The ABA recently posted a virtual CLE presentation titled Making Your Case in Tax Court: Advocacy Tips. The panel was moderated by the Hon. Nannette A. Baker, Chief U.S. Magistrate Judge for the Eastern District of Missouri. The panelists included the Hon. Maurice B. Foley, former Chief Judge of the United States Tax Court, the Hon. Juan F. Vasquez, Senior Judge of the United States Tax Court, Michael J. Desmond, Former Chief Counsel of the Internal Revenue Service, and Maria C. Critelli, Associate at Mayer Brown. This report summarizes some of the tips presented by the panel members.
Use Your Briefing Wisely
Unlike most civil cases in federal district court, discovery in the Tax Court tends to be a cooperative and unsupervised process. Litigants are required to use informal mechanisms, such as Branertonbefore resorting to formal processes such as motions to compel In cases where there are no discovery disputes, the Tax Court judge assigned to hear the case will often have no knowledge of the parties, the facts, or the legal dispute until she receives the Pretrial Memorandum, typically due 21 days prior to the first day of a trial
At a minimum, the Pretrial Memorandum must summarize the facts of the case, describe the legal issues and authorities, and identify any witnesses who will testify. A strong Pretrial Memorandum will focus on the major issues and apply existing legal authorities to the facts of the case. The panelists were quick to point out, however, that a thorough brief does not necessarily have to be a lengthy brief. Settling minor disputes early so that the briefing can focus on a strong analysis of the outcome-determinant questions is crucial. Furthermore, to the extent that the judge offers any insight or directions regarding the substance of the case or the areas of uncertainty, it is important to address the briefing to those issues.
One of the best ways to improve briefs is to reach out to others for help and advice. Monitor ongoing cases, and if there is litigation involving similar legal issues, reach out to counsel and ask if they are willing to share their briefs. The tax bar is known for its collegiality, and being able to refine a position with others in a similar situation is an invaluable opportunity. Furthermore, after August 1, 2023, the Tax Court will enable public electronic access to certain posttrial and amicus briefs, which can also be a valuable