Tax Notes logo

In Person Hearing Inconveniences Appeals Witness

Posted on Nov. 15, 2021

As is often the case, commenter in chief, Bob Kamman, brought to my attention an order that prior to DAWSON would probably have received the designated order label. DAWSON did away with designated orders, as we have discussed before, but did not stop the Tax Court from issuing important and interesting orders. The lack of a place for Tax Court judges to park their interesting orders creates more difficulty in identifying the orders that might be of assistance to the broader community of practitioners who follow the Tax Court, but it doesn’t mean the orders are totally unavailable.

The feature that existed prior to DAWSON that has still not returned and that provides a critical resource for researching orders is the search function. It would be nice to know when that feature will return. Searching orders by issue, by judge, or by key word cannot really be done anywhere else.

The order Bob found has a few interesting aspects.  First, the order signals the return of in person hearings in the Tax Court even before the announced return date.  Second, it provides a window into the IRS view of CDP and the perhaps slightly different view of what is needed in a CDP case from the Court’s perspective.  Lastly, it provides a lesson on how not to respond to a status report.

The order at issue is not long. I will copy it in full here in order to provide context and to let the Judge’s voice come through in full fashion:

Wendell C. Robinson & May T. Jung-Robinson  Docket No. 6446-19L


Petitioners requested a Collection Due Process hearing on Form 12153 (Doc. 52 at 56), on which they gave their address in Washington, D.C. Thereafter paperwork from IRS Appeals was evidently generated by various personnel in Holtsville (Doc. 52 at 65, 139, 144) and Philadelphia (id. at 138; see also id. at 99, 187). See also id. at 85 (Austin). Appeals issued a notice of determination; petitioners commenced this case; and the case has been set for trial in Washington, D.C. In a telephone conference on November 9, 2021, petitioners expressed a preference for an in-person trial (rather than a remote trial via, and the undersigned judge stated an intention to hold an in-person trial. On November 12, 2021, the Commissioner filed a status report that states: “Respondent’s Settlement Officer is unable to travel to Washington, DC in order to testify in person during the December 13, 2021, trial session. The Settlement Officer is available to testify remotely during such trial session.” It is

ORDERED that, as soon as possible, and in any event no later than November 19, 2021, the Commissioner shall file a supplement to his status report that shall :   (1) identify the (unnamed) Settlement Officer to whom the Commissioner refers,  (2) explain why that Settlement Officer (rather than another Settlement Officer) is needed as a witness, (3) give a summary of the testimony that the Commissioner expects to offer through this Settlement Officer, (4) explain the reasons that this testimony is important to the Commissioner’s case at trial, (5) explain the reason that the Settlement Officer is “unable to travel to Washington, DC”, though able to testify remotely, (6) explain why the IRS chose the Holtsville Appeals Office for the handling of petitioners’ request, rather than one closer to their residence, and (6) state whether, if the Court is unwilling to allow this Settlement Officer to testify remotely in an otherwise in-person trial, the Commissioner would prefer a general continuance rather than proceeding without this witness.

(Signed) David Gustafson


Served 11/12/2021

We posted the Tax Court’s announcement recently that it intends to begin holding in person trials again in January 2022 and traveling out to the 74 cities where it sits to hear cases around the country.  What’s mildly surprising about this order is that the Court is holding an in person trial in 2021 or at least attempting to do so.  This is the first in person trial since March 13, 2020 of which I am aware but, of course, there could be numerous in person trials happening that I would not know about.  I take the order to signal that the Court is serious about getting back into the real rather than virtual courtroom.  Another sign we are opening back up.

The second part of the order is the more interesting and amusing. In this CDP case the IRS attorney wants the Settlement Officer to testify. It’s not clear from the order why the IRS wants the SO to testify or why the SO cannot do so on that date. It’s a bit unusual to have the Settlement Officer testify. Nonetheless, the Settlement Officer is unavailable on December 13. That trial date comes pretty close to the end of the government leave year. Perhaps the SO has use or lose leave with plans not to be in the office for the last few weeks of the year. Perhaps the IRS travel budget does not allow bringing in an SO remote to DC to make a minor point.

The unavailability of the particular SO to attend leaves the Court asking why another person from Appeals could not testify. This goes to why the IRS wants the SO to testify in the first place, but also to whether travel funds entered into the response. If the purpose of the testimony is merely to establish matters almost any IRS could attest, why not have someone else come and testify who is available and local? We can find out later this week when the IRS files its supplemental status report.

The lesson here may be principally about status reports and how much detail to include. The IRS clearly did not include enough information in its status report and may have annoyed the Court by failing to do so. Most, if not all, of the Tax Court judges monitor the cases in which they retain jurisdiction by requiring status reports of the parties. As a government attorney, I knew I had to always file a status report by the date requested even though almost no pro se petitioners file the ordered reports and many represented parties fail to do so.

Filing a helpful status report allows the judge handling the case to know what to expect and when.  It’s not a bad idea to anticipate what the judge needs and wants to know and include that in the status report even if it was not the precise information requested.  In pro se cases, the IRS regularly gets a public form of ex parte communication since the other side is usually silent.  Here, the government’s status report was too cryptic and seemed to assume that the Court would go along.  If the status report had reported why the specific witness could not attend on the scheduled day and why that witness brought important information to the CDP case, the judge could have made a decision about moving forward based on that information.  The incomplete information provided only led to a request for more information and put the government on its back foot.

Subject Areas / Tax Topics
Copy RID