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Of baseball, amicus briefs, and a continuing commitment to educational excellence.

Early October brought two letters to my office. The first came from Saul Kass of the Kansas City Chapter. Saul extended a compliment about the 2004-2005 Membership Roster, but suggested that TEI do more about recognizing its long-time members. Saul speaks from experience. He is a charter member of the Kansas City Chapter, having joined in 1950, when his hometown baseball team was the Athletics and a retired military man from Abilene, Kansas, was considering whether to leave the presidency of Columbia University to run for the presidency of the whole country. Dwight Eisenhower eventually did leave Columbia, doing a stint at NATO in Paris before throwing his hat into the ring in 1952. The extant records of the Institute do not address the national political intrigue of the day, but rather straight-forwardly report that on January 26, 1950, sixteen tax professionals requested a charter for a new chapter in Kansas City.

Saul's letter provokes these Kansas memories, in part because it arrived the same week Major League Baseball announced that the Expos were moving to Washington and because it was in Kansas City's Municipal Stadium that I saw my first major league game--the Yankees playing the A's. Another reason for the trip down memory lane is that, as part of TEI's 60th anniversary observance, we're searching our records and memory banks for items putting a human face on the Institute. Saul's letter does that. It continues:</p> <pre> One thing is missing [from the Roster] --recognition of long time members. I am currently listed as an associate member of the K.C. Chapter but am still active. I attend all board meetings and most regular chapter meetings.

I am a charter member of the K.C. Chapter having joined in 1950. I am a past president. Four years ago, the then-executive director of TEI honored me in person at our annual Christmas party of which I had been the "perpetual" chairman. I am still active at almost 90 (November). (Run every morning and take no medicine). I'm president or chairman of two companies, treasurer of another, and extremely active in another corporation I hope to take public. This does not take into account my civic activities. Keep up the good work! </pre> <p>Truth be told, I was not yet a glean in my mother's eye when Saul and his 15 colleagues formed the Kansas City Chapter in 1950. (My first trip to a baseball park came in 1958, when I was six.) That fact, however--especially considering that I am the graybeard (literally and figuratively) on TEI's staff--underscores the importance of capturing and celebrating our history. Accordingly, I invite any and all long-time members to share their memories of TEI's early days. Send your offerings to Incidentally, based on our records, we have nearly 500 full-time and associate members who have belonged to the Institute for a quarter century or longer. Compared with Saul and a few of his contemporaries--such as Morris Rinehart, whom I wrote about in the May-June issue, 25 years is nothing, but in my book it still deserves mention.

TEI Policy on Amicus Briefs: Playing by the Rules

The second letter I received was of a more serious nature. It was from a member who noted that TEI had recently filed amicus briefs in two cases--both reprinted in this issue--and expressed disappointment that the Institute had decline to file a brief in a case involving his company. He challenged the Institute to explain why it had become involved in the other cases but not in his company's. The request is a wholly legitimate one. Indeed, at a time when "transparency" is the rule of the day, TEI needs to do a better job of letting members know how we decide what we decide. This column is an attempt to do that. (Mary Lou Fahey of our staff wrote an article on this topic, "You've Got a Friend in Me": TEI's Practice of Filing Amicus Briefs, for the January-February 2000 issue of the magazine; it is accessible on our website.)

TEI has a formal policy on whether, when, and how it gets involved in court cases. The policy, which has been approved by the Board of Directors, is included in the Institute's Manual of Organization and Operation, which is provided to chapter leaders each year and is also available to the general membership (and public at large) via our website. That said, there is no doubt we can do more to highlight our policy--to make it more transparent--and with the launch of our new website, we will renew our efforts to give greater visibility to all our advocacy policies, and how our members can become "make their issues TEI's issues."

With respect to amicus briefs, TEI's policy proceeds from a determination that the Institute's technical activities are best directed to executive and legislative agencies, rather than the courts. Why? Because there is generally more "bang for the buck" in attempting to influence generally applicable legislation, regulations, or administrative policies than particular court cases which, by definition, are intensely fact-based. Nevertheless, TEI is committed to involvement in court cases where it will further the overall interest of TEI members, and as evidenced by this issue, the Institute not infrequently files amicus briefs.

