Frequently Asked Questions

April 1, 2023 by Leave a Comment

Please enjoy this special bonus April 1 post from a longtime reader.

A new guest blogger on Procedurally Taxing, Don de Drain, recently stumbled upon a group of Frequently Asked Questions drafted by the IRS which were rejected for public consumption. Don found this list of Frequently Asked Questions while searching through the IRS’s website on the internet’s “wayback machine.” Apparently, the IRS forgot to completely delete this list of rejected Frequently Asked Questions.

We here at Procedurally Taxing thought it would be interest to readers to see how the IRS has managed to improve its list of Frequently Asked Questions since rejecting the Frequently Asked Questions set forth below. We are very thankful to Don for his assistance in locating these rejected Frequently Asked Questions and   hope you enjoy this rare opportunity to see some of the Frequently Asked Questions that the IRS decided not to put on their website.

FREQUENTLY ASKED QUESTIONS:

1)

Q: Who came up with the idea of issuing Frequently Asked Questions?

A. On advice of counsel, the person who came up with the idea of issuing Frequently Asked Questions is refusing to answer this question on the grounds that it may violate their 5th Amendment right against self-incrimination.

2)

Q: Has the issuance of Frequently Asked Questions actually proven to be helpful?

A: The issuance of Frequently Asked Questions has proven to be very helpful to attorneys who like to challenge in court the validity of IRS rules that have not been published in the Federal Register under the Administrative Procedure Act.

3)

Q: How often are Frequently Asked Questions actually asked?

A: Frequently.

4)

Q: Seriously, how often is “Frequently?”

A: Once. After the question is asked here, no one else ever asks the question again.

5)

Q: Who are the people who actually decide which Frequently Asked Questions to include on the IRS’s website?

A: See the answer to Question #1.

6)

Q: Why does the IRS issue guidance like this in the form of questions?

A: Why not?

7)

Q: Can we rely on the answers to Frequently Asked Questions?

A: Yes, except that you cannot rely on the answer to this question.

8)

Q: Will I be penalized if I take a position on my tax return that is contrary to the answer to a Frequently Asked Question?

A: Only if the answer to the Frequently Asked Question is unintelligible.

9)

Q: Are these Frequently Asked Questions binding on the IRS in Court?

A: Only if the Questions have been written by someone living in Thailand.

10)

Q: Why is that?

A: Because it’s the Thai that binds.

11)

Q: What do we do when there are conflicting answers provided by two different Frequently Asked Questions?

A: You pick the answer you want to pick. Then the IRS will pick the other answer if your tax return is audited, and the Tax Court will decide which answer it likes better.

12)

Q: What is the actual location of the United States Tax Court?

A: We are not sure. We looked in the pocket of IRS Chief Counsel and did not find the Court there. We also looked in the pockets of some random taxpayers and did not the Court there. The Tax Court appears to be an independent body located somewhere in the penumbras between Article I and Article III of the U.S. Constitution. As a result, the Tax Court is considering renaming itself the United States Tax Court of Quantum Physics.

Filed Under: Frequently Asked Questions

Precedential Passport Case

March 31, 2023 by Leave a Comment

The Low Income Tax Clinic at Temple Law School in Philadelphia seeks a full time director for its tax clinic.  Temple is an especially good school at which to teach a tax clinic because of its strong tax program which includes an LLM and MLT in tax.  In addition, its location in a neighborhood with significant need for services situates it in a great place for building relationships with community organizations serving the same population of taxpayers.  For persons interested in this position, please read the attached brochure advertising the position and reach out to the appropriate persons at Temple.  Keith

As we have explained previously, this blog started because Les, Steve and I work on updating the treatise “IRS Practice and Procedure” published by Thomson Reuters and available through RIA Checkpoint.  While we try to keep the treatise updated on a regular basis, each year we go through a specific review every four months.  I recently went through that review and in doing so noticed several cases I thought were important that we had not written about shortly after they came out.  The first of those cases I thought I would write about is a precedential opinion involving a pro se taxpayer seeking to contest the seriously delinquent tax debt classification that caused the IRS to send a letter about him to the State Department requesting that it revoke or deny his passport.  The case is Adams v. Commissioner, 160 T.C. No. 1 (2023).

Because the passport revocation provision in IRC 7345 is still relatively new, it’s not surprising that a decision regarding this section would merit a precedential decision.

read more...

Like most taxpayers caught up in the passport revocation process, Mr. Adams has not been a model taxpayer citizen.  He failed to file returns for most of the years between 2007 and 2015 which caused the IRS to prepare substitute returns pursuant to IRC 6020(b).  These returns created assessments totaling over $1.2 million which significantly exceeds the amount of liability needed to have one’s passport revoked.  As part of its collection efforts, the IRS filed a notice of federal tax lien.  Following the filing of the notice, the IRS sent the required Collection Due Process (CDP) notice to Mr. Adams.  He did not request a CDP hearing.  The CDP notice meets one of the prerequisites for making a referral to the State Department.

At the time of the case, the State Department had not taken any action regarding Mr. Adams’ passport; however, he reported that he had lost his passport and intended to file for a replacement.  He did make a request for a new passport while his Tax Court case was pending and received a response from the State Department alerting him that the IRS had certified his liability as seriously delinquent and he needed to work out the tax issue with the IRS before it would move forward on issuing a new passport.

The Tax Court described its role in a passport revocation case drawing from its prior case law:

Section 7345(e)(1) permits a taxpayer who has been certified as having a seriously delinquent tax debt to petition this Court to determine “whether the certification was erroneous or whether the [IRS] has failed to reverse the certification.” Our jurisdiction in reviewing certifications of seriously delinquent tax debts is set forth in section 7345(e)(1). If we find that a certification was erroneous, we “may order the Secretary [of the Treasury] to notify the Secretary of State that such certification was erroneous.” I.R.C. § 7345(e)(2). The statute specifies no other form of relief that we may grant. Ruesch v. Commissioner, 25 F.4th 67, 70 (2d Cir. 2022), aff’g in part, vacating and remanding in part 154 T.C. 289 (2020).

The Court quickly agrees with the IRS that the facts here meet the basis for certification.  It knocks down the two arguments made by Mr. Adams.  First, he argued that the IRS lacked admissible evidence that the notices of deficiency giving rise to the assessments were mailed to his last known address.  Second, he argued that the taking of his passport is unconstitutional because it violates his right to international travel.

The Court notes that his first challenge could be read as a substantive challenge to the liabilities.  The Tax Court had previously answered this question in Ruesch v. Commissioner, 154 T.C. 289 (2020); however, that opinion was affirmed in part and vacated in part because of mootness at 25 F.4th 67 (2nd Cir. 2022).  So, the Court goes into an analysis of what happens to an opinion when a judgment is vacated.  It notes that vacature “deprives the underlying opinion of any precedential effect.”  Nonetheless, the vacated opinion can still provide value.  The Court states:

Although an opinion issued in connection with a vacated judgment retains no precedential effect, if the judgment is vacated for reasons unrelated to the opinion’s analysis of an issue, nothing precludes a future court from considering that analysis as persuasive authority. To illustrate, in Seminole Nursing Home, Inc. v. Commissioner, 12 F.4th 1150 (10th Cir. 2021), aff’g T.C. Memo. 2017-102, the U.S. Court of Appeals for the Tenth Circuit recently accepted our Court’s reliance on a previous decision, Lindsay Manor Nursing Home, Inc. v. Commissioner, 148 T.C. 235 (2017), vacated on other grounds, 725 F. App’x 713 (10th Cir. 2018), that had been vacated by the Tenth Circuit for mootness. Explaining its rationale, the Tenth Circuit stated: “[W]e vacated [the Tax Court’s] ruling only because the case had been moot at the time of the ruling. . . . It was hardly an abuse of discretion for the Tax Court to continue to adopt that court’s prior reasoning when no higher court had cast doubt on that reasoning.” Seminole Nursing Home, Inc. v. Commissioner, 12 F.4th at 1160. for the Tax Court to continue to adopt that court’s prior reasoning when no higher court had cast doubt on that reasoning.” Seminole Nursing Home, Inc. v. Commissioner, 12 F.4th at 1160.

