In Uncategorized on 05/22/2012 at 15:34

A new treatise on Tax Court law and practice has been written by Prof. Danshera Cords, of Albany Law School. I haven’t read the book, so I can neither review it nor recommend it, but I am glad that someone has written about the minefield that is Tax Court practice. Too many litigants and practitioners, even those with decades of litigation experience and a list of high-profile successes (cf. F. Lee Bailey, Esq., 2012 T.C. Mem. 96, filed 4/2/12), have taken some nasty falls there.

Now I’ve said more than once, this is not a political blog; I grind no axes here. But on a non-partisan note, I must say that the Tax Court system is broken and needs repair. Prof. Cords has taken a step, but there is much more ground to cover.

Far too often practitioners are unaware of the Byzantine, not to say labyrinthine, limitations on Tax Court jurisdiction, scattered in various IRC sections in a masterpiece of counterintuitive logic. Even employees of IRS misinform taxpayers, mistakenly sending them to Court of Federal Claims or United States District Court, where they encounter a Sargasso Sea of procedural doldrums until the SOL runs on their meritorious claims (cf. Murray S. Friedland, 2011 T.C. Mem. 90, filed 4/25/11).

Finally, and most importantly, any attorney who has been “admitted to practice before and is a member in good standing of the Bar of the Supreme Court of the United States, or of the highest or appropriate court of any State or of the District of Columbia, or any commonwealth, territory, or possession of the United States”, (Tax Court Rule 200(a)(2)) is eligible to be automatically admitted to practice before Tax Court. The attorney need show no proficiency in Federal practice (to say nothing of Tax Court practice), or even the vaguest acquaintance with the IRC.

All other applicants for admission (and IRC Section 7452 permits anyone to apply for admission) must take an immensely complex examination, the pass rate for which is well below that of any State’s bar examination. Its complexity and scope, as to the years for which questions were available, certainly outdid the Special Enrollment Examination, which I passed.

But when I applied to take the Tax Court admissions examination, after months of study, my application was rejected, Judge Whelan informing me that as an attorney I could not take the examination, but for payment of a modest fee I could be admitted.

Hence the number of pro se litigants before Tax Court. Attorneys are expensive; there is no meaningful competition, as all but the infinitesimally chosen few are precluded from appearing, notwithstanding the brave language of IRC Section 7452: “No qualified person shall be denied admission to practice before the Tax Court because of his failure to be a member of any profession or calling.” Yeah, right.

So Congress and Tax Court, I have no doubt that between the two of you there lies a solution to providing less expensive and more competent representation to Tax Court litigants.

  1. Being a USTCP I Agree with you, the test is much harder than any bar exam. I am an inactive attorney and no longer licensed to practice at the highest court in my state so I took the USTCP. The year I took the exam only 8 of 56 people passed the test. It was only four hours but timing was everything.
    I don’t see anywhere in your article, maybe I read it too fast, the name of the new treatise. Can you share the name and publisher?
    I enjoy getting your blogs daily, you sure are quick on the uptake. I have stopped blogging on tax court cases because I cannot get them done as quickly as you do.


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