A Tax Court trial is heard by a judge, without a jury. Many cases are resolved before trial, but when one is not, the process follows a familiar sequence. This overview, based on the Court’s rules and its guidance for petitioners, explains what happens before, during, and after a trial session.
Before Trial
Notice of trial. The Court generally issues a notice setting the case for trial about five months before the trial date. The notice states where and when to appear. The Court tries to hold the trial in the city the taxpayer requested and, if no courtroom is available, may use a city reasonably nearby.
Standing pretrial order. With the notice, the Court issues a standing pretrial order (or a version for small tax cases) explaining how to prepare. Among other things, the parties are expected to meet or talk, provide each other with documents they intend to use at trial, and agree in writing to facts and documents that are not in dispute. A pretrial memorandum must be filed in a regular case and should be submitted in a small tax case.
Stipulation of facts. Agreed facts and documents are usually set out in a written stipulation of facts. The Court’s guidance lists typical items, such as the tax return, the notice, relevant contracts, and canceled checks, receipts, or invoices.
Witnesses and subpoenas. Most witnesses appear voluntarily. If a witness will not cooperate, a Tax Court subpoena can require attendance and the production of documents, and the party serving it must pay the witness’s attendance fee and mileage.
Expert reports. A party relying on an expert must serve the expert’s report no later than 30 days before the call of the trial calendar (Rule 143(g)).
Other arrangements. A party who cannot be ready may file a motion for a continuance, which may or may not be granted. Proceedings are conducted in English, and a party who needs an interpreter generally must arrange one. A motion to proceed remotely may be filed up to 31 days before the session begins.
The Calendar Call
On the first morning of the trial session, the trial clerk calls each case that has not settled. The taxpayer and the IRS attorney, who works for the IRS Office of Chief Counsel, identify themselves, and the judge may ask about the status of the case. The judge then schedules cases for specific days and times during the session.
In many cities, tax clinics and volunteer calendar call programs are available to assist unrepresented taxpayers, and the judge may introduce them. A taxpayer who does not appear and has not been excused risks having the case dismissed for failure to prosecute.
The Trial
Preliminary matters. The judge may address filings such as the stipulation of facts and the pretrial memoranda.
Opening statements. The judge may allow each side to make an opening statement, and the petitioner usually goes first. Opening statements are generally not evidence.
Testimony. Witnesses take an oath or affirmation. The petitioner’s witnesses, often beginning with the petitioner, testify on direct examination, and the IRS attorney may cross-examine. The IRS then presents its witnesses, whom the petitioner may cross-examine. The judge may ask questions of any witness.
Evidence. Regular cases follow the Federal Rules of Evidence. In small tax cases, trials are conducted as informally as possible, and any evidence the Court considers to have probative value is admissible. In either type of case, the judge can consider only evidence admitted into the record, so documents not included in the stipulation should be brought to court. If the IRS will not stipulate to a document, the Court’s checklist recommends bringing three copies.
Burden of proof. The petitioner generally bears the burden of proving that the IRS’s determination is incorrect, subject to statutory exceptions.
When all testimony and exhibits are in, the record is closed. An independent reporting company records the proceedings, and each party is responsible for ordering its own transcript.
After Trial
Briefs. The judge may order post-trial briefs or allow oral argument or memoranda instead. When simultaneous briefs are ordered, opening briefs are generally due 75 days after trial and answering briefs 45 days after that (Rule 151). Briefs are not required in small tax cases unless the Court directs otherwise.
Opinion. There is no fixed time for a decision. The judge may state a bench opinion orally during the session or issue a written opinion later. Written opinions in regular cases are issued as Tax Court opinions or memorandum opinions; small tax cases receive summary opinions, which cannot be relied on as precedent. The Court then enters a decision, sometimes after the parties submit computations under Rule 155.
Reconsideration and appeal. A motion for reconsideration may be filed within 30 days after the opinion is served. In a regular case, a notice of appeal may be filed within 90 days after the decision is entered (120 days if the IRS appeals first). For individuals, the appeal generally goes to the U.S. Court of Appeals for the circuit where the taxpayer resides, which for California residents is the Ninth Circuit. Small tax case decisions cannot be appealed by either side.
Settlement remains possible even during or after trial, and the Court’s guidance notes that the parties sometimes resume discussions at that stage.
The Court’s guidance for petitioners emphasizes organization: bring all documents, present facts clearly, address arguments to the judge rather than to the IRS attorney, and turn off phones in the courtroom.
Preparing for a Tax Court trial?
Tax attorney Cassra Minai, Esq. can review your case and trial preparation needs in a confidential consultation.