On March 20, 2023, about a year after it published proposed changes to its Rules, the Tax Court published changes to its Rules and much more. In addition to publishing the updated Rules, it published a discussion of the comments it received in a similar style to publishing comments to a proposed regulation. This discussion allows commentors, and other interested parties, to better understand the Court’s thinking about the comments and how they influenced, or failed to influence, the changes to the Rules. On the same web page, it also published complete versions of the eight submitted comments to this Rule change proposal as well as comments submitted in response to proposed Rule changes going back to 2015.
The collection of past comments as well as the Court’s discussion of the impact of comments should aid future parties seeking to provide meaningful comments to the Court. The Court also provided a Guide to Rules Amendments and Notes for persons interested in looking at changes to the Rules over time.
All in all, the package of information accompanying the new Rules does an excellent job setting out the Court’s thinking as well as providing resources to parties interested in understanding how the Court reached its conclusions. You can find the updated version of the Rules here. Each Rule is available on that page as a separate PDF. In this post I will discuss some of the new Rules and some of the comments the Court had about its thinking in adopting the new Rules.
The post is long and the discussion only highlights three of the proposed changes that interested me the most. The main take away from this post is that the new rules now exist and the Court’s thinking about the rules as well as the commentors suggestions regarding the changes are available through the links above. The first of the three rules I discuss raises interesting questions resulting from electronic filing, the second continues my long standing complaint about access to the Court’s records and the third addresses the new amicus provisions.
The first of the revised rules I will discuss is Rule 25. This rule addresses the computation of time for filing a document with the Court including a petition. The pertinent part of the rule I will discuss provides:
RULE 25. COMPUTATION OF TIME
(a) Computing Time: The following Rules apply in computing any time period specified in these rules, in any Court order, or in any statute that does not specify a method of computing time.
(1) Period Stated in Days: If a period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2) Inaccessibility of the Clerk’s Office: Unless the Court orders otherwise, if the Clerk’s Office is inaccessible on the last day of a filing period, the time for filing any paper other than a petition is
extended to the first accessible day that is not a Saturday, Sunday, or legal holiday. For the circumstances under which the period for filing a petition is tolled when a filing location is inaccessible, see Code section 7451(b).
The Tax Clinic at the Legal Services Center of Harvard commented on this rule expressing a desire for it to discuss what happens if/when the electronic filing system of the Court became unavailable. It commented:
The Clinic has concerns about the operation of this rule if one or both of the methods of filing a petition become inaccessible.
How does the ability to electronically file petitions interact with physical accessibility to the Clerk’s office? What if a petitioner seeks to file their petition by an unauthorized delivery service or the person sends the petition by courier and the Court is closed due to snow requiring delay of delivery until after the last date to file. Does the fact that the petitioner could have filed electronically mean that the petition is filed late? Does accessibility now turn solely on electronic access?
What if the Court’s electronic access goes down for a portion of a day? How does lost access for a portion of a day impact the determination of accessibility? Does it only matter if the electronic access becomes unavailable at the end of the day leading up to and including 11:59 p.m. Eastern Time
Perhaps these comments provide only hypothetical problems discussed at a law school, but the introduction of electronic filing theoretically available to everyone all the time changes the nature of the timely filing discussion.
The Court’s response to the comments received regarding this change are:
As previously noted, in response to comments, the Court amended paragraph (d) of Rule 10 to include a cross-reference to the definition of “legal holiday” set forth in paragraph (a)(5) of Rule 25.
The Court received a comment inquiring whether and how the availability of and access to the Court’s electronic filing and case management system might impact questions regarding the physical inaccessibility of the Clerk’s Office on the last day of a filing period. The Court’s Rules of Practice and Procedure are not designed or intended to address every possible scenario. The Court will address any issues and disputes that might arise in connection with the application of new paragraph (a)(2) of Rule 25 through case law and similar guidance.
The Court adopted the amendments to Rule 25 as published.
