Referral to Procedurally Taxing Blog on Tax Court Delays (10/31/22)

I refer readers to It is Time To Take Remedial Steps To Improve The Timeliness of Tax Court Dispositions (Procedurally Taxing Blog 10/31/22), here.  The subject is concern that, at various key points in the litigation process in the Tax Court, there are bottlenecks that result in some cases being delayed beyond what seems appropriate, given the important role the Tax Court serves in our ubiquitous tax system. It is perhaps hyperbole to state the common phrase that justice delayed is justice denied. Our litigation system involves delays, but that does not justify unnecessarily long delays of the type the authors have observed in some Tax Court litigation.

The post is signed by several persons who observe and write on tax system, focusing on procedure.  They are:

Leslie Book
Keith Fogg
Steve Olsen
Nina Olson
Jack Townsend

I encourage readers having creative ideas on how to make the system more timely make comments on the PT blog entry linked above or perhaps even offering a submission to the PT Blog Team for a Guest Blog.

To me, the most shocking point made in the PT blog is that the Tax Court (really through such management as the Tax Court has) does not track these bottlenecks. I have worked on databases for over 30 years now. I believe that most, if  not all, of the key data to track the bottlenecks is already in the Tax Court’s database system. I project that Tax Court management could easily establish some type of computer routine to extract key management information on cases and judges that are bottlenecks in the system.

Finally, although I suspect that most readers of this blog already make the Procedurally Taxing Blog part of their regular reading on tax procedure.  If not, I highly recommend it. 

Tax Court Administrative Orders on Trials in Pandemic Times (6/1/20)

Readers of this blog will be interested in two orders of the Tax Court issued last week:

• Administrative Order No. 2020-02 on Remote Court Proceedings During COVID-19 Pandemic, here.  The order attaches sample Notice of Setting Case for Trial and Standing Pretrial Order (with Pretrial Memorandum Form) for regular cases as small cases and a Getting Ready for Trial Checklist.  The order says:

Given the ongoing uncertainties and the Court’s desire to continue essential operations, on May 29, 2020, the Court adopted procedures for conducting Court proceedings remotely. These procedures will be in effect until further notice. Sample orders and notices incorporating these procedures are attached to this Administrative Order and will be posted on the Court’s website under “Forms”. 

Public access to the Court’s remote proceedings will be made available via realtime  audio with dial-in information for each session posted on the Court website. 

This Order is effective immediately and shall continue in effect until terminated by this Court.

• Administrative Order No. 2020-03 on Limited Entry of Appearance Procedures, Effective June 1, 2020, here.

Bob Probasco, here, of the Texas A&M Law School has an excellent Guest Blogger posting -- Significant Changes For Tax Litigation (Procedurally Taxing Blog 6/1/20), here.  So I won’t re-create the wheel here.  Bob does ask readers of the PT posting to offer their observations and questions.  So I encourage readers to watch the comments to Bob's posting and any replies that Bob or other readers may make to those comments.

Bob also noted in the posting:  

Another press release the same day informed us that on June 1st the court will resume accepting requests for copies of documents from non-parties.  But the process will be more flexible than before; requests can be made by phone and received by email.  You won’t have to – because you can’t – visit the court building in person.

I suspect that this "innovation" will survive the Pandemic--at least the email request or perhaps an internet form to make the request and any payment required.

A Detour:  I note that the order has a quote around Forms at the end of the sentence and places the period outside the endquote.  The secret Tax Court style manual, as it was explained to me, should have required that period (consistent with the American practice) to be placed inside the endquote.  See Updates on the Tax Court's Continued Love Affair with Periods Outside Quotations (1/4/20; 2/29/20), here.  Perhaps the style manual applies only to decisions and the like and not to administrative orders.  Or perhaps the explanation I received is incorrect.  At any rate, does the Tax Court really need to keep its style manual secret?

Tax Procedure Book Errata - Correct Status of the Tax Court (1/2/17)

Book Outline Section	Nature of Update	Location for current editions
Ch. 2 III.B.2. Article I Courts	Correct the status of the Tax Court as an Article I court independent of the judicial system subject to Article III and independent of the executive branch.  Prior to this change, the text in the current version indicated that the Tax Court was within the executive branch of Government.  It is not.  An error that should have been corrected previously.	Student Ed. P. 70 Practitioner Ed. p. 101

Change the paragraph on the United States Tax Court to read as follows:

               The United States Tax Court is an Article I court independent of the Article III judicial system and independent of the executive branch.  § 7441.  n339 The Tax Court has jurisdiction over tax related claims only.  Generally, the Tax Court has jurisdiction to redetermine deficiencies proposed by the IRS and resolve certain other disputes with the IRS. The Tax Court is the principal court in which tax controversies are litigated.
   n339 See Burns, Stix Friedman & Co. v. Commissioner, 57 T.C. 392, 395 (1971); and Freytag v. Commissioner, 501 U.S. 868, 890-892 (1991. In 2015, in response to the Kuretski case (cited below in the footnote), Congress added this sentence to § 7441: “The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government;” that sentence codifies a clause from Freytag v. Commissioner, p. 891 “[t]he Tax Court remains independent of the Executive * * * Branch[es].” The President does have the power to power to remove Tax Court judges “for inefficiency, neglect of duty, or malfeasance in office, but for no other cause.”  § 7443(f).  Two key cases have held that the President’s limited power to remove Tax Court judges does not violate separation of powers principles (although the two cases reach the conclusion for different reasons).  Battat v. Commissioner, 148 T.C. ___, No. 2 (2017) (holding that the interbranch removal power did not implicate Article III because the Tax Court does not exercise Article III judicial power; Battat also has a good discussion of the history of the Tax Court from its inception as the Board of Tax Appeals to its current status); and Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014) (holding before the amendment noted above, that the Tax Court was an executive branch court that could permissibly be subject to Presidential removal); see also Byers v. United States Tax Court, 2016 U.S. Dist. LEXIS 135596 (D. D.C. 2016) (holding that the Tax Court is a court exempt from FOIA and containing a good discussion of the status of the Tax Court).  See also Brant J. Hellwig, The Constitutional Nature of the United States Tax Court, 35 Va. Tax Rev. 269 (2015).