                                           ARTHUR I. APPLETON, JR., PETITIONER v. COMMISSIONER                                        OF
                                                      INTERNAL REVENUE, RESPONDENT
                                                         Docket No. 7717–10.                  Filed November 1, 2010.

                                                   Asserting it has a vital interest in a key aspect of this case,
                                                M filed a motion to intervene pursuant to Rule 1(b), Tax
                                                Court Rules of Practice and Procedure, and under Fed. R. Civ.
                                                P. 24. Held: M’s interest does not satisfy the ‘‘direct, substan-
                                                tial, and legally protectable’’ requirement of Fed. R. Civ. P.
                                                24(a)(2). Held, further, because (i) P has raised the issue in
                                                which M asserts an interest as a matter central to his case
                                                and presumably the issue will be fully vetted during the
                                                course of these proceedings, and (ii) M’s intervention could
                                                result in trial complications as well as delay the resolution of
                                                the issue in which M asserts an interest, M will not be per-
                                                mitted to intervene pursuant to Fed. R. Civ. P. 24(b)(2). Held,
                                                further, as an alternative to intervention, M will be permitted
                                                to file an amicus curiae brief.

                                       Randall P. Andreozzi, Edward Doyle Fickess, Ryan M.
                                      Murphy, and Teia M. Bui, for petitioner.
                                       Barry J. Hart, for proposed intervenor.
                                       Justin L. Campolieta, for respondent.

                                                                                    OPINION

                                        JACOBS, Judge: Asserting that it has a vital interest in a
                                      key aspect of this case, the Government of the U.S. Virgin
                                      Islands (movant) filed a motion to intervene pursuant to Rule
                                      1(b). Petitioner has no objection to movant’s proposed inter-
                                      vention; respondent does.
                                        Unless otherwise indicated, Rule references are to the Tax
                                      Court Rules of Practice and Procedure, and section references
                                      are to the Internal Revenue Code as amended for the years
                                      at issue. At the time he filed his petition, petitioner resided
                                      in the U.S. Virgin Islands.
                                                                                                                                      461




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                                      462                 135 UNITED STATES TAX COURT REPORTS                                         (461)


                                                                                Background
                                        Petitioner, a U.S. citizen, was a bona fide resident of the
                                      U.S. Virgin Islands (Virgin Islands) for all years at issue (i.e.,
                                      2002, 2003, and 2004). Petitioner (i) filed territorial income
                                      tax returns with the Virgin Islands Bureau of Internal Rev-
                                      enue (BIR) for 2002, 2003, and 2004 pursuant to section
                                      932(c)(2), and (ii) claimed he qualified for the gross income
                                      exclusion provided by section 932(c)(4) and therefore did not
                                      have to file Federal income tax returns or pay Federal
                                      income taxes for such years. The BIR audited petitioner’s
                                      Virgin Islands territorial income tax returns for 2002, 2003,
                                      and 2004 and proposed no adjustments.
                                        Respondent subsequently audited petitioner’s 2002, 2003,
                                      and 2004 Virgin Islands territorial income tax returns and
                                      on November 25, 2009, issued petitioner a notice of defi-
                                      ciency, determining the following Federal income tax defi-
                                      ciencies and additions to tax:

                                                                                            Additions to tax

                                       Year        Deficiency         Sec. 6651(a)(1)          Sec. 6651(a)(2)               Sec. 6654

                                           2002      $283,555             $35,563.73                   $39,515.25            $9,045.50
                                           2003       789,518             147,943.58                   164,381.75            20,370.53
                                           2004       280,241              56,728.35                    63,031.50             8,030.86

