Getting Perspective on DAWSON

June 21, 2021 by 3 Comments

Today guest blogger James Creech brings a series of articles to our attention which illuminate the Tax Court’s case management transition from a different point of view. Whatever your thoughts about DAWSON, considering the transition from an internal point of view is a good exercise. Previous PT coverage of DAWSON can be found here, and the Court’s DAWSON User Training Guides are here.

One of the practitioner challenges of the transition has been learning about new features. The Court maintains a page on its website with DAWSON release notes, which indicates that improvements were deployed just two days ago. Perhaps the Court could consider an announcement system that would alert users to upcoming features as well as new features. Of course, the Court must manage staff workload and it may have bigger fish to fry. Christine

Much has been written about the Tax Court’s new case management system from the practitioner’s point of view. While most of the articles focus on the shortfalls of the new system, such as a search function that has been “coming soon” for months on end, and the change in the way orders are published, not much has been published about how DAWSON was created from a technical point or internal Tax Court staff point of view.

A recently published set of blog posts from 18F changes that. 18F is an internal US Government technology and design consultancy group that worked on developing and implementing DAWSON. As part of 18F’s outreach they have published a three part series on the Tax Court’s case management modernization project. The first article is more of an overview of the Tax Court and the shift from the old case management system to DAWSON and the second and third articles are interviews with Jessica Marine, the Deputy Clerk of Court who oversaw the project, and Mike Marcotte the technical lead.

The articles are technology focused and at times paint an overly rosy picture of DAWSON’s success. Being technical there are numerous references to bugs and minimal viable products (MVP) but not a single reference to the Internal Revenue Code. Despite this, there are still several items of interest to those of us who regularly use DAWSON. Some tidbits include that more than 1 million cases containing more than 1 terabyte of data have been transferred over to the new system, DAWSON is built on an open source framework (which is considered more secure), and at least according to Mike Marcotte there is some internal optimism that the initial problems with the launch have been resolved and that new features can be confidently deployed.

These articles are also a good reminder of all the hard work that went into creating DAWSON. Migrating 30 years of legacy computer systems and 70 years of Tax Court cases does not happen without significant planning, technical skill, and bug fixes. Getting a glimpse into these issues, including one ruined Thanksgiving, is a reminder that building and deploying software is difficult.

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DAWSON Update and Example of Tax Court Policing

June 3, 2021 by 3 Comments

Carl Smith continues to probe the Tax Court docket sheet as he has done for many years but in his retired retirement, he finds working his way through DAWSON interesting as new features arrive unexpectedly to be discovered.  The latest new feature Carl has found is one about which those of us who use the system regularly have been complaining since its inception – the inability to see the representatives.  Now, it’s possible to see who is representing each party, but you must take a step to find out.

When you arrive on the docket sheet of a case, you will not see the persons representing the parties as you did prior to the change to DAWSON; however, if you click on the “Printable Docket Record” box on the right-hand side of the page near the top of the docket sheet, you will go to a sheet that displays the representatives.  This is another step forward as the Tax Court continues to build out DAWSON.

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You can test out this feature by going to this link.  The link hopefully (I use this qualifier because all of the pre-DAWSON links in our blog to Tax Court orders were broken when DAWSON came into existence.  We do not have the time and energy to fix all of the broken links and apologize for this problem.  If you know someone willing to sponsor us to hire an energetic student to work on our links, we would welcome the sponsorship and the opportunity to update the old posts on the blog.  It is also possible that we might have an energetic reader with time on their hands willing to make an in-kind donation to this free blog site and do the work necessary to update our links) takes you to the case of Villavicencio v. Commissioner. 

While Carl brought to my attention the new DAWSON feature, Bob Kamman brought the Villavicencio case to my attention.  The case makes a point that I made in a recent post in which I quoted extensively from the brief the tax clinic at Harvard filed with the Supreme Court in Boechler – the Tax Court polices the timely filing of petitions even when the IRS does not and the Tax Court will dismiss a case even when the parties are in the process of settling it.  The case also highlights the dangers of using the wrong private delivery service, highlighted most often in this blog by reference to the Guralnik case.  The case also points out a problem created by COVID and the shutdown of the Tax Court.  Although it probably does not matter here for reasons discussed below, petitioner has not yet made jurisdictional arguments of the type frequently discussed in this blog.

