Alan Horowitz discusses the Federal Circuit’s decision in Grapevine Imports Ltd. v. United States, calling the ruling "a comprehensive decision that is a significant win for the government." The Federal Circuit's opinion "virtually ensures that a circuit conflict will persist on these issues, even if the Seventh Circuit reverses itself in Beard, so there is a strong likelihood that the Supreme Court will weigh in on these issues next year," he said.

"It is a great illustration of how the combination of Mayo and Brand X have given unelected officials substantial power to determine what is the tax law -- power that is in significant respects greater than that of the courts because most tax statutes inevitably contain ambiguities," Horowitz said. "If the Supreme Court considers one of these cases next year, it may want to revisit Justice Scalia's objection in his dissent in Brand X that 'Article III courts do not sit to render decisions that can be reversed or ignored by executive officers,' and whether this system adequately protects the rights of taxpayers."