By Sarah Szwak

Introduction

Imagine a situation where Adam marries Betty. Years later, Adam leaves Betty and forms a relationship with Claudia, who never knew about Betty and Adam’s marriage. Adam eventually marries Claudia, without ever legally divorcing Betty.[1] During his marriage to Claudia, Adam dies and is not survived by any children. This unusual situation raises questions over who inherits Adam’s community property. Would Betty inherit the community property as Adam’s legal spouse, or would Claudia inherit the community property as Adam’s putative spouse?[2] The answers to these community property allocation questions depend on whether Adam acted in good or bad faith in marrying Claudia.[3] If Adam knew his marriage to Betty was not dissolved prior to his marriage to Claudia, he acted in bad faith in marrying Claudia, meaning that Betty and Claudia would likely each inherit one-half of the community property.[4] However, if Adam thought his marriage to Betty was dissolved, he acted in good faith in marrying Claudia, meaning that Claudia would likely inherit all of the community property.[5]

There are several issues with this current rule. First, dependance on the good or bad faith of a bigamous spouse is illogical in the context of the inheritance of community property because one cannot punish a bigamous spouse for his or her bad faith after death.[6] Disallowing the bigamist’s descendants to inherit community property punishes the descendants, which is unreasonable because the successors are not responsible for the deceased’s bad faith.[7] Second, inquiring into the bigamist’s good or bad faith requires extensive time and resources from the courts and parties. The parties must present evidence showing the deceased’s subjective intent, which is often a lengthy and difficult task.[8] The court must then take the time to consider this evidence and conclude whether the bigamist was in good or bad faith. Third, the circumstance explained in the above hypothetical has only been discussed among courts and has never been addressed by the legislature. Without legislative guidance, many unanswered questions remain and there is—and will continue to be—confusion across Louisiana courts about how to apportion community property in this circumstance.[9]

Because of the issues surrounding the current jurisprudential approach, the legislature should adopt a new law that allows the bigamist’s descendants to inherit one-half of the community property regardless of the bigamist’s good or bad faith. Additionally, the other half of the community property should go to the putative spouse regardless of the bigamist’s good or bad faith. This rule would end arbitrarily punishing the successors of a bad faith bigamist and greatly simplify the approach for courts and parties. Further, this proposal would eliminate the unanswered question of whether a bad faith legal spouse inherits community property because the legal spouse would never inherit community property regardless of the bigamist’s good or bad faith.

I. Louisiana’s Putative Marriage Doctrine

A valid marriage in Louisiana requires a marriage ceremony, the free consent of the parties, and the absence of a legal impediment.[10] There are three legal impediments to a marriage’s validity: a close relationship by blood or adoption, age, and a prior undissolved marriage.[11] The impediment of a prior undissolved marriage applies when two spouses marry, are never legally divorced, and then one of the spouses marries a second person.[12] The existence of a prior undissolved marriage means that the second marriage is an absolute nullity.[13]

Even though the second marriage is an absolute nullity, it can produce civil effects through the putative marriage doctrine.[14] Under the putative marriage doctrine, an absolutely null marriage produces civil effects in favor of a party as long as that party remains in good faith.[15] In the context of a putative marriage, good faith is an honest and reasonable belief that the marriage is valid and that no legal impediment exists.[16] Thus, good faith spouses to the second marriage must have a subjective belief that the marriage is valid, and that belief must be objectively reasonable.[17] In other words, a good faith spouse must honestly and reasonably believe that there was no impediment to the marriage. If these qualifications are met, then the putative marriage produces civil effects in favor of that spouse for as long as he or she remains in good faith.[18] However, when the impediment causing the nullity is a pre-existing marriage, the civil effects continue for the non-bigamist spouse until the marriage is declared null or the parties contract a valid marriage, even if the non-bigamist spouse is no longer in good faith.[19]

II. Community Property Inheritance and Putative Spouses

Louisiana law provides for a community property regime and states that property acquired during a marriage belongs to both spouses in a present, undivided one-half interest.[20] A judgment of divorce retroactively terminates the community property regime to the date of filing of the petition for divorce.[21] However, when no judgment of divorce is rendered and the couple remains married until one spouse dies, the inheritance of the community property depends on whether any descendants survive the deceased.[22] If the deceased spouse leaves descendants, those descendants and the surviving spouse will each inherit one‑half of the community property.[23] If no descendants exist, the surviving spouse inherits all community property.[24]

As explained in the introductory hypothetical, it is possible to have both a legal spouse and putative spouse.[25] Thus, the question as to who inherits the community property in this circumstance is important. The courts have struggled with how to approach this question, but the answer currently depends on whether the bigamist acted in good or bad faith to procure the second marriage.[26]

III. Jurisprudence on Community Property Inheritance When a Bigamous Spouse Is in Bad Faith

Louisiana jurisprudence is unclear on how to divide community property upon the death of a bigamist in bad faith.[27] In Patton v. Cities of Philadelphia & New Orleans, the Louisiana Supreme Court held that the putative spouse and legal spouse each inherit one-half of the community property when the bigamist is in bad faith.[28] In Patton, Abraham Morehouse married Abigail Young and fathered two children in New York.[29] Later, Abraham moved to Louisiana and claimed to be a widower without ever divorcing Abigail.[30] Abraham then married Bléonore Hook and fathered more children.[31] Upon Abraham’s death, the Court held that both Abigail, the legal spouse, and Bléonore, the putative spouse, would each inherit one‑half of the community property.[32] The Court reasoned that Abigail should inherit because Abraham had abandoned her and Abigail should not lose her rights “on accounting of the fault and misconduct of her husband.”[33]

A hundred years later, the Louisiana Supreme Court held, in Succession of Chavis, that although the bigamist was in bad faith, the legal spouse would not inherit.[34] Rather, the community property was split in half between the putative spouse and the descendants.[35] In Chavis, Alvin Chavis filed for separation of bed and board from his wife, Gladys Chavis, but married Onelia Chavis before a judgment of divorce was granted.[36] The Court found that Alvin was in bad faith, but stated that his bad faith was “immaterial” to the Court’s opinion.[37] Thus, the Court held that Onelia, the putative spouse, and Alvin’s descendants would each inherit one-half of the community property.[38]

In Succession of Choyce, the Louisiana Second Circuit Court of Appeal relied on Patton and held that both the legal spouse and putative spouse were entitled to one-half of the community property when the bigamist acted in bad faith.[39] In Choyce, Frank Choyce married Pauline Choyce Conaway and fathered a child.[40] Years later, Frank moved to Louisiana, claimed he had never been married before, married another woman, Annie V. Craig Choyce, and fathered four more children.[41] Upon Frank’s death, the court found that he was in bad faith and followed the precedent in Patton.[42] The court held that both Annie, the putative wife, and Pauline, the legal wife, would inherit one-half of the community property and the descendants would not inherit any community property.[43] As shown in Patton, Chavis, and Choyce, the jurisprudence on the community property rights of the putative spouse, legal spouse, and descendants when the bigamist is in bad faith is unclear.[44] However, Louisiana courts most frequently apply the Patton rule, which states that the putative spouse and legal spouse each inherit one-half of the community property.[45]

IV. Jurisprudence on Community Property Inheritance When a Bigamous Spouse Is in Good Faith

In Prince v. Hopson, the Louisiana Supreme Court held that the putative spouse and legal spouse would each inherit one-fourth of the community property and the other half would go to the bigamist’s descendants when the bigamous spouse was in good faith.[46] In Prince, James Brough filed for divorce from his wife, Victoria H. Albert.[47] A preliminary default was entered but no final judgment of divorce was rendered.[48]James then married another woman, Clementine Prince.[49]  No evidence existed showing that James knew he was still married to Victoria before his marriage to Clementine.[50] The Court found that both James and Clementine, the putative wife, were in good faith.[51] Thus, the Court held that the community property would be apportioned between Clementine, the putative wife, and Victoria, the legal wife, in fourths, and the descendants would inherit one-half of the community property.[52] The Court’s reasoning in allowing the descendants to inherit was that the deceased’s good faith resulted in him obtaining the civil effects of the putative marriage, which meant he owned one-half of the community property.[53]

In 2022, the Louisiana Supreme Court held, in Succession of Burns, that when both spouses to a putative marriage are in good faith, the putative spouse inherits one-half of the community property, the bigamist’s descendants inherit the other half of the community property, and the legal spouse does not inherit.[54] In Burns, the original divorce proceeding was filed in Arkansas.[55] An Arkansas district court rendered a judgment of divorce, but the wife’s name was misspelled as “Sybia” rather than Silver.[56] Also, Silver’s alleged signatures on two documents from the proceedings were signed “Sybia.”[57] The husband, Willie Clyde Burns, filed a second petition for divorce in Louisiana, but a final judgment of divorce was never rendered in that case.[58] Both spouses believed they were legally divorced from each other, and Willie remarried Annie Lee Bradley.[59] Upon Willie’s death, the Court found that both spouses to the putative marriage were in good faith.[60] The Court held that Annie, the putative spouse, and the descendants would each inherit one-half of the community property, and Silver, the legal spouse, would not inherit.[61] The Court reasoned that the husband’s good faith allowed him to obtain the civil effects of the putative marriage.[62] Thus, his descendants were entitled to his one-half share of the community property.[63]

V. Fixing the Flaws in Community Property Inheritance Involving Bigamous Marriages

A. Current Law

The inheritance of the legal spouse, putative spouse, and the bigamist’s descendants currently depend on whether the bigamist was in good or bad faith when entering the second marriage.[64] The justification for this rule is that a putative marriage produces civil effects in favor of a party in good faith as long as that party remains in good faith.[65] Thus, if the bigamist is in bad faith, he cannot obtain the civil effects of the putative marriage, which includes the ownership of one-half of the community property.[66]

Although this rule can be logically applied in other scenarios involving putative marriages, this rule should not be applied when determining community property inheritance rights upon the death of a bigamist for several reasons.[67] First, a bigamous spouse in bad faith does not receive the civil effects as punishment for being in bad faith.[68] Once the bigamous spouse in bad faith is deceased, the punishment is instead directed to the descendants.[69] This result is absurd. The descendants should not be punished for their ascendant’s bad faith because they have no control over their ascendant’s actions.[70] Thus, the bigamist’s descendants should inherit one-half of the community property regardless of their successor’s bad faith. Second, an inquiry into the bigamist’s good or bad faith requires the parties to produce evidence surrounding the bigamist’s subjective intent.[71] In a divorce action where this issue is raised, the burden is insignificant because the bigamist may testify as to subjective intent. However, when succession cases raise issues over the decedent’s intent, the bigamist is deceased, leaving the parties with the task of proving the decedent’s subjective intent.[72]

The current jurisprudential rules are problematic for several reasons. First, these types of cases require exorbitant time and resources from the parties and the courts. Thus, legislation would provide clarity for how to properly manage these disputes. Second, the lack of legislative guidance on this issue has caused—and continues to cause—inconsistencies among Louisiana courts.[73] Without legislative support, courts must jurisprudentially develop the law in this area, which is problematic given the highly complex and fact-intensive nature of this litigation.[74] For example, the Patton Court held that when there is a good faith legal spouse and a bad faith bigamist, the legal spouse will inherit one-half of the community property.[75] However, the community property apportionment when both the bigamist and legal spouse are in bad faith is unknown.

B. Proposal

Because of the issues surrounding the current jurisprudential approach, the legislature should adopt a rule that states, “In the circumstance of a deceased being survived by a legal spouse and putative spouse, the putative spouse shall inherit the whole of the community property. If the deceased leaves descendants, then the descendants and the putative spouse shall inherit one-half of the community property each.” This proposed rule allows the descendants to inherit one-half of the community property regardless of the bigamist’s good or bad faith. Under this rule, the legal spouse would not inherit even if the deceased was in bad faith. Allowing the legal spouse to inherit a portion of the community property from the putative marriage gives the legal spouse a windfall. The legal spouse typically never contributes to the putative community property regime, so the legal spouse should not gain any portion of that property upon the death of the bigamist.[76]

Adoption of this rule would terminate the arbitrary punishment of the bigamist’s descendants.[77] Additionally, this rule would simplify the approach for courts and parties, saving time and resources. Lastly, the legislature’s adoption of this rule would give the courts clarity and resolve the inconsistencies in the jurisprudence.[78]

Conclusion

Determining the community property apportionment after the death of a bigamist is important to both the legal and putative spouse, as well as the bigamist’s descendants. Several issues surrounding the current jurisprudential approach call for legislative action.[79] The legislature should adopt a rule that allows the bigamist’s descendants and the putative spouse to each inherit one-half of the community property regardless of the bigamist’s good or bad faith. Adoption of this rule would provide a clear and simple approach. Additionally, it would solve the problems of unfairly punishing the bigamist’s descendants and allowing the legal spouse to inherit from the putative community property regime that they likely never contributed to.[80] Thus, the legislature should step in to provide clarity for litigants who will face this complex dilemma in the future.

[1] One cannot be married to two people at once. La. Civ. Code art. 88 (2025). However, the marriage between Adam and Claudia may produce civil effects in favor of one or both spouses under the putative marriage doctrine depending on whether one or both of the parties to the marriage was in good faith when entering the marriage. See id. art. 96.

[2] A putative marriage is a marriage that is null but produces civil effects because at least one of the parties entered the marriage in good faith. Id. art. 96. In this situation, one can assume that Claudia was unaware of Adam’s prior marriage to Betty. Thus, Claudia would be in good faith and obtain the civil effects of the putative marriage. See id. One civil effect which Betty is entitled to under the Louisiana Civil Code is inheritance of at least a portion of community property. Id. art. 2336.

[3] The community property allocation is dependent on Adam’s good or bad faith because only good faith spouses obtain the civil effects of a putative marriage. Id. art. 96. Thus, for any portion of the community property to belong to Adam, he must be in good faith. Id. arts. 88, 96.

[4] The above hypothetical is loosely based on Patton v. Cities of Philadelphia & New Orleans. 1 La. Ann. 98 (1846). In Patton, the community property was divided between the putative and legal spouse when the deceased was a bad faith bigamist. Id. at 106. It is noteworthy that under this rule, if Adam had descendants, those descendants would not inherit any portion of the community property. Typically, descendants inherit one-half of the community property. La. Civ. Code arts. 888–89.

[5] Succession of Burns, 354 So. 3d 1197, 1201 (La. 2022). In Succession of Burns, the inheritance was divided between the descendants and the putative spouse when the bigamist was in good faith. Id. at 1203–04. The outcome of the hypothetical would be different if Adam had descendants. In this case, the community property would be split in half between Claudia and the descendants. La. Civ. Code art. 889.

[6] Monica Hof Wallace, The Pitfalls of a Putative Marriage and the Call for a Putative Divorce, 64 La. L. Rev. 71, 114–16 (2003).

[7] Id.

[8] Good faith is typically presumed. Eddy v. Eddy, 271 So. 2d 333, 335 (La. Ct. App. 1972). However, good faith is not presumed for the bigamist because they caused the nullity of the marriage. Gathright v. Smith, 368 So. 2d 679, 683 (La. 1978). Thus, in this circumstance, the parties must present evidence showing the good or bad faith of the bigamist.

[9] Compare Patton, 1 La. Ann. at 106 (holding that the putative and legal spouse each inherit one-half of the decedent’s community property when the deceased was in bad faith), and Succession of Chavis, 29 So. 2d 860, 864 (La. 1947) (holding that the putative spouse and children would each inherit one-half of the decedent’s community property when the deceased was in bad faith), with Prince v. Hopson, 89 So. 2d 128, 133 (La. 1956) (holding that the children would inherit one-half of the community property and the putative and legal spouse would inherit one-fourth each when the deceased was in good faith), and Burns, 354 So.3d at 1201 (holding that the putative spouse and children would each inherit one-half of the decedent’s community property when the deceased was in good faith). Wallace, supra note 6, at 95. Although courts have addressed cases concerning both good and bad faith bigamists, a case involving this issue where the legal spouse is in bad faith has never been addressed. Thus, it is questionable whether the rule under Patton would apply, and the bad faith legal spouse would inherit one-half of the community property, or a completely different rule would apply. See 1 La. Ann. at 106.