                                         On April 1, 2010, petitioner filed a petition in this Court
                                      for redetermination of the deficiencies and additions to tax
                                      determined by the Internal Revenue Service (IRS), asserting,
                                      inter alia, that the period of limitations for assessing tax had
                                      expired. On May 26, 2010, respondent filed an answer to the
                                      petition asserting, inter alia, that the period of limitations for
                                      assessing tax was still open. On June 18, 2010, movant filed
                                      its motion to intervene.
                                      I. The Virgin Islands
                                         Although part of the United States, the Virgin Islands are
                                      a separate and distinct taxing jurisdiction. Congress estab-
                                      lished the ‘‘mirror tax system’’ as the tax law of the Virgin
                                      Islands. Act of July 12, 1921, ch. 44, sec. 1, 42 Stat. 122
                                      (codified as amended at 48 U.S.C. sec. 1397 (2006)). Under
                                      the mirror tax system, the Virgin Islands uses the Internal
                                      Revenue Code with ‘‘Virgin Islands’’ effectively substituted




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                                      (461)                        APPLETON v. COMMISSIONER                                         463


                                      for any reference to the ‘‘United States’’ (and vice versa). See
                                      Danbury, Inc. v. Olive, 820 F.2d 618, 620 (3d Cir. 1987). As
                                      the law developed, the provisions of the Internal Revenue
                                      Code have been made applicable to the Virgin Islands so long
                                      as the specific section to be applied is ‘‘ ‘not manifestly inap-
                                      plicable or incompatible’ with a separate territorial income
                                      tax.’’ Chi. Bridge & Iron Co. v. Wheatley, 430 F.2d 973, 976
                                      (3d Cir. 1970) (quoting 48 U.S.C. sec. 1421i(d)(1) (1964)).
                                         The provisions applicable for 2002, 2003, and 2004 under
                                      which individuals file income tax returns and pay tax in the
                                      Virgin Islands were enacted as part of the Tax Reform Act
                                      of 1986, Pub. L. 99–514, sec. 1274(a), 100 Stat. 2596, and
                                      amended in the Technical and Miscellaneous Revenue Act of
                                      1988, Pub. L. 100–647, sec 1012(w), 102 Stat. 3530. Virgin
                                      Islands residents were generally exempted from Federal
                                      income tax obligations if they met the requirements of sec-
                                      tion 932(c)(4): 1
                                           (4) RESIDENTS OF THE VIRGIN ISLANDS.—In the case of an individual—
                                             (A) who is a bona fide resident of the Virgin Islands at the close of
                                           the taxable year,
                                             (B) who, on his return of income tax to the Virgin Islands, reports
                                           income from all sources and identifies the source of each item shown on
                                           such return, and
                                             (C) who fully pays his tax liability referred to in section 934(a) to the
                                           Virgin Islands with respect to such income,
                                      for purposes of calculating income tax liability to the United States, gross
                                      income shall not include any amount included in gross income on such
                                      return, and allocable deductions and credits shall not be taken into
                                      account.

                                         Thus, an individual who satisfied the three requirements
                                      of section 932(c)(4) and incurred income tax obligations to
                                      both the United States and the Virgin Islands could satisfy
                                      his reporting and payment requirements by filing only with,
                                      and paying tax only to, the Virgin Islands. If the individual
                                      failed to meet any of these requirements, he was required to
                                      file a Federal income tax return with the IRS. See S. Rept.
                                      100–445, at 315 (1988). Consequently, an individual failing
                                      to satisfy any of the three requirements of section 932(c)(4)
                                        1 Sec. 932(c)(4)(A) was amended by the American Jobs Creation Act of 2004, Pub. L. 108–357,

                                      sec. 908(c)(2), 118 Stat. 1656. The amendment, which is effective for tax years ending after Oct.
                                      22, 2004, changed ‘‘at the close of the taxable year’’ to ‘‘during the entire taxable year’’.




