Before a Tax Court Trial | Kathryn Meyer Law PC

Before a Tax Court trial, the case is set on a trial calendar, the court serves a Standing Pretrial Order with firm deadlines, and the parties agree in writing on every fact and document they can. Each side then files a pretrial memorandum naming its witnesses and exchanges its exhibits. Most cases settle along the way.

The months before trial decide what evidence the judge will see, so they deserve as much care as the trial itself. Preparing a case for that calendar is a central part of Kathryn Meyer's tax litigation work.

How a case gets to trial, step by step

The IRS answers. Under Tax Court Rule 36, the IRS has 60 days from service of the petition to file an answer, which admits or denies each allegation and names the IRS attorney handling the case.
The case goes to Appeals. Under Rev. Proc. 2016-22, IRS Counsel generally refers a docketed case to the IRS Independent Office of Appeals within 30 days after it is at issue, and Appeals then has the sole authority to settle it while it holds the case.
The case is calendared. The court says cases are calendared for trial as soon as practicable, first in and first out, after they become at issue, and that a trial may be scheduled as soon as six months after the answer.
The notice of trial arrives. The court sends a notice setting the case for trial generally about five months before the trial date, with the city, the date and time of the calendar call, and a Standing Pretrial Order.
The pretrial deadlines run. Motions, expert reports, the pretrial memorandum, the stipulation of facts and the exhibits are due on a countdown measured from the first day of the trial session.
The calendar call. On the first day of the session each case is called, the parties give their time estimates, and the judge sets trial times (Rule 131(c)).

Settlement can happen at any of these steps, and many cases end with a stipulated decision rather than a trial; the process is explained in whether a Tax Court case can settle before trial.

The pretrial countdown

The court's sample Standing Pretrial Order for regular cases sets these deadlines, counted back from the first day of the trial session. The order served in your own case controls, and a judge can change the dates, so read it the day it arrives.

Deadline before the session	What is due	Related rule
60 days	Any motion for summary judgment	Rule 121
45 days	Motions about discovery or stipulations; discovery must be finished	Rules 70(a)(2), 91(f)
31 days	Motions for continuance and motions to proceed remotely	Rule 133
30 days	Motion for leave to file an expert report, with the report lodged	Rule 143(g)
21 days	A pretrial memorandum (witnesses and a summary of their testimony), or a proposed stipulated decision, a status report or a motion to dismiss for lack of prosecution	Standing Pretrial Order
14 days	Stipulation of facts with stipulated documents; other proposed trial exhibits exchanged	Rule 91
7 days	Supplemental stipulation with agreed exhibits, or any unagreed proposed exhibits filed	Standing Pretrial Order

The stipulation of facts

Rule 91 is the heart of Tax Court trial preparation. It requires the parties to stipulate "to the fullest extent to which complete or qualified agreement can or fairly should be reached" all relevant matters that are not privileged, including facts, documents and evidence that "fairly should not be in dispute." The duty applies regardless of who bears the burden of proof. A signed stipulation is treated as a conclusive admission for the case, and the court will not let a party back out of it unless justice requires.

In practice, the stipulation usually includes the returns, the notice of deficiency, contracts and the paper records for each item, and the court's guidance for petitioners lists exactly those examples. If the other side will not confer or will not stipulate to a matter it should, Rule 91(f) allows a motion, filed no later than 45 days before the calendar call, asking the court to deem the matters admitted. The quality of the stipulation matters because, under Rule 149(b), filing a stipulation does not relieve the party with the burden of proof from proving facts the stipulation does not establish; how that burden falls is covered in who has to prove what in a Tax Court case.

Discovery, admissions and subpoenas

Tax Court discovery is narrower than in other federal courts. Rule 70 allows written interrogatories, requests for documents and limited depositions, but the court expects the parties to try informal consultation first, and formal discovery cannot start until 30 days after joinder of issue. Requests for admission under Rule 90 carry a trap: each matter is deemed admitted unless a written answer or objection is served within 30 days.

When a third party will not cooperate, a subpoena can compel a witness to appear at the trial session or a deposition (Rule 147). The court's guidance says a petitioner who serves one must pay the witness one day's attendance fee and mileage when the subpoena is served, the same fees district court witnesses receive, and that a subpoena cannot be used just to make someone mail documents.

What changes the answer

Small case or regular case. Small tax cases under IRC 7463 receive a Standing Pretrial Order for small cases, where a pretrial memorandum is encouraged rather than required, and the evidence rules are relaxed (Rule 174); see small tax case or regular case.
Where and how the trial sits. The trial city comes from Form 5 and Rule 140, and a party may ask to proceed remotely by Zoomgov no later than 31 days before the session; the choices are explained in where your Tax Court trial will be held.
Expert testimony. An expert's report must be lodged 30 days before the session, and testimony can be excluded for noncompliance (Rule 143(g)).
Continuances. Rule 133 says continuances are granted only in exceptional circumstances; conflicting engagements or new counsel ordinarily do not qualify, and a motion filed 30 days or less before the date is ordinarily treated as dilatory.
Unresponsive parties. If a party will not cooperate, the other may move to dismiss for lack of prosecution, and Rule 149(a) allows dismissal when a party fails to appear.
Language. Proceedings are in English, and the Standing Pretrial Order says it is generally each petitioner's responsibility to bring an interpreter, though the court may have one with advance notice.

