DAN PILLA’S TAX COURT TROUBLE SHOOTING GUIDE
20 Tips, Techniques and Strategies for Handling Your Tax Court Case
by Daniel J. Pilla
After helping countless hundreds of people with cases before the United States Tax Court, I know that you can be successful with your case only by paying attention to the details. The Tax Court's Rules of Practice and Procedure establish the format that must be followed at all stages of a Tax Court case. Although the rules are not particularly complicated, they sometimes pose problems or questions which, if not handled properly, can lead to serious consequences.
In an effort to help you win your Tax Court case, I have compiled a list of 20 "Trouble Spots" you need to be aware of as you work your case through the Court. These Trouble Spots are the areas where other citizens had problems with their Tax Court cases. Recognizing these potential problems and handling of them properly on the front end can mean the difference between winning and losing your case.
As you read my Tax Court Trouble-Shooting Guide, refer to your copy of the Tax Court Rules of Practice. Where I point to a specific rule, you should read it entirely. And if you haven't done so already, you must read the rules cover to cover. You can make notes as to how the Trouble Spot may be avoided in your own case. This exercise will help ensure that you've followed all the critical rules I discuss here and thus avoid hidden traps that could ruin your case.
If you don't have a copy of the Tax Court's rules, they are easy to obtain. The Rules may be purchased in loose-leaf form from the Clerk's Office by writing to the United States Tax Court, 400 Second Street, N.W., Washington, D.C. 20217. Enclose a check or money order for $20 payable to the Clerk, United States Tax Court. The Court warns you to not send cash. Another way to obtain the rules is to download them directly from the Court's web site. Just go to www.ustaxcourt.gov and click on the "Rules" tab on the home page. You'll be able to download the rules in pdf format.
TROUBLE SPOT 1 – A Timely Filed Petition
You commence a Tax Court case by "filing a petition with the Court." Rule 20, Tax Court Rules. (Note that all references to the "rules" in this discussion are to the Tax Court's Rules of Practice and Procedure, unless otherwise indicated.) But it's not just that simple. The petition has to be filed on time in order for the Court to have jurisdiction of the case. The Tax Court is a court of limited jurisdiction. That means only certain cases can be presented to the Court under certain circumstances. If the Court does not have specific jurisdiction over a case, it will not hear the case. Naturally, a court known as the Tax Court is set up to hear tax cases. And the U.S. Tax Court is designed to hear cases growing from disputes between the IRS and citizens over the amount of their tax liabilities.
There is a broad range of different types of cases the Tax Court has the authority to consider but there are four common cases that a typical citizen or small business might encounter. The time for filing a petition with the Court is controlled by the Internal Revenue Code in each case. Each type of case carries a separate deadline for filing the petition. I explain generally each of the four cases and their petition-filing deadlines below:
a. The deficiency case. When the IRS completes an audit of a tax return and no agreement is reached as to the liabilities, the IRS mails a Notice of Deficiency to the taxpayer. This is the agency's final administrative determination that you owe additional taxes. The IRS must issue a Notice of Deficiency before it can assess and collect any of the taxes the agency claims you owe. If you begin a deficiency action in Tax Court within the time allowed by law, the IRS cannot assess or collect anything until the decision of the Court is final, and then the IRS can collect only the amount the Court says you owe. Code §6213(a) provides that you must file a petition with the Court within 90 days of the date the IRS mails the Notice of Deficiency. For more on the Notice of Deficiency and audit appeals, see my book, Taxpayers' Defense Manual.
b. The Collection Due Process appeal. Before the IRS can legally levy or seize any property to collect an assessed liability, it must first issue Letter 1058 (or in the case of filing a Notice of Federal Tax Lien, Letter 3172). Letter 1058 is a Final Notice of Intent to Levy and Notice of Your Right to a Hearing. See: Code §§6320 and 6330. The filing of a request for a Collection Due Process Hearing stops all collection action and gives you the opportunity to negotiate with the IRS for payment terms or to present other collection alternatives that might ameliorate the hardships of enforced collection. If you cannot come to terms with the IRS on a collection alternative, the IRS issues a Notice of Determination. You have the right to seek Tax Court review of the IRS's determination. Code §6330(d)(1) provides that you must file a petition with the Court within 30 days of the date the IRS mails the Notice of Redetermination. For more details on the Collection Due Process appeal and how to present such an appeal, see my book How to Get Tax Amnesy.
