What’s Next for Biden’s Three Nominees to the US Tax Court

With nearly a third of the US Tax Court bench unfilled, the Senate Finance Committee will likely move quickly to vet and confirm the first batch of President Joe Biden’s picks for those seats.

Vacancies on the court’s 19-judge roster doubled to six in the past year, leaving the remaining judges reliant on special court and senior judges to pick up the slack. Finance Committee Chair Ron Wyden (D-Ore.) vowed last week his panel would process the nominees in a timely way, though the process could still take several months.

“I expect there will be some measure of importance given to handling these nominations as quickly as possible consistent with the Finance Committee’s process,” said Mike Evans, a former Democratic chief counsel at Finance who now works at K&L Gates.

Biden announced three names last week, making them the Tax Court’s first nominees of his administration.

The picks to serve 15-year terms include tax attorney Rose E. Jenkins, now of the IRS chief counsel’s office, and Kashi Way, a senior legislation counsel on the Joint Committee on Taxation. Adam B. Landy, who has been a special trial judge for the court since 2021, was also nominated to a Senate-confirmed spot.

The candidates will receive questionnaires from Finance and must provide three years of tax returns. Once their paperwork is vetted and deemed satisfactory, the nominees meet with the committee and member staff before a hearing is scheduled.

The Senate process from nomination to confirmation varies, though Tax Court judges like Cary Pugh have been confirmed to the bench in less than six months.

Though the number of cases filed in fiscal 2023 was lower than in previous years, the court is dealing with more complicated cases and lengthy trials that could grow as the IRS amps up enforcement.

The court’s chief judge, Kathleen Kerrigan, estimated in an interview with Bloomberg Tax that several hundred conservation easement cases and over a hundred captive insurance cases are pending at the court. The court has dealt with an influx of these complex cases in the last several years, but it’s been keeping up by partly thanks to about a dozen senior judges who either had their terms expired or reached retirement age.

“We’ve been fortunate, and I think it’s always been the history of the court—The senior judges pitch in, and they do quite a bit,” Kerrigan said.

Subject Experts

Selection of judges for Tax Court has largely been a bipartisan exercise, according to the Finance Committee.

Way is an expert in areas including energy-related tax issues and research credits and has helped with every major tax bill since joining the JCT in 2005, Evans said. He’s well-known to staffers of both parties in both the House and Senate who rely on the joint committee’s nonpartisan staff to craft legislation, he added.

“They help both sides and serve as policy experts, technical experts, and sometimes referees making sure that the legislation reflects the objectives of the senators,” Evans said.

Adding more judges would likely give the court, which doesn’t have much control over how many cases come before it, a chance to spread out its workload and clear cases more quickly, said Michael Desmond, a partner at Gibson Dunn who was the Senate-confirmed IRS chief counsel during former President Donald Trump’s administration.

Desmond was confirmed to the IRS post in February of 2019 and resigned in January of 2021. He was tasked with helping the IRS implement the 2017 tax overhaul, and at times during his tenure he worked with both Way and Jenkins. He praised them for their expertise.

Jenkins has expertise in international tax and currently works for the chief counsel’s office. She served in the international division of the counsel’s office from 2013 to 2020, leaving for short stints at KPMG LLP and at New York University before returning to the IRS last year.

Special trial judges like Landy are charged with handling cases under a certain annual dollar threshold, and aren’t Senate-confirmed. Landy worked as a senior attorney in the IRS chief counsel offices in Baltimore and San Francisco before leaving for the court.

As judges, the three will hear arguments on highly complicated tax matters, but also handle cases involving individuals and small businesses. Many taxpayers come to the court with limited experience of the process and as pro-se litigants, meaning they don’t have attorneys representing them.

“It’s a unique combination of very technical tax, and very complicated tax, and interpersonal skills of being able to work with pro-se taxpayers and ensure that they get their fair hearing,” Desmond said. “From what I know of them, I think all three will certainly bring that to the table.”