[10] La. Civ. Code art. 87 (2025). Although this blog post focuses on the requirement of the absence of a legal impediment, a marriage ceremony and free consent of the parties is also required for a valid marriage. Id. At the marriage ceremony, both parties must be present, and the ceremony must be conducted by a third-party officiant who is qualified or the parties reasonably believe is qualified. Monica Hof Wallace, A Primer on Marriage in Louisiana, 64 Loy. L. Rev. 557, 579 (2018). The absence of a marriage ceremony makes the marriage absolutely null. La. Civ. Code art. 94. The free consent of the parties requires that neither party be subjected to duress and both are capable of discernment. Id. art. 93. Duress is when consent of a spouse is vitiated through a threat of injury against the spouse or an ascendant or descendent of the spouse. Id. art. 1960. However, duress does not include a threat of doing a lawful act or exercising a valid right. Id. art. 1962. The presence of duress in contracting a marriage creates a relative nullity. Id. art. 95.

[11] Id. arts. 88, 90, 90.1. Though not the focus of this blog post, the legal impediment of relationship by blood or adoptions means that ascendants, descendants, and collaterals within the fourth degree cannot marry each other. Id. art. 90. This applies whether the relationship is by blood or adoption, with the exception that collaterals within the fourth degree by adoption may marry with judicial authorization. Id. The legal impediment of age means that a person under 16 may not marry, and minors between 16 and 17 years old may not marry a major that is three or more years older than them. Id. art. 90.1. Same‑sex marriage is still written into the Code as a legal impediment to marriage, but the United States Supreme Court in Obergefell v. Hodges held that same‑sex marriage is constitutionally protected. Id. art. 89; Obergefell, 576 U.S. 644, 675–76 (2015).

[12] La. Civ. Code art. 88.

[13] Id. art. 94. An absolutely null marriage cannot be confirmed, and the nullity may be brought by anyone. Id. This is contrasted from a relatively null marriage, which can be cured through confirmation of the marriage. Id. art. 95.

[14] Id. art. 96.

[15] Id. A putative marriage produces the same civil effects as a legally valid marriage, such as alimony, the marital portion, and inheritance of community property. Cortes v. Fleming, 307 So. 2d 611, 615–16 (La. 1973); Wallace, supra note 6, at 72.

[16] La. Civ. Code Ann. art. 96 cmt. d.

[17] Wallace, supra note 10, at 588–89.

[18] La. Civ. Code art. 96.

[19] Id.

[20] There are several exceptions to this rule, as Louisiana’s community property regime is a complex legal regime. However, the general rule is that property acquired during the marriage is community property. Id. arts. 2336, 2338.

[21] Id. art. 159.

[22] Id. arts. 888, 889.

[23] Id. art. 889.

[24] Id.

[25] See discussion infra Part I.

[26] Compare Patton v. Cities of Philadelphia & New Orleans, 1 La. Ann. 98, 106 (1846), with Succession of Burns, 354 So. 3d 1197, 1201 (La., 2022).

[27] Patton, 1 La. Ann. at 106; Succession of Chavis, 29 So. 2d 860, 864 (La. 1947); Succession of Choyce, 183 So. 2d 457, 459 (La. Ct. App. 1966).

[28] Patton, 1 La. Ann. at 106.

[29] Id. at 101.

[30] Id.

[31] Id.

[32] Id. at 106.

[33] Id.

[34] Succession of Chavis, 29 So. 2d 860, 864 (La. 1947).

[35] Id.

[36] Id. at 862. A separation of bed and board is a legal separation of the married couple without an actual divorce. Couples can no longer file for legal separation in Louisiana as, in 1990, the legislature repealed the Civil Code articles authorizing this. Susan Kalinka, Acts 1990, No. 1009: The Repeal of Provisions for Separation from Bed and Board Increases the Federal Income Tax Burden of Separated Spouses in Louisiana, 53 La. L. Rev. 597, 597–98 (1993). Now, legal separation is only applicable to covenant marriages. La. Rev. Stat. § 9:309 (2024).

[37] Chavis, 29 So. 2d at 864.

[38] Id.

[39] Succession of Choyce, 183 So. 2d 457, 459 (La. Ct. App. 1966).

[40] Id. at 458.

[41] Id.

[42] Id.

[43] Id. at 459.

[44] Patton v. Cities of Philadelphia & New Orleans, 1 La. Ann. 98, 106 (1846); Succession of Chavis, 29 So. 2d 860, 864 (La. 1947); Choyce, 183 So. 2d at 459.

[45] Patton, 1 La. Ann. at 106.

[46] Prince v. Hopson, 89 So. 2d 128, 133 (La. 1956).

[47] Id. at 129.

[48] Id. at 129–30. The concept of preliminary defaults was repealed by the legislature in 2022. Victoria Cvitanovic, Updates to the Louisiana Default Judgment Rules, Wilson Elser (Aug. 29, 2023), https://www.wilsonelser.com/publications/updates-to-the-louisiana-default-judgment-rules [https://perma.cc/AKW8-X2KV]. However, before the law was repealed, plaintiffs were required to obtain a preliminary default prior to a default judgment. Preliminary defaults were essentially a warning period for the defendant and did not have the same legal effect as a default judgment. See generally Glessner v. Hyatt, 380 So. 2d 222 (La. Ct. App. 1980).

[49] Prince, 89 So. 2d at 130.

[50] Id.

[51] Id. at 132.

[52] Id. at 133.

[53] Id. at 132.

[54] Succession of Burns, 354 So. 3d 1197, 1201 (La. 2022).

[55] Id. at 1199.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Id. at 1201.

[62] Id.

[63] Id.

[64] Patton v. Cities of Philadelphia & New Orleans, 1 La. Ann. 98, 106 (1846); Burns, 354 So. 3d at 1201.

[65] La. Civ. Code art. 96 (2025).

[66] Id. art. 2336.

[67] The rule of disallowing a bad faith bigamist to receive the civil effects of a putative marriage is logical in situations where the bigamist is alive because the bigamist does not receive civil effects as a punishment for his bad faith.

[68] Patton, 1 La. Ann. at 106; Wallace, supra note 6, at 114.

[69] Wallace, supra note 6, at 114–17.

[70] Id. The recognition that descendants should not be punished for their ascendant’s actions is recognized in other areas of succession law, such as unworthiness. An heir can be declared unworthy for being criminally convicted of a crime involving the killing or attempted killing of the decedent or is judicially determined in a civil proceeding to have participated in the intentional, unjustified killing or attempted killing of the decedent. La. Civ. Code art. 941. However, even when that heir is declared unworthy, we allow their descendants to inherit by representation. Id. art. 942. This rule is logical because the descendants should not be punished for their ascendant’s conduct.

[71] See discussion infra Part II (good faith involves a subjective element); Wallace, supra note 10, at 588–89.

[72] Good faith is presumed except for the party that caused the nullity of the marriage. Eddy v. Eddy, 271 So. 2d 333, 335 (La. Ct. App. 1972); Gathright v. Smith, 368 So. 2d 679, 683 (La. 1978). Therefore, the descendants would have to prove their ascendant’s good faith to inherit.

[73] Compare Patton, 1 La. Ann. at 106, with Succession of Chavis, 29 So. 2d 860, 864 (La. 1947). In both cases, the Court was presented with a bad faith bigamous spouse. However, the apportionment of the community property at issue was different.

[74] Courts are limited to deciding specific cases, whereas the legislature can announce broad rules. See La. Const. arts. II, III, V. Without legislative action, the only questions that the courts have been able to answer are the questions that specific cases require an answer to. Id. arts. II, V.

[75] Patton, 1 La. Ann. at 106.

[76] Wallace, supra note 6, at 90–91, 110–11.

[77] Id. at 114–17.

[78] Compare Patton, 1 La. Ann. at 106, with Chavis, 29 So. 2d at 864. Both courts faced the same issue but came different to conclusions.

[79] See discussion infra Part VI.

[80] Wallace, supra note 6, at 90–91, 110–11, 114–17.

By Tyler J. Brewster

Introduction

“The irony,” proclaimed Judge Laura M. Provinzino, United States District Judge for the District of Minnesota, as she ruled on a motion to exclude expert testimony in Kohls v. Ellison.[1] One can only imagine that lawyers in the Minnesota Attorney General’s Office shuddered as they read those words, knowing then that the court would exclude their expert’s testimony.[2] As Judge Provinzino aptly identified, the situation is ironic; the expert—“a credentialed expert on the dangers of AI [Artificial Intelligence] and misinformation”—tainted his own testimony with non‑existent, AI‑generated citations.[3]­­­

In the eyes of the court, the expert’s credibility was shattered; no correction or apology would be enough to redeem his testimony.[4] Judge Provinzino’s admonishment, however, was not limited to the offending expert; the court scolded the proffering attorneys as well.[5] Despite the Minnesota Attorney General’s Office sincerely apologizing for their good-faith failure to catch the “unintentional fake citations in the [expert’s] Declaration,” the court warned of the “personal, nondelegable responsibility” imposed by Federal Rule of Civil Procedure 11.[6] Per Rule 11, lawyers must “validate the truth and legal reasonableness of the papers filed.”[7] Clearly, in the age of AI, blindly accepting and submitting an expert’s report or testimony will not suffice.[8]

As the use of generative AI in expert testimony grows more prevalent, courts and lawyers must develop robust oversight mechanisms and enforcement strategies to address the complex ethical, professional, and practical challenges this technology presents. Recent opinions like Kohls v. Ellison highlight the potential risks and consequences of unchecked AI use in litigation.[9] A balanced approach combining lawyer‑led safeguards and updated legal standards can help ensure experts responsibly integrate generative AI into their testimony.

I. A Lawyer’s Ethical and Professional Responsibilities

Generally, lawyers litigating in federal court have several ethical and professional responsibilities regarding generative AI.[10] Both the Federal Rules of Civil Procedure and rules of professional conduct impose duties for lawyers using experts that utilize generative AI.[11] When derived from the rules of professional conduct, the exact nature and interpretation of these responsibilities vary from state to state, but there are common principles that transcend jurisdictional bounds.[12] To meet their ethical and professional responsibilities, lawyers must consider, among others, the duties of competence, verification of expert testimony, candor to the tribunal, and informing clients about generative AI use.[13]

A. Duties of Competence & Diligence

One of the primary ethical duties lawyers must uphold is competence, particularly when overseeing expert testimony involving AI.[14] Per Model Rule 1.1, attorneys must “provide competent representation to a client,” including “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[15] This duty extends to understanding technologies their experts employ, evaluating the technology’s reliability, and preventing errors.[16] With generative AI use becoming more pervasive, lawyers must understand and forestall potential AI hallucinations and fabricated citations in expert testimony.[17] As Kohls demonstrates, courts increasingly expect lawyers to implement reasonable safeguards against AI‑related errors, regardless of an expert’s credentials.[18]

B. Duty to Verify Expert Testimony

Federal Rule of Civil Procedure 11 imposes verification obligations on attorneys submitting materials to federal courts.[19] As Judge Provinzino emphasized in Kohls, Rule 11 creates a “personal, nondelegable responsibility” for attorneys to “validate the truth and legal reasonableness of the papers filed” in an action.[20] This obligation likely now extends beyond the attorney’s own work product to encompass materials prepared by retained experts.[21] While courts have traditionally permitted attorneys to rely on expert opinions without extensive verification, generative AI’s prevalence may have altered this custom.[22]

The “inquiry reasonable under the circumstances” standard established by Rule 11(b)  may be evolving in response to AI‑related challenges.[23] As Kohls suggests, this inquiry “may now require attorneys to ask their witnesses whether they have used AI in drafting their declarations and what they have done to verify any AI-generated content.”[24] This represents a significant shift in verification expectations, requiring proactive investigation and prohibiting the assumption of reliability based on an expert’s credentials.[25]

C. Duty of Candor

Beyond verifying expert testimony, lawyers must also adhere to strict standards of candor, ensuring the court receives truthful and accurate representations.[26] Several rules in the Model Rules address a lawyer’s obligation of truthfulness.[27] Because lawyers must “make reasonable efforts to ensure that the [employed nonlawyer’s] conduct is compatible with the professional obligations of the lawyer,” each of the applicable rules must be considered when dealing with an expert’s generative AI use.[28] Rule 3.1 prohibits a lawyer from “bring[ing] or defend[ing] a proceeding, or assert[ing] or controvert[ing] an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”[29] Likewise:

A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal . . . or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.[30]

While Model Rule 3.3 requires a lawyer to knowingly submit the falsity, Model Rule 1.3 requires the lawyer to “act with reasonable diligence . . . in representing a client.”[31] Applying these rules to the generative AI context, attorneys must exercise diligence and verify that expert testimony does not contain hallucinated citations or facts.

D. Duty to Communicate with Clients About the Use of AI

Model Rule 1.4 imposes a duty on lawyers to communicate with their clients.[32] Specifically, “a lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”[33] Depending on the circumstances, a lawyer may need to inform clients of their generative AI practices “or obtain informed consent to use a particular generative AI tool.”[34] However, at a minimum, lawyers likely must inform clients when experts rely heavily on generative AI so that the client may make informed decisions.[35]

II. Potential Disciplinary Consequences

In Kohls, Judge Provinzino ultimately excluded the expert’s testimony and denied leave to file an amended expert declaration.[36] Considering Judge Provinzino repeatedly highlighted the penalty of perjury and alluded to a lawyer’s obligation to verify submissions to the court, the Minnesota Attorney General’s Office and its expert emerged relatively unscathed.[37] Lawyers who fail to meet their ethical obligations to supervise experts, verify submissions, or inform their clients might also face a slew of other consequences, ranging from Rule 11 sanctions, contempt, disciplinary actions, and even to malpractice claims.[38]

A. Rule 11 Sanctions

As discussed supra, Federal Rule of Civil Procedure 11 imposes an obligation on lawyers to perform a reasonable inquiry under the circumstances as to whether introduced expert testimony is credible and based in law or fact.[39] When attorneys fail to meet this standard, Rule 11 permits courts to “impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.”[40] The court may also hold a law firm “jointly responsible for a violation committed by its partner, associate, or employee.”[41] Given the attorney’s responsibility to perform a reasonable inquiry before certifying that “the factual contentions [submitted to the court] have evidentiary support,” the court is most likely to employ this enforcement mechanism.[42]

B. Contempt

Increasingly, federal district courts have been implementing rules regulating generative AI use.[43] Both state and federal court systems have taken varying approaches—some merely require disclosure to the court, others may impose restrictions on its use, and a portion prohibits its use altogether.[44] When lawyers violate these local rules or ignore other directives from federal judges, judges may hold them in contempt of court.[45] Even where local rules do not explicitly extend to an expert’s use of AI, lawyers may be wise to apply the directives in local rules to experts used in the litigation process, thereby ensuring compliance with local rules.[46]

C. Disciplinary Actions

As every lawyer is well aware, courts with the authority to admit attorneys may also dole out consequences in response to misconduct by using its disciplinary proceeding power against any lawyer that violates the rules of professional conduct.[47] Lawyers must pay particular attention to evolving ethics rules about generative AI—new advisory and disciplinary opinions will continue to shape the interpretation of a given state’s rules.[48] A failure to adequately apply existing ethics rules to emerging technology like generative AI may subject lawyers to varying degrees of discipline.[49]

Legal news outlets are rife with examples of lawyers using hallucinated citations and courts disciplining them for it.[50] These examples serve as a poignant reminder: a lawyer must check citations—or else.[51] Despite recurrent warnings, lawyers across the nation continue to earn themselves the “ChatGPT lawyer” label.[52]

For now, improper generative AI use by lawyer‑retained experts may be flying under the radar because of a lack of attorney discipline for such misconduct.[53] But as generative AI use becomes more pervasive across every industry, opposing counsel may become more scrutinizing of—and courts less lenient toward—expert testimony and reports created with generative AI.[54] Until bar guidance indicates otherwise, lawyers ought to mitigate disciplinary risk by conducting rigorous review of their expert’s work product, including verifying all cited sources.

