November 30, 2020 Pro Bono Matters

V is the New Black: Virtual Settlement Days (VSD), Virtual Problem-Solving Days (VPSD), … Virtual Pro Bono (VPB)?

By Gina Ahn, Koreatown Youth and Community Center LITC, Managing Attorney, Los Angeles, CA

Pro Bono

There is something deeply satisfying about volunteering your unique skill set to help a fellow individual in need. The ABA even has a Rule of Law Initiative where volunteer attorneys are sent overseas in different advocacy projects supported by per diems: it is akin to a lawyer’s version of “doctors without borders”—or the closest the ABA can come to it. For the rest of us with law school debt, mortgage payments, and kids in college, however, the notion of taking an entire year off to volunteer is simply unrealistic. Besides, if your area of expertise is in Title 26 and the administrative procedures of the Internal Revenue Service, it probably won’t be very helpful in a foreign country that essentially practices “taxation by expropriation”—all the rules of evidence, procedure, and substantive tax laws are a beautiful theory but of little practical use there. So the question worth considering is whether there are any practical domestic pro bono options for the tax practitioner. And in this COVID-19 era, are there appropriately socially distant pro bono opportunities?

Low Income Taxpayer Clinic and Virtual Settlement Days

Absolutely! Although it is a work in progress as different clinics develop different protocols, your local low-income taxpayer clinic (LITC) would truly appreciate your involvement. Click the map here and scroll through to see the options in your state. I cannot tell you exactly how your local LITC operates its pro bono program, but I know all of them would be eager to engage in a conversation to explore options. Your volunteer “term of service” can be as brief as one afternoon offering candid advice to a pro se petitioner at a Virtual Settlement Days (VSDs) consultation via Zoomgov.com. (See Professor Probasco’s explanation here of a VSD; or a recent Tax Notes podcast with IRS Chief Counsel Michael Desmond here). VSDs are the new sweetheart of the Tax Court and IRS Counsel, and it is no wonder. They move the backlog of petitioner inventory along at a brisk rate without trampling on taxpayer rights. In Los Angeles, for example, VSDs are regularly offered on the first and third Friday and the second and fourth Tuesday of every month. It is not uncommon to hear a huge sigh of relief from the confused petitioner who is finally able to talk to someone who can explain what the IRS or judge wants, and why. When an individual taxpayer can hear an honest third-party opinion on the merits of the taxpayer’s case from someone “without a horse in the race,” it can facilitate the process of getting decision documents signed. Although taxpayers do not always take LITC volunteer attorneys’ advice to heart, most of them are truly grateful for some clarity and a second opinion. I usually calendar 2.5 hours for a VSD consultation and send either a close-out letter (explaining why I cannot take on the taxpayer’s case, if the taxpayer’s income is too high for an LITC) or sometimes a retainer to finish out the representation. This is a great opportunity for a first-year tax litigator (or a seasoned one, for that matter) to select meaningful cases for representation. If volunteers choose to continue representation beyond the initial consultation (after discussing with the local LITC), most LITCs have malpractice insurance that covers the volunteer work.

Virtual Problem-Solving Days

The Virtual Problem-Solving Day (VPSD) is a much less famous cousin to the VSD. It is offered by the Taxpayer Advocate Service (TAS) in coordination with an LITC or a local community partner. Generally speaking, official participation in VSDs requires admission to the Tax Court bar (see here and here). But for tax planning professionals not interested in litigation, VPSDs offer a tangible way to use specialized tax knowledge to make a difference to often befuddled taxpayers, many of whom speak English as a second language.

What Is TAS?

Think of TAS as the taxpayer’s friend inside “the system.” TAS staff read and understand transcripts like the Priority Practitioner Service (PPS); but unlike PPS, they have the authority to advocate and elevate extraordinarily messy cases to resolution so long as the case meets their acceptance criteria (set forth in IRM 13.1.7). TAS employees are IRS employees and the National Taxpayer Advocate (NTA) reports directly to the Commissioner. It would therefore be a conflict of interest for TAS case advocates to petition the Tax Court, but there are many problems (or even a majority of them) that can and ought to be resolved outside the context of litigation. A skilled TAS case advocate can be one of the most agile diagnosticians to help taxpayers navigate and assess their issues and suggest next steps to the taxpayer.

