The Tax Court: a View from the Bench September 23, 2013; 6:00 PM to 8:00 PM
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E TUT I THE TAX COURT: A ST VIEW FROM THE BENCH Prepared in connection with a Continuing Legal Education course presented N at New York County Lawyers’ Association, 14 Vesey Street, New York, NY presented on Monday, September 23, 2013. S P ecial G U E ST S P ea K E R : Hon. John O. Colvin, Chief Judge, U.S. Tax Court; Monica Koch, IRS Counsel M OD E R A TOR : Frank Agostino, Agostino & Associates, PC NYCLA-CLE I 2 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional & Non-Transitional credit hours: 1 Ethics; 1 Skills This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 2 hours of total CLE credit. Of these, 1 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law. Information Regarding CLE Credits and Certification The Tax Court: A View from the Bench September 23, 2013; 6:00 PM to 8:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646 The Tax Court: A View from the Bench September 23, 2013 6:00 PM-8:00 PM AGENDA Moderator: Frank Agostino, Agostino & Associates PC Faculty: Hon. John O. Colvin, Chief Judge, U.S. Tax Court Monica Koch, IRS Counsel 5:30 PM – 6:00 PM Registration 6:00 PM – 8:00 PM Introductions and Discussion **** Reception to follow immediately after the program A View From the Bench The Trial of the Tax Court Case and Ethical Considerations September 23, 2013 1 Tax Court Jurisdiction 2 Common Notices Which Are Predicates to US Tax Court Jurisdiction • Notice of deficiency - Before the IRS can assess and collect certain types of taxes (e.g., income tax, estate and gift tax), a notice of deficiency must be issued to the taxpayer or a notice of liability to a transferee. – If a notice of deficiency is issued, the recipients have the right, within specified time limits, to litigate the correctness of the deficiency, or the extent of transferee liability in the Tax Court without first paying the tax. IRC §6213(a) • Notice of Determination - The Tax Court has jurisdiction under IRC §6330(d)(1) with respect to a timely filed petition disputing a valid notice of determination issued by an Appeals officer. See Lunsford v. CIR, 117 T.C. 159 (2001) • Final Notice of Determination with Respect to IRC § 6015 relief. IRC §6015 3 U.S. Tax Court Petition 4 Petition • Filing Fee – The Tax Court recently simplified the Application for Waiving of Filing Fee so that it is easier to fill out. • General – Deficiency or Liability Action • Should conform to Form 1 shown in Appendix I of the Tax Court Rules, and • Shall comply with the requirements of the Rules relating to Pleadings. 5 Content of Petition in Deficiency or Liability Action • Individual – Petitioner’s name. – State of legal residence. – Mailing address. – The office of the IRS with which the tax return for the period in controversy was filed. – The date of the Notice of Deficiency or liability, or other proper allegations showing jurisdiction of the Court, and the City and State of the Office of the IRS which issued the Notice. – The amount of the deficiency or liability. 6 Content of Petition in Deficiency or Liability Action, cont. • The nature of the tax. • The year or years for which the determination was made. • Clear and concise assignments of each and every error which the petitioner alleges to have been committed by the Commissioner in the determination of the deficiency or liability. • Any issued not raised in the assignment of error shall be deemed to be conceded. • Clear and concise statements of the facts on which the petitioner bases the assignment of error, except for issues to which the burden of proof is on the Commissioner. • A prayer setting forth the relief sought by the petitioner. • The signature, mailing address, and telephone number of each petitioner or petitioner’s counsel as well as counsel’s Tax Court bar number. • A copy of the Notice of deficiency or liability. 7 Rule 33(a) and Rule 23(g) • Rule 33(a) was amended July 6, 2012 to state that Each pleading shall be signed in the manner provided in Rule 23. Where there is more than one attorney of record, the signature of only one is required. Except when otherwise specifically directed by the Court, pleadings need not be verified or accompanied by affidavit or declaration. • Rule 23(g): Effective as of July 6, 2012. Prohibits the Clerk from refusing to file a paper because it is not in the form prescribed by the Rules. 8 Answer • The Commissioner shall have 60 days from the date of service of the date of service of the petition within which to file an answer, or 45 days from that date within which to move with respect to the petition. • Form and Content – The answer should be drawn so that it will advise the petitioner and the Court fully of the nature of the defense. • Effect: every material allegation set out in the petition and not expressly admitted or denied in the answer shall be deemed to be admitted. 9 Reply • Time to Reply or Move – Petitioner shall have 45 days from the date of service of the answer within which to file a reply, or 30 days from that date within which to move with respect to the answer. 10 Reply, cont. • Form and Content: – In response to each material allegation in the answer and the facts in support thereof on which the Commissioner has the burden of proof, the reply shall contain a specific admission or denial. • If the petitioner is without knowledge or information sufficient to form a belief as to the truth of the allegation, the petitioner shall so state. • New Material: – Any new material contained in the reply shall be deemed to be denied. 11 Timely Petition Required • In all cases, the jurisdiction of the Court also depends on the timely filing of a petition. – Contempt of Court: may be punished by fine or imprisonment within the scope of IRC § 7456(c). • Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice • Misbehavior of any of its officers in their official transactions; or • Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. – Bankruptcy and Receivership • For bankruptcy, see 11 U.S.C. 362(a)(8) and IRC 6213(f)(1). • For receivership, see IRC §6871(c)(2). 12 Pleadings • Initial Pleadings – Petition (90 days). Rule 20. – Answer (60 days). Rule 36. – Reply (45 days). Rule 37. • General rules – Purpose of pleadings is to give the parties and the Court fair notice of the matters in controversy and the basis for their respective positions. – Each averment to a pleading shall be simple, concise, and direct. • There are no technical forms of pleading – Consistency: • A party may set forth two or more statements of a claim or defense alternatively or hypothetically. • If two or more statements are made in the alternative and one of them would be sufficient if made independently, the pleading is not made insufficient by the insufficiency of one or more of the alternative claims. Rule 31(c). – All pleadings shall be so construed as to do substantial justice. 13 Pleadings: Form – Rule 32 • Caption; Names of parties: every pleading must contain a caption setting forth: – The name of the Court – The title of the case – The docket number, and – A designation to show the nature of the pleading.