The U.S. Tax Court permits taxpayers to represent themselves, and it publishes guidance written for petitioners who do. Self-represented petitioners still must follow the Court’s rules and deadlines. This article explains what representing yourself involves, where free help may be available, and situations in which representation may be worth considering.
The Right to Represent Yourself
A taxpayer may file a Tax Court petition and present the case to a judge without a representative. The Court’s guidance cautions that a petitioner who proceeds without a representative must pay close attention to the Court’s orders, notices, and instructions, and remains bound by the Tax Court Rules of Practice and Procedure.
A taxpayer who wants representation may hire an attorney or another person admitted to practice before the Tax Court. Attorneys are admitted on application with proof of good standing in their bar, and non-attorneys may be admitted by passing a written examination given by the Court (Rule 200). In small tax cases, Rule 172 likewise provides that a petitioner may appear without representation or be represented by any person admitted to practice before the Court.
What Self-Representation Involves
Filing correctly and on time. A petition in response to a notice of deficiency generally must be filed within 90 days after the notice is mailed, and the Court cannot extend that deadline. The petition should list each error the taxpayer believes the IRS made and the supporting facts; under Rule 34, issues not raised are deemed conceded.
Working with the IRS attorney. An attorney from the IRS Office of Chief Counsel represents the IRS. After the answer is filed, an IRS employee typically contacts the taxpayer to discuss settlement and facts that can be agreed. Participating in those conferences, and bringing supporting documents, is part of preparing the case.
Following the pretrial order. The Court’s standing pretrial order sets requirements for exchanging documents, stipulating facts, and, in regular cases, filing a pretrial memorandum.
Proving the case. The burden of proof is generally on the petitioner. That means bringing documents and testimony that show the IRS’s determination is incorrect. The judge can consider only evidence admitted into the record.
Appearing at trial. A petitioner who does not appear at the calendar call or trial, and has not been excused, risks dismissal of the case for failure to prosecute. Proceedings are conducted in English, and a party who needs an interpreter generally must arrange one.
Small tax case procedures, available in many cases involving $50,000 or less, are less formal and use relaxed evidence rules. The trade-off is that the decision cannot be appealed.
Free and Low-Cost Help
Low Income Taxpayer Clinics. These independent clinics represent eligible taxpayers in disputes with the IRS, including Tax Court cases, for free or for a small fee. According to the Taxpayer Advocate Service, eligibility generally depends on income (set at 250 percent of the federal poverty guidelines), and the amount in dispute is typically less than $50,000. IRS Publication 4134 lists clinics by location. The Court sends clinic information when a petition is filed and again with the notice of trial.
Calendar call programs. In some cities, volunteer tax practitioners assist unrepresented low-income taxpayers at trial sessions. The Court may recommend arriving by 9:00 a.m. on the day of the calendar call to meet with clinic and calendar call attorneys.
These clinics and programs are not part of the IRS or the Tax Court, and the Court does not endorse any particular one.
When Representation May Be Worth Considering
A taxpayer may be comfortable proceeding alone when a case turns on straightforward facts and records. Representation may be worth considering when:
the case involves an unsettled legal question or the interpretation of statutes and regulations; the amount at stake is large, or several years or issues are involved; the IRS has asserted a fraud penalty; the issues call for expert testimony, such as a valuation; formal discovery or motions, such as a motion for summary judgment, become necessary; or there is any concern about potential criminal exposure.
Practical Tips
Calendar every deadline in the Court’s notices and orders. Send the IRS attorney a copy of anything filed with the Court. Keep copies of all documents. Report any change of address to the Court. Respond promptly to IRS contacts, since those discussions can lead to settlement or narrow the issues.
Considering whether to represent yourself?
Tax attorney Cassra Minai, Esq. can review your Tax Court case and discuss your options in a confidential consultation.