The Tax Court has finally publicly acknowledged the problem it is having processing new petitions. On Friday, July 23, 2021, it issued the following notice:
The United States Tax Court has received a significantly higher number of petitions this year. The total number filed in a typical year is between 23,000 and 26,000. In contrast, year to date, the Court has received over 24,000 petitions. The Court is processing petitions expeditiously, but the increased volume has caused a delay between when a petition is received by the Court and when it is served on the Internal Revenue Service (IRS).
The IRS is generally not permitted to assess or collect a tax deficiency when a taxpayer has filed a timely petition with the Court. The Court is alerting the IRS of petitions received but not yet served. If you have filed a petition with the Court but have been notified of an IRS assessment or collection action, you can email the IRS at taxcourt.petitioner.premature.assessment@irs.gov.
If you have questions about whether the Court has received your petition, you can contact the Public Affairs Office at (202) 521-3355 or email publicaffairs@ustaxcourt.gov.
The Court’s announcement that it is willing to verify receipt of petitions is an important development. The PT team has been informed that, going forward, the Office of Chief Counsel will contact the Court to verify receipt of a petition if they are notified of premature collection action.
read more...Readers may be surprised to learn that this was not previously the case. A recent comment on the ABA listserv for those representing low income taxpayers illustrates what has been happening:
The Tax Court is over 2-months behind in processing new cases. My client received a bill based upon a SNOD where we filed a timely Petition in May, but the Tax Court hasn’t served the government yet. I emailed taxcourt.petitioner.premature.assessment@irs.gov and asked them to freeze collection and abate the erroneous assessment. Here was their answer –
Thank you for your request. Unfortunately, we cannot yet take action on this matter. The Petition has not yet been served on the IRS. Once the case has been served on the Respondent, we can take action. In the meantime, I will make a record of this communication in a file tracking alleged premature assessments.
We have written before about premature assessments here, here and here if you need background information about this issue. I am surprised that it took the Tax Court so long to publicly acknowledge the problem and seek to guide petitioners to the right place. With over 70% of petitioners filing pro se, it is not enough that practitioners know about the problem; unrepresented petitioners need to know, too.
The number of Tax Court petitions each year ebbs and flows. It was down during the pandemic and has trended down over the past decade as the IRS sent out fewer notices due to its dwindling resources. If the IRS is beefed up, the Tax Court, and the clerk’s office, must be beefed up as well. In the 1980s during the tax shelter wars, the Tax Court handled over 100,000 petitions in some years. It’s easy to understand how the ebbs and flows of the number of docketed cases impacts the speed with which the court can process the petitions. It’s also easy to understand how the restrictions on work environment caused by the pandemic could reduce the efficiency of the clerk’s office. It’s not as easy to understand why the Tax Court did not make a public announcement acknowledging the problem earlier or why it cannot send something over to Chief Counsel’s office to allow the IRS to input the necessary freeze codes on its computer to prevent premature assessments.
The Court’s announcement and the resulting change in Chief Counsel procedures are both good news. However, a systemic solution is still needed that does not require individuals to email the Office of Chief Counsel or call the Court. Pro se petitioners do not usually understand that there should be a litigation hold on their case while it goes through the Tax Court process. Most petitioners are not going to call the Court in response to a collection notice. The problem the government is having in processing cases should be something the IRS and the Court are working hard to correct.
Practice Tip: Send a copy of the petition, or at least the transmittal letter, to the IRS office that issued the notice of deficiency.
Keeping current on serving petitions may not be the Tax Court’s most serious problem. This morning, Chief Judge Foley dismissed at least 15 cases filed in the pre-pandemic year of 2019, for failure to pay the filing fee. Payment had been ordered when the petition was filed, but not much happened since then, other than IRS filing an answer. Of course, collection action has been suspended. This does not promote efficient tax administration.
The docket numbers, all of them ending with the -19 extension, are: 9753, 12768, 13345, 14358, 14403, 14568, 14943, 16192, 16670, 17634, 17637,21563, 21655, 22433 and 22459. The earliest were filed in June and July of 2019 – more than two years ago.
For some reason, three additional cases were dismissed but the petitioners were allowed thirty days to have them reinstated by paying $60. These docket numbers are 13738, 15386, and 18688.
Well, when the IRS doesn’t answer the phone or open its mail, but the computers keep chugging along, it’s not surprising that a lot of taxpayers are going to get NODs when at other times the issue may have gotten resolved.
Don’t forget section 7433! It provides civil damages for unauthorized collection actions. Actual damages include emotional distress which can result from receiving IRS collection notices. The next thing that will happen because of these delays is that the IRS will share contested audit results with the state taxing authorities. So a state bill based on an unauthorized IRS assessment is next.
This seems like a good plan. I sent an email yesterday to the linked address and received an automated response this morning. Nashville Counsel has also reached out regarding the improper assessment, among other things.