July 14, 2020

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July 13, 2020

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Senior Tax Court Judge Robert A. Wherry, Jr. Retires

On January 3, 2018, Chief Judge Marvel of the US Tax Court (Tax Court) announced that Senior Judge Robert A. Wherry, Jr. fully retired as of January 1, 2018, and would no longer be recalled for judicial service.

Judge Wherry was appointed on April 23, 2003, by President George W. Bush. In 2014, Judge Wherry took senior status and continued to try cases. By statute, the Tax Court is composed of 19 presidentially appointed judges. Judges are appointed for a term of 15 years and after an appointed term has expired, or they reach a specified age, may serve as a “senior judge” if recalled by the Tax Court. The Tax Court also has several special trial judges, who generally preside over small tax cases.

Over his almost 15-year tenure at the US Tax Court, Judge Wherry authored more than 260 Division Opinions, Memorandum Opinions and Summary Opinions. (We have previously discussed the differences between each type of opinion.) Prior to joining the Tax Court, Judge Wherry was in private practice and active in many of the local Colorado Tax Bar associations and the American Bar Association Section of Taxation.

Just a few of his many notable Division Opinions include: ADVO, Inc.  v. Commissioner, 141 TC 298 (2013), a key decision regarding Internal Revenue Code Section 199’s application to contract manufacturing arrangements; Shea Homes, Inc. v. Commissioner, 142 TC 60 (2014), allowing a homebuilder to defer the recognition of income until the entire development in which the homes were located was complete; and Intermountain Insurance Service of Vail v. Commissioner, 134 TC 211(2010), holding that the overstatement of basis in cases involving property held outside a trade or business did not trigger the longer six-year statute of limitations on assessment. Intermountain was one of the cases that lead to a circuit split and ultimately to the Supreme Court’s opinion in United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836 (2012). The Supreme Court agreed with Judge Wherry’s holding and found that the extended limitations period for the government to assess a deficiency did not apply when a taxpayer overstated the basis in property that it had sold.  For further discussion of the Home Concrete saga. Another notable opinion by Judge Wherry was Taproot Administrative Services, Inc. v. Commissioner, 133 TC 202 (2009), which contains an informative discussion of the deference afforded to different types of guidance issued by the Internal Revenue Service.

© 2020 McDermott Will & EmeryNational Law Review, Volume VIII, Number 8


About this Author

K. Christy Vouri, tax, international, world, attorney, McDermott Will, law firm

K. Christy Vouri is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  She focuses her practice on U.S. and international taxation. Prior to joining McDermott, Christy served as a law clerk to Judge Robert A. Wherry, Jr. in the United States Tax Court.  She is an adjunct professor of tax practice and procedure litigation at the Georgetown University Law Center.

Elizabeth Erickson McDermott Will Emery Law Firm Tax Attorney

Elizabeth Erickson is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's Washington, D.C., office.  She is a member of the U.S. & International Tax Practice Group, and focuses her practice on tax controversies, including tax litigation. She has extensive experience in resolving domestic and international tax matters at all stages of dispute, including Internal Revenue Service examinations, administrative appeals, and litigation in the US Tax Court and district courts. She has advocated for clients before the Internal Revenue Service National Office, negotiated Advance Pricing Agreements with the Internal Revenue Service and other tax authorities, and resolved disputes through the Competent Authority process.

Elizabeth also advises clients on tax planning matters, including captive insurance arrangements and the tax treatment of settlement payments and legal fees (including tax reporting requirements).

Elizabeth is the hiring partner for the Washington, DC office, and is a former co-chair of the Firm’s Pro Bono and Community Service Committee for the Washington, DC office. She speaks frequently on tax controversy matters for professional organizations and is an editor of the Firm’s Tax Controversy 360 blog.