It is not difficult to file a Tax Court petition. The attorney only need to state the issue and plead the bare minimum of facts. If the attorney is not yet admitted to practice before the Tax Court and enrolled on the case or there is insufficient time to investigate the merits of the client’s case, the attorney can help the client file a pro se petition. This will preserve the client’s right to have the issue heard by the Tax Court, and the attorney can enroll later. Check the current rules at the Tax Court’s webpage, www.ustaxcourt.gov. The necessary forms can also be found on the website. 

The initial filing requirements are an original of:

• Petition1
• Statement of Taxpayer Identification Number2
• Notice of Deficiency
• Designation of Place of Trial (Tax Court is held in most major cities, including New Orleans and Shreveport for about 1 to 2 weeks every year)
• Application for Waiver of Filing Fee and Affidavit (or check for $60)3

Mail the signed original by certified mail to Clerk, U.S. Tax Court, 400 Second St., NW, Washington, D.C. 20217.

The filing fee is $60, but this may be waived for indigents who submit the fee waiver form.4

• 1Only the signed original has to be filed. Tax Court Rule 35(e).
• 2Tax Court Rule 20(b). The application form for waiver of filing fees may be found in the forms section of www.ustaxcourt.gov.
• 3Check Tax Court Rule 23. Motions and pleadings (other than the petition) generally require 4 copies in addition to the original.
• 4I.R.C. § 7451; Tax Court Rules 20(b), 173(a)(2).

Review of cases involving a Notice of Deficiency or the determination of innocent spouse relief is de novo.1 Review of collection due process appeals is for abuse of discretion.2

• 1Porter v. Comm’r, 132 T.C. 203 (2009) (extending de novo review to § 6015(f) equitable innocent spouse relief claims).
• 2Murphy v. Comm’r, 125 T.C. 301, 307 (2005) (applying abuse of discretion standard unless underlying tax liability is at issue).

To contest a Notice of Deficiency or the determination of Innocent Spouse Relief, the Tax Court petition generally must be filed within 90 days of the mailing date of the Notice.1 The deadline is 150 days if the Notice of Deficiency is addressed to someone living outside of the United States. The Notice of Deficiency must tell the taxpayer the last date to file a petition with the Tax Court. That date will be deemed to be timely (even if it is wrong). This deadline is considered jurisdictional, meaning that the Tax Court cannot hear an untimely filed case, which can be dismissed by either party or by the court sua sponte.

Tax Court petitions to review collection due process appeal decisions must be filed within 30 days of the Notice of Determination.2 This deadline has always been considered jurisdictional, but the U.S. Supreme Court’s recent decision in Boechler, P.C v. Commissioner of Internal Revenue has upended that rule.3 In Boechler, the taxpayer’s petition was dismissed for missing the 30-day deadline following a decision from a collection due process appeal.4 The Tax Court dismissed the case sua sponte, reasoning that the missed deadline deprived the court of jurisdiction. The taxpayer (a law firm) appealed, and the Eighth Circuit affirmed.5  The Supreme Court, however, stated that Congress had not clearly mandated that this deadline be jurisdictional, and thus, it could not be treated as such.6 A motion to dismiss the untimely petition must be filed by the IRS, and the taxpayer must have an opportunity to respond. This opens the door for possible “equitable tolling” arguments, in which the taxpayer can argue that some “extraordinary circumstance” prevented the taxpayer from timely filing the petition.7  

The types of arguments that will be accepted for equitable tolling remain to be seen, as does the question of whether the 90-day deadline and other Tax Court deadlines are also nonjurisdictional. These questions are expected to generate much litigation in the future. 

A taxpayer who received the deficiency notice while a bankruptcy action was pending or who filed a bankruptcy petition during the 90-day delay for filing a petition in Tax Court may have additional time. In such cases, the time for filing the Tax Court petition is suspended until 60 days after the bankruptcy discharge.8 A bankruptcy debtor cannot file a Tax Court petition unless the bankruptcy stay is lifted by the bankruptcy court.9 In such cases, the bankruptcy may control whether a bankruptcy court or the Tax Court decides the tax liability issue. A Tax Court deadline may also be extended if the taxpayer was out of the country when the Notice of Deficiency was issued.

