Kostelanetz attorneys Andrew Weiner and Abigail Burke co-authored an amicus brief filed by the American College of Tax Counsel (ACTC) on August 29, 2024, in the case of John Paul Salvador v. United States (No. 24-108).
The issue in Salvador’s case was whether a late tax return that is otherwise correctly prepared constitutes a “return” for purposes of Section 523(a) of the Bankruptcy Code and whether and under what circumstances debt from a late-filed return can be discharged in bankruptcy. The ACTC’s brief supported Salvador and urged the Supreme Court to adopt a clearer and more uniform definition of a “return” for debtors who’ve declared bankruptcy.
As the Bankruptcy Code currently stands, debtors cannot discharge tax debts if tax returns were not filed. Federal appeals courts have been split for decades on whether tax debt related to late tax returns is dischargeable or not. And the IRS’s position is that a return filed after an assessment of the relevant tax does not count as a return. Since many debtors who file for bankruptcy have tax debts they cannot pay, the current process often leaves them uncertain about their financial future and subject to disparate treatment depending on the jurisdiction in which they are filing for bankruptcy.
Abigail and Andrew hosted a webinar on October 31, 2024, discussing the Salvador case. A recording of the webinar can be viewed here.
While ACTC and four other amicus urged the Supreme Court to consider this issue further and make the process uniform under federal tax and bankruptcy laws, the Court denied certiorari on November 4, 2024, prolonging the decades-long circuit split.
Andrew is an award-winning trial attorney with more than a decade of experience with the U.S. Department of Justice Tax Division, where he briefed and argued approximately 50 cases before the United States courts of appeals and handled several significant matters in the Court of Federal Claims. Andrew has extensive experience as a tax law professor and currently teaches at American University Washington College of Law. He also currently serves as vice chair of the ABA Tax Section Diversity Committee and vice chair of the D.C. Bar Tax Audits and Litigation Committee.
Abigail is a tax attorney focusing on white-collar defense and tax controversy. She has also participated in several IRS audits and appeals, and in one notable case, Abigail was able to help secure the reversal of over $60 million in penalties assessed against two trusts. Abigail is an active member of the ABA Tax Section, where she is a vice-chair of the Women in Tax Forum.