What the trial itself looks like

The court describes its trials as conducted before one judge, without a jury, and its trials follow the Federal Rules of Evidence (IRC 7453; Rule 143(a)), with relaxed rules in small cases. Testimony is generally taken in open court. After a regular trial, the judge usually orders briefs: unless the judge directs otherwise, opening briefs are due 75 days after trial and answering briefs 45 days after that (Rule 151). The transcript is ordered from the court's official reporter, and the court notes that transcripts are not viewable in DAWSON until 90 days after the trial. The judge later issues findings of fact and an opinion, and the case closes with a decision, which in a regular case can be appealed; see whether you can appeal a Tax Court decision, and to which court.

For example: a calendar notice in June

For example, imagine a small business owner whose regular Tax Court case, about disallowed vehicle and travel expenses and an accuracy-related penalty, did not settle in Appeals. In June the court sends a notice setting the case for a November trial session in Washington, with a Standing Pretrial Order. Her representative works backward from the first day of the session: the IRS attorney is contacted at once to start the stipulation; a mileage expert is ruled out, so no 30-day report is needed; the pretrial memorandum, naming the owner and her former office manager as witnesses, is filed 21 days before the session; and the stipulation of facts, with numbered returns, logs and invoices, is filed 14 days before. One disputed invoice is listed as an unagreed exhibit 7 days before the session. At the calendar call, the judge sets the trial for the second day. This is a hypothetical, not a real case.

Common mistakes before trial

Treating the notice of trial as the start of preparation. By then the countdown is already running; settlement and stipulation work should start right after the answer.
Ignoring a request for admission. Silence for 30 days admits the matter (Rule 90(c)).
Leaving witnesses off the pretrial memorandum. The Standing Pretrial Order says unidentified witnesses will not be allowed to testify without good cause.
Holding back documents. The court may refuse documents not filed as proposed exhibits by the 7-day deadline.
Counting on a continuance. Rule 133 makes them exceptional, and late motions are usually denied.
Relying on what the IRS already has. The Standing Pretrial Order says documents given to the IRS are not part of the court record unless made part of the case.

What to do this week

Read the Standing Pretrial Order in full and put every deadline in your calendar.
Write to the IRS attorney named in the answer to start the stipulation of facts.
Number every document you expect to use, issue by issue.
List your witnesses and confirm they can attend the session dates.
Decide whether an expert is needed, given the 30-day report deadline.
Check for any request for admission or discovery request and its 30-day clock.
Revisit settlement: the issues, the hazards and what Appeals or Counsel last offered.

If you have not yet met with counsel, the papers to collect are listed in what to bring to a first meeting about a Tax Court case.

Frequently asked questions

How long after filing does a trial happen?

The court says a case may be scheduled for trial as soon as six months after the answer, though it can take longer. The notice of trial generally comes about five months before the session.

Is there a jury?

No. Tax Court trials are heard by one judge without a jury. A jury is available only in a refund suit in district court, which is a different route described in Tax Court, district court or the Court of Federal Claims.

Can I still settle after the notice of trial?

Yes. If a basis for settlement is reached, the Standing Pretrial Order asks for a proposed stipulated decision 21 days before the session, or a status report if more time is needed, and the court handles settlements reached during the session on the record.

What happens at the calendar call?

Each case on the calendar is called on the first day of the session, the parties estimate the trial time, and the court sets times for trials, which are not necessarily heard in the order listed (Rule 131(c)).

Can I testify for myself?

Yes, and the court notes that in many trials the evidence consists mainly of the petitioner's own testimony and documents. Statements in briefs and unadmitted allegations are not evidence (Rule 143(c)).

Can the trial be held remotely?

The court conducts some trials by Zoomgov, and a motion to proceed remotely is due 31 days before the session. If it is granted, the court sends instructions, and the parties must make sure their witnesses can connect.

What if the trial is in Washington?

Trials there are held in the court's own building at 400 Second Street NW, described in what to expect at the U.S. Tax Court in Washington, DC.

Preparing for the calendar

Kathryn Meyer spent more than two decades in the IRS Office of Chief Counsel, the office that prepares the government's side of these trials, and now represents taxpayers. If your case has been set for trial, or you expect it will be, contact the firm or call (571) 560-8674 while the pretrial deadlines are still ahead of you.

Sources

Back Home

What happens before a Tax Court trial?