On November 25th the Tax Court issued a press release announcing proposed amendments to its rules and a new fee schedule. The amendments do not make major changes to the rules. Essentially, the amendments make a few stylistic changes to the language of the affected rules and they replace Appendix II of the current rules with a reference to the Court’s web page and its schedule of fees and charges on the site. The web page containing the Court’s fees has not been updated since 2016. The proposed fee changes are contained in the press release at the end of the release.
Based on the proposed fee changes, the Tax Court will remain one of the cheapest courts in which to file a petition. At $60 for a petition, the cost of filing in the Tax Court has got to be one of the great bargains at this point. For that small fee you get full access to the Tax Court no matter whether you are Google or an individual with modest income and no matter whether your case will have 100 motions or none. There are no add ons once you are in the Tax Court. It does not charge an additional fee for certain actions in the case. It also regularly waives the fee with little fuss for individuals who are low income.
The biggest change occurs in the section on the “Periodic Registration Fee.” Here is the change and the explanation:
(g) Periodic Registration Fee: (1) E The Court is authorized to impose on each person admitted to practice before the Court shall pay a periodic registration fee. The frequency and the amount of such fee shall be determined by the Court, except that such amount shall not exceed $30 per calendar year. The Clerk shall maintain an Ineligible List containing the names of all persons admitted to practice before the Court who have failed to comply with the provisions of this paragraph (g)(1). No such person shall be permitted to commence a case in the Court or enter an appearance in a pending case while on the Ineligible List. The name of any person appearing on the Ineligible List shall not be removed from the List until the currently due registration fee has been paid and arrearages have been made current. Each person admitted to practice before the Court, whether or not engaged in private practice, must pay the periodic registration fee. As to forms of payment, see Rule 11.
(2) The fees described in paragraph (g)(1) of this Rule shall be used by the Court to compensate independent counsel appointed by the Court to assist it with respect to disciplinary matters. See Rule 202(h).
It is proposed that Rule 200(a)(2) and (3) be amended to delete references to Appendix II and replace them with references to the new Fee Schedule, which will be available on the Court’s website. It is also proposed that Rule 200(g)(2) be deleted. Code section 7475(b) describes how the Court may use periodic registration fees.
Most readers will scratch their heads trying to understand what the periodic registration fee is and when they should pay it. A good reason for scratching your head about this fee is that only Tax Court bar members of a certain vintage will ever have paid this fee. In my 40+ years of membership in the Tax Court bar I have paid it once. The one time the periodic fee was imposed during my tenure, it was small but that did not stop those of us working for Chief Counsel from complaining since we had to pay it out of our own pockets. As a government attorney you have a duty to complain about things like this. The rule change does not signal that the court is about to impose a periodic fee again but simply provides that if it does the fee will be no more than $30 a year and the money collected will not go just to pay attorneys the Tax Court hires to go after members of its bar with possible disciplinary issues.
For readers not intimately familiar with IRC 7475(b), the periodic fees can not only pay for hiring independent counsel but can also be used “to provide services to pro se taxpayers.” The Tax Court regularly uses the fees to pay for costs that benefit pro se taxpayers such as paying for its web site explanations and paying for translators to assist with their cases. By allowing the Tax Court to use periodic fees for this purpose, Congress fosters the already welcoming atmosphere that the Tax Court creates for pro se litigants.
Speaking of complaining, my one complaint about the proposed change in the fee schedule is that it does not reduce the fees for requesting copies or differentiate between parties making the requests. The Tax Court is not a part of PACER. Therefore, it is not a part of the ongoing litigation about the high cost of PACER fees; however, it’s interesting to note that the “high cost of PACER fees” alleged in the ongoing litigation concerning access to public documents involves fees considerably lower than the Tax Court’s fees and involves a system that routinely grants free access to documents to occasional users and users from organizations representing low income individuals. There’s more to the issue than just fees and the Tax Court offers for free all of its orders (not only providing them gratis but providing a magnificent search feature). Comparing the Tax Court’s public access provisions to PACER is somewhat, but not totally, apples to oranges. Still, the Tax Court could make documents more accessible and cheaper. As someone who regularly visits the Tax Court’s docket room to research cases on upcoming calendars in my city and for other purposes, I would appreciate a closer look at both access to and fees for the court’s documents. We have previously written about access issues here and here.