The Ruesch opinion was vacated because of mootness similar to the opinion in Lindsay Manor.  So, the Tax Court readopts its opinion in Ruesch.  This means that that Tax Court’s position is that it lacks the ability to redetermine the amount of a taxpayer’s liability.  The readoption of the reasoning in Ruesch, a precedential opinion, is undoubtedly the reason for making the Adams case precedential.  It’s no surprise the Court would readopt its prior position and the opinion provides a useful analysis of what to expect when a Tax Court precedential opinion is vacated at the circuit level for reasons having nothing to do with the underlying analysis.

Because the Court seeks to give the pro se taxpayer the benefit of possible arguments he makes, it looks at another possible facet of his attack on the underlying assessment.  It interprets his argument as stating that the underlying liabilities were not assessed and notes that liabilities must be assessed before the IRS can move forward with passport revocation.  It further refines the argument of Mr. Adams to be that although the IRS did take the steps to record his liabilities on its books, viz., to assess the liabilities, it did so wrongfully because it failed to take the necessary steps make the assessments.  The Court finds that it lacks jurisdiction to consider the correctness of the assessments.  It can merely confirm that the assessments existed at the time of the passport revocation referral.  It notes that he had numerous opportunities to contest the validity of the assessments and passed on those opportunities.  It finds that IRC 7345 does not provide another opportunity for challenging whether the assessments were properly made.

The Court then turns to his constitutional argument in which he urges the Court to reconsider its opinion in Rowen v. Commissioner, 156 T.C. 101 (2021) which held that IRC 7345 authorizes the IRS to send a revocation letter to the State Department.  The IRS does not deprive a taxpayer of the right to international travel by sending the passport revocation letter.  The Tax Court takes the position that it lacks jurisdiction to review the State Department’s determination.

So, Mr. Adam’s gets no relief from his passport or assessment problems through this case.  The Adams case primarily restates the Tax Court’s prior positions regarding IRC 7345 and breaks little or no new ground regarding a petitioner’s right to relief.  If Mr. Adams wants relief, he needs to pay off the taxes or take one of the other steps that will cause the IRS to generate a letter to the State Department requesting it to restore his travel rights.  To end where we began, you can find a deeper discussion of those issues in Chapter 14A-17[2] of IRS Practice and Procedure.

Filed Under: Passport revocation

Out of Time: The Government (Mostly) Wins at the District Court in Govig

March 30, 2023 by 2 Comments

We welcome back previous guest blogger Susan C. Morse, who is the Angus G. Wynne Sr. Professor in Civil Jurisprudence and Associate Dean for Academic Affairs at the University of Texas at Austin School of Law.  Today’s post provides insight for those interested in challenging regulations and a cautionary tale if the regulations have been on the books for some time.  Keith

On March 23, Senior District Judge David G. Campbell of the District Court of Arizona decided Govig v. United States. He correctly dismissed as time-barred two administrative procedure claims because of 28 U.S.C. § 2401(a), the default six-year limitations period for suits against the federal government. As I’ve written in a forthcoming paper, Old Regs, this is the first time that a court has considered this six-year time bar for administrative procedure claims in a tax case. It shouldn’t be the last, given taxpayers’ interest in challenging the administrative procedure bona fides of Treasury and IRS actions taken decades ago and the government’s interest in raising the 6-year time bar as a defense. (Prior Procedurally Taxing coverage here.)

read more...

Govig involves penalties that the government proposed to impose on taxpayers for failing to report their use of an employee welfare benefit tax plan that is a “listed transaction” under Notice 2007-83. The taxpayers engaged in the listed transaction in 2015, and the government applied the Notice to them in 2019. The key time-bar question is when the “right of action first accrues” for purposes of 28 U.S.C. § 2401(a). The taxpayer said 2019. The government said 2007. The taxpayer won as to one claim, and the government as to two claims. Govig not only breaks new ground as the first case to time-bar an administrative procedure claim in tax, but also contributes a clear explanation and illustration of how to distinguish between earlier-accrual and later-accrual cases. 

Before reaching the limitations period question, Judge Campbell considered the effect of both Mann Construction Inc. v. United States and the Anti-Injunction Act. He held that Mann Construction did not produce a win for the plaintiffs, and that the Anti-Injunction Act did not produce a win for the government. These analyses are described briefly below before the discussion returns to the limitations period issue.

Mann Construction, a Sixth Circuit 2022 case authored by Chief Judge Jeffrey Sutton, concluded that the IRS could not apply Notice 2007-83 to a plaintiff because the Notice was not issued under the notice-and-comment provisions of the APA. The question for Judge Campbell in Govig was whether Mann Construction established a nationwide set-aside ruling that invalidated the application of the same Notice in Govig, even though Govig arose outside the Sixth Circuit. Judge Campbell held that Mann Construction did not mean that Notice 2007-83 was set aside for purposes of the Govig case. Judge Campbell quoted Judge Sutton’s concerns about nationwide injunctions drawn from a concurring opinion in another case, where Sutton wrote that the “set aside” language of APA § 706(2) was ambiguous and that Sutton “would be inclined to stand by the long understood view of equity – that courts issue judgments that bind the parties in each case over whom they have personal jurisdiction.”

The Anti-Injunction Act bars many tax claims related to assessment and collection, and the government argued that it barred various claims in Govig. But Judge Campbell concluded that the Anti-Injunction Act does not block the plaintiffs from challenging reporting requirements far removed from the process of tax assessment and collection, particularly where criminal penalties are possible. This follows the logic of the 2021 Supreme Court case CIC Services v. IRS and reaches a result consistent with decisions in the First and Sixth Circuits. Judge Campbell concluded that the Anti-Injunction Act barred only one claim brought in Govig, which related to a claim for refund of tax penalties.

Judge Campbell then proceeded to analyze the limitations period issue. Perhaps he covered it last rather than first because the Ninth Circuit’s view is that 28 U.S.C. § 2401(a) is not jurisdictional. The D.C. and Sixth Circuits also hold the non-jurisdictional view, based on their interpretation of the Supreme Court’s Irwin v. Department of Veterans’ Affairs and United States v. Kwai Fun Wong precedents. The non-jurisdictional view is probably the better view, although the Fifth Circuit disagrees. If 28 U.S.C. § 2401(a) is not jurisdictional, as in the Ninth Circuit, then a court is not required to raise it sua sponte and the government may waive it. Govig, notably, is the first tax / administrative procedure case in which the government raised (rather than waiving) the six-year time bar as a defense.

The Govig court correctly explained the “two accrual rules for APA claims” in the Ninth Circuit. The first rule comes from Shiny Rock Mining Corp. v. United States, a 1990 case:  

[I]f a claim challenges the procedures the agency used in issuing the rule or the policy behind the rule, the claim accrues when the rule is issued.

