Now that the ABA Tax Section meeting is over, we encourage PT readers to consider attending virtually the 8th International Conference on Taxpayer Rights. This year’s conference will be held from 24 to 26 May; its theme is Access to Justice: Judicial Review & Alternative Dispute Resolution. The conference is actually in-situ in Santiago, Chile, but will be live-streamed in EDT over the days. Judges and practitioners from all over the world are on the panels, and for a mere $100 you can participate virtually for the entire three days (there are discounts available for JD/LLM students) and learn how tax issues are handled in administrative, specialized, and constitutional courts as well as under civil law and common law. You can see the conference agenda and register here. Nina
Don’t get too excited by the title whether you are for or against greater electronic availability of Tax Court records. The Tax Court is not opening the door widely to greater electronic access but is taking a small step to expand access. At the same time, it is also changing the information displayed on decision documents in response to concerns about making taxpayer addresses easily accessible.
One of the many beneficial aspects of attending the ABA Tax Section meetings is the opportunity to hear government speakers and gain insight not otherwise available. At the recent May meeting, I attended the breakfast gathering of the American College of Tax Counsel (ACTC) where the speaker was Tax Court Judge Buch who spoke about the Court’s current thinking regarding electronic access to documents. He spoke several years ago on the same topic and in the earlier presentation provided numerous slides showing the abysmal compliance with the Court’s redaction rules. You can access his slides in the Tax Notes article Maggie Goff and I wrote here. In the recent presentation he did not have updated slides and, for the most part, did not have updated information regarding redaction compliance. I have no reason to believe that redaction compliance has greatly improved in the intervening years nor did he.
What has changed in the intervening years is the introduction of DAWSON, the Court’s case management system. Prior to the Court’s adoption of DAWSON, the Court made some statements suggesting that when it had all of the new capabilities DAWSON would create online access to documents might improve. So far, that has not really been the case. Judge Buch reminded the audience that DAWSON continues to add new features, some transparent to those outside the Court and many important for Court functionality but not making a difference to practitioners and petitioners. Judge Buch’s comments made clear that as it works though the updates to DAWSON and continues to field complaints or comments from people like me about electronic accessibility, the Court is continuing to think about what makes sense for greater accessibility while continuing to protect information that needs to be protected.
In this post I will explain the newly accessible information, the changes to decision documents to reduce information displayed, some insights provided by Judge Buch on the Court’s current thinking and some thoughts on future steps.
Briefs
While Judge Buch’s presentation gave much more information about the change to electronic accessibility, the change was formally announced on May 5, 2023, by Chief Judge Kerrigan in the Court Procedure and Practice Committee meeting and in Administrative Order No. 2023-02. The Order begins by noting the problems with compliance with Tax Court Rule 27 regarding redaction of certain information. It then announces that beginning on August 1, 2023:
all newly filed posttrial briefs filed by practitioners admitted to practice before the Court and all newly filed amicus briefs filed pursuant to Rule 151.1 in non-sealed cases will be made available to the public remotely through DAWSON
Briefs filed prior to August 1, 2023, will continue to be available, the same as essentially all documents filed with the Tax Court, by visiting the Court to use the one computer terminal available in the Court for public access to documents filed with the Court or by making a records request.
There was a statement at the ACTC breakfast that it is now possible to make a records request via email and not just by phone. I contacted the records office and was told that the request for records should be made via a phone call as described in the post. The person with whom I spoke indicated that for very large orders the records section had accepted an email request on occasion. Allowing email requests would be an improvement because calling sometimes creates phone tag though I enjoy my conversations with the employees of the records section.
Judge Buch parsed the Administrative Order for those fortunate enough to hear his presentation and I will try to duplicate his comments. The first category of documents to become publicly available electronically are those meeting four criteria:
- Post-trial briefs
- filed after July 31, 2023
- by practitioners admitted to the Tax Court and
- filed electronically by an admitted practitioner (paper filed briefs do not qualify)
So, briefs filed by pro se petitioners will not become available electronically but continue to be publicly available through the normal process of accessing documents. This follows the Court’s concern that pro se petitioners, who make up over 80% of the petitioners to the Court, would not take care to meet the requirements of Rule 27. The Court reviewed a number of post-trial briefs filed by practitioners admitted to the Tax Court and found the incidence of non-compliance with Rule 27 very low. Judge Buch mentioned four cases where non-compliance was noted, but I am uncertain how large the sample size of the survey of briefs was and cannot comment on the percentage of non-compliance.
