Altera certiorari

I’ve blogged occasionally (such as here and here about the Altera case, in which the Ninth Circuit (reversing the Tax Court) upheld a tax regulation that limited a U.S. multinational’s ability to engage in transfer pricing shenanigans with a wholly owned tax haven affiliate under the cost-sharing rules. I also joined in an amicus brief to the 9th Circuit, urging that they reverse the Tax Court’s uncharacteristically misguided ruling in the case.

The taxpayer in Altera is seeking certiorari, and the Supreme Court will consider the petition later this month. As Susan Morse and Steve Shay note here, the government brief has far the better of the debate, and cert ought to be denied.

Morse and Shay further note that there is relatively little of broader legal interest at stake in the case, at this point in the U.S. international tax regime’s evolution, because it’s mainly a backward-looking issue about a narrow question: whether “the government changed its tune. But to the contrary, the government has been singing the same tune for two decades or more.

What worries me is that the Supreme Court’s dominant five may be looking opportunistically for a chance to flog the IRS and regulatory discretion (other than when they like it) more generally, and may be too ignorant and indifferent to the actual legal context here to be much put off by Altera‘s unsuitability for such a purpose. If they both properly understand the issues here and are acting like judges, rather than legislators, then a grant of certiorari ought to be most unlikely. But these days one never knows.