part35-29

The Tax Court divides the fiscal year for trial sessions into three
terms. The Fall Term generally begins in September; the Winter Term begins
in January; and the Spring Term begins in April.

The calendar call is the court’s first appearance at a designated
location, and it is the beginning of the court’s session. Before the
cases are called, most of the judges open with introductory remarks about
how the session will be conducted. Unless other arrangements have been made
for particular cases, as described below, attorneys should expect all cases
which have not been settled or continued to be called.

On occasion, Chief Counsel employees may wish to gain access to Tax
Court facilities prior to the opening of a trial calendar in order to set
up files, exhibits, or equipment in connection with a scheduled proceeding.
Unless arranged beforehand with the presiding judge or other appropriate Tax
Court officials with the knowledge of the opposing party, such access may
give rise to an appearance of unfairness or impropriety.

Tax Court facilities maintained in field locations, including courtrooms
and counsel rooms, are spaces belonging to the Tax Court. Access to this space
is under the exclusive control of the Tax Court, even when the court’s
facilities are located in federal buildings to which Chief Counsel employees
otherwise may have access. If Chief Counsel employees require access to any
Tax Court space before the commencement of the trial session, they must request
permission in advance from either the presiding judge or other appropriate
Tax Court official and should follow the directions given with respect to
the request for access. For example, if there is a need to deliver and set
up voluminous files or exhibits in advance of the commencement of the session
in connection with the trial of large case, arrangements should be made through
a telephone conference with the presiding judge and opposing party. The judge
may require advance contact with the trial clerk at the session or communication
with the Office of the Clerk of the Court in Washington, D.C. If the presiding
judge is unavailable for a telephone conference, the calendar administrator
should contact the Clerks’ Office in Washington by telephone at (202)
606–8754 to make a request.

Chief Counsel employees should not under any circumstances enter any
of the court’s space without first obtaining permission from the presiding
judge or the Office of the Clerk of the Court. This prohibition includes any
request that building security or courtroom security officers unlock a courtroom
or counsel room. This prohibition also includes any use of any available office
keys that may operate locks on courtrooms or counsel rooms in federal buildings.
In addition, if Chief Counsel employees arrive at court for a session and
find that the facilities have been unlocked and opened by building security
or by a court security officer before the arrival of the trial clerk, Chief
Counsel employees should not enter the court’s facilities until the
trial clerk has arrived, unless advance arrangements have been made as described
above.

Unauthorized or premature access to courthouse facilities creates a
perception problem. Further, the Tax Court’s files and internal papers
of the presiding judge, not available to the parties, may have been delivered
for storage in the courtroom in advance of the session, or left in the courtroom
after each day’s proceedings. Thus, court facilities are restricted
when court personnel are not present. If any Chief Counsel employee has possession
of any keys to Tax Court facilities, the employee should immediately contact
the Special Counsel (Tax Practice & Procedure), in APJP, Branch 3.

The Field attorney represents the Service before the United States Tax
Court. As such, the duty to the client cannot be overstated. The failure to
answer the call of an assigned case is inexcusable. Allowance should be made
for possible transportation delays in reaching the courtroom before the calendar
call. Whenever the attorney is unable to attend the calendar call, arrangements
must be made to substitute another attorney or reviewer to answer the call
of any assigned cases on the calendar. If an emergency will prevent anyone
from appearing on behalf of the respondent, a telephone call should be made
to the trial clerk if possible, or to the Office of the Clerk of the Court
in Washington, D.C., at 202–606–8754.

At the calendar call, it is customary for the calendar administrator
and a secretary to be seated at respondent’s counsel table. Field attorneys
should be seated close to respondent’s counsel table to enable them
to proceed to the table as their cases are called. Courtesy dictates that
Field attorneys should not be seated at petitioner’s counsel table.

At the time designated in the trial calendar, the judge will enter.
The clerk will open the session and proceed to call each case in the order
in which it appears on the calendar, omitting those cases previously stricken
from the calendar. As each case is called, the assigned Field attorney will
proceed to respondent’s counsel table. After petitioner or counsel for
petitioner has made an appearance, the Field attorney will then enter an appearance
as counsel for respondent and report the status of the case, such as that
it is ready for trial. Only attorneys in the Office of Chief Counsel admitted
to practice before the Tax Court may enter an appearance on behalf of respondent.
Unless other arrangements have been made as discussed in CCDM 35.6.1.11, the
Field attorney must be prepared to try all of his or her cases on any day
of the session.

The court may question the parties concerning certain aspects of the
case during the calendar call. Being prepared to try the case on that day
enables the Field attorney to answer any questions. In any event, the Field
attorney should inform the court of the issues, the expected trial time, and
the extent to which the facts have been stipulated or the reasons for any
failure to stipulate. With the approval of the Field attorney’s reviewer,
this may be the appropriate time to request a pretrial or chambers conference,
and to explain the need for the court’s assistance. If there is a considerable
discrepancy between the estimated trial time given by the attorney at the
calendar call and the estimated trial time reported on the Pretrial Memorandum,
the attorney should be prepared to explain the difference.

