The Tax Court had to close its building in March and cancel the remaining Winter and Spring calendars because of the pandemic. While the judges continued to work, the cases awaiting trial stacked up. The Court also had to confront how it would operate once it began holding trials again. In addition to having to deal with all of the changes required by the pandemic, the Court had also planned to install a new website and system of administration of cases this year adding to the complexities it needed to manage. So, there is much to talk about in reviewing the administration of the Tax Court during 2020.
Building Closure and Calendar Cancellation
The building closed on March 19, 2020 as a result of the pandemic. Then, it partially reopened enough to allow outsiders to walk down the hall from the entry point to deliver documents to the clerk’s office, and it closed again. Even though the building was closed for most of the year the judges continued to work and to produce opinions.
In addition to closing the Tax Court building in Washington, the pandemic caused the cancellation of all Tax Court calendars around the county for the remainder of the Winter and Spring trial sessions. When the Tax Court started holding trials again in the fall of 2020, it did so remotely.
The pandemic created an extension of time to file a Tax Court petition. In addition to the extension of the deadline for filing petitions brought on through the Guralnik case by the closure of the clerk’s office and through IRC 7508A though the IRS notice regarding the pandemic it is also possible that an extension of the time to file a petition has occurred through 7508A(d). We will find out the answer in the coming year(s).
Obtaining Documents from the Court
Because the Court building has been closed for most of the year, the ability to access documents filed in Tax Court cases by physically viewing them at the Court has been unavailable. Unlike the federal courts covered by the PACER system, the Tax Court does not make documents filed in its cases electronically available except that it makes electronically available the documents produced by the Tax Court. So, someone interested in seeing a document filed in the Tax Court must physically go to the Tax Court where they can look at one of the two computer terminals in the clerk’s office anteroom which displays all of the documents or request the physical file from one of the clerk’s office employees at the window of that office. Since the public could not access the clerk’s office, this left as the only option for obtaining documents the process of calling the clerk’s office and ordering the documents. For most of 2020 the first two options have been unavailable and from March to May the third one was unavailable as well.
None of these options for obtaining a document exist when the clerk’s office is closed. If the clerk’s office is closed and you wish to see a document filed by a party, you, if you are not a party, simply cannot do it. While the Tax Court considered itself open and engaged in handling cases during the pandemic, it effectively denied anyone not connected with the Court or a specific case the right to see case documents during the period when its clerk’s office was closed. This creates a frustrating situation for anyone who would like to see case documents and who might be involved in filing briefs or preparing petitions or other documents necessary to move their case forward.
When the clerk’s office reopened after the pandemic created closure, the Court did, however, make it cheaper and quicker to obtain documents when the clerk’s office is open. This is a great first step. I hope the new DAWSON system and reflection on the lack of access to party documents during the clerk’s office closure may create other changes that will open access further. Maggie Goff and I published an article in Tax Notes on May 4, 2020 entitled “Nonparty Remote Electronic Access to Tax Court Records” discussing the legitimate privacy concerns that the Tax Court faces when considering access to the Tax Court records of individuals and suggesting ways to meet those concerns while making documents more available to the public.
In cases involving entities, however, we see no legitimate privacy concerns of general application with respect to the documents filed. Of course, entities can have secrets in need of protection through record sealing. The stated policy reasons for denying electronic access do not apply to cases involving entities. An easy second step to opening up electronic access, at least from a policy perspective though not necessarily an administrative one, would be to remove restrictions in the cases involving entities.
There is a project underway at the Administrative Conference of the United States (ACUS) that deserves some attention on this subject which we will build out to a separate post in the near future. ACUS has recommended that Agencies post their briefs and possibly other documents generated for courts in an easily accessible and cost free manner for all to access. That would close some of the access gap created by the current Tax Court electronic access rules. Follow that project here.
Changes to Admissions Procedures and Rules
The pandemic even changes the process of admission to practice before the Tax Court.
The Court adopted new rules including making permanent the limited entry of appearance rule. It’s not uncommon for the Court to adopt new rules in any year. These rules deal with general court procedures and demonstrate that even while it closed its building it was still working on refining the general rules of practice.
Trying Cases Remotely
The handling of cases remotely has caused changes in many areas of Tax Court practice. It will be interesting to see how many of these changes have a long term impact and how many fade with the passing of the pandemic.
Subpoenas – New procedures for return of subpoenas discussed here.
Trials have been remote all fall. Most reports I have heard suggest that the trials have gone smoothly. Litigation without the ability to see witnesses in person and without the ability to hand a document to the clerk create some obvious difficulties but so far the Court seems to have surmounted these difficulties to keep the docket moving.
In July the Court adopted a new website.
In November it stopped electronic filing while it migrated to a new filing system named after one of the former judges, Howard Dawson. Every Tax Court practitioner received a new entry path and password to the new electronic filing portal as it reopened on December 28, 2020. Now we will find out how DAWSON works and how much better life is after the creation of the new system. I received my email from the Court on December 27 and filed a document I had been holding for a couple weeks. The filing went smoothly.