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Notes and Handouts from the Tax Court Judicial Conference

Posted on Apr. 19, 2018

At the Tax Court Judicial Conference last month, there were several breakout sessions and plenary sessions – many of which provided handouts that some of you might find useful. In this post, I will talk about several of the sessions and attach the documents from the section discussed.

Future State of the Tax Court

Les wrote a post that covered some of this session. Because there was more and there were several documents, I am going to expand on his post.

The first concern the panel addressed was access to Court records. The outline does an excellent job of laying out the Court’s concerns about making its records as open as the records of other federal courts using the PACER system. The material cites to a couple of administrative courts, social security and immigration, that do not use the PACER system. I do not find those administrative courts to provide a perfect template for the Tax Court but appreciate the Court’s concern about the privacy of taxpayer information since most of the people the Court protects are low-income taxpayers filing pro se. In the recent submission to Congress, the tax clinic at Harvard made proposals on this issue seeking to open up the records to greater electronic access. The clinic’s proposal puts the burden on the IRS to redact. Making public documents submitted by the IRS was proposed by Judge Buch to the panel as Les mentioned in his post. It sounds as if the Canadian Tax Court, which has no electronic access today, plans to put everything online within three years.

The panel next turned to the Tax Court’s Rules. The question before the panel was whether it was time for the Tax Court to reissue its rules, which would allow it to reorder them and to make other logical changes. Since the rules were last created, Congress has added numerous types of jurisdiction to the Court. The press release when the rules were last changed can be found here, and the general categories here. Other events have caused changes to the rules that have resulted in the rules growing in a way that might not create the most orderly statement of what parties practicing before the Court might expect in researching the rules. A proposed topical grouping of Tax Court rules can be found here and guidelines for drafting and editing court rules here. One example given of a needed rule change/addition is the lack of any mention in the Tax Court’s rules of amicus briefs. A couple of years ago, the Court sent out requests for comments on its rules after Chief Counsel’s office wrote to the Court requesting certain rules changes. We discussed the request here. The Court promulgated rules without comment after a recent legislative burst and we wrote about it here. The tax clinic at Harvard has not experienced any difficulty filing amicus briefs in the Tax Court but having a rule laying out the expectations would be a great idea. My takeaway from the discussion is that we should expect an overhaul of the rules in the not too distant future. This endeavor will keep some people at the Court very busy.

The third issue presented by the panel involved reducing the cost of litigation. The panel discussed increased use of the electronic courtroom to reduce travel costs. It also discussed changing the expert witness rules. Because the Chief Judge of the Tax Court of Canada was on the panel, it was interesting to hear the perspective of that court on many issues, including experts and his views on the use of hot tubbing. I did not come away with a feeling of what changes are coming but I expect that changes may come.

The fourth issue concerned the impact of IRS actions on the Court. Attached to the report is a group of related documents among which is the National Taxpayer Advocate’s report on ETIC cases in Tax Court. The IRS puts very little time and effort into auditing cases through its correspondence process, which in turn puts cases into the Tax Court that have not been properly developed. The report details outcomes.

The final issue discussed concerned the impact of globalization on the Tax Court. Because of time, the discussion on the final two issues was relatively short.

Ethics

The panel on ethics gave attendees a PowerPoint presentation attached here. The PowerPoint contains 10 hypotheticals which the panel worked through during this session. The panel also provided the group with authorities for resolving each of the hypotheticals which are attached here, here, here, here, here, and here. If you have to teach tax ethics, this is a great set of materials. If you practice and want to review very relevant problems, these are worth the time. The most interesting and scary set of facts is found in hypothetical #9 and involves the representation of someone who is not the person they purported to be.

Litigation of Individual Tax Issues and TBOR

This session had two panels. Les and I were on the TBOR panel with Special Trial Judge Panuthos and Nina Olson. This session had a PowerPoint presentation, found here. Other materials from this session were a Decision Document Guide; Schedule C examples; an Annotated AUR Notice; a PowerPoint presentation entitled “Effectively Representing the Taxpayer in a Substantiation and Penalty Case”; a Model Stip Decision; and a Bibliography.

Exotic Jurisdictions

Les discussed this session in a previous post found here. This presentation involved a PowerPoint, found here.

Discovery and Stipulation Process

This presentation had a relatively short PowerPoint, found here. It was an excellent session although it is one that is difficult to recapture. The judges and the participants engaged in a good review of the discovery rules and how to put them to best use.

Mediation

This session had a relatively short PowerPoint, found here, and materials, found here. The stories from this panel were good. The Court seems genuinely interested in assisting parties through providing a mediation option. Although I do not see this as a likely avenue for the types of cases I litigate in the Tax Court with the clinic, I came away from the session with a better appreciation of mediation as a viable option. The panelists who had served as mediators spent time describing their special role in that context and how they thought they could best assist the parties in reaching an agreement. Because mediators get to hear both sides in a way that judges do not, this would seem to be a good break for the judges participating from the formal presentation of cases they hear routinely.

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