The Field attorney’s reviewer should attend all pretrial, post-trial,
or other conferences in chambers scheduled by the court in any case other
than a small tax case.

Occasionally, the trial judge attempts to participate in settlement
negotiations and orders the parties to disclose their prior settlement proposals.
If that occurs, the Field attorney and reviewer should refuse to conduct settlement
negotiations in the presence of the trial judge. They should respond to questions
from the judge regarding respondent’s position on any issue in the case.
Often, concessions of issues or agreements as to the existence of certain
facts are made in chamber conferences. See CCDM 35.6.1.6
for procedures with respect to such off-the-record agreements.

The Field attorney and reviewer may reveal to the trial judge the extent
of prior settlement negotiations and, in general terms, the degree to which
the parties’ settlement positions differ. Under no circumstances, however,
may the Field attorney or reviewer disclose to the trial judge any specific
settlement proposals made by either party during the non-docketed or the docketed
stages of the case. A specific settlement proposal, for this purpose, includes
a proposal made in terms of dollars or percentages, either with respect to
the entire case or one or more issues in the case. Likewise, respondent should
object if petitioner or petitioner’s representative attempts to reveal
to the trial judge specific settlement proposals.

Disclosure to the court of specific settlement proposals in small tax
cases should not be made by the Field attorney or reviewer. Such disclosures
by pro se petitioners or their representatives should
be resisted in small tax cases.

The trial judge may conduct chambers conferences or telephone conference
calls in which discovery schedules, stipulation difficulties, the parties’
positions on the issues, and other pretrial issues are discussed. Occasionally,
the parties’ recollection of facts or issues agreed upon differs from
that of the trial judge or each other. Since there is no transcript, there
is often little the Field attorney can do to counter the judge’s or
the opposing counsel’s contrary memories. In these instances, the attorney
should consult with the reviewer as to the advisability of memorializing any
agreements, or the lack of an agreement, for the record. Sound judgment is
required in these instances. In general, it is a better practice to confirm,
in writing, any agreements or concessions made by the parties in contacts
where no transcript will be prepared.

If such a conference is held during a trial session, and it is advisable
to memorialize any agreements or the lack of an agreement, a court reporter
is normally available to record the results of the conference for the record.
The attorney should request the court’s permission to state the substance
of the conference on the record. The attorney should state the terms of any
stipulations reached, as the Field attorney understands them. In addition,
the Field attorney should state for the record, that, while other matters
were discussed, no other agreements were reached. Example: ”
The parties just concluded a chambers conference with the court. We agreed
to stipulate that [describe stipulated matters], and we agreed to file a written
stipulation to that effect by [date]. While other matters were discussed,
no other agreements were reached.”

Telephone conference calls have been widely used by the court to conduct
pretrial scheduling in lieu of formal status hearings. Since opportunities
for misunderstandings exist, Field attorneys should consult with reviewers
and use judgment concerning whether to follow up with a letter to the petitioner’s
representative, with a copy to the trial judge, confirming the agreements
reached and acknowledging those areas in which agreements were not reached.
In general, it is a better practice to confirm in writing any agreements or
concessions made by the parties in contacts where no transcript will be prepared.

If no appearance is made by or on behalf of petitioner, the Field attorney
should normally move to dismiss the case for the lack of prosecution.

Before proceeding to the trial of the issue(s) on which respondent bears
the burden of proof (persuasion or production), the Field attorney should
consider the feasibility of moving for dismissal for failure to prosecute,
or for a default judgment, and meeting respondent’s burden on penalty
issues by attaching documentary evidence to the motion or, if affirmative
allegations in the answer have been made, by asking the court to deem such
allegations admitted. For example, in a nonfiler situation, a certified transcript
attached to the motion should be sufficient to satisfy respondent’s
burden, without the need for a trial. Similarly, where negligence is at issue,
it may be appropriate to attach a declaration by the revenue agent. For motions
with respect to the burden on penalties or additions to the tax, under section
7491(c), see CCDM 35.3.1.14. For motions for default
or dismissal generally, see CCDM 35.3.4.5.

The petitioner’s representative has the duty to represent petitioner
before the court. The Field attorney should not arrange to make a representation
to the court on petitioner’s behalf. Any exceptions to this prohibition
must be approved in advance by the Field attorney’s reviewer, and normally
such approval will only be given under unusual circumstances regarding perfunctory
matters, such as indicating petitioner’s acquiescence to a routine motion.
Settlement stipulations usually may be filed without the presence of petitioner’s
representative. (Some judges may insist that petitioner’s representative
be present. The calendar administrator should attempt to ascertain the practice
of the judge handling the session in this regard by consulting the Post Trial
Calendar Report on TLCATS.)

