The last panel at the Tax Court Judicial Conference was a look to the future, considering current and future issues that could affect the way the court does business. The panel, moderated by Chief Judge Marvel, included the Chief Justice of the Tax Court of Canada, Miriam Fisher of Latham & Watkins, National Taxpayer Advocate Nina Olson, and Drita Tonuzi, Deputy Chief Counsel.
One indication of a successful panel is the sense that you both learned a lot and also wanted the panelists to keep going. The 80-minute panel flagged a number of issues (like possible new and revised jurisdiction, the court’s thorny constitutional status) and spent some time on a subset issues, including a tantalizingly brief discussion of EITC and its impact on the court, possible Tax Court rule changes, ways to increase efficiency and reduce litigation costs, the impact of globalization on Tax Court practice, and the possibility of expanding access to documents filed with the Court.
Access to filed Tax Court documents is an issue that seems to be front and center for the Court; as part of the materials the Chief Judge referred to a blog post that our sometimes Forbes colleague Peter Reilly wrote called Tax Court IRS and Secret Law. That post, in a nutshell, heavily criticized current Tax Court practice when it comes to allowing nonparties access to court documents, stating that the “Tax Court is letting us down when it comes to electronic transparency.”
As a blogger, researcher and sometime advocate, I find that easy access to briefs in cases in district court and appellate courts is very helpful. Current Tax Court practice essentially limits e-access to documents to parties, and those who have the resources or friends to go the Tax Court in DC can go and make make copies.
The Chief Judge tried to move the discussion away from labels (it is fair to say that the Chief Judge is not a fan of procedures being called secret or stealth) and toward what she referred to as a “constructive dialogue” that would take into account both the public’s legitimate need to know and the privacy concerns around often sensitive personal information that is embedded in the mostly pro se docket that makes up the court’s basket of cases.
As part of an effort to move the conversation, the Chief Judge flagged some specific possible changes, including the following:
- Expanding the types of documents that can be accessed electronically (like briefs, dispositive motions);
- Limit e-access to cases where both parties are represented; and
- Restrict e-access to certain types of people, including possibly those who register
In a question, Judge Buch raised the possibility of allowing e-access to documents that Counsel files, and Judge Leyden suggested the possibility of allowing parties to elect into allowing e-access. The Chief Justice of the Canadian Tax Court said that in the near future all documents in the Canadian Tax Court will be e-accessible, with that court responsible for redacting some personal information.
The dialogue that Chief Judge Marvel encourages is welcome. So was some of the clarifying information at the start of the presentation, including reminders of the pro se nature of the Tax Court and that PACER limits access to Social Security and immigration cases, cases that like tax cases are embedded with lots of sensitive information. My sense is though that the Tax Court judges recognize that the balance is shifting on this issue, the balance between transparency and privacy is not currently correctly calibrated, and that Counsel’s access to all briefs and filings gives it a leg up over the private bar that could be remedied without major harm. Judge Buch’s suggestion to allow access to Counsel filings would be an easy start, though I think it is not too much of a leap to allow access to classes of documents like briefs and dispositive motions in all cases where there is counsel.
Now, when it comes to transparency and consistency for Tax Court orders….well that is another story and perhaps the subject of a future panel.