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Initial Remote Tax Court Proceedings Have Had Few Hiccups

Posted on Feb. 22, 2021

Both practitioners and IRS attorneys have been pleased by how the Tax Court’s Zoomgov remote proceeding platform has performed, although some have a few tweaks in mind.

The IRS Office of Chief Counsel told Tax Notes that the Tax Court’s remote proceedings have had few technological failures and “the initial skepticism of adequately assessing witness credibility has vanished.”

Lawrence Sannicandro of Kostelanetz & Fink LLP welcomed the trend of more judges keeping control of cases that are continued, especially when pro se taxpayers are able to find counsel. He had one such case that was tried February 8 in Judge Travis A. Greaves’s Lubbock, Texas, trial session after a continuance from a New York calendar call.

Sannicandro noted that he was in New Jersey, the judge was in Washington, and the IRS lawyer and taxpayer were in Virginia for that nominally Texas-based trial.

Tax Court judges normally take control of a case from the central docket only once they and the cases are assigned to trial sessions in the dozens of cities the court visits. That means that if a case is continued at a trial session, the judge who first heard the case most likely gives it back to the general docket until another judge visits that city. But with remote proceedings, judges can more easily retain jurisdiction and revisit a case at an unrelated trial session in a different city because there’s no travel required.

The IRS Office of Chief Counsel also highlighted the increased availability of proceedings, pointing to the effect on the vast majority of Tax Court petitioners who aren’t represented by attorneys or other practitioners. “Now, they are able to remotely access trials from home, without driving hours to get to the court, and missing days of work,” the office said.

Nancy Abramowitz, director of the Janet R. Spragens Federal Tax Clinic at American University, said her impression from the remote proceedings she’s observed is that petitioners don’t seem to think they’ve lost some of their access to justice with the move to Zoomgov. The Tax Court still appears to them to be offering a fair shake, she said.

At the outset of the COVID-19 pandemic last year, the Tax Court had to cancel dozens of trial sessions all over the country and create a set of remote trial procedures. The court resumed most of its operations online in September, meaning practitioners, the IRS, petitioners, and the public have had nearly six months of experience with the remote proceedings.

A Few Concerns

A. Lavar Taylor of the Law Offices of A. Lavar Taylor LLP said that while he hasn’t had any full remote trials, he’s still concerned about some of the lost interactions from in-person trials. It’s not just that he wants the judges to fully see the witnesses; he also wants to be able to read the judges, he said.

But when there are legal arguments or pretrial proceedings, Zoomgov and other videoconferencing platforms work well, especially when they are replacing voice-only conference calls, Taylor said. While he hasn’t directly participated in any Tax Court remote proceedings, some others at his firm have, and he’s made remote arguments in other cases, including two before the Ninth Circuit, he said.

Taylor agrees with the sentiment many others have voiced that there will be a post-pandemic place for remote proceedings, but said he would prefer that it be confined to everything other than fact development trials.

Sannicandro said that he was surprisingly pleased with the process for his trial and that he was able to address all the issues he expected to arise. However, there was an unexpected issue the court might be able to address, he said.

The Zoomgov display had a habit of showing whoever was making any noise, Sannicandro said. That meant that when he might want to see the judge’s reaction to an argument he was making or to witness testimony, he might instead see the IRS attorney because of audible typing or someone else with some background noise, he said. A gallery view, at least as an option, could help with that issue, he said.

A gallery view could also help with lost visibility when sharing screens, Sannicandro added. The shared screen option for documents that haven’t been admitted into evidence or stipulated — for example, documents used to refresh recollection — also replaces the video feed and thus removes the ability to read facial expression and body language, he noted.

The Tax Court may also want to consider adding language about camera positioning to its standing pretrial orders, Sannicandro said.

Taylor said he’s heard multiple complaints about the Tax Court’s screen-sharing process.

Abramowitz had a different issue with a calendar call she recently attended with her students. She and an unrepresented petitioner took advantage of the Tax Court’s separate discussion rooms for a consultation, but unfortunately it was before the initial calendar call ended, she said. That meant she missed part of the calendar call at which she was supposed to be the pro se administrator arranging help for unrepresented petitioners, she said.

While the petitioner isn’t especially affected, a volunteer or low-income taxpayer clinic participant, particularly the coordinator, might want to watch the whole calendar call before going to one of the separate rooms, Abramowitz said.

Sannicandro added that he misses the chance to shake hands with opposing counsel at the end of a trial and the way small things like that can support the professional relationship.

Other Benefits

The IRS Office of Chief Counsel noted that some concerns about fact trials in complex cases might not be borne out in practice, pointing to a successfully conducted nine-day trial in October 2020. That trial involved six IRS attorneys, 1,600 exhibits, and 19 witnesses, and doing it on Zoomgov avoided a postponement that would have caused disruptions for seven experts and one witness from a different continent, according to the IRS.

IRS Special Trial Attorney Erin Salel said, “I have found that evidentiary problems are minimized since everything is included in the stipulation or unagreed exhibits.”

IRS Special Trial Attorney Rob Gordon pointed to the ease of recording and distributing depositions conducted by videoconference. IRS Senior Counsel Jason Laseter noted the flexibility of remote proceedings.

The early subpoena return and weekly hearings that accompanied the Tax Court’s move to remote proceedings are a vast improvement over the preexisting process, according to Taylor.

Although they haven’t had their chance to listen in, both Taylor and Sannicandro praised the YouTube livestream the Tax Court set up for its remote proceedings.

Sannicandro noted the training possibilities the public feed offers, not only to young practitioners but also to students and especially IRS employees.

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