c. The Innocent Spouse appeal. When a joint federal income tax return is filed by a married couple, the law creates "joint and several" liability for entire tax. That is to say, each person owes the entire tax, even if one person had substantially less income than the other (or even none at all). But under several circumstances, a party can be relieved of a joint liability when it is shown that the party is not responsible as outlined in the law. This is known as Innocent Spouse relief and it is controlled by Code §6015. If you present an Innocent Spouse claim to the IRS that is rejected, the IRS must issue a Final Determination setting forth its reasons for rejection. Code §6015(e)(1) provides that you must file a petition with the Court within 90 days of the date the IRS mails the Final Determination. For more details on the Innocent Spouse appeal and how to present such an appeal, see my book, Taxpayers' Defense Manual.
d. The Employment Status appeal. In the course of many business audits, the IRS examines the business's use of independent contractors. If the IRS determines that the company should have treated independent contractors as employees, the IRS issues an Employment Status determination in which it effectively converts the workers to employees and proposes the assessment of all corresponding employment tax liabilities and penalties. Code §7436 gives the Tax Court jurisdiction to review the determination. Code §7436(b)(2) provides that you must file a petition with the Court within 90 days of receiving the IRS's Notice of Determination regarding Employment Status. For more discussion on the issue of independent contractors and employees, see my book, The IRS Problem Solver.
Please understand that each separate filing deadline is fixed by law. I cite the code section in each case that establishes the deadline. Since Congress sets these deadlines not the Tax Court, the Court has no authority to alter, modify, extend or suspend the deadline. Likewise, the IRS has no such authority, despite what certain IRS agents might say to you. This means simply that unless you get your petition filed with the Court by the legal deadline, the Court will not hear your case. The filing deadline is "jurisdictional." If your petition is filed late, the Court lacks jurisdiction to hear your case and you will lose by "default."
The bottom line is that the substantial risks associated with the failure to report offshore income coupled with the increasing likelihood that the IRS will obtain information about offshore financial account holders makes it hardly worth it to not just pay the tax and be done with it. It also bears stating again that if you have or know someone who has an undeclared offshore account, you need to get counsel about what to do to get into compliance regarding the account. Failure to do so is, in a very real way, playing with fire.
TROUBLE SPOT 2 – A Tax Court Petition
In each case, there are two crucial elements of a properly drafted petition. They are: a) a statement of errors that you believe the IRS made in deciding the case against you, and b) a statement of the facts that support your version of the case. In order for the Court to rule favorably, you must state exactly what the IRS did wrong, either in computing your tax or making the decision on the issues at stake in your case. You must then state the correct facts to allow the Court to see your point.
The Tax Court's rules provide additional guidelines for each of the four types of cases I identified above. Review the rules carefully to be sure your petition raises all the required allegations. A petition in a deficiency action is covered by Rule 34(b). Rule 331 covers Collection Due Process actions. Rule 321 covers Innocent Spouse cases. And Rule 291 covers Employment Status determinations.
If you already filed your petition, review it carefully to be sure it conforms to the Rules. If it does not, amend it in accordance with Rule 41. If you did not yet file your petition, read the applicable rule carefully before drafting your document to be sure you cover all the bases.
TROUBLE SPOT 3 – The IRS's Answer to Your Petition
Filing the petition starts the Tax Court case. The clerk of court is responsible to serve a copy of your petition on the IRS's attorneys. The next step is for the IRS to answer the Petition. The IRS must file its answer within 60 days of receiving your petition.