What Is a Problem-Solving Day (PSD)?

PSD is essentially a mobile TAS outreach event. Pre-pandemic, TAS case advocates brought their secure laptops to community partner locations (often a local LITC) to help confused taxpayers unravel the tight ball of knots their tax case seemed to be in. Individuals lined up with their IRS letters and waited their turn to get ‘on the spot’ advice. When appropriate, cases would be taken on by TAS or the local LITC to help taxpayers to a final resolution.

If you look at TAS’s website here, they have an archive of the current and past two years of PSDs held at various locations throughout the U.S. In 2019, they held 151 PSDs. In 2020, TAS held 30 PSDs with an abrupt stop on March 14, 2020. Starting August 21, 2020 TAS has slowly restarted PSD in a virtual format.

What Is a Virtual Problem Solving Day (VPSD)?

At the time of this article, according to TAS’s website, there have been four post-pandemic VPSDs at three locations: Delaware (August 21, 2020, October 28, 2020), Salt Lake City (October 9, 2020) and Los Angeles (September 9, 2020—at my LITC). TAS has scheduled two new cities—Houston and Denver to host a VPSD as well. It is rather premature to give a definitive explanation of what a VPSD is because it will surely evolve and look different at every location with different local ordinances controlling social distancing requirements and the mechanics of an event. But I can at least describe what the VPSD looked like at the Los Angeles, CA location. Los Angeles’ next-scheduled VPSD on November 18, 2020 was somewhat different from the September 9 event, in our attempt to make it better.

Learning from VSDs, we applied the model to allow the taxpayer to have a private consultation time with a tax professional, separate from the time with TAS. It was essentially a 3-step process, with an intended timing of 30 minutes for each step, as follows.

Step 1: Factual Investigation: Consultations were held between a pro bono volunteer and the taxpayer. The volunteer would read through the IRS letters and interview the taxpayer to understand the context and take notes. The volunteer would then define “the ask” with TAS and help identify relevant facts for TAS.

Step 2: TAS Research & Advice: The taxpayer and pro bono volunteer then called TAS together for further clarification and ‘on the spot’ advice of what could be done to begin resolving the issue. TAS would then determine if the taxpayer’s case met its acceptance criteria. The LITC would also determine whether the taxpayer met clinic requirements to take on as a case for the clinic. If yes, Form 2848/8821 would be faxed/emailed to TAS and a transcript would be requested to be delivered to the clinic practitioner’s e-Service’s secure mailbox.

Step 3: Case Resolution Plan: This is the step that looked slightly different at the November VPSD. We had envisioned taxpayers taking home a document with a summary of the issues and the expected next steps. Sometimes, for those who had come from a long distance, what actually happened is that those next steps were implemented during the VPSD at the clinic.

For example, our first taxpayer was eager for our assistance: despite the fact that he had to transfer bus lines twice for a two-hour long transit, he arrived 10 minutes early to his appointment. He had a simple balance due from the 2017 taxable year. We investigated and confirmed that this was a correct assessment. English was his second language, so we had a Tagalog volunteer translator available to explain how the assessment occurred. Collection alternatives were reviewed, and he elected to pay the liability in full. The elderly senior citizen taxpayer did not have internet, email, or a computer. We could tell he was eager to get his case resolved. Although he had limited means and could have easily qualified for “Currently Not Collectible” status, he insisted that he wanted to pay the balance in full. We had even reassured him multiple times that the U.S. Customs & Immigration Service and the IRS do not share notes for the purpose of deportation; but he was resolute. Therefore, instead of sending him home with case resolution notes and a payment voucher with an addressed envelope, the clinic and volunteer helped him use the IRS online payment options to pay his balance due in full online. Later on, we found out that a friend of this taxpayer who had tax problems had been deported, so he likely feared he might be also. It is the same hasty generalization consumers often make, when they assume, for example, that all Volvos are unreliable because their neighbor’s Volvo often breaks down. Regardless of his mistaken belief, the assessment was correct and he was willing and able to pay. So we respected his decision and helped him use the IRS online payment options to pay off the entire debt that day. He took his two-hour bus ride home, grasping his receipt, very relieved that the IRS cloud of debt had been removed from his mind.

