Tax Court Forms
Small Case Procedure (For reference only)
Rules of Practice and Procedure of the U.S. Tax Court

IRS Regulations

Filing Motions

Motions practice has evolved with the Tax Court. The Court expects the parties to use motions to ask the court for different types of relief and to "clean" up a case procedurally. Regardless in which court system you practice, effectively utilizing motions is essential to effective representation of your client and the efficient handling of matters before that court.

Tax Court Rule 50 states: "An application to the Court for an order shall be by motion in writing, which shall state with particularity the grounds therefore and shall set forth the relief or order sought. The motion shall show that prior notice thereof has been given to each other party or counsel for each other party and shall state whether there is any objection to the motion. If a motion does not include such a statement, the Court will assume that there is an objection to the motion."

Set forth below are those motions that are used most frequently in the Clinic. The Tax Court requires that a motion include only one matter. Thus, a request for a continuance and to change the place of trial must be the subject of two separate motions.

Motion to Continue

1. Send the original and 4 copies of the Motion to Continue with Certificate of Service attached and an original and 2 copies of the cover letter to the Tax Court.
2. Send a copy of the above to Respondent’s Counsel.
3. In preparing the Motion to Continue and cover letter, include the Clinic Director and if he is not available the Assistant Clinic Director on the Motion and preferably the Associate Clinic Director on the Certificate of Service.
4. On the Certificate of Service, include only the Clinic Director or the Associatet Director's signature. The date on the Certificate of Service must be date that the document is actually mailed. If the document is prepared late in the date, date it for the next day. The one signing the Certificate is attesting as an officer of the court that the document was actually mailed on the date specified.Include an exact copy of the signed document, certificate of service and cover letter in the paper office file.

Motion to Change Place of Trial and Certificate of Service
Motion to Change Place of Trial and Certificage of Service Cover Letter

Motion to Continue and Change Place of Trial Package

Motion to Continue and Certificate of Service
Motion to Continue and Change Place of Trial
Motion to Continue and Change Place of Trial Cover Letter

Motion to Withdraw as Counsel Package

Motion to Withdraw as Counsel and Certificate of Service
Motion to Withdraw as Counsel cover letter 

Filing Petitions and Entries

Petition to U.S. Tax Court 

Petitions to the U.S. Tax Court may be filed, if associated conditions are met when a taxpayer wishes to challenge:  a proposed deficiency, a denial of Innocent Spouse Relief, a Lien, a Levy.  A student who does not timely file a petition when one should have been filed will be subject to the most serious consequences, including a failing grade in the course.

To invoke the jurisdiction of the U.S. Tax Court when challenging a proposed deficiency, there are three prerequisites that must be met: (1) the Commissioner must have determined a deficiency, (2) the IRS must have sent a Notice of Deficiency to the taxpayer and (3) the taxpayer must file a petition in the Tax Court within 90 days from the date the IRS mails the Notice of Deficiency.  A taxpayer cannot file a petition until the IRS has sent the Notice of Deficiency to the taxpayer.

For the prerequisites for Tax Court jurisdiction involving Innocent Spouse Relief, Liens, or Levy's, see the discussions of those topics elsewhere on this website. 

Most, if not all, of the petitions sent from the Clinic on behalf of its clients are done under the Small Case Procedure.  To qualify for the small case procedure, the amount of the deficiency for any one year may not exceed $50,000. § 7463  Trials in small tax cases generally are less formal and result in a speedier disposition. However, decisions entered pursuant to small tax case procedures are not appealable.

In preparing the petition, the student should ensure that the client has signed a “Consent To Small Case Procedure.”  The consent is not sent to the United States Tax Court, but the original remains in the Clinic’s file.

Also, in preparing the petition, the student should determine whether a waiver of the filing fee is possible.  The client must pay a $60.00 filing fee unless the client qualifies for a waiver based on income.  Review the web site as to the qualifications for the waiver. 

As of March 1, 2008, the Tax Court requires that identifying numbers such as the social security number, account numbers and children’s name not be included on any pleadings filed with the Court.  However, in order for the Internal Revenue Service to identify the client and locate his or her file, the court requires the completion of a Form 4 which is linked below and which is at ustaxcourt.gov web site. 

If the petitioner is seeking relief from joint and several liability under section 6015 (innocent spouse treatment), the petitioner must also include on Form 4 the name and identifying number of the other individual with whom the petitioner filed a joint return.  The court will accept the Form 4 beginning immediately in anticipation of the March 2008 Rule change.  This change brings the Tax Court into conformity with other courts. It is modeled after Rule 5.2 of the Federal Rules of Civil Procedure which were effective on December 1, 2007.

Filing the Petition

Petitions are sent via UPS to:

United States Tax Court
400 Second Street, N.W.
Washinton D.C. 20217

Handling a Docketed Case

The procedures set forth below will assist you in handling a case docketed in United States Tax Court.

1.  If the Client files the petition, interview the client to determine what is the issue. Ask the client to send to you all the information they have concerning the tax matter and copies of all the documents the client filed with the United States Tax Court including a copy of the petition, a complete copy of the Notice of Deficiency, including all schedules.  Also contac the attorney in the Office of Chief Counsel (see contact information in AMICUS), fax the attorney the POA and request a copy of the Administrative File (see below).

2.  Go to http://www.ustaxcourt.gov/ and search for the client's case either by Docket Number or name. Print a copy of the Docket Sheet and save a copy to the client file under IRS/TC.

3.  A critical determination at the initial stage is what, if any, time limits are present. For instance, if the client filed the petition and if the case is on an upcoming trial calendar consult with the Clinic Director, Associate Director or Supervising Attorney to determine whether to accept the client and whether to request a continuance. 

