PORTFOLIO

Tax Court Litigation (Portfolio 630)

Tax Management Portfolio, Tax Court Litigation, No. 630-4th, discusses the issues raised when a case is initiated and tried before the United States Tax Court. The Tax Court is the only judicial forum (other than the bankruptcy courts) that allows a taxpayer to litigate a liability for income, estate, or gift tax before payment of the amount in dispute. The matters covered by the Portfolio include the background of the Tax Court, its jurisdiction, organization, and powers; the advantages and disadvantages of selecting the Tax Court over other judicial forums for contesting a tax deficiency; the form and contents of pleadings; and the procedural and evidentiary issues relevant to pretrial, trial, and post-trial proceedings in the Tax Court. The special provisions applicable to small tax cases are also discussed.

Price: $400 Print

GET MORE WITH THE FULL PORTFOLIO LIBRARY

This Portfolio is part of the U.S. Income Portfolios Library, a comprehensive resource including 200+ federal tax Portfolios, practice tools, primary sources and timely news.

FREE TRIAL

DESCRIPTION

Tax Management Portfolio, Tax Court Litigation, No. 630-4th, discusses the issues raised when a case is initiated and tried before the United States Tax Court. The Tax Court is the only judicial forum (other than the bankruptcy courts) that allows a taxpayer to litigate a liability for income, estate, or gift tax before payment of the amount in dispute. The matters covered by the Portfolio include the background of the Tax Court, its jurisdiction, organization, and powers; the advantages and disadvantages of selecting the Tax Court over other judicial forums for contesting a tax deficiency; the form and contents of pleadings; and the procedural and evidentiary issues relevant to pretrial, trial, and post-trial proceedings in the Tax Court. The special provisions applicable to small tax cases are also discussed.


Buy Tax Court Litigation (Portfolio 630) now


AUTHORS

RICHARD A. LEVINE
Richard A. Levine, B.S., Economics, University of Pennsylvania (1964); J.D., Harvard Law School (1967); L.L.M., New York University (1968); member, New York, U.S. Tax Court, Court of Federal Claims, U.S. Supreme Court, U.S. Court of Appeals (Second Circuit), U.S. District Court, and Southern and Eastern Districts of New York Bars; editor, Harvard Law Review (1965–1967); editor-in-chief, Roberts & Holland, Annotated Tax Forms — Practice and Procedure (3d ed.); co-author, “Tax Court's Revised and Expanded Partnership Rules Leave Questions Open,” 69 Journal of Taxation 164 (Sept. 1988); member, The Association of the Bar of the City of New York, New York State and American Bar Associations (Sections on Taxation; Litigation); contributor, Journal of Taxation and other tax periodicals.

THEODORE D. PEYSER
Theodore D. Peyser (deceased), B.A., Princeton University (1950); LL.B., Yale Law School (1955); member, District of Columbia, U.S. Tax Court, Court of Federal Claims, Federal Circuit, and U.S. Supreme Court Bars; member, Tax Section, ABA; Tax Division, U.S. Department of Justice, trial attorney (1955–1973), chief, Claims Court Section (1974–1984), Special Litigation Counsel (1985–1987); author, 631-3rd T.M., Refund Litigation; 627-3rd T.M., Limitations Periods, Interest on Underpayments and Overpayments, and Mitigation; 628-2nd T.M., Transferee Liability; contributor, Tax Management Tax Practice Series.

DAVID A WEINTRAUB
David A Weintraub, B.S., Accounting, cum laude, State University of New York at Buffalo (1976); M.B.A., State University of New York at Buffalo (1977); J.D., magna cum laude, Albany Law School of Union University (1993); L.L.M. (in Taxation) New York University (1994); member, New York, District of Columbia, and U.S. Tax Court bars; editor, Albany Law Review (1991–1992); Certified public accountant, Texas (1981), and New York (1985); co-author, “Tax and Reporting Rules for Escrows and Trusts Used in Deferred Like-Kind Exchanges,” 90 Journal of Taxation 332 (June 1999); co-author, “Two-Member LLC Can Be Disregarded in 1031 Exchange Where One Member Has No Economic Interest,” 90 Journal of Taxation 138 (Mar. 1999); member, American Bar Association, District of Columbia Bar, and New York State Bar Association.