D. Malpractice

If the threat of attorney discipline is not enough, the threat of a malpractice damage award may be the last deterrent.[55] Where a lawyer’s irresponsible employment of a generative AI-using expert leads to a lost or diminished verdict, the lawyer’s clients may be able to recover for these harms.[56] Just like other malpractice suits, the court must determine whether the lawyer has breached a duty to their client and caused harm.[57] A lawyer whose case depends on admissible expert testimony must take reasonable steps to ensure that said expert testimony remains admissible.[58] Should the lawyer unreasonably fail to safeguard against their expert’s generative AI use, the expert testimony may be excluded as in Kohls.[59] It is not inconceivable that such an error could place the case in hot water, particularly in cases using highly specialized experts or those which rely on only one expert because of client budget concerns.[60] Lawyers would be wise to take all reasonable measures to ensure that courts view their experts as credible by preventing their experts from making generative AI blunders.[61]

III. Practical Solutions for Responsible AI Use

Despite potential risks, generative AI is revolutionizing industry.[62] Even when lawyers swear off the technology, a lawyer cannot guarantee their own experts will not use it while preparing for litigation. Therefore, lawyers must begin to incorporate measures to ensure client outcomes and compliance with all ethical and professional responsibilities. By taking simple precautions, lawyers can be sure to adhere to their professional responsibilities, which serve to protect their clients and the integrity of the judicial process.

A. Direct Verification by Lawyers and Staff

The simplest way to fulfill the implicated duties when submitting AI‑generated or ‑assisted expert materials is to independently verify information.[63] To meet their ethical obligations, lawyers should—at a minimum—inquire whether their experts used generative AI while preparing their statements to the court and check the existence and accuracy of their expert’s citations before submitting such testimony.[64] This method, while straightforward, has its logistical downsides. The time and manpower necessary to verify the accuracy of expert reports may be cost‑prohibitive for already cash‑strapped clients and overworked lawyers. The responsible litigator must not take shortcuts either; asking a generative AI tool to double check AI‑created expert testimony may create a circular problem. If a lawyer is unwilling to verify the testimony, they may need to explore other options.

B. Use of Secondary or Tertiary Experts

For lawyers and clients with deep pockets, it may make sense to hire one or more additional experts to verify expert testimony before submission to the court. Although this creates what some may consider duplicative costs, such a practice would take the verification onus off lawyers and their staff while fulfilling the duty to reasonably verify.[65] These backup experts would likely have greater ease verifying accuracy because of familiarity with common sources and subject matter. There is risk, however, that the same experts tasked with mitigating generative AI risk will misuse the technology themselves.

C. Contractual Agreements

Contract may be another way to limit risk when employing experts who use generative AI. By addressing generative AI use in their engagement contracts, lawyers open the door to conversations with experts about their expectations, ethical obligations, and client‑accepted risk level. Lawyers may also vary terms to prohibit, limit, or expressly permit an expert’s generative AI use. As with all contracts, lawyers should seek to properly and adequately define all technical terms while keeping definitions broad enough to contemplate further technological advancement.

Such agreements could provide lawyers with liquidated damages or contractual causes of action if the expert fails to meet their contract‑defined duties regarding generative AI.[66] Through thoughtful contracting, lawyers can (1) impress the importance of responsible generative AI use upon their experts; (2) reassure clients about potential generative AI‑related risks; and (3) provide themselves a basis of recovery if their experts’ mistakes or improper AI use are imputed to them. After all, experts charge fees for a reason—should lawyers not be able to expect a credible work product?

Conclusion

Although the American Bar Association has issued recent guidance on ethical generative AI use, more state and nationwide guidance is necessary to ensure lawyers adequately supervise their experts.[67] At this time, lawyers can rely on their experts’ opinions when they have no reason to doubt their experts’ credibility, unless the expert uses generative AI.[68] As Kohls illustrates, even the most facially credible experts may fail to responsibly use generative AI.[69] There may even be a point where generative AI use becomes so pervasive that a “reasonable inquiry” into an expert’s work product requires lawyers to verify the factual basis for their expert’s opinions, as well as the opinions themselves.[70]

However, the future may also bring new and credible AI‑based tools for lawyers to deploy against potential AI‑hallucinated expert testimony.[71] Time will tell—with any emerging technology or industry, the legal community faces new challenges and opportunities to adapt.[72] While lawyers adjust to the generative AI landscape, they must be ever cognizant of rapidly evolving technology, law, and ethical guidelines.[73] Their licenses may depend on it.

 

[1] Kohls v. Ellison, No. 24-cv-3754, 2025 WL 66514, at *3 (D. Minn. Jan. 10, 2025).

[2] See id. at *3–5.

[3] Id. at *3.

[4] Id. at *4.

[5] Id.

[6] Id. (citing Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 126–27 (1989)).

[7] Id.

[8] Id. at *4–5 (“The Court suggests that an ‘inquiry reasonable under the circumstances,’ may now require attorneys to ask their witnesses whether they have used AI in drafting their declarations and what they have done to verify any AI-generated content.”); see also Coffey v. Healthtrust, Inc., 1 F.3d 1101, 1104 (10th Cir. 1993) (citing Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533 (1991)) (“The attorney has an affirmative duty to inquire into the facts and law before filing a pleading. His inquiry must be reasonable under the circumstances.”).

[9] Kohls, 2025 WL 66514, at *8; see also Mata v. Avianca, Inc., 678 F.Supp. 3d 443 (S.D.N.Y. 2023).

[10] See generally ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024) (describing Model Rules of Professional Conduct that may be implicated when lawyers use generative AI tools).

[11] See Fed. R. Civ. P. 11; see also ABA Comm. On Ethics & Pro. Resp., Formal Op. 512.

[12] See 8 Federal Procedure, Lawyer’s Edition § 20:215 (2025) (The Model Rules of Professional Conduct “serve as models for the ethics rules of most states.”). This writing uses the Model Rules of Professional Conduct as many states adopt similar rules. Id. Lawyers should carefully review the rules of professional conduct for the states in which they practice.

[13] See generally ABA Comm. On Ethics & Pro. Resp., Formal Op. 512.

[14] Id. at 3.

[15] Model Rules of Pro. Conduct r. 1.1 (Am. Bar Ass’n 2023)(emphasis added).

[16] See ABA Comm. On Ethics & Pro. Resp., Formal Op. 512, at 3.

[17] See id. at 3–4.

[18] Kohls v. Ellison, No. 24-cv-3754, 2025 WL 66514, at *3–5 (D. Minn. Jan. 10, 2025).

[19] Fed. R. Civ. P. 1.

[20] Kohls, 2025 WL 66514, at *4 (citing Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 126–27 (1989)).

[21] See id. at *4-5.

[22] See Coffey v. Healthtrust, Inc., 1 F.3d 1101, 1104 (10th Cir. 1993) (“There would seem to be no problem for the attorney to rely on the expert’s opinion as the basis of his client’s position.”).

[23] Fed. R. Civ. P. 11. The “inquiry reasonable under the circumstances” standard is “the subject of considerable argument and disagreement,” but generally “the attorney must have made a serious enough inquiry into the substance of the filing so that the filing is not made for an improper purpose.” 47 Am. Jur. 3d Proof of Facts § 7 (2024).

[24] Kohls, 2025 WL 66514, at *4.

[25] See id. at *4–5.

[26] Model Rules of Pro. Conduct r. 3.1.

[27] See, e.g., id. r. 3.1, 3.3, 3.4, 4.1.

[28] Id. r. 5.3.

[29] Id. r. 3.1.

[30] Id. r. 3.3.

[31] Id. r. 3.3, 1.3.

[32] Id. r. 1.4.

[33] ABA Comm. On Ethics & Pro. Resp., Formal Op. 512, at 8 (2024); see also Model Rules of Pro. Conduct r. 1.4(a)(2).

[34] ABA Comm. On Ethics & Pro. Resp., Formal Op. 512, at 8–9 (providing examples of where a lawyer’s use of generative AI would need the client’s informed consent); see also Model Rules of Pro. Conduct r. 1.4.

[35] See ABA Comm. On Ethics & Pro. Resp., Formal Op. 512, at 8–9.

[36] Kohls v. Ellison, No. 24-cv-3754, 2025 WL 66514, at *5 (D. Minn. Jan. 10, 2025).

[37] Id. at *4–5. Rather than imposing any penalty or sanction, Judge Provinzino only excluded the expert’s testimony and denied leave to file an amended expert declaration. Id. at *5. Fortunately for the attorneys in the Minnesota Attorney General’s Office, the court denied the plaintiff’s Motion for a Preliminary Injunction despite the exclusion of expert testimony. Kohls, 2025 WL 66765, at *5.

[38] See Fed. R. Civ. P. 11; 18 U.S.C. § 401; 7A C.J.S. Attorney & Client § 101 (2024); Harold A. Weston, Lawyers’ Professional Liability Insurance, 92 A.L.R. 5th 273 (2001) (“Lawyers, like other professionals, face liability exposures arising from their acts, errors or omissions in their rendering professional services on behalf of others.”); see also Kohls, 2025 WL 66514, at *5 (The “consequences [of citing AI‑hallucinated citations for attorneys] should be no different for an expert offering testimony to assist the Court under penalty of perjury.”).

[39] Kohls, 2025 WL 66514, at *4 (citing Fed. R. Civ. P. 11(b)).

[40] Fed. R. Civ. P. 11(c)(1).

[41] Id.

[42] Id. at (b), (b)(3); see also Kohls, 2025 WL 66765, at *4.

[43] Andrew M. Perlman, The Legal Ethics of Generative AI, 57 Suffolk U. L. Rev. 345, 355–60 (2024).

[44] Id.

[45] Id. at 356 (quoting Michael J. Newman, Standing Order Governing Civil Cases, S.D. OHIO 11 (Dec. 18, 2023), https://www.ohsd.uscourts.gov/sites/ohsd/files//MJN%20Standing%20Civil%20Order%20eff.%2012.18.23.pdf [https://perma.cc/8CXY-Q6KK]; Michael J. Newman, Standing Order Governing Criminal Cases, S.D. OHIO 5 (Aug. 19, 2024), https://www.ohsd.uscourts.gov/sites/ohsd/files//MJN%20Standing%20Criminal%20Order%208.19.2024.pdf [https://perma.cc/7N8T-XCXM] (“Parties and their counsel who violate this AI ban may face sanctions including, inter alia, striking the pleading from the record, the imposition of economic sanctions or contempt, and dismissal of the lawsuit.”).

[46] See Model Rules of Pro. Conduct r. 5.3 (imposing a duty on lawyers to ensure that nonlawyers are supervised in conformity with a lawyer’s ethical obligations under the Model Rules).

[47] 7A C.J.S. Attorney & Client § 101 (2024).

[48] See ABA Comm. On Ethics & Pro. Resp., Formal Op. 512, at 2 (“It is anticipated that this Committee and state and local bar association ethics committees will likely offer updated guidance on professional conduct issues relevant to specific [generative AI] tools as they develop.”).

[49] 7A C.J.S. Attorney & Client § 101 (“As a general rule, any court authorized to admit an attorney has inherent jurisdiction to discipline, suspend, or disbar the attorney for sufficient cause.”); see Model Rules of Pro. Conduct r. 5.3 (“[A] lawyer shall be responsible for conduct of [a nonlawyer employed or retained by or associated with a lawyer] that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”).

[50] See, e.g., Michael A. Mora, Lawyer’s Use of Artificial Intelligence Leads to Disciplinary Action, Daily Bus. Rev. (May 15, 2024, 6:37 PM), https://www.law.com/dailybusinessreview/2024/05/15/lawyers-use-of-artificial-intelligence-leads-to-disciplinary-action/?slreturn=20250316-23238; Sara Merken, Another NY Lawyer Faces Discipline After AI Chatbot Invented Case Citation, Reuters (Jan. 30, 2024, 2:42 PM), https://www.reuters.com/legal/transactional/another-ny-lawyer-faces-discipline-after-ai-chatbot-invented-case-citation-2024-01-30/ [https://perma.cc/XAT7-78XE].

[51] Thy Vo, Colo. Atty Suspended for Using ‘Sham’ ChatGPT Case Law, Law360 (Nov. 27, 2023, 4:38 PM), https://www.law360.com/legalethics/articles/1770085 [https://perma.cc/4MTL-C6WW].

[52] The term “ChatGPT lawyer” entered the zeitgeist when an attorney was sanctioned in Mata v. Avianca, Inc. See 678 F.Supp. 3d 443 (S.D.N.Y. 2023).

[53] Currently, AI-related attorney discipline predominantly involves an attorney’s improper AI use. See, e.g., Mora, supra note 50; Merken, supra note 50.

[54] See generally Alysa Taylor, How Real-World Businesses Are Transforming with AI—with 261 New Stories, Off. Microsoft Blog, https://blogs.microsoft.com/blog/2025/03/10/https-blogs-microsoft-com-blog-2024-11-12-how-real-world-businesses-are-transforming-with-ai/ [https://perma.cc/L9YB-THD8] (last updated Apr. 22, 2025).

[55] Weston, supra note 38 (“Lawyers, like other professionals, face liability exposures arising from their acts, errors or omissions in their rendering professional services on behalf of others.”).

[56] Generally, courts reject legal malpractice cases where “the defendant attorney was negligent in failing to effectively present evidence or testimony which would have produced a verdict favorable to the client.” W.E. Shipley, Attorney’s liability for negligence in preparing or conducting litigation, 45 A.L.R. 2d 5 § 16 Evidence or witnesses (1956). However, in certain circumstances, such as in Brock v. Fouchy, courts have stated that when an attorney’s failures deprive their client of the ability to present evidence, an attorney is liable for their negligence if damage results. Id. (citing Brock v. Fouchy, 172 P.2d 945 (Cal. Ct. App. 1946)).

[57] Id. (“The factor which has occasioned most difficulty to clients attempting to charge attorneys with liability for negligence in connection with litigation has been the necessity of proving that the damages claimed resulted from the alleged misconduct.”).

[58] Id. (“[A]n attorney undertaking litigation will be required to exercise that degree of knowledge, care, and diligence which is commonly possessed and exercised by what might be called the ‘reasonably prudent’ attorney under the circumstances.”).

[59] See Kohls v. Ellison, No. 24-cv-3754, 2025 WL 66514, at *5 (D. Minn. Jan. 10, 2025) (excluding an expert’s testimony when it contained hallucinated AI‑generated citations).

[60] See Noel v. Martin, 21 F. App’x 828 (10th Cir. 2001) (holding that the plaintiff’s attorney’s negligence in submitting a late expert disclosure provided grounds to exclude the expert and that summary judgment was proper where plaintiff did not have an expert).

[61] See Kohls, 2025 WL 66514, at *4.

[62] See generally Taylor, supra note 54.

[63] See Kohls, 2025 WL 66514, at *4.

[64] Id. at *4; see Fed. R. Civ. P. 11. Where a client’s informed consent is required to use a generative AI tool—such as when confidentiality may be breached—lawyers must also discuss the expert’s desired use of generative AI tools and potential risks with the expert so that they may get a client’s informed consent. See ABA Comm. On Ethics & Pro. Resp., Formal Op. 512, at 8–9 (2024).

[65] Expert fees comprise a considerable portion of litigation expenses, with expert fees ranging, on average, from $200 to $1,500 per hour. LITILI Grp., The Financial Implications of Expert Witnessing: Unraveling Earnings, Expenses, and Key Considerations (Dec. 4, 2024), https://litiligroup.com/the-financial-implications-of-expert-witnessing-unraveling-earnings-expenses-and-key-considerations/ [https://perma.cc/34L7-ALCP].