The rules require the answer to contain "a specific admission or denial of each material allegation in the petition." Rule 36(b). To accomplish this, the IRS will expressly state that it either admits or denies the particular claims set forth in your petition on a paragraph-by-paragraph basis. The act of admitting a claim means the IRS concedes the issue for purposes of the entire case. The act of denying a claim means that the allegation is contested and the IRS expects you to prove the claim. Generally, the IRS simply denies all the allegations of the petition (other than non-critical items such as your name and address), thus keeping the burden of proof on you as to your key claims.
The answer often causes confusion for people with no court experience. Because the answer is loaded with statements claiming the IRS "denies the allegation" of paragraph x of the petition, this is often taken to mean that the claim is "not allowed." But you have to keep in mind that once your petition is filed, the final decision whether to allow or not a specific claim is outside the IRS's hands. Certainly the issues can be negotiated and usually are, but the Court alone has the final authority to allow or not all or part of your claims. The answer is merely the IRS's stated position that your claims should not be allowed. Think of the answer as the beginning of the negotiation process, not the end of it.
TROUBLE SPOT 4 – Affirmative Allegations
The vast majority of the answers the IRS files put forth mere admissions and denials of the allegations of the petition. In those cases, nothing has to be done to deal with the answer. As stated above, this starts the negotiation process which, in the majority of cases, leads to a settlement without the need of a trial.
But in some rare cases, the IRS includes in its answer "affirmative allegations." Affirmative allegations are specific charges by the IRS beyond mere admissions and denials. For example, suppose the IRS believes that you had additional income that was not reported on your tax return. However, the IRS's auditor did not include the alleged income in its Notice of Deficiency. The IRS's attorneys can bring up that matter by presenting affirmative allegations of the alleged unreported income in the answer.
You will know for sure whether your answer contains affirmative allegations by the way it's set up. The section of the answer that presents mere admissions and denials follows paragraph by paragraph the outline of your petition. Once that is complete, the IRS will begin a new paragraph with the words, "In further answering the petition, the Respondent [IRS] alleges as follows..." The answer then goes on in narrative fashion to set out the facts the IRS claims justify its position.
Affirmative allegations are very rare. The key reason is that while the burden of proof is on you as to any allegation in your petition, the Court's rules expressly place the burden of proof on the IRS as to any affirmative allegations. Rule 142(a) and (b). In case of civil fraud, where the IRS asserts the 75 percent penalty under code §6663, the burden of proof is on the IRS and "that burden of proof is to be carried by clear and convincing evidence." Rule 142(b).
TROUBLE SPOT 5 – Filing a Reply
If the IRS presents affirmative allegations in its answer, you must file a reply. Rule 37. You have 45 days from the date of service of the answer in which to file your reply. A reply is the pleading used to respond to the affirmative allegations in the answer. Your reply must "contain a specific admission or denial" of each affirmative allegation. Rule 37(b). Thus, your reply will be much like the IRS's answer. Keep in mind that any allegation you admit is considered resolved in favor of the IRS, whereas a denial keeps the burden of proof on the IRS.
In some cases, the IRS's affirmative allegations are either vague or not sufficiently detailed to give you a full picture of the case they are attempting to make. This can hinder your ability to file a proper reply under Rule 37. If this happens, a motion for a More Definite Statement under Rule 51 can compel IRS counsel to be more specific with their allegations. Under Rule 37, you have 30 days from service of the answer in which to file that motion. This maneuver enables you to meet your responsibility under Rule 37. The Court will order the IRS to file a more definite statement if the affirmative allegations are "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading..." Rule 51(a).
TROUBLE SPOT 6 –The Place of Trial and Hearings
The Tax Court is based in Washington, D.C. However, it hears cases in cities throughout the nation. Therefore when filing a case with the Tax Court, you should also specify the city in which you want your case heard. Otherwise, the place of trial will be Washington, D.C. You should file your Request for Place of Trial along with your petition. Rule 140(a) and Tax Court Form 5. If you have not done so and the Court has set the trial for Washington, you can file a Motion for Change of Venue, asking the Court to relocate the case to a Tax Court city nearest you.
