Practice before the U.S. Tax Court

Practice before the U.S. Tax Court Presented to Southern AZ Chapter of Enrolled Agents in Tucson, AZ June 18, 2013 monthly meeting Overview of Presentation Admission to practice Why take the exam? Costs to take the exam What the US Tax Court is What the exam consists of How to study? What to study? Test taking skills Waiting for the exam results Then what? Presented by Tom Rex, CPA, USTCP 2 1

Admission to practice In order to practice before the U.S. Tax Court, you need to apply for admission, either as an: Attorney Non-attorney. As a non-attorney, you need to take and pass all 4 parts of the Tax Court exam! Once you are admitted, then you are considered counsel, just like an attorney. Presented by Tom Rex, CPA, USTCP 3 Why should you take the exam? What are the benefits? Presented by Tom Rex, CPA, USTCP 4 2

Reasons to take the Tax Court exam PERSONAL: Challenge! Ego Increased confidence level Etc. PROFESSIONAL: It s a win-win situation, whether you pass or not You will get a broad review of taxes You may fair better in IRS Appeals as a USTCP You will think differently about taxes, how you advise, prepare returns, deal with IRS Presented by Tom Rex, CPA, USTCP 5 Representation before IRS before Tax Court Tax prep is not representation EA s tens of thousands CPA s hundreds of thousands Attorneys Attorneys USTCP s hundreds! Presented by Tom Rex, CPA, USTCP 6 3

Application to take exam U.S. Tax Court press release around May Next exam will be in November 2014 Presented by Tom Rex, CPA, USTCP 7 Costs to take the exam Time and money Presented by Tom Rex, CPA, USTCP 8 4

Time and money Time At least a one year commitment, to study almost every day! Costs to take the exam (depends) Course materials Other materials Join ABA for discounts Travel Hotels In DC, stay close to US Tax Court Meals Presented by Tom Rex, CPA, USTCP 9 My Travel Las Vegas in May 2012 Phoenix Calendar Call in June 2012 You should go to as many as possible Las Vegas in July 2012 Wash. DC in Nov. 2012 Presented by Tom Rex, CPA, USTCP 10 5

What the US Tax Court is Know what you re getting into! Presented by Tom Rex, CPA, USTCP 11 Why go to Tax Court Don t have to pay while case is pending in Tax Court Essentially, buying time, but interest still accrues Other reasons Can be represented by an attorney or a USTCP. Both are considered counsel. Presented by Tom Rex, CPA, USTCP 12 6

Other Courts for tax cases Have to be an attorney to practice before: US District Courts Can be a jury trial US Court of Federal Claims Bankruptcy courts Why choose these courts? Variety of reasons, but have to pay up front for District Courts and Court of Federal Claims Presented by Tom Rex, CPA, USTCP 13 Tax Court Jurisdiction Notice of Deficiency Notice of Determination Concerning Collection Action Notice of Determination Concerning Your Request for Relief From Joint and Several Liability Notice of Determination of Worker Classification Other Presented by Tom Rex, CPA, USTCP 14 7

Tax Court players: Judge (no jury) Petitioner Counsel (if not pro se) Witnesses Lay Expert Respondent Counsel Witnesses Lay Expert Audience (not a participant) Presented by Tom Rex, CPA, USTCP 15 Self-representation by taxpayer Before IRS Before Tax Court Pro Se - Latin for "for himself". Presented by Tom Rex, CPA, USTCP 16 8

TP s Journey to Tax Court SNOD (condensed) File a tax return Substitute for return (SFR) Accepted as filed, or IRS Notices, Math and clerical errors, or CP2000 Audit Audit reconsideration Appeals within IRS SNOD ticket to Tax Court Sent to last known address Tax Court Presented by Tom Rex, CPA, USTCP 17 TP s Journey through Tax Court (condensed) Per the Tax Court process for Pro Se File a Petition to begin their case. Things that occur: Before the trial During the trial After the trial Presented by Tom Rex, CPA, USTCP 18 9

Starting a case Files a Petition to begin their case (must be timely filed) Decides to be represented or Pro Se Might qualify for tax clinic help Chooses: Regular or small tax case Place for trial Commissioner files their Answer Reply to the Answer Motions Presented by Tom Rex, CPA, USTCP 19 Before the Trial begins Pre trial Branerton Conference Formal discovery Settle before trial Prepare for trial Presented by Tom Rex, CPA, USTCP 20 10

During the Trial Present evidence to make your case, and tax law to back it up, following Tax Court procedures, in accordance with legal ethics. Evidence: Witnesses, examined and cross examined under oath Documents must be authenticated to be entered into evidence KRAP rule Petitioner usually has the Burden of Proof Presented by Tom Rex, CPA, USTCP 21 After the Trial File Briefs Opinion is issued by Tax Court, if bench opinion was not issued during trial session Post trial motions for regular cases: Reconsideration of an opinion or findings of fact Vacate or revise a decision Request for fees and costs if taxpayer wins Appeals for regular cases: US Courts of Appeals Settle up with IRS Presented by Tom Rex, CPA, USTCP 22 11

Journey to Tax Court - Other These all have their own Tax Court Rules: CDP hearings Innocent spouse Employee vs. independent contractor Whistle blower awards Other Presented by Tom Rex, CPA, USTCP 23 What the exam consists of Four parts Presented by Tom Rex, CPA, USTCP 24 12

4 Parts of Exam Need to pass all 4 parts! Tax Court Practice and Procedures (60 minutes) U.S. Taxes - substantive law (96 minutes) Federal Rules of Evidence (60 minutes) Legal Ethics (24 minutes) Presented by Tom Rex, CPA, USTCP 25 Tax Court Procedures Tax Court Rules of Practice and Procedure Based on Civil Rules (not tested) Presented by Tom Rex, CPA, USTCP 26 13

