Overview
Law360 quoted Matt Frank in an April 23 article titled "Cannabis Ruling In Tax Case Highlights Coke's Uphill Battle." The article discusses how Coca-Cola may have an uphill battle in its appeal of an unfavorable US Tax Court ruling in a transfer pricing case, based on the Ninth Circuit's rejection of constitutional arguments in a recent case involving a marijuana business.
Frank notes a court will sometimes make exceptions. A 2011 Eleventh Circuit case, In re Lett, states that while litigants generally are not supposed to be "surprised" by an appeals court's decision on issues for which they haven't been able to offer evidence, "this principle is not unyielding."
The Lett court said there may be "exceptional cases or particular circumstances" that will prompt an appellate court to consider questions of law that "were neither pressed nor passed upon" by the lower court.
But, Frank says, fitting into an exception can be a challenge for a company, and the Ninth Circuit's decision "is a reminder of the obstacle the company will have to try to overcome."
The full article can be read at Law360 (subscription required).