The last panel at the Tax Court Judicial Conference was a look to the future, considering current and future issues that could affect the way the court does business. The panel, moderated by Chief Judge Marvel, included the Chief Justice of the Tax Court of Canada, Miriam Fisher of Latham & Watkins, National Taxpayer Advocate Nina Olson, and Drita Tonuzi, Deputy Chief Counsel.
One indication of a successful panel is the sense that you both learned a lot and also wanted the panelists to keep going. The 80-minute panel flagged a number of issues (like possible new and revised jurisdiction, the court’s thorny constitutional status) and spent some time on a subset issues, including a tantalizingly brief discussion of EITC and its impact on the court, possible Tax Court rule changes, ways to increase efficiency and reduce litigation costs, the impact of globalization on Tax Court practice, and the possibility of expanding access to documents filed with the Court.
Access to filed Tax Court documents is an issue that seems to be front and center for the Court; as part of the materials the Chief Judge referred to a blog post that our sometimes Forbes colleague Peter Reilly wrote called Tax Court IRS and Secret Law. That post, in a nutshell, heavily criticized current Tax Court practice when it comes to allowing nonparties access to court documents, stating that the “Tax Court is letting us down when it comes to electronic transparency.”
As a blogger, researcher and sometime advocate, I find that easy access to briefs in cases in district court and appellate courts is very helpful. Current Tax Court practice essentially limits e-access to documents to parties, and those who have the resources or friends to go the Tax Court in DC can go and make make copies.
The Chief Judge tried to move the discussion away from labels (it is fair to say that the Chief Judge is not a fan of procedures being called secret or stealth) and toward what she referred to as a “constructive dialogue” that would take into account both the public’s legitimate need to know and the privacy concerns around often sensitive personal information that is embedded in the mostly pro se docket that makes up the court’s basket of cases.
As part of an effort to move the conversation, the Chief Judge flagged some specific possible changes, including the following:
- Expanding the types of documents that can be accessed electronically (like briefs, dispositive motions);
- Limit e-access to cases where both parties are represented; and
- Restrict e-access to certain types of people, including possibly those who register
In a question, Judge Buch raised the possibility of allowing e-access to documents that Counsel files, and Judge Leyden suggested the possibility of allowing parties to elect into allowing e-access. The Chief Justice of the Canadian Tax Court said that in the near future all documents in the Canadian Tax Court will be e-accessible, with that court responsible for redacting some personal information.
The dialogue that Chief Judge Marvel encourages is welcome. So was some of the clarifying information at the start of the presentation, including reminders of the pro se nature of the Tax Court and that PACER limits access to Social Security and immigration cases, cases that like tax cases are embedded with lots of sensitive information. My sense is though that the Tax Court judges recognize that the balance is shifting on this issue, the balance between transparency and privacy is not currently correctly calibrated, and that Counsel’s access to all briefs and filings gives it a leg up over the private bar that could be remedied without major harm. Judge Buch’s suggestion to allow access to Counsel filings would be an easy start, though I think it is not too much of a leap to allow access to classes of documents like briefs and dispositive motions in all cases where there is counsel.
Now, when it comes to transparency and consistency for Tax Court orders….well that is another story and perhaps the subject of a future panel.
About Leslie Book
How about a survey of Tax Court litigants to ask them how they feel about online disclosure of case documents? The result might surprise those who think privacy is still worth protecting. Petitioners under 40 might ask if they could provide links on their Facebook pages.
Those who object should be asked for specifics on what details they prefer to keep opaque, and what alternatives might mollify their concerns. A final question could be, “Were you aware when you filed your case that anyone who visits the Tax Court in Washington, or has the funds to hire someone else to do it, can find out everything in the file anyway?”
“included the Chief Justice of the Tax Court of Canada”
The Tax Court of Canada differs from US Tax Court in some valuable ways. One is that, as far as I can tell, the court can take jurisdiction even when there is no allegation of an underpayment or other misdeed (e.g. a case that is solely for refund). One is that CRA (formerly Revenue Canada) doesn’t represent iself but the Department of Justice does, and one is that as far as I can tell the DOJ consults with CRA so the DOJ doesn’t persuade the court to make a ruling that CRA opposes. One is that court clerks don’t obstruct efforts by pro se’s to obtain due process. Also Canada doesn’t have the equivalent of IRB 2005-14 and never penalized me for writing an honest declaration on a tax return, e.g. when a US company issued a falsified W-2 (equivalent to Canada’s T-4). One is that I never saw the Tax Court of Canada put insufficient postage on their mail.
“Current Tax Court practice essentially limits e-access to documents to parties, and those who have the resources or friends to go the Tax Court in DC can go and make make copies.”
Resources or friends to go to Tax Court and make copies means not e-access. There is another way if you have resources though. You can pay US Tax Court 50 cents per page to make copies, and I’m not sure if you have to pay postage or if the copying fee includes postage.
“privacy concerns around often sensitive personal information that is embedded in the mostly pro se docket that makes up the court’s basket of cases.”
The published position of the US Department of Justice, in its Criminal Tax Manual, is that IRC 6103 authorizes sensitive information such as social security numbers to be disclosed to the DOJ but not to be disclosed to the public. Howeve, the DOJ persuaded the 9th Circuit to rule that IRC 6103 authorizes both the IRS (in Tax Court filings) and the DOJ (in other court filings) to disclose social security numbers to the public.
A member of the public obtained one by paying 50 cents per page to US Tax Court and using PACER in another court. US District Court for the Central District of California destroyed the witness’s notarized declaration and ruled that the court did not receive the declaration, even though the server (not a party) has a US domestic certified mail return receipt signed by a court employee.
“Judge Buch’s suggestion to allow access to Counsel filings would be an easy start”
Then the public will be able to obtain parties’ social security numbers through the internet.
I sometimes purchase documents from cases that sound interesting to me. The Court hasn’t added any postage charges so the rate has simply been $.50/page. This has been a great help to me. All you have to do is call the Court and identify the case and which item(s) from the docket sheet you want copied. The Court will provide a control number and you pay online at pay.gov.