Three weeks before trial, Judge Greaves raised the question of whether he had jurisdiction, because the notice of deficiency was issued on March 16, 2020, and the petition was not received until July 16, 2020.  It was sent by UPS, but not by one of their acceptable methods.  See Judge Greaves’ one-page order attached.  Late deficiency petitions raise jurisdictional issues in the eyes of the Tax Court even if the IRS doesn’t file a motion to dismiss for lack of jurisdiction. 

The IRS didn’t file an answer until October 27, 2020, more than three months after the petition was filed, but this is one of those cases about which we recently wrote where service of the petition on Chief Counsel, IRS did not occur for over two months after the petition was received.  So, the answer here was timely, but if it had not been timely filed, late answers are forgivable from the Tax Court’s perspective.   

I could digress and discuss the “strike fear” memo written by Chief Counsel Meade Whitaker in the mid-1970s threatening to fire any Chief Counsel attorney who did not file their answer on time, or I could digress further and talk about the time the Richmond office which I was heading filed seven answers late at once because of a snafu, but I will not.  Instead, I will simply say that the Office of Chief Counsel generally does not like it when an answer is filed late and neither does the Tax Court, but the Tax Court does not usually punish the IRS in any way for a late answer.  To my knowledge, the Office of Chief Counsel has not fired anyone for filing a late answer.

The case is calendared for a remote trial session in New York City on June 14, but the parties lodged a proposed stipulated decision on May 13.  So, the parties are ready to settle, the Tax Court is ready to toss the case, and the taxpayer is wishing that the petition had been timely filed.  If the Tax Court decides to dismiss the case for failure to timely file the petition, my expectation is that the IRS will honor the settlement and only assess the amount of tax, if any, agreed to by the parties.  It is not my experience that the IRS would use the dismissal as a basis for assessing the entire liability and force the taxpayer in this S case to come up with full payment and file a suit in district court. 

So, even though the petition was filed late, the petition was served late, and the Court caught the problem late in the process, all should end well for the parties, but before it ends well, they must spend time responding to the order that requires them to address the timeliness of the petition.  The parties may not care about the timeliness of the petition anymore because they have figured out the right answer to the tax problem.  That does not matter because the Tax Court cares.  Should it, or should we have a system where the filing of the petition is not jurisdictional, but a claim processing issue which, if not raised by the IRS, does not bar the parties from moving forward with the case?  If the Supreme Court does not change the Tax Court’s interpretation of the statutes granting it jurisdiction, perhaps Congress could step in and fix this problem so that all bases for jurisdiction in the Tax Court are considered non-jurisdictional and not just whistleblower cases, passport revocation cases and CDP cases filed by DC residents.

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A Twist on the Last Known Address Issue and an Update on DAWSON

May 6, 2021 by 4 Comments

We just had a call in the clinic that highlights another unexpected result of the dysfunction at the IRS resulting from the pandemic. As you probably know one result of the pandemic is that the IRS is taking months, perhaps more than a year, to process 2019 returns filed by paper. The filing of a return is an act that triggers the IRS to change a person’s address. So, by not processing a return, the IRS is slow to record in its system the taxpayer’s new address. That is an unfortunate by product of the pandemic. The delay in processing the return can have a stranger impact in some cases.

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In our case the client had filed a change of address form with the IRS when she moved pre-pandemic. The IRS accepted her change of address form and recorded her new address. Shortly before she filed her change of address form she had submitted her 2019 return using her then correct address but now prior address (and prior address from more than one year ago so no more postal forwarding.)

The IRS took many months to process her paper return. When it did get to her return, the processing of her 2019 return caused the IRS computer to notice that the address on her return was different than her address in its system. So, the computer “updated” her address to her old address. So, even though she properly followed the rules and the IRS followed its rules, the sequencing of the processing of her documents caused the IRS system to have a bad address.

Fortunately, in this case her file was in the hands of an alert Appeals Officer who figured out the problem and is working to get the IRS computer to accept the client’s true last known address. As you can imagine not many taxpayers in this situation will be so lucky as to have a live, alert human looking out for their interest. I bring this up in case other experience a similar difficulty.

