LSC Tax Clinic Achieves Meaningful Changes in Two Tax Court Procedures Affecting Low-Income and Pro Se Litigants

As the old saying goes: The pen is mightier than the sword.

Yet it is not very common for a law review article to prompt real-world reform. Recently, however, attorneys and students in LSC’s Tax Clinic have seen two significant successes after publishing articles advocating for changes in the operations of the U.S. Tax Court, provoking meaningful policy changes that are already improving the Court system, particularly for low-income taxpayers.

Seeking Amicus Briefs in Pro Se Cases

“Recently I wrote an article with Harvard Law 3L Caitlin Hird that will soon be published in the Houston Business and Tax Law Review,” notes Keith Fogg, Clinical Professor of Law and Director of LSC’s Tax Clinic. “We proposed that the Tax Court seek an amicus brief before publication of a precedential opinion in a case involving a pro se petitioner.”

Although the article is not yet published in the law journal, Fogg and Hird decided at the beginning of February to post it on SSRN (formerly known as Social Science Research Network), which is a repository for pre-prints devoted to the rapid dissemination of scholarly research in the social sciences, law, humanities, life sciences, health sciences, and other fields.

“In late March, the Tax Court proposed a new rule regarding amicus briefs,” Fogg says. “It had no rule on amicus briefs before the recent proposal. The new rule does not completely adopt the suggestion in our brief of seeking an amicus brief before rendering a precedential opinion in a pro se case, but it sets up the framework for doing so where none existed previously. We know that the Tax Court was reading our article after it went up on SSRN.”

75 Percent of Tax Court Cases Filed Pro Se

Why is this so important? As Fogg and Hird explain in their article, the U.S. Tax Court hears well over 90 percent of the federal tax cases litigated each year, with only a small percentage of opinions coming out of district courts and the Court of Federal Claims. The Tax Court classifies its opinions as precedential or non-precedential based on the issues presented. Over 75 percent of Tax Court litigants file their petition pro se. Each year it classifies as precedential a handful of opinions in which the petitioner(s) is pro se.

In almost all these cases, the Court creates binding precedent on the basis of a case in which only one side, the IRS, presents meaningful legal arguments—that is, rather than precedent emerging from the adversarial process, as it should, the Court’s new precedent in these cases is the result of a merely inquisitorial process.. While the Tax Court works hard to reach the right conclusion, it loses the benefit of legal argument on the side of the petitioner/taxpayer and potentially reaches a different conclusion than it might have reached had the taxpayer’s side of the argument been well developed, Fogg and Hird write in their paper.

The article resulted from a paper Fogg supervised and Hird wrote during the 2021 January term. After she completed the paper for credit, she and Fogg continued to work on it over the next several months to prepare it for publication.

The article can be found on SSRN. The new tax rule, Rule 152, can be found on the Tax Court’s website.

Making Tax Court Records Easier, Less Expensive to Access

In another case, during the 2020 January term, Maggie Goff, ’20 wrote a paper (available at Procedurally Taxing) with Fogg that was published in Tax Notes[1] and caused the Tax Court to change its rules regarding document retrieval.

“The Tax Court did not adopt our central idea, to make documents more available electronically while protecting the privacy of individuals in an appropriate manner, but did adopt our idea to make it easier and cheaper to obtain documents from this Tax Court. This was extremely important during the pandemic when the Court’s building was closed,” says Fogg.

In late May of 2020, the Tax Court issued a press release alerting interested individuals that obtaining copies of Tax Court documents was once again possible. It not only reopened the ability to obtain copies but it put a cap on the cost per document at $3.00. The Court also began sending requested documents via email, making receipt of the document much quicker.

A description of the change to the Court’s rules can be found in blog posts here and here.

Wealth Should Not Control Access to Justice

“Wealth should not control access to justice,” says Fogg. “Pro se litigants and low-income taxpayer clinics lack the resources to go to DC and sit in the Tax Court’s clerk’s office to look at documents and generally lack the ability to pay 50 cents per page to obtain briefs and other documents that might assist in their cases.

“I am still hopeful that the Tax Court will go further, and that our central idea of making documents readily accessible electronically will eventually gain traction with the Court and that the article will inspire others to push for this reform.”

Writing for Change

We tend to think of litigation or legislation as the primary means of policy change, but well-reasoned and well researched articles can also make a difference. Carl Smith, long-time volunteer with the Tax Clinic and then-director of the Cardozo Tax Clinic, wrote two articles with Fogg, published in 2009 and 2010, on the handling of collection due process cases. The Tax Court changed some of its rules in response to those articles while not adopting all of the suggestions made by Smith and Fogg. Fogg attributes the success of those articles in changing rules to his view of the benefit of scholarship in a practice that represents low-income taxpayers. Writing an article that has a tangible result and writing an article that lets a student have a meaningful impact creates the best type of scholarship for a clinician.

[1] Maggie Goff & T. Keith Fogg, Nonparty Remote Electronic Access to Tax Court Records, 167 Tax Notes Fed., May 4, 2020, at 771.

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