[66] See Restatement (Second) of Contracts § 339 cmt. a (Am. L. Inst. 2024).

[67] The guidance does not directly address a lawyer’s ethical responsibilities when working with experts who use generative AI. See generally ABA Comm. On Ethics & Pro. Resp., Formal Op. 512 (2024).

[68] Coffey v. Healthtrust, Inc., 1 F.3d 1101, 1104 (10th Cir. 1993) (“There would seem to be no problem for the attorney to rely on the expert’s opinion as the basis of his client’s position. As long as reliance is reasonable under the circumstances, the court must allow parties and their attorneys to rely on their experts without fear of punishment.”).

[69] Kohls v. Ellison, No.24-cv-3754, 2025 WL 66514, at *3 (D. Minn. Jan. 10, 2025) (identifying the offending expert as one with expertise in generative AI and misinformation).

[70] Fed. R. Civ P. 11. For example, a lawyer might be called upon to verify calculations, check factual statements that form the basis for expert’s opinions, or research the subject matter such that they can make judgments about whether an expert opinion was reasonable.

[71] Cimphony, a legal AI company, already offers “AI-Powered Legal Citation Analysis.” See AI-Powered Legal Citation Analysis: 2024 Guide, Cimphony, https://www.cimphony.ai/insights/ai-powered-legal-citation-analysis-2024-guide [https://perma.cc/KAH6-4BKT]. While it does not currently offer a means of checking citations that would likely satisfy a lawyer’s ethical and professional obligations, the technology appears to be moving in that direction. Id.

[72] See ABA Comm. On Ethics & Pro. Resp., Formal Op. 512, at 15 (2024).

[73] Id.

By Thomas Mackie[1]

Introduction

After leaving the service, a military veteran may be entitled to regular payments from the U.S. Department of Veterans Affairs (VA) for disabilities sustained in the course of his or her military duties.[2] Under federal law, no individual may assist veterans “in the preparation, presentation, and prosecution of claims for VA benefits” unless the VA has accredited the individual.[3] While offering VA claimants assistance without accreditation is illegal under federal law, the practice is widespread because no criminal penalties exist for providing unaccredited VA claims assistance.[4]

Congress requires VA accreditation to ensure that veterans receive competent and ethical legal representation.[5] Generally, only individual agents or attorneys may seek accreditation, but there are exceptions for law firms and veterans’ nonprofit organizations.[6] The accreditation process involves training, background checks, and continuous oversight to ensure compliance with ethical standards.[7] Most notably, accredited individuals may not charge a veteran for assistance unless the VA denies a veteran’s disability claim and the veteran appeals the denial.[8] In such cases, accredited individuals may charge reasonable fees for assisting the veteran in navigating the appeal.[9]

Historically, federal law imposed criminal penalties on individuals who violated VA accreditation rules.[10] But in 2006, Congress removed the criminal penalties.[11] Consequently, despite the general prohibition on unaccredited VA claimant representation and on charging veterans for assistance, bad actors brazenly profit off veterans seeking benefit claims.[12] Such unaccredited companies, entities, or individuals—known as claim sharks—exploit veterans seeking VA benefits.[13] A 2024 Louisiana law purports to curb this activity, but instead it does little to hinder claim sharks from preying on veterans.[14]

I. “Claims Nightmare”: Veterans Struggle to File for VA Disability Benefits

For military veterans seeking disability compensation from the VA, the application process can be daunting.[15] Requesting VA benefits involves filling out numerous forms, tracking down past medical records, seeking additional medical evaluations, and waiting for VA eligibility determinations.[16] Elderly and disabled veterans may have particular difficulty filling out forms, navigating complex websites, or understanding how to properly file a VA benefits claim.[17] To understand the complexity of seeking VA benefits, the benefit claims process must be briefly explained.

To attain VA disability benefits, a veteran must overcome several hurdles. First, the veteran must prove that he or she meets the VA’s definition of veteran. The VA defines veteran as “a person who served in the active military, naval, air, or space service and who was discharged or released under conditions other than dishonorable.”[18] This definition clearly outlines that to qualify for most VA benefits, an individual must have served in one of the United States’ six service branches without being dishonorably discharged.[19] Next, the veteran must establish that he or she incurred or aggravated the disability during active service in the armed forces.[20] This requirement is relatively straightforward for Veterans who served full-time.[21] However, proving active service may be more difficult for veterans of reserve components, such as the National Guard or Army Reserves.[22] Regardless, once the VA determines the individual meets the definition of veteran and active service, the VA evaluates the nature of the servicemember’s discharge.[23]

Service members typically end their time in the military when they are discharged.[24] The VA classifies discharges according to the character of the veteran’s service.[25] The discharge categories, ranked from the most favorable to the veteran to the least favorable, are Honorable or Under Honorable Conditions; General under Honorable Conditions; Other than Honorable; Bad Conduct; Dishonorable; and Entry Level or Non-Characterized.[26] Accordingly, an Honorable Discharge does not preclude a veteran from receiving VA benefits, but veterans with other discharge categories may not receive some, or any, VA benefits.[27] Upon discharge from the service, veterans receive a DD-214 form, which lists the veteran’s discharge category.[28] The discharged veteran must then submit the DD-214, medical records, and, optionally, lay evidence supporting the claim to the VA to establish benefits eligibility.[29]

Proving to the VA that the veteran is eligible for benefits is merely the first step. To receive disability compensation, the veteran must show (1) he or she was discharged or released under conditions other than dishonorable; (2) his or her disease or injury was incurred or aggravated in the line of duty; and (3) the disability is not a result of his or her own willful misconduct or abuse of alcohol or drugs.[30] While proving each individual requirement may be burdensome, the second requirement is often the most difficult to prove.

Veterans have several means to prove their injuries were service connected, meaning caused in—or as a result of—their military service.[31] Service connection may be proven either directly, presumptively, or by secondary service connection.[32] If attempting to prove directly, a veteran must prove to the VA that he or she has a currently diagnosed disability condition that was incurred while in service and has existed since first incurred.[33] Where the government has definitive evidence that service in specific locations and conflicts resulted in certain injuries or disabilities, a veteran may establish service connection presumptively by proving he or she served in one of several specified locations or locales known to be especially hazardous.[34] Finally, the VA may grant service connection for a disability caused by a disability that is already service connected.[35] Once the veteran establishes his or her discharge status, service connected disability, and that the disability did not result from misconduct or drugs, the veteran may finally be eligible for compensation.[36]

This overview of the VA claims process is a highly simplified explanation, as the process includes many additional steps and requirements not discussed here.[37] Given this complexity, it is understandable why many veterans struggle to navigate the VA claims process.[38] To help alleviate veterans’ burdens in independently filing claims, the VA offers accreditation to individuals desiring to help veterans file their disability claims.[39] As explained above, acquiring accreditation is a rigorous process. Attaining VA accreditation involves a background check, passing a test on the VA claims system, and undergoing regular training.[40] Offering claims assistance without VA accreditation or charging a fee for such assistance is illegal, excluding some limited exceptions.[41] This is where the claim sharks come in.

II. Louisiana’s PLUS Act Allows Claim Sharks to Profit off Veterans

Claim sharks take advantage of veterans’ frustration with the VA claims system by offering paid assistance and coaching.[42] However, such assistance comes at great cost to veterans. One Navy veteran described a claim shark company’s practices as “slimy car sales tactics” and “defrauding veterans out of their benefits.”[43] The same veteran accused the company of charging him “nearly $10,000 for about six hours of coaching, some of which included watching pre‑recorded online informational sessions with as many as 400 other attendees at a time.”[44] Even more concerning, claim shark companies may charge a percentage of the veterans’ VA benefits.[45] This arrangement leads to situations where a veteran could owe a consulting company tens of thousands of dollars for a service that is available for free from VA-accredited attorneys, agents, and organizations.[46]

Despite a recently enacted state law, claim sharks remain a pressing issue for Louisiana veterans.[47] In 2024, Louisiana passed the Preserving Lawful Utilization of Services for Veterans Act (PLUS Act).[48] PLUS Act supporters claimed that the law would safeguard Louisiana veterans “from exploitation, [and] ensure[] transparency in VA disability benefits assistance.”[49] Perhaps unsurprisingly, the law’s major backers were two unaccredited claims companies acting through a lobbying group.[50] While PLUS Act supporters claim the law protects veterans, it only enables claim sharks to continue exploiting them.[51]

The PLUS Act, codified at Louisiana Revised Statute section 29:296, contains several loopholes allowing claim sharks to continue their unscrupulous practices.[52] For example, the statute states that compensation for assisting with VA claims “shall not exceed twelve thousand five hundred dollars.”[53] This means that claim sharks may still charge massive fees for doing minimal work, provided the fee does not exceed $12,500. To illustrate why this is problematic, a consulting company could legally charge a veteran $5,000 for six hours of trivial work. Even more concerning, claim sharks may demand a percentage of a veteran’s disability payments in perpetuity, imposing financial burdens on the veteran until he or she dies.[54] The PLUS Act does not prohibit such predatory payment schemes; it enables them.[55]

Additionally, while federal law requires individuals or entities to be VA-accredited to help veterans file their claims, the PLUS Act has no such limitation.[56] Louisiana Department of Veteran’s Affairs (LDVA) secretary, Charleton Meginley, argues that claim sharks deliberately avoid seeking accreditation because doing so would subject them to the same rules as accredited claims agents and attorneys.[57] Once a person becomes accredited, they cannot charge any fees from VA claimants to help them fill out forms.[58] Instead, if accredited, they would have to work on more complicated matters, such as appeals, to earn a commission.[59] By failing to require accreditation, the PLUS Act allows claim sharks to operate with impunity.

III. Legislative Attempts to Fight Claim Sharks Have Stalled

The most direct solution to counteract the PLUS Act is for the federal or Louisiana legislature to enact legislation that expressly criminalizes unaccredited VA disability claims assistance. A federal legislative proposal, titled the GUARD Act, would solve this problem.[60] The GUARD Act proposes to impose charges on “whoever directly or indirectly solicits, contracts for, charges, or receives, or attempts to solicit, contract for, charge, or receive, any fee or compensation with respect to the preparation, presentation, or prosecution of any claim for [VA] benefits.”[61] Thus, the GUARD Act would impose criminal penalties on entities that unnecessarily charge veterans for preparing their VA claims.[62] Such criminal penalties would include fines or up to one year of imprisonment.[63] Criminalizing unaccredited entities from exploiting veterans via federal legislation would deal a serious blow to claim sharks.

While the GUARD Act would likely be effective, it is unknown whether Congress will codify it. The bill is currently stalled in Congress,[64] and political bickering has hindered veteran‑favorable legislation in the recent past.[65] Initial Senate hearings on the bill suggest that both Republican and Democrat lawmakers acknowledge that unaccredited companies are problematic for veterans.[66] However, some lawmakers have expressed concerns that criminalizing unaccredited consulting companies would prohibit a valuable service.[67] Further, congressional lawmakers recently introduced a federal version of the PLUS Act.[68] The federal PLUS Act proposal directly contravenes the GUARD Act and would preempt states from passing anti-claim shark legislation.[69] Whether the GUARD Act or PLUS Act will prevail in Congress remains to be seen.

While the battle continues in Congress, states are taking their own measures to fight claim sharks.[70] Nearly 40 states have laws or have been debating bills that address unaccredited VA claims assistance.[71] In contrast, Louisiana is one of two states with laws that allow unaccredited VA claims assistance.[72] In 2023, Louisiana representative Dodie Horton sponsored a bill that emulates the GUARD Act by expressly prohibiting unaccredited entities from assisting veterans in filing for VA benefits.[73] But this bill remains stalled in the legislature, and the lack of action suggests it is effectively dead.[74] Thus, without state or federal legislation, the only means of countering Louisiana’s PLUS Act may be litigation.

IV. Wells v. Landry

In June 2024, Louisiana attorney John Wells filed a lawsuit against the state in the Middle District of Louisiana, alleging that the PLUS Act violates the Contracts Clause and Supremacy Clause of the U.S. Constitution.[75] The Supremacy Clause establishes that federal law preempts state law.[76] Accordingly, 38 U.S.C. § 5904­ dictates the compensation scheme for veterans’ attorneys.[77] In his petition, Wells argued the PLUS Act attempts to supersede § 5904 by imposing its $12,500 compensation limit on individuals who assist veterans.[78] Further, Wells noted the PLUS Act ignores the issue of claim sharks and that it “makes no distinction between federally accredited and non-accredited individuals.”[79] Therefore, the PLUS Act’s compensation scheme may conflict with federal law by failing to identify whether it applies to accredited or unaccredited individuals. Thus, since the PLUS Act could be interpreted to apply to both, it likely encroaches on federal law dictating compensation for accredited agents or attorneys.

Further, one of Wells’s primary concerns is that the PLUS Act’s $12,500 statutory maximum for VA benefits assistance is too low.[80] Wells’s complaint suggests that accredited attorneys—who validly charge for assistance with VA benefit appeals—often secure judgments exceeding $12,500.[81] But accredited attorneys may not collect anything above that amount.[82] By hampering legitimate VA-accredited attorneys from earning the full value of their work, the PLUS Act may dissuade these attorneys from taking on veterans’ cases.[83] Therefore, the PLUS Act’s statutory compensation cap not only enables claim sharks, but also potentially limits veterans’ access to legal representation.[84]

Wells’s petition lists numerous additional allegations disputing the PLUS Act’s constitutionality.[85] Ultimately, Wells requests that the court declare the PLUS Act unconstitutional and enjoin its enforcement.[86] While invalidating the PLUS Act would be a favorable outcome, claim sharks might find ways to continue preying on veterans. Claim sharks will likely continue ignoring any state or federal prohibitions since no criminal penalties exist. Therefore, the more permanent solution is to enact legislation, such as the GUARD Act, to definitively impose criminal penalties for unaccredited VA disability benefits claims assistance.

Conclusion

Veterans represent a unique category of American citizens. While veterans compose different races, genders, and creeds, they share one common attribute: a willingness to serve their country in the armed forces. However, bad actors take advantage of veterans’ frustration with the VA benefits system by promising to secure higher benefit ratings and faster results.[87] Instead, veterans—frequently disabled veterans—may be burdened with enormous fees, all to secure the benefits they are entitled to for free.[88]

Claim sharks argue their practices are necessary to deal with the VA’s clunky, bureaucratic benefits system.[89] It is undeniable that the VA’s claims process is sluggish and difficult for veterans to navigate.[90] But as stated by a Maryland lawmaker and Army veteran, “a lot of people are probably benefitting from the dysfunction in the VA . . . and [] that’s creating kind of a perverse incentive to not fix the dysfunction and not actually help the veterans.”[91] In other words, claim sharks are making a bad situation worse.

Louisiana’s tacit condonation of claim sharks via the PLUS Act is disappointing. While many states have passed laws to combat claim sharks, the Louisiana legislature seems uninterested or unable to take similar action.[92] If Louisiana lawmakers do not step up, Congress must enact criminal penalties for unaccredited VA benefits claims assistance. Ensuring veterans receive the benefits they’ve rightfully earned—without exploitation—is not just a legal duty, but a moral imperative.

[1] While it is uncommon for Louisiana Law Review editorial board members to submit Articles for online publication, I felt compelled to share my insights on the claim shark issue. When I asked if this Article could be added to the production cycle, I was deeply moved by the board’s overwhelming support and encouragement. I am especially grateful to Ashton Austin, Nathan Jagot, Kenli Conyers, Aidan Doughty, and Tara Roussel, who generously dedicated hours of their own time to edit, revise, and refine this Article, on top of balancing their usual duties. Their contributions were invaluable, and I sincerely thank them for their exceptional service. Lastly, I thank my girlfriend, Albane Korb, for her patience, love, and for believing in me when I struggled to believe in myself.

