The U.S. Supreme Court is currently receiving briefs in the challenge to the Patient Protection and Affordable Care Act. In this article, George Hani explores how one of the issues being briefed and argued is whether a tax statute, the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a) (AIA) prevents the Court from hearing the case. The Court's decision to consider the issue is unusual for several reasons. First, none of the parties in the suit maintain that the AIA applies. The Court specially ordered briefing on the issue and appointed counsel, Robert A. Long of Covington & Burling LLP, to argue as amicus curiae that the AIA applies and bars the suit. Second, while the AIA may be obscure to many, the government often relies upon it to dismiss suits brought by tax protestors as well as other legitimate, albeit arguably premature, grievances, and therefore is in the unusual position of arguing that the AIA does not apply. For those not familiar with the AIA, this article provides a summary of the reasons it became an issue in the healthcare cases, how it has been interpreted in the past, and some of the arguments that the parties and amicus may make.
This article was originally published in the Federal Bar Association Section on Taxation's Winter 2012 newsletter, Inside Basis.