Senator Fumo case returns me to the Man from Uncle – Electronic Access to Tax Court

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Growing up during the height of the cold war I had the opportunity to view many TV spy shows such as Mission Impossible, I Spy, Get Smart, It Takes a Thief, The Avengers and my favorite, The Man from Uncle featuring master spy Napoleon Solo. Perhaps inspired by Ian Fleming’s character, Q, or some real life expert whose name I do not know, each of the shows had a wizard who introduced the main characters to the technology they would use in order to defeat the bad guys. These gadgets always included some form or innovative camera for photographing the ever-present critical documents.

You may wonder how my childhood indoctrination into the world of spies has anything to do with Senator Fumo’s tax procedure issues.  The connection comes through a combination of the Tax Court’s decision regarding what to post on its electronic docket and the cool technological gadget I have that Napoleon Solo could only dream of: a smart phone.

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Article III federal courts and bankruptcy courts use the PACER (Public Access to Courts for Electronic Research) system for posting their dockets.  PACER allows users to access all documents (except those specifically designated by the Court) through the electronic portal.  PACER provides a marvelous resource not only for litigants but also for researchers and others trying to follow a case.  At a modest cost, anyone can access all of the documents filed in any case in these courts from any computer anywhere in the world with internet access.

The Tax Court chose not to join PACER or follow its model of electronic access to all for a modest fee.  Instead the Tax Court allows parties electronic access to their case for free (at least for three looks to each document), but restricts the access of non-parties to free views of the docket sheet and free views of any document generated by the Court rather than the parties.  The Tax Court’s system docket sheet is easier to access than the docket sheet of cases within the PACER system, but if you want to actually see a document filed by a party in a Tax Court case and you are not a party your choices are limited. 

You can get documents through Bloomberg, which has a marvelous subscription allowing free access to PACER and access to the Tax Court.  Bloomberg’s system, as I understand it, downloads information from PACER and then loads it for its users.  It may not have loaded a specific document from PACER when you initiate the search but it will go and get it as part of your subscription – an outstanding tool for an academic whose amazing library has such a subscription.  Unfortunately, Bloomberg has no magic entry into the Tax Court docket.  If you want a document in a Tax Court case, Bloomberg will get the document and provide it to you but it must do so by sending a runner to the Tax Court to make a copy of the document.  As you can imagine, this does not come cheap and the cost is passed on to the requester.  That option does not work for an academic working with a limited budget.

If you do not have money to pay the nice people at Bloomberg, you can “call a friend.”  Maybe you have a friend or relative who works in DC who can take off on their lunch hour, walk over to the Tax Court, go into the docket room and make copies of the case documents you need.  This can work if you have a lot of friends and family among whom you can spread out the tasks but can prove both cumbersome and a burden to long term friendships.

As a last resort, or depending on your circumstances maybe a first or only resort, you can travel to the Tax Court and make the copies yourself.  I needed documents filed in the Tax Court in Senator Fumo’s case in order to know what the Government had filed.  This option worked best for me because I had to be in DC for another matter.  So, I went to the Tax Court docket room and fulfilled my Napoleon Solo fantasy.

When you go to the Tax Court docket room you can ask the clerks there to provide you with the actual physical file of a case pending before the Court.  Senator Fumo has three Tax Court cases as I have discussed before – one each for his income, gift, and exempt organization excise taxes.  So, I asked for the three files and they were promptly delivered to me.  Upon entering the public portion of the Tax Court docket room you arrive in a small room no more than 10 x 10 with a counter and a large window that visually opens the public room into the working portion of the docket room.  It also contains a table with two chairs at which you can work, and the table hosts two computers that allow you to access the Court’s docket.

Upon receipt of Senator Fumo’s files, I was surprised.  Three cases that I thought were traveling along a parallel path had files that were quite different.  Two of the files were extremely thin while the third was about an inch thick.  The difference in the files had two bases.   Although I expected to find answers in each of the three cases, only one contained an answer.  In the other two the answer had not yet been placed into the Court’s paper file.  The failure to place the answers from two of the cases into the paper file probably traces back to the government shutdown and the inevitable backup in the Tax Court clerk’s office as a result of the shutdown.  The other difference in the file that I had not anticipated was the size of the IRS answer in the income tax case – 78 pages plus a notice of deficiency of approximately equal length.

I could have identified the pages I wanted and requested a copy of the answer from the Court for a fee but that would not have fulfilled my childhood dreams.  Instead, I pulled out my phone and began to photograph the answer.  I had not anticipated an answer of the length of this one so the process took a little longer than I expected but now I have a copy of the answer I can review and consider.  I also looked on the computer provided and on it I found the answer in one of the other two cases.  I was able to pull up the answer on that computer and photograph the computer screen in order to get that answer.  The third answer was not yet available so I guess I will visit the Court again before too long.  If I cannot get back, I have a son who works a few blocks away and who may soon have his own opportunity to fulfill a fantasy, though I suspect his fantasies differ from mine.

