T. Keith Fogg

Visiting Professor of Law

2016-2017

122 Boylston Street

Assistant: Rachel Keeler / 617-495-8304

Biography

Professor Fogg directs the Federal Tax Clinic at the Legal Services Center. He is visiting from Villanova Law School. He joined the Villanova faculty in 2007 after working for over 30 years with the Office of Chief Counsel, IRS. Professor Fogg received his B.A. from the College of William and Mary, his J.D. from the University of Richmond T.C. Williams School of Law and his M.L.T. in tax from the College of William and Mary Marshall Wythe School of Law. He developed a course for the Georgetown LLM program, Federal Taxation of Bankruptcy and Workouts, which he taught there for 15 years as an adjunct. He has also taught as an adjunct professor at William and Mary and University of Richmond law schools and as a visiting professor at University of Arizona.

He is a national authority on tax procedure especially in the area of collection and bankruptcy law as it relates to tax. He co-authors a blog with Professor Les Book, procedurallytaxing.com, which focuses on current tax procedure issues. Fogg serves as the editor of the ABA Tax Section publication “Effectively Representing Your Client before the IRS.” He authors the collection chapters in “IRS Practice and Procedure” created by Michael Saltzman and currently edited by Les Book. He was chosen as the IRS Chief Counsel Robert H. Jackson National Attorney of the Year in 2007 and the ABA Tax Section Janet R. Spragens Pro Bono Award winner in 2015. He is a past chair of the ABA Tax Section Pro Bono and Tax Clinics Committee and a current member of the ABA Tax Section governing council.

