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The Tax Court Petition
You can download the rules from the Tax Court website3 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. If your issues are not complex, the forms will serve you well.
The petition consists of five sections: Caption, Title & Statement, State Your Case, State the Facts, What You Want
1. The Caption
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:
THE UNITED STATES TAX COURT
COMMISSIONER OF INTERNAL REVENUE,
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.
2. Title & Statement
The next section formal court documents 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, which 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.
You will find the standard Petition Form here.
You can see a simplified form here.
3. State Your Case
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.
4. State the Facts
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 discovery5 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 a legal argument, or to mention the law at all. Just state the errors and the facts. You argue the law after the trial.
5. What You Want
In the last part of the petition you tell the court what you would like it to do to grant you relief from the IRS’ errors. It can be as simple as this:
“For the reasons stated, I request the Court to dismiss the Notice of Deficiency in this case and grant whatever further relief the Court deems just.”
Or it can be more elaborate if your case warrants it. Keep your statements and your request for relief as simple and clear as you can.
As a side note
The final statement in a petition or motion often begins with the word WHEREFORE, which is a fancy way of saying, “for these reasons.” I believe people representing themselves in court do well to avoid indulging in arcane legal terms such as WHEREFORE, HERETOFOR, HEREWITH, THEREIN, AFORESAID, and their many companions. We are, after all, not trained in the law. Why would we try to act as though we were?
In writing legal prose you will do more harm than good trying to coax a few more knots out of the schooner of justice by running before the mighty wind of legal flapdoodle. You will not receive extra credit from the court for saying, “I am herewith returning the stipulation to dismiss in the above entitled matter; the same having been duly executed by me,” instead of, “I signed and attached the dismissal agreement.” On the contrary, no one will be impressed by your scholarship and erudition, and it gets in the way of clear, logical thinking. Stick with simple English. Subject, verb, object is a good formula. Short sentences are better than long. Small words are better than big ones.
Use adjectives sparingly, if at all. Adjectives in petitions and statements used in admission requests only serve to make the reply indefinite. If your opponent denies a statement like “I filed a valid tax return,” you can’t be sure if he is denying your return’s validity or the fact that you filed. Better to use two statements, “I filed a return,” and “The return was valid.”
There are a few other details to attend to in filing your petition. You must attach a copy of the notice you are disputing to the petition with your social security number and any bank or sensitive account numbers crossed out, or “redacted” as the rules put it. You send the court your social security number on a separate form that you will find in the appendix section of the Rules. That form doesn’t become part of the public record. You also file a form to request where you would like the trial to take place. See the Appendix for Request for Place of Trial and Statement of Social Security Number.
You must file your petition on paper even if you sign up for e-filing. The complete package is: signed petition, redacted Notice of Determination or deficiency, statement of social security number, request for place of trial, and a check for the $60 filing fee made out to the Clerk of Court. You must send the original signed documents and two copies. Send the package certified mail or with a private courier. Your filing date is the day you send it. Don’t miss your deadline.
You will find a Petition Checklist in the Appendix of the book as well as a sample Tax Court Petition form. You will also find a sample petition for a deficiency case, Petition for Redetermination of Deficiency, and one for a levy case, Petition for Levy Action.
I do not offer these to be copied. I’ve included them solely for use as guides in crafting a petition that addresses your own case. Your petition must state simply and clearly the errors and facts in your case. By the time you read this book, many of the issues in the sample documents may have been declared, if not actually demonstrated, to be “frivolous.” Once again, the examples are not documents to be copied. They are simply examples of petitions in the proper format. You must assemble and plead your own case.
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.