Even though I enjoyed pretending to be Napoleon Solo, I would prefer that the Court make its docket available electronically the same way the PACER system makes documents available.  I can easily follow Senator’s Fumo case in district court in Philadelphia contesting the jeopardy assessment.  Why should the Tax Court restrict access to those with the ability to pay a high fee to Bloomberg or another runner, with the willingness to impose on their friends and family or the availability to travel to the Tax Court docket room?  The documents in the Tax Court files are public documents just like the documents in the jeopardy case in federal district court.  I know from discussions that the Tax Court has concerns about the sensitivity of the information in tax cases.  These are legitimate concerns but I do not think the information in tax cases is more sensitive than the cases in other federal courts and find the information on individuals available in bankruptcy cases to be much more invasive of personal privacy yet publicly available.  I hope that one day the Tax Court docket will be electronically available to all but in the meantime, I have a great appreciation for my smart phone which connects me to a childhood hero.

 

 

 

Comments

  1. Richard Jacobus says:

    Keith, do you have any sense of the Tax Court’s rationale for not adopting PACER?

  2. Let us not forget Dean Martin as secret agent “Matt Helm” . . . .

    Is there any indication that the Tax Court will ever consider allowing electronic access?

  3. The Tax Court is concerned about privacy. Congress cloaks tax information with special privacy protections through IRC 6103 and I think that permeates the Court’s concerns with posting all of the docketed information on the web. It now posts all of the documents the Court creates on the web. Initially, it did not do that. So, it has made some movement in the direction of becoming more open.

    In the low income tax cases that I handle in the tax clinic, there is rarely information that I think needs special protection. The Court rules require protection of the names of minors. The Court appropriately keeps social security numbers separate from even the paper file in order to prevent identity theft.

    In large corporate cases there may be information about trade secrets or other information that could cause harm if made public. There may be harmful information in some individual income tax cases. I think that the circumstances that might cause harm are a small portion of the overall docket. Taxpayers could receive tools to protect information that should stay out of the public eye. I do not see the benefit of having the docket information public for those able to physically get to the docket room but not for others. If the Court can protect the information causing it concern, I think it could still post 99% of the information in its files.

    There is literature on opening up information electronically. The area continues to evolve. I think the Tax Court may continue to evolve as well.

  4. Eric Rasmusen says:

    One reason for easy access would be for any expert thinking of submitting an amicus brief—- to see what the existing briefs look like. Tax is an area where neutral amicus briefs can be particularly useful, since the public interest may not coincide with that of one of the parties. Usually the side an amicus is supporting will show him relevant documents, but it would be better if amici were not dependent on interested parties— and might encourage third parties who read briefs and realize they omit something to tell the court about it.

  5. Eric Rasmusen says:

    Also, outsiders to a case are generally interested in discussions of law, not facts. If the briefs were made public, but not appendices and other supporting documents, that might cover up the most sensitive information.

  6. There are many good reasons for allowing electronic access and this is one.

    Representing low income taxpayers I am constantly faced with a need to see information on the docket. Most of the clients we represent in Tax Court come to us after they have filed the Tax Court petition and they have received notification of our clinic through the Court’s wonderful stuffer notice program. Very few of our clients keep a copy of their petition. We must constantly “bum” a copy off of Chief Counsel’s office. Depending on when the client comes to us, we must “bum” quite a few documents from Chief Counsel’s office that have been filed in the Tax Court. We have to do this in order to evaluate the case and prepare for our client meeting.

    The electronic access to the docket would open up to our clinic if we entered an appearance, but we do not generally do that at first client contact. We evaluate the case and then make a decision on whether and when to enter an appearance. Since we do not enter an appearance at the time we are trying to find out about the case, we cannot see what our client, or prospective client, or the Government, is saying in the case. We can see that things are being said.

    I doubt that the low income tax practice is unique in having clients come for legal services after filing the petition but I know that this is a very common fact pattern for us and a source of frustration.

  7. Scott Schumacher says:

    I agree that having the Tax Court filings on PACER or a similar system would be beneficial, both for me as an academic researcher and most especially as the director of an LITC. My low-income clients often have less than perfect files for their Tax Court cases. Being able to access these documents before I take them on as a client would be very helpful. I do recognize the need for security and privacy, especially in sensitive cases like innocent spouse and dependency cases, in addition to the 6103 issues mentioned earlier.

  8. Bob Kamman says:

    Maybe it goes without saying, but except for the petition the documents in most cases are filed electronically. The Tax Court requires digital input, but eschews digital output.

  9. The Court has a delicate balancing act with regard to disclosure of pleadings, particularly because so many petitioners are pro se. As helpful as it would be to be able to access documents electronically especially because many of my clients do not maintain copies of their documents, it is important to shield information that might reveal location information of domestic violence survivors and other vulnerable populations. For this reason, a resolution of the balancing act could include separate forms for the purpose of disclosing a service address. In addition, the Court could allow petitioners to designate at the outset that they would like the information they submit to the Court to be presumptively protected under Rule 27.

  10. Did you have your Russian spy comrade Ilia K. with you?

    • Though I did not realize it at the time I used my Smartphone to scan documents in the reading room of the Clerk’s office, I learned on a later visit that doing this is not permitted because it is viewed by the Court as taking pictures inside the Court building. So, please do not do what I did unless you find that the Court has changed its policy on the use of phones or other devices for this purpose. It was not my intention to violate the Court’s policy or to encourage others to do so by putting up this post.

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