The judges of the Tax Court expect to have to further adapt to changing experiences as they implement the court’s remote trial response to the coronavirus pandemic, one judge told Tax Notes.
“This is a process that is going to have to evolve, and we’ll learn as we go,” Judge Cary Douglas Pugh said in a June 8 interview.
However, Pugh also said the Tax Court’s remote trial proceedings may be less different from normal proceedings than some anticipate.
In response to the coronavirus pandemic, the Tax Court first canceled all its trial sessions until July and then on May 29 announced procedures for remote trials.
Pugh said that as the court began dealing with the pandemic and seeing no imminent end, the judges concluded they would need to conduct remote trials in the fall. They investigated several possibilities for conducting those proceedings and saw several other courts using Zoom for Government, she said. They also discussed the matter with stakeholders, including IRS attorneys and low-income taxpayer clinic personnel, she said.
As with normal proceedings, there’s a lot the court can do with conference calls and phone calls to move cases along, according to Pugh. The judges will still judge any situation based on the facts and circumstances of the petitioner involved, both for the substance of the tax dispute and proper application of the court’s procedures, she said.
Pugh said she expects that once proceedings begin, the remote aspect of the hearing won’t have a large impact, but added that she believes most judges would prefer to be in the courtroom.
“I haven’t noticed myself much of a difference when I’m on the phone with people rather than in court,” said Pugh, adding that taxpayers are typically intimidated either way, and that the ones who will talk back on the phone are the same ones who will talk back in the courtroom.
“So much of what happens in Tax Court doesn’t happen in the courtroom,” said Pugh, adding that going remote probably affected the Tax Court less than other courts, which generally require more regular appearances by the parties involved.
Procedural Specifics
The court’s plan for public notification of upcoming trial sessions will be to use postings on its website as it has always done, and adding the public dial-in information to those announcements, Pugh said. Special trial sessions scheduled for specific cases — as opposed to general trial sessions that involve about 100 cases in a particular location — will likely be announced, with public access information, in the relevant case’s docket, she said.
Pugh said both the judge and the trial clerk will have host powers in the trial session Zoom meeting. The trial clerk will be able to identify petitioners joining the meeting and rename them within the meeting, a particular concern for hiding the phone numbers of those who must call in to the meeting, she said.
“There’s the meeting room capability that we like, where you can put people aside. Let’s say the taxpayer and IRS haven’t talked; we give them the chance to talk,” Pugh said. The meeting security can be maintained by giving the petitioners an access code to the meeting and allowing the public limited access through a dial-in number, she said.
While plenty of taxpayers either procrastinate or have difficulty complying with the Tax Court’s systems and procedures, few show no involvement and then actually appear at a trial session, Pugh said. In other words, the court has several deadlines and possibilities for conference call interactions in the weeks leading up to trial, including pretrial memoranda, she said.
Pugh noted that several of those deadlines have been pushed further out from the trial session as part of the court’s remote proceedings rules. Notably, evidence is supposed to be filed two weeks ahead of time instead of at the trial session. Those early interactions will give the court plenty of opportunities to engage with unrepresented petitioners and address problems in advance, and will include chances for the judges to point taxpayers to volunteer and LITC assistance, she said.
The Tax Court has also suspended its normal procedure of cutting off electronic filing at the start of a trial session, Pugh said. That means taxpayers who appear at the calendar call with documents or looking to bring in help with a limited entry of appearance — the sorts of things that would normally be physically filed at an in-person trial session — will be able to upload those documents, she said.
Volunteers
The Tax Court also extended the time for practitioners, including volunteers and LITCs, to enter limited appearances from the beginning of a trial session back to as soon as a trial session is announced. Pugh noted that as in normal proceedings, petitioners will be taking the first steps to involve pro bono help, either at the remote trial session or ahead of time.
Pugh said petitioners will be able to give their representatives their Zoom meeting access codes. Then the trial clerk will perform the same screening function on those additional meeting participants in the Zoom waiting room, she said.
While these procedures could take place for taxpayers first talking to volunteers at the calendar call session, the court’s first concern, as with in-person proceedings, is to have those interactions take place ahead of time, Pugh said.
Pugh said that if a practitioner first enters a limited entry of appearance at the calendar call, the judge could easily allow the petitioner and practitioner some time to speak separately before reconvening, much like at in-person calendar calls. Stretching out the timelines involved in Tax Court proceedings provides even more flexibility, she said.
Technological Changes
“We know that technology can be an issue,” said Pugh, adding that she anticipates many of the taxpayers will be able to participate fully in the trial proceeding but noting that most cases are resolved without trial.
Pugh also emphasized that despite government-ordered shutdowns, the Tax Court is still operating and processing court proceedings, but remotely.
“The real advantage of what we’re doing now is that we can do it now. We don’t have to wait. We need to go forward,” said Pugh, acknowledging that there will be cases that are more difficult in a remote setting.
Pugh said that any taxpayer who believes they may be limited from fully participating in the trial proceedings should contact the court as soon as possible.
The Tax Court was already planning major updates to some of its technology, including upgrades to its case management system, when the coronavirus struck.
“We need to make sure that the parties can find information easily, just as we need to keep updating our rules when there’s changes in law,” said Pugh, adding that the court’s ongoing efforts to update its technology — including modernizing its official website — have coincided with the pandemic and resulting shutdowns. “The pandemic reminds us of how important it is,” she said.
On whether the Tax Court's recent shift to allow the fulfillment of nonparty requests for court documents via email is welcome, Pugh emphasized the importance of public access to court documents during the government-ordered closures.
“It’s neither welcome nor unwelcome. It was something that was appropriate to allow access to the records,” Pugh said.
Pugh said there are several unknowns to explore in the coming months regarding the court’s approach to technology.
When the court is no longer operating remotely, “there may be things that we want to have continue and there may be things that we decide were very difficult in implementation that should be suspended,” Pugh said.
Correction June 10, 2020: The Tax Court, not the IRS, recently started fulfilling nonparty requests for court documents via email.