U.S. Taxes Income, Gift and Estate taxes Similar to what you studied for the EA Exam: Individuals Businesses Representation, Practices and Procedures Some Excise taxes Presented by Tom Rex, CPA, USTCP 27 Evidence FRE Federal Rules of Evidence Hearsay is the Biggie! In general, it s 3 years of Law School Evidence compressed into 1 year of study for a 1 hour Tax Court exam! Presented by Tom Rex, CPA, USTCP 28 14

Legal Ethics ABA - Model Rules of Professional Conduct 4 C s Competency Confidentiality and client privilege Conflict of interest Communication Similar to but not the same as: Circular 230 There are proposed regulations with some big changes AICPA s Statements on Standards for Tax Services (SSTSs) NAEA Code of Ethics and Rules of Professional Conduct Presented by Tom Rex, CPA, USTCP 29 US Tax Court Cases Tax Court tests on its own cases! TC Opinions Memorandums Summary opinions for small tax cases No precedent and can t cite Can t be appealed by either party Presented by Tom Rex, CPA, USTCP 30 15

Criminal Law Ignore this for the most part for Tax Court exam: Parts of legal ethics Parts of Federal Rules of Evidence (FRE) Criminal Procedures Substantive non-tax Law Presented by Tom Rex, CPA, USTCP 31 How to study? What to study? Presented by Tom Rex, CPA, USTCP 32 16

How to Study On your own Classroom Study groups E.g., law school students argue cases with their roommates Don t let what other say discourage you! You need supporters, not detractors! Presented by Tom Rex, CPA, USTCP 33 Tax Court Exam Prep Websites Gregory and Associates Sherrill Trovato Article in EA Journal Google for others, e.g. The Tax Law Institute (TLI) Presented by Tom Rex, CPA, USTCP 34 17

Gregory and Associates Monthly study hints and guides Yahoo Group Past exams and suggested answers By year and by topics Classes meet in May and July in Las Vegas, and in November in DC Evidence is taught by an attorney, and also by Sherrill Texts for all 4 parts Classroom handouts Pop quizzes in classes Presented by Tom Rex, CPA, USTCP 35 What to study Important to stay focused and study what you re tested on! Study where you re weak, but not only where you re weak. Presented by Tom Rex, CPA, USTCP 36 18

Study materials (use different media) Books: Mostly soft bound Electronic versions, e.g., Kindle Study Cards: Evidence CD s: Evidence Videos: U.S. Tax Court ABA Section of Taxation My Cousin Vinny (recommended by attorney who taught us Evidence) Presented by Tom Rex, CPA, USTCP 37 Websites USTC IRS Cornell Law FRE Federal Rules of Evidence ABA - Model Rules of Professional Conduct Presented by Tom Rex, CPA, USTCP 38 19

PPC's Five-Minute Tax Briefings Comes out daily in emails Scan for Tax Court cases and appeals of Tax Court cases Presented by Tom Rex, CPA, USTCP 39 Most Litigated Issues (NTA) Annual Report to Congress Summons Enforcement Under IRC 7602, 7604, and 7609 Accuracy-Related Penalty Under IRC 6662(B)(1) and (2) Appeals From Collection Due Process Hearings Under IRC 6320 and 6330 Trade or Business Expenses Under IRC 162 and Related Sections Gross Income Under IRC 61 and Related Sections Presented by Tom Rex, CPA, USTCP 40 20

Most Litigated Issues (continued) (NTA) Annual Report to Congress Failure to File Penalty Under IRC 6651(a)(1), Failure to Pay an Amount Shown As Tax on Return Under IRC 6651(a)(2), and Failure to Pay Estimated Tax Penalty Under IRC 6654 Civil Actions to Enforce Federal Tax Liens or to Subject Property to Payment of Tax Under IRC 7403 Frivolous Issues Penalty Under IRC 76673 and Related Appellate-Level Sanctions Relief From Joint and Several Liability Under IRC 6015 Limitations On Assessment Under IRC 65 Presented by Tom Rex, CPA, USTCP 41 Test taking skills Presented by Tom Rex, CPA, USTCP 42 21

Thinking like a lawyer IRAC Issues (F&C) Rules and factors (Law) Application of rules to issues Conclusion Settled law or not Appeals in taxpayer s circuit US Supreme Court for split circuits Example: 6 year statute of limitations for overstatement of basis Presented by Tom Rex, CPA, USTCP 43 Reading tax law like a judge! IRC Tax Treaties Regulations Mayo Foundation Supreme Court case (Deference) Congressional intent Court cases Appeals in taxpayer s Circuit Presented by Tom Rex, CPA, USTCP 44 22

Writing the US Tax Court Exam You are a number (not a name) on the exam You get exam blue books and scratch paper Time yourself Pace yourself Answer every question as best you can Usually don t go back and change answers Presented by Tom Rex, CPA, USTCP 45 Waiting for the exam results Be patient! Presented by Tom Rex, CPA, USTCP 46 23

Tax Court Exam results letters - sometime in April Passed Send in Practitioner's Oath Need 2 Tax Court Bar Sponsors Not Request graded exam Presented by Tom Rex, CPA, USTCP 47 Letter and Certificate - sometime in May Can now use USTCP designation on business cards, etc. Assigned a Tax Court Bar No. to use on all Tax Court filings as Counsel Register for eaccess: eservice efiling Presented by Tom Rex, CPA, USTCP 48 24

Then what? Should align with why you took the exam in the first place, but things change! Presented by Tom Rex, CPA, USTCP 49 25