New Notice Requirement for Issuing Non-Party Subpoenas Read Into the Tax Court Rules

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Today returning guest blogger, Joni Larson, writes about a recent Tax Court order issued by Judge Holmes involving the interpretation of Tax Court Rule 147.  Joni has graciously provided her insight again into the interpretation of rules. As with her last two posts, here and here, she takes us into the practical world of interpreting the rules and preparing to present evidence.  She authors the book on evidentiary issues in Tax Court.  She teaches at Western Michigan University – Cooley Law School where she is also the Director of the Graduate Tax Program.

As we have discussed before, the orders of the Tax Court contain important decisional law of the Court yet are often overlooked. We deeply appreciate the work of Carl Smith who regularly reads and analyzes the orders posted each day and alerts us to the ones of significance. Because the Tax Court has made it easy to search its orders and because of the otherwise unpublished nature of some important, if non-precedential decisional law there, we recommend searching the order tab on the Tax Court’s web page if you have a matter that might get decided by an order – which could be many types of matters. As you will see below, the order here could have lasting impact on one aspect of practice before the Tax Court. Keith

In Kissling v. Commissioner, the taxpayers discovered the Commissioner had served at least one nonparty subpoena.  The taxpayers wanted access to not only the subpoena and information received in response, but to know if other nonparty subpoenas had been issued and the response to those subpoenas.  Not surprisingly, the Commissioner considered the subpoena and information received in response to be part of his trial preparation that was not to be shared with the taxpayers.


To determine if the taxpayers were entitled to notice of nonparty subpoenas, the Tax Court looked to the rules.  The Tax Court has its own rules of civil procedure.  (Section 7453 provides that proceedings of the Tax Court be conducted in accordance with such rules of practice and procedure as the Tax Court may prescribe.  These Rules are easily accessible from the Tax Court’s website, see

The Court began its analysis where the taxpayers suggested, by considering Rule 21, Service of Papers.  While that Rule did list a number of documents to be filed with the court or served on another party, nonparty subpoenas are not included in the list.  The Court then turned its attention to Rule 147, Subpoenas, and found it contained no notice requirement.

When called upon to interpret its rules, the Tax Court has looked to the Notes of the Rules Committee for any available explanation (see, e.g., Dvorak v. Commissioner, 64 T.C. 846 (1975)).  Where there is no guidance in its own Notes, the Tax Court has looked to cases decided under the Federal Rules of Civil Procedure (FRCP) for guidance on interpretation of similarly-constructed rules (see, e.g., Grant v. Commissioner, T.C. Memo. 1999-115).  Finally, when the Tax Court Rules do not contain the necessary rule, the Court has looked to the FRCP to fill that gap (see, e.g., Settles v. Commissioner, 138 T.C. 372 (2012) (in determining whether review of collection action could be dismissed, the Tax Court looked to the Federal Rules of Civil Procedure) and Brannon’s of Shawnee, Inc. v. Commissioner, 69 T.C. 999 (1978) (when the Tax Court Rules did not contain a provision governing disposition of void decisions, the Tax Court looked to the Federal Rules of Civil Procedure)).  This use of the Federal Rules of Civil Procedure is supported by the Court’s own Rule 1(b), which provides “where in any instance there is no applicable rule of procedure, the Court or the Judge before whom the matter is pending may prescribe the procedure, giving particular weight to the Federal Rules of Civil Procedure to the extent that they are suitably adaptable to govern the matter at hand.”

Undeterred by the lack of a notice requirement in Rule 147, Judge Holmes looked to its history.  At the time it was enacted, the stated goal was to have a rule substantially similar to FRCP Rule 45.  In 1991, a notice requirement was added to FRCP Rule 45.  Even though no similar change had been made to Rule 147, Judge Holmes decided that the rules were intended to be the same: “it’s just an example of the two sets of rules drifting apart over time.”  Accordingly, Judge Holmes concluded that Tax Court Rule 147’s implementation should track that of FRCP Rule 45’s and read the notice requirement into Rule 147.

By Order, Judge Holmes held that, while he would not find the Commissioner violated the rules, he adopted the notification requirement as a modification to the pretrial order.  He granted the taxpayer’s motion to compel; the Commissioner was required to provide all nonparty subpoenas and responses to those subpoenas and give notice of such subpoenas in the future.

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