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Tax Court Posts New Citation and Style Manual

A substantial amount of our practice over the years has involved representing clients before the US Tax Court. And, we both started our tax careers clerking at the Tax Court and working on dozens of orders and opinions. Needless to say, we are familiar with the ins and outs of the Tax Court.

When it comes to the system of citation and style used by the Tax Court in its orders and opinions, it generally endorses use of the Bluebook. Our historic practice in filing documents with the Tax Court involved following the citation and style used in its orders and opinions, even where that citation and style varies from the Bluebook. Based on our clerkships and familiarity with many of the judges, we have always believed that clerks and judges prefer to read filings that use the same citation and style that is used in orders and opinions.

The Tax Court recently issued a new Citation and Style Manual (Manual) for the purpose of providing consistency within the Tax Court and with other federal courts. The policies and procedures in the Manual are intended to serve as guidance for documents issued by the Tax Court to the public, although each authoring judge retains discretion on citation and style. A couple of notable changes include the use of italics rather than underscoring for signals, citations and emphasis, as well as changes in the way Internal Revenue Code provisions and US Department of the Treasury Regulations are cited.

Practice Point: It may seem trivial to some but following the Manual is important for taxpayers and their representatives when filing documents in the Tax Court. Accordingly, we recommend reviewing the Manual and conforming your filings to the citation and style set forth therein. Making your points in filings in a clear, direct manner using the style recognized and accepted by the Tax Court will assist you in being successful in your Tax Court litigation.




Types of Tax Court Opinions and Their Precedential Effect (Updated)

At the end of 2016 we posted “Types of Tax Court Opinions and Their Precedential Effect” and added that document to the Resources tab on the blog. We recently updated this resource and, below, we’ve also provided the updated text.

Most tax cases are decided by the US Tax Court, which issues two categories of opinions: formally published dispositions and unpublished dispositions. The first category consists of opinions that are published in the Tax Court Reports and are technically called “division opinions” but are more commonly referred to as “T.C. opinions.” The second category consists of three sets of unpublished dispositions:

  1. memorandum opinions (commonly referred to as “memo opinions” or “T.C. memos”)
  2. summary opinions
  3. orders.

A common question asked by taxpayers relates to the difference between these forms of dispositions in terms of precedential effect.

T.C. opinions are binding in the Tax Court, precedential and published by the Tax Court. They generally address issues of first impression, issues that impact a large number of taxpayers or matters related to the validity or invalidity of regulations. To the extent there is a T.C. opinion on point, taxpayers should cite to it as primary authority in a Tax Court proceeding.

Memo opinions are not officially published but are reproduced by commercial publishers. They generally address cases that do not involve novel legal issues and the law is settled, or the result is factually driven. Although these opinions are technically not precedential, they are often cited by litigants, and the Tax Court does not disregard these opinions lightly. It is rare to find a non-T.C. opinion that rejects the reasoning of a memo opinion. Indeed, the trend in recent years seems to be that the weight afforded to T.C. opinions and memo opinions is not substantially different. This reflects the fact that there are significantly more memo opinions than T.C. opinions each year (approximately 90% of all Tax Court opinions are memo opinions), providing taxpayers with more authority upon which to provide support for their position.

Summary opinions are also not published by the Tax Court but are reproduced by commercial publishers. They are issued in cases where the amount in dispute is less than $50,000 and the taxpayer elects to have their case tried under the small tax case procedures. Most summary opinions involve run-of-the-mill facts, but some provide insightful discussions of the law that may support a taxpayer’s case. By statute, summary opinions are not precedential, however, the Tax Court does not prohibit the citation of this type of opinion and has noted that it may give consideration to the reasoning and conclusions in a summary opinion to the extent they are persuasive. Thus, in the absence of a T.C. opinion or memo opinion supporting a taxpayer’s position or addressing the issue presented, taxpayers may want to consider citing to a favorable summary opinion.

Finally, the Tax Court issues dozens of orders, some of which involve the discussion of substantive issues that may [...]

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Tax Court Orders Are Searchable (Again)

In late 2020, the US Tax Court transitioned to a new case management system, DAWSON (Docket Access Within a Secure Online Network), which was named after the late Judge Howard A. Dawson, Jr.. We previously discussed DAWSON here and here.

Over the past year, the Tax Court has made improvements to DAWSON in order to provide better access to taxpayers and their representatives. One of the helpful features of the old case management system was the ability to search Orders, however, that feature was not present in DAWSON—until now.

On December 14, 2021, the Tax Court announced that the Order search feature is once again available to the public. In addition to searching for Orders by case name or docket number, the public can also search by keyword or phrase, by judge or by date range. The Tax Court’s DAWSON Release Notes page provides the following additional information:

  • Implemented Order search for public users
    • Includes keyword and phrase search
    • Includes ability to find exact matches with “” (quotation marks) ex: “innocent spouse”
    • Includes ability to combine two or more keywords or phrases with the + (plus sign) ex: “collection due process” + remand
    • Includes ability to find documents with one or more keywords or phrases with the | (pipe character) ex: Lien | levy [Note: this search will return documents that contain the words “lien” or “levy”]
    • Includes ability to filter by date, judge, case title, petitioner name, or docket number
  • Petitions and other documents with form fields now upload correctly for all browsers.

Similar guidance concerning searching for documents is also available on the Tax Court’s website. The Tax Court also updated its Public Guide, Self-Represented (Pro Se) Petitioner Guide and Practitioner Guide for DAWSON. The Public Guide indicates that the ability to search court opinions in DAWSON is coming soon. Additionally, cases that migrated from the prior case management system appear as sealed in DAWSON if there were any sealed documents in the case. It remains to be seen whether unsealed Orders in such cases will be searchable in the future.

The Tax Court’s announcement does not indicate how far back the public can go to search for Orders. Using the Order search function and restricting the date range, the earliest Order we were able to find dates back to May 22, 1980. Based on entering different date ranges, it appears that certain Orders are available back to this date but not all Orders dating back to May 22, 1980, are available. This is not surprising given that Tax Court records are sent offsite to storage after a set period of time. Regardless, the ability to search for Orders back to 1980, at least for those Orders that are available on the website, is an improvement over the prior Order search feature, which [...]

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Are Changes Looming over the Tax Court’s Procedure Rules?

Tax controversy practitioners are undoubtedly aware of the gradual movement over the years to conform certain Tax Court procedure rules (Tax Court Rules) to those of the Federal Rules of Civil Procedure. In many ways, this makes sense to ensure uniformity of tax cases regardless of whether a taxpayer litigates his tax dispute in a refund forum in the US District Court or the US Court of Federal Claims, or prior to payment of tax in the Tax Court. Below we note a few important areas of divergence between the different rules, and point out situations where the Tax Court Rules do not address a particular matter. These matters were discussed at the recent Tax Court Judicial Conference held in Chicago last week.

Amicus Briefs

As we have discussed before, amicus briefs are not uncommon in other courts. However, the Tax Court does not have specific rules on the topic and, instead, permits each judge to decide a case-by-case basis whether to permit the filing of an amicus brief. Although the Tax Court has discussed standards for filing amicus briefs in unpublished orders, given the nationwide importance of many issues that arise in Tax Court litigation, it may be time for the court to issue specific rules addressing the issue. (more…)




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