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McHENRY v. C.I.R.

Nos. 11-1239, 11-1366.

677 F.3d 214 (2012)

Emmit J. McHENRY, Petitioner-Intervenor, and Government of the United States Virgin Islands, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Emmit J. McHenry, Petitioner-Appellant, v. Commissioner of Internal Revenue, Respondent-Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: April 16, 2012.

Attorney(s) appearing for the Case

ARGUED: Gene C. Schaerr , Winston & Strawn, LLP, Washington, D.C., for the Government of the United States Virgin Islands. Joseph Andrew DiRuzzo, III , Fuerst Ittleman, PL, Miami, Florida, for Emmit J. McHenry. Jennifer Marie Rubin , United States Department of Justice, Washington, D.C., for the Commissioner of Internal Revenue. ON BRIEF: Vincent F. Frazer , Attorney General, Virgin Islands Department of Justice, St. Thomas, U.S. Virgin Islands; Peter N. Hiebert , Barry J. Hart , Andrew C. Nichols , Adele H. Auxier , Winston & Strawn, LLP, Washington, D.C., for the Government of the United States Virgin Islands. Gilbert S. Rothenberg , Acting Deputy Assistant Attorney General, Kenneth L. Greene , United States Department of Justice, Washington, D.C., for the Commissioner of Internal Revenue.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILKINSON joined. Judge SHEDD wrote an opinion concurring in Parts I, II.A., and III.

OPINION

NIEMEYER, Circuit Judge.

The question presented in these appeals is whether the Tax Court abused its discretion in denying the motion of the Government of the United States Virgin Islands ("Virgin Islands") to intervene in this tax case, which was filed in response to a notice of deficiency issued by the IRS to Emmit McHenry for not paying U.S. income taxes. The IRS asserted that McHenry had participated in a tax avoidance scheme to take advantage...

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