The second rule comes from Wind River Mining Corp. v. United States, a 1991 case:

[A] plaintiff may challenge the substance of an agency rule as exceeding statutory or constitutional authority by bringing an APA claim within six years of the agency’s application of the rule to the plaintiff.

Together, these cases are known as the Wind River doctrine: 28 U.S.C. § 2401(a) accrues at the time of rulemaking for claims relating to procedure contemporaneous with rulemaking, but accrues later, at the time the rule is applied, for claims that the substance of agency rulemaking violates the Constitution or exceeds the bounds of the authorizing statute. In addition to the Ninth Circuit, the Second, Fourth, Fifth, Sixth, Eleventh, and Federal Circuits have also endorsed the Wind River doctrine. The D.C. Circuit and the Supreme Court, however, have not squarely addressed the time-of-accrual issue.

Judge Campbell’s cogent restatement of the Wind River doctrine supported his clean application of the time-bar defense to three claims in Govig:

First, the plaintiffs claimed that the IRS violated the notice-and-comment requirements of APA § 553 when it issued Notice 2007-83. This claim that the IRS did not use notice-and-comment procedure is a classic claim within the first category, i.e., that an agency did not follow proper procedure in issuing a rule. Thus, it accrued in 2007 and was time-barred.

Second, the plaintiffs claimed that the IRS Notice exceeded the authority of IRC § 6707A , which asked the IRS to identify “listed transactions,” ”because the notice failed to describe the listed transactions with the specificity required by the statute.” Judge Campbell held that this second claim amounted to a claim that the IRS exceeded the authority of the authorizing statute, like the ultra vires question presented by Wind River, where a plaintiff argued that a regulation was invalid because it applied to an area that was not “roadless” as required by the substantive statute. Thus, the second claim accrued in 2019 and was not time-barred.

Third, the plaintiffs claimed that the IRS acted arbitrarily and capriciously in violation of APA § 706(2)(A) because it did not give “adequate reasons” for the Notice and did not solicit public comments. This claim that the IRS acted in an arbitrary and capricious manner was also a rulemaking-contemporaneous procedural claim, because the alleged lack of reason-giving related to the procedures used at the time the agency issued the rule. Thus, the third claim accrued in 2007 and was time-barred.

The district court was not swayed by the fact that the Govig taxpayers did not have standing to sue in 2007. It acknowledged that the limitations period may run against a plaintiff for administrative procedure claims even before the plaintiff is injured. This at first may seem strange, but it is the only way that there can be an effective time limit on challenges to the procedures the agency used in issuing the rule. Otherwise, a plaintiff could always come into existence at a later date, acquire standing at that later date, and raise the stale administrative procedure question. If the rule violates the authorizing statute or the Constitution, that is different, because these are controlling forms of law that offer continued requirements or protections. Administrative procedure, in contrast, offers a general public right to participate in decisionmaking when that decisionmaking occurs. It relates to a particular moment in time – the moment when the agency issues a rule.

The Govig court also considered and rejected the plaintiffs’ equitable tolling claim. This exception provides the main avenue to relief from 28 U.S.C. § 2401(a). (Equitable estoppel is another exception sometimes raised, but it apparently was not in this case.) The Govig opinion explains that “because Plaintiffs did not diligently pursue their procedural challenges, they are not entitled to equitable tolling.” This is a good start, although it does not consider another important equity factor, which has to do with the defendant rather than the plaintiff. The court might have exercised its equity muscles more thoroughly.

For instance, the court could have used the Supreme Court’s two-part disjunctive test for equitable tolling in Irwin: 

We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. [Emphasis added]

The Govig plaintiffs meet neither part of this disjunctive test. They did not file any pleading (or take any other relevant action) during the statutory period, which expired in 2013. And also, the government did not engage in any misconduct which would have delayed these plaintiffs’ ability to file within the statutory period. Equitable tolling has been allowed, for example, when the government fraudulently concealed facts or when a government office required to furnish a plaintiff with a form for filing a claim failed to provide the form. In contrast, in Govig, the government did not block or delay the plaintiffs’ ability to bring their administrative procedure challenge.

The district court’s careful application of Ninth Circuit precedent meant that it did not have to deconstruct the Wind River doctrine’s conclusion that 28 U.S.C. § 2401(a)’s reference to “first accrues” means the time when a rule is issued for administrative procedure claims. But if future courts – including the Supreme Court – consider this issue from a statutory interpretation perspective, they should conclude that a careful textual reading of the statute supports the Wind River reading, as explained further here. Judge Campbell’s holding correctly time bars the non-ultra vires APA claims in Govig.

Filed Under: Administrative Procedure Act (APA), Statutes of Limitation Tagged With:

Simplicity Lost

March 29, 2023 by Leave a Comment

We welcome guest bloggers Josh Blank and Leigh Osofsky who write today about their article on tax law simplification in the Pittsburgh Tax Review. 

Joshua Blank is a Professor of Law and the Faculty Director of Strategic Initiatives at the University of California, Irvine School of Law.  Prior to joining UCI Law in 2018, Blank was a member of the full-time faculty of NYU School of Law, where he served as Professor of Tax Law, Vice Dean for Technology-Enhanced Education, and Faculty Director of its Graduate Tax Program.  Blank’s scholarship focuses on tax administration and compliance, taxpayer privacy, and taxation of business entities.  He is currently working on two books under contract with Cambridge University Press.  

Leigh Osofsky is the William D. Spry III Distinguished Professor of Law at University of North Carolina School of Law. Osofsky has previously served as a tax lawyer in private practice and a clerk on the Second Circuit Court of Appeals, and has previously taught tax law at NYU School of Law and the University of Miami School of Law.  Osofsky’s scholarship focuses on tax policy, administrative law, and how federal agencies communicate complex legal regimes. 

This is a great pairing of tax scholars who found a forgotten provision of RRA 98 and remind us of one of the important goals of that legislation that got lost along the way.  Perhaps their article will rekindle both Congressional and administrative interest in this important topic and set us again on a path toward better tax administration both in legislation and implementation.  Keith

Scholars, policymakers, and taxpayers themselves often cite complexity as one of the worst problems plaguing the tax system. Complaints include, among other things, that the Internal Revenue Code (the “Code”) is too long, too difficult to read, very complicated, and, often, unclear.  Among the many costs of tax complexity are (1) billions of hours of paperwork and stress that taxpayers face each year, (2) monetary costs that taxpayers bear when they hire advisors and purchase software to report their tax liability and file their tax returns, (3) difficulty that taxpayers encounter when attempting to claim tax credits and other benefits, and (4) challenges the IRS confronts when attempting to deter tax avoidance and evasion opportunities that tax complexity often creates.

read more...

As we have discussed extensively, one way in which the IRS manages tax law complexity is through a phenomenon we have called “simplexity” – the presentation of complex law to the public as if it is simple, without actual simplification of the underlying tax law. The IRS relies on simplexity in many plain language explanations of the tax law, such as IRS Publications and automated legal guidance (in the form of the Interactive Tax Assistant). Simplexity enables the IRS to explain the tax law in ways the public is more likely to understand, thereby fulfilling the IRS’s duty to help taxpayers comply with the tax law. However, simplexity has its own problems, including oversimplifying the tax law, and, ultimately creating a two-tier system, whereby sophisticated parties enjoy benefits from the underlying, complex law, which benefits are not available to the general public.

