An order in the case of Boateng v. Commissioner, Dk. No. 37647-21 issued on July 26, 2022, shows the Tax Court’s willingness to redact personal information that the petitioner should have but failed to redact. Thanks to Carl Smith for bringing this to my attention and to his additional research.
Tax Court Rule 27(a) requires parties to redact certain information such as taxpayer identification numbers and financial account numbers when submitting pleadings and documents to the Court. Maggie Goff and I published an article in Tax Notes two years ago entitled “Nonparty Remote Electronic Access to Tax Court Records.” The article suggests that the Tax Court make its records more electronically accessible while still protecting the privacy of individuals in an appropriate manner. We included slides and information complied by Judge Buch showing how poorly both pro se petitioners and practitioners comply with this rule, regularly placing into the Court’s records information the Rule requires they redact. Judge Buch cited the poor compliance with this rule as a basis for the Court’s decision not to make its records electronically available.
read more...Historically, the Court did not redact for petitioners who failed to do so but that seems to be changing. In the Boateng case, Special Trial Judge Choi identifies documents the petitioners should have redacted. The case came to her on a motion filed by the IRS to dismiss the case for failure to state a claim. Petitioners sent to the Court an unredacted copy of the notice of deficiency they received for 2019 together with copies of tax forms for that year. In reviewing the motion, Judge Choi noticed the non-compliance with the redaction rules which puts the petitioners’ information into a public record.
Judge Choi ordered petitioners to file amended pleadings using the Court’s form petition so they could perfect their imperfect petition and she ordered payment of the filing fee (or the fee waiver form.) I have written about imperfect petitions previously, here. The Court then took the IRS motion under advisement pending receipt from petitioners of a corrected or perfected petition. If they file using the Court’s form, I anticipate the Court will deny the motion. If they fail to act, it will eventually grant the motion.
In addition to addressing the motion, Judge Choi identifies and addresses the unredacted information. She states:
Due to the unredacted personal identifying information appearing in the Petition, the Court will take steps to seal petitioners’ petition to protect their information.
It was this sentence that caught Carl’s eye because he found it unusual, as did I. In looking further, however, Carl found that at least some judges on the Court had been sealing unredacted information for some time.
He went to DAWSON and put in the word “redact,” searching orders and found 28 orders redacting things in cases during the first four weeks of July 2022. In the month of January 2021, Judge Leyden redacted two petitions on her own motion. In January 2022 it appears the Court sealed 10 petitions for failure to properly redact. It looks like there is a steady trend to redact.
This movement seems to reflect a change in Court policy or may just be the adoption of a practice to redact by certain judges. From the time of filing until the calendaring of a case, petitions generally sit unassigned in the general portfolio of the Chief Judge. So, absent an effort by the Chief Judge to root out improperly redacted submissions, orders like the one in the Boateng will be ad hoc. There was no order in the docket list assigning the Boateng case to Judge Choi but maybe orders are not needed to assign cases to a special trial judge to respond to a motion filed by the IRS.
In any event, the Boateng order suggests an attention to redaction and sealing that is relatively recent and welcome. The number of redaction orders in no way reflects the number of cases with improper redactions but is still a benefit to the identified petitioners. It also suggests that some of the judges on the Court are thinking about ways to protect petitioners other than making it difficult to access public records. District Courts and Circuit Courts routinely require a certification when filing electronically filing documents that the person filing the documents has complied with the redaction rules. I do not know if requiring the certification would reduce the non-compliance at least among practitioners but it might be worth a try if the Tax Court wanted to look for additional ways to improve compliance with the redaction rule.
What is or is not “personal information” is in the eye of the beholder. In a court opinion is it important to lay bare what a taxpayer’s taxable income was, or could the published opinion use hypothetical numbers as in Revenue Rulings? PLRs have the opposite problem: so much is redacted that the relationships between dates or between amounts or numbers cannot be discerned even if it is important to the logic. This has real consequences. I am aware of a situation where a taxpayer declined to challenge an assessment because the taxpayer would have had to reveal to the public how much money it was making and that was a larger commercial risk than paying an overstated tax.