Tax Court Consultation Checklist | Kathryn Meyer Law PC

Bring the notice of deficiency with its envelope, every IRS letter and report from the audit, the returns for each year in the notice, and the records behind each item the IRS changed. Those papers show the filing deadline, the issues and the evidence. If a petition is already filed, bring that too.

A first meeting about a Tax Court case is mostly about two things: the calendar and the record. Preparing the papers below lets that meeting go straight to strategy, which is how Kathryn Meyer's tax litigation practice approaches a new case.

How the first meeting works, step by step

Fix the deadline. The notice of deficiency is read first, because under IRC 6213(a) the petition is due 90 days after the notice was mailed, or 150 days if it was addressed to a person outside the United States, and the court cannot extend that time.
Identify the notice type. A notice of deficiency, a notice of determination after a Collection Due Process hearing, and a final determination on innocent spouse relief each open a different kind of case with a different deadline.
Read the IRS explanation. The examination report and its attachments show each adjustment, the penalty and the reasoning, which become the "assignments of error" a petition must list.
Match records to issues. Each disputed item is paired with the documents and witnesses that support your side.
Review the history. Earlier letters, a protest and any Appeals conference show what has already been argued and what the IRS has seen.
Choose the path. Petition the Tax Court, decide between a small case and a regular case, or consider paying and claiming a refund instead.

The meeting is easier when the notice is understood before you arrive; what to do when you receive a notice of deficiency explains how the 90 days are counted and what a timely petition stops.

The checklist

Bring this	Why it matters	Rule or source
The notice of deficiency, every page, and the envelope it came in	The mailing date starts the 90 days; the notice may print the last day to file; the address shows whether it went to your last known address	IRC 6213(a), 6212(b)
Proof of when and how anything was mailed to the court	A U.S. Postal Service postmark inside the period can make a paper filing timely	IRC 7502
The examination report and the 30-day letter	They list each adjustment and penalty and the IRS reasoning	IRS Publication 3498
Any protest, Appeals letters and notes of calls	Shows what was argued and whether Appeals already reviewed the case	IRS Publication 5
Your returns for every year in the notice	The starting point for each adjustment	Get Transcript or your own copies
Records for each disputed item (receipts, ledgers, bank statements, contracts, logs)	The taxpayer generally carries the burden of proof on deductions and income items	Tax Court Rule 142
Names of people who know the facts	Witnesses must be identified before trial	Tax Court Standing Pretrial Order
Your IRS account transcripts	Show assessments, payments and notices on file	IRS Get Transcript
Any Form 2848 already on file, and your representative's details	Shows who can deal with the IRS for you	Instructions for Form 2848
The petition and court notices, if already filed	Issues not raised in the petition are treated as conceded	Tax Court Rule 34(b)

Why the envelope and the dates come first

Most of the checklist can be gathered over the following weeks. The deadline cannot. Section 6213(a) counts from the date the notice was mailed, not the date you opened it, and it adds a useful protection: a petition filed by the last date the IRS prints on the notice is treated as timely, even if that printed date falls after the 90th day. A Saturday, Sunday or legal holiday in the District of Columbia is not counted as the last day.

The envelope matters because the IRS must send the notice to your last known address (IRC 6212(b)), and because a postmark or tracking label can settle an argument about dates later. If you already mailed a petition, keep the receipt; under IRC 7502 a timely U.S. Postal Service postmark generally counts as timely filing. If a date may already have passed, bring everything anyway; what to do if you missed the 90-day Tax Court deadline explains why the answer can depend on where you live.

What the petition will need from you

Tax Court Rule 34(b) lists what a petition in a deficiency case must contain, and several items come straight from your papers: your name and state of legal residence (or, for a business, its principal place of business), your mailing address and the IRS office where the return was filed, the date of the notice and the IRS office that issued it, the amount and years in dispute, and, in separately lettered paragraphs, each error you say the IRS made and the facts behind it. The rule is blunt about omissions: any issue not raised in the assignments of error is deemed conceded. A copy of the notice must be attached.

The court also asks for two short forms with a petition: Form 4, the Statement of Taxpayer Identification Number, which is the only document that should carry your Social Security number, and Form 5, the Request for Place of Trial. The filing fee is $60, and the court can waive it on application. The mechanics are covered in how to file a petition in the U.S. Tax Court.

