Yesterday, we published some data from Carl Smith showing that the service of a new Tax Court petition on the office of Chief Counsel was taking about two months. Following that observation, Carl did some additional digging and found the service time to vary considerably. Below is a chart of his most recent findings. Because of the significant variations in the timing of the service, it is difficult to know what is going on in the Tax Court Clerk’s Office to cause the swings in the timing.
read more...Here are some dockets showing wildly inconsistent dates of petition filing and petition service:
Docket No. Petition Filed Petition Served
14000-20 11/17/20 2/22/21
15000-20 12/28/20 3/4/21
101-21 1/1/21 1/6/21
1000-21 3/4/21 3/5/21
2000-21 1/22/21 3/19/21
3000-21 4/2/21 4/5/21
4000-21 2/5/21 4/14/21
5000-21 2/1/21 4/26/21
6000-21 1/4/21 5/5/21
7000-21 2/25/21 5/13/21
8000-21 3/9/21 5/20/21
Carl speculates that perhaps the Tax Court Clerk’s Office is, on some days, filing petitions and serving them as soon as they come in, but on slow days working through a pile of petitions building up from earlier days, when the office was hit with too many petitions to process? In any event, a Tax Court petitioner at this point may or may not get a multi-month delay in the serving of her petition on the IRS.
The delay can have an impact on petitioners since it impacts when the answer is filed. Petitioners who hear nothing for a long time wonder what has happened to their case. Representatives accustomed to working with their local counsel office to obtain an early resolution of cases with clear cut facts can have trouble doing that quickly since Chief Counsel does not want to abate an assessment until they have been served with a petition. Perhaps the biggest impact is on premature assessments. If the Tax Court delays in sending the petition to the IRS, the IRS does not know that the taxpayer has petitioned and will assess the liability reflected in the notice of deficiency. Unwinding the premature assessment takes time for the people at the IRS and can make taxpayers uncomfortable because they will receive at least the notice and demand letter at a time when they thought that they had forestalled the assessment by filing the petition. We have written about premature assessments previously here. Both of these issues join together if there was a premature assessment but Chief Counsel does not want to abate pending receipt of the petition and a chance to compute its timeliness.
It’s also unclear if the new electronic filing of petitions is somehow impacting the timing of service. The ability to electronically file a petition can give the petitioner certainty of receipt but may change the processing of petitions in a way not readily apparent. Maybe the electronic petitions are the ones that get served on the IRS quickly. The Court, and the Clerk’s office, is still absorbing the changes in the Court’s database system. Perhaps something in the way DAWSON works is causing these issues. We welcome comments from a more knowledgeable source since we are simply speculating based on data that seems at odds with past Tax Court practice and with ordinary case management.
One of my cases is stuck in this status. I filed multiple cases early this year using the electronic filing process; it worked very well and the petition was served the next day.
Then I filed a petition on April 15. After a week, I called the clerk’s office to ask why it hadn’t been served. Their response was that they were instructed to clear the “backlog” of cases first before processing new petitions. There is indeed a backlog; I had a prospective client file a pro se petition in early January, which wasn’t docketed until late March. So, I understand desire to clear out the backlog, especially for pro se matters. Still, for the reasons that Carl and Keith mention, it’s somewhat frustrating to be stuck in limbo.
These delays are unusual. Perhaps they are related to the increased numbers of orders recently for petitions that are either unsigned or signed by improper parties, or don’t contain docket numbers or have not paid the filing fee etc. necessitating the Court’s issuance of Ratification orders, Amendment orders, and Fee Payment orders. Recently, these orders range from 10% to 25% of the Court’s daily issued orders. Not all cases in these predicaments are pro se cases. It appears that many are represented. Not sure what’s happening, but it is affecting timely resolutions.
The wheels of justice turned exceedingly fast for Docket No. 1000-21S. The petition was filed (by a practitioner, so likely electronically) on March 4, and served on March 5. An application for waiver of the filing fee was filed on March 11, and granted March 15. Counsel in Detroit filed the answer March 16. A proposed stipulated decision was lodged March 26, and signed by Judge Foley on March 30.
And the petitioner’s attorney? Director of the Low-Income Taxpayer Clinic at Michigan State. Carl Smith’s method for selecting a random sample is obvious, and he is no doubt surprised by the fish he caught.