ABA Tax Section Comments on Tax Court E-Filing Pilot

These comments are submitted on behalf of the Section of Taxation1 of the American Bar Association ("ABA") and represent the position of the ABA Section of Taxation. They have not been approved by the Board of Governors or the House of Delegates of the American Bar Association and, accordingly, should not be construed as representing the policy of the ABA. These comments concern the addition of Interim Rule 22A to the United States Tax Court Rules of Practice and Procedure proposed on December 12, 2005, by the United States Tax Court (the "Court"). The new rule concerns a proposal for a Pilot Electronic Filing Program. We are writing in response to the Court's invitation for public comment to be received by February 10, 2006.

Interim Procedure No. 7(b) allows orders to be issued as "text-only" entries on the docket, without an attached document while, in the case of "dispositive" order and decisions, Interim Procedure 7(d) requires an attached document. We propose that Interim Procedure No. 7(b) be deleted in full and that the word "dispositive" be deleted from Interim Procedure No. 7(d), so that all orders will be set forth in a separate document to be served on the parties in electronic form. This proposal will ensure that the parties have a copy of the complete order as soon as it is issued and can immediately begin to respond. In addition, many of our members keep electronic files for all filings in a case. Each filing is a separate document in the file. It is not practical to keep a copy of the docket sheet in such files because the docket sheet is often (and sometimes constantly) changing in active cases. If all orders are set forth in separate documents, it will be much easier for the parties to keep complete files and keep track of orders.

Interim Procedure No. 11 relates to public access to documents. The procedure provides that electronic access to documents is available at no charge at the Clerk's Office. Electronic reproduction and paper reproduction is available for a fee. As proposed, Interim Procedure 11 imposes a geographic disadvantage on taxpayers and their counsel who are located outside of the Washington, DC area. It also fails to exploit the potential for immediate retrieval that is inherent in electronic access. We recommend modifying Interim Procedure No. 11 to provide that, upon written request (including by email), the Clerk's office will email electronic copies of publicly accessible electronic documents to taxpayers, their counsel, and others authorized to appear before the Court who have previously provided their email address to the Clerk's office. We believe this proposal is technically feasible and, without imposing an undue burden on the Clerk's office, would provide timely access to specifically requested documents for all taxpayers, counsel, and others authorized to appear before the Court, regardless of where located. In addition, it will be consistent with the Court's goal of limiting public access to information on the Internet.

We anticipate that the Court will address the issue of public online access to e-filed documents at a later date. Our proposal regarding Interim Procedure No. 11 does not address the larger issue of online access to e-filed documents and privacy concerns. We will provide additional comments on that subject at the appropriate time.

Questions regarding these comments may be directed to William F. Colgin, Jr. at Fenwick & West, LLP, Silicon Valley Center, 801 California Street, Mountain View, California 94041 (650/335-7944).