Judge Buch noted that the Court will make the briefs available when filed except where simultaneous briefing has been ordered. In cases in which a judge orders simultaneous briefs, one party might lodge their brief prior to the other. The Court will not make the briefs available until both parties have submitted their briefs so that the party submitting the earlier brief is not disadvantaged.
This change to electronically post practitioner briefs makes sense to me as a first step. Briefs generally contain little material that would benefit someone trying to access a petitioner’s personal information. The ability to see briefs is also one of the most beneficial documents in the file. Each semester I explained to my students that PACER provides one of the best sources of plagiarizing available and that though they have spent 19 years in an education system being told not to plagiarize the world of legal practice is one of heavily borrowing language and arguments from prior documents where possible to reduce client cost. The ability to easily see briefs should assist practitioners who may want to use prior arguments in support of their clients. Aside from whether you want to reuse the material, the ability to read the brief without having to order it allows interested individuals to gain much greater understanding and insight into cases.
The second item that becomes publicly available online is amicus briefs. The Court has a new rule on amicus briefs. Several judges have requested amicus briefs in the past year after the Court proposed new rule 151.1. The writers of amicus briefs do not have personal information about the petitioner making it extremely unlikely that such a brief would contain information requiring Rule 27 redaction. Allowing electronic access to these briefs makes perfect sense and presents the easiest case of almost any document not produced by the Court. The order seems to allow access to amicus briefs whether filed pre or post trial. The Tax Clinic at Harvard has submitted amicus briefs recently in Frutiger (A copy of the brief is available here. The IRS filed a response here.), Organic Cannabis (amicus brief) and Sanders (amicus brief).
These briefs were submitted prior to a trial. While I think that these amicus briefs would be available had they been filed after August 1, 2023, as I read the new order the IRS response to an amicus brief may not be available if it is filed prior to a trial even though in response to the amicus brief. This is not clear. With the Court deciding so many cases by order, parties file many non-amicus briefs or lengthy memorandums prior to trial. The administrative order would not cover these briefs. Judge Buch commented that motions present greater risk because people often attach documents (such as exhibits) directly to motions. Hopefully the court will expand online access to motion practice in a future order if it becomes more comfortable or determines a means of separating attachments from the motions and briefs in support of motions. This is of particular interest for collection due process cases, many of which are disposed of by summary judgment.
The administrative order limits the availability of these briefs to those cases in which the record is not sealed. I think the limitation applies to both categories of briefs though I question the need for this limitation in amicus briefs which would not seem likely to contain information that would require sealing.
Decision Documents
The Court is changing decision documents to remove from the signature block of documents signed by petitioners their address and phone number. This change will make it more difficult for the helpful companies who contact taxpayers with outstanding tax liabilities to scrape DAWSON and contact these petitioners. When the IRS files a notice of federal tax lien, these helpful companies almost always reach out to the individuals identified in the lien. I have had clients who received over 70 pieces of correspondence from these helpful companies. Maybe lonely individuals appreciate this level of correspondence, but most people do not. By removing the addresses and phone numbers, the Tax Court is responding to concerns raised by the low-income tax clinic community and hopefully assisting petitioners having their mailboxes filled with solicitations. The same addresses would appear in the certificate of service filed, for instance, in a post-trial or amicus brief.
General Comments by Judge Buch on Court’s actions regarding electronic access
Judge Buch responded to some of the comments that the Court has received. Commenters have suggested that the Court should purchase available software that would perform the redactions petitioners and representatives fail to perform. He said that the Court issued an RFP (or maybe multiple RFPs) and pursued contact with software developers to determine if such software would accurately remove the personal data. The Court determined that available software would only remove about 50% of the personal data. In addition to the low level of redaction compliance the software could bring, it had a cost that exceeded the Court’s current IT budget. Judge Buch did not provide information about the specific software, but there is no reason to believe that the Court did not perform an appropriate search. Knowing that it performed the search helps to understand the Court’s ongoing efforts to balance access to information with protection of privacy.