When filing any motion with the Court, always file with it a request to have the motion heard in the Tax Court city nearest you. Normally, hearings on all motions are held in Washington, D.C. but just as in the case of trials, the Court can change the place of a hearing when "the convenience of the parties" will best be served. If you wish to speak out on your motion but can't travel to Washington, file a request to change the place of the hearing. See Rule 50(b)(2). It is also now quite common for hearings on such motions to be held by conference call. In that case, it's unnecessary to travel anywhere to argue for your motion.
TROUBLE SPOT 7 – Serving Papers on the IRS
Copies of all pleadings, motions, briefs, notices or other documents you might prepare in the course of your action must be served on "counsel of record" for the IRS. Counsel of record is always an attorney in the Office of Area Counsel in the Tax Court city you selected for trial. Failure to serve counsel of record may result in the Court refusing to take action on your document. Proof of service must be filed with the clerk, indicating that proper service was carried out. See Rule 21(a) and (b).
The Tax Court's electronic filing procedures make this process very easy. Even if you are not an attorney admitted to practice before the Tax Court, as a litigant before the Court, you may (but are not required to) sign up for e-filing. To get set up with e-filing, go to www.ustaxcourt.gov and click on the "eAccess" tab. Then click on the "Petitioner Access" link. You will be guided through the steps to get approved for e-filing.
If you an attorney just starting a Tax Court practice, e-filing is mandatory in most cases. Rule 26(b). In that case, click on the "Practitioner Access" tab to get signed up. You also need to be familiar with the Court's "e-filing Instructions for Practitioners," also available on the Court's web site, under the "eAccess" tab.
Once you're set up for e-filing, life gets easier because you no longer have to mail your documents to the Court or to the IRS's attorneys. After your documents are e-filed, the Court's computer system notifies the other party. That party then logs in to his own e-file account to get them.
TROUBLE SPOT 8 – Obtaining Evidence from the IRS and Others
In any Tax Court case, each party is entitled to the evidence that the other party possesses and intends to use in the trial. Parties are also entitled to obtain evidence from third parties that might be helpful. "Discovery" is the process by which the parties obtain evidence. The Court's discovery rules provide three separate tools for obtaining evidence. They are:
a. Interrogatories (Rule 71). Interrogatories are written questions you ask the IRS's attorney. These questions must be answered completely and under oath. The answers to the questions can help bolster your case and better understand the IRS's case.
b. Production of Documents and Things (Rule 72). This is the process used to obtain specific documents, such as examination work papers, witness statements, bank records, etc.
c. Depositions (Rules 74, 80 and 81). A deposition is the process of taking a statement from a live witness through direct questioning. It's much like having a witness on the stand in court, but there's no judge present in a deposition.
Before using any of these techniques, the parties are required to "attempt to attain the objectives of discovery through informal consultation or communication" with each other. Rule 70(a)(1). This rule is strictly enforced. See: Brannerton v. Commissioner, 61 T.C. 691 (1974). Thus, you cannot simply fire off your Interrogatories or Request for Documents and expect the IRS to cough up the information you seek. Rather, you must first send a so-called Brannerton letter.
This is nothing more than a written request in the form of a letter that asks for the same information you might seek through, for example, a Request for Production of Documents. So rather than using Rule 72 to ask for a tax examiner's work papers and the bank statements used to calculate your income, you would first send a Brannerton letter to the IRS's attorney asking for those same items. Only if the attorney fails or refuses to produce the information would you resort to the formal discovery tools.
You must also expect the IRS's attorney to use Brannerton and the discovery rules to obtain information from you. For example, IRS attorneys regularly send Bannerton letters seeking copies of all the documents you intend to use to prove any deductions that were disallowed in your audit.
TROUBLE SPOT 9 – Oppressive Discovery
At times, the IRS's discovery demands may become oppressive, vexatious, harassing or for other reasons, completely unwarranted and improper. This can happen in Employment Status cases where the IRS might demand volumes of information about how workers not relevant to the current proceeding were treated. In any case where the IRS's discovery becomes oppressive, you may apply to the Court for a Protective Order under Rule 103.