[2] Wesley Muller, Louisiana Enacts Law to Let Consultants Profit off Disabled Veteran Benefit Claims, La. Illuminator (Jun. 7, 2024, 7:00 AM), https://lailluminator.com/2024/06/07/louisiana-enacts-law-to-let-consultants-profit-off-disabled-veterans-benefit-claims/ [https://perma.cc/VDK4-XV8J].

[3] 38 C.F.R. § 14.629(b)(1) (2024) (governing accreditation of individuals seeking to represent VA claimants); see also How to Apply for Accreditation, U.S. Dept. Vet. Aff. (VA), https://www.va.gov/OGC/docs/Accred/HowtoApplyforAccreditation.pdf [https://perma.cc/N5LU-ZV8K] (describing what VA accreditation is, when accreditation is required, and listing the requirements for VA accreditation); 38 U.S.C. § 5904(c) (dictating that paid representation in connection with a VA benefits proceeding is permissible only after a benefit claimant has received notice of the VA’s initial decision over whether to grant the claimant’s request for benefits).

[4] See Muller, supra note 2 (“[A]bout 40% of complaints to the VA’s legal office in 2022 were about non-accredited claims consultants.”).

[5] See 38 C.F.R. § 14.629(b)(2) (2024) (“An individual desiring accreditation [] must establish that he or she is of good character and reputation, is qualified to render valuable assistance to claimants, and is otherwise competent to advise and assist claimants in [preparing VA benefits claims].”).

[6] Limited exceptions exist for Veteran’s Service Organizations (VSOs), attorneys in law firms, law students, and paralegals. Id. § 14.629(a)–(c).

[7] See id. § 14.629 (listing numerous requirements for accreditation).

[8] 38 U.S.C. § 5904(c)(1).

[9] See id. § 5904(a)(5) (“A fee that does not exceed 20 percent of the past due amount of benefits awarded on a claim shall be presumed to be reasonable.”).

[10] “Whoever (1) directly or indirectly solicits, contracts for, charges, or receives, or attempts to solicit, contract for, charge, or receive, any fee or compensation except as provided in sections 5904 or 1984 of this title, or (2) wrongfully withholds from any claimant or beneficiary any part of a benefit or claim allowed and due to the claimant or beneficiary, shall be fined as provided in title 18, or imprisoned not more than one year, or both.” 38 U.S.C. § 5905 (2005) (amended 2006).

[11] Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, § 101(g), 120 Stat. 3403, 3408. (amending 38 U.S.C. § 5905 by striking “(1) directly or indirectly solicits, contracts for, charges, or receives, or attempts to solicit, contract for, charge, or receive, any fee or compensation except as provided in sections 5904 or 1984 of this title, or (2)”).

[12] “Under current federal law, most of these private companies are operating illegally, as many are not accredited by the VA to file claims. It is illegal for unaccredited agents to prepare, present or file claims on behalf of veterans; however, because Congress ended the criminal penalties for doing so in 2006, there is little to prevent these companies from offering to help veterans.” Press Release, La. Dep’t of Veterans Affs., LDVA, Veterans Service Organizations Advocate for Veterans to Protect Their Benefits Amid Pending Legislation (Apr. 26, 2024), https://www.vetaffairs.la.gov/wp-content/uploads/042624SB159NRFinal.pdf [https://perma.cc/M9LW-4HBW].

[13] The Veterans of Foreign Wars (VFW), a military veteran organization, defines claim shark as “an individual or company that charges hefty fees to ‘assist’ or ‘consult’ veterans with filing their VA benefit claims.” Don’t Feed the Sharks, VFW, https://www.vfw.org/home-bottom-rotator/dc/claim-sharks [https://perma.cc/G4YF-Y39J]. This Article uses the terms claim shark, consulting company, and unaccredited entity interchangeably.

[14] Former VA secretary Peter O’ Rourke, the chief lobbyist behind the PLUS Act, stated that the Act “safeguards Louisiana’s veterans from exploitation, ensures transparency in VA disability benefit assistance, upholds their autonomy while providing essential protections, and reinforces their right to choose.” Muller, supra note 2. However, the PLUS Act inhibits these goals. See infra Parts II, IV.

[15] See Muller, supra note 2 (characterizing the process of filing for VA benefits as “often misunderstood”).

[16] See, e.g., 38 C.F.R. § 3.155 (describing how to file a VA disability benefit claim).

[17] A 2023 VA assessment evaluated VA requests submitted under the PACT Act, which involves claims for disabilities arising from chemical exposure. The study found that veterans above the age of 55 represented the largest percentage of claims. U.S. Dep’t of Veterans’ Affs., VA Pact Act Performance Dashboard: Quarterly Demographic Supplement 3 (Sep. 2023), https://www.accesstocare.va.gov/pdf/VA_PACTActQuarterlyDemographic_Issue1_Final_508.pdf [https://perma.cc/9V7E-JTKM].

[18] 38 C.F.R. § 3.1(d).

[19] See id.

[20] A disability must be “incurred or aggravated . . . in line of duty in the active military, naval, air, or space service.” 38 C.F.R. § 3.1(k) (emphasis added).

[21] Active-duty component servicemembers typically receive a single DD-214 documenting their active service upon discharge from the military, but National Guard veterans receive an additional NGB-22 form. See Margaret Kuzma, Dana Montalto, Betsy Gwin & Daniel Nagin, Military Discharge Upgrade: Legal Practice Manual 43 (2021).

[22] See id. at 626.

[23] See 38 C.F.R. § 3.12.

[24] 38 C.F.R. § 3.1(h).

[25] See Kuzma et al., supra note 21, at 14–42 (explaining military discharge classifications and separation procedures).

[26] See id. at 50.

[27] 38 C.F.R. § 3.12(a) (providing that a veteran may receive VA pension, compensation, or other benefits if the veteran ended their service “by discharge or release under conditions other than dishonorable”).

[28] See Kuzma et al., supra note 21, at 42–43.

[29] See id.

[30] See 38 U.S.C. § 1110.

[31] 38 C.F.R. § 3.1(k)-(l).

[32] 38 C.F.R. § 3.303.

[33] 38 C.F.R. § 3.304 (establishing criteria for direct service connection).

[34] 38 C.F.R. § 3.309 (listing diseases subject to presumptive service connection).

[35] See 38 C.F.R. § 3.310 (establishing eligibility of compensation for secondary conditions and explaining criteria for secondary conditions).

[36] 38 U.S.C. § 1110; 38 C.F.R. 3.4(b)(1).

[37] For additional rules and regulations governing the claims process, see 38 C.F.R. pts. 3–4 (2024).

[38] See Jasper Craven, As Veteran Disability Claims Soar, Unaccredited Coaches Profit off Frustration with VA System, Tx. Trib. (Jul. 5, 2023, 5:00 AM), https://www.texastribune.org/2023/07/05/veterans-disability-benefits-brian-reese-va-claims-insider/?utm_campaign=trib-social-buttons&utm_source=copy&utm_medium=social [https://perma.cc/6ABT-LQE4] (explaining that one veteran did not apply for benefits “because, like millions of veterans, he felt overwhelmed by the paperwork required”; another veteran described the claims system as an “adversarial, complex, and burdensome claims nightmare”).

[39] See 38 C.F.R. § 14.629(a)–(c).

[40] See 38 C.F.R. § 14.629; How to Apply for Accreditation, supra note 3.

[41] “[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which a claimant is provided notice of the agency of original jurisdiction’s initial decision under section 5104 of this title with respect to the case.” 38 U.S.C. § 5904(c)(1). In other words, unaccredited entities may only charge fees for assisting veterans with disability claim appeals.

[42] See Craven, supra note 38.

[43] Id. (quoting Jim Peckey).

[44] Id. (quoting Jim Peckey).

[45] See Wesley Muller, Lawmakers Ponder Whether Consultants for Veteran Benefits Should See Big Profits, La. Illuminator (May 6, 2024, 5:00 AM), https://lailluminator.com/2024/05/06/lawmakers-ponder-whether-consultants-for-veteran-benefits-should-see-big-profits/ [https://perma.cc/CB6B-XGKS].

[46] For example, under one consulting company’s payment scheme, a veteran who secures a high disability rating “would receive a monthly benefit of about $4,000 from the [VA] and would then owe the consulting company approximately $20,000.” Id.

[47] See Muller, supra note 2.

[48] Id.; Act No. 479, 2024 La. Acts ___.

[49] Muller, supra note 2.

[50] “The driving forces behind the legislation are two unaccredited claims companies, Veterans Guardian and Veteran Benefits Guide. They have joined forces under a lobbying group called National Association of Veterans Rights. NAVR’s leader and chief lobbyist is Peter O’Rourke, the VA secretary from the [first] Trump administration.” Id. Veterans Guardian and Veteran Benefits Guide reportedly spent a combined $2.72 million on lobbying for the PLUS Act. Id.

[51] See Press Release, La. Dep’t of Veterans Affs., supra note 12 (“[T]he PLUS Act would allow these private companies to exist and essentially expand the accreditation process.”).

[52] See La. Rev Stat. § 29:296.

[53] Id. § 29:296(C)(1).

[54] See Scam Alert: Veterans’ Disability Benefits Targeted Through Fraud Schemes, Disabled Amer. Vets. (DAV) (Feb. 8, 2024), https://www.dav.org/learn-more/news/2024/scam-alert-veterans-disability-benefits-targeted-through-fraud-schemes/ [https://perma.cc/9ZBJ-V9TN] (warning veterans that claim sharks’ fees “are often a percentage of future benefits payments”).

[55] See Press Release, La. Dep’t of Veterans Affs., supra note 12 (noting that in exchange for helping veterans seek VA benefits, claim sharks often seek a portion of a veteran’s compensation, and that “[t]hese fees can range from a few hundred dollars, to tens of thousands of dollars, depending on an initial rating or increase in rating a veteran may receive”).

[56] See 38 U.S.C. § 5904; 38 C.F.R. § 14.629(b)(1); La. Rev Stat. § 29:296.

[57] Muller, supra note 2.

[58] See id.; see also 38 C.F.R. § 14.636(b) (prohibiting VA-accredited agents and attorneys from collecting fees from VA claimants).

[59] See 38 C.F.R. § 14.636(c) (allowing VA-accredited agents and attorneys to collect fees in some limited circumstances); Press Release, La. Dep’t of Veterans Affs., supra note 12 (“These companies choose not to seek accreditation because it significantly limits the amount of compensation they can receive.”).

[60] See S. 740, 118th Cong. (2023).

[61] Id.

[62] See id.

[63] Id.

[64] In the Senate, no action has been taken on the Guard Act since 2023. S.740 – GUARD VA Benefits Act of 2023, Congress.gov, https://www.congress.gov/bill/118th-congress/senate-bill/740/all-actions [https://perma.cc/KU6D-XZNF]. Similarly, a reciprocal bill in the House of Representatives has not moved since 2023. H.R.1139 – GUARD VA Benefits Act, Congress.gov, https://www.congress.gov/bill/118th-congress/house-bill/1139/all-actions [https://perma.cc/5D6E-X9W2].

[65] For example, in 2022, a bill titled the PACT Act proposed additional healthcare coverage for millions of veterans who were exposed to toxins, including from burn pits in Afghanistan and Iraq, and Agent Orange in Vietnam. See Melissa Chan, Phil McCauseland & Daniel Arkin, Blindsided Veterans Erupt in Fury After Senate GOP Tanks Toxic Burn Pit Bill, NBC News (Jul. 28, 2022, 5:04 PM), https://www.nbcnews.com/politics/congress/blindsided-veterans-erupt-fury-senate-republicans-suddenly-tank-pact-a-rcna40516 [https://perma.cc/4YXU-V2L6]. The PACT Act enjoyed broad bipartisan support until 25 Senate Republicans unexpectedly reversed their positions and blocked the bill, to the frustration and anger of many veterans. See id. Congress ultimately signed PACT Act into law later in 2022. See Honoring Our PACT Act of 2022, Pub L. No. 117-168, 136 Stat. 1759 (2022).

[66] See Hearing to Consider Pending Legislation Before the Senate Comm. On Vet. Aff., 118th Cong. 1–32 (2023).

[67] For example, Senator Tom Tillis stated, “I, for one, think that we have many organizations that are doing a good job.” Id. at 10. Senator Tillis further acknowledged that claim sharks exist, but his comments suggested a reluctance to pass the GUARD Act because of the possibility that many unaccredited actors provide valuable services. See id. at 10–11.

[68] The proposed federal PLUS Act allows companies to attain VA accreditation, imposes criminal fines for unaccredited claims assistance, and instates a fee cap of $12,500 for VA claims assistance. Thus, while the proposal creates criminal penalties for unaccredited claims assistance, it affirmatively shields claim sharks by broadening accreditation to encompass charging predatory fees. See H.R.1656 – 119th Congress (2025-2026): PLUS for Veterans Act of 2025, Congress.gov, https://www.congress.gov/bill/119th-congress/house-bill/1656/text.

[69] Id.

[70] For an interactive map indicating which states have laws blocking or allowing unaccredited claims consulting, see Leah Rosenbaum, This Company Is Spending Millions to Profit Off Veterans’ Benefits. Why Won’t Lawmakers Stop It?, War Horse (Apr. 18, 2025), https://thewarhorse.org/va-benefits-claims-lobbying-congress/?utm_source=sailthru&utm_medium=email&utm_campaign=mil-ebb.

[71] Id.

[72] Louisiana and South Dakota are the only two states with laws that allow unaccredited claims assistance. Id.

[73] H.B. 979, 2024 Leg., Reg. Sess. (La. 2024). HB979 was previously HB496. HB496 by Representative Dodie Horton, La. State Legislature, https://legis.la.gov/legis/BillInfo.aspx?i=246254 [https://perma.cc/6KX5-J6P7].

[74] See id.

[75] See Complaint for Declaraator and Injunctive Relief, Military-Veterans Advocacy Inc. v. Landry, No. 24-cv-00446 (M.D. La. Jun. 5, 2024) [hereinafter Complaint].

[76] U.S. Const. art. VI, cl. 2.

[77] 38 U.S.C. § 5904.

[78] Complaint, supra note 75, at 4.

[79] Id.

[80] See id. at 4, 13–14.

[81] Id.

[82] “Under the [PLUS Act] cap, an attorney may be limited in the amount of the award he or she can accept. So for example, if the Court awards attorney fees in the amount of $17,000[,] the attorney would have to return the amount over $12,500.” Id. at 4.

[83] Id. at 14 (“The fee cap of [the Plus Act] would require Plaintiffs[] to seek fewer veterans cases and take other uncapped cases to offset the fee limitation in veterans cases.”).

[84] See id.

[85] See generally id.

[86] Id. at 18.

[87] See Muller, supra note 2.

[88] Muller, supra note 45 (quoting a veteran: “Why do I need to pay someone when I can go have that same service done free?”).

[89] See Rosenbaum, supra note 70 (quoting Peter O’Rourke: “Veterans are making conscious, informed decisions to seek help outside the VA’s current system, and no one should be outraged that they now have a choice”).

[90] See supra Part I.

[91] Rosenbaum, supra note 70.

[92] See supra Part III.

