In Uncategorized on 10/29/2018 at 18:01

I’ve commented recently about the quick toss Ch J Maurice B (“Mighty Mo”) Foley has accorded impecunious petitioners who fail to kick in the sixty bucks with their petitions. Today there’s another, John Daniel Martin III, Docket No. 20709-18, filed 10/29/18.

John Daniel filed 10/22/18, and gets tossed today for nonpayment.

Ch J Mighty Mo cites Section 7451.

And ever since the 1954 Code, that Section and its successors have said “(T)he Tax Court is authorized to impose a fee in an amount not in excess of $60 to be fixed by the Tax Court for the filing of any petition.”

The problem is what the pro se petitioner sees is not Section 7451.

On the Tax Court website, the instructions for the Simplified Petition (Form 2) state: “To help ensure that your case is properly processed, please enclose the following items when you mail your petition to the Tax Court:

“4. The $60 filing fee, payable by check, money order, or other draft, to the “Clerk, United States Tax Court”; or, if applicable, the fee waiver form.”

That’s it. The last thing on the list is the fee payment or waiver application.

But if a letter, or any paper at all, has routinely been treated as a defective petition, or even a money order without anything else has been deemed sufficient to commence a case (see my blogpost “Show Me The Money,” 11/13/13), why isn’t the filing fee or waiver app in first place on the list, in CAPITAL LETTERS, with a warning that, however meritorious the claim and however well-pleaded the petition, it’ll get tossed if you don’t put in one or the other from the getgo?

But wait, there’s more.

The Form Application for Waiver of Filing Fee can be filed separately from the petition. It need not be simultaneously filed. So how if a petitioner files, but has to gather information for a meritorious and complete waiver application? There’s no place in the form of petition to make such a request.

Before anyone throws Rule 20(d) at me, which mandates payment of filing fee simultaneously with the filing of the petition, the second sentence thereof says the Court may waive the fee “if the petitioner establishes to the satisfaction of the Court by an affidavit or a declaration containing specific financial information the inability to make such payment.”

Well, when does the petitioner get to seek a waiver, if the petition gets tossed a week after it’s filed?

This is not an attack on Ch Judge Mighty Mo, but rather an example of how the system gets out of synch with reality.

The forms need revising: if the rules are “pay up, waive or go home,” fine, I’ve no argument. Just let’s have the forms warn the pro se (or even counsel) what the rules are.

If, once warned, the petitioners fail to read and heed, they’ve only themselves to bemoan. And the lackadaisical or recalcitrant can be freely tossed.


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