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                                      464                135 UNITED STATES TAX COURT REPORTS                                        (461)


                                      could be required to file an income tax return and be liable
                                      for taxes in both the United States and the Virgin Islands.
                                      II. The Virgin Islands Economic Development Program
                                        To encourage economic development in the Virgin Islands,
                                      Congress has explicitly permitted the Virgin Islands govern-
                                      ment to reduce certain taxes. Section 934(b)(1) provides that
                                      the Virgin Islands may reduce taxes on ‘‘income derived from
                                      sources within the Virgin Islands or income effectively con-
                                      nected with the conduct of a trade or business within the
                                      Virgin Islands.’’
                                        Pursuant to this grant of authority, the Virgin Islands
                                      government enacted several investment incentives, including
                                      the Virgin Islands Industrial Development Program (referred
                                      to by the parties as the economic development program or
                                      EDP), currently codified at V.I. Code Ann. tit. 29, secs. 701–
                                      726 (1998 & Supp. 2010). Intended to promote growth and
                                      the development and diversification of the Virgin Islands’
                                      economy, the EDP granted certain industrial development
                                      benefits to companies that do business in the Virgin Islands.
                                      See V.I. Code Ann. tit. 29, sec. 701 (1998). Qualifying compa-
                                      nies receive substantial benefits including: A 90-percent
                                      exemption on local income taxes, a 90-percent exemption on
                                      the taxation of dividends, and a 100-percent exemption on
                                      gross receipts taxes.
                                      III. Respondent’s Notice of Deficiency
                                        Attached to respondent’s notice of deficiency was a Form
                                      4549–A, Income Tax Discrepancy Adjustments, which set
                                      forth the basis for the income tax deficiencies and additions
                                      to tax. Although respondent acknowledged that petitioner
                                      was a resident of the Virgin Islands at the close of 2002,
                                      2003, and 2004 (thus meeting the first requirement of section
                                      932(c)(4)), Form 4549–A stated:
                                      You do not, however, qualify for the gross income exclusion under section
                                      932(c)(4) of the Internal Revenue Code (I.R.C.) for any of those taxable
                                      years. During each of the taxable years 2002, 2003, and 2004, you actively
                                      participated in an arrangement that lacks economic purpose and economic
                                      substance that was created to improperly claim a 90% credit against your
                                      income tax liabilities in a scheme similar to those described in Notice
                                      2004–45 Meritless Position Based on Sections 932(c)(4) and 934(b),
                                      resulting in your failure to properly report and identify the source of each




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                                      (461)                        APPLETON v. COMMISSIONER                                         465


                                      item of income shown on the return of income tax you filed with the USVI
                                      for each of those years.

                                         Notice 2004–45, 2004–2 C.B. 33, was issued to advise tax-
                                      payers that the IRS intended to challenge ‘‘highly question-
                                      able, and in most cases meritless, positions’’ of certain U.S.
                                      citizens who claim to be residents of the Virgin Islands in
                                      order to claim substantial tax benefits (including the above
                                      referenced 90-percent income tax credit) of the Virgin Islands
                                      EDP.
                                         Respondent asserts that since petitioner did not satisfy the
                                      second and third requirements of section 932(c)(4), petitioner
                                      was required to file Federal income tax returns in 2002,
                                      2003, and 2004 and pay any tax reported thereon. Because
                                      petitioner did not file Federal income tax returns for 2002,
                                      2003, and 2004, respondent asserts that the 3-year period of
                                      limitations on assessment provided by section 6501(a) has
                                      not yet begun to run. Thus, according to respondent, peti-
                                      tioner’s 2002, 2003, and 2004 tax years remain open.
                                         Petitioner, in contrast, asserts that the section 6501(a)
                                      period of limitations for assessing Federal taxes began to run
                                      when he filed his Virgin Islands territorial income tax
                                      returns with the BIR. Petitioner never agreed to an extension
                                      of the period of limitations as provided in section 6501(c)(4).
                                      Thus, petitioner argues, the period of limitations on assess-
                                      ment has expired.
                                         Movant agrees with petitioner with respect to the expira-
                                      tion of the section 6501(a) period of limitations on the assess-
                                      ment of Federal taxes. Movant maintains that respondent’s
                                      position threatens the Virgin Islands’ taxing autonomy and
                                      fiscal sovereignty and significantly impairs the BIR’s ability
                                      to administer the tax law of the Virgin Islands. Movant thus
                                      seeks to intervene for the purpose of protecting its rights and
                                      interests regarding the period of limitations issue.

