The Tax Court Should Modify its Form 2 Petition to Add a Checkbox for Passport Actions

0 Flares 0 Flares ×

We welcome back frequent guest blogger Carlton Smith. Today Carl highlights a possible cause of confusion for taxpayers, IRS and the Court, involving the Tax Court’s new passport-related jurisdiction. Christine

Section 7345(d) requires the IRS to notify taxpayers when it has sent a certification to the Secretary of State with respect to a “seriously delinquent tax debt” for which the IRS is asking that a passport be denied, revoked, or limited.  Section 7345(e)(1) states, in part:  “After the Commissioner notifies an individual under subsection (d), the taxpayer may bring a civil action against the United States in a district court of the United States, or against the Commissioner in the Tax Court, to determine whether the certification was erroneous or whether the Commissioner has failed to reverse the certification.” 

The Tax Court is now seeing its first passport actions under section 7345(e)(1), and I can report that the Tax Court has decided to place a “P” at the end of the docket number when a taxpayer files a passport action.  What the Tax Court has so far failed to do is modify the simplified petition form appearing on its website (Form 2) to contain a box to check for a passport action.  I think that is why the Tax Court recently had to enter the following order in Brancatelli v. Commissioner, Docket No. 13836-18P.  My guess is that the taxpayer used Form 2, could not figure out which box(es) to check, and so checked boxes relating to notices of deficiency and notices of determination for Collection Due Process actions.  The Chief Judge’s September 10 order in the case reads, in full:

The petition in this case was filed on July 13, 2018. Among other things, in his petition petitioner seeks review of (1) a purported notice of deficiency dated June 18, 2018, allegedly issued for his taxable years 2005, and 2007 through 2014, and (2) a purported notice of determination concerning collection action dated June 18, 2018,  allegedly issued with respect to his taxable years 2005, and 2007 through 2014. 

On September 6, 2018, respondent filed a Motion To Dismiss on Grounds of Mootness stating that respondent, subsequent to the filing of the petition, has notified the Secretary of State that respondent has reversed respondent’s certification of petitioner as an individual owing serous delinquent tax debt for 2005, and 2007 through 2014. 

On September 7, 2018, respondent filed an Answer to the petition. In his 

Answer respondent acknowledges that a Notice CP508C, notice of your seriously delinquent tax debt was issued to the State Department, was issued with respect to 2005, and 2007 through 2014, but respondent denies that any notice of deficiency for 2005, and 2007 through 2014, and/or notice of determination under I.R.C. section 6320 or 6330 for 2005, and 2007 through 2014, was issued to petitioner. 

Upon due consideration, it is  

ORDERED that, on or before October 1, 2018, respondent shall file an appropriate jurisdictional motion as to so much of this case relating to the notice of deficiency for 2005, and 2007 through 2014, and the notice of determination under I.R.C. section 6320 or 6330 for 2005, and 2007 through 2014. The Court will hold in abeyance respondent’s September 6, 2018, motion to dismiss on grounds of mootness. 

In order to avoid further wasteful use of judicial and party resources dealing with jurisdictional issues, I would hope and expect that the Tax Court would adopt a new Form 2 as soon as possible that contains a box to check for passport actions.  Until the Tax Court does so, however, I would advise practitioners representing taxpayers in passport actions not to use Form 2, but to draft custom petitions. 

 On March 28, 2016, the Tax Court adopted interim rules (which were also issued as proposed rules) dealing with passport actions at Title XXXIV of its Rules of Practice and Procedure (Rules 350 to 354).  They can be found on the Tax Court’s website under “Press Releases” for that date.  Interim Rule 351(b) specifies the contents of a passport action petition and directs that such petition be captioned:  “Petition for Certification or Failure to Reverse Certification Action Under Code Section 7345(e)”.  Oddly, while the Tax Court also modified Form 2 at the same time that it proposed and adopted these passport action rules, the new Form 2 did not contain a box to check for passport actions.  Nor do the instructions to Form 2 mention passport actions.

Carlton Smith About Carlton Smith

Carlton M. Smith worked (as an associate and partner) at Roberts & Holland LLP in Manhattan from 1983-1999. From 2003 to 2013, he was the Director of the Cardozo School of Law tax clinic. In his retirement, he volunteers with the tax clinic at Harvard, where he was Acting Director from January to June 2019.


  1. Scott Davies says

    I believe, but am not certain, that a pro se litigant filed the first P case using TC Form 2. No box appears to have been checked by the individual who filed the case. Instead, the court appears to be adding its own box after the petition is filed. The court also appears to be adding the label “NOTICE OF CERTIFICATION.” I imagine some petitioners could be confused but at least in the one case I am aware of, the petitioner was able to file his case.

