Discovery in tax litigation can take many different forms, including informal discovery requests (in the US Tax Court), request for admissions, interrogatories and depositions. In addition to obtaining facts, litigants frequently want to know the legal authorities on which the other side intends to rely. Over the years, we have seen numerous requests, both during examinations and in litigation, where the Internal Revenue Service (IRS) requests a listing of the legal authorities supporting a taxpayer’s position.

Sometimes it is beneficial for a taxpayer to disclose those authorities. For example, in some IRS audits it may be worthwhile to point out to the IRS agent the applicable authority and cases that directly support the taxpayer’s position. However, once a case progresses to litigation, it is clear that the parties disagree and that simply pointing out relevant authorities will not help the IRS to concede the case. This raises the question of how to respond to such a request while in litigation.

The Tax Court recently addressed this issue in a pending case involving issues under Internal Revenue Code Section 482 (see here). The IRS issued interrogatories that requested information seeking to obtain the taxpayer’s legal arguments. The taxpayer objected on the grounds that this was inappropriate. The Tax Court, in an unpublished order, agreed:

Tax Court Rule 70(b) does not require a party to disclose the legal authorities on which he relies for his positions.  See Zaentz v. Commissioner, 73 T.C. 469, 477 (1970). Other courts have held that interrogatories requiring a party to disclose legal analyses and conclusions of law are impermissible. See, e.g., Perez v. KDE Equine, LLC, 2017 WL 56616 at *6 (W.D. Kentucky Jan. 4, 2017); In re Rail Freight Fuel Surcharge Antitrust Litigation, 281 F.R.D. 1, 11 (D.D.C. Nov. 17, 2011).

Practice Point:  Although this unpublished order technically reflects only the view of the issuing Judge, it is an important point that litigants should remember. There are numerous ways to determine an adversary’s legal position. Generally, however, discovery requests directly asking for an opponent’s supporting legal authorities are not an appropriate technique. Techniques to make that determination include: issuing requests for admissions relating to the elements of potential legal theories, filing a dispositive motion like summary judgment which will invoke a response from the other side, and discussing with your opponent whether the case should be submitted (in Tax Court) fully stipulated. And sometimes the most efficient way to get the information is to pick up the phone and just ask. Typically, litigants are wary of putting their legal theories down in writing and pinning themselves down early in a case. But most lawyers love to hear themselves talk!

Chambers USA, which releases an annual listing of rankings of law firms and attorneys in various practice areas, has released its 2017 edition. We are honored that Chambers USA has recognized McDermott’s tax practice and several of its attorneys in the latest rankings. A summary of McDermott’s tax rankings is listed below along with a complete list available here to all McDermott rankings.

In the nationwide rankings for Tax Controversy, we maintained our Band 2 ranking. In the state rankings for Tax, we are ranked in Band 1 for Illinois, Band 2 for Washington, DC and Band 3 for Texas.

On the tax controversy side, our team was recognized as known for a “Dominant presence in high-value tax disputes across the USA, fielding particular expertise in transfer pricing litigation and SALT work.” Clients gave us “10 out of 10 for client service,” and added: “They are great at investing in and building a long-term relationship.”  Particularly noted is the value for money we provide.  Clients agreed that they get good value from us: “It’s outstanding client service and worth every penny. Billing has been very detailed and understandable.

Several of our tax controversy attorneys were recognized by Chambers USA on the nationwide and state levels:

Chair of the firm’s tax controversy practice Todd Welty maintains an excellent reputation in the market for his tax controversy and litigation expertise. One impressed source comments: “His knowledge and trial expertise was phenomenal.” His impressive list of clients includes multinationals and Fortune 100 companies.

I have the utmost respect for Roger Jones’s litigation and controversy skills,” states one interviewee. His expert litigation practice sees him frequently act for major corporations at all levels of the federal court system.

Jean Pawlow regularly advises financial institutions on complex tax controversy matters. Observers indicate: “Her practice is very deep and diverse, and her clients benefit from that.

Andrew Roberson comes recommended as an “excellent tax controversy lawyer who has great instincts, is extremely personable and offers really good client skills.” His strong litigation practice is complemented by additional experience in resolving tax disputes in ADR proceedings.

Thomas Borders is a “great and experienced trial lawyer,” according to interviewees. He draws on his experience as a former IRS attorney to act on the full range of federal tax controversy matters, including defending against criminal investigations.

Taxpayers can choose whether to litigate tax disputes with the Internal Revenue Service (IRS) in the US Tax Court (Tax Court), federal district court or the Court of Federal Claims. Claims brought in federal district court and the Court of Federal Claims are tax refund litigation: the taxpayer must first pay the tax, file a claim for refund, and file a complaint against the United States if the claim is not allowed. Claims brought in the Tax Court are deficiency cases: the taxpayer can file a petition against the IRS Commissioner after receiving a notice of deficiency and does not need to pay the tax beforehand.

As demonstrated in the chart below, approximately 97 percent of tax claims are instituted in the Tax Court. It should be noted that, after a taxpayer files a petition in Tax Court, the taxpayer no longer has the option of bringing the claim in any other court for the year(s) at issue.

Tax Court Versus Tax Refund Litigation

Source: https://www.irs.gov/uac/soi-tax-stats-chief-counsel-workload-tax-litigation-cases-by-type-of-case-irs-data-book-table-27

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