T. Keith Fogg, When Government Hires Private Attorneys: The Need for Boundaries (Law360, Apr. 22, 2016).
Categories:
Taxation
,
Legal Profession
Sub-Categories:
Legal Services
,
Taxation - Federal
Type: Other
T. Keith Fogg & Leslie Book, Problems at the IRS in Attempting to Provide Service to Taxpayers, 150 Tax Notes 1335 (2016).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
,
Taxation - Personal Income
Type: Article
T. Keith Fogg, Collection From Nontaxpayers, in IRS Practice and Procedure ch. 17 (Leslie Book & Michael Saltzman eds., rev. 2nd ed. 2016).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Book
T. Keith Fogg & Sime Jozipovic, How Can Tax Collection be Structured to Observe and Preserve Taxpayer Rights: A Discussion of Practices and Possibilities, 69 Tax Law. 513 (2016).
Categories:
Taxation
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Tax Policy
,
Taxation - Personal Income
Type: Article
T. Keith Fogg, The Federal Tax Lien, in Enforcement of Liens and Judgments in Virginia ch. 8 (Tyler P. Brown ed., Virginia CLE 5th ed. 2004, 6th ed. 2009, 7th ed. 2016).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Book
T. Keith Fogg, The United States Tax Court: A Court for All Parties, 70 Bull. Int’l Tax’n 75 (2016).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
Abstract
This article seeks to explain the role of the Tax Court both within the system of taxation and the system of tribunals of the United States.
T. Keith Fogg, When Does Settlement Become Binding on a Party in Tax Court, 18 J. Tax Prac. & Proc. 35 (2016).
Categories:
Civil Practice & Procedure
,
Taxation
Sub-Categories:
Litigation & Settlement
,
Taxation - Federal
Type: Article
T. Keith Fogg, Collection Due Process, in IRS Practice and Procedure ch. 14A (Leslie Book & Michael Saltzman eds., Thomson Reuters rev. 2nd ed. 2015).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Book
Effectively Representing Your Client Before the IRS: A Practical Manual for the Tax Practitioner with Sample Correspondence and Forms (T. Keith Fogg ed. ABA 5th ed. 2012, 6th ed. 2015, 7th ed. forthcoming 2017).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Book
T. Keith Fogg, Tax Decisions Shall Be Made as Quickly as Practicable — A Discussion of Bench Opinions, 17 J. Tax Prac. & Proc. 49 (2015).
Categories:
Taxation
,
Civil Practice & Procedure
Sub-Categories:
Litigation & Settlement
,
Taxation - Federal
Type: Article
T. Keith Fogg, The Tax Collection Function: Tax Liens and Levies, and Avoiding and Minimizing the Effect of Tax Liens and Levies, in IRS Practice and Procedure ch. 14, 15 (Leslie Book & Michael Saltzman eds., rev. 2nd ed. 2015).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Book
T. Keith Fogg, Utilizing Bankruptcy to Reduce Outstanding Tax Debts, in Effectively Representing Your Client Before the IRS: A Practical Manual for the Tax Practitioner with Sample Correspondence and Forms ch. 11, 12, 13 (T. Keith Fogg ed., ABA 6th ed. 2015).
Categories:
Consumer Finance
,
Taxation
Sub-Categories:
Consumer Bankruptcy Law
,
Taxation - Federal
Type: Book
T. Keith Fogg, A Calendar Call Staffing Success Story, 33 ABA Sec. Tax’n NewsQuarterly, Winter 2014, at 13.
Categories:
Legal Profession
,
Taxation
Sub-Categories:
Clinical Legal Education
,
Legal Services
,
Taxation - Federal
Type: Article
T. Keith Fogg, Does the Failure to Timely Issue Notice and Demand Impact the Underlying Assessment Rather Than Just Liens and Levies?, 16 J. Tax Prac. & Proc. 23 (2014).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
T. Keith Fogg, Tax Issues Facing Clients of Legal Services, 28 MIE J. 17 (2014).
Categories:
Taxation
,
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Public Interest Law
,
Legal Services
Type: Article
T. Keith Fogg, An Access to Justice Milestone, 32 ABA Sec. Tax’n NewsQuarterly, Winter, 2013, at 10.
Categories:
Legal Profession
,
Taxation
Sub-Categories:
Clinical Legal Education
,
Taxation - Federal
Type: Article
T. Keith Fogg, Book Review, 32 ABA Sec. Tax’n NewsQuarterly, Summer 2013, at 28 (reviewing Joni Larson, A Practitioner’s Guide to Tax Evidence: A Primer on the Federal Rules of Evidence as applied by the Tax Court (2013)).
Categories:
Civil Practice & Procedure
,
Taxation
Sub-Categories:
Evidence
,
Taxation - Federal
Type: Article
T. Keith Fogg & Rachel E. Zuraw, Financial Disability for All, 62 Cath. U. L. Rev. 965 (2013).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - Federal
,
Taxation - Personal Income
Type: Article
Abstract
The Internal Revenue Code has four discreet sections that allow late filing of claims and other documents under the circumstances described in those sections. The IRS has promulgated a procedural regulation that allows it to permit late elections under prescribed circumstances. Neither the Code sections nor the Regulation cover all of the circumstances in which taxpayers have a good excuse for missing a time frame. The current provisions have developed in an ad hoc manner. More ad hoc development of this area is possible as equitable tolling litigation seeks to open up time frames under the Code despite the efforts of the IRS to argue the tax code is exceptional. Rather than continue down the path of ad hoc allowance of late claims and certain other late actions, this Article recommends the creation of a statute that would apply to all situations. The recommendation draws from the current provisions allowing late action and from principles developed in equitable tolling litigation. It proposes a transparent system under which the IRS would make a determination whether the late action qualified and that determination would be subject to judicial review under an abuse of discretion standard.
T. Keith Fogg, Meeting Leads to Changes to Certain Practices in the Tax Court, 33 ABA Sec. Tax’n NewsQuarterly, Fall 2013, at 28.
Categories:
Taxation
,
Legal Profession
Sub-Categories:
Legal Services
,
Clinical Legal Education
,
Taxation - Federal
Type: Article
T. Keith Fogg, Priority of Tax Claims, in IRS Practice and Procedure ch. 16 (Leslie Book & Michael Saltzman eds., Thomson Reuters rev. 2nd ed. 2013).
Categories:
