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Information from Court Practice and Procedure Programming at ABA Tax Section Meeting Part 1

Posted on May 25, 2022

This committee put on a panel including representatives from the Tax Court, the Court of Federal Claims, the Tax Division of the Department of Justice and the Procedure and Administration Division of Chief Counsel (P&A). I took notes while they were speaking and provide you here with what I found important from the discussion. Today’s post will focus on the comments from the two judges. Tomorrow’s post will focus on the comments from P&A with lots of charts.

Tax Court Judge Toro reported that electronic filing of petitions is trending up though the number of electronic filed petitions remains lower than I would expect. In 2021 the number of electronically filed petitions was 17%. Electronic petitions provide almost instant confirmation of the filing of the petition. Filing the petition electronically can eliminate so many problems involving late filing of petitions. I understand why the Court will struggle to entice pro se petitioners to electronic filing but practitioners should embrace this filing method.

The comments to the most recently proposed Tax Court rule changes are due by today, Wednesday, May 25, 2022. The comments can be emailed to or snail mailed to the Clerk of Court at the usual address. The Tax Clinic at the Legal Services Center of Harvard Law School sent in comments recently. On the point of electronic filing, the Clinic commented that the Court could encourage more electronic filing by pro se petitioners by making its instructions in the petition package more explicit. Others may have better ideas on how to improve the percentage of electronically filed petitions. No doubt, the Court would appreciate your ideas.

Judge Toro said that the Tax Court has now cleared out its backlog of petitions. I discussed this recently in my post providing an update on premature assessments. He said the Court closed over 20,000 cases in 2021. It held 122 regular trial sessions and 78 small tax trial sessions. It issued 320 opinions in regular cases and 12 summary opinions. The number of summary opinions seemed too low to me. He did not mention the number of bench opinions. I don’t know if special trial judges are rendering more bench opinions than in prior years or if the number of trials in small cases is way down or if many more of the small cases are being decided by other orders. The Court has not issued a high number of bench opinions in the past though I haven’t checked recently to see if its practice has changed.

In a couple of Dawson updates, Judge Toro said that the clinic letters will now become a visible part of the docket in hopes that this will make it easier for pro se petitioners to find a clinic. I think the letter to which he is referring is the letter that the Court stuffs into the envelope when it sends a new pro se petitioner notice of receipt of their petition and instructions on what will happen. The clinic letter advises petitioners in each of the Court’s 74 locations of the available clinics at that location. He also said that Dawson is now able to accommodate the sealing of a document in a case without sealing the entire case record. He also noted that the Court has added back the feature that allows for searching orders and opinions.

Judge Wolski from the Court of Federal Claims came and spoke about some activity in that court. This was one of the first times the committee has invited a member of that court to participate in its panel on updates. I found the presence of Judge Wolski a welcome addition to the panel. He started by speaking about some rule changes at the court last August prompted by the changes to partnership law in the 2015 Act. He said the Court of Federal Claims started with Tax Court Rules 251-257. He invited comments to the Court on additional rules it should adopt. Tax issues are a minor part of the docket of the Court of Federal Claims and it has not paid as much attention to updating its rules on tax issues as it might have.

Judge Wolski then moved to talking about jurisdiction in light of Boechler. He was extremely well versed in the law and the special place that the Court of Federal Claims holds due to its precedent. The Court of Federal Claims has prior Supreme Court precedent on jurisdictional issues regarding the timing of filing a Tucker Act case in the form of Kendall v. United States, 107 U.S. 123 (1883) and John R. Sand and Gravel v. United States, U.S. (2008). As a result of the precedent set by these cases, the Supreme Court’s position is that time periods default to claims processing rules unless Congress makes a clear statement that the time period is jurisdictional. In issues involving the Tax Court’s jurisdiction no prior Supreme Court precedent exists so courts must look at the clear statement rule. In the Claims Court the prior Supreme Court precedent will control the Tucker Act cases making the time period in those cases jurisdictional. There is a deep split, however, regarding the Little Tucker Act through which cases can also enter the district court. Seven circuits have said the time period is not jurisdictional and three (the 8th, 11th and Federal Circuit) have said that it is. The recent case of Weston v. United States saw the Federal Circuit holding the time period jurisdictional. He also spoke about the cases of Walby v. United States and Brown v. United States that I blogged about recently and Carl Smith blogged about two years ago. Clearly, the issue of jurisdiction has captured the attention of the Court of Federal Claims as well as the Tax Court.

An outline of the cases and material discussed by the two judges is attached.

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