The remote proceeding tools used by the Tax Court to safely conduct trials during the COVID-19 pandemic will help the court fulfill its statutory duties after the crisis, according to the chief judge.
Chief Judge Maurice B. Foley recently sat down with Tax Notes to discuss both the court’s new case management system and how it is conducting business during the pandemic.
Foley noted that section 7446 directs the Tax Court to hold its proceedings “with as little inconvenience and expense to taxpayers as is practicable.” Even before the court fully implemented its remote trial procedures, he was predicting that the use of videoconferencing tools would provide long-lasting benefits to the court and all its stakeholders. More judges have been using pretrial conferences to start addressing cases earlier.
IRS Chief Counsel Michael Desmond expressed a similar sentiment shortly after the Tax Court started conducting its full slate of trial sessions via the Zoomgov videoconferencing platform.
As a result of the pandemic, the Tax Court in March canceled the remaining spring trial sessions. It began conducting its fall trial sessions remotely in September.
With over three full months of experience with remote trial sessions, Foley said the court has generally received praise for the remote trial procedures, apart from standard videoconferencing difficulties like static and other human-microphone interface problems.
Asked if he thinks the public will still enjoy audio access to the Tax Court’s trial sessions on YouTube after the pandemic, Foley cited the substantial benefit of increased access to the court that the streaming has provided. Anyone could listen to a New York trial in the morning, a Chicago session during lunch, and then a proceeding in Los Angeles, he said. “That’s a wonderful thing.”
Foley said he doesn’t want to go backward after the pandemic subsides, so remote trial procedures will remain a valuable tool. “I don’t want to simply return to the pre-pandemic state of affairs. We plan to emerge from this pandemic more efficient, more productive, more nimble, more flexible, and better prepared to meet our statutory mandate” under section 7446, he said.
Foley said he's been pleased by the court’s pilot program for limited entry of appearance. In September 2019 the court began allowing practitioners to help Tax Court petitioners with just a portion of any case, and it recently added a reference to limited appearances to its Rules of Practice and Procedure.
Foley said he hopes limited appearances are also here to stay because the increased flexibility — allowing a volunteer to help one of the 70 percent of Tax Court petitioners without a representative without fully committing to a case or running complicated conflict-of-interest checks — better serves the public. And as Tax Court stakeholders get used to limited appearances, more will start using them, he said.
More Big Things Coming
The Tax Court is replacing its case management system, a process that has forced a temporary closure of its electronic filing system from November 20 until the new system comes online, which should be no later than December 28.
Foley said the court has a lot of work to do in moving all of the information from its old system, originally developed in the 1980s, to a modern, cloud-based system. This “very, very tedious process” includes moving all of the existing case data and filings, he said.
“At this very moment, all Tax Court employees are engaged in the process of going through the data that’s been migrated to make sure that everything has been migrated and there’s nothing missing,” Foley said. The court’s options for that task are limited by the sensitive nature of the information — it can’t be delegated to outside contractors, he said.
Accuracy, rather than speed, will dictate the completion of the migration process, Foley said.
The IRS on December 8 issued a chief counsel notice (CC-2021-002) advising its attorneys and support staff on procedures for navigating the Tax Court’s new case management system, including the transition period downtime. The most notable comments in the IRS memo involve the need for employees to change their internet web browser and changes to the way that agency attorneys will enter their appearances in cases, rather than the temporary electronic filing closure.
The new system will finally allow taxpayers to file Tax Court petitions electronically. Foley said the court plans to release guidance on how the new process will affect filing rules — for example, by clarifying that any deadline will be related to the time at the Tax Court’s building in Washington, rather than whichever time zone the filer occupies.
Foley said that development of the new case management system included solicitation of outside feedback. The court had members of a variety of stakeholder groups — practitioners, low-income taxpayer clinics, members of the general public, etc. — test the new system and give recommendations, he said.
Asked about a comparison to IRS Commissioner Charles Rettig’s push to expand language access, Foley said that the Tax Court’s new system doesn’t yet have capability beyond English.