                                                                                Discussion
                                        The sole issue before us is whether movant may intervene
                                      in this matter. 2 In general, our Rules do not provide for
                                         2 In Cincinnati Transit, Inc. v. Commissioner, 55 T.C. 879 (1971), affd. 455 F.2d 220 (6th Cir.

                                      1972), we held that a third party to whom a notice of deficiency had not been issued may not
                                      join in the proceeding as a party petitioner. However, we recognized there ‘‘is a sound distinction
                                      between permitting a third party to ‘intervene’ or file an amicus brief to protect its interests,
                                                                                                   Continued




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                                      466                135 UNITED STATES TAX COURT REPORTS                                        (461)


                                      third-party intervention. 3 In the absence of an express rule,
                                      Rule 1(b) provides that the Court ‘‘may prescribe the proce-
                                      dure, giving particular weight to the Federal Rules of Civil
                                      Procedure to the extent that they are suitably adaptable to
                                      govern the matter at hand.’’ See Intermountain Ins. Servs. of
                                      Vail, L.L.C. v. Commissioner, 134 T.C. 211, 215 (2010);
                                      Estate of Proctor v. Commissioner, T.C. Memo. 1994–208.
                                         Movant relies on rule 24 of the Federal Rules of Civil
                                      Procedure (Fed. R. Civ. P.) which governs third-party inter-
                                      vention in much of the Federal court system. Movant asserts
                                      that it is entitled to intervene as a matter of right under Fed.
                                      R. Civ. P. 24(a)(2) as well as under the permissive interven-
                                      tion rules of Fed. R. Civ. P. 24(b)(2). Movant indicates that
                                      if permitted to intervene, it will file a motion for summary
                                      judgment asserting that respondent is time barred from
                                      assessing deficiencies under section 6501(a) with respect to
                                      petitioner’s 2002, 2003, and 2004 tax years.
                                      I. Intervention Under Fed. R. Civ. P. 24(a)(2)
                                        Movant first argues that it should be permitted to inter-
                                      vene as a matter of right pursuant to Fed. R. Civ. P. 24(a)(2),
                                      which provides that a court must permit anyone to intervene
                                      who:
                                        (2) claims an interest relating to the property or transaction that is the
                                      subject of the action, and is so situated that disposing of the action may
                                      as a practical matter impair or impede the movant’s ability to protect its
                                      interest, unless existing parties adequately represent that interest.

                                        A review of this Court’s jurisprudence reveals that the
                                      Court has never recognized intervention of a third party as
                                      a matter of right pursuant to Fed. R. Civ. P. 24(a)(2).
                                      Because we find that movant has not satisfied the require-
                                      ments of Fed. R. Civ. P. 24(a)(2), we need not and do not
                                      which we think would be discretionary at best under these circumstances, and permitting a
                                      party to join as a party petitioner in a proceeding to redetermine someone else’s tax liability.’’
                                      Id. at 883.
                                         3 There are limited exceptions for third-party intervention; namely: (1) Rule 216(a), permitting

                                      intervention by the Pension Benefit Guaranty Corporation and/or the Secretary of Labor in cer-
                                      tain retirement plan actions; (2) Rule 225, permitting interventions in actions with respect to
                                      sec. 6110 written determinations open to public inspection; (3) Rule 245(a), permitting interven-
                                      tion by tax matters partners in actions for readjustment of partnership items brought by an-
                                      other partner or partners; and (4) Rule 325(b), permitting intervention by the nonelecting spouse
                                      with respect to claims for relief from spousal joint and several liability.