What is often missed in the discussion of the complexity of the tax law (and the simplexity that flows from it) is that the Internal Revenue Service Restructuring and Reform Act of 1998 (“RRA 98”) embraced tax simplification as a real possibility. While typically better known for its structural changes to the IRS, RRA 98 also made some real promises regarding tax law simplification. However, as we detail in our article in the Pittsburgh Tax Review symposium on the 25th anniversary of RRA 98, this tax simplicity promise faded over time.  We uncover the history of the tax simplicity promise of RRA 98, and how this promise was lost over time. We draw out lessons we might take away for future tax simplicity efforts.

RRA 98 placed burdens on the IRS, JCT, and Congress itself, in furtherance of its tax simplicity promise. RRA 98 required the IRS to analyze the sources of complexity in federal tax law, and annually report its analysis to Congress. Congress also tasked JCT with providing Congress with regular reports on the state of the federal tax system. Moreover, JCT was required to provide Congress with a tax complexity analysis for proposed tax legislation. Indeed, RRA 98 provided that it would not be in order for Congress to consider tax legislation that was not subject to the required tax complexity analysis. Congress also placed some obligations on itself. RRA 98 provided that, going forward, the tax legislative process should be informed by front-line technical experts at the IRS. Together, these provisions indicated a serious commitment of resources to the project of tax law simplification.

Initially, the IRS and JCT made significant efforts to comply with RRA 98’s simplification provisions. In June 2000, the IRS provided the first tax law complexity report to Congress, and Congress held a hearing on the matter. In its report, the IRS identified systemic problems with the tax law that yielded tax law complexity, and identified specific ways to reduce tax law complexity. With both this report, and another that followed in 2002, the IRS took seriously its potential role in reducing tax law complexity, and Congress members heralded the work as some of the most important to follow from RRA 98. JCT likewise issued a study of the federal tax system in 2001, which offered recommendations for simplification. The over 1,000-page report represented a herculean effort on JCT’s part.

However, these efforts soon proved to be the apex of compliance with RRA 98’s simplification promise. After these reports, the IRS failed to fulfill its annual tax complexity reporting obligation, though it argued that the objective was achieved in other ways. JCT also never again undertook anywhere near as careful an examination of the complexity of the federal tax system. JCT has generally provided tax complexity analysis of proposed tax legislation. However, the quality and utility of this analysis has been inconsistent. As evident from the recent Tax Cuts and Jobs Act of 2017, JCT often provides analysis that is cursory, and sometimes misses entirely important tax complexity costs of proposed legislation. As for the involvement of IRS officials in the legislative process, the opposite appears to have been the trend since RRA 98, with the IRS having less of a seat at the legislative table as time has passed since 1998.

A fair amount of the blame for the loss of RRA 98’s simplification efforts can be laid at Congress’s feet. Congress failed to provide the funding needed for the IRS and JCT to sustain its tax complexity reporting over time (while also fulfilling all their other obligations). Congress also failed to take meaningful action on the early reports, or hold the IRS and JCT accountable for not following through in later years, undermining incentives to continue with them. Congress also structured the legislative process in a way that often excluded the possibility of meaningful input from IRS officials, and made it difficult for JCT to provide robust tax complexity analysis on proposed legislation. In this regard, the story regarding the lost simplification efforts can be seen as another iteration of a common perception of RRA 98: a congressional scapegoating of the IRS for tax system problems beyond the IRS’s own making.

However, there are also important lessons specific to RRA 98’s tax simplification promise, which can inform future simplification efforts. One big takeaway is that tax simplification cannot be achieved through a mere promise at a moment in time, but rather must be sustained, through dedicated congressional will, over time. Congress’s promises to involve the IRS in the legislative process, for instance, were not enough to ensure this outcome, especially as political headwinds changed. Instead, Congress may have to regularize the IRS’s involvement in the legislative process, including through potential, formal reporting requirements. Congress would also have to be willing to actually give the IRS and JCT the time they need to provide thorough complexity analysis of tax legislation, and would have to be willing to respond to it with real legislative change. Congress may consider other, more broad-based efforts, such as formalizing the Code, to make it easier for the general public to apply the tax law.  Redoubling efforts and adopting some of these reforms may be able to recover some of the simplicity lost with the abandonment of RRA 98’s tax complexity commitments.

In short, our article offers both some hope and some caution about efforts to simplify the tax law. The RRA 98 story is a hopeful one, in that it shows a moment in time in which there was real, political will to prioritize simplification in the creation and administration of the tax law. It also serves as a cautionary tale in how easy it is for legislative and regulatory actors to abandon simplification efforts as time moves on, and other priorities take precedence. The RRA 98 story thus illustrates the combination of political will, and sustained, concrete efforts that will be necessary to yield real tax law simplification.

Filed Under: Pittsburgh Tax Review Tagged With: ,

Nominal Refund Claims

March 28, 2023 by 3 Comments

Chief Counsel’s office issued Program Manger Technical Assistance (PMTA) 2023-001 to address the issue of a $1 claim filed in order to try to protect the statute of limitations for filing claims.  The advice concludes that the $1 or any nominal claim will not protect the taxpayer but it also distinguishes nominal claims from protective claims.  The distinction can be quite important.

The PMTA comes from an expert in Chief Counsel’s National Office and is written to the Director (Examination – Specialty Policy) person in the headquarters office of the IRS.  In this case the author (aka the expert) has a narrow practice within the Procedure and Administration Division of Chief Counsel.  The author will generally field all questions and appeal decisions within the narrow scope of their duties.  So, the person brings significant knowledge to the question.  Chief Counsel’s Office has made this type of advice public for about 25 years.  Because it does not receive a high level of review, this advice does not bind the IRS.  Still, it provides excellent insight into the thinking of the IRS on the specific issue addressed and the likely litigating position should the issue move forward.

read more...

The question coming from the IRS to Chief Counsel is:

whether the Service may allow and make a refund of an overpayment of excise taxes requested on a claim for refund that is filed after the section 6511(a) claim-filing period if, shortly before the period elapsed, the taxpayer had filed an identical request for only $1 or for some other nominal amount.

The advice notes that the IRS cannot make an administrative refund nor may the taxpayer successfully bring a suit to recover a refund if the claim filing period has lapsed before the taxpayer files the claim.  Citing a 90-year-old case, the opinion states that a claim that calculates the amount of the overpayment claimed by the taxpayer for the first time that is filed after the time for filing a claim would not be considered.

A taxpayer filing before the deadline with a less than fulsome claim wants the ability to supplement the timely filed document after the deadline for filing a claim.  The advice provides that:

A late-filed claim will not be treated as an amendment or “supplement” to an original claim if it would require the investigation of new matters that would not have been disclosed by the investigation of the original claim.

Providing further explanation of this statement, the PMTA states that:

a late-filed claim that alleges a large increase from an earlier mere nominal request would represent the first formal indication of the ballpark in which the controversy lies. Such a nominal request, therefore, would not provide the Service the opportunity to make an informed decision regarding where to invest its examination resources (e.g., into examining the support for the amount of the alleged overpayment, as opposed to the merits of a legal assertion or argument). And the Service cannot be said to be on notice with respect to a claim for refund or credit until it is in a position to make such an informed decision.

Essentially, the PMTA takes the position that putting down a nominal amount does not create the type of informal claim a taxpayer can later fix.  The timely claim must give the IRS a fair change to know the problem for which the taxpayer seeks a refund.  The PMTA cites to the “substantial variance” rule as a reason for its position.  Variance in the refund setting is all about providing the IRS with the opportunity to administratively determine the correctness of a claim – an exhaustion of administrative remedies doctrine issue.