TABLE OF CONTENTS

Detailed Analysis

I. The Tax Court: An Article I Court

A. Creation and Purpose

B. Jurisdiction

1. Deficiency Jurisdiction

2. Additions and Penalties

3. Transferee Liability

4. Partnerships

5. Declaratory Judgments

6. Disclosure Actions

7. Tax Court Review of Denial of Costs

8. Reasonable Litigation Costs

9. IRS Refusal to Abate Interest

10. Relief from Joint and Several Liability

11. Tax Court Review of a Determination in a Collection Due Process Hearing

12. Employment Status and the Amount of Employment Tax

13. Statutory Interest Payable After a Final Decision

14. Reopening of a Federal Estate Tax Case to Allow a Deduction for Interest

15. Equitable Recoupment

16. Whistleblower Award Actions

C. Judges

D. Powers to Prescribe and Enforce Rules

II. Considerations in Selecting the Tax Court over other Forums

Introductory Material

A. Payment of Tax Deficiency Not Required

B. Risk of Increased Tax Deficiency

C. Representation of the Government

D. Precedent

E. The Tax Court's Preference for Intentionalism over Textualism

F. Discovery

G. Places of Trial

H. Backlog

I. Trial by Judge, Not Jury

J. Bench Opinions

K. Small Tax Case Procedure

III. Notices Which Are Predicates to Jurisdiction

A. Notice of Deficiency or Liability

1. Adequacy of Notice

2. Last Known Address-Place to Which Notice Is Addressed

a. In General

b. Physical Receipt Deemed Actual Notice

c. Taxpayers Fail to Receive Notice

d. Clear and Concise Notice of Change of Address

3. Proof of Mailing Valid Notice of Deficiency

B. Final Partnership Administrative Adjustments

C. Administrative Adjustment Request on Behalf of Partnership

D. Adjustments for Electing Large Partnerships

E. Notice of Determination in Actions for Declaratory Judgment-§ § 6234, 7428, 7476, 7477, 7478, and 7479

F. Disclosure Actions

1. Action to Restrain Disclosure-§ 6110(f)(3)

2. Action to Obtain Additional Disclosure-§ 6110(f)(4)

3. Action to Obtain Disclosure in the Case of Third-Party Contacts-§ 6110(d)

4. Action Under § 6110(h)(4)

G. Decision Denying Administrative Costs

H. Abatement of Interest

I. Relief from Joint and Several Liability on a Joint Return

J. Review of Innocent Spouse Defense After a TEFRA Proceeding

K. Review of Determination of Employment Status

L. Review of Notices of Liens and Levies

M. Whistleblower Award Determinations

IV. Privacy Protection

A. Statement of Taxpayer Identification Number

B. Redacted Filings

C. Proceeding Anonymously

D. Access to Electronic Files

V. Initiating Suit

A. Petitions in a Deficiency or Transferee Liability Action

1. Time for Filing Petition

2. Person to File Petition

3. Content of Petition

4. Filing Requirements

B. Petitions Filed by Partnerships in Response to FPAAs

C. Petitions for Failure to Allow Administrative Adjustment Request

D. Petitions Filed by Electing Large Partnerships

E. Petitions in Declaratory Judgment Actions

F. Petitions in Disclosure Actions

G. Petitions in Actions for Administrative Costs

H. Petitions for Review of Denial of Request for Abatement of Interest

I. Petitions for Relief from Joint and Several Liability on a Joint Return

J. Petitions for Lien or Levy Action

K. Petitions for Determination of Employment Status

L. Petitions for Whistleblower Award Actions

M. Designation of Place of Trial

N. Notification of Receipt of Petition

O. Notice of Election to Intervene or Participate

P. Answer

Q. Reply

R. Amended Pleadings

S. Representation of Taxpayers

T. Filing and Service of Papers

U. Electronic Case Filing

VI. Pretrial Practice

A. Motion for Summary Judgment

B. Discovery

1. Scope

2. Time

3. Informal Discovery

4. Interrogatories

5. Production of Documents and Things