A related problem is the time it will take for the IRS to process a return and pick up a new address. With the IRS using the tax return to change addresses, many taxpayers could rely on that system together with postal forwarding to receive IRS correspondence. The Gregory case demonstrates one of the exceptions and argues for use by the IRS of the other address information it receives. What should a taxpayer argue who has submitted a return to the IRS with a new address or submitted any document to the IRS that would change their address but that the IRS does not get to for months because of the pandemic backlog? I don’t have good advice. I am sure the IRS will take the position that it does not have a responsibility to change an address until it actually processes the return. Undoubtedly, there will be situations where the lengthy delays currently occurring will cause problems.

DAWSON and sealed documents

Recently, Judge Holmes issued a lengthy, informative and, as usual, entertaining opinion regarding the valuation of Michael Jackson’s image in a Tax Court case involving his estate. The opinion is public and was published on Tax Notes and other sites almost immediately after its release. If you go to the docket for the case on the Tax Court website, however, you cannot obtain the opinion and you will be told the record in the case is sealed. Some parts of the case were sealed by court order early in the litigation. For a general discussion of sealing the record in a Tax Court case, you can read this post from several years ago by guest blogger Sean Akins. As the Tax Court merged its prior system to DAWSON, it has yet to make the upgrades that will allow the system to recognize the difference between sealed and unsealed documents in a case. So, it is not possible to pull the Estate of Jackson opinion from the Court’s website at this time. It is a public document, however, and you can request a copy of the opinion from the clerk’s office as you can request any document from the court as discussed here. My understanding is that this issue and others are ones which the Court is continuing to fix as it continues to work on DAWSON. In the meantime, it will be impossible to obtain a document through DAWSON in a case in which the Court has sealed a part of the record.

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DAWSON Updates

January 11, 2021 by 2 Comments

As we discussed here, the Tax Court rolled out its new case management system on December 28, 2020.  The rollout is the beginning of a process and not the end.  Today, the Court announced the first of what will probably be several announcements as new features come online.  This announcement provides information about the release of orders to the public.  Tax Court orders have long been a under observed aspect of the decision making of the Court.  Starting almost 10 years ago, the Court made these orders public and searchable.  The search feature is important for those wanting to track a specific issue or follow orders of a specific judge.  While orders do not create precedent, we found them sufficiently important to start the designated order feature here a few years back.  We look forward to the ability to track orders going forward in the same easy to search and free to all aspect of the Court’s online presence that greatly outperforms PACER.

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DAWSON is Awesome

January 6, 2021 by 2 Comments

We welcome back guest blogger Steve Milgrom.  Steve is the litigation coordinator at the low income taxpayer clinic located at the Legal Aid Society of San Diego.  He provides a thoughtful voice on tax procedure issues facing low income taxpayers.  Today, he provides an initial and very positive reaction to the Tax Court’s new electronic case filing system, DAWSON.  We have written about DAWSON before here, here and here.

Because I was waiting for DAWSON to go live in order to file some documents, I experienced it on the first day it opened.  I found it to be easy to use.  I echo Steve’s remarks about the positive feature of filing petitions electronically.  While the high number of pro se taxpayers coming to the Tax Court almost certainly means it will continue to receive paper petitions for some time, the prospect of filing a petition electronically and knowing it is timely filed provides a wonderful improvement over the myriad of situations in which something can go wrong when filing a paper return.  This is not to say that nothing can go wrong when filing electronically as we have seen with the electronic filing of returns but the ability to manage the problem seems much greater.  Keith

DAWSON!  As a tax lawyer who already talks in Code, I’ve added a new word to my lexicon.  DAWSON!  What a fabulous word it is!  And it didn’t even take an act of Congress.

Dawson is the name given to the Tax Court’s new case management system.  If this is the wonkiest thing I’ve ever celebrated I don’t know what is.  Why the celebration?  With the role out of Dawson on December 26th the Tax Court now permits Petitions to be e-filed.  And yes, December 26th was a Sunday.  Someone was actually working the weekend to get it going.

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Those of us who read Tax Court opinions for fun know the havoc that a snowstorm in D.C. can play with Taxpayer Rights.  For some unknown reason many taxpayers, and even some practitioners, want to spend more than the cost of a first class stamp to send their Petitions to the Tax Court.  If one chose the wrong delivery service and the Petition didn’t arrive by the 90th day following the mailing of a Notice of Deficiency, the taxpayer lost their right to engage in a pre-assessment challenge to the IRS’s determination that they owed the government more money.  See Guralnik v. Commissioner, 146 T.C. 230 (2016).  That’s a big loss and a big black eye for any practitioner who missed the filing deadline due to hiring someone other than the U.S. Post Office to deliver a Petition.  But what an inequitable result due to an act of God!  Well, Keith and Carl Smith fought this battle in many different venues with little success.  One wonders if this is what pushed Carl into full retirement?