Having laid down the strict rule, the PMTA then, however, begins to offer hope in certain situations.  In this section of hope, it first describes a situation in which and incomplete or nominal claim might start a conversation:

For example, if the calculation of an overpayment is burdensome or expensive, the Service may allow a taxpayer initially to file a request that might not otherwise be treated as a complete claim.3 But any consideration of the request would be at the discretion of the Service and the Service may reject such a request as being unprocessible as a claim. Such a request will not preserve the taxpayer’s right to sue for refund if the matter becomes controversial or otherwise remains unresolved. To the extent the Service does not both allow and make a refund before the section 6511(a) claim-filing period elapses, the above-referenced statutes prohibit the Service from doing so afterwards and prohibit the controversy from proceeding to suit (except, perhaps, merely to the extent of the nominally claimed amount). This is true regardless of whether the denial or mere Service inaction is because the Service disagrees with the position, an interpretation of law, or with the alleged facts. It also would be true when a denial has nothing to do with the merits of the claim, but instead is issued solely because the Service treats the request as being a defective and non-processible claim. It is not the case that a taxpayer has the absolute right to file a $1 claim, or a “$1-plus” claim, and simply refrain from calculating the correct amount of an alleged overpayment, to then later be afforded administrative or litigation refund rights.

The PMTA then discusses those situations in which the claimed overpayment cannot be currently calculated.  It describes this situation as one involving protective claims.

The concept of a “protective” claim being sufficient to satisfy the section 6511(a) claim-filing period, to allow for a complete and formal claim at the end of some existing, known, and identified contingency, is established by case law. See United States v. Kales, 314 U.S. 186 (1941).

Protective claims resulted from judicial doctrine created by the courts to avoid situations in which taxpayers faced an almost impossible situation in trying to timely submit a meaningful claim.  According to the PMTA the protective claim doctrine helps courts in interpreting the meaning of the term “claim” in certain situations.

the satisfaction of the contingency after the section 6511(a) claim-filing period elapses is necessary to enable this later-in-time-determination of what the overpayment had been as of the close of the tax period at issue. Accordingly, in a situation in which the exact amount of an alleged overpayment is not subject to precise determination, a taxpayer may both satisfy the section 7422 “duly-filed” requirement, and also avoid any section 6514 considerations, by timely-filing a “protective” claim.

A protective claim should satisfy four elements:

(1) must have a written component; (2) must identify and describe the contingencies affecting the claim; (3) must be sufficiently clear and definite to alert the Service as to the essential nature of the claim; and (4) must identify a specific year or years for which a refund is sought.

In filing a protective claim, the taxpayer should describe the right to the overpayment clearly and explain the contingency that exists which makes the determination of the precise amount impossible.

So, timely filed claims with a nominal dollar amount can be amended after the expiration of the statute of limitations if the taxpayer can demonstrate why the amount cannot be calculated at the time of the submission of the claim.  If the taxpayer cannot demonstrate why the amount cannot be calculated, the taxpayer had better do their best to timely file a claim and put in an amount that as closely as possible calculates the claimed overpayment.  The PMTA sheds light on the times when a nominal claim will work and when it will not but the line between the two situations will not always be a clear line.

Filed Under: refund claim

Jurisdiction of District Court in Innocent Spouse Case

March 27, 2023 by 2 Comments

On March 22, 2023, in the case of Viktoriya Korleshchuk-Petrie v. United States, Dk. No. 21-cv-40125-DHH (D. Mass.), the court denied the Department of Justice (DOJ) Tax Division trial section’s dual motions to dismiss the case for LOJ under FRCP 12(b)(1) and for failure to state a claim under FRCP 12(b)(6). The court found her complaint contained sufficient allegations to survive a motion to dismiss for failure to state a claim. In its 12(b)(1) motion, the DOJ argued that the district court lacked jurisdiction to hear a refund suit filed in an innocent spouse case brought seeking relief pursuant to IRC 6015(f). Almost four years ago, the U.S. District Court for the District of Oregon rejected the same DOJ jurisdictional argument. The court’s decision agrees with Hockin v. U.S., 400 F. Supp. 3d 1085 (D. Or. 2019), but conflicts with Chandler v. U.S., 338 F. Supp. 3d 592 (N.D. Tex. 2018). Right now, there is no controlling appellate authority on this issue, but there is some dicta. I mention that this matter was brought by the trial section of DOJ since that group of DOJ Tax Section has not aligned with the Appellate Section in the arguments it has made on this issue. See discussion here.

DOJ Tax Division trial section now takes the position in this case that a person seeking a refund based on innocent spouse relief could bring a refund suit if the relief was based on 6015(b) or (c) but not on (f).  This seems to be a refinement of the trial section’s prior position.  The DOJ brief is here.

 Ms. Korleshchuk-Petrie was represented by Audrey Patten, the director of the Tax Clinic at the Legal Services Center of Harvard Law School, and Fritz Schemel a 2L.  Their brief can be found here. 

read more...

Ms. Korleshchuk-Petrie moved to the US in 2007 and married Mr. Petrie.  They had two children.  He had numerous problems as a husband as well as legal problems that landed him in prison for selling controlled substances.  She obtained a restraining order against him and eventually a divorce.  The IRS made changes to their 2007 joint return.  She filed for innocent spouse relief in the past and did not file a Tax Court petition when the IRS denied her relief.  The IRS offset her refunds which fully paid the liability.  She timely filed a claim for refund.  The IRS did not respond.  She timely filed suit for refund after waiting six months from the time of her claim.

DOJ seeks to dismiss her case based on lack of jurisdiction because of a lack of waiver of sovereign immunity for a suit seeking a refund pursuant to innocent spouse relief based on 6015(f).  It argues that unlike 6015(b) and (c) which provide mandatory relief if the statutory provisions are met, the relief under 6015(f) is discretionary and therefore the exercise of discretion by the IRS in denying relief is not subject to judicial review by the district court but only by the Tax Court.

The fight initially centers on 28 USC 1346(a)(1) which provides:

The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: (1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.

The court states that the statute has three requirements.  First, the taxpayer must file a claim.  Second, the taxpayer must fully pay the tax and meet the Flora rule (even though Flora was a case involving deficiency proceedings having nothing to do with innocent spouse claims.)  Third, the claim must be timely.  The court finds there is no dispute that the three pre-conditions for bringing suit in district court were met.  So, it finds that she meets the plain language requirements for relief in the district court.  It states:

The Williams Court [United States v. Williams, 514 U.S. 527 (1995)] characterized 28 U.S.C. § 1346(a)(1) as “waiv[ing] the Government’s sovereign immunity from suit by authorizing federal courts to adjudicate ‘[any] civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected.’” Id. at 530. Indeed, after listing the categories of alleged bases for seeking a refund in district court, Congress added a basis for seeking a refund for a tax “in any manner wrongfully collected.” In sum, Congress appears to have captured virtually every permutation of a claim for a refund and, introducing its scope with the word, “any,” certainly excludes no particular class of refund claims.

The court then states:

I find that § 6015(f) fits comfortably within the plain meaning of 28 U.S.C. § 1346(a)(1), and hence that Congress has waived sovereign immunity for refund claims predicated on § 6015(f).

After finding that the plain meaning of the relevant statute supports allowing a person seeking a refund based on innocent spouse relief, the court then addresses the specific argument that court review is not allowed because relief under 6015(f) is discretionary. Here it says:

The Government’s argument that discretionary relief determinations are insulated from “wrongfulness” under 28 U.S.C. § 1346(a)(1) is further undermined by its concession that § 6015(e) provides for review of § 6015(f) determinations in the Tax Court. Certainly, the language of § 6015(e) supports the Government’s position that the Tax Court can review § 6015(f) determinations. However, the fact of a route to review of a § 6015(f) relief denial in any forum necessarily contemplates that the Secretary’s equitable determination may not be correct.

