Not immediately. A few things will occur before the trial.
You should meet or talk with the IRS representative to see whether you can agree to (stipulate) facts and documents that will be offered to convince the Judge that you are correct. You should enter into a stipulation of facts (a formal written document in which you and the IRS representative agree to facts and documents).
The stipulation of facts is usually a typewritten document that results from conversations between you and the IRS attorney. For example, some of the things you should be able to agree to are:
Because a taxpayer’s tax liability usually turns on the taxpayer’s own activities, transactions, and expenditures, the evidence in many Tax Court trials consists simply of the petitioner’s own testimony and documents. Where the documents of a third party are needed, they are most often obtained by informal requests; and where a third party’s testimony is needed, it is usually obtained simply by asking the person to appear as a witness. However, if a third party refuses to cooperate, then a subpoena may be used to compel the person to appear at the trial.
A subpoena is an order issued by the Tax Court (1) directing a person to appear and testify at a scheduled Tax Court Trial Session or (2) directing a person to appear at a deposition prearranged at a specific time and location. The subpoena may include directions for the person (witness) to produce specific books, papers, documents, electronically stored information, or tangible things. See Rules 147, 74 and 81.
If you can’t get documents you need for Court and/or you need a witness to testify at a deposition or at trial, you can consider serving a subpoena. Most often, the parties agree to documents in the stipulation process and you don’t need a subpoena. (See the discussion above about stipulation of facts). Sometimes, however, documents are not readily available or a witness is uncooperative, and a subpoena may be needed to get a witness to testify or to produce a document to assist you in proving your case.
You may obtain a subpoena form (Tax Court Form 14) under the “Forms” tab on the Court’s internet Web site. You may also obtain a copy of a subpoena form from a trial clerk at a trial session.
After the top portion of the subpoena form is completed, a copy of the subpoena must be served on the witness, in person, by a United States marshal, a deputy marshal, or by any other person who is not a party to the case and who is not less than 18 years of age. The person who actually serves the subpoena must complete the “Return of Service” section at the bottom of the subpoena form. See Rule 147(c). You will submit the signed original to the Court only if it is necessary to ask the Court to enforce the subpoena.
Yes. If you as a petitioner are serving a subpoena on a witness, you must pay fees to the witness in advance equal to one day’s attendance and mileage. See Rule 147(c). These fees must be paid to the witness when the subpoena is served. A witness is entitled to the same fees for attendance and transportation as witnesses in the United States District Courts. See Rule 148. For more detail as to the amount of the fees and travel allowances go to the definition of Subpoena in the Glossary.
No. A subpoena directs a witness to appear at a Tax Court trial session or at a prearranged deposition, and may or may not include a request for books, papers, or documents. You should first attempt to obtain the documents that you need through informal means (e.g., by telephone call or letter). If you believe that you cannot obtain the documents without a subpoena, you will be obliged to pay the fees described above.
As a general matter you should comply with a subpoena. If you are served with a subpoena, and you believe it was issued in error, is unreasonable or oppressive, or was not properly served, you may file a Motion To Quash the subpoena with the Court. If you fail to appear as directed by a subpoena, you may be found to be in contempt of Court. See Rule 147(e).
The Tax Court will issue either a notice for S cases or a notice for regular cases setting your case for trial generally about five months before the trial date. The notice setting the case for trial provides information such as where and when to appear for your trial session. The Tax Court will attempt to schedule the trial at the city requested in your request for place of trial, but if no courtroom is available, the Tax Court may schedule it at a city reasonably nearby. The Tax Court will issue a Standing Pretrial Order in a regular case or a Standing Pretrial Notice in an S case, which will inform you what you need to do to prepare for trial. To view a sample of the notice, the Standing Pretrial Order, the Standing Pretrial Notice or the pretrial memorandum form, click the hyperlinked text above.
Yes. The Tax Court will issue a Standing Pretrial Order in a regular case or a Standing Pretrial Notice in an S case. Read this order or notice from the Tax Court carefully and keep a copy. The Standing Pretrial Order or Notice has very specific instructions about getting ready for trial. One of the provisions of the Standing Pretrial Order (sent to petitioners in regular cases) is that you must file a pretrial memorandum. The Standing Pretrial Notice (sent to petitioners in S cases) states that you should submit a pretrial memorandum. The Court encourages all parties to submit a pretrial memorandum. You should look at the Standing Pretrial Order or Notice and the form attached, which shows what a pretrial memorandum looks like. The pretrial memorandum can be very helpful in organizing and preparing your case. The pretrial memorandum may also help the Judge to understand your position. The Standing Pretrial Notice also tells you what you need to do to settle your case and how to stipulate facts if you do not settle.
Depending upon the city in which your trial will take place, the Tax Court may send you a letter from a tax clinic inviting you to talk with one of the clinic’s attorneys or law students. If you qualify on the basis of certain income standards, the clinic may agree to represent you in your trial. Generally there is no fee for this representation. Many petitioners who are represented by a clinic representative are able to settle their cases with the IRS. The tax clinics are not part of the IRS or the Tax Court; they are totally independent and prepared to help you to fairly resolve your tax dispute with the IRS.
A pretrial memorandum form is attached as part of the Standing Pretrial Order or Standing Pretrial Notice. You must file a pretrial memorandum in a regular case. You should submit a pretrial memorandum in an S case. The Court encourages all parties to file a pretrial memorandum. Preparing the pretrial memorandum may help you in organizing your case and help the Judge to understand your position. Carefully read the instructions in the Standing Pretrial Order or Notice. Follow the form and instructions. Send your pretrial memorandum to the Court, and send a copy to the IRS attorney.
You should use the Final Status Report (FSR) to inform the Court and the IRS of a settlement of a case not previously reported to the Court or to provide final estimates of the likelihood and/or length of trial not previously reported to the Court in your Pretrial Memorandum. The FSR may be submitted to the Court and IRS by mail, fax, or electronic transmission no later than 3 p.m. Eastern time on the last business day before the trial session begins (calendar call). For your convenience, you may submit to the Court an electronic version of the Final Status Report. Click the Final Status Report tab on the Court’s Web site for instructions. To obtain the fax number for submitting an FSR, click the FSR tab on the Court’s Web site. This fax number shall be used only to submit an FSR. Any other document sent to the Court through this fax number will be discarded and not considered by the Court.
No. The Tax Court receives all of its mail at the address in Washington, D.C. You should always address mail to: United States Tax Court, 400 Second Street NW, Washington, DC 20217-0002. Keep in mind that, if you send anything by regular mail to the Tax Court in Washington, D.C., within one week before your trial session, it may not be received in time for your trial. You may want to either use a private overnight delivery service or bring the document with you to trial.
Some of the instructions contained in the Tax Court’s Standing Pretrial Order or Notice are repeated below.
Before you come to Court:
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