Supreme Court Declines to Review Check-the-Box Case

By Alistair M. Nevius, J.D.

The Supreme Court has refused to grant certiorari in Littriello, the first case to uphold the check-the-box regulations (Regs. Secs. 301.7701-1 through -3). (See News Notes, The Tax Adviser, p. 432 (August 2007).)

In Littriello, 484 F3d 372 (6th Cir. 2007), cert. denied, S. Ct. Dkt. 07-851 (U.S. 2/19/08), the Sixth Circuit held that the check-the-box regulations were a valid exercise of Treasury’s authority and that, because the taxpayer failed to elect to have his limited liability companies (LLCs) taxed as corporations, he was individually liable for the employment taxes due and owing from those LLCs. The Sixth Circuit also agreed with numerous courts that state laws of incorporation may affect, but do not control, federal tax provisions and held that state LLC laws did not abrogate the taxpayer’s federal tax liability.

The Supreme Court’s refusal to hear the case allows the Sixth Circuit’s decision to stand.

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