Federal Tax Clinic also helped me develop practical lawyering skills and, in particular, a sense of legal judgment. In my classes thus far, examinations have typically involved synthesizing a defined set of rules, then applying them to discrete scenarios. It is a relatively straightforward process to determine whether the answer is “yes,” “no,” or “maybe.” In the real world, some clients’ issues match that model. With some base level of knowledge, it is possible to mechanically match the scenario up to the rules to produce the right answer. But the most interesting questions are those for which there is no preexisting, easily-accessible answer. In my experience with the clinic, I ran into many such situations. I suspect that is because: (1) low income taxpayers typically settle their cases with the IRS before litigation; and (2) low-income taxpayers have relatively few interested commentators producing secondary source materials relating to their problems. Thus, working with the Clinic meant often making judgment calls in filling out forms, drafting letters and offering advice. By the end of the semester, I had become much more comfortable making such judgment calls.

A final key aspect of the clinical experience was learning from the clients. Hearing about their multiple jobs, disabilities, split-up families, struggles to pay or receive child support and incomprehensible communications from the IRS made real what had previously only been a theoretical understanding of the challenges facing low-income taxpayers. Helping the Clinic’s clients work through their issues with the tax system and come into compliance felt very meaningful.

In sum, the fall semester was a very challenging and educational experience. The Clinic let me do more than I thought was possible. Whatever path my career takes, I’ve gained the skills to be a better lawyer and the tools to effectively help low-income taxpayers through pro bono work. I am grateful to the school and to Professor Fogg for making the Clinic possible.

Visiting Professor of Law T. Keith Fogg will teach new Federal Tax Clinic

The Office of Clinical and Pro Bono Programs is excited to announce the new Federal Tax Clinic, which will be part of the WilmerHale Legal Services Center in Jamaica Plain. The clinic will help defend the most vulnerable taxpayers while giving students the opportunity to learn tax practice and procedure.

Keith Fogg, Visiting Clinical Professor of Law, Federal Income Tax Clinic, Harvard Law School

Keith Fogg, Visiting Clinical Professor
of Law, Federal Income Tax Clinic,
Harvard Law School

The Federal Tax Clinic will begin in the 2015 fall semester and will be taught by Visiting Professor of Law, T. Keith Fogg.

Professor Fogg teaches at the Villanova University School of Law, where he also directs the Federal Tax Clinic. He is a national authority on tax procedure. He co-authors a blog with Professor Les Book entitled Procedurally Taxing, which focuses on current tax procedure issues and serves as the editor of the ABA Tax Section publication “Effectively Representing Your Client before the IRS.” Professor Fogg also authors the collection chapters in “IRS Practice and Procedure” created by Michael Saltzman and currently edited by Les Book.

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 is a past chair of the ABA Tax Section Pro Bono and Tax Clinics Committee and a current member of the ABA Tax Section governing council.

For more information, students can visit our Clinical Podcast webpage to listen to the information session about the new Federal Tax Clinic.