Cross-Appeal; the Administration Reopened a Remedy That Seemed Closed

In administrative litigation a step taken by the other side can sometimes reopen a remedy that seemed closed to you. That is exactly what happened in a file that came to me recently.

The dispute concerned a corporate tax assessment and the related advance taxes. The tax court had accepted the claim as regards the advance taxes and rejected it as regards the corporate tax assessment. When the prospective client brought the file at the appeal stage, the first thing I looked at was the date of service of the judgment and the time limit for appeal; the news was bad, the appeal period had expired.

There was, however, one more development in the file. Counsel for the defendant Treasury Office had appealed the part of the judgment annulling the advance taxes, and the time for replying to that brief had not yet expired. Thanks to the other side’s appeal, the client gained the opportunity to cross-appeal, within the reply brief, the part of the judgment rejecting the claim regarding corporate tax.

This example shows why the review of a file in administrative litigation cannot be limited to the question “has the deadline passed?”. Time limits are vital in tax litigation; but before closing a file because the deadline has passed, one must also look at the steps taken by the defendant administration. Procedural law is often the invisible front of the case.