What changes the answer

Which notice you hold. Rule 13 ties most cases to a notice of deficiency; lien and levy cases follow Rule 331 and innocent spouse cases Rule 321, with different petition contents and a 30-day or other deadline.
The amount in dispute. If no more than $50,000 is in dispute for any one year, you may elect the small tax case procedure under IRC 7463, which changes the formality and removes the right to appeal; see small tax case or regular case.
Who carries the burden. Under Rule 142 the taxpayer usually must prove the IRS wrong, but the IRS bears the burden on fraud and on new matters it raises; the details are in who has to prove what in a Tax Court case.
Whether you can pay first. Paying and suing for a refund moves the case to a different court with different deadlines (IRC 7422, 6532).
Where you live. Your residence on the petition date decides which court of appeals reviews a regular case (IRC 7482(b)) and affects the trial city you request.
How the IRS treated your records. If the examiner never saw a document, it may matter to settlement with Appeals; if you refused to provide records, IRC 7491(a) will not shift the burden.

For example: a consultant two weeks after the notice

For example, imagine a self-employed consultant whose notice of deficiency, mailed in early March, disallows a home office and travel deductions for one year, adds unreported income from a 1099, and imposes a 20% accuracy-related penalty. Two weeks after the mailing date she arrives at a first meeting with the notice and envelope, the examiner's report, the 30-day letter she did not answer, her return, a folder of travel receipts and a mileage log, and the bank statement showing that the 1099 payment was a reimbursement passed through to a subcontractor. The meeting confirms the printed last day, sorts the issues into three lettered assignments of error plus the penalty, identifies the subcontractor as a likely witness, and notes that the total in dispute is under $50,000, so the small case choice must be weighed. Because the examiner never saw the bank statement, it is flagged for the settlement discussion with Appeals that usually follows a petition. This is a hypothetical, not a real case.

Common mistakes before the first meeting

Throwing away the envelope. It can be the best proof of the mailing date and address.
Bringing only the last letter. The examination report and earlier correspondence explain the adjustments; the notice itself often does not.
Waiting for the IRS to call back. Talking to the IRS does not pause the 90 days.
Sorting records by date instead of by issue. The case is organized issue by issue, so the records should be too.
Assuming the IRS already has your documents. The court's Standing Pretrial Order states that documents given to the IRS are not part of the court record unless made part of the case.
Filing a bare petition without the issues. Rule 34(b) treats issues left out as conceded.

What to do this week

Find the notice and envelope, and write down the mailing date and any printed last day.
Download your account and return transcripts for each year in the notice.
Make one folder per disputed item, with every record that bears on it.
Collect the examination report, the 30-day letter, any protest and all Appeals letters.
List the people who know the facts, with contact details.
Write a one-page timeline of the audit, from the first letter to the notice.
Book the first meeting well before the last day to file.

Many of the same papers serve an audit that is still open; the earlier stage is covered in what to bring to a first meeting about an IRS audit.

Frequently asked questions

Do I need originals?

Copies are enough for a first meeting, but keep the originals safe. If the case goes to trial, documents are usually agreed in a stipulation of facts, and the court can ask to see originals when authenticity is disputed.

Does a Form 2848 let my lawyer appear in the Tax Court?

No. Form 2848 authorizes representation before the IRS. In the Tax Court, counsel admitted to practice there enters an appearance under Rule 24 by signing the petition or filing an entry of appearance; the IRS side is covered in how a tax attorney represents you before the IRS.

What if I am missing records?

Bring what you have and a list of what is missing. Banks, clients and vendors can often supply copies, and the rules on reconstructing support are explained in what records the IRS requires to support business deductions.

Will my case go to trial?

Usually not. The court states that most cases are settled by agreement without trial, often after the case is sent to IRS Appeals; see whether a Tax Court case can settle before trial.

Where would a trial be held?

In the city you request on Form 5, if the court sits there. For residents of Northern Virginia and Washington, the usual choice is the court's own building in Washington, described in what to expect at the U.S. Tax Court in Washington, DC.

Can I recover my legal costs if I win?

Sometimes, under IRC 7430, if you exhausted administrative remedies, meet the net worth limits and the IRS position was not substantially justified; see whether you can recover your legal fees if you beat the IRS. Keep billing records from the start.

Should I pay the tax now to stop interest?

It can be weighed, but paying affects which court can hear the case and how the dispute proceeds; the trade-offs are in Tax Court, district court or the Court of Federal Claims.

A first meeting that starts with the deadline

Kathryn Meyer spent more than two decades in the IRS Office of Chief Counsel, the office that represents the IRS in the Tax Court, and now represents taxpayers there. If you hold a notice of deficiency, contact the firm or call (571) 560-8674, and bring the notice and its envelope to the first conversation.

Sources

Back Home