When a Tax Court opinion or order comes out after a long period of inactivity, we usually note that as part of our discussion of a case but we have not previously written a blog post specifically on the timeliness of Tax Court dispositions. Today we write an editorial post decrying the length of time it takes for some Tax Court cases to reach disposition. Today’s post results in part from statements by the Court in the recent ABA Tax Section meeting but more generally from what we have observed in a non-empirical way viewing and writing about Tax Court cases in this blog site over the past decade.
Quoting from Christine’s recent blog post in which she was reporting on a panel discussion regarding the Tax Court:
As of October 14, 2022, the Tax Court had 31,831 cases pending, of which 8,295 were assigned to a judicial officer. Of those, 250 cases are fully submitted and awaiting an opinion. The Court does not track the time it takes cases to move from submission to opinion, or the time from petition to decision. There is no average figure available for either timeframe. (emphasis added)
For anyone unfamiliar with the operation of the Tax Court the first sentence may require a little background explanation. The Court currently has 17 regular judges (out of a possible 19 when fully staffed), 10 senior judges (no statutory number exists and this number fluctuates based on the interests and capacity of judges whose terms have expired or who have reached the mandatory retirement age of 70) and 5 special trial judges (no statutory number exists for these magistrate type judges who are hired by the Court rather than appointed by the President.) Dividing the current number of available judges into the current number of cases pending would give each judge an inventory of almost 1,000 cases.
We know of no study on how many cases a judge should handle and whether this ratio creates what we perceive as a significant problem or whether the ebb and flow of Tax Court cases makes this a manageable number based on the number of available judges. Christine blogged the Court as indicating during the ABA session it was receiving a high volume of cases:
Judge Carluzzo reported that the Tax Court continues to receive a high volume of petitions, approximately two thousand per month. The Court has received over 20 thousand petitions so far this calendar year.
The current volume of cases is far from its historical highs in the 1980s and this year’s receipts track lower than most years in this century when you adjust for the years impacted by the Restructuring and Reform Act of 1998 in the early 2000s and the pandemic . For a look at historical filings of Tax Court cases see Appendix A of the Tax Court’s History by Dubroff and Hellwig available here and our post (at slide six) on filing numbers in more recent years than covered by the book.
Petitions received by the Court are not immediately assigned to a judge. In most instances, cases are assigned to a judge when they appear on a calendar assigned to that judge. Once assigned, the judge usually disposes of the cases on the calendar but some continued cases recycle back into the general unassigned group awaiting the next calendar for reassignment. The general problem of aging with which we are concerned is not the cases in the unassigned category but the cases in the inventory of a specific judge.
There is enough anecdotal evidence of cases taking what appears to be too long to reach disposition after assignment to a judge that the Court should take steps to correct the situation. We cannot know the full extent or answer to this problem without better information from the Tax Court. From the quote above, the Tax Court does not track the time it takes for case disposition or non-dispositive matters. If it doesn’t track that time, it becomes difficult to assess the pain points in the process causing long delays in the disposition of cases.
Maybe the Court needs more judges. The number of regular Tax Court judges has remained static for decades. In the 1980s it had 10 special trial judges instead of the five that exist today. As noted above, these judges do not require Presidential appointment. They require appropriation. The Tax Court sought $57.3 million in its FY 2023 appropriation request which has not yet been acted upon by Congress. In addition to whatever appropriation it receives for FY 2023 and subsequent years, in recognition of the additional work it can expect because of the $80 billion IRA appropriation to the IRS, it has received over $150 million from IRA funds to spend over the next 10 years as shown here and here (at page 2). Could the Court use some of those funds to hire more special trial judges to reduce the pressure on the Presidentially appointed judges if the problem is that these judges have too much on their plate?
Maybe some judges just move too slowly in case disposition. There will always be differences in the speed of judges and someone will always be the slowest judge. Occasionally, you hear of judges taken off the rotation of trial calendars to allow/encourage them to clear their backlog of cases. It would seem this occurs because the Court has some records indicating the inventory of the judges on the court and the time it takes each one to dispose of cases. The management of judges probably has many of the same frustrations as the management of tenured law professors. Some of the blog writers are ill placed to throw stones, yet without measurement of the issue, it would seem that management would be all the more difficult. We urge the Court to consider developing systems of tracking the time of disposition and sharing those times not only within the Court but also to the public.
Having discussions with clients after a Tax Court trial has always been interesting. The client wants to know when to expect an opinion and the attorney cannot point to anything when making the guess about the time until disposition. The Court need not change its practices to address that type of concern but it might want to consider doing so. It should change its practices when it produces opinions after four, five or six years without any explanation of how the opinion could possibly take that amount of time to produce.
Anecdotally, it appears that more and more lengthy dispositions exist. Is this because the cadre of judges has changed over the years, the cases have become more complex, the law clerks are less efficient or is it due to other factors? The Court has a reputation to maintain; lengthy dispositions do not benefit that reputation. If it needs more resources, it should seek them but the case filing numbers do not suggest that additional resources are needed. Something is driving the longer dispositions and the Court should be at the front of figuring out the cause.
If the Court will not do the empirical work necessary to track case dispositions, perhaps it is time for the ABA Tax Section, some law professors or another group to take up the challenge. That other group could be Congress which might consider passing the Tax Court equivalent of 28 U.S.C. § 476. This section provides:
(a)The Director of the Administrative Office of the United States Courts shall prepare a semiannual report, available to the public, that discloses for each judicial officer—
(1) the number of motions that have been pending for more than six months and the name of each case in which such motion has been pending;
(2) the number of bench trials that have been submitted for more than six months and the name of each case in which such trials are under submission; and
(3) the number and names of cases that have not been terminated within three years after filing.
Of course, the Tax Court could do this on its own by adopting a Rule or an Operating Procedure.
Making this information public would help everyone understand where delays exist and maybe why they exist. Understanding what is holding up case disposition could help the Court or external players address the lengthy delays we are seeing.