A protective order prevents the IRS from pursuing improper discovery practices. Such an order applies in cases where the Court's protection is needed to prevent "annoyance, embarrassment, oppression, or undue burden or expense." Rule 103(a) lists ten ways the Court can protect a person from such conduct. Any inappropriate conduct can be the subject of a Protective Order and the protections are not limited by the examples given in Rule 103. See Rule 103(a).
TROUBLE SPOT 10 – Working with the Office of Appeals
After the IRS files its answer (and if necessary, after your reply is filed), the case is generally sent to the Appeals Office for attempted settlement. Appeals Office consideration is a certainty in: a) deficiency actions, b) Innocent Spouse cases, and c) Employment Status cases if the Appeals Office did not issue the Notice of Deficiency or Notice of Determination and the Appeals Office was not otherwise involved with the determination. Appeals has full settlement authority in these cases. As such, Appeals takes a fresh look at the case, evaluates everything the IRS did, reviews your evidence and arguments and negotiates to resolve the case without a trial.
The Appeals Office generally works in good faith to resolve cases. Most Appeals Officers are well trained in the law and understand how the Tax Court process works. They have an interest in getting the cases resolved without a trial because the IRS's workload alone prevents them from taking every case to trial. They want to settle and the Appeals Office is usually the place to do it. That's why the vast majority of Tax Court cases are settled amicably without a trial.
On the other hand, Collection Due Process cases do not go back to Appeals for settlement negotiations. The chief reason is the fact that the Appeals Office issued the Notice of Determination to begin with. They will stand by their determination unless the Court finds that the determination is lacking authority in law or disregards the facts of the case. This means that you will not work directly with the Appeals Office in CDP cases in the first instance. Rather, you will work with IRS counsel in your effort to reach a settlement. For more on CDP appeals and how they are handled, see my book How to Get Tax Amnesty.
TROUBLE SPOT 11 – Stipulations
Prior to the trial, the parties are required to meet to discuss the facts. The Brannerton rule is designed to facilitate this process. The purpose of the meeting is to stipulate—that is, agree—to as many of the contested facts as possible. This is an important rule in tax litigation and is the one unique aspect of Tax Court cases compared to other federal court cases. For example, the Federal Rules of Civil Procedure that govern civil suits in federal district court do not require the parties to stipulate to as many of issues as possible. Rule 91 is important because it substantially cuts the time and expense of a trial.
Rule 91 requires the facts to be stipulated to the "fullest extent to which complete or qualified agreement can or fairly should be reached..." The stipulation process has the effect of narrowing the issues the Court must ultimately decide. It also makes the process much easier on a person representing himself. For example, once all of your documents are disclosed, either through your Appeals conferences or to IRS counsel, counsel can be expected to stipulate that the documents are what they purport to be. That is, that they are in fact your records of income or expenses covering the issues in question. The act of stipulating means you don't have to painstaking describe each document and establish its authenticity for purposes of having the documents admitted into evidence.
IRS counsel will generally instigate a stipulations conference by writing a letter asking you to meet for that purpose or by sending you a draft stipulation. You are by no means required to stipulate to whatever the IRS requests and you can request that specific facts helpful to your case be included in the stipulation. The process is a negotiation with the goal being to stipulate as fully as possible, thus narrowing the unresolved issues. This process is the reason that most Tax Court trials take only a few hours to complete, rather than the days or weeks often required in other courts. Refusal to work with IRS counsel in the stipulations process may result in your case being dismissed by the Court. See Rule 91.
If the IRS is unwilling to stipulate to certain facts that should not reasonably be in dispute, one way to force the issue is through the use of Requests for Admissions under Rule 90. This is the process of requiring the IRS to expressly admit or deny the truth of a specific statement. When the truth of a specific statement is admitted, that fact is considered resolved for purposes of the case. This can sometimes push the IRS into stipulating facts that should not reasonably be disputed.
TROUBLE SPOT 12 – A Motion for Summary Judgment
In cases where the IRS believes that all the material facts of the case are not in dispute and that the agency is entitled to judgment as a matter of law, the IRS can be expected to file a Motion for Summary Judgment. In doing so, IRS asserts that here is no need for a trial. Because the agency claims that all facts are agreed and thus no longer in dispute, it asks the Court to simply pass judgment on the legal issues involved. Summary judgment disposes of the case without a trial. Often, this is not a good thing.