6. Requests for Admissions

7. Depositions

8. Administrative Summonses

9. Motions to Compel

10. Motions for Protective Orders

C. Expert Witness Reports

D. Assignment of Judges

1. The Calendaring Process

2. Early Assignment

E. Standing Pretrial Order

F. Pretrial Conferences

G. Place of Hearing of Pretrial Motions

H. Motions in Limine

I. Stipulations

J. Settlement

1. Regular Cases

2. Partnership Cases

3. Basis of Settlement

4. Piggyback Stipulations

5. Stipulations of Settled Issues

6. Rescission of Settlement Agreement

K. Binding Arbitration

L. Submission of Case on Written Record

M. Consolidation

N. Motions for Continuance

O. Motions to Restrain Premature Assessment

P. Motions for Review of Jeopardy Assessment or Jeopardy Levy

Q. Motions for Review of Proposed Sale of Seized Property

R. Dismissal

VII. Trials

A. Trial Memorandum

B. Final Status Report

C. Call of the Calendar

1. General

2. Establishing the Time of Trial

D. Burden of Proof

E. Order of Trial

F. Evidence

1. Federal Rules of Evidence

2. Witnesses

3. Depositions

4. Documents

5. Experts

G. Ordering the Transcript

H. Scheduling Post-Trial Briefs

VIII. Post-Trial Proceedings

A. Motion to Correct Transcript

B. Briefs

C. Opinions

D. Motion for Reconsideration of Findings of Fact or Opinion

E. Decisions

1. Tax Court Rule 155 Procedures

2. Partnership Actions

3. Motion to Vacate Decision

4. Decision Set Aside Due to Fraud

5. Motion for Redetermination of Interest

F. Appeals

1. Appeal from Interlocutory Order

2. Appeal from Decision

a. Limitations Period

b. Bond

c. Venue

d. Standard of Review

3. Tax Court Rules

4. Federal Rules of Appellate Procedure

5. Local Appellate Court Rules

G. Proceeding to Enforce Overpayment Determination

H. Proceeding to Redetermine Interest on Deficiency

I. Proceeding to Modify Decision in Estate Tax Cases Involving § 6166 Elections

J. IRS Acquiescence

K. Circumstances in Which a Second Deficiency Notice May Be Issued

IX. Small Tax Cases

A. Small Tax Case Defined

B. Pleadings

C. Trials and Opinions

X. Awards of Attorney's Fees and Other Costs

Introductory Material

A. Exhaustion of Administrative Remedies

B. Prevailing Party

1. The IRS Position

2. Substantially Prevailed

3. Timely Application or Motion

4. Limits on Net Worth

C. Protraction of Proceedings

D. Recoverable Costs

1. Rates

2. Allowable Expenses

3. Litigation Costs

E. Administrative Fees and Costs

F. Requirements of a Motion for Litigation or Administrative Costs

G. Disposition of Claims for Litigation and Administrative Costs

H. Appeals from IRS Decisions Regarding Administrative Costs

I. Sanctions


WORKING PAPERS

Working Papers

Table of Worksheets

Worksheet 1 Sample Petition in Deficiency Action

Worksheet 2 Sample Statement of Taxpayer Identification Number

Worksheet 3 Sample Request for Place of Trial

Worksheet 4 Sample Form 2 Petition

Worksheet 5 Sample Entry of Appearance

Worksheet 6 Sample Answer

Worksheet 7 Sample Notice Setting Case for Trial

Worksheet 8 Sample Standing Pre-Trial Order

Worksheet 9 Sample Motion for Protective Order

Worksheet 10 Sample Stipulated Decision in Tax Court

Worksheet 11 Sample Motion for Reconsideration

Worksheet 12 Sample Petition by Tax Matters Partner in Partnership Action Under § 6226(c)(2) for Re-Adjustment of Partnership Items

Worksheet 13 Sample Notice of Election to Participate in Partnership Action in Tax Court Pursuant to § 6226(c)(2)

Bibliography

OFFICIAL

Internal Revenue Code of 1986:

Treasury Regulations:

COMMITTEE REPORTS:

Public Laws:

Revenue Procedures and Rulings:

Cases:

UNOFFICIAL

Periodicals:

1991

1992

1994

1995

1996

1997

1998

2001

2002

2007

2008