By Jack Ducote

Introduction

Louisiana is currently experiencing an insurance crisis stemming from record-high car insurance rates.[1] Legislators have struggled to pinpoint which factors are directly responsible for the increased car insurance rates in Louisiana.[2] Though Louisiana is barely above the national average for number of car accidents per 100 insured vehicles, Louisianians are nearly 100% more likely to file an automobile injury claim with their insurers than drivers in other states.[3] Additionally, the likelihood that an automobile insurance claim in Louisiana will involve a lawsuit is more than triple the national average and is one of the highest in the country.[4]

One factor that Louisiana State Representative Mike Johnson has repeatedly highlighted as contributing to high car insurance rates is that the prescriptive period applicable to tort actions was only one year.[5] Until recently, Louisiana was one of two states in the country with a one-year prescriptive period for tort actions.[6] However, in June 2024, Louisiana Governor Jeff Landry signed into law Act 423 of the 2024 Regular Session.[7] Act 423, codified in Louisiana Civil Code articles 3493.1 and 3493.2 provides, in part: “Delictual actions are subject to a liberative prescription of two years. This prescription commences to run from the day that injury or damage is sustained.”[8] Representative Johnson, the bill’s author, stated that “extending the one-year prescription to a longer period of time will result in less lawsuits being filed.”[9] The Act became effective on July 1, 2024, and only applies prospectively to tort actions arising after that date.[10]

Representative Johnson emphasized that it was “as clear as could be” that Louisiana’s one-year prescriptive period for tort actions made it an outlier nationwide and passing the Act would align Louisiana with the norm.[11] Still, Louisiana remains an outlier in many areas of the law, including the prescriptive period applicable to wrongful death and survival actions.[12] Louisiana remains only one of three states with a one-year prescriptive period for wrongful death actions.[13] If extending the prescriptive period applicable to tort actions aligns Louisiana with the norm, then doing the same for wrongful death and survival actions would provide the same result. To accomplish this, the legislature should amend Civil Code articles 2315.1(A) and 2315.2(B) to also extend the prescriptive period for wrongful death and survival actions to two years.[14]

I. Prescription Periods

A statute of limitation defines the “period of time following the accrual of a cause of action during which an aggrieved party may file a lawsuit seeking money damages for [injuries].”[15] A statute of limitation bars a claim if it is not judicially pursued within a certain time.[16] Plaintiffs “must file suit in a court of competent jurisdiction and venue, and pursue that suit . . . to timely conclusion.”[17] The statutes of limitation for personal injury claims vary from state to state.[18] Nationwide, the most common length of tort statute of limitation is two years, which is the case in 26 states.[19] Prescription is the civilian counterpart to a statute of limitation in the common law. In civil law jurisdictions, like Louisiana, liberative prescription is “a mode of barring of actions as a result of inaction for a period of time.”[20] The purpose of prescription statutes and statutes of limitation is “to protect defendants against stale claims and the lack of notification of a formal claim within the prescriptive period.”[21]

A. Delictual Actions

All tort liability in Louisiana arises exclusively from the delictual principles of Louisiana Civil Code articles governing offenses and quasi offenses, the most important of which, article 2315, provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”[22] Thus, in Louisiana, a delictual action is a tort action or “an action seeking damages for injury caused by the act of another.”[23] The first prescriptive period for tort claims came from article 3501 of the Louisiana Civil Code of 1825, which provided that “actions . . . resulting from offences or quasi offences . . . are prescribed by one year.”[24] Over time, the legislature created longer prescription periods for certain torts.[25] The one-year liberative prescription period remained the law until July 2024, when Act 423 extended the liberative prescription period for delictual actions to two years.[26]

B. Wrongful Death and Survival Actions

The general rule in Louisiana and the common law was that tort actions died with the victim because they were considered personal to the parties.[27] However, Louisiana abandoned the common law rule when it adopted a survival action in 1855[28] and a wrongful death action in 1884.[29] Because the injured person is deceased, his or her designated beneficiaries may bring a survival action to recover damages suffered by the deceased person prior to his or her death that he or she could have recovered if he or she had lived.[30] A wrongful death action provides a remedy in favor of designated beneficiaries for the damages they have personally suffered as a result of the victim’s death.[31] Under current Louisiana law, both wrongful death and survival actions must be brought within a one-year period from the date of the decedent’s death.[32]

While it may seem that the prescription periods for wrongful death and survival actions are independent from the general prescription period provided for delictual actions, the Louisiana Supreme Court has repeatedly reasoned that they are linked.[33] In Stephenson v. New Orleans Railway & Light Co., the Louisiana Supreme Court concluded that the wrongful death action is one resulting from an offense or quasi offense and is subject to the ordinary prescription rules for delictual actions.[34] Further, in Taylor v. Giddens, the Louisiana Supreme Court found that “the prescriptive period for wrongful death actions . .  is controlled by the one year liberative period applicable to delictual actions.”[35]

II. The Problem—Application of Current Law

Suppose John is in a car accident on May 7, 2024, before the legislature enacted Act 423.[36] Because of the car accident, John suffered several injuries that required hospitalization. Assuming John is not at fault, John has a tort claim against the driver of the other car until May 7, 2025, under the old law.[37] Now suppose that John, who is married to Jane, dies as a result of his injuries on October 15, 2024. Under Louisiana law, Jane now has one year from the date of John’s death to bring the wrongful death and survival actions—until October 15, 2025.[38]

But what would happen if John’s car accident took place on July 7, 2024? Under the new Louisiana law, John would now have until July 7, 2026, to bring his tort claim.[39] Does this mean that when John dies on October 15, 2024, Jane has two years to bring the wrongful death and survival actions? No, Jane still only has one year from the date of John’s death to bring the claims.[40] This confusion arises from Act 423’s failure to extend the prescription periods for wrongful death and survival actions.[41] This confusion could potentially result in courts dismissing meritorious claims because claimants did not file them on time.[42] Thus, the legislature can and should address this issue.

III. Possible Solutions

Before Act 423 became effective, Louisiana was one of two states in the country with a one‑year prescription period for tort actions.[43] By raising the prescription period to two years, Act 423 “simply moves Louisiana into the mainstream.”[44] It is now time to do the same with wrongful death and survival actions. Louisiana is still only one of three states that has a one-year prescriptive period for wrongful death actions.[45] The Louisiana legislature should consider three options: (1) increasing the period to bring wrongful death and survival actions from one year to two years; (2) amending the period to be one year from the death of the deceased or two years from the date of the injury, whichever is longer; or (3) a mix of both.

A. Two-Year Prescription Period

The easiest solution for the legislature is to increase the period to bring wrongful death and survival actions from one year to two years. This would be easiest on attorneys and judges because it would likely avoid any potential confusion that may result from the next two possible solutions. It would also preserve the link between prescription periods for general delictual actions, wrongful death actions, and survival actions as discussed in Stephenson and Taylor.[46] Several states such as Connecticut, Georgia, and Hawaii, have statutes similar to this.[47]

B. One Year from the Death of the Deceased or Two Years from the Date of Injury—Whichever Is Later

Another option for the legislature is to amend the prescription periods in article 2315.1(A) and article 2315.2(B) to allow the decedent’s beneficiaries to bring the claims one year from the date of death or two years from the date of the injury or damage, whichever is later. Using the hypothetical from the introduction, if John was injured on July 7, 2024, and died on October 15, 2024, Jane would have until July 7, 2026, to file the wrongful death and survival actions. While no states follow this method for both wrongful death and survival actions, many states follow this method for survival actions.

C. Mix of Both

The last option for the legislature to consider is a mix of both aforementioned options. With regard to wrongful death actions, the legislature should increase the prescription period provided in article 2315.2(B) from one year to two years. For survival actions, the legislature should amend the prescription period provided in article 2315.1(A) to allow the decedent’s beneficiaries to bring the claims one year from the date of death or two years from the date of the injury or damage, whichever is later. Using the hypothetical again, if John was injured on July 7, 2024, and died on October 15, 2024, Jane would have until July 7, 2026, to file the survival action, and she would have until October 15, 2026, to file the wrongful death action. Several states follow this approach, including Florida and Illinois.[48]

Conclusion

The passage of Act 423 was a significant step toward aligning Louisiana’s prescription period for delictual actions with the national norm. However, the state remains an outlier regarding the prescription periods for wrongful death and survival actions. The continued one-year limitation on these claims creates inconsistencies in the law and potential confusion for litigants. To fully integrate Louisiana’s prescription framework with broader national trends and ensure greater fairness for plaintiffs, the legislature should amend Louisiana Civil Code articles 2315.1(A) and 2315.2(B). Adopting one of the aforementioned solutions would provide clarity and consistency while preserving judicial efficiency. By addressing this issue, Louisiana can take another critical step toward a more equitable and predictable legal system.

[1] Wesley Muller, Lawmakers Still Waiting to Hear Why Auto Insurance Is So Expensive in Louisiana, La. Illuminator (Sept. 10, 2024), https://lailluminator.com/2024/09/10/lawmakers-still-waiting-to-hear-why-auto-insurance-is-so-expensive-in-louisiana/  [https://perma.cc/4BH3-XYMQ].

[2] The Fight for Common Sense in Our Insurance Crisis, The Off. of the Governor (Aug. 1, 2024), https://gov.louisiana.gov/news/4594 [https://perma.cc/E7TT-S7E3].

[3] Ins. Rsch. Council, Auto Insurance Affordability in Louisiana 4 (2024), https://www.insurance-research.org/sites/default/files/IRC%20Louisiana%20Auto%20Insurance%20Affordability%20Brief%202024.pdf [https://perma.cc/4ESJ-C6Q9]. The injury claim relative frequency measures the number of bodily injury claims per 100 property damage claims. Id. at 6 n.2.  In Louisiana, the injury claim relative frequency was 49.15, while the national average was 26.30. Id. at 4.

[4] Id. at 4. Claim litigation reflects the percentage of personal auto claims with litigation. Id. at 6 n.2. It was measured by the ratio of suits opened to claims closed without payment multiplied by the ratio of claims closed without payment to the total claims closed. Id. Louisiana’s rate of litigation was 2.3, while the national average was 0.6. Id. at 4.

[5] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., 2024 Leg., Reg. Sess., at 6:05 (La. Mar. 20, 2024) (statement of Rep. Mike Johnson) https://house.louisiana.gov/H_Video/VideoArchivePlayer?v=house/2024/mar/0320_24_CL; La. Civ. Code art. 3492 (2023).

[6] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., supra note 5, at 3:20 (statement of Rep. Mike Johnson).

[7] Act No. 423, 2024 La. Acts (codified at La. Civ. Code arts. 3493.1–3493.2).

[8] La. Civ. Code art. 3493.1 (2024).

[9] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., supra note 5, at 6:05 (statement of Rep. Mike Johnson).

[10] Act No. 423, 2024 La. Acts.

[11] See To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civ. L. & Proc., supra note 5, at 3:05.

[12] See Jonathan Rosenfeld, Wrongful Death Statute of Limitations by State, Rosenfeld Inj. Laws., (Feb. 4, 2025), https://www.rosenfeldinjurylaw.com/news/wrongful-death-statute-of-limitations-by-state/ [https://perma.cc/P5UC-MYGH] (compiling information on various statutes of limitation).

[13] Id.

[14] See discussion infra Section III.A–C.

[15] 3 Jerome H. Nates, Clark D. Kimball, Diana T. Axelrod & Richard P. Goldstein, Damages in Tort Actions § 28.04 (2025).

[16] Frank L. Maraist, Thomas C. Galligan, John M. Church & William R. Corbett, Louisiana Tort Law § 10.02 (2024).

[17] Id.

[18] Ty McDuffey, Time Limits to Bring a Case: The Statute of Limitations, FindLaw, https://injury.findlaw.com/accident-injury-law/time-limits-to-bring-a-case-the-statute-of-limitations.html [https://perma.cc/8QSS-8EKV].

[19] Civil Statutes of Limitations, NOLO (Jan. 3, 2025), https://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html [https://perma.cc/Q569-633G].

[20] La. Civ. Code art. 3447 (2024).

[21] Porche v. Sutherlands Lumber & Home Ctr., Inc., 265 So. 3d 56, 58 (La. Ct. App. 2019) (quoting Brown v. Our Lady of the Lake Reg’l Med. Ctr., 803 So. 2d 1135, 1137 (La. Ct. App. 2019)).

[22] La. Civ. Code art. 2315.

[23] Cossé v. Orihuela, 109 So. 3d 950, 953 (La. Ct. App. 2013) (quoting Langlois v. Allied Chem. Corp., 249 So. 2d 133, 136 (La. 1971)).

[24] La. Civ. Code art. 3501 (1825).

[25] See, e.g., La. Civ. Code art. 3493.3 (providing a liberative prescription period of two years for “[d]elictual actions which arise due to damages sustained as a result of an act defined as a crime of violence under Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, except as provided in Article 3496.2”); see also La. Rev. Stat. § 49:112 (creating a 10-year limitation on suits against the state).

[26] Act No. 423, 2024 La. Acts (codified at La. Civ. Code art. 3493.1).

[27] William E. Crawford, Tort Law § 5:1 at 114, in 12 Louisiana Civil Law Treatise (2d ed.).

[28] Act No. 223, 1855 La. Acts 270.

[29] Act No. 71, 1884 La. Acts 94.

[30] See La. Civ. Code art. 2315.1.

[31] Id. art. 2315.2.

[32] Id. arts. 2315.1(A), 2315.2(B).

[33] See Stephenson v. New Orleans Ry. & Light Co., 115 So. 412, 413 (La. 1927); see also Taylor v. Giddens, 618 So. 2d 834, 841 (La. 1993).

[34] See Stephenson,115 So. at 413.

[35] Taylor, 618 So. 2d at 841 (citing La. Civ. Code art. 3492).

[36] Act No. 423, 2024 La. Acts (codified at La. Civ. Code art. 3493.1).

[37] See La. Civ. Code arts. 3492, 2315 (2023).

[38] See id. arts. 2315.1(A), 2315.2(B) (2024).

[39] See id. art. 3493.1.

[40] Id. arts. 2315.1, 2315.2.

[41] See Act No. 423, 2024 La. Acts (codified at La. Civ. Code art. 3493.1).

[42] Nates et al., supra note 15, at § 28.04 (“One of the most frequently encountered bases for legal malpractice actions is the attorney’s failure to initiate an action before the expiration of the statute of limitations. A common error is to assume that the jurisdiction’s personal injury limitation period applies in death actions.”).

[43] To Provide Prescriptive Period for Tort Actions: Hearing on H.B. 315 Before the H. Comm. on Civil Law and Procedure, supra note 5, at 3:20 (statement of Rep. Mike Johnson).

[44] Id. at 4:43 (statement of Rep. Mike Johnson).

[45] Rosenfeld, supra note 12.

[46] See Stephenson v. New Orleans Ry. & Light Co., 115 So. 412, 413 (La. 1927); see also Taylor v. Giddens, 618 So. 2d 834, 841 (La. 1993).

[47] See, e.g., Conn. Gen. Stat. § 52-555(a) (2024); Ga. Code Ann. § 9-3-33 (2024); Haw. Rev. Stat. § 663-3(b) (2024).

[48] For wrongful death actions, see Fla. Stat. § 95.11(4)(e) (2024); 740 Ill. Comp. Stat. 180/2(d) (2024). For survival actions, see Fla. Stat. § 733.104(1) (2024); 735 Ill. Comp. Stat. 5/13-209(a)(1) (2024).

By Daniel Gunn

Introduction 

What if responsibly paying your taxes forfeited your right to challenge the Internal Revenue Service? That is what almost happened to Jennifer Zuch, whose diligence in making estimated tax payments led to a legal nightmare.[1] Zuch has been embroiled in a dispute with the Internal Revenue Service (IRS) for over a decade.[2] The controversy originally centered on whether the IRS should have partially credited $50,000 in tax payments made by Zuch and her then-husband toward Zuch’s 2010 tax liability.[3] After the IRS informed Zuch of its intent to levy her property, Zuch petitioned the Tax Court to review the decision.[4] Throughout the review, she continued making estimated tax payments in subsequent years, often resulting in overpayments.[5] Rather than refunding these overpayments, the IRS unilaterally applied them to her 2010 tax liability, even though Zuch contended that she already paid the 2010 liability.[6] Once the overpayments reduced her alleged 2010 liability to zero, the IRS moved to dismiss the Tax Court proceeding as moot.[7] The Tax Court agreed, holding that because Zuch fully paid the disputed liability, it no longer had jurisdiction to determine whether Zuch actually owed the liability.[8]

As a result, Zuch’s right to Tax Court review over whether she owed the liability evaporated.[9] The dismissal not only eviscerated a decade’s worth of legal effort, but also risks potentially barring her from seeking a refund in a separate suit because of the statute of limitations.[10] If unchallenged, the decision could have permanently foreclosed Zuch’s ability to dispute the underlying liability and left her without any recourse.[11] Fortunately for Zuch, the United States Court of Appeals for the Third Circuit reversed the Tax Court’s decision, ruling that her case was not moot and that the Tax Court retained jurisdiction to determine whether she overpaid her 2010 liability.[12] However, the Third Circuit’s decision created a circuit split with the Fourth and D.C. Circuits, which held that the subsequent payment of the disputed liability mooted the remaining issues before the Tax Court.[13]

The United States Supreme Court granted certiorari and will soon decide whether the IRS can effectively strip the Tax Court of jurisdiction by unilaterally applying estimated tax payments to a disputed liability.[14] The Supreme Court’s ruling could have broad implications for taxpayers seeking relief through the Tax Court.[15] For this reason, tax practitioners should closely monitor this case to better understand the scope of the Tax Court’s jurisdiction and protect their clients from a similar procedural pitfall.