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                                      (461)                        APPLETON v. COMMISSIONER                                         467


                                      decide herein whether Fed. R. Civ. P. 24(a)(2) applies to pro-
                                      ceedings in this Court.
                                         To intervene pursuant to Fed. R. Civ. P. 24(a)(2), the pro-
                                      posed intervenor must: (1) Timely file an application, (2)
                                      show an interest in the litigation, (3) demonstrate that the
                                      interest may be impaired by the disposition of the action, and
                                      (4) show that the interest is not adequately protected by the
                                      parties to the action. See Kaliski v. Bacot (In re Bank of N.Y.
                                      Derivative Litig.), 320 F.3d 291, 300 (2d Cir. 2003); Kleissler
                                      v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). The
                                      Supreme Court has held that Fed. R. Civ. P. 24(a)(2) requires
                                      a ‘‘significantly protectable interest.’’ Donaldson v. United
                                      States, 400 U.S. 517, 531 (1971). Specifically, the intervenor’s
                                      interest must be ‘‘direct, substantial, and legally protectable.’’
                                      Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co.,
                                      922 F.2d 92, 97 (2d Cir. 1990); see New Orleans Pub. Serv.,
                                      Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir.
                                      1984) (en banc).
                                         An economic interest in the outcome of the litigation
                                      standing alone is not sufficient to support a motion to inter-
                                      vene. Mountain Top Condo. Association v. Dave Stabbert
                                      Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995); see,
                                      e.g., United States v. Alcan Aluminum, Inc., 25 F.3d 1174,
                                      1185 (3d Cir. 1994) (‘‘Some courts have stated a purely eco-
                                      nomic interest is insufficient to support a motion to inter-
                                      vene.’’); New Orleans Pub. Serv., Inc. v. United Gas Pipeline
                                      Co., supra at 464 (‘‘it is plain that something more than an
                                      economic interest is necessary.’’). Moreover, ‘‘An interest that
                                      is remote from the subject matter of the proceeding, or that
                                      is contingent upon the occurrence of a sequence of events
                                      before it becomes colorable, will not satisfy the rule.’’ Wash.
                                      Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., supra at
                                      97; see also Kleissler v. U.S. Forest Serv., supra at 972
                                      (‘‘Nonetheless, the polestar for evaluating a claim for inter-
                                      vention is always whether the proposed intervenor’s interest
                                      is direct or remote.’’). The determination as to whether the
                                      proposed intervenor’s interest is sufficient to satisfy the
                                      ‘‘direct, substantial, and legally protectable’’ requirement is
                                      made on the basis of an examination of all the facts and cir-
                                      cumstances present in the matter. See Cascade Natural Gas
                                      Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 133–134
                                      (1967); Kleissler v. U.S. Forest Serv., supra at 970.




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                                        Movant maintains that it has the requisite interest to
                                      intervene as a matter of right, asserting that respondent’s
                                      determination both impinges on its sovereign authority to
                                      administer its own tax laws through the BIR and undermines
                                      movant’s economic policies. Movant further asserts that
                                      respondent’s position that the period of limitations on assess-
                                      ment of income taxes provided in section 6501(a) remains
                                      open for petitioner (and other similarly situated taxpayers)
                                      has caused a number of companies to leave the Virgin
                                      Islands, has undermined its economic development program,
                                      and has adversely impacted movant’s tax revenues. We do
                                      not subscribe to this argument.
                                        Resolution of the 3-year period of limitations issue will not
                                      undermine movant’s taxing authority or discourage legiti-
                                      mate economic development in the Virgin Islands pursuant
                                      to movant’s EDP. Regardless of the outcome of the 3-year
                                      period of limitations issue, movant will still retain the
                                      authority to offer and administer its economic development
                                      program. Movant’s assertions relate to movant’s economic
                                      interest (specifically the Virgin Islands’ business climate) in
                                      the outcome of the litigation between petitioner and
                                      respondent; and as previously noted supra p. 467, an eco-
                                      nomic interest is not sufficient to permit intervention. More-
                                      over, movant’s interest in this proceeding (1) is remote from
                                      the subject matter of the controversy between petitioner and
                                      respondent (i.e., petitioner’s participation in an activity
                                      which respondent alleges lacks economic purpose and eco-
                                      nomic substance), and (2) will be impaired and colorable only
                                      upon the occurrence of a sequence of events. See Wash. Elec.
                                      Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., supra at 97.
                                      Hence, movant’s interest does not satisfy the ‘‘direct,
                                      substantial, and legally protectable’’ requirements of Fed. R.
                                      Civ. P. 24(a)(2). See id.
                                      II. Intervention Under Fed. R. Civ. P. 24(b)(2)
                                         Alternatively, movant asserts it should be allowed to inter-
                                      vene pursuant to the permissive intervention rules of Fed. R.
                                      Civ. P. 24(b)(2), whereby a Federal or State government
                                      officer or agency may be permitted to intervene if a party to
                                      the litigation’s claim or defense is based on: ‘‘(A) a statute or
                                      executive order administered by the officer or agency; or (B)




