The Tax Court has finally publicly acknowledged the problem it is having processing new petitions. On Friday, July 23, 2021, it issued the following notice:
The United States Tax Court has received a significantly higher number of petitions this year. The total number filed in a typical year is between 23,000 and 26,000. In contrast, year to date, the Court has received over 24,000 petitions. The Court is processing petitions expeditiously, but the increased volume has caused a delay between when a petition is received by the Court and when it is served on the Internal Revenue Service (IRS).
The IRS is generally not permitted to assess or collect a tax deficiency when a taxpayer has filed a timely petition with the Court. The Court is alerting the IRS of petitions received but not yet served. If you have filed a petition with the Court but have been notified of an IRS assessment or collection action, you can email the IRS at firstname.lastname@example.org.
If you have questions about whether the Court has received your petition, you can contact the Public Affairs Office at (202) 521-3355 or email email@example.com.
The Court’s announcement that it is willing to verify receipt of petitions is an important development. The PT team has been informed that, going forward, the Office of Chief Counsel will contact the Court to verify receipt of a petition if they are notified of premature collection action.
Readers may be surprised to learn that this was not previously the case. A recent comment on the ABA listserv for those representing low income taxpayers illustrates what has been happening:
The Tax Court is over 2-months behind in processing new cases. My client received a bill based upon a SNOD where we filed a timely Petition in May, but the Tax Court hasn’t served the government yet. I emailed firstname.lastname@example.org and asked them to freeze collection and abate the erroneous assessment. Here was their answer –
Thank you for your request. Unfortunately, we cannot yet take action on this matter. The Petition has not yet been served on the IRS. Once the case has been served on the Respondent, we can take action. In the meantime, I will make a record of this communication in a file tracking alleged premature assessments.
We have written before about premature assessments here, here and here if you need background information about this issue. I am surprised that it took the Tax Court so long to publicly acknowledge the problem and seek to guide petitioners to the right place. With over 70% of petitioners filing pro se, it is not enough that practitioners know about the problem; unrepresented petitioners need to know, too.
The number of Tax Court petitions each year ebbs and flows. It was down during the pandemic and has trended down over the past decade as the IRS sent out fewer notices due to its dwindling resources. If the IRS is beefed up, the Tax Court, and the clerk’s office, must be beefed up as well. In the 1980s during the tax shelter wars, the Tax Court handled over 100,000 petitions in some years. It’s easy to understand how the ebbs and flows of the number of docketed cases impacts the speed with which the court can process the petitions. It’s also easy to understand how the restrictions on work environment caused by the pandemic could reduce the efficiency of the clerk’s office. It’s not as easy to understand why the Tax Court did not make a public announcement acknowledging the problem earlier or why it cannot send something over to Chief Counsel’s office to allow the IRS to input the necessary freeze codes on its computer to prevent premature assessments.
The Court’s announcement and the resulting change in Chief Counsel procedures are both good news. However, a systemic solution is still needed that does not require individuals to email the Office of Chief Counsel or call the Court. Pro se petitioners do not usually understand that there should be a litigation hold on their case while it goes through the Tax Court process. Most petitioners are not going to call the Court in response to a collection notice. The problem the government is having in processing cases should be something the IRS and the Court are working hard to correct.