If you want a trial but are presented with a motion for summary judgment, you must demonstrate to the Court that there are material questions of fact that have yet to be resolved. You do this by filing affidavits, which set forth the facts in detail. When you demonstrate to the Court that material facts have yet to be resolved, the Court should provide a trial where you can present evidence on your version of those facts. Unless you file the affidavit in the manner prescribed by the rules, the Court will decide your case without a trial. See Rule 121.
Deficiency actions generally do not involve summary judgment motions because such cases are dependent upon your records and testimony for resolution. However, Collection Due Process and Employment Taxes cases are routinely handled through the summary judgment process. If your case involves these issues, be prepared to deal with the IRS's Motion for Summary Judgment.
TROUBLE SPOT 13 – Deciding the Case Without a Trial
As I stated, the vast majority of cases, especially deficiency actions, are decided without the need for a trial. When both parties agree that all the issues are resolved and the parties are willing to settle the case, the process is accomplished by signing stipulated (agreed) Decision Documents. In a deficiency action, the Decision Documents set forth exactly what the agreed upon liabilities are for each year in question. The documents also agree that the tax can be assessed and collected.
Both you and the IRS's attorney sign the documents, which are then filed with the Court. Once the Court signs, it becomes the final decision of the Court that binds the parties. Before signing any Decision Documents, be sure they accurately reflect the agreement you had with the IRS. If they do not, contact the IRS attorney or Appeals Officer to get the discrepancy resolved before moving forward.
TROUBLE SPOT 14 – Subpoenaing Witnesses
If your case goes to trial, you have the right to have witnesses present who can testify to relevant and material facts. If important witnesses are unwilling to step forward, they may be subpoenaed. By serving a subpoena on a witness, that witness is under obligation to attend the trial and provide testimony.
Blank subpoena forms are available from the clerk and can be served by any authorized process server. The subpoena may also command the production of the documents or other tangible objects relevant to the case. See Rule 147. You must also pay the witness the required witness fees and travel expenses at time of serving your subpoena. Rule 148.
TROUBLE SPOT 15 – The Pre-trial Memorandum
At the time the Clerk of Court issues the Notice of Trial, the clerk also provides you with a copy of the Court's Standing Pre-trial Order. This is a supplement to the Tax Court's formal rules. It consists of the Tax Court judges' statement as to how the trial will proceed. The Order requires the filing of a Pre-trial Memorandum by each party no later than two weeks before the trial.
The Pre-trial Memo requires a statement on the status of each of the following items:
a. The name and address of the attorneys involved. If you are not represented by counsel, list your own name and address;
b. The amount of tax in dispute;
c. The status of the case, that is, whether the case is likely to settle or proceed to trial;
d. An estimated time of trial;
e. A description of the motions that you expect to make;
f. The status of the stipulation;
g. A brief statement of issues in the case;
h. The names of your expected witnesses. Note that if your witnesses are not identified at least two weeks prior to the trial, they will not likely be allowed to testify. Likewise, any documents not disclosed at least two weeks prior to trial will not likely be permitted by the Court;
i. A succinct summary of the facts;
j. A synopsis of legal authorities supporting your position; and
k. Whether there are any evidentiary problems with your documents. Such problems will usually be avoided if you disclosed all your documents well ahead of time and your stipulation includes all your documents.
TROUBLE SPOT 16 – The Burden of Proof
The one error commonly made in these cases is the failure to understand what must be proved in the trial. As the Petitioner, you must prove that the IRS made one or more errors in deciding your case at the administrative level. In a deficiency action, you must prove that the IRS miscalculated your taxable income either by incorrectly adding gross income or improperly disallowing legitimate deductions. In any other case, you must prove that the IRS made some error of fact or law in arriving at the decision.