TEI's decision to file (or not to file) in a particular case will depend on the posture of the case--who is the taxpayer? what court is the case lodged in? at what stage are the proceedings? It will also be affected by the nature of the legal questions involved and what TEI could contribute to their resolution--is the issue one of broad constitutional moment? does it involve interpreting of a statute that is unique to a state as opposed to being similar to statutes in other jurisdictions? will the outcome affect different segments of TEI's membership differently? is the issue or argument one of first impression or has it been litigated in the past? Finally, it depends on the time constraints imposed and TEI's other priorities.

Under our policy, TEI will become involved in a case when it can bring a new or unique perspective to the issues before the court. Consistent with its general advocacy policy, the Institute will not lend its name to briefs prepared by others or prepare "me too" briefs that do not address the merits of the case but rather only parrot the views of others. Finally, the Board has determined that TEI will not accept funding for its briefs. (This policy predates a Supreme Court rule that each brief contain a statement that "no counsel for a party has written this brief in whole or in part and that no person or entity, other than amicus, its members, or its counsel, has a made a monetary contribution to the preparation or submission of this brief.")

That's the policy. How does it apply in practice? When TEI receives a request to become involved in a case, the Institute's legal staff works with the appropriate technical committee to assess the merits of the case and to develop a recommendation on whether the Institute should become involved. On occasion, the staff and committee's leadership may disagree, but a committee recommendation to file a brief will always be forwarded to the Executive Committee for a final decision (even if the staff disagrees). The Institute's policy calls for the committee to prepare a summary of why TEI should become involved, and often the committee (and staff) will work with the affected taxpayer to prepare the summary.

TEI will always consider requests from members to become involved in their cases, but there is no requirement that a case involve a member. Nor is there a guarantee that TEI will file a brief owing to the company's having one, two, or more members. Thus, unlike other organizations whose charter might envision their becoming involved whenever the members are involved, TEI specifically eschews such a "chamber of commerce" approach.

Chapters Hit for the Cycle

Since my last column, I have had the honor of participating in three chapter meetings. On September 21, the Harrisburg Chapter sponsored its all-day Annual Tax Conference, which attracted 120 tax professionals as well as top-notch speakers. From Sarbanes-Oxley to pending federal legislation to state tax developments, the conference was great. Special thanks to Chapter President Dave Meyer, Chapter Representative Lynn Jordan, and everyone who contributed to the meeting's success.

The second meeting was the New York Chapter's Financial Services Conference, which it co-sponsored with the IRS's Large and Mid-Size Business Division. Chapter President Bob Levy and Conference Chair Paul Heller did a marvelous job of coordinating with Industry Director Paul DeNard in planning the September 27-28 conference, which focused on transparency and professionalism and featured, among other officials, Deputy Commissioner Mark Matthews and Chief Counsel Don Korb.

Finally, on October 1, the New England Chapter offered a federal tax meeting on Schedule M-3 and other developments. Steve Gillette and Chapter President Charlie Hill made me feel right at home.

Actually, I thought about ending the previous paragraph with the phrase "hit a home run," for the programs were all excellent. But I used the word "home" because TEI continues to be defined by a sense of belonging that may not be present in other organizations. Saul Kess's half a century of membership is one sign of what I mean. Another is something that happened at the New York Chapter meeting, where I saw members line up to sign a "Welcome Home" banner for General Counsel Mary Lou Fahey's stepson, Chris Ziener, whose tour of duty in Iraq ended uneventfully in mid-October. No one forced Chapter Representative Alan Getz and other members to scrawl their words of thanks and good will on the yellow sheet; they did it because that's what families do--support one another.

In my book, the chapter hit a home run, by making everyone who was present feel at home.
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Author:McCormally, Timothy J.
Publication:Tax Executive
Date:Sep 1, 2004
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