Two recent cases regarding electronic filing and the timeliness of submissions highlight some of the issues that can arise in an electronic filing environment. These two cases do not involve the electronic filing system “going down” but do point out some issues that arise as petitioners use that system to timely file their petitions. The first case blogged here involved a California petitioner whose electronically filed petition arrived at the Tax Court two minutes past the Court’s 11:59 PM ET deadline. The second case is just starting to get going in earnest. On March 21, 2023 — for the third time in the last year in a Tax Court case — Judge Buch invited an amicus brief (more on that below) in the pro se case of Antwan Sanders, Dk. No. 25868-22. (The order also, sua sponte, removed the “S” election from the case.) In his order he attached the Court’s internal electronic file showing the petitioner’s attempt to file electronically and final success immediately after the deadline. Thus begins the case specific application of the rules regarding electronic filing. This will be an interesting case to watch. It raises elements of equitable tolling which will come into play as the post-Hallmark/Boechler cases make their way through litigation but also raises stand alone issues of timeliness of electronically filed petitions.
RULE 27. PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT
The second of the revised rules I will discuss is Rule 27 regarding electronic access to Tax Court documents. The Court continues its practice of making it difficult to access public records. Revised Rule 27 is available here.
The Tax Clinic at the Legal Services Center of Harvard commented:
The Clinic believes that the Court practice unnecessarily restricts access to public documents.
The rule continues a practice that makes it unnecessarily difficulty to access public information. Documents should be available electronically absent a good reason for preventing electronic access. The Court should provide a statement of its policy reasons for preventing the public access to public documents in a reasonable manner.
Rule 27(b)(2) describes public access at the courthouse. This access has been essentially unavailable for over two years but even when available is not something available to 99% of the populace. The rule does not explain the alternate method for obtaining records by calling the Court and ordering documents from the clerk’s office leaving anyone who reads the rule to think that the only way to obtain documents is by a personal visit which, at this time, is impossible.
The Court could adopt practices that would open most of its documents to easy public access over the internet. The Court’s failure to open most documents to access over the internet is difficult to explain solely based on privacy concerns as long as it declines to allow electronic access to entity documents which do not implicate privacy concerns. For a further discussion of concerns on this topic please see https://procedurallytaxing.com/what-information-should-the-tax-court-make-available-electronically-to-non-parties/ and the article cited therein entitled “Nonparty Remote Electronic Access to Tax Court Records.”
The pandemic has changed the way even persons in DC can access Tax Court records. The current system for calling and obtaining records contains some improvements over the prior system but is still somewhat clunky. In addition to making more documents electronically available, the Court might consider allowing requesters to fax in the request. That would avoid calling and leaving a VM message only to have someone from the clerk’s office respond to the call and leave a VM message with the requester and so on. A dedicated fax line or email address could make the intake process go smoother and avoid he problems inherent in relying on phones for communication.
The Court responded:
The Court received comments suggesting that the Court should expand remote electronic access to its docket records, including those of entities, which may implicate privacy concerns different from records of individual taxpayers. Although the Court continues to evaluate options for increased remote access to its docket records, Rule 27 reflects the Court’s current policy balancing the interest in protecting sensitive personal information against the public’s interest in access to the Court’s records.
Despite the Court’s efforts directing parties to protect sensitive personal information, in practice that type of information is routinely embedded in papers filed with the Court. This is true not only in cases involving self-represented parties, but also in cases involving parties represented by counsel. A survey of over 3,000 cases conducted by the Court in 2020 showed the problem to be widespread, affecting over 90 percent of the cases sampled.
The Court believes that additional steps to expand remote electronic access to the Court’s docket records should be measured and take into account the types of personal sensitive information frequently present in those records. The Court’s practice of limiting remote access to electronic files is similar to the treatment of Social-Security appeals and immigration cases under Rule 5.2(c) of the Federal Rules of Civil Procedure and is consistent with the protection of tax information filed with Federal Bankruptcy courts. For additional background on the Court’s policies regarding remote electronic access to its docket records, see Note, 130 T.C. 395-401. The Court adopted the amendments to Rule 27 as published, with additional stylistic amendments to paragraphs (a)(1), (b), and (d).
The Court acknowledged in the first sentence that the privacy concerns of entities differ from those of individuals but fell back on a discussion of Social Security cases which do not involve entities. It is difficult to imagine the privacy concerns of entities aside from those covered by sealing the record pursuant to the appropriate motion. Some discussion of the differences between individuals and entities and why the Court protects both equally would go beyond the mere acknowledgement that differences exist. The Court correctly points out that few pro se petitioners who make up 75% of its docket appropriately redact private information from their submissions and only a small percentage of representatives properly redact. It is right to seek to protect petitioners but goes too far in doing so. There are ways to make much of the docket public while still protecting privacy interest.