In some cases, the burden of proof can shift to the IRS. Code §7491(a) provides that in deficiency cases, where the "taxpayer introduces credible evidence with respect to any factual issue," the IRS "shall have the burden of proof with respect to such issue." In light of this, the IRS cannot simply "play goalie" with respect to the evidence you present. That is, it cannot arbitrarily kick aside your facts and documents solely to avoid admitting the inevitable. Once you: a) substantiate the item in question with your records, and b) cooperate with the IRS by providing information and documents, access to relevant witnesses if necessary, participating in the necessary meetings and interviews, the burden of proof then shifts to the IRS to disprove your deduction. Code §7491(a)(2).
In many deficiency cases, especially those involving small business owners, the IRS adds "phantom income" to a person's tax return, thus increasing their tax liability. The phantom income is derived by the use of statistical tables, such as Bureau of Labor or Census Data. For example, take the hypothetical case of a plumber in Hennepin County, Minnesota, the state's largest city. Bureau of Labor tables may show that the typical plumber in Hennepin County earns $80,000 per year. But the plumber's records show he earned just $50,000. The IRS may use the tables to trump up his income to the averages.
This is very common and puts the taxpayer at the distinct disadvantage of having to prove a negative. However, the law does not force you to prove a negative. Code §7491(b) provide as follows:
In the case of an individual taxpayer, the Secretary shall have the burden of proof in any court proceeding with respect to any item of income which was reconstructed by the Secretary solely through the use of statistical information on unrelated taxpayers.
As your case proceeds, make double sure you understand your burden of proof and take all steps necessary to meet that burden. Ultimately, that is how you win a Tax Court case. See Rules142 and 149.
TROUBLE SPOT 17 – Post-trial Briefs
At the conclusion of the trial, the Court generally requires each party to file a brief with the Court. A brief is the party's written argument supporting his version of the facts along with a statement of the legal authorities. Think of your brief as a final argument to the Court. Failure to file a brief in the time and manner prescribed by the rules could easily result in the Court ruling against you. See Rule 151.
TROUBLE SPOT 18 – The Appeal
Decisions of the Tax Court in regular cases (as opposed to small tax cases) are appealable to the United States Court of Appeals for the Circuit in which you live. If you lose your regular tax case and the Court's decision was wrong, you may appeal. To commence the appeal, file a Notice of Appeal with the Clerk of Tax Court within 90 days of the date of the Court's decision. At that point, the Federal Rules of Appellate Procedure take over. See Rule 190, and Federal Rules of Appellate Procedure 13 and 14.
TROUBLE SPOT 19 – Litigation Fees and Costs
If you are the prevailing party in your case against the IRS, you may be able to recover your litigation fees and costs. See Code §7430. This includes the fees you paid your attorney and the costs incurred to prosecute the case. Even if you didn't pay an attorney, you had costs such as copying and mailing costs and the Court's filing fee, among other things. The time and manner of requesting an award of fees and costs is covered by Tax Court Rules 230-233.
TROUBLE SPOT 20 – The Rules as a Whole
Pay careful attention to the Rules of Practice as a whole. At any time, the Court can dismiss a case where a party is in default due to having missed deadlines. The rules are replete with examples of time limitations for carrying out certain crucial functions. These deadlines cannot be ignored. Also, where a party has failed to properly prosecute his case, the case can be dismissed. These sanctions are very formidable. If used against you, it means that you lose your case. The most important thing to remember is don't miss your deadlines. See Rule 123(a) & (b), and Rule 104.
My Trouble-Shooting Guide will help you over the rough spots on the road to tax justice. However, it is not exhaustive and is not a substitute for the Rules of Practice. Moreover, if you believe you are in over your head, this material is not a substitute for competent counsel experienced in the prosecution of Tax Court cases.
If you have any questions about your Tax Court case, I have materials available to guide you through the process. I can also provide personal consultation to help with your case and I can get you in touch with counsel who can represent you personally. Don't risk losing just because you misunderstood how to handle your case and didn't get the help you need.
“If I have set it down it is because that which is clearly known hath less terror than that which is but hinted at and guessed.”
Sir Arthur Conan Doyle The Hound of the Baskervilles
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