I. A Brief Overview of Tax Procedure

A basic understanding of tax procedure is necessary to understand the issues involved in Zuch v. Commissioner.[16] Taxpayers generally litigate against the IRS in one of three forums: United States District Courts, the United States Claims Court, and the United States Tax Court.[17] United States District Courts and the United States Claims Court are refund tribunals—meaning taxpayers must pay the disputed tax liability upfront before filing an administrative refund claim.[18] If the IRS denies the administrative claim, the taxpayer may then sue for a refund in either a United States District Court or the United States Claims Court.[19]

In contrast, the United States Tax Court offers taxpayers the ability to challenge IRS tax assessments without first paying the disputed tax.[20] The Tax Court is an Article I court, meaning it is a specialized tribunal Congress created with jurisdiction limited to specific areas of tax law.[21] Unlike Article III courts, which derive their authority from the Constitution, Congress defines the Tax Court’s jurisdiction.[22] The Tax Court can only decide cases that fall within the parameters set by statute.[23] Taxpayers seeking to resolve disputes in Tax Court have two main avenues they can follow, and Congress granted the Tax Court different jurisdiction depending on which avenue applies.[24] These avenues commence either a deficiency proceeding or a Collection Due Process (CDP) proceeding in the Tax Court.[25]

The first avenue of Tax Court jurisdiction arises when the taxpayer disputes the existence or amount of tax owed.[26] When the IRS determines that a taxpayer owes additional taxes, it issues a notice of deficiency, which outlines the amount owed and the reasons for the determination.[27] Upon receiving the notice, the taxpayer may file a petition in the Tax Court to challenge the IRS’s determination.[28] This process commences a deficiency proceeding.[29] Deficiency proceedings are the usual method by which taxpayers dispute the existence or amount of their tax liabilities in Tax Court.[30] In deficiency proceedings, the Tax Court has broad jurisdiction to determine the amount of tax owed from the years at issue and order a refund of overpayments.[31]

The second avenue of Tax Court jurisdiction arises when the taxpayer disputes the collection methods employed by the IRS.[32] If the IRS intends to levy a taxpayer’s property, it first must send the taxpayer a notice of intent to levy.[33] The taxpayer may then request a hearing before the IRS Office of Appeals, known as a CDP hearing.[34] After the IRS Office of Appeals makes its determination, the taxpayer may petition the Tax Court for review of the decision in a CDP proceeding.[35] However, the Tax Court’s jurisdiction in CDP proceedings is more limited than in deficiency proceedings: it may review only those issues properly raised in the CDP hearing.[36]

In the CDP hearing, taxpayers may properly raise any relevant issues relating to “the unpaid tax or the proposed levy.”[37] In this context, unpaid tax does not refer to the existence or amount of a tax liability but instead refers to the collection methods the IRS uses to recover the deficiency.[38] As a result, taxpayers are usually limited in CDP hearings to issues regarding the IRS’s enforcement mechanisms rather than the underlying tax assessment.[39] Under usual circumstances, once the IRS fully collects the tax deficiency, all issues before the Tax Court in a CDP proceeding become moot because the IRS is no longer attempting to collect on a debt.[40]

However, in limited circumstances, a taxpayer may never receive a notice of deficiency from the IRS.[41] Without this notice, the taxpayer has no right to initiate a deficiency proceeding before the IRS begins collection actions and issues a notice of intent to levy.[42] In this circumstance, a taxpayer would normally have no right to dispute the existence or amount of the tax liability in the Tax Court and be forced to dispute the liability in a refund tribunal after paying the alleged tax liability.[43]

Recognizing the potential unfairness of this situation, Congress created an exception: if a taxpayer did not previously have an opportunity to dispute the tax liability in a deficiency proceeding, the taxpayer may raise the issue in the CDP hearing.[44] In such cases, the Tax Court’s jurisdiction expands—allowing it not only to review the IRS’s collection methods but also to resolve disputes concerning the amount or existence of the underlying tax liability.[45] This brings us to the central issue in Zuch v. Commissioner: does the Tax Court retain its expanded jurisdiction to address tax liability disputes in CDP proceedings once the taxpayer fully pays the disputed tax and the IRS has ceased collection efforts? This question is not only crucial to the outcome of Zuch’s case but also to the broader interpretation of the Tax Court’s authority in post‑payment disputes.[46]

II. Mootness Issues in Zuch v. Commissioner

The core conflict between Zuch and the IRS concerns whether the IRS should have credited a subsequent payment toward Zuch’s outstanding tax liability.[47] Zuch never received a notice of deficiency regarding this tax liability, and she could not dispute the existence or amount of the alleged deficiency in a deficiency hearing.[48] As a result, Zuch was entitled to dispute the underlying tax liability in her CDP hearing.[49] The issues properly before the CDP hearing—and consequently subject to Tax Court review—included the appropriateness of the collection action and the existence and amount of the tax deficiency.[50]

The parties do not dispute that the Tax Court possessed jurisdiction to resolve these issues when Zuch first filed the suit because the IRS was then attempting to collect the tax liability.[51] However, the IRS argues that the suit became moot once the IRS offset the disputed tax liability with overpayments Zuch made in subsequent tax years.[52] After Zuch fully paid the liability, the IRS terminated its collection action.[53] The IRS contends that disputes regarding the underlying tax liability cannot exist independent of a collection action in a CDP proceeding.[54] If this argument is correct, no remaining issues would fall within the Tax Court’s jurisdiction, requiring dismissal of the proceeding as moot.[55]

Mootness is a constitutional principle that restricts courts to adjudicating only live cases or controversies between litigants.[56] If no dispute between the litigants is present, or the court is unable to grant any relief whatsoever to the prevailing party, the court must dismiss the action as moot.[57] Here, both parties concede that Zuch still possesses a live controversy—whether she is entitled to a refund.[58] However, the parties dispute whether the Tax Court retained jurisdiction to decide this issue within a CDP proceeding.[59] Moreover, even if the Tax Court retained independent jurisdiction over the underlying tax liability, the parties dispute whether the Tax Court could grant adequate relief.[60] The IRS contends that such action must now be brought in a refund tribunal, while Zuch claims the Tax Court retained jurisdiction and can grant a remedy to the parties.[61]

A. Tax Court Jurisdiction under CDP Proceedings

The parties disagree as to whether the Tax Court has sufficient jurisdiction to resolve the remaining controversies between the parties. This dispute involves whether CDP proceedings maintain jurisdiction over the underlying tax liability after all collection actions have ceased and whether the Tax Court can review the IRS’s decision to set off her disputed liability with subsequent overpayments.

1. Independent Jurisdiction over the Underlying Tax Liability

The IRS—supported by the Fourth and D.C. Circuits—contends that the Tax Court lost jurisdiction to review the underlying tax liability once Zuch fully paid the liability and the collection action ceased.[62] The Tax Court is a court of limited jurisdiction, and the statute strictly limits CDP proceeding jurisdiction.[63] Internal Revenue Code (I.R.C.) § 6330(c)(2) generally limits CDP hearings to tax collection controversies, not disputes over the existence or amount of the underlying liability.[64] While I.R.C. § 6330(c)(2)(B) allows taxpayers who did not have an opportunity to dispute the existence or amount of the tax liability to do so in the CDP hearing, the IRS determined that this provision nonetheless failed to preserve Zuch’s action.[65]

Relying on decisions from the Fourth and D.C. Circuits, the IRS maintains that disputes regarding the amount or existence of the tax liability may be resolved in CDP hearings only while an active collection action exists, and CDP proceedings cannot exist independently of a collection action.[66] As a CDP hearing is primarily meant to assess the appropriateness of collection actions, the IRS contends that disputes over tax liability can be addressed in a CDP proceeding only when tied to an active collection effort.[67] The IRS argues that I.R.C. § 6330(c)(2)(B) reflects this limitation through its use of the term “underlying tax liability.”[68] According to the IRS, using the word underlying presupposes the existence of a collection action, and CDP jurisdiction cannot exist without such action.[69] The McLane v. Commissioner court similarly held that the term must be read in context and cannot apply when there is no collection action to underlie.[70] Therefore, the IRS believes that I.R.C. § 6330(c)(2)(B) acts as a mere defense to a purposed levy—not an interdependent basis of jurisdiction.[71] Once all collection actions cease, the disputed defense ceases to relate to a collection action, and the Tax Court loses jurisdiction to review the validity of the defense.[72]

In contrast, Zuch argues that the Tax Court retains jurisdiction notwithstanding the cessation of the collection efforts.[73] She maintains that I.R.C. § 6330(c)(2)(B) grants the Tax Court authority to review the existence and amount of the tax liability independent of any collection action.[74] As the tax liability remains disputed by the parties, and I.R.C. § 6330(c)(2)(B) authorizes the Tax Court to resolve such disputes, Zuch asserts that an active controversy persists under Tax Court jurisdiction.[75]

Zuch contends that Congress did not intend to allow the IRS to unilaterally strip the Tax Court of jurisdiction by simply abandoning collection efforts.[76] While a collection action is necessary to initiate a CDP hearing, she argues that collection actions need not persist for the Tax Court to resolve disputes regarding the underlying tax liability.[77] Congress expressly stated that the Tax Court “shall have jurisdiction” to review determinations made by the Appeals Office.[78] Therefore, Zuch asserts that the Tax Court should be allowed to review all live controversies decided by the Appeals Office, regardless of whether the underlying levy remains.[79]

Zuch provides three main rationales for her assertion that the Tax Court retains CDP jurisdiction when the underlying collection action ceases. First, judicial efficiency supports a finding that the Tax Court can resolve these issues.[80] If the Tax Court were deprived of jurisdiction, taxpayers would be forced to file a refund suit in a refund tribunal to resolve the remaining disputes.[81] This would burden district courts, duplicate efforts and costs for both parties, and require the IRS to defend unnecessary litigation.[82] Resolving these disputes within the Tax Court, which already resolves these issues in deficiency proceedings, would streamline the process and reduce inefficiencies.[83]

Second, Zuch argues that like other federal statutes, I.R.C. § 6330 should determine jurisdictional status at the time the taxpayer initiates the action.[84] For example, in federal diversity suits, subsequent reductions in the amount recoverable do not divest a federal court of jurisdiction so long as the amount in controversy exceeded $75,000 at the time of filing.[85] Similarly, in class actions, a court’s decision to deny certification does not eliminate jurisdiction if “jurisdiction was properly invoked as of the time of filing.”[86] Applying this principle, the Tax Court should retain jurisdiction over the underlying tax liability so long as a collection action existed when the CDP proceeding commenced.[87]

Third, Zuch emphasizes the strong presumption favoring judicial review of administrative actions.[88] This presumption dictates that a statute that is “reasonably susceptible to divergent interpretation” must be read with the traditional understanding that administrative determinations are generally subject to judicial review.[89] As I.R.C. § 6330 is at least reasonably open to interpretation regarding the Tax Court’s jurisdiction to review the CDP hearing—an administrative determination—courts should construe the statute to preserve judicial review.[90]

Judge Vasquez, dissenting in Green-Thapedi v. Commissioner, a Tax Court case with similar procedural issues, emphasized that “[r]emedial legislation should be construed broadly and liberally to effectuate its purpose.”[91] I.R.C. § 6330 is remedial in nature, intended to provide taxpayers due process in collection matters.[92] As it is hard to imagine that Congress intended to bifurcate collection and refund actions in a way that increases costs and reduces efficiency, Zuch contends courts should interpret I.R.C. § 6330 to grant the Tax Court jurisdiction to resolve the remaining issues even after collection efforts have ended.[93]

2. Jurisdiction to Review the Setoff

The collection action in Zuch ceased because the IRS set off the disputed tax liability with overpayments made in subsequent years.[94] The IRS contends that this action precludes any further CDP review because it would necessarily require the Tax Court to review the propriety of the IRS’s setoff.[95] The IRS argues the Tax Court lacks jurisdiction to review setoffs, while Zuch contends the Tax Court possesses this power.

A setoff occurs when two parties are mutually indebted to each other.[96] In such cases, setoffs allow the parties to subtract the lesser debt from the larger one, so that the debtor with the greater outstanding obligation must pay only the net balance due.[97] In tax law, a setoff may occur when the taxpayer owes an unpaid liability to the IRS, while the IRS simultaneously owes the taxpayer a refund for tax overpayments.[98] I.R.C. § 6402 expressly grants the IRS the right of setoff; however, the IRS possesses the right of setoff independent of statutory authority through the common law’s general grant to creditors.[99]

Importantly, I.R.C. § 6512(b)(4) expressly deprives the Tax Court of jurisdiction to restrain or review setoffs.[100] Moreover, the Tax Court in Greene-Thapedi and the United States Court of Appeals for the Second Circuit in Belloff v. Commissioner have previously held that setoffs do not constitute a collection action because a collection action is an administrative proceeding, whereas setoffs are a common‑law right.[101] As a result, the IRS contends that the CDP proceeding’s jurisdiction granted under I.R.C. § 6330(c)(2) does not extend to reviewing setoffs.[102] Accordingly, the IRS argues that any further proceeding in Tax Court would necessarily require a review of the setoff, which Congress expressly prohibited.[103] As such, the IRS asserts the Tax Court must dismiss the case.[104]

Conversely, the Third Circuit held that the Tax Court retains jurisdiction to review setoffs in CDP proceedings, notwithstanding the statutory prohibition in I.R.C. § 6512(b)(4).[105] The Third Circuit found that I.R.C. § 6512(b)(4) limits the Tax Court’s jurisdiction only “under this subsection.”[106] As I.R.C. § 6512(b) pertains only to the Tax Court’s jurisdiction in deficiency proceedings, the Third Circuit reasoned that the statutory limitation did not apply to CDP proceedings.[107]

While Congress did not expressly grant the Tax Court the authority to review setoffs in CDP proceedings, the Third Circuit opined that Congress implicitly granted the Tax Court the power to review setoffs.[108] This implicit grant arises from the common‑law origins of the right of setoff.[109] The Third Circuit determined the IRS’s statutory right to setoff supplemented, and did not displace, the preexisting common‑law right.[110] As the purpose of a CDP proceeding is to provide taxpayers “protections in dealing with the IRS that are similar to those they would have in dealing with any other creditor” and Congress has not expressly limited the Tax Court’s authority to review setoffs in CDP proceedings—like it did in deficiency proceedings—the Third Circuit reasoned that the Tax Court may review setoffs in a CDP proceeding.[111]

The Third Circuit also found that an IRS setoff should not render a case moot, applying the well‑established mootness principle that a defendant cannot voluntarily cease a challenged practice to deprive a court of power to determine the legality of the practice.[112] It logically follows that a defendant cannot unilaterally complete a challenged practice to render a case moot, as long as the court can still grant adequate relief to the parties.[113] Ultimately, as the underlying purpose of I.R.C. § 6330 in the broader statutory framework is to ensure “collect[ion of] the correct amount of tax,” the Tax Court retains jurisdiction to resolve questions regarding the tax liability regardless of whether the IRS setoff the disputed tax liability.[114]