To determine if a case is on a calendar, review the Docket Sheet.  It will indicate if the case is set for trial and where.  In these types of cases, until you understand the issue and believe the client has a good legal argument that is likely to prevail, do not agree to accept the case. It may be advisable to ask the client to ask for a continuance. If it is a first continuance, the Tax Court is liberal in granting the continuance, unless it is within 30 days of trial.

4.  If the case is a recently filed case, you should plan on sending the Appeals Notebook within 30-45 days of the petition date.  If the case cannot be resolved with the Appeals Officer, then it will be transferred back to the Office of Chief Counsel for trial.  Sometimes you will be able to resolve the case with the attorney from Chief Counsel's office via a Counsel Notebook, but that is late in the game such that you are risking having to take the case to trial.   

Once a petition is filed in U.S. Tax Court, the Office of Chief Counsel files an Answer on behalf of the IRS.  After the Answer is filed, the case is automatically forwarded to the Appeals Division of the IRS and assigned to an Appeals Officer for resolution.  If we accept the case, we will prepare and send to the Appeals Officer an Appeals Notebook setting forth the facts and evidence in support of our position that the tax should be either reduced or eliminated altogether.

5.  Once you confirm that the case is docketed with the United States Court, immediately (usually within two weeks of the petition date) contact the Office of Chief Counsel in Atlanta to determine which attorney is assigned the case and to request the administrative file. (The name and contact information of Chief Counsel in Atlanta is posted in AMICUS.) You can request a copy without accepting the prospective client as a client. All that is required is to provide the Chief Counsel attorney or Appeals officer with a copy of the POA. Whether you ask for the administrative file before accepting the client depends on the facts of the case. The complexity of the issues and facts and the extent to which the client and the IRS have dealt before coming to the clinic are determining factors. Discuss this matter with the Clinic Director, Associate Clinic Director or the Supervising Attorney.

Administrative File - This is a term to describe the information that the IRS has gathered relating to the client. It consist of the tax return for they year at issue, any correspondence between the parties, the examination workpapers (if any), a copy of the 30 day letter and proposed computations (possibly) and a copy of the complete Notice of Deficiency (referred to as the 90 day letter or statutory notice). This file ranges from a few sheets of paper including a print out of the electronic version of the e-filed return to multiple volumes of workpapers and computations depending on the complexity of the issue. This is the government's case in chief or their side of the story. Having this information and comparing it to the client's story allows you to determine the correct facts.

Once the Chief Counsel attorney files the Answer, the attorney sends the Administrative File to the Appeals Office, and in many cases it is then more difficult to track down the file. Another reason to contact the attorney assigned the case is that it provides you the opportunity to introduce yourself and talk generally about the case. For the most part, the attorney is interested in resolving the case and is open to discussing what the case is about. This will assist you in focusing the presentation of your case in the "Appeals Notebook" or "Counsel Notebook". 

Usually, the attorney will fax to you the Administrative File if it is a few pages. In some cases, the Administrative File is extensive, and the Counsel Attorney or even appeals officer will be willing to meet with you informally to review the file and copy the relevant parts. Take advantage of this because again it offers you an opportunity to informally discuss the case with them. Remember they are interested in determining the facts of the case and more importantly in resolving the case long before trial. If you are given the opportunity to copy the Administrative File, copy all relevant parts and don't skimp on copying. Later you may determine that a document or fact is critical that you failed to copy. Always copy the entire Notice of Deficiency and the "filed" return of the client. Generally, the attorney or Appeals Officer will allow you to use their copying facilities.

6.  After review of the client's and the IRS's information, resolve any discrepancies with the client. You are then prepared to draft the Appeals Notebook and submit the accompanying memorandum to the Clinic Director for review. This should be done no less than two weeks prior to when you are intending to submit the Appeals Notebook.

7.  Scheduling conferences: As indicated above, once Counsel Answers the case (you should receive a copy of the Answer), the case is referred to Appeals. In many cases the Appeals Officer ("AO") to whom the case is assigned is located outside Atlanta. As a clinic policy, we ask for a face-to-face conference. This causes the case to be transferred to Atlanta. The first letter you or the client receives with have the AO's name, phone and fax numbers. Contact that AO and request a face-to-face conference. The AO will grant your request unless the client has already had extensive discussions with that AO. Some AOs require a letter and others take your oral request. It is a best practice to always follow up with a letter confirming that you have made a face-to-face request.

From the date of the request you generally have 30-45 days to then have the Appeals Notebook ready for a conference with an Atlanta appeals officer. Within a 30 day period contact the attorney who signed the Answer to determine who the Atlanta AO is and make contact with that AO to begin coordinating the conference and submission of the Appeals Notebook.

Note the clinic requirement to have the notebook to the appeals officer 7 days before the conference. Prior to the conference follow up to determine if the AO has any questions or wants further clarification of a matter before the conference. Generally, there should be no surprises at the conference as both sides would have ideally provided the other with all the facts.

 8.  When the Tax Court dockets the case (places the case on a Trial Calendar which is usually at least 5 months before the start date), it sends to each petitioner or their representative (Respondent and Petitioner) two items:  Order Setting the Case for Trial and the Court’s Standing Pretrial Order.  The Standing Pretrial Order sets out specific actions that the parties must complete prior to trial and the time period.  If the Clinic did not file the initial Petition, the student attorney must obtain a copy of both these for the specific case either from the client or Counsel’s attorney. These are key documents.  Once the student attorney reviews the Standing Pretrial Order, the student attorney must annotate on AMICUS summary and event pages for each case the various time critical dates such as the pretrial memorandum (which is included with the Standing Order) must be served on Respondent 14 days before the first day of the trial session.  It also provides specific other instructions.  Each judge may also add other requirements for his or her calendar.  Linked here is a copy of the Chief Counsel Notice 2011-003.