Decision documents should be submitted for filing at the calendar call,
or before the calendar call, if permitted by the court. To submit a decision
document at the calendar call, the Field attorney should enter an appearance,
state that the parties settled the case and executed a decision document,
and state that the respondent would like to submit it for filing. The attorney
should then ask for permission to approach the clerk with the decision document.
The decision document may be submitted at the calendar call by the attorney
or reviewer, as determined by the reviewer.

Where the parties have reached a basis of settlement, but the documents
have not been completed and/or executed by the parties, the Field attorney
may represent to the court only that a basis of settlement has been reached.
The Field attorney should request that the parties be permitted to read the
terms of the settlement into the record, and may also ask the court to recall
the case during the session for the submission of the decision document.

Particular care must be taken when a case is reported as settled. If
the settlement is dependent on future actions, such as the petitioner’s
producing proof of an expenditure or the execution of a closing agreement
affecting nondocketed years, the case is not, in fact, settled. When the status
is reported, the conditions or qualifications for a prospective settlement
must be clearly stated. If a delay occurs in submitting the decision document
following a representation that the case is settled, the court may issue an
order to show cause as to why the decision has not been submitted or why the
case should not be disposed of under T. C. Rule 123 (default and dismissal).
Such show cause orders may also include a pointed reference to Rule 202, concerning
disqualification, suspension, or disbarment of counsel who previously reported
the case as settled. If care is not taken to communicate the conditions to
achieving a final, binding settlement agreement, the court may enforce a reported
settlement agreement, even though it has not been finalized through the execution
of a decision document, and even though one of the parties no longer agrees
to be bound. See CCDM 35.5.2 for Counsel settlements.

After the parties enter their appearances, preliminary motions are often
made. A motion for a continuance may be argued at this time. When it is anticipated
that petitioner’s representative will file a motion for a continuance,
and, after consultation with the reviewer, the Field attorney is instructed
to oppose the motion, the attorney in opposition to the motion should present
the record of any prior continuances of the case along with all other arguments
and material which support the Service’s argument. It is advisable to
submit written motions pertaining to the pleadings or for the consolidation
of related cases, particularly where such motions may affect the anticipated
trial time or the trial date. Because preliminary motions may require considerable
time for argument, they should be brought to the court’s attention prior
to the session, such as in the respondent’s Pretrial Memorandum or during
a conference call with the court. See CCDM 35.3 for
motions generally.

While the Field attorneys and reviewers are responsible for preparing
their assigned cases for trial, the calendar administrator has coordination
and reporting responsibilities. As such, the calendar administrator may be
aware of the judge’s scheduling preferences before the session begins
and can serve as a resource for the Field attorneys and reviewers. All scheduling
matters should be coordinated with the calendar administrator.

The court must have the ability and the flexibility to set the time
of trial of all cases. Therefore, the Field attorney should make no agreement
with petitioner’s counsel for a particular trial time. The attorney
may, however, after coordinating with the reviewer and the calendar administrator,
inform petitioner’s counsel that respondent will not object to petitioner’s
request. Moreover, the parties may make a joint request for a conference call
with the court for the purpose of requesting a date and time certain. Such
a request may be justified by the distances which witnesses must travel, or
the anticipated trial time and complexity of the case.

In rare instances, prior to the calendar call, it may be necessary for
the calendar administrator to communicate to the court information concerning
the cases which are to be tried and to inform the court of any suggested trial
dates to which the parties have agreed and why. The administrator may not
discuss the procedural or substantive merits of a particular case. The administrator
should not arrange the trial date of any other cases on the assumption that
the court will grant a specific trial date for any case. The extent to which
the court adopts the requested trial dates varies from judge to judge. Often,
the court will not set specific trial dates, and will set only the order of
the trials. The Field attorneys and reviewers must be ready for trial immediately
after the calendar call, unless the court previously granted a specific date
and time for trial of a case.

Upon the completion of the calendar call, the court normally takes a
short recess, and schedules the hearings and the trials. After the recess,
the court announces the order, and may or may not set specific dates and times
for all trials. If the court inadvertently omitted a case from its announcement
of the order of the trials and the hearings, the calendar administrator should
immediately bring it to the court’s attention.

After the setting of the order of the trials, if respondent’s
subpoenaed witnesses are present in the courtroom, and if the Field attorney
has concerns about their appearance at the trial, the Field attorney may ask
the court to instruct the witnesses to appear on the designated trial date.

If documents were brought to the courtroom in response to respondent’s
subpoena duces tecum, but the witness asserts a privilege or otherwise refuses
to make them available, the Field attorney may ask the court to take custody
of the documents and permit respondent to examine them prior to trial.

If, in the course of preparing a case for trial, there have been any
disagreements concerning any position to be taken by respondent between the
Field attorney and reviewer, and if the Field attorney has been instructed
to take a certain position by the reviewer either at the calendar call or
at the trial of the case, the Field attorney must follow such instructions
or directions. If the facts and circumstances have altered to the extent that
new instructions would be appropriate, the attorney should consult with the
reviewer.

See CCDM 35.5.5, Arbitration and Mediation, for
alternative means to resolving disputes.