At the recent ABA Tax Section meeting in Orlando, the Pro Bono and Tax Clinic Committee had a panel on the Tax Court calendar call program to celebrate the 25th anniversary of the program. The twenty five year celebration was a little squishy in terms of a precise time frame because of the informality with which the program began but it allowed the panelist to talk about an action begun by one person that has turned into an opportunity for pro se litigants that no other federal court offers. The panel showcased again how pro se friendly the Tax Court is to the 70% of its petitioners who enter its doors with no representative but also how the Court, before embracing this program, took slow steps at first out of concerns for those taxpayers.read more...
Karen Hawkins, who is the chair elect of the Tax Section, got the calendar call program started in the early 1990s in San Francisco. She had a tax controversy practice in that area that regularly brought her to Tax Court calendar calls. At those calendar calls she observed that unrepresented taxpayers appeared who had no idea what to do. So, she began trying to assist them by giving them advice on a quick, informal and pro bono basis. The problem she observed in San Francisco was occurring throughout the United States. I noted in a prior post that one Tax Court judge’s solution in a case in which the petitioners were particularly clueless was to have me as Government’s counsel waiting to try the next case sit with petitioners at their table and explain what was happening in the case.
Karen not only identified the problem faced by pro se petitioners at calendar call but she brought it to the attention of the Tax Section of the California Bar. Representing the California Bar, she approached then Chief Judge Hamblin and asked him for permission to have the program of assisting pro se petitioners at calendar call recognized by the Tax Court. He said no. In the panel discussion Karen mentioned an incident that occurred before Judge Cohen in which an attorney came to a calendar call ostensibly to assist a pro se petitioner and ended up charging a fee. This type of anecdotal experience would naturally have a dampening impact on the interest of the Court in such a program.
Chief Judge Hamblin’s concerns would have been similar to the concerns of the Tax Court judges when the first low income taxpayer clinics were established 15 years earlier. I wrote about those concerns in an article on the history of the clinics. The concerns arise from the cautious nature of a body like the Court and the need to protect the litigants before it as well as the institution of the Court itself. Fortunately, Judge Swift, who came from California, stepped up and said that he would conduct a pilot to allow the Court to determine if providing some assistance to pro se petitioners at calendar call would benefit the petitioners and the proceeding. For the first few calendar calls Karen was person who came and who met with taxpayers. She did not have a group of volunteers with her. She gave only her first name and did not give out a business card because one of the concerns centered on the possible use of the calendar call program as a business building exercise. Pete Bakutes, the District Counsel for the IRS in San Francisco, was very supportive of the effort and that made a difference. Before the Court arrived in San Francisco, Karen, Pete and Judge Swift had a conference call to discuss who the judge would announce the availability of Karen to unrepresented petitioners.
Judge Swift reported back to the Court that the assistance at calendar call was a success. Not too long thereafter, Judge Nims visited San Francisco. On his calendar was a taxpayer who, at that time, would have been called a tax protestor. Having seen a few trials involving tax protestors, I am sure that Tax Court judges do not look forward to them. One of the volunteer attorneys who came to that calendar convinced the tax protestor to concede (something I have had almost no success in doing in that same roll.) The actions of that volunteer at the calendar call convinced Judge Nims on the benefits of the program, and he returned to DC to tell others on the Court.
Karen brought the idea of the calendar call program to the ABA Tax Section to try to get it to adopt the program as a section activity, but the Tax Section was not ready. The program continued to evolve in San Francisco and in pockets around the country but did not have broad institutional support. In Richmond in the mid-1990s Nina Olson participated in calendar call with the Community Tax Law Project. She and I would call each judge coming for a calendar call in Richmond and most were receptive to announcing the presence of attorneys to assist pro se taxpayers. Like the Court and the ABA Tax Section, Chief Counsel’s office did not wholeheartedly embrace the idea of the calendar call in the early years. Part of the success of the program in San Francisco would have been due to the forward looking vision of Pete Bakutes who headed the Chief Counsel office there. The struggle to get it going and accepted by the institutional players followed a similar path to the struggle to get the low income tax clinics going as discussed above. Chief Special Trial Judge Panuthos was an early supporter on the Court for this and most programs to assist pro se petitioners.
The program got its institutional boost when Judge Colvin became the Chief Judge. He saw, in many ways, the benefits to the Court and to the system of representation for the pro se petitioners. He institutionalized the program at the Court in a way the Court had recently institutionalized its relationship with clinics. At almost the same time that the Court embraced the calendar call program in a formal manner, the Tax Section of the Texas Bar stepped up and decided that it wanted to adopt this as a formal program of its Section. Elizabeth Copeland was persuaded to spearhead that effort and she did a great job in organizing attorneys across a state that has the most Tax Court places of trial of any state. During the panel discussion Elizabeth described all of the steps she took to get that program off of the ground which included attending all of the calendar calls held in the state for the first couple of years. The organization and efficiency of the program in Texas remains a model for other programs. The success of program in Texas and in New York City under the guidance of Frank Agostino spurred the creation of programs elsewhere. The Low Income Taxpayer Committee of the Tax Section began to work with tax clinics and bar programs around the country to insure 100% coverage for Tax Court calendars. Former committee chair Andy Roberson, who played a role in the effort to get 100% coverage even in cities with no local bar or LITC calendar call program, continues to update the coverage list for all 74 cities and the committee works to make sure that full participation exists.
Now that calendar call programs exist throughout the country in every Tax Court place of trial, and now that the Tax Court, the ABA Tax Section and Chief Counsel, IRS agree that the program provides a benefit to the petitioners and the system, the challenge centers on improving the program rather than building it. Chief Judge Marvel spoke during the panel about a study conducted in the early 1980s which looked at why cases went to trial. She spoke of ways the groups involved can continue to study the system looking for improvements. Chief Special Trial Judge Panuthos, who was also on the panel, reminded the clinicians attending the program of their opportunity each year in their participation letters to provide ideas for improvement of the program. Of course, the Tax Court does not limit its receipt of ideas and suggestions to that group or to that submission.
Bruce Meneely, who heads the Chief Counsel’s SBSE division, spoke on the panel about changes his office seeks to make in an effort to better engage with pro se taxpayers. His office is going to call petitioners immediately after the filing of the petition to engage the petitioners. His office is working with Appeals to determine why Counsel ends up settling some cases instead of Appeals and how the process could change to achieve settlement at an earlier stage. Chief Counsel’s SBSE division just hired 30 paralegals to assist with small cases which he hopes will also lead to earlier resolution before the need to involve attorneys. He solicited ideas on how to reach pro se petitioners prior to calendar call because everyone has an interest in resolving the cases as early in the process as possible. He spoke of the possibility of a status conference with the Court prior to calendar call which some Tax Court judges have adopted as another way to foster resolution before calendar call.
Many tax lawyers around the country now attend calendar call when the Tax Court comes to their city. The program does a good job of assisting those who come to Court unrepresented and still needing to resolve their case. As the panel discussed, even better results for everyone can occur if pro se taxpayers can be linked to legal advice earlier in the process in a setting that does not put the pressure of an almost immediate trial on the parties. As the Court, the bar and Chief Counsel’s office continue to evolve in their efforts to create a more perfect union of taxpayers and representatives, the calendar call program continues to stand out as a significant effort which distinguishes both the Tax Court and the members of its bar for their service to otherwise unrepresented individuals caught up in a process that can overwhelm those individuals. It is interesting to see how the vision of Karen Hawkins in starting this program, like the vision of Stuart Filler who started the first low income taxpayer clinic at Hofstra Law School in 1974, has created a better environment for taxpayers trying to resolve a dispute with the IRS.