RULE 151.1. BRIEF OF AN AMICUS CURIAE
The third of the revised rules I will discuss is proposed Rule 152 which changed into Rule 151.1 as a result of suggestions regarding the numbering of the Rules. This rule is new and not a revision of an existing rule. It governs the filing of amicus briefs and fills a gap in the Court’s rules. The new rule can be found here.
Several commenters wrote about the benefits of having amicus appointed in cases in which the Court sought to issue precedential opinions in which the taxpayer was unrepresented. Caitlin Hird and I made proposals in this regard in an article recently published in the Houston Business and Tax Law Journal. The Court commented as follows:
Court proposed numbering the new rule governing briefs of amicus curiae as Rule 152, and renumbering existing Rule 152, Oral Findings of Fact or Opinion, as Rule 153. In accordance with comments, and to avoid confusion that might arise in connection with renumbering the Rules, the Court has instead adopted the new rule governing briefs of amicus curiae as Rule 151.1. (All references to comments regarding Rule 151.1 are to comments submitted in response to proposed Rule 152.)
Several commenters suggested that the Court should adopt procedures for requesting an amicus or appointing an amicus or pro bono counsel. The Court appreciates that such procedures could be useful in cases brought by self-represented petitioners presenting unique or novel issues. The suggestion merits further study and potential development.
The Court received a comment suggesting that the Court should provide guidance regarding a request to enlarge the 25-page limit for amicus curiae briefs. The Court has adopted changes to paragraph (d) of Rule 151.1 to address the comment.
Another commenter suggested that the Court should amend Rule 151.1(e) to state that motions for extension of time to file an amicus brief will be freely given. The Court believes that the filing periods set forth in Rule 151.1(e) are adequate and, in any event, Rule 151.1(e) does not preclude an amicus curiae from seeking leave of the Court to file an amicus brief out of time.
The Court received a comment suggesting that Rule 151.1 should be amended to provide that an amicus curiae need not file a motion for leave to file a brief if all the parties to the case consent to the filing of the amicus brief. The Court modeled Rule 151.1 partly on procedures set forth in Rule 29 of the Federal Rules of Appellate Procedure. Until the Court has gained practical experience under new Rule 151.1, and absent a compelling argument for doing so, the Court is not inclined to alter the requirement that an amicus curiae file a motion for leave to file a brief.
Another commenter suggested that Rule 151.1(g) should be amended to require a party filing an objection to a motion for leave to file an amicus brief to specify why the party believes the administration of tax laws would be hindered by allowing the filing of an amicus brief. The Court is satisfied that the requirement that an objection must “concisely state the reasons for such opposition” will suffice to fully inform the Court, the opposing party, and the amicus curiae of the nature of the objection.
Another commenter suggested that Rule 151.1 should be amended to establish a rebuttable presumption that amicus briefs filed on behalf of pro se petitioners are justified. Although such a rebuttable presumption offers some facial appeal, the Court believes it is best to gain practical experience with amicus curiae filings under the new procedures set forth in Rule 151.1 before considering alternatives to those procedures.
The Court otherwise adopted new Rule 151.1 as published with additional stylistic amendments to paragraphs (c)(1) and (e).
As mentioned above, the Court, for the third time in the last 12 months, recently issued an order soliciting amicus briefs. In addition to the order entered in the Sanders case by Judge Buch, Judge Jones issued an order on March 16, 2023, in the case of Tooke v. Commissioner, Dk. No. 398-21L. Mr. Tooke is represented by Joe DiRuzzo III who challenges the appointment of Appeals Officers. I know that the American College of Tax Counsel’s Amicus Committee is considering an amicus here in response to Judge Jones’ request and perhaps others as well. While this case involves a well represented rather than a pro se litigant, it shows the flexibility of the rule to allow or promote the Tax Court judges to seek a broad range of legal briefs on cases raising certain types of issues. The third case in the past year in which Judge Buch issued an order calling for amicus briefs is the case of Frutiger v. Commissioner, Dk. No. 31153-21. The Frutiger case raises the issue of whether the time for filing a petition in the Tax Court in an innocent spouse case is a jurisdictional time period. Similar to its review of deficiency jurisdiction in the Hallmark case after Boechler, the Court seeks to review its jurisdiction in IRC 6015 cases after the Boechler decision. The Tax Clinic at the Legal Services Center of Harvard Law School filed an amicus brief on behalf of the Center for Taxpayer Rights in this case in response to the Court’s invitation.