Judge Buch explained that even though those representing taxpayers at calendar call would appreciate having the pre-trial memorandums filed in those cases, there was too much risk that pro-se petitioners would attach documents in violation of Rule 27. I agree with that observation as it relates to pre-trial memos filed by petitioners but those filed by respondent, which would be much more helpful to anyone working a calendar call, are unlikely to contain information in violation of Rule 27. Although I don’t remember him discussing the reasoning for not posting respondent’s pre-trial memos, I suspect the unwillingness to just make electronically available respondent’s pre-trial memos stems from the imbalance that exhibiting only one party’s memos would create even though I believe I understood the new rule to allow the electronic publication of respondent’s post-trial brief but not the post-trial brief of the pro se petitioner.
Judge Buch explained that imperfect petitions the Court files may skew the percentages of non-compliance with the redaction rules suggesting that the non-compliance may be even higher if these petitions were not counted in reaching the percentages.
Judge Buch noted that many practitioners, and particularly those picking up cases filed pro se, may do a good job of complying with Rule 27 going forward after entering the case but were not doing a good job of fixing the Rule 27 violations committed by petitioners while they were pro se. He raised the question of whether there might be potential liability to a petitioner/client if that person’s identity is stolen and the lawyer took no steps to review the record and seal improper disclosures. He indicated this could be accomplished by motion. As someone who regularly picked up most cases after the filing of the petition and never went back to fix prior Rule 27 violations, I found his comments interesting. As a best practice, this suggestion is something the LITC community of practitioners might adopt to better serve their clients.
In our article linked above, Maggie Goff and I noted that the reason for not making documents public in cases involving individuals would not seem to apply cases filed by entities. Judge Buch pushed back on that logic saying that some entity cases contained personal information. I am sure he is right. He did not provide details regarding the number or percentage of entity cases that improperly contain unredacted personal information and without more data I cannot assess the harm versus value equation of the decision. He did not say that it would be too difficult for the Court to make public entity case information while keeping most case information in individual cases unavailable electronically.
He said that the Court does not redact. We have written before about at least one instance where it seemed the Court was engaged in redaction. I think the Court does occasionally redact information, but I understand why it does not routinely do so. The effort, without a software fix, would quickly overwhelm the record office.
Going Forward
I applaud the Court’s decision to make electronically available two additional categories of material. I appreciate Judge Buch’s willingness to provide a window into the Court’s thinking on the subject that allows practitioners, including complainers like me, to know that the Court is actively thinking about this topic.
I think the Court could promote better compliance with Rule 27 by adopting a few simple practices. In response to comments, the Court updated its form petition in March of 2023 to add language about the importance of redaction; however, it added this language in a paragraph about privacy that I feel does not properly highlight the issue. It could add a discussion about redaction in one of the two pages of instructions for those who read instructions, and to better highlight the need for redaction, it could add a fillable check box certifying redaction just above the signature point of the petition where it has other fillable check boxes. Of course, it’s early after the recent change and maybe the change it has made will make a measurable difference. One of the attendees of the ACTC breakfast suggested that the Court post a sample or other instructions on its website to guide pro se petitioners and practitioners on how and what to redact. The IRS notices contain private information in many places. Parties often remove it from page one only to include a treasury trove of private information on pages 2-20, or they fail to redact the bar code on page one.
Each document filed with the Court could contain a redaction certification. In the PACER system, the party submitting the document must certify compliance with redaction rules. Certification of electronically and paper submitted documents could serve as a reminder that should improve compliance with the rule and protection of taxpayers.
While attachments are not the only place parties fail to follow Rule 27, attachments provide the richest source of personal information. Looking to make documents available without attachments is a way to eliminate much of the personal information from electronic availability.
Making documents filed by the government electronically available will almost never reveal inappropriate information. If the Court is already making that distinction with post-trial briefs, it might consider it for other documents as well.
Conclusion
Thanks to the Court for making the changes described here and to Judge Buch for another informative presentation. Baby steps but forward moving steps. I hope for more accessibility in the future but with continued emphasis on protecting taxpayer information that would violate privacy.