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Tax Court Trial Procedures: Guidelines from Judge Jones

Posted on Feb. 2, 2023

Last week I attended my first Washington, D.C. calendar call, over which Judge Jones presided. This post describes the trial procedures announced at calendar call. While the procedures may be especially helpful in cases conducted by legally unsophisticated pro se petitioners, they offer excellent advice for attorneys appearing before any Tax Court judge.

Before getting to the trial procedures I want to mention one curious difference between the calendar call in D.C. and the calendar calls in Philadelphia which I’ve attended for the last four years.


When I arrived last Monday the trial clerk informed me that the docket was down to 7 cases, all with self-represented petitioners. I did not expect much “action” knowing that attorneys and students from American University (photo at left), UDC, Catholic University, and Legal Services of Northern Virginia were planning to attend and offer assistance. Frankly it seemed like overkill to bring everyone to court.

I was astonished when 6 of the 7 petitioners stood up at calendar call. Soon every clinic was busy advising a petitioner. According to the other clinic directors this is usual in D.C.

Unfortunately it is not the norm in Philadelphia. We have very low attendance, sometimes with zero petitioners attending. If we are lucky, one person out of ten will show up. I do not know why attendance from self-represented taxpayers would be so much higher in D.C. than in Philadelphia. It would be an interesting study if anyone would like to conduct it.

General Trial Procedures and Courtroom Rules

Judge Jones has helpfully compiled Instructions to the Parties Regarding Trials and Courtroom Rules Governing Conduct During Proceedings of the U.S. Tax Court, which are available as a single stapled packet during calendar call.

Anyone who has taken a trial advocacy course should be familiar with the guidelines (e.g., address all remarks to the Judge; keep your face neutral during witness testimony). The packet helpfully sets out the guidelines logically and succinctly. The Trial Instructions cover

  1. Opening Statements and Examining Witnesses
  2. Objections To Questions
  3. General Decorum
  4. Promptness of Counsel And Witnesses
  5. Exhibits
  6. Advance Notice of Difficult Questions
  7. Briefing Schedule
  8. Other Rules

The general Courtroom Rules document attached to the trial instructions also applies to conduct during calendar call. It addresses these topics:

  1. Courtroom Decorum
  2. Security
  3. Broadcasting and Photographs
  4. Sanctions
  5. Additional Orders  

Keep in mind that Judges may have different preferences in a few areas covered by the packet, and it is always wise to know your judge. If you don’t know your judge, Judge Jones’s instructions will guide you to make safe choices, but don’t be surprised if your judge expresses different preferences. For example, Judge Jones’s procedures direct the parties to keep opening statements under ten minutes. In contrast the late Judge Ruwe preferred that the parties waive opening and closing arguments, but he would permit them if a party insisted. As another example, it is always best to ask the Court’s permission to approach a witness as required by Judge Jones’s instructions. But, some judges will advise that you do not need to keep asking each time during an examination.

Framework for Trying Business Expense Disputes

Sole proprietorship trade or business expenses were the number one issue petitioned to the Tax Court by business taxpayers in FY 2022, according to the National Taxpayer Advocate’s 2022 Annual Report to Congress. It wasn’t even close:

Figure: image-14.png

Many of these cases will be settled by Calendar Call, but the Court still must regularly handle disputes over business expenses. For low-income taxpayers these usually involve Schedule C expense substantiation. When we consult with taxpayers in this situation two challenges often arise – lack of preparation and organization makes it challenging to prove expenses on a granular level; and lack of understanding about the legal context. Self-represented petitioners often do not understand when Respondent is making a legal argument about their expenses (e.g. clothes suitable for everyday wear are not deductible) versus when Respondent is making a substantiation argument (e.g. the receipt does not show what was purchased). And when the underlying documents are not organized for trial, it can be a frustrating exercise for everyone. Even when receipts were kept organized, they are often voluminous, and unfortunately cheap register tape fades over time.

Given the regularity with which these problems occur, Judge Jones wisely imposes order on the process and requires detailed preparation on both sides. Before trial begins, Judge Jones requires each party to complete a worksheet provided by the court.

The worksheet includes this example of a correctly completed form:

Petitioner is the owner of a sports bar and restaurant and claims a $5,000 advertising expense deduction on his Schedule C, Profit or Loss From Business, attached to his 2009 Federal income tax return. Petitioner’s advertising expense consists of: (1) A $3,000 advertisement placed in a national newspaper; (2) a $ 1,000 advertisement placed in a local newspaper; and (3) a $1,000 advertisement on a billboard. Respondent concedes that $ 1,000 of the $5,000 advertising expense is deductible, but disallows the remaining $4,000 for lack of substantiation.

Figure: image-15.png

Judge Jones also explained that she tries substantiation cases year by year, and item by item within each year. For example, a two-issue case covering two tax years might proceed like this: evidence on 2018 car and truck expenses, then 2018 office expenses, then 2019 car and truck expenses, then 2019 office expenses.


The substantiation worksheet and the trial guidelines are useful preparation documents for attorneys. But more importantly, both of these documents should help a self-represented petitioner present their best possible case to the Court, so that the case can be decided on its merits and the petitioner can truly be heard.

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