An amicus brief is filed by an amicus curiae, literally friend of the court. An amicus curiae is an individual or organization, including the government, who generally has an interest in the outcome of a case and files a brief with the court. The amicus curiae can petition the court for permission to file a brief on behalf of one of the parties involved in the case. While these briefs are ostensibly to support one side or the other, they are more accurately submitted to suggest a rationale consistent with their own views.
An amicus brief is prepared by someone, usually a lawyer, to educate the court on certain points of the law that are or obscure or may be in doubt. This is most common in appeals and civil rights cases. The amicus curiae will gather and organize information or raise awareness for a portion of the case that may otherwise be overlooked. An amicus curiae may not be a party in the case and must have some type of knowledge or perspective that makes his or her views valuable to the court.
The amicus curiae has to walk a fine line between providing additional relevant information and blatantly working to further the cause of one of the parties. For example, the amicus curiae may not discuss issues that the parties involved in the case do not raise themselves; this must be done by the involved parties or their attorneys. If allowed by the court, an amicus curiae may file briefs, argue the case, and introduce evidence.
Recently, an amicus brief regarding bankruptcy was filed with the U.S. Supreme Court in a case that addresses whether the bankruptcy code that exempts the retirement funds from the claims of creditors applies to a retirement account that has been inherited by the debtor from its original owner. The brief uses the difference in the tax treatment of inherited accounts versus accounts in the hands of their original owners as the base of the argument.
Under the tax code, people are able to invest money in their IRAs before payment of taxes throughout their working lives, but they will incur penalties if they withdraw the money from their IRA before they reach retirement age. Inherited IRAs are taxed pretty much the opposite way. IRA owners are encouraged to add money to their IRAs, but a beneficiary other than a spouse is prohibited from doing so. Also, while IRA owners are unable to withdraw funds from their IRAs prior to retirement age without incurring a tax penalty, beneficiaries other than spouses are generally required to transfer the funds immediately, even if they have not reached retirement age.
The amicus brief argues that these differences under the tax code clearly demonstrate that inherited retirement funds are different than those held by their original owners and should not be treated as exempt property against bankruptcy creditors. Since inherited accounts are structured in a way that requires immediate distribution of the money, rather than promoting savings for the future, the brief argues that they are not “retirement funds” within the meaning of the bankruptcy code.