So, the court finds that district court’s have jurisdiction to hear refund suits for innocent spouse relief even if the basis for the requested relief is 6015(f). 

The arguments against jurisdiction by DOJ Tax Division trial section do not stop there.  It next argues that Congress granted the Tax Court exclusive jurisdiction in 6015(f) cases citing to 6015(e).  The court rejects this argument as well finding that 6015(e) pertains only to the Tax Court jurisdiction over 6015 claims but does not indicate that the Tax Court’s jurisdiction is exclusive.

to the precise contrary, § 6015(e)(1)(A) provides that, “[i]n addition to any other remedy provided by law, the individual may petition the Tax Court … to determine the appropriate [innocent spouse] relief available[.]”

Again, the DOJ Tax Division trial section makes a very nuanced argument concerning jurisdiction in 6015(f) cases:

The Government argues that under the plain terms of § 6015(e), refund claims cannot be premised on § 6015(f) where, as here, the IRS collects a tax deficiency “after denial of relief that is not appealed to the Tax Court[.]” [Dkt. No. 18, p. 8]. The Government suggests that under § 6015(e)(3), the one “discrete instance” in which a district court has jurisdiction to adjudicate a refund claim premised on § 6015(f) relief is when “either spouse commences a refund suit [in a district court] implicating the same years involved in the innocent-spouse petition” appealed to the Tax Court. [Id. at p. 13]. In that specific instance alone, the “Tax Court shall yield jurisdiction over a timely filed petition for review of an IRS innocent-spouse relief determination to a district court.” [Id.].

The court rejects this argument finding that the statute does not state the Tax Court’s jurisdiction is exclusive and it cites to the Tax Court’s decision in the case of Coggin v. Commissioner, 157 T.C. 144, 151-53 (2021) which interpreted the meaning of 6015(e) and stated:

The text [of § 6015(e)(3)] is not explicit about the timing or sequence requirement (if any) as to a refund suit and filing of an innocent spouse relief claim in the Tax Court. Section 6015(e)(3) could be read to mean that this Court’s jurisdictional limitation applies only where a petition is filed before a refund claim. However, we do not interpret the statute as having such a requirement or as compelling us to give any weight to the sequence of Ms. Coggin’s actions with respect to her claims.

The DOJ Tax Division trial section then made a legislative history argument which the court also rejected but to which it devotes a fair amount of discussion.  The final argument centered on interest abatement cases where the Supreme Court, in Hinck v. United States, 550 U.S. 501 (2007) has held that the Tax Court has sole jurisdiction to hear these cases.  Because the IRS has discretion to abate interest, the argument sought to tie the discretionary relief in 6015(f) to the same result.  The court rejected this argument as well finding that the two provisions were distinct.

So, the case moves forward.  The innocent spouse claim under 6015(f) must still be won.  It would be interesting to be in the Room of Lies when/if the trial section seeks to convince the Appellate Section to appeal its position in a setting in which the Appellate Section tells circuit courts that taxpayers seeking innocent spouse relief can full pay and bring a refund suit.

Filed Under: Innocent Spouse

Seeking a Discharge of the Federal Tax Lien

March 24, 2023 by 4 Comments

The case of Long v. United States, Dk. No. 2:22-cv-00176 (D. Utah 2023) examines the request for a discharge of the federal tax lien and declines to provide the relief requested. The factual background for the request for relief does not arise with great frequency but comes up often enough and always makes me feel bad for the spouse stuck with the tax liability of their ex-spouse because ex-spouse’s unpaid taxes have caused a lien to arise and attach to property now owned by the non-liable spouse who thought they had extricated themselves from their former partner’s financial shortcomings.

read more...

Ms. Long filed married filing separate returns while she was married.  That suggests she had some insight into her former husband’s finances.  She paid her taxes and he did not.  They owned some real estate jointly.  The IRS filed a notice of federal tax lien (NFTL) against Mr. Long in the county where the property was located.  The filing of the NFTL perfected the lien interest of the IRS.

Mr. and Mrs. Long divorced at some point after the filing of the NFTL and she was awarded the property through a divorce decree.  The opinion does not say what she knew or did not know about the NFTL at the time of the award.  I hope that her divorce attorney, if she had one, would have helped her to understand the impact of the NFTL on the value of the property she received but that’s not clear.

After receiving the property, she requested a discharge of the lien; the IRS turned her down and she brought suit.

It’s worth taking a moment to digress from the case to discuss discharge in order to understand what she requested of the IRS.  Many practitioners mix the concept of release and discharge when thinking about liens.  In the context of the federal tax liens the two terms have distinct meaning.  A release of the federal tax lien signifies satisfaction of the liability or unenforceability of the liability usually because of the expiration of the statute of limitations.  Section 6325(a) governs release.  Ms. Long did not seek a release and she made the right choice of remedies in requesting a discharge.

A person seeking a discharge of a federal tax lien does not need to show that the taxpayer satisfied the tax liability giving rise to the lien or that the tax liability has become unenforceable. The IRS grants a discharge when it has a lien against all of taxpayer’s property but the taxpayer, or a third party, seeks to move the lien from a specific piece of the property encumbered by the lien.  Here, Ms. Long sought to remove, or discharge, the federal tax lien from the property she received as part of the divorce; however, granting her a discharge with respect to that property would not remove, or release, the federal tax lien from all of Mr. Long’s property.

In deciding whether to grant a discharge the IRS looks to IRC 6325(b).  That section provides a few paths to discharge.  The most common path to discharge results when the applicant fully pays the IRS its lien interest in the property or shows that the IRS has no lien interest.  This path to relief is set out in IRC 6325(b)(2)(A) [paying the IRS its interest in the property] and (B) [showing the IRS it has no lien interest in the property] and happens routinely in the sale of real estate.  When someone whose property is encumbered by the federal tax lien which has been perfected by an NFTL seeks to sell, the seller requests a discharge so that the purchaser can obtain a clean title.  At closing, the closing agent calculates the value of the tax lien in the property, pays the IRS and the IRS issues a discharge.  This happens multiple times every day.

Ms. Long chose a harder path to discharge since she did not offer to pay the IRS the value of its lien interest in the property.  She asked the IRS to remove the lien because the property she received in the divorce did not have value for the IRS.  The opinion does not talk about the value of the IRS lien interest in the property.  I strongly suspect the property had some equity to which the tax lien attached.  If it did the IRS would turn down a discharge request submitted without payment of that value.  She looked to the language of the statute that said the IRS “may” issue a discharge, but it doesn’t issue a discharge where value exists unless the party requesting the discharge remits an amount equal to that value.

Another possible path to discharge exists which Ms. Long did not pursue.  Under IRC 6323(b)(1) the IRS may discharge property if the taxpayer’s remaining property has at least double the value of the outstanding liability.  She didn’t choose this path because, I suspect, Mr. Long’s remaining property did not provide the IRS with the cushion required by the statute.

Having failed to convince the IRS to administratively discharge the lien from her property and no doubt being quite displeased with owning property encumbered by a lien for her ex spouse’s tax liability which she probably suspected he would not pay, she brought suit against the IRS seeking a court to order the IRS to discharge the lien.  This suit seems like a bad idea to me, and it did to the court as well.  I feel sorry for Ms. Long because she did not receive what she hoped for out of the divorce settlement; however, a transfer of this type simply doesn’t remove the lien.

