The procedures and requirements for writing a tax court petition are in Rule 34b of the Tax Court Rules. The rules for filing a petition in a lien or levy action are found in Title XXXII of the Rules.
You can download the rules from the Tax Court website or order them in printed form from the Clerk of Court, at 400 Second St. NW, Washington, D.C. 20217. You will want to have them handy for reference.
The petition is not a complicated document. There are a couple of forms in the appendix of the Tax Court Rules that show you how to lay out the boiler plate parts of the document. The petition consists of five sections. The first is the ‘caption’ where you state who the petitioner is and who he is suing. It is the all caps header you see on all formal court documents. You can find the instructions for creating the caption in Rule 32.
It generally looks like this (without the stripes):
THE UNITED STATES TAX COURT
| PETITIONER’S NAME | ) | |
| PETITIONER, | ) | |
| v. | ) | DOCKET NO. |
| COMMISSIONER OF INTERNAL REVENUE, | ) | |
| RESPONDENT. | ) |
You will use this caption on all formal documents you submit to the court. You receive a docket number from the court when they send you a letter acknowledging your petition. You use the number on all subsequent documents you file with the court. It’s also a handy reference when writing to IRS attorneys, who have numerous cases and don’t always remember petitioners’ names.
A Tax Court petition states errors and facts only – no law.
The next section is the title and statement of what you are doing. The Tax Court forms will show you the various choices for a title, depending on the type of case you are pursuing. After the title you state, in lettered or numbered separate paragraphs, who you are, where you live, the document you received from the IRS that is at issue, the details about where and when it was mailed, what kind of tax is at issue, and how much is in dispute. You simply fill in the blanks on the form for this part of the petition.The next section of the form is where you state your case. You tell the court what errors the IRS made in making its determination or calculation of the deficiency. Errors can be anything from miscalculating the tax to exceeding lawful authority.
It’s important to limit your statements in this section to a simple description of the errors the IRS made. You state each error as a separate item. You letter them in order. This is not an opportunity to quote the law or the regulations or, heaven forbid, the Constitution. Just state errors and facts. For example, let’s say you are questioning the validity of the information returns filed against you. You would state that as an error:
A. The IRS relied on invalid information returns in determining the deficiency at issue.
Other errors might be something like these:
B. The IRS erred in declaring my tax return frivolous.
C. The IRS exceeded its lawful authority in creating a substitute for return when I had already filed a return.
D. The IRS attributed $xxx.xx of self-employment income to me when I had none.
Simple statements of error are all that is required. These statements determine the issues that are before the court. Be sure to cover everything. Refer to your notice and specify each error separately in a lettered paragraph. Don’t leave anything out, including the penalties if you think they are mistaken.
Rule 34(b)(4) says: “Any issue not raised in the assignment of errors shall be deemed to be conceded.”
Any interest on the amount that appears on a Notice of Deficiency is not properly at issue before the Tax Court. Penalties are and the respondent has the “burden of production”[4] concerning penalties. If you don’t object to the penalties, it will be presumed you agree they are correct.
The next section of the petition is where you state the facts of the case. Once again, this is not the place to make any kind of legal argument. It is a presentation of the facts that relate to the errors in the first section. These statements are also lettered and consist of simple single subject statements of fact that bear on the case. For example, that you filed a return is a fact, as are the details of how and when you filed:
E. I filed my tax return for 2007 on April 15, 2008.
F. I filed on the proper form.
G. I signed the return under penalty of perjury.
H. The return contained sufficient information on which to calculate a tax.
In this section of the petition you state all the facts that will be important to the case. Your petition is in a very real sense your first discovery[5] document. It works like a request for admissions.[6] The IRS is obliged to reply to the stated errors and facts by admitting or denying them. They must to do so truthfully. Keep in mind that the purpose of the trial is to establish the facts of the case. You can’t get started too soon in determining the facts on which you and the respondent disagree. The only purpose of the trial is to settle disputed facts.
There is a powerful tendency for people seeking justice in Tax Court to jump immediately into the law governing the case. Resist it. The petition is not the place to make…
[4] The party with the “burden of production” must produce some fact evidence that X exists, otherwise, the finder of fact (judge or jury) must determine that X does not exist. See James and Hazard, Civil Procedure p. 340 (3rd Ed. 1985)
[5] “Discovery” is the process whereby the parties are entitled to ‘discover’ everything their opponent plans to present at trial to prove his case, and every relevant fact. I discuss discovery in greater detail further on.
[6] A “Request for Admissions” is one of the tools of discovery. I discuss them in more detail in the chapter on discovery.
THE LINKS YOU SEE HERE IN BLUE ARE ACTIVE IN THE E-BOOK VERSION OF “ON YOUR OWN IN TAX COURT.” THE E-BOOK CONTAINS EXTENSIVE LINKS TO STATUTES, CASE LAW, AUTHORITIES AND OTHER USEFUL RESOURCES. YOU WILL ALSO RECEIVE AN APPENDIX OF VARIOUS TAX COURT DOCUMENTS AND PLEADINGS.
