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Simon E. Rodriguez, as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc. v. Federal Deposit Insurance Corporation, as Receiver for United Western Bank

Paid petition · United States Court of Appeals for the Tenth Circuit, No. 17-1281 · judgment January 29, 2019

Decided · February 25, 2020

Pre-decision estimate: 8% cert probability (95% interval 4%–13%)

Before the decision, about 1.9× the 4.1% base rate. The model weighted this up for a petition filed soon after the judgment below, a circuit split argued in the petition, and a business petitioner.

Question presented

The Internal Revenue Code permits affiliated corporate groups-consisting of a parent corporation and its subsidiaries-to file a consolidated income tax return. 26 U.S.C. §§ 1501, 1504(a). When the Internal Revenue Service issues a tax refund to an affiliated group, that refund is made "directly to and in the name of” the parent corporation, even if the refund arises in whole or in part from the losses of a corporate subsidiary. 26 C.F.R. § 1.1502-77(c), (d)(5). Three Circuits, including the court below, have adopted a federal common law rule known as the "Bob Richards rule," under which a tax refund paid to an affiliated group is presumed to belong to the corporate subsidiary whose losses gave rise to the refund unless the parties clearly agree otherwise. Four Circuits reject that rule, and instead determine ownership of a tax refund based on applicable state law. The question presented is: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law "Bob Richards rule," as three Circuits hold, or based on the law of the relevant State, as four Circuits hold.

Counsel of record

For petitioner
Mitchell Pearsall Reich
Hogan Lovells US LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 2 conferences

Amicus briefs
1 cert-stage

Argument & decision

Argued December 3, 2019 — Mitchell P. Reich · Michael Huston. Audio and transcript

Decided February 25, 2020. Opinion by Gorsuch.

Proceedings

Mar 30 2020
JUDGMENT ISSUED.
Feb 25 2020
Judgment VACATED and case REMANDED. Gorsuch, J., delivered the opinion for a unanimous Court.
Dec 03 2019
Argued. For petitioner: Mitchell P. Reich, Washington, D. C. For respondent: Michael Huston, Assistant to the Solicitor General, Washington, D. C.
Nov 14 2019
Reply of petitioner Simon E. Rodriguez, as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc. filed. (Distributed)
Oct 25 2019
CIRCULATED
Oct 23 2019
Record requested from the U.S.C.A. 10th Circuit...
Oct 17 2019
Brief of respondent Federal Deposit Insurance Corporation, as Receiver for United Western Bank filed.
Sep 13 2019
SET FOR ARGUMENT on Tuesday, December 3, 2019.
Aug 30 2019
Joint appendix filed. (Statement of costs filed)
Aug 30 2019
Brief of petitioner Simon E. Rodriguez, as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc. filed.
Jul 16 2019
Joint motion for an extension of time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 30, 2019. The time to file respondent's brief on the merits is extended to and including October 17, 2019.
Jul 09 2019
Joint motion for an extension of time to file the briefs on the merits filed.
Jun 28 2019
Petition GRANTED.
Jun 26 2019
DISTRIBUTED for Conference of 6/27/2019.
Jun 06 2019
Reply of petitioner Simon E. Rodriguez, as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc. filed. (Distributed)
Jun 04 2019
DISTRIBUTED for Conference of 6/20/2019.
Jun 03 2019
Brief of respondent Federal Deposit Insurance Corporation, as Receiver for United Western Bank in opposition filed.
May 29 2019
Letter from counsel for petitioner waiving the 14-day waiting period under Rule 15.5 filed.
May 03 2019
Brief amicus curiae of American College of Tax Counsel filed.
Apr 26 2019
Motion to extend the time to file a response from May 3, 2019 to June 6, 2019, submitted to The Clerk.
Apr 26 2019
Motion to extend the time to file a response is granted and the time is extended to and including June 6, 2019.
Apr 26 2019
Response of Simon E. Rodriguez, as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc. to motion not accepted for filing. (May 13, 2019 - paper version not received)
Apr 01 2019
Petition for a writ of certiorari filed. (Response due May 3, 2019)