B. Adequate Relief

Even if the Tax Court retained jurisdiction to review the remaining issues, Zuch’s case would still be moot if the court is unable to grant adequate relief to the parties.[115] The IRS argues that the only relief the Tax Court can grant in a CDP proceeding is the rejection of a proposed levy.[116] To grant relief to Zuch once the underlying tax is paid, the IRS contends that the Tax Court would need separate jurisdiction to determine an overpayment and order a refund.[117] Without such powers, the Tax Court could not grant Zuch relief because it would be powerless to return Zuch’s money to her, and the case would be moot due to lack‑of‑relief grounds.[118] As Congress expressly granted the Tax Court overpayment and refund powers in other circumstances, the IRS argues that Congress’s silence regarding the Tax Court’s overpayment and refund jurisdiction in CDP proceedings indicates that Congress did not intend to grant the Tax Court such jurisdiction.[119] Thus, the IRS contends that the Tax Court lacks authority to issue any relief to the taxpayer and should dismiss the case as moot.[120]

In support, the IRS points to Green‑Thapedi, which held that the Tax Court lacks overpayment and refund jurisdiction in CDP proceedings.[121] The Green‑Thapedi court reviewed the history of the Board of Tax Appeals, the predecessor of the Tax Court, and found that the Board lacked overpayment jurisdiction and refund jurisdiction until Congress expressly granted such powers in 1926 and 1988, respectively.[122] Even then, the Board possessed these powers only in deficiency proceedings.[123] Further, the Senate had previously proposed granting refund jurisdiction to the Tax Court in actions where the taxpayer already had a deficiency proceeding pending, but this proposal was rejected in conference.[124] The Green‑Thapedi court found that this legislative history clearly indicated that the Tax Court retains overpayment and refund jurisdiction only when expressly granted by Congress.[125] Since no legislation expressly grants overpayment and refund jurisdiction in CDP proceedings, the IRS contends that the Tax Court lacks such powers.[126]

Zuch contends that the Tax Court could grant her adequate relief if it were to rule on the dispute.[127] Adequate relief may come from the Tax Court’s power to issue a declaratory judgment.[128] The Tax Court is generally authorized to issue injunctive relief in CDP proceedings.[129] As a declaratory judgment is a “milder” form of an injunction, Zuch argues the Tax Court is also authorized to issue declaratory judgments.[130] Further, Zuch contends that the Declaratory Judgment Act does not abridge the Tax Court’s power to issue a declaratory judgment.[131]

The Declaratory Judgment Act authorizes federal courts “except with respect to Federal taxes” to “declare the rights and other legal relations of any interested party seeking such declaration.”[132] Thus, it would appear that the Declaratory Judgement Act expressly prohibits the Tax Court from issuing declaratory judgments. However, courts have uniformly held that a court must read the Declaratory Judgment Act, Internal Revenue Code, and Tax Anti‑Injunction Act together.[133] When read together, courts have determined that the Declaratory Judgment Act does not bar declaratory judgments where the court is otherwise permitted to issue an injunction.[134]

If the Tax Court is authorized to issue a declaratory judgment, such judgment could grant Zuch adequate relief for two reasons.[135] First, if granted, Zuch contends that the IRS would be “substantially likely” to issue Zuch a refund once the Tax Court issued such an authoritative holding, even if the IRS is not directly bound by the court’s determination.[136] Second, even if the IRS refuses to issue a refund, Zuch argues such declaration would still have a preclusive effect.[137] In a later refund suit between the parties, the refund tribunal would be required to order the IRS to issue the refund because the court could not relitigate the issues based on res judicata estoppel principles.[138] Contrarily, the IRS would be entitled to rely on a declaratory judgment in its favor in a subsequent suit.[139] Given the potential relief required to defeat a motion for dismissal based on mootness is a low burden and requires only that some relief may be granted, Zuch argues such declaratory relief satisfies this requirement.[140]

Conclusion 

While situations such as the one Zuch faces are rare, this case highlights the ongoing uncertainty surrounding the Tax Court’s authority in CDP proceedings.[141] Fortunately, the Supreme Court granted certiorari to resolve the present circuit split regarding the scope of the Tax Court’s power in CDP proceedings.[142] The Court will need to address both the extent of the Tax Court’s jurisdiction and the available remedies it may grant to determine whether Zuch’s case is moot. Depending on the Court’s decision, CDP proceedings may remain a venue of limited recourse, or it may be expanded to include powers like those in deficiency proceedings.

[1] See generally Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024).

[2] Id. at 88–91.

[3] Id.

[4] Id. at 90.

[5] Id. at 91.

[6] Id.

[7] Id.

[8] Id.

[9] See id.

[10] The timeliness of a potential refund suit is disputed. See id. at 103 n.41. While the IRS originally asserted that the statute of limitations barred Zuch’s potential refund claim, it now contends that the statute of limitations may not have yet been triggered. Id. Generally, a two‑year statute of limitations is triggered once the taxpayer receives a notice of disallowance under I.R.C. § 6532(a)(1). Id. As Zuch never received a notice of disallowance, her refund suit should still be timely. Id. However, the Tucker Act presently bars any suit against the United States “unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Zuch’s right to file a refund claim accrued over six years ago. Zuch, 97 F.4th at 103 n.41. Thus, the Tucker Act may bar her refund claim. Id. While the Court of Federal Claims has long held that I.R.C. § 6532 preempts the general statute of limitations under the Tucker Act, three district courts have held that I.R.C. § 6532 and the Tucker Act both apply to refund claims and that the Tucker Act serves as an outer bound for refund claims. Id. This dispute is ripe for discussion but will not be addressed further in this post.

[11] See Zuch, 97 F.4th at 103 n.41.

[12] Id. at 86.

[13] Compare id., with McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022), and Willson v. Comm’r, 805 F.3d 316 (D.C. Cir. 2015).

[14] See Zuch, 97 F.4th 81, cert. granted, No. 24-416, 2025 WL 65915 (2025) (mem.).

[15] See generally Caleb Smith, Zuch: Consequential on Many Levels, Procedurally Taxing (May 22, 2024), https://www.taxnotes.com/tax-notes-federal/litigation-and-appeals/zuch-consequential-many-levels/2024/05/27/7k6zz; Carlton M. Smith, Zuch Causes Circuit Split on CDP Mootness, Procedurally Taxing (May 28, 2024), https://www.taxnotes.com/tax-notes-today-global/litigation-and-appeals/zuch-causes-circuit-split-cdp-mootness/2024/06/03/7k792.

[16] Zuch, 97 F.4th at 86.

[17] John A. Miller & Jeffery A. Maine, The Fundamentals of Federal Taxation 11 (6th ed. 2023).

[18] Id.

[19] Id.

[20] Id.

[21] See Zuch, 97 F.4th at 92.

[22] See Sunoco Inc. v. Comm’r, 663 F.3d 181, 187 (3d Cir. 2011).

[23] See id.

[24] Zuch, 97 F.4th at 86–87.

[25] Id.

[26] Id.

[27] Julia Kagan, Notice of Deficiency: What it Means, Examples, Investopedia, https://www.investopedia.com/terms/n/notice-of-deficiency.asp [https://perma.cc/JLP5-RQBQ] (last updated July 19, 2020).

[28] Zuch, 97 F.4th at 86–87.

[29] Id. at 87.

[30] See id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] I.R.C. § 6330(d)(1).

[36] See id. § 6330(d)(1); Zuch, 97 F.4th at 87.

[37] I.R.C. § 6330(c)(2)(A).

[38] Zuch, 97 F.4th at 87–88.

[39] Id. at 88.

[40] See Willson v. Comm’r, 805 F.3d 316, 320–21 (D.C. Cir. 2015).

[41] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 1, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *1; see also McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022); Willson, 805 F.3d at 317–20.

[42] See I.R.C. § 6213(a).

[43] See I.R.C. §§ 6330(d)(1), 6330(c)(2)(A).

[44] I.R.C. § 6330(c)(2)(B).

[45] See I.R.C. § 6330(d)(1); Zuch, 97 F.4th at 87.

[46] See generally Smith, supra note 15.

[47] Zuch, 97 F.4th at 88–90.

[48] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 1–3, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *1–3; see also Zuch, 97 F.4th at 92.

[49] Zuch, 97 F.4th at 90.

[50] Id. at 92.

[51] See id. at 92 n.22.

[52] See Petition for a Writ of Certiorari at 8, Zuch v. Comm’r, 2025 WL 65915 (2025) (No. 24-416), 2024 WL 4504215 at *10.

[53] See id.

[54] See id. at 8–11.

[55] See id.

[56] Mootness is rooted in the Constitution’s restriction of federal court power to “[c]ases” and “[c]ontroversies” in Article III. U.S. Const. art III, § 2. As the Tax Court is an Article I court, the Tax Court is not technically constrained by mootness doctrine. However, the Tax Court has voluntarily applied this limitation to itself. See Zuch, 97 F.4th at 92; Battat v. Comm’r, 148 T.C. 32, 46 (2017); Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed. Cir. 1996).

[57] See Zuch, 97 F.4th at 93.

[58] See Reply Brief for the Petitioner at 3–6, Zuch v. Comm’r, 97 F.4th 81 (2024) (No. 24-416), 2024 WL 5233523 at *3–6.

[59] See id.

[60] See id. at 13–14.

[61] See id. at 14–15; Brief in Opposition at 7, Zuch v. Comm’r, 2025 WL 65915 (2025) (No. 24-416), 2024 U.S. S. CT. Briefs Lexis 4363 at *7.

[62] See Petition for a Writ of Certiorari, supra note 52, at 8–12. See generally McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022); Willson v. Comm’r, 805 F.3d 316 (D.C. Cir. 2015).

[63] McLane, 24 F.4th at 318.

[64] See I.R.C. § 6330(c)(2).

[65] See Petition for a Writ of Certiorari, supra note 52, at 8–12.

[66] See id. See generally McLane, 24 F.4th 316; Willson, 805 F.3d 316.

[67] See Petition for a Writ of Certiorari, supra note 52, at 8–12.

[68] See id.

[69] See id.

[70] McLane, 24 F.4th at 318–19.

[71] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 5, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *5.

[72] See Petition for a Writ of Certiorari, supra note 52, at 8–12.

[73] See Brief in Opposition, supra note 61, at 24–26.

[74] See id.

[75] See id.

[76] See id. at 24–30.

[77] See id.

[78] Id. at 25.

[79] See id. at 24–30.

[80] See id.

[81] See id. at 26–27.

[82] See id. at 27.

[83] See id. at 27–30.

[84] See id.

[85] See id. at 27–28.

[86] See id. at 28 (quoting Coba v. Ford Motor Co., 932 F.3d 114, 120 (3d Cir. 2019)).

[87] See id. at 30 (quoting Coba, 932 F.3d at 120).

[88] See id. at 35–36.

[89] See id. (quoting Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020)).

[90] See id.

[91] See Greene-Thapedi v. Comm’r, 126 T.C. 1, 15 (2006) (Vasquez, J., dissenting).

[92] See id.; see also I.R.C. § 6330.

[93] See id.; Brief in Opposition, supra note 61, at 35–36.

[94] Zuch v. Comm’r, 97 F.4th 81, 91 (3d Cir. 2024).

[95] See Petition for a Writ of Certiorari, supra note 52, at 12–14.

[96] Zuch, 97 F.4th at 95–96.

[97] Id.

[98] See, e.g., id. at 91.

[99] Id. at 94–95.

[100] See I.R.C. § 6512(b)(4).

[101] See Greene-Thapedi v. Comm’r, 126 T.C. 1, 7–8 (2006); Belloff v. Comm’r, 996 F.2d 607 (2d Cir. 1993).

[102] See Zuch, 97 F.4th at 95 n.26.

[103] See Petition for a Writ of Certiorari, supra note 50, at 12–14; Zuch, 97 F.4th at 95–96.

[104] See Petition for a Writ of Certiorari, supra note 50, at 7–8; Zuch, 97 F.4th at 95–96.

[105] Zuch, 97 F.4th at 95.

[106] Id.

[107] Id.

[108] Id.

[109] Id.

[110] Id.

[111] Id. at 95–97.

[112] See id. The IRS may “‘not unilaterally oust the Tax Court from jurisdiction’—neither in a deficiency case nor in a CDP case.” Vigon v. Comm’r, 149 T.C. 97, 104 n.3 (2017).

[113] Zuch, 97 F.4th at 97.

[114] Id. at 98–99.

[115] See id. at 101; Brief in Opposition, supra note 61, at 32.

[116] Brief in Opposition, supra note 61, at 36.

[117] See Petition for a Writ of Certiorari, supra note 52, at 12–14.

[118] See Zuch, 97 F.4th at 101–04.

[119] See Petition for a Writ of Certiorari, supra note 52, at 12–14.

[120] See id.

[121] Greene-Thapedi v. Comm’r, 126 T.C. 1, 8–9 (2006).

[122] Id. at 8–11.

[123] Id. at 9–10.

[124] Id. at 10. “The Tax Court has no jurisdiction to determine whether a taxpayer has made an overpayment except in the context of a deficiency proceeding.” H.R. Rep. No. 100-1104, at 233 (1988) (Conf. Rep.).

[125] Greene-Thapedi, 126 T.C. at 8–11.

[126] See id. at 8–12.

[127] See Brief in Opposition, supra note 61, at 31–34, 36–37.

[128] Id.

[129] See Zuch v. Comm’r, 97 F.4th 81, 101–04 (3d Cir. 2024); I.R.C. §§ 6330(d), (e).

[130] Brief in Opposition, supra note 61, at 36–37.

[131] Id.

[132] 28 U.S.C. § 2201(a) (emphasis added).

[133] Brief in Opposition, supra note 61, at 36–37; see, e.g., Cohen v. United States, 650 F.3d 717, 727–28 (D.C. Cir. 2011); CIC Servs., LLC v. I.R.S., 925 F.3d 247, 250 n.3 (6th Cir. 2019), rev’d on other grounds, 593 U.S. 209 (2021).

[134] Brief in Opposition, supra note 61, at 36–37. The Tax Anti-Injunction Act generally prohibits suits “restraining the assessment or collection of any tax.” I.R.C. § 7421(a). However, the Tax Anti-Injunction Act exempts CDP proceedings from this general rule. See I.R.C. §§ 7421(a), 6330(e)(1). Courts construe the Tax Anti-Injunction Act and the Declaratory Judgment Act as coterminous. Zuch, 97 F.4th at 102; see also Cohen, 650 F.3d at 727. Consequently, courts have determined that the Declaratory Judgment Act must be interpreted to permit declaratory judgments where the Tax Anti-Injunction Act authorizes injunctions. Cohen, 650 F.3d at 730; Zuch, 97 F.4th at 102. This interpretation is necessary because it would “def[y] common sense” to bifurcate powers which “have the same prohibitory effect on the federal government’s ability to assess and collect taxes.” Cohen, 650 F.3d at 730 (quoting Wyo. Trucks Ass’n v. Bentsen, 82 F.3d 930, 933 (10th Cir. 1996)); Zuch, 97 F.4th at 102. As a result, the Third Circuit held that the Tax Court may issue declaratory judgments in CDP proceedings notwithstanding the general prohibition in the Declaratory Judgment Act. Zuch, 97 F.4th at 102.

[135] Brief in Opposition, supra note 61, at 32–34.

[136] Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)).

[137] Id.

[138] Id.

[139] See id.

[140] See id.; Zuch v. Comm’r, 97 F.4th 81, 93 (3d Cir. 2024).

[141] See generally Zuch, 97 F.4th 81.

[142] See Zuch v. Comm’r, No. 24-416, 2025 WL 65915 (S. Ct. 2025).