A Tax Court petition is considered timely if it is put in the mail within the appeal period. This means that you should use certified or registered mail and secure an official postmark if you are relying on a mailing date to meet the deadline. Make sure that the Post Office gives you a correct postmark date. The petition in a deficiency or innocent spouse relief case must be received within 90 days or mailed in a properly addressed envelope with an official U.S. Post Office postmark or by Federal Express or UPS10 within the 90-day window.11 If the IRS disputes the timeliness of the appeal, you must be able to prove the mailing date. Currently, the Tax Court does not allow electronic or fax filing of the initial petition.

Don’t use privately metered mail to file Tax Court petitions. The mailbox rule does not apply to this delivery method, and so to be timely, the petition must be actually received by the Tax Court by the deadline. If it is not received within that time, it will be difficult to prove that the petition was timely mailed.12

If a deadline for Tax Court review is missed, the IRS can begin collection actions that may include levies, liens, and seizures. The taxpayer’s only judicial remedy is to pay the tax and sue for refund—usually in federal district court. This is not a realistic option for most low-income clients.13 If the deadline has been missed, you may want to try an audit reconsideration14 or an Offer in Compromise to eliminate the taxpayer’s liability if there is “doubt as to liability.”15

• 1I.R.C. §§ 6213, 6015(e). The deadline is 90 days even if the taxpayer didn’t receive notice until many days after the notice date. A notice properly mailed to the taxpayer at the taxpayer’s “last known address” is valid even if not received. United States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976). For judicial review of a denial of innocent spouse relief or separate liability election, a taxpayer may file a petition at any time after the first of (a) 6 months from filing the request for innocent spouse relief or filing a return with a separate liability election; or (b) 90 days from the date of a Notice of Deficiency. I.R.C. § 6015 (e)(1)(A).
• 2I.R.C. § 6330(d); McCune v. Comm’r, 115 T.C. 114 (2000).
• 3142 S. Ct. 1493 (2022).
• 4Id. at 1497.
• 5Id.
• 6Id. at 1498.
• 7See id. at 1500–01.
• 8I.R.C. § 6213 (f)(1); Zimmerman v. Comm’r, 105 T.C. 220 (1995).
• 911 U.S.C. § 362(a)(8); Halpern v. Comm’r, 96 T.C. 895 (1991).
• 10If you use these companies, make sure that you use the type of delivery recognized by the IRS. Gibson v. Comm’r, 264 F. App’x 760 (10th Cir. 2008) (holding that petition was untimely because UPS store sent the petition by US mail rather than by the approved UPS delivery service).
• 11I.R.C. § 7502(a).
• 12See 26 C.F.R. § 301.7502-1(c)(1)(iii)(b).
• 13Note, however, the possibility of paying the tax may be meaningful in Earned Income Credit cases because the taxpayer often does not owe any tax even without the EIC. Instead of demanding payment of an outstanding tax bill, the IRS has denied the EIC before ever paying it to the taxpayer.
• 14A taxpayer whose claim is disallowed in an audit reconsideration may appeal to an IRS appeals officer.
• 15See 26 C.F.R. § 301.7122.

The client must decide whether to elect to proceed in Tax Court under the Small Tax Case or Regular Tax Case procedures.

Election of the Small Tax Case procedure (available for cases under $50,000 per year) waives the right to appeal the judge’s decision. However, most tax cases are decided on factual issues such that the right of appeal does not make much difference. On the other hand, this procedure may allow the matter to reach trial more quickly and may be more convenient as Small Tax Cases are heard in more cities than are Regular Tax Cases. In Louisiana, Regular Tax Cases are only heard in New Orleans whereas Small Tax Cases are heard both in New Orleans and Shreveport.

Interest does run on taxes while the case is pending in Tax Court, which may counsel in favor of a procedure that shortens the time to trial. However, 90% of all cases are settled without a trial; most are referred back to the IRS Appeals Officer for review and possible settlement.

The form and contents of the petition in a Regular Tax case are specified in the Tax Court Rules.1

On the Tax Court website, there is a Simplified Tax Court petition that can be used for both Regular and Small Tax Cases.2 Form 1 in the appendix of the Tax Court Rules can be used and adapted for more complex deficiency cases.3 The form to request a waiver of the filing fee is also available at the website.

