My Suggestions to Tax Court on Procedure Related Matters (11/23/20)

On September 1, 2020, I sent the Tax Court Clerk a letter with suggestions regarding matters related somewhat to tax procedure.  A copy of the letter is here.  I have not had any response to the letter.  I thought I would excerpt and post the contents of the letter here in the event others might be interested in the subjects:

September 1, 2020

Stephanie A. Servoss
Clerk of the Court
United States Tax Court
400 Second Street, NW
Washington, D.C. 20217

Re: Suggestions for Tax Court Rules or Other Practices

Dear Ms. Servoss:

I write to make suggestions that might be incorporated in Tax Court Rules or otherwise adopted:

1. Make Public Tax Court Style Manual.  If there is a Tax Court style manual or other similar guide for judges (such as there is, for example, in the U.S. Supreme Court), I think the taxpayers and the bar would benefit from that style manual being public information.  I have been informed that there is such a Tax Court style manual or guide but that it is not public information.  The public need for access to the manual plays beyond checking to see whether judges conform to the manual (the Court may not require conformance, which I infer from deviations in practices, such as the location of periods and endquotes, that are normally covered by style manuals).   For example, commenters on such style manuals state that it is better practice to conform court submissions to the court=s style manual unless there is a good reason to deviate.  Whether that concern is fair or not is not the issue.  Whether the public should know the contents of the style manual is the issue, for such use as the public may choose to put those contents. 

2. Make Public Changes to Opinions After the Original Publication.  The Supreme Court advises the public of changes to Slip Opinions.  An example of such public notice of change is at: www.supremecourt.gov/opinions/19pdf/19 7diff_o7kq.pdf.  I recommend that a similar public disclosure be made for Tax Court opinions. 

3. Establish a Process for NonParties to Advise the Court of Possible Material Nonsubstantive Errors.  By nonsubstantive, I mean to exclude comments on application of the law to the facts found and legal analysis.  Nonsubstantive thus would include material comments on the syntax or such matters that can lead to confusion for readers.  Many of the errors of this sort are apparent and any reader may just mentally supply the corrections.  For example, I noticed a verb missing in a sentence recently, but it was easy to supply mentally and likely would not be confusing to most readers (although it may slow them down a bit to do the mental gymnastics).  But some errors may require the reader to work harder to understand the opinion and thus might be appropriate for correction, much as the Supreme Court does.  Parties would be expected to call outcome-determinative nonsubstantive errors to the Court's attention but may not call them to the Court's attention if they are not outcome-determinative.  Many nonparties study Tax Court opinions and spot such errors in the few cases in which they appear and could offer a valuable service to the Court, taxpayers and practitioners where the Court determined that correction is appropriate.  I understand from my sources that, from time to time, nonparties (generally practitioners) may write informally to the judge (by email or letter) advising of the nonsubstantive errors but, quite appropriately, do not hear back and do not know whether any action was taken (short of periodically checking the slip opinions or final T.C. opinion).  The point is that, I think, it would be helpful to all involved (including readers) to have a regularized process to get the information to the Court for such use as it may deem appropriate.  I do not think that any response would be required to the person making the comment or suggestion, other than perhaps a routine form thank you letter or email.  I also do not think it would be necessary to make those letters (or emails if included in the process) from nonparties public on the website or otherwise.  I suspect that most of the comments or suggestions will not require any action, but some may warrant action (e.g., correction of the slip opinions).

Thank you for considering these suggestions.

Sincerely yours,

John A. Townsend

cc: Alexandra Minkovich (by email: Alexandra.minkovich@bakermckenzie.com)
Chair, ABA Tax Section Court Procedure
and Practice Committee

Keith Fogg (by email: kfogg@law.harvard.edu)

JAT Comment:

1. An item that triggered my current posting was Judge Lauber's opinion in The Coca-Cola Company v. Commissioner, 155 T.C. ___, No. 10 (2020) here, issued last week  I had previously written about the Tax Court's general use of end quotation marks inside the period which is inconsistent with American standard usage and the Supreme Court's Style Manual:  

• Updates on the Tax Court's Continued Love Affair with Periods Outside Quotations (Tax Procedure Blog 1/4/20; 2/29/20), here. 

• Does the Period Go Inside or Outside the End Quote? A Tax Court and Supreme Court Comparison (Tax Procedure Blog 1/23/20; 1/25/20), here.

I noted in my statistics there that Judge Lauber fairly consistently put the period inside the endquote.  In Coca-Cola, Judge Lauber continues.  The opinion is 244 pages long (with about 3 pages of table of contents).  In the opinion, Judge Lauber deploys the period inside the endquote 255 times and the endquote inside the period 3 times (which are explained because the period is one of the leader trailers in the table of contents).

My noting of this phenomenon (inconsistent use among the judges) led me to write the letter and to include the other items.