  2. When Rules 350 through 354 (in new Title 34 of the Rules) were proposed by the Tax Court in March 2016, the explanation included this:

    “The Court has determined that there is not an immediate need to provide the proposed amendments set forth in new Title XXXIV as interim amendments because it is unlikely that a petition under section 7345 will be filed in the near future.” (By the way, what’s up with those Roman numerals?)

    The Court invited comments on the proposed Rules by April 30, 2016.

    There were other changes in the Rules that took effect immediately, as “Interim” Rules, because the statutes that required them took effect immediately.

    So what has happened with the Proposed Rules 350-354, in the last two years? Did they fall through some cracks at 400 Second Street NW? The Tax Court website link to Rules ends with Rule 345.

    I agree with Carl Smith that some kind of standard form would be helpful for these new passport cases, but I wonder if trying to modify Form 2 is like pounding square pegs into round holes. It will just make life harder for the vast majority of petitioners who have round pegs.

    There are specific requirements for Section 7435 cases that justify the need for a specific form. It would take most of an hour to design one and probably another hour to convert it into a fillable PDF. Here is what the new Rule 351 requires, starting with the exact title of the Petition:

    “A petition filed pursuant to this Rule shall be entitled ‘Petition for Certification or Failure to Reverse Certification Action Under Code Section 7345(e)’ and shall contain the following:

    (1) The petitioner’s name, State of legal residence, and mailing address, stated as of the date that the petition is filed.

    (2) The date of the notification of the certification under Code section 7345(d).

    (3) Lettered statements explaining why the petitioner disagrees with the certification or the failure to reverse the certification.

    (4) Lettered statements setting forth the facts upon which the petitioner relies to support the petitioner’s position.

    (5) A prayer setting forth the relief sought by the petitioner.

    (6) The signature, mailing address, and telephone number of the petitioner or each petitioner’s counsel, as well as counsel’s Tax Court bar number.

    (7) As an attachment, a copy of the notification.”

    Incidentally, has anyone noticed recently that Rule 34, regarding the contents of a petition in deficiency and collection cases, requires a statement of “the office of the Internal Revenue Service with which the tax return for the period in controversy was filed.” ? I knew I had been leaving something out. The Tax Court’s sample “Form 1″ still includes this, though. For electronically filed returns, how many practitioners know where the digits were received?

    • Bob,

      Thanks for the correction about whether the passport rules were in fact interim.

      As for Rule 34, I have previously written to the Tax Court that the question about the office to which the return was filed should long ago have been eliminated from the Rule and the Form 1 petition. The only reason that the return filing location question ever was in the petition form was that, prior to 1966, venue on appeal was determined by the place where one filed the relevant return. So, the court wanted the question answered so it could know the court of appeals to which the case was going. Since 1966, though, appeals generally go to the Circuit of residence. Hence the need to set out the residence state in the petition, but not the place where the return was filed.

      Today, with so many people e-filing, I pointed out to the Tax Court that probably most people could not say where the return was filed, even if they wanted to. So, people are putting nonsense into their Form 1 petitions when they try to answer that question.

      And I also pointed out that by the time Form 2 was created (and when appellate venue was no longer determined by the location of return filing), the drafters of Form 2 did not even ask the question about where the return was filed. I pointed out that, therefore, Form 2 violates Rule 34 in not asking the now useless question.

      But, my comments fell on deaf ears.

      When simplified Form 2

      • I did not intend that as a correction of what you wrote. I should have reread your post before commenting, but I was befuddled enough by that 2016 press release with “interim” Rules for some cases and “proposed” Rules for others, that I just clicked on “Post” and expected someone to point out how I had overlooked the obvious. I still wonder if my browser has a problem and if I just sign on to the Tax Court website again, the (proposed) new Title XXXIV, not to be confused with the archaic Rule 34, will magically appear.

        Were these Rules changes discussed at the Judicial Conference last March in Chicago? Do Interim Rules and Proposed Rules automatically become final after passage of time? Or does someone have to sign off on them? Did anyone submit comments? Did anyone read them?

Comment Policy: While we all have years of experience as practitioners and attorneys, and while Keith and Les have taught for many years, we think our work is better when we generate input from others. That is one of the reasons we solicit guest posts (and also because of the time it takes to write what we think are high quality posts). Involvement from others makes our site better. That is why we have kept our site open to comments.

If you want to make a public comment, you must identify yourself (using your first and last name) and register by including your email. If you do not, we will remove your comment. In a comment, if you disagree with or intend to criticize someone (such as the poster, another commenter, a party or counsel in a case), you must do so in a respectful manner. We reserve the right to delete comments. If your comment is obnoxious, mean-spirited or violates our sense of decency we will remove the comment. While you have the right to say what you want, you do not have the right to say what you want on our blog.

Speak Your Mind