Wherefore Dawson?  The Tax Court decided to honor the late Judge Howard A. Dawson, Jr., who was first appointed to the Tax Court by President Kennedy in 1962, was reappointed by President Nixon, and went on Senior status in 1985.  According to the Tax Court’s web site he was known as a meticulous record keeper, which is probably what inspired the naming of a case management system in his honor.

I propose a plaque be placed on the Tax Court building in his honor, designating him as the founder of the 21st Century Tax Court.  We all owe Judge Dawson a hurrah for his contribution to the court’s recognition of the importance of e-filing to Taxpayer Rights.  Each step that simplifies our dealings with the government is to be celebrated.  If someone from the Court wants to contact me, I will personally pay for the plaque.

Now if we could just get the Tax Court to give us equal access to court filings.  While Chief Judge Foley recently wrote that the pandemic has revealed that geography is not a barrier to connection, it sure is a barrier to Taxpayer Rights.  Just like other Federal courts, the Tax Court’s records should be available for remote viewing so we can all have the benefit of learning from what others do in their cases.  I never met Judge Dawson but I hope he would support additional access to the Court for the millions of taxpayers and practitioners who don’t live in D.C.

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DAWSON Almost Here

November 16, 2020 by 1 Comment

We are now less than a week away from the beginning of the transition at the Tax Court to DAWSON and this deserves another reminder for those who practice in the Tax Court because of the shutdown of the Court’s electronic filing system.

If you are a Tax Court practitioner who has given the Court your current email address, you may have received an email on Friday the 13th directly alerting you to the upcoming shift to DAWSON.

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The email does a good job of explaining what is to happen.  Here’s what I received:

You are receiving this email because you are a member of the bar of the United States Tax Court. This is an official notice from the Court to inform you about our transition to a new Case Management System that begins soon. If you feel you received this message in error, please contact our Admissions Section, at admissions@ustaxcourt.gov.

In December 2020, the United States Tax Court will be launching DAWSON (Docket Access Within a Secure Online Network), the Court’s new case management system. The Court expects DAWSON to be active no later than December 28, 2020.

Beginning at 5:00 PM Eastern Time on November 20, 2020, the current e-filing system will become inaccessible and all electronic files will become read-only. See the October 7, 2020 Press Release for more information.

In early December, a new user name and temporary password for DAWSON will be emailed to this address, along with a link to activate your DAWSON account. You must promptly activate your account. The temporary credentials will expire after 7 days, and if you do not activate your account, you will not have access to your electronic case records.

For more information and updates, including FAQs, please continue to monitor the Court’s website, www.ustaxcourt.gov.

If you are a Tax Court practitioner and did not receive this email, you might want to contact the Admissions Section to make sure that your information at the Tax Court is accurate.  If it is not accurate you will not receive the link to activate DAWSON that the Court will send out next month and that will make it difficult for you to operate in the new environment.

If you want to learn more about DAWSON, you can read the Court’s description here where it announces the coming of DAWSON.  You can also read more about it in my earlier post here.

The FAQs referred to in the email from the Court were recently updated.  There are many FAQs but I want to highlight a few focusing on what is going to happen on November 20:

What happens November 20, 2020?
  • Beginning at 5:00 PM Eastern Time on November 20, 2020, the eAccess system will become “read only”. See this Press Release.
  • Records in the eAccess system—including opinions and orders—will remain visible to parties and the public but no new electronic case filings will be permitted.

I think it’s important to note that you will be able to see documents in the system even though you will not be able to electronically file documents.  This leads to the next important question answered by the FAQs regarding what do you do if you need to file a document during the period of the DAWSON installation:

What if I need to file something after November 20, 2020 and before DAWSON is active?

If you must file something with the Court after 5:00 PM Eastern Time on November 20, 2020 and before DAWSON “goes live” in December, you can do so by mailing your document to the United States Tax Court, 400 2nd Street NW, Washington DC 20217. See this Press Release.

