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Requesting a Waiver of the Tax Court Filing Fee

Posted on Nov. 21, 2013

The Tax Court imposes a $60 fee to file a petition.  The fee is authorized by 26 U.S.C. § 7451, which also allows waiver of the fee in appropriate circumstances.

In the Tax Clinic we routinely request the fee waiver for our clients when we file a Tax Court petition.  The Tax Court’s form is simple and straightforward.  During the six plus years I have filed fee waiver requests, the Tax Court has granted those requests without, to my knowledge, any questions.  The system works well with two areas about which I have concerns.  The first area of concern centers on clients for whom we do not file the Tax Court petition.  These clients make up the bulk of our Tax Court case inventory because they learn of the clinic through the Tax Court stuffer notice sent out to them after the filing of the petition. Many of these clients pay the filing fee rather than request a waiver of the fee for which they probably qualify.  I have wondered if a better system might nudge more of them to the fee waiver form.  While sitting in the Tax Court docket room retrieving some documents for Senator Fumo’s case (see previous blog posts on his case here and here), I had the opportunity to observe one of the workers in the docket room interacting with a pro se petitioner.  My observation of that interaction caused me to write this post and I will describe it further below.

My second concern centers on the process of making the fee waiver.  This concern has two parts.  When filing a Tax Court petition, three or four documents must be completed and filed – the petition, a request for place of trial, a separate statement of the taxpayer social security number that does not become public and, where appropriate, a fee waiver.  The package of documents the Court provides to pro se taxpayers contains the first three but not the fourth. See the Petition listed on the Tax Court’s Forms page here. The Court alerts taxpayers to the existence of the waiver but does not make the fee waiver a part of the package. For low-income taxpayers who are represented at the time of the petition, the representative can sign the first three of these documents but, cannot sign the fee waiver.  The inability of the representative to file the fee waiver can create logistical problems a few other courts have removed.  I will discuss these issues in more detail below as well as proposed solutions.

As mentioned in a prior post, I visited the Tax Court docket room to make copies of the IRS answers to Senator Fumo’s petitions.  Because one of the answers was 78 pages long and because I was trying to photograph those pages with my phone, I spent some time in the small public space there.  While I was there photographing and making notes, a pro se petitioner approached the window seeking to file his petition.  The interaction between the individual working in the docket room and the individual seeking to file the petition caught my attention because it represented a moment I wonder about as someone who regularly represents pro se petitioners and as someone who had never before witnessed the moment of the filing of the petition.  Perhaps this type of interaction is too mundane for much discussion but I found it both fascinating and uplifting.  Following with the spy theme of my camera work, I eavesdropped on the interaction.

The petitioner appeared to be coming from work and the work appeared to be of the type that caused him to wear coveralls made of a sturdy fabric.  He spoke well and asked good questions.  He obviously came prepared.  Still, he left both me and the person serving him in the docket room with the impression that he might qualify for a waiver of the filing fee.  As she assisted him with the filing and went over the forms with him, she asked him if he would like to fill out the form seeking a filing fee waiver.  He said that he was ready to pay the filing fee.  She explained that if he filled out the form the Court would make a determination whether he qualified and if he did not it would notify him to send in the $60 fee.  He decided to pay the fee.  He then asked more questions about the Tax Court process and the person in the docket room assisting him gave him an excellent run down of how the case would proceed.  When the conversation first started, I wondered if I should step up and offer to assist him.  By the end of the conversation, it was clear that my assistance, at least at that stage, was not needed.  I was totally impressed with both the petitioner and the person in the docket room providing him assistance.  The Tax Court docket room must still have many documents to process stemming from last month’s partial government shutdown, yet the person serving this taxpayer took the time to provide the level of service that made me proud she worked for my government.

Because many of the petitioners who make their way to my clinic do so after paying the filing fee, I have considered the question of how pro se petitioners might make a more informed choice on whether to pay this fee.  The Tax Court website provides excellent guidance for pro se petitioners, but many do not have internet access or knowledge that the website exists.  Could more materials mailed with the statutory notice or provided to taxpayers in some other fashion assist them to understand and prepare the filing fee waiver?  Perhaps more materials or more emphasis on this issue on the website would assist here but the exchange I witnessed led me to the anecdotal conclusion that more information may not make much of a difference.   As I mentioned above, I recommend that the Court consider including the including the fee waiver form in its petition package.  This idea came to me from Susan Morgenstern the soon to be departing director of the Cleveland Legal Aid Society Low Income Taxpayer Clinic (LITC.)

It was clear that in the case I observed the petitioner preferred to pay the filing fee rather than receive the waiver.  I do not know if he would have qualified and that may have factored into his decision to pay the fee.  I took away that after receiving a personalized, excellent explanation of the fee waiver possibility, he felt paying the fee was best.  Maybe I am wrong in thinking that my clients pay the fee without realizing the possibility of a waiver.  Their decision may result from a thought process based on sufficient knowledge.  Putting the fee waiver form in the package may assist some petitioners in better identifying this option.  Countervailing arguments exist that it could cause taxpayers to request the waiver in inappropriate circumstances and that on balance mentioning it without providing the form best serves the system.  The issue deserves more research and study than I have yet given it.

Another issue concerning the waiver form exists when the client has an LITC as their representative at the time of filing.  LITCs accepting the grant provided under IRC 7526 must make a determination concerning the income of prospective clients in order to satisfy the requirement of the statute establishing the grant.  The statute requires that 90% of the clients served must have income less than 250% of poverty – about $28,000 for one person in 2013.  Because LITCs must vet their clients under a federally mandated provision, this vetting could serve the purpose of the Tax Court fee waiver process.  In Pennsylvania petitioner’s counsel providing pro bono representation can certify the qualification of client.  See Pennsylvania’s In Forma Pauperis rule here.

If the Tax Court determined a similar rule was appropriate, it would make the petition filing process easier for LITCs and save time and money for petitioners and the Court.  Signing this form for the taxpayer gives me some concern.  I would prefer that the client sign it but communicating with low income taxpayers proves difficult in many cases.  They frequently lack internet access, almost never have access to a fax machine, and often have phones that have run out of minutes, have full mailboxes, or have been disconnected, etc.  When our clinic meets with the taxpayer, in person or by phone in order to obtain the information necessary to prepare a petition, we usually do not have the information necessary to prepare the petition at that point.  When we have the petition ready for filing, we occasionally face the problem of filing the petition without the fee waiver and without $60, and we must scramble to reach our client in time.  Sometimes, we just file the petition without the money or the waiver because the Court works with those who fail to timely file the fee or the waiver but has no flexibility to work with petitioners who do not submit the petition by the due date.

If the Tax Court determined it would be appropriate to adopt a rule similar to the rule adopted by the Pennsylvania Supreme Court, clinics and other qualifying petitioner’s counsel could sign all of the documents necessary at the outset of the case and avoid the problem many LITCs face of chasing down a client in a short time period.  This allows the petition to move forward without the delay of waiting for the fee waiver to catch up but does create the discomfort of signing a form about the client’s financial information.  Because I have not done exhaustive research on any legal impediments that might stand in the way of such a rule or an empirical research on the cost of processing these requests, I can only describe the benefits to LITCs that such a rule would provide.

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