The petition should clearly state every issue the taxpayer intends to litigate.4 Because the Tax Court reviews collection due process appeals for abuse of discretion, a petition to review a collection due process determination should specify each error committed by the IRS.5 The petition is an opportunity to provide the judge with a structured blueprint of your case. Amendment of tax court petitions is controlled by Rule 41.

There are few pleading traps in Tax Court procedure. However, to avoid waiver, affirmative defenses, such as an innocent spouse defense or the statute of limitations, should be pleaded in the petition.6 If the taxpayer lives in a community property state and seeks § 66(c) innocent spouse relief, pleading this claim as an affirmative defense to a deficiency may be essential to secure Tax Court jurisdiction.7

• 1For Regular Tax Cases, see Rules 23 and 34 and Form 1 of Appendix I; for Small Tax Cases, see Rules 173-79 and Form 2 of Appendix I.
• 2U.S. Tax Ct.
• 3Tax Court Rule 34(b).
• 4Tax Court Rule 34(b)(4).
• 5Tax Court Rule 331. By comparison, review of tax liability, innocent spouse relief, and employment status is de novo. The pleading rules for these de novo review cases are more liberal. See, e.g., Tax Court Rules 31–32, 320–21.
• 6Charlton v. Comm’r., T.C. Memo 1991-285; see also Butler v. Comm’r, 114 T.C. 276 (2000).
• 711 U.S.C. § 362(a)(8); Halpern v. Comm’r, 96 T.C. 895 (1991).

Get the Tax Court petition filed to protect the taxpayer’s rights. Any IRS collection efforts will be put on hold while a petition is pending.

If you don’t have time to draft a detailed Tax Court petition, simply use Tax Court Form 2 (the Simplified Form), which is designed for use by pro se litigants. All the required forms are included in one fillable Adobe document.1  Simply answer the questions on the form and check the appropriate boxes. This Simplified Petition can be quickly completed by someone with no knowledge of Tax Court procedures or tax law.

Have the client file pro se if you do not have time to investigate the merits of the appeal. An attorney can easily enroll later if needed. Once you are enrolled on a Tax Court case, however, it can be difficult to withdraw. Thus, it is advisable to know the merits of the case and have any needed evidence in hand before enrolling. If helping clients file pro se, make sure that they understand that all notices about the case will go only to them and they will need to contact you about these notices until you are able to enroll. Since 2020, the Tax Court has allowed attorneys to file “Limited Entries of Appearance” in which the attorney’s role in the case is limited to certain issues or tasks.

• 1This form can be found on the Tax Court’s website.

About 90% of the cases are settled without trial. If the taxpayer didn’t appeal before, the IRS Appeals Office will consider the case.1  Cases are usually at the Appeals Office for about 6 months. The taxpayer or enrolled attorney will be contacted by the IRS Appeals Officer. You should participate in the Appeals Office conference, which usually takes place by telephone. Most cases are settled with an IRS Appeals Officer. If settlement is not reached with the Appeals Officer, local IRS District Counsel will also work to settle the case. If a settlement is reached with the Appeals Office or District Counsel, the District Counsel will prepare a Stipulated Tax Court Decision for signature by all parties and the judge.

If the parties are not able to reach a settlement, the Tax Court will set the case for trial at the next Tax Court Calendar Call in your location. The parties will receive a Pre-Trial Order when a case is set for a Calendar Call, usually about 2 months before the date. The Calendar Call is a day when all the cases set for trial in a particular location are called and all parties must be present. The date and time for trial will be set by the judge, usually within that week. During the COVID-19 pandemic, the Tax Court switched to virtual hearings using Zoom. The court now allows parties to participate in trials and hearings in person, but they can also agree to a virtual hearing by submitting a request to the Court; agreement of all parties is required for a virtual hearing.

• 1Rev. Proc. 87-24, 1987-22 I.R.B. 23.

Tax Court proceedings have some notable differences from civil litigation, particularly the requirements to stipulate to the greatest extent possible and to engage in informal discovery before initiating formal discovery. