part35-9

After the parties have entered their appearances at calendar call, often
preliminary motions are made by either party. Motions for continuance are
sometimes argued at this time. When it is anticipated that petitioner’s
representative will file a motion for 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 his/her argument. Motions which will require considerable time
for their presentation and argument or which relate to the substance of the
case should be mentioned to the court in a telephone conference or other joint
communication so that in arranging the calendar the court may set them for
hearing when it deems appropriate. Motions pertaining to the pleadings, jurisdiction,
etc., which should have been made at an earlier time must be presented and
disposed of when the case is called for trial.

Continuances of cases set for trial should be held to a minimum. See Exhibits 35.11.1–50 and 35.11.1–51. The Field
attorney and reviewer should manage the cases in inventory in such a manner
that cases appearing upon calendars have been adequately prepared both legally
and factually, complying with the procedures outlined in Rev. Proc. 87–24
for early development and disposition of the cases assigned by either settlement
or trial. For those cases in which it is known at the time of the receipt
of the calendar that it is unlikely that the case can be tried, an immediate
motion for continuance, and hearing by telephone with the trial judge if agreeable
to opposing counsel, should be considered. Time expended on calendared cases
should not be dissipated through continuance unless the continuance is supported
by good and sufficient reasons that arise between the time of the calendaring
of the case and the time the case is set for trial. In responding to petitioner’s
motion to continue, the Field attorney should employ judgment in determining
whether the case is one which truly warrants a continuance. If not, a motion
should be opposed on the merits and should not be predicated upon any broadly
stated policy opposing continuances.

If the basis for the motion to continue is the fact that related cases
are pending which may resolve the issue, such allegations should be specific.
Will the parties accept the decision in the other case; is the Service looking
for a split in these circuits for potential appeal, etc. If the parties will
accept the other case as being dispositive, consideration should then be given
as to which case will most effectively present the position of the respondent,
and which forum is better. The fact that there is another case pending should
not automatically be accepted as a basis for a continuance. If the basis for
continuance is conflicting court appearances, consideration should be given
to arranging for a specific trial time that can accommodate the petitioner’s
schedule. Continuances based upon doctor’s certificates for the petitioner
or witnesses should be closely examined to determine whether the petitioner
or the witnesses are physically unable to appear in court and whether a deposition
will be sufficient. In appropriate instances, the trial judge may be requested
to call the petitioner’s or witnesses’ doctor to court to further
explain the reasons for the doctor’s certificate or the court may be
requested to order the petitioner or the witness to be examined by a physician
designated by the court.

It is the general policy of the office to move cases expeditiously and
to oppose petitioners’ unsupported motions for continuance from the
trial session. The Field attorney should not advise the petitioner of his
concurrence in the continuance without having first discussed the matter with
the reviewer and establishing a firm position of the office.

If it is necessary for respondent to file a motion to continue a case
from a trial calendar, an endorsement by petitioner’s counsel agreeing
to the motion should be obtained when feasible. When it is not feasible to
obtain an endorsement, but petitioner’s counsel has agreed with it or
does not oppose its granting, this fact should be contained in the motion.
If petitioner’s counsel will oppose the motion for continuance, the
court should be advised of that fact when the motion is filed. Care should
be exercised in not waiting any longer than necessary to move for a continuance
after the trial notice has been issued. Under T.C. Rule 133 a motion for continuance
filed 30 days or less before the trial calendar will ordinarily be deemed
dilatory and will be denied unless the ground for continuance arose during
the 30 days before trial or there was a good reason for not moving sooner.

In any instance in which either party advises the court that a stipulation
of settlement is being prepared or that a basis of settlement has been agreed
upon but the settlement documents cannot be prepared in time to be filed by
the conclusion of the trial session, the court will generally retain jurisdiction
and set a date for the filing of stipulated decision documents. At least 90
days should be initially requested for filing the settlement documents. For
cases which are to be submitted to the Joint Committee on Taxation, it is
advisable to request the court to fix a six-month period, or more if necessary,
rather than the 90-day period, for the filing of the settlement documents.
Whenever any case is reported as settled and the basis of settlement is described
to the court, the Field attorney and his reviewer should make sure that appropriate
steps are taken to order a transcript of the proceedings.

The court must not be requested to continue a case for filing the settlement
stipulation unless a basis of settlement has been reached by all parties and
the only remaining action to be taken is the administrative processing of
the case, such as making the necessary computations, preparing the settlement
stipulation, or processing the case to the Joint Committee on Taxation. A
case should not be continued merely for the purpose of permitting the parties
to continue or to complete settlement negotiations.

Field Counsel has the sole responsibility of assuring that the settlement
documents are received by the Tax Court on or before the date specified in
the court’s order, or filing with the Tax Court not later than two weeks
before the due date a Motion to Extend Time for Filing Decision Documents.
The motion should set forth briefly the status of the settlement documents.
The court should be requested in the motion to continue the case to a specific
date, and the grounds should be stated in the request. If the delay in filing
the settlement documents is due to inability to secure a transcript of account
or other action within the control of the Service, such fact should be pointed
out, the circumstances fully explained. A joint motion stating the status
of settlement is preferable.

Since the Tax Court calendars cases for trial when they are at issue,
taking into consideration the court’s travel schedule and courtroom
availability, a motion to calendar a case for trial out of order must be for
strong and compelling reasons. These types of motions are usually filed in
situations in which the parties desire:

Motions to calendar cases for a special session are filed in cases that
cannot be conveniently tried on a regularly scheduled Tax Court trial calendar
due to the estimated extended trial time of the case. In such a case it is
desirable to file a motion to calendar at a special setting at the earliest
reasonable time. The court usually will not set a case for a special session
unless the estimated trial time of the parties exceeds 20 hours and this estimate
is supported by specific allegations in the motion.

Motions to calendar should always be filed when part of a group of related
cases have been set for trial, but the remaining cases in the group have been
omitted from the trial calendar. Such a motion should be filed as soon as
possible after the issuance of the trial calendar and, when possible, it should
be an agreed motion. A single motion to calendar and consolidate may be filed
for the entire group of cases if appropriate in this situation. In addition,
a motion to calendar and consolidate, or in the alternative to continue, may
be filed if it is expected that the additional cases on the calendar may add
significant trial time to the session. Motions of this type are to include
every case in the proposed consolidated group as if it were an initial motion
to consolidate, and include the consolidation form of caption and all docket
numbers of the cases listed in numerical order beginning with the earliest
case. Additional copies of the motion should be submitted for each additional
docket number. Every motion to calendar cases for trial should set forth the
grounds on which the motion should be granted. Also, the motion must specifically
set forth a realistic estimated trial time. It is particularly important that
the court be informed in the motion whether the addition of cases to the group
already set will add any additional trial time to the group as a whole and,
if so, the number of hours.

A motion to calendar should be considered for any case which was previously
reported to the court as settled and for which decision documents have been
ordered, but for some reason settlement efforts have stopped.

Tax Court Rule 123 provides that if any party has failed to plead or
otherwise proceed as provided by the rules, or as required by the court, a
motion would be proper to have a decision entered against the defaulting party.
The court may take other action as provided in T.C. Rule 123.

When a case is called at the calendar call for assignment of the time
and date of trial and there is no appearance on behalf of the petitioner,
a motion in the form of a motion to dismiss for lack of prosecution should
be made by the Field attorney, unless circumstances exist making such a motion
inappropriate, for example, a disability preventing petitioner from appearing.
Usually these are oral motions made at calendar call; however, if it is known
or anticipated in advance of calendar call that the petitioner or petitioner’s
attorney will not appear, a written motion to dismiss for lack of prosecution
should be prepared. See Exhibit 35.11.1–48.

The motion to dismiss for lack of prosecution should embody the following
essential facts: first, that there is no appearance on behalf of the petitioner;
second, if possible, that the respondent has informed petitioner of the consequences
of nonappearance; and third, that all or some (as the case may be) of the
material allegations of fact alleged in the petition have been denied in the
answer. The motion should then request that the court dismiss the case for
lack of prosecution and find in its order that there is a deficiency in tax
(and penalties, if applicable) due from the petitioner for the taxable year(s)
in the amounts shown in the statutory notice of deficiency or redetermined
in a computation filed with the court at that time or later with a written
motion. In nondeficiency cases, the court should be requested to sustain the
determination of the Commissioner and enter a decision ordering the appropriate
relief, such as a declaratory judgment in favor of the respondent or a decision
sustaining the Commissioner’s determination made in a spousal relief,
interest abatement, or collection due process case. In making this motion
it is essential that the court have a correct copy of the statutory notice
of deficiency or other determination letter, or recomputation of the deficiency
or liability upon which the dismissal order is to be based.

