Amicus Brief Criteria
The following is a list of the most significant criteria that IPT considers in deciding whether to accept a request to file an amicus brief; and it will greatly assist in IPT’s analysis if the request includes, to the extent possible, a discussion of how these criteria are satisfied with respect to the case and the issues involved.
Does the case present a significant issue and one of broad import within IPT’s membership? IPT will ordinarily not act favorably on a request in a matter of interest to a small segment of its membership.
Would there be a strong consensus among IPT’s membership for the taxpayer’s position, or would the issue divide the membership? IPT is obliged to serve its members equally and generally avoids taking positions which pit some of its members’ interests against those of other members. Note: The Institute will not necessarily refrain from filing a brief simply because one or a few members oppose doing so if there is otherwise overwhelming support within the membership for the argument(s) to be made in the amicus curiae brief. The decision in such instances will be made by the Board of Governors on a case-by-case basis, taking into consideration the overarching goal of promoting equitable administration of taxes and the recommendations of the Legal Committee and Corporate Counsel.
Is the issue clearly framed as a matter of law? IPT will not appear as a friend of the court where there are disputes over material, underlying facts.
Is the request for a brief to the United States Supreme Court or a state appeals court of last resort? IPT generally does not file amicus briefs in cases that are still making their way through the lower courts.
Is there an opportunity for an IPT amicus brief to make some meaningful contribution to the court’s deliberation of the case? The courts do not need or want briefs that simply parrot arguments presented by the parties. IPT’s policies reflect considerable restraint, in the belief that being selective in the filing of amicus briefs will enhance its credibility with the courts, and that filing friend-of-the-court briefs in cases that do not involve significant legal issues and/or where IPT cannot present a distinct perspective will dilute the impact that IPT’s participation might otherwise have in more appropriate cases.
What other organizations are filing, or are expected to file, amicus briefs in the case? While the submission of an amicus brief by another entity would not foreclose IPT from accepting an invitation to prepare one of its own, that fact would be a consideration, in that IPT might consider its members’ interests adequately served by the involvement of another group with a similar stake in the case. On the other hand, IPT might consider its participation necessary as a way of sending notice of the importance of the issue under review.
Has the request been made sufficiently in advance for IPT to arrange for a well-conceived and executed brief? Last minute requests cannot be accommodated.
Do the benefits of the preparing and filing the brief justify the resources that IPT will expend on it? In weighing the costs and benefits, IPT will take into account whether outside counsel in the jurisdiction is willing to prepare the brief on a pro bono basis.
Review of state tax disputes by the United States Supreme Court is extraordinarily rare, and review by state supreme courts may be discretionary, so that the chance of securing review is often remote. Where the request is for IPT to file an amicus brief in support of a taxpayer’s petition for review or other request for the court to hear an appeal, the decision whether to accept the amicus request ordinarily will not be based on the probability that the case will be heard but on IPT’s view of the taxpayer’s position and arguments on the merits of the case, and the likelihood that the taxpayer’s position will prevail in the event that the case is accepted.