She initially brought a quiet title action under 28 USC 2410 in which she also sought damages from the IRS under IRC 7432 for refusing to discharge the lien administratively.  The IRS moved to dismiss her claim.  The court agreed with the IRS since the federal tax lien attached to the property and nothing in IRC 6325(b) required the IRS to issue a discharge.  With respect to the claim for damages, the court said she could not show the refusal was unlawful.  Aside from the fact that the IRS refusal to discharge the lien appears correct on these facts, IRC 7432 does not apply in this situation.  It provides a basis for seeking damages if the IRS fails to release a lien.  It provides no relief for failure to discharge a lien.

After that loss she decided to back up and try again.  She filed a motion to amend her complaint and seek a declaratory judgment.  She wanted the court to order that the liens had no value.  The IRS objected to the amendment because the court lacked subject matter jurisdiction and because she failed to state a claim on which relief could be granted.  The court denied her request to amend as futile explaining that it lacked subject matter jurisdiction over her request.

The case demonstrates the need to understand the true value of property you receive in divorce.  It also shows the near impossibility of trying to force the IRS to discharge a lien under the no value provision of 6325(b) if value exists or if the IRS perceives that value exists.  Ms. Long doesn’t have any good options here.  She can wait out the statute of limitations on collection.  If the real property at issue is her home, a good chance exists that the IRS will not foreclose its lien interest in the property.  If she needs to sell the property before the expiration of the collection statute, the discharge provisions will come back into play since the purchaser will want clear title.  She will receive from the sale the equity in the property after payment of the value of the IRS lien interest.

Filed Under: Federal Tax Lien

Tax Court Rule Changes

March 23, 2023 by 1 Comment

On March 20, 2023, about a year after it published proposed changes to its Rules, the Tax Court published changes to its Rules and much more.  In addition to publishing the updated Rules, it published a discussion of the comments it received in a similar style to publishing comments to a proposed regulation.  This discussion allows commentors, and other interested parties, to better understand the Court’s thinking about the comments and how they influenced, or failed to influence, the changes to the Rules.  On the same web page, it also published complete versions of the eight submitted comments to this Rule change proposal as well as comments submitted in response to proposed Rule changes going back to 2015. 

The collection of past comments as well as the Court’s discussion of the impact of comments should aid future parties seeking to provide meaningful comments to the Court.  The Court also provided a Guide to Rules Amendments and Notes for persons interested in looking at changes to the Rules over time.

All in all, the package of information accompanying the new Rules does an excellent job setting out the Court’s thinking as well as providing resources to parties interested in understanding how the Court reached its conclusions.  You can find the updated version of the Rules here.  Each Rule is available on that page as a separate PDF.  In this post I will discuss some of the new Rules and some of the comments the Court had about its thinking in adopting the new Rules. 

The post is long and the discussion only highlights three of the proposed changes that interested me the most.  The main take away from this post is that the new rules now exist and the Court’s thinking about the rules as well as the commentors suggestions regarding the changes are available through the links above.  The first of the three rules I discuss raises interesting questions resulting from electronic filing, the second continues my long standing complaint about access to the Court’s records and the third addresses the new amicus provisions.

read more...

The first of the revised rules I will discuss is Rule 25.  This rule addresses the computation of time for filing a document with the Court including a petition.  The pertinent part of the rule I will discuss provides:

RULE 25. COMPUTATION OF TIME

(a) Computing Time: The following Rules apply in computing any time period specified in these rules, in any Court order, or in any statute that does not specify a method of computing time.
(1) Period Stated in Days: If a period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2) Inaccessibility of the Clerk’s Office: Unless the Court orders otherwise, if the Clerk’s Office is inaccessible on the last day of a filing period, the time for filing any paper other than a petition is
extended to the first accessible day that is not a Saturday, Sunday, or legal holiday. For the circumstances under which the period for filing a petition is tolled when a filing location is inaccessible, see Code section 7451(b).

The Tax Clinic at the Legal Services Center of Harvard commented on this rule expressing a desire for it to discuss what happens if/when the electronic filing system of the Court became unavailable.  It commented:

The Clinic has concerns about the operation of this rule if one or both of the methods of filing a petition become inaccessible.

How does the ability to electronically file petitions interact with physical accessibility to the Clerk’s office? What if a petitioner seeks to file their petition by an unauthorized delivery service or the person sends the petition by courier and the Court is closed due to snow requiring delay of delivery until after the last date to file. Does the fact that the petitioner could have filed electronically mean that the petition is filed late? Does accessibility now turn solely on electronic access?

What if the Court’s electronic access goes down for a portion of a day? How does lost access for a portion of a day impact the determination of accessibility? Does it only matter if the electronic access becomes unavailable at the end of the day leading up to and including 11:59 p.m. Eastern Time

Perhaps these comments provide only hypothetical problems discussed at a law school, but the introduction of electronic filing theoretically available to everyone all the time changes the nature of the timely filing discussion.

The Court’s response to the comments received regarding this change are:

As previously noted, in response to comments, the Court amended paragraph (d) of Rule 10 to include a cross-reference to the definition of “legal holiday” set forth in paragraph (a)(5) of Rule 25.

The Court received a comment inquiring whether and how the availability of and access to the Court’s electronic filing and case management system might impact questions regarding the physical inaccessibility of the Clerk’s Office on the last day of a filing period. The Court’s Rules of Practice and Procedure are not designed or intended to address every possible scenario. The Court will address any issues and disputes that might arise in connection with the application of new paragraph (a)(2) of Rule 25 through case law and similar guidance.

The Court adopted the amendments to Rule 25 as published.

Two recent cases regarding electronic filing and the timeliness of submissions highlight some of the issues that can arise in an electronic filing environment.  These two cases do not involve the electronic filing system “going down” but do point out some issues that arise as petitioners use that system to timely file their petitions.  The first case blogged here involved a California petitioner whose electronically filed petition arrived at the Tax Court two minutes past the Court’s 11:59 PM ET deadline.  The second case is just starting to get going in earnest.  On March 21, 2023 — for the third time in the last year in a Tax Court case — Judge Buch invited an amicus brief (more on that below) in the pro se case of Antwan Sanders, Dk. No. 25868-22.  (The order also, sua sponte, removed the “S” election from the case.)  In his order he attached the Court’s internal electronic file showing the petitioner’s attempt to file electronically and final success immediately after the deadline.  Thus begins the case specific application of the rules regarding electronic filing.  This will be an interesting case to watch.  It raises elements of equitable tolling which will come into play as the post-Hallmark/Boechler cases make their way through litigation but also raises stand alone issues of timeliness of electronically filed petitions.

RULE 27. PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT

The second of the revised rules I will discuss is Rule 27 regarding electronic access to Tax Court documents. The Court continues its practice of making it difficult to access public records.  Revised Rule 27 is available here.

The Tax Clinic at the Legal Services Center of Harvard commented:

The Clinic believes that the Court practice unnecessarily restricts access to public documents.

The rule continues a practice that makes it unnecessarily difficulty to access public information. Documents should be available electronically absent a good reason for preventing electronic access. The Court should provide a statement of its policy reasons for preventing the public access to public documents in a reasonable manner.

Rule 27(b)(2) describes public access at the courthouse. This access has been essentially unavailable for over two years but even when available is not something available to 99% of the populace. The rule does not explain the alternate method for obtaining records by calling the Court and ordering documents from the clerk’s office leaving anyone who reads the rule to think that the only way to obtain documents is by a personal visit which, at this time, is impossible.

