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Coronavirus Measures Will Leave Tax Court More Accessible

Posted on July 23, 2020

The technological tools the Tax Court is using in response to the COVID-19 pandemic will increase post-crisis access to the court for populations beyond just petitioners, according to Chief Judge Maurice B. Foley.

“In essence, the court is now more agile, flexible, and able to maintain continuity of operations regardless of national conditions. We are uniquely positioned and poised to successfully serve the public during this pandemic and beyond,” Foley said during a July 22 webinar sponsored by the American Bar Association Section of Taxation.

In order to conduct trials during the pandemic, the Tax Court implemented a remote proceeding procedure. Foley said that while remote trial procedures were created to address the pandemic, they’ll remain in the court’s toolbox after the crisis passes.

“This option will increase court access for taxpayers who might not live close to a place of trial and might otherwise incur travel expenses, need time off work, or require child care to attend an in-person trial,” Foley said. The procedures will also present an alternative for exigencies such as weather problems, he said.

Foley noted that another upside of the fully remote trial sessions conducted during the pandemic is that he will be able to take on a session and keep current with his chief judge duties while not losing two days for travel.

New Tools

Foley said that many petitioners find courtrooms intimidating and he hopes they will find videoconferencing platforms less so. Some less-technology-savvy taxpayers may find the new tools just as intimidating, he said, but “if my 89-year-old mother can figure it out, you can too.”

The Tax Court has posted a set of frequently asked questions for its remote trials, and on July 27 it will be posting a series of mock remote trial videos, Foley said. “Now, we don’t anticipate any Oscar nominations for these videos . . . but they’ll give you a general sense of how a remote calendar call and trial might proceed,” he said.

The remote trial sessions may increase pro se petitioner access to assistance, according to Foley. “These remote proceedings will also provide creative opportunities for opening the door to increased pro bono representation. The fact that travel is no longer a limiting factor may permit pro bono programs with representation beyond their immediate geographical area,” he said.

Another benefit of the videoconferencing tools could manifest itself in the court’s hiring, Foley said. “In the past . . . I was always reluctant to ask someone from the West Coast to spend their own money to fly to Washington, D.C., for an interview for a potential job. And I was reluctant to do video interviews. Well, all that has changed,” he said.

Other Trial Tips

The Justice Department Tax Division has been participating in remote proceedings during the pandemic, said Joshua Wu, deputy assistant attorney general (policy and planning) in the Tax Division, who offered some videoconference trial tips for participants.

While a pregnant pause could provoke a witness to elaborate at an in-person trial, people often assume that a screen has frozen when using videoconference tools, Wu said. It also helps to have a backup phone ready in case the participant gets dropped from the conference, he said.

In a courtroom, the judge and lawyers may be several yards away from each other, but on a videoconference, each participant’s face can usually be easily seen, Wu said. Thus, judges can see the small gestures and expressions lawyers make that might have otherwise gone unnoticed, he said.

Finally, participants should consider the possibility that they’ll have to stand up — perhaps responding to a knock at the door, Wu said. There have been stories about participants whose doorbells rang “and they got up and they were maybe not wearing the most professional pants,” he said.

Reopening

When the Tax Court resumed receiving mail on July 10, it collected four months’ worth of held mail, Foley said. After 113 days, the U.S. Postal Service had 174 boxes of mail for the court, he said. Private delivery services also passed along a mail backlog, he said, without providing specifics.

“Frankly, it was a little less than we had anticipated,” Foley said. The smaller size of the backlog is probably attributable to the difficulties petitioners encountered during the pandemic and to the IRS issuing fewer deficiency notices, he said.

Asked how long it will take the court to process the mail, Foley pointed to the four months it took to accumulate and predicted it would take months.

Jennifer Auchterlonie, special counsel to the IRS associate chief counsel (procedure and administration), noted that even though the People First Initiative postponing compliance actions and easing payment guidelines expired July 15, the IRS Small Business/Self-Employed Division just issued its own guidance to collection employees with temporary guidance on resumed operations.

In addition to providing information about how and when to conduct in-person meetings with taxpayers, the SB/SE guidance extends the period during which filing of tax lien notices is suspended until August 31.

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