In case in which respondent bears the burden of proof or burden of production,
a motion for default judgment should be filed in lieu of a motion to dismiss
for failure to properly prosecute. The motion should request that the allegations
in the answer in support of respondent’s burden be deemed admitted and
that judgment be entered in favor of respondent. See Smith
v. Commissioner, 91 T.C. 1049 (1988). In a small tax case in which
no answer has been filed, the motion for default judgment should contain affirmative
allegations of fact on which respondent bears the burden of production, and
attach any documentary evidence, such as a certified transcript of account,
in support of such allegations. Guidance on the filing of motions for default
judgment in cases on which respondent bears the burden of proof or production
may be obtained from APJP, Branch 3.

A motion for pretrial conference under T.C. Rule 110 can be used for
the purpose of narrowing issues, producing records, stipulating facts, simplifying
the presentation of evidence or otherwise assisting the preparation for trial
or possible disposition of the case, in whole or in part, without trial. Such
a motion may be filed at any time, but normally will be filed only after the
case is at issue and before commencement of trial. For form and content, see Exhibit 35.11.1–53. This motion is rarely filed,
but may be considered in unusual cases when assistance of the court to resolve
an impasse in trial preparation may be necessary or desirable, and a scheduled
trial calendar or motions session is available at which to conduct such a
pretrial conference.

In most cases, other procedural devices obviate the need for formal
pretrial conferences under Rule 110. These include Rule 91(f) motions to compel
stipulation, discovery and sanctions motions, and the nonparty deposition
procedures available under the court’s rules. In addition, the use of
telephone conferences and informal requests at the calendar call for chambers
conferences will often assist in resolving difficulties in trial presentation
or in further settlement negotiations. The court, in its discretion, may on
its own motion order a pretrial conference in an attempt to encourage the
parties to settle the case or enter into a more comprehensive stipulation
of facts.

Where a pretrial conference is requested for assistance of the court
in stipulating facts or simplifying the presentation of evidence, it may be
desirable in complex or important cases to issue a subpoena requiring the
production of documents or records at the hearing, particularly from third
parties from whom discovery is restricted. This, of course, cannot be issued
until the court has ordered the hearing and specified the time and place.
In such situations, the Field attorney must be prepared to explain why the
normal discovery and third-party deposition rules were not sufficient to achieve
the objectives of a subpoena issued in connection with a pretrial conference.

If the Field attorney wishes to obtain a formal record of all positions
taken at the pretrial conference, it should be requested that the conference
be conducted on the record. This is a matter for the discretion of the reviewer,
since the presence of a reporter may affect the character of such a conference.
In any event, it is important that rulings made and agreements reached during
the pretrial conference should be formalized by a written stipulation, entry
of a written order, or oral statements upon the record.

In lieu of formal pretrial conferences, many Tax Court judges conduct
conference calls with the parties in order to resolve differences and promote
stipulation. Of course, these calls are usually not on the record, but may
result in encouraging settlement or proper preparation for trial without waiting
until the trial judge arrives for the trial session. The Field attorney and
reviewer are encouraged to consider this option as early as possible after
the trial notice has been issued.

When petitioner or counsel refuses to stipulate facts and evidence that
should not be in dispute, a motion to show cause why proposed facts and evidence
cannot be established should be considered. The T.C. Rule 91(f) motion cannot
be filed before the trial notice has been issued (usually at least 5 months
before the scheduled session in regular cases) nor less than 45 days before
the date set for call of the case on a trial calendar. Motions should never
be filed under this rule as an attempt to determine petitioner’s litigating
position. If the petition is so vague or ambiguous that respondent cannot
determine the issues contested, the discovery rules (T.C. Rules 70–75)
should be utilized. Consideration should always be given to the use of requests
for admission in lieu of the cumbersome procedures provided under T.C. Rule
91(f).

For a motion under T.C. Rule 91(f) to be used within the strict time
limitations imposed, it is necessary that stipulation of fact conferences
be held or sought early in the life of the case, particularly in cases that
can be identified as probable trials.

The facts sought to be accepted must be based on competent evidence.
The requirements of the rule concerning the setting forth of the facts sought
to be accepted as evidence and listing of the source and location of such
evidence should be fully met. All information of the type contained in the
sample motion in Exhibit 35.11.1–54, which might impel the court to
grant our motion in the event counsel for petitioner files an unsatisfactory
response or no response at all, should be set forth.

The content of the stipulation sought by use of this motion should be
carefully considered. The proposed stipulation filed with the motion to compel
should be comprehensive and satisfy the requirements of Rule 91 as to form
and content. The motion should request the court to issue an order designating
the facts and evidence set forth in the proposed stipulation deemed established
for purposes of the case.