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What Information Should the Tax Court Make Available Electronically to Non-Parties

Posted on June 2, 2020

We have had a few prior posts, here and here, commenting on the Tax Court’s very limited electronic access to information. Since the closing of the Tax Court clerk’s office in March, the ability to access documents at the Tax Court was zero until June 1. On Friday, May 29, the Tax Court issued a press release alerting interested individuals that obtaining copies was once again possible. It not only reopened the ability to obtain copies but it put a cap on the cost per document at $3.00. This is a significant and welcome change in the price structure of documents ordered from the Court. Additionally, the Court will send the document via email, making receipt of the document much quicker. Both are excellent changes but the most important part of the announcement was the ability of the public once again to see what’s happening in cases. We posted on May 27 that the clerk’s office seemed to be moving cases again. I hope that requests for documents will not overwhelm that office as it digs out from the lengthy closure.

Last fall one of my clinic students, Maggie Goff, asked if I would supervise a writing project for her for her January term project. I agreed and she asked if I had any ideas. I did. There is litigation occurring regarding PACER (Public Access to Court’s Electronic Records) and I was curious how that litigation might impact the Tax Court system of making documents electronically available though I knew that the Tax Court was not part of the PACER system. If you are interested, there are a couple of articles you can read, here and  here, about the PACER litigation which is pending in the Federal Circuit.

Maggie finished her research and did a great job. I suggested that she turn it into a paper and worked with her to build out her research. She and I published an article in Tax Notes on May 4 entitled “Nonparty Remote Electronic Access to Tax Court Records.” The article suggests that the Tax Court make its records more electronically accessible while still protecting the privacy of individuals in an appropriate manner. We were very fortunate that Judge Buch gave an excellent presentation on compliance with the Tax Court rule regarding redaction of personal information at the ABA Tax Section 2020 mid-year meeting, shared with us the slides he produced and allowed us to publish them. So, in addition to the research Maggie performed, the article also contains Judge Buch’s research showing the current state of compliance (or non-compliance) with the Court’s redaction rules.

You can read the article to come to a better understanding of what’s happening in the PACER litigation and how that impacts the Tax Court – not much at all.  You can also read the article to learn about the reasons the Tax Court justifies its extremely limited availability of electronic documents, including not publishing documents of the entities litigating before the Tax Court who would not seem to need protection of personal information (to the extent not protected by sealing orders.)   As mentioned above, you can read the article to see Judge Buch’s findings regarding compliance with Tax Court Rule 27(a) regarding redaction.  He created easy to follow charts.

The suggestions we had regarding what the Court might do to make itself more like the other courts that handle federal tax matters — the district courts, the bankruptcy courts and the Court of Federal Claims — centered on leaving off attachments and making electronically available the documents filed by the parties. While the failure to comply with Rule 27(a) occurs on documents filed with the Court as well as in attachments, the most harmful personal information generally exists in the attachments and not in the pleadings, motions, briefs, etc. filed by the parties.

In trying to strike a balance between protecting the privacy interest of the parties, including the almost 70% pro se litigants in the Tax Court, with the public’s ability to know what happens in Tax Court cases, we suggested that making public a group of documents that generally do not contain taxpayers identifying numbers or account information strikes the right balance. We also discussed policy reasons for making the information public and for having electronic access across the tax litigation judicial forums that, if not identical, is at least not so starkly different. Why should someone’s information in the federal system be so different depending on the federal court in which they litigate? The points we made regarding policy mirrored to some extent the points made by federal judges who filed an amicus brief in the PACER litigation.

Similar to the situation that existed before the IRS made public letter rulings public or before the Tax Court made summary opinions and orders public, Rule 27(b) appears to give the IRS Office of Chief Counsel an informational advantage over private citizens. While the specific attorney working in Chief Counsel’s office only has access to the full electronic docket in cases in which they have entered an appearance, as a whole, Chief Counsel’s office can see everything produced by the Tax Court, yet the bar and the citizens cannot. As an institutional litigant, the IRS collectively benefits from its position as a repeat player. While it may

be difficult to quantify, there is an advantage to having more information about all the decisions being made by the IRS or the Tax Court. Making more documents electronically available has parallels with making private letter rulings and summary opinions publicly available: it evens out the system for everyone. Very few people would argue that the system of hiding public letter ruling worked better than the current system of making them public, even though some public letter rulings contain information that makes the applicant transparent.