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                                      (461)                        APPLETON v. COMMISSIONER                                         469


                                      any regulation, order, requirements, or agreement issued or
                                      made under the statute or executive order.’’ Movant posits
                                      that petitioner’s case centers on sections 932(c) and 934(b),
                                      which under the mirror tax system are administered by the
                                      BIR. Movant argues that if its request to intervene is granted,
                                      the filing of a motion for summary judgment will not delay
                                      or obstruct the adjudication of the matter in this Court.
                                      Assuming arguendo that movant falls within paragraph (A)
                                      or (B) of Fed. R. Civ. P. 24(b)(2), movant has neither dem-
                                      onstrated that its participation as a party is necessary to
                                      advocate for an unaddressed issue nor shown that its inter-
                                      vention will not delay the resolution of this matter.
                                        Intervention pursuant to Fed. R. Civ. P. 24(b) is left to the
                                      discretion of the Court. In Estate of Proctor v. Commissioner,
                                      T.C. Memo. 1994–208, we stated:
                                      Under rule 24(b) of the Federal Rules of Civil Procedure (rule 24(b)) a trial
                                      court has discretion to permit intervention by third parties. Rule 24(b) also
                                      permits the trial court to restrict the scope of intervention by third parties
                                      and to condition such intervention in any manner it believes is necessary
                                      for the efficient conduct of the proceedings. Wright et al., Federal Practice
                                      and Procedure: Civil 2d, secs. 1913, 1922 (1986 & Supp. 1993). Federal
                                      courts generally consider the following factors when deciding whether to
                                      grant a party’s motion to intervene: (1) Whether the presence of a third
                                      party in the proceeding will prejudice the original parties; (2) whether
                                      allowing intervention by a third party will unduly delay the adjudication;
                                      (3) whether the moving party is or may become a party to another pro-
                                      ceeding in which the moving party’s rights will be determined; or (4)
                                      whether there is some other adequate remedy available to the moving
                                      party. Wright et al., supra sec. 1913, at 379–388. Generally, once the court
                                      permits a third party to intervene in the proceeding, the intervenor is
                                      treated as an original party and has equal standing with the original par-
                                      ties, subject to any of the conditions the court may impose. See Ross v.
                                      Bernhard, 396 U.S. 531, 541 n.15 (1970).

                                         Like other Federal courts, this Court may permit interven-
                                      tion where the ends of justice so require. Id.; see Commis-
                                      sioner v. Revere Land Co., 169 F.2d 469, 479 (3d Cir. 1948),
                                      revg. 7 T.C. 1061 (1946); see also Sampson v. Commissioner,
                                      710 F.2d 262 (6th Cir. 1983) (Tax Court has power to permit,
                                      in its discretion, intervention by persons or entities who have
                                      not been served with a notice of deficiency).
                                         In its reply to respondent’s objection, movant states: ‘‘the
                                      V.I. Government merely seeks this Court’s interpretation of
                                      Section 6501(a) as it applies to USVI residents who filed, in




