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Judge Pleased With Tax Court’s Remote Subpoena Return Hearings

Posted on Oct. 2, 2020

The weekly remote hearings that the Tax Court is conducting for return of subpoenas have worked well so far, according to Chief Special Trial Judge Lewis R. Carluzzo.

The parties and the court are getting early responses from many subpoenas and early notice when the recipient is being recalcitrant, Carluzzo said October 1 at an American Bar Association Section of Taxation virtual meeting.

Before the COVID-19 pandemic, the Tax Court had been receiving requests to make the return date for its subpoenas earlier than the first day of a trial session. Neither the IRS nor petitioners felt well served by receiving information on the eve of a trial, and the court has been considering a rule change to more closely follow the Federal Rules of Civil Procedure.

As part of its pandemic-induced move to remote trials, the Tax Court started allowing parties to request remote subpoena hearings ahead of trial sessions in which their cases are calendared, Carluzzo said. He conducts all those hearings on Wednesdays.

Remote subpoena hearings are only scheduled through November 3 because of upcoming changes to the court’s electronic filing system, Carluzzo said. The court expects to issue a release on procedures for the e-filing interruption during the transition to its new case management system, he added.

While the system works well, it doesn’t solve the issue of parties who don’t respond to the subpoena, Carluzzo said. However, it does notify the relevant judge, IRS attorney, and petitioner in advance of the trial session, he said.

Trial Sessions

Carluzzo said he hasn’t conducted a remote trial session yet, but he’s heard from other judges that they've gone relatively smoothly.

The main complaint so far involves isolated audio feed issues likely related to bandwidth, Carluzzo said. The only other problem occurred when a petitioner and counsel tried to join a session on separate devices in the same location in a way the software didn’t allow, he said.

In other words, there have been no complaints about the trials being conducted on the Zoomgov platform or about awkwardness of witness examinations, Carluzzo said.

Carluzzo said all the court’s winter trial sessions will likely be conducted remotely.

Asked about the court’s new rule requiring filed stipulations two weeks ahead of trial sessions for remote proceedings, Carluzzo said he expects the rule to continue at least while the court is conducting all its proceedings remotely. “It’s not a bad practice, even for a physical trial, quite frankly,” he said.

Early filing of trial exhibits presents a more complicated issue, according to Carluzzo. He said he’d like to hear from practitioners on how they feel about “emptying their briefcase before they get into the courtroom,” and that even judges might be torn on the prospect. Stipulations aren’t the same as filed documents that might never get introduced into the record, he said.

Check, Please

Carluzzo said he’s heard an informal suggestion that the Tax Court add a checkbox to its petitions so that unrepresented taxpayers can consent to having their information shared with low-income taxpayer clinics and volunteer practitioners.

Tax privacy laws generally prevent the sharing of that sort of information, which means the IRS must send out invitations to events, such as settlement days, organized to allow unrepresented taxpayers to meet with available pro bono help.

Carluzzo noted the benefits of providing help to unrepresented petitioners as early in their cases as possible, which must be balanced against ethical and privacy considerations. “This check-the-box suggestion where the petitioner, the litigant, is consenting to an attorney contacting the litigant with the offer of legal representation . . . certainly is something to think about,” he said.

The process by which the court received the suggestion for limited entries of appearance might serve as a good case study for how to proceed on this new proposal, Carluzzo said. The court may need to issue a formal comment solicitation as it did in that case to facilitate the discussion, he said.

Carluzzo said the electronic petition filing that will accompany the court's new case management system later this year could streamline the checkbox suggestion. The court will more easily be able to change its forms and won't have the same space constraints, he said.

Tax Court judges’ increased use of pretrial conference calls has allowed more opportunities for connecting pro se taxpayers with pro bono help, Carluzzo said. As always, the judges share information on LITC resources and settlement day events when they know about them, he said.

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