Consumer Finance
,
Taxation
Sub-Categories:
Consumer Bankruptcy Law
,
Taxation - Federal
Type: Book
T. Keith Fogg, Taxation with Representation: The Creation and Development of Low-Income Taxpayer Clinics, 67 Tax Law. 3 (2013).
Categories:
Taxation
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Public Interest Law
,
Clinical Legal Education
,
Taxation - Federal
Type: Article
Abstract
This article provides a chronological history of low-income tax clinics in the United States from their inception in 1974 to the present. It discusses leaders in the tax clinic movement such as Stuart Filler, Janet Spragens and Nina Olson and their impact on the growth of tax clinics. In addition to individual leaders, several institutions played significant roles in shaping the development of tax clinics. Tax clinics developed parallel to and then in conjunction with legal service corporation offices and academic clinics. The article discusses the growth of tax clinics within the broader growth of poverty law and the academic clinical movement. Finally, it looks at the challenges that lie ahead for tax clinics.
T. Keith Fogg, What is a Return — The Long Slow Fight in Bankruptcy Courts, 15 J. Tax Prac. & Proc. 53 (2013).
Categories:
Consumer Finance
,
Taxation
Sub-Categories:
Consumer Bankruptcy Law
,
Taxation - Federal
Type: Article
T. Keith Fogg, Go West: How the IRS Should Foster Innovation in Its Agents, 57 Vill. L. Rev. 441 (2012).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
,
Taxation - International
Type: Article
Abstract
The IRS faced a serious problem in the 1990s with taxpayers hiding their money offshore to avoid federal taxes. An International Revenue Agent, in New Jersey, Joe West, audited an individual engaged in hiding assets offshore and gained access to the offshore information through the use of a summons. The work of Joe West on that case caused him to “invent” a method for obtaining the names of individuals investing offshore who would not otherwise be known to the IRS. The article discusses the case that led Joe West to his discovery, the technique he developed for locating the names of U.S. citizens placing their money offshore, and the implications to the IRS of the type of creative thinking exhibited by Joe West.
T. Keith Fogg, Low-Income Taxpayer Clinicians Meet with Service Representatives, 31 ABA Sec. Tax’n NewsQuarterly, Summer 2012, at 16.
Categories:
Legal Profession
,
Taxation
Sub-Categories:
Clinical Legal Education
,
Taxation - Federal
Type: Article
T. Keith Fogg, Systemic Problems with Low-Dollar Lien Filing, 133 Tax Notes 88 (2011).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
Carlton M. Smith & T. Keith Fogg, Tax Court Collection Due Process Cases Take Too Long, 130 Tax Notes 403 (2011).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
T. Keith Fogg, Obtaining Relief From the Federal Tax Lien, and Obtaining Relief From Federal Tax Levies, in Effectively Representing Your Client Before the IRS: A Practical Manual for the Tax Practitioner with Sample Correspondence and Forms ch. 11, ch. 12 (T. Keith Fogg ed., ABA 5th ed. 2011).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Book
T. Keith Fogg, In Whom We Trust, 43 Creighton L. Rev. 357 (2010).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
Abstract
The federal government collects the majority of taxes through business entities that are required to withhold taxes from wages or collect excise taxes at the time of providing services. These business entities hold the taxes they collect in trust for the United States. The vast majority of business entities pay over the taxes held in trust in a timely and appropriate manner; however, a sizeable amount, in dollar terms, does not get paid. Aside from passing criminal laws at or near the passage of the 1954 code, Congress has done little to create a structure that provides incentives for business entities acting as trustees to pay over these collected taxes. This article explores the literature that has primarily developed with respect to the tax gap seeking to find structural answers to the problem. Most of the literature addresses issues concerned with underreporting taxes rather than the underpayment of taxes but certain ideas on how to influence taxpayer behavior are transferable to underpayment. Applying appropriate structural principles to the problem, the article explores some of the solutions adopted by states to see if importing those solutions could assist the federal government in collecting these taxes. Five specific recommendations follow from the study and these recommendations range from information gathering to monetary incentives for timely compliance to requiring bonds. The range of proposed solutions is intended to address the range of reasons for the non-compliance. Through the implementation of these solutions or similar ideas that create the proper structure for taxpayers serving as trustees, this corner of the tax gap should be reduced.
T. Keith Fogg, Transparency in Private Collection of Federal Taxes, 10 Fla. Tax Rev. 763 (2010).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
,
Taxation - Personal Income
Type: Article
Abstract
Most federal taxes are collected from taxpayers by business entities, held in a public trust for the United States, and then paid over to the Internal Revenue Service (the IRS). While the vast majority of business entities pay over the taxes held in trust in a timely and appropriate manner, a sizeable amount, in dollar terms, does not get paid. The amount of unpaid "collected" taxes in 2008 created a $58 billion tax gap item. Disclosure law governing federal taxes defaults to non-disclosure for most tax returns. This general rule of non-disclosure governs the returns reporting the taxes collected by business entities even though the information on these returns is information concerning a public trust. This article analyzes the federal tax disclosure laws and concludes that the amount of taxes collected on behalf of the United States and the amount of these collected taxes paid over to the IRS should be disclosed. Rather than coming under the general rule of non-disclosure which applies to income tax returns and other returns reporting the liability of an individual or entity for the payment of taxes, these returns should be treated like the returns of pension plans, which are open for the public to see. In addition to approaching the issue from the perspective of disclosure policy, the article also looks at the collection policy issues presented by the disclosure of this information. For the same policy reasons that Congress has decided compliance is enhanced by the disclosure of pension plans and the returns of exempt organizations, the article concludes that compliance would be enhanced by this proposal and the tax gap reduced.