For those of us old enough to have practiced at the Court before the Court adopted the current electronic filing system, things have returned to our youth or maybe our middle age.  It will be more expensive to file documents because of postage.  You may want to spend the extra nickels and send things via certified mail.  Of course, you should already be doing that for the petitions you mail to the Court.  It is also possible under IRC 7502 to send mail to the Court using an authorized private delivery service, but please make sure you use an authorized service as problems, like the situation in Guralnik, can occur when using an unauthorized service and problems in general can occur when mailing without some type of receipt. 

Since many of us have not paper filed in some time, also remember that pursuant to Rule 23(b) you should send the original and one copy of the document you are filing. 

Note that the Court hopes to not issue orders and opinions during the period of Dawson installation.

Will the Court still issue opinions and orders during the time E-Filing is inaccessible?

The Court does not currently anticipate issuing any orders or opinions from 5:00 PM Eastern Time on November 20, 2020, until DAWSON goes live. If circumstances necessitate issuing an opinion or order, the Court will do so.

This might limit the material available on certain blog sites that regularly cover the Tax Court.  So, look for lots of material on refund and bankruptcy cases at this blog site over the next month with an occasional TIGTA or GAO report thrown in for good measure.

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DAWSON is Coming

October 15, 2020 by Leave a Comment

On October 7 the Tax Court issued a press release announcing that it is about to install and implement its new case management system.  The Tax Court has been talking about its new system for a while now, but the announcement puts a new wrinkle in the situation because of the things the Court and the parties will need to do during the period of installation.  So, even if you do not particularly care that the Tax Court is implementing a new case management system, it’s time to sit up and pay attention so you know what’s happening during the installation process.

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DAWSON is an acronym for Docket Access Within a Secure Online Network and is also a nice tribute to the longest serving judge in Tax Court history, Judge Howard Dawson.  I had my only appearance before Judge Dawson in 1979 in Boise, Idaho.  He was highly regarded then and went on to become a legend at the court.  You can read about him here and here.

The press release informs that public that because of the installation of the new case management system:

To facilitate the transition to DAWSON, beginning at 5:00 PM Eastern Time on November 20, 2020, the current e-filing system will become inaccessible and all electronic files will become read-only. Consistent with current practices, cases will remain electronically viewable. No documents may be e-filed in the current system after that time. The Court does not anticipate issuing any orders or opinions during the time e-filing is inaccessible.

The press release notes that the Chief Judge issued Administrative Order 2020-04 extending the time for the IRS to file answers in all petitions filed between September 21, 202 and October 28, 2020.  It goes on to say that all other documents required to be filed between 5:00 PM ET on November 20, 2020 and whenever DAWSON becomes active must be filed in paper.  The normal rule required leave to file documents in paper is waived during this period.  The Court notes that timely mailing will apply to documents mailed during this period. 

It also acknowledges that going through another period of petitions being filed with the Court without acknowledgement of the filing going to the IRS will trigger another round of premature assessments.  In the notice it cites to the email address created by Chief Counsel, IRS to alert the IRS to a Tax Court filing and the need to abate a premature assessment.  That address is Taxcourt.Petitioner.Premature.Assessment@irs.gov.  It’s nice to see the Court be proactive on this issue and great that Chief Counsel’s office has just set up an address to help in fixing the problem.  Because pro se individuals will struggle to find this address, everyone should keep it in mind when working with a petitioner who files during this period.

Finally, a smaller point to note comes from Judge Buch and Deputy Clerk Jessica Marine, who gave a preview of DAWSON at the Court Procedure and Practice Committee session of the ABA Tax Section Fall Meeting on September 30. They reported that all links (URLs) to Tax Court opinions and orders will be broken after the new system comes in, meaning that existing opinions and orders will have different URLs, and the current URLs will not redirect. So, if you have saved any links to orders or opinions, you may want to download them before the new system goes live at the end of December, or be prepared to run a fresh search when you want to reference the document.

Well, why not do this during 2020.  It’s already a year like no other.  Shutting down the clerk’s office again may be more normal than abnormal in a year like this.  Although the Court does not anticipate issuing opinions or orders during the DAWSON installation period, I can foresee the need for an occasional order.  If you need an order, you should certainly request it.  I do not read the press release as a prohibition against the Court issuing orders. 

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