How Is This “Virtual” If Taxpayers Are Coming into Your Clinic?

To be perfectly frank, it was not a purely virtual event. A more accurate description is that it was a hybrid virtual/in-person event. We hope to expand virtual options, but did a test run with fewer IT variables for the first time (fewer phone calls to merge). The remote participants were two TAS case advocates and one pro bono volunteer. What made it virtual is that the event was not a “first-come, first-served walk-in” event with the potential of long lines. Instead, taxpayers had to make appointments in advance. On the day of the event, taxpayers came in-person to the clinic at staggered times utilizing multiple rooms with conference speakers and mikes so that 3-way calls to TAS and the pro bono volunteer could be held at a proper distance. Instead of spending the entire day at a community location, TAS committed to picking up our call immediately. The two TAS case advocates set aside the time and knew we were going to call in advance. So when they saw our clinic phone number on their caller IDs, they picked up immediately ready to help. Many of the taxpayers were amazed at the lack of elevator music delays and the helpful pointers TAS gave. Coupled with the practical advice of pro bono tax practitioners who could help translate tax jargon into lay English (or Spanish, Korean, or Tagalog) and logistical help in utilizing online resources, many taxpayers went home relieved and grateful.

It’s Not World Peace, but a World of Peace for at Least That One Taxpayer

Time is precious. Not just because you can bill yourself out at a monetarily high rate to generate revenue but because it is the one non-expandable limited resource that will never change. There are many worthy charities or causes one can donate time to, so what makes volunteering at an LITC any different? I asked Michael Hsieh, one of the volunteer tax-planning attorneys who took the day off to come to assist taxpayers at our recent VPSD, whether it was worth it. “Seeing how thankful [the taxpayer] was really reminded me of how much I have to be thankful for and demonstrates the value of volunteering.” shared Hsieh. “In contrast, when you work with corporate clients, you may lose sight and the results may be more remote. Volunteering at [this] event … allowed me to see how a little bit of time and effort can provide a taxpayer with relief and make an immediate difference in a person’s life.” For an experienced practitioner, it is easy to disregard a First Time Penalty abatement when the total is a mere $48, but I knew the taxpayer Michael referenced, and her genuine gratitude shows that saving that amount was truly meaningful assistance to her. Michael is now helping our clinic (remotely) for a newly retained VSD client with document review, memo prep, and preparation of a factual narrative. These small things really count.

Next Steps?

For other LITCs considering hosting a VPSD, feel free to contact me. Our clinic logged 18.5 volunteer hours and had 8 appointments that day, with no advertising and simple facebook promotion. Of course, Los Angeles is a densely populated region, so participation may vary.

For tax practitioners interested in volunteering, I encourage you to look up the LITC closest to you on TAS’s website and email the LITC with the subject line: “Potential pro bono Volunteer.” I suspect you will receive a responsive email quickly. I asked some of my fellow clinicians whose clinics rely heavily on pro bono help. Below is an incomplete chart of a few LITCs across the country. Most of these LITCs can work with volunteers across the entire state.

City
pro bono Contact Name
% of cases taken on by pro bono Volunteers
# of pro bono Volunteers
Baltimore, MD
Janice Shih
97%
100
Concord, NH
Barbara Heggie
50%
30
Houston, TX
Luz Martinez
60% - 80%
110
San Francisco, CA
Timothy Carter
90%
A few dozen