Carlton M. Smith & T. Keith Fogg, Collection Due Process Hearings Should Be Expedited, 125 Tax Notes 919 (2009).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
T. Keith Fogg, Handling Tax Collection Matters -- Procedures and Strategies and Handling a Case with Potential Criminal Problems, in Effectively Representing Your Client Before the 'New' IRS: A Practical Manual for the Tax Practitioner with Sample Correspondence and Forms ch. 10, ch. 13 (Catherine B. Engell ed., ABA 4th ed. 2009).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Book
T. Keith Fogg, Leaving Money on the Table and Providing an Incentive Not to Pay, 5 Hastings Bus. L.J. 1 (2009).
Categories:
Taxation
Type: Article
Abstract
As of September 30, 2007, the IRS had $282 billion of unpaid assessments on its books. Of that amount $58 billion, over 20%, represents the unpaid payroll taxes due from employers. The majority of payroll taxes due from employers results from income and social security taxes collected by the employer and held in trust for the Government. Internal Revenue Code section 6672 gives the Government the right to pierce the corporate veil to pursue collection of these payroll taxes collected for the Government but not paid. Because it creates personal liability, 6672 can serve as a powerful tool in the fight against the growing tax gap. Unfortunately, 6672 is flawed in the way it operates due to its position in the Code as an assessable penalty. The interest charged under 6672 only runs from the date of the actual assessment against the individual and does not relate back to the due date of the corporate employment tax return. The flaw allows those responsible for failing to pay over payroll, and other, taxes collected for the Government to avoid paying interest for two years or more. Additionally, the flaw provides an incentive for those responsible to withhold payment and delay assessment. Those studying the causes of the IRS tax collection gap uniformly identify the creation of incentives to pay and removal of delayed collection attempts as keys to successful collection and reduction of the gap. Using the model provided by the tax gap literature, this paper identifies the source of the problem with 6672 and recommends a solution. The sources of the problem are rooted in the history of the statute. It grew from a criminal provision to one of civil penalty. When the codification effort took place in 1954, 6672 was placed with the assessable penalties even though everyone, including the Supreme Court, agrees that it is a collection device and not a penal provision. The solution is to remove 6672 from the assessable penalty provisions and make clear in the statute that interest charges against the individuals responsible accrue from the due date of the corporate return. Moving the statute will not only remove the impediment caused by the disconnect on the charging of interest but will provide an opportunity to craft a statute that creates incentives to pay rather than disincentives.
T. Keith Fogg & Calvin H. Johnson, Amended Returns — Imposing a Duty to Correct Material Mistakes, 120 Tax Notes 979 (2008).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
Abstract
The amended returns proposal would create a duty for a taxpayer to correct material factual errors on its tax return when the error is discovered. Failure to correct an erroneous but innocent representation is considered to be a form of deceit in American tort and contract law. The proposal is made as a part of the Shelf Project, a collaboration by tax professionals to develop and perfect proposals to help Congress when it needs to raise revenue. Shelf Project proposals are intended to raise revenue, defend the tax base, follow the money, and improve the rationality and efficiency of the tax system. The tax community can propose, follow, or edit proposals at http://www.taxshelf.org. A longer description of the Shelf Project can be found at ‘‘The Shelf Project: Revenue-Raising Projects That Defend the Tax Base,’’ Tax Notes, Dec. 10, 2007, p. 1077, Doc 2007-22632, 2007 TNT 238-37. Shelf Project proposals follow the format of a congressional tax committee report in explaining current law, what is wrong with it, and how to fix it.
T. Keith Fogg, National Tax Lien Registry, 120 Tax Notes 783 (2008).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
Abstract
The current system for filing a notice of federal tax lien came into existence before the electronic age. It relies on myriad state laws and the filing of notices in localities more than 4,100 in all. The current system hurts both the IRS and taxpayers by requiring multiple filings and, thus, multiple removals when the underlying obligation is paid or discharged. With increasing complexity comes increasing costs and errors for the IRS, taxpayers, and taxpayers' creditors. A single Web-based system would be cheaper and more efficient. That possibility drives this recommendation.
T. Keith Fogg, Grover Hartt III & Mark S. Wallace, When, Why, and How Should a District Court Be Asked to Withdraw the Reference of a Tax Controversy to a Bankruptcy Court?, 20 Prac. Tax Law. 41 (2006).
Categories:
Consumer Finance
,
Corporate Law & Securities
,
Taxation
Sub-Categories:
Consumer Bankruptcy Law
,
Corporate Bankruptcy & Reorganization
,
Taxation - Federal
Type: Article

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122 Boylston Street

Assistant: Rachel Keeler / 617-495-8304