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                                      good faith, a return with the Bureau’’ and that this deter-
                                      mination may be made via a motion for summary judgment.
                                      Movant takes the position that the filing of a territorial
                                      income tax return with the BIR by a resident of the Virgin
                                      Islands triggers the running of the period of limitations for
                                      both Virgin Islands and U.S. tax return filing purposes.
                                        Petitioner, who is represented by counsel, has made the
                                      expiration of the section 6501(a) period of limitations a
                                      cornerstone of his case. In his petition, petitioner alleges that
                                      he properly and timely filed his 2002, 2003, and 2004 Virgin
                                      Islands territorial income tax returns with the BIR (a state-
                                      ment movant concurs in), that the BIR informed the IRS of
                                      petitioner’s return information pursuant to information
                                      sharing agreements between the two agencies, and that the
                                      IRS’ examination of petitioner’s 2002, 2003, and 2004 tax
                                      years commenced well before the expiration of the period of
                                      limitations. The petition states: ‘‘The Commissioner spent
                                      several years examining Petitioner’s 2002 through 2004 tax-
                                      able years, including significant amounts of time with little
                                      or no examination activity, and never requested an extension
                                      of the statutes of limitations for any of these years.’’ Further,
                                      the petition states: ‘‘The statute of limitations under I.R.C. §
                                      6501 for the 2002, 2003 and 2004 taxable years had expired
                                      well prior to the time the Commissioner issued his Statutory
                                      Notice of Deficiency on November 25, 2009.’’
                                        Petitioner has raised the period of limitations issue, and
                                      we presume the matter will be fully vetted during the normal
                                      course of these proceedings. For movant to participate in this
                                      case as a party solely to make an argument that petitioner
                                      has already identified as a matter central to his case would
                                      introduce a redundancy into the proceedings.
                                        Adjudication of the period of limitations issue may require
                                      us to make factual determinations. Were we to grant the
                                      motion to intervene, movant would become a party to the
                                      proceeding in this Court and have the right to introduce
                                      documentary evidence, call its own witnesses, and cross-
                                      examine witnesses of the other parties. Such participation, as
                                      a practical matter, could result in trial complications as well
                                      as delay the resolution of the issue in which movant asserts




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                                      (461)                        APPLETON v. COMMISSIONER                                         471


                                      an interest. 4 Consequently, we shall deny movant’s motion to
                                      intervene.
                                        There is, however, another remedy (i.e., the filing of an
                                      amicus curaie brief) available to movant through which it
                                      may adequately represent its interest in the outcome of this
                                      case. Thus, as an alternative to intervention, we will permit
                                      movant to file an amicus curiae brief in order to enable us
                                      to view the matter from its perspective.
                                                                                 An appropriate order will be issued.

                                                                               f




                                         4 In its supplement to the reply to respondent’s objection to movant’s motion to intervene,

                                      movant cites Karr v. Castle, 768 F. Supp. 1087 (D. Del. 1991), to support its position. That case
                                      involved the filing of a civil rights action by Karr, a former Delaware National Guard member,
                                      against Castle, the Governor of the State of Delaware, and various Delaware Army National
                                      Guard officers challenging the constitutionality of Karr’s involuntary separation from military
                                      service. At issue was the validity of a National Guard Bureau regulation governing separation
                                      from service (i.e., whether the regulation failed to provide Karr with sufficient procedural due
                                      process). The United States moved to intervene in order to defend the constitutionality of the
                                      regulation inasmuch as the regulation was promulgated by the National Guard Bureau, a joint
                                      bureau of the U.S. Department of the Army and the U.S. Department of the Air Force. The
                                      United States asserted that its interest would, as a practical matter, be impaired by prosecution
                                      of Karr’s lawsuit because of the potential stare decisis effect on future challenges to the regula-
                                      tions (i.e., declaring the regulations invalid would have a widespread effect upon the National
                                      Guard of the several States).
                                         The court denied the United States’ motion to intervene as of right pursuant to Fed. R. Civ.
                                      P. 24(a)(2), but granted permissive intervention under Fed. R. Civ. P. 24(b). The court found
                                      the validity of the regulation in question sufficient to give the United States an intent in com-
                                      mon with the litigation. In so holding, the court found that intervention by the United States
                                      would ‘‘not unduly delay or prejudice the adjudication of the rights of the original parties’’.




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