The Court could adopt practices that would open most of its documents to easy public access over the internet. The Court’s failure to open most documents to access over the internet is difficult to explain solely based on privacy concerns as long as it declines to allow electronic access to entity documents which do not implicate privacy concerns. For a further discussion of concerns on this topic please see https://procedurallytaxing.com/what-information-should-the-tax-court-make-available-electronically-to-non-parties/ and the article cited therein entitled “Nonparty Remote Electronic Access to Tax Court Records.”

The pandemic has changed the way even persons in DC can access Tax Court records. The current system for calling and obtaining records contains some improvements over the prior system but is still somewhat clunky. In addition to making more documents electronically available, the Court might consider allowing requesters to fax in the request. That would avoid calling and leaving a VM message only to have someone from the clerk’s office respond to the call and leave a VM message with the requester and so on. A dedicated fax line or email address could make the intake process go smoother and avoid he problems inherent in relying on phones for communication.

The Court responded:

The Court received comments suggesting that the Court should expand remote electronic access to its docket records, including those of entities, which may implicate privacy concerns different from records of individual taxpayers. Although the Court continues to evaluate options for increased remote access to its docket records, Rule 27 reflects the Court’s current policy balancing the interest in protecting sensitive personal information against the public’s interest in access to the Court’s records.

Despite the Court’s efforts directing parties to protect sensitive personal information, in practice that type of information is routinely embedded in papers filed with the Court. This is true not only in cases involving self-represented parties, but also in cases involving parties represented by counsel. A survey of over 3,000 cases conducted by the Court in 2020 showed the problem to be widespread, affecting over 90 percent of the cases sampled.

The Court believes that additional steps to expand remote electronic access to the Court’s docket records should be measured and take into account the types of personal sensitive information frequently present in those records. The Court’s practice of limiting remote access to electronic files is similar to the treatment of Social-Security appeals and immigration cases under Rule 5.2(c) of the Federal Rules of Civil Procedure and is consistent with the protection of tax information filed with Federal Bankruptcy courts. For additional background on the Court’s policies regarding remote electronic access to its docket records, see Note, 130 T.C. 395-401. The Court adopted the amendments to Rule 27 as published, with additional stylistic amendments to paragraphs (a)(1), (b), and (d).

The Court acknowledged in the first sentence that the privacy concerns of entities differ from those of individuals but fell back on a discussion of Social Security cases which do not involve entities.  It is difficult to imagine the privacy concerns of entities aside from those covered by sealing the record pursuant to the appropriate motion.  Some discussion of the differences between individuals and entities and why the Court protects both equally would go beyond the mere acknowledgement that differences exist.  The Court correctly points out that few pro se petitioners who make up 75% of its docket appropriately redact private information from their submissions and only a small percentage of representatives properly redact.  It is right to seek to protect petitioners but goes too far in doing so.  There are ways to make much of the docket public while still protecting privacy interest. 

RULE 151.1. BRIEF OF AN AMICUS CURIAE

The third of the revised rules I will discuss is proposed Rule 152 which changed into Rule 151.1 as a result of suggestions regarding the numbering of the Rules.  This rule is new and not a revision of an existing rule.  It governs the filing of amicus briefs and fills a gap in the Court’s rules.  The new rule can be found here.

Several commenters wrote about the benefits of having amicus appointed in cases in which the Court sought to issue precedential opinions in which the taxpayer was unrepresented.  Caitlin Hird and I made proposals in this regard in an article recently published in the Houston Business and Tax Law Journal.  The Court commented as follows:

Court proposed numbering the new rule governing briefs of amicus curiae as Rule 152, and renumbering existing Rule 152, Oral Findings of Fact or Opinion, as Rule 153. In accordance with comments, and to avoid confusion that might arise in connection with renumbering the Rules, the Court has instead adopted the new rule governing briefs of amicus curiae as Rule 151.1. (All references to comments regarding Rule 151.1 are to comments submitted in response to proposed Rule 152.)

Several commenters suggested that the Court should adopt procedures for requesting an amicus or appointing an amicus or pro bono counsel. The Court appreciates that such procedures could be useful in cases brought by self-represented petitioners presenting unique or novel issues. The suggestion merits further study and potential development.

The Court received a comment suggesting that the Court should provide guidance regarding a request to enlarge the 25-page limit for amicus curiae briefs. The Court has adopted changes to paragraph (d) of Rule 151.1 to address the comment.

Another commenter suggested that the Court should amend Rule 151.1(e) to state that motions for extension of time to file an amicus brief will be freely given. The Court believes that the filing periods set forth in Rule 151.1(e) are adequate and, in any event, Rule 151.1(e) does not preclude an amicus curiae from seeking leave of the Court to file an amicus brief out of time.

The Court received a comment suggesting that Rule 151.1 should be amended to provide that an amicus curiae need not file a motion for leave to file a brief if all the parties to the case consent to the filing of the amicus brief. The Court modeled Rule 151.1 partly on procedures set forth in Rule 29 of the Federal Rules of Appellate Procedure. Until the Court has gained practical experience under new Rule 151.1, and absent a compelling argument for doing so, the Court is not inclined to alter the requirement that an amicus curiae file a motion for leave to file a brief.

Another commenter suggested that Rule 151.1(g) should be amended to require a party filing an objection to a motion for leave to file an amicus brief to specify why the party believes the administration of tax laws would be hindered by allowing the filing of an amicus brief. The Court is satisfied that the requirement that an objection must “concisely state the reasons for such opposition” will suffice to fully inform the Court, the opposing party, and the amicus curiae of the nature of the objection.

Another commenter suggested that Rule 151.1 should be amended to establish a rebuttable presumption that amicus briefs filed on behalf of pro se petitioners are justified. Although such a rebuttable presumption offers some facial appeal, the Court believes it is best to gain practical experience with amicus curiae filings under the new procedures set forth in Rule 151.1 before considering alternatives to those procedures.

The Court otherwise adopted new Rule 151.1 as published with additional stylistic amendments to paragraphs (c)(1) and (e).

As mentioned above, the Court, for the third time in the last 12 months, recently issued an order soliciting amicus briefs.  In addition to the order entered in the Sanders case by Judge Buch, Judge Jones issued an order on March 16, 2023, in the case of Tooke v. Commissioner, Dk. No. 398-21L.  Mr. Tooke is represented by Joe DiRuzzo III who challenges the appointment of Appeals Officers.  I know that the American College of Tax Counsel’s Amicus Committee is considering an amicus here in response to Judge Jones’ request and perhaps others as well.  While this case involves a well represented rather than a pro se litigant, it shows the flexibility of the rule to allow or promote the Tax Court judges to seek a broad range of legal briefs on cases raising certain types of issues.  The third case in the past year in which Judge Buch issued an order calling for amicus briefs is the case of Frutiger v. Commissioner, Dk. No. 31153-21.  The Frutiger case raises the issue of whether the time for filing a petition in the Tax Court in an innocent spouse case is a jurisdictional time period.  Similar to its review of deficiency jurisdiction in the Hallmark case after Boechler, the Court seeks to review its jurisdiction in IRC 6015 cases after the Boechler decision.  The Tax Clinic at the Legal Services Center of Harvard Law School filed an amicus brief on behalf of the Center for Taxpayer Rights in this case in response to the Court’s invitation.

Filed Under: Tax Court
Next Page »