Wealth should not control access to justice. Pro se litigants and low income taxpayer clinics lack the resources to go to DC and sit in the Tax Court’s clerk’s office to look at documents and generally lack the ability to pay $.50 per page to obtain briefs and other documents that might assist in their cases. Big firms do not face the financial barriers and the IRS has access to everything as an institutional player. The new cost structure announced in the press release discussed above will go a long way toward breaking down the barrier created by wealth and, because of email delivery, helps to break down a timing barrier as well.

In the PACER litigation, the federal judges argued that allowing nonparties to access court documents remotely actually helps pro se litigants.  Lawyers and judges know that the most effective way to write a brief is to work from an example. The judges wrote that “access to someone else’s successful petition is more valuable than the order or opinion granting it.” If the Tax Court allowed pro se petitioners to view filings remotely in cases in which they are not parties, these petitioners who are doing their best to produce a petition in the dark would be better equipped to follow Tax Court rules and make relevant arguments. Of course, not every pro se petitioner would take time to avail themselves of the wealth of resources available through an electronic system, but enough might to so to make a difference both for themselves and for the system.

It does not do so as a routine matter but it does happen that the government takes inconsistent positions. Without the ability to easily see the briefs the government files in other similar cases, it is essentially impossible for litigants to spot such inconsistencies and bring them to the Court’s attention. We have written before about inconsistent arguments the government has taken in the innocent spouse area regarding jurisdiction here and here. Other examples of inconsistent positions exist, such as the Flora rule, where the government argues one position to the Supreme Court in an attempt to benefit itself before shifting 180 degrees to argue against taxpayers’ ability to get into court. Allowing all parties to see the publicly filed briefs in other cases would cause parties to benefit by finding situations of inconsistency as well as situations where a similarly situated taxpayer makes good arguments.

With respect to specific documents, here is a chart of our recommendations:

ProtectMake Electronically Available
imperfect petitions;all court orders and opinions;
new petition signature page;petition (minus phone/ address information and attachments);
fee waiver requests;entry of appearance;
statement of TIN;answer (minus attachments);
attachments to the petition;motions (minus attachments);
new signature page of notice of intervention;notice of trial (all court- generated notices);
attachments to the answer;standing pretrial order;
substitution of counsel;pretrial memorandum;
documents attached to motions and briefs;briefs; and
trial exhibits and stipulations; andnotice of appeal.
ownership declaration statement.

Details about the reasoning of many of the decisions exist in the article.

The article also discusses the Tax Court’s fee structure for making copies and fees it might charge for electronic access. Currently, the Court makes available for free the documents it does allow the public to see. Whether it would need to go to a PACER like system of charging per page for electronic access or find another way to pay for the suggestions we made regarding access was beyond the scope of our article. We do explain the history behind the current $.50 per page charge which has been in place for decades. As mentioned above, the changes announced in the May 29 press release provide a significant improvement to the prior fee structure.

The Congressional directive to the Tax Court regarding how and what the Tax Court makes public have not been changed in decades. The Tax Court operates outside the PACER system and the Administrative Office of the Courts. In selecting its current policy within the relatively unrestrictive language of the controlling legislation, it looked prominently to Social Security cases and administrative law proceedings rather than to an Article I court like the Veteran’s Court or other courts litigating federal tax matters. With so many pro se litigants, the Tax Court is right to want to protect their privacy to the extent it can while still making documents reasonable available to the public. We suggest making more documents publicly available but keeping off of the electronically accessible list documents with a high probability of containing sensitive personal information of individual petitioners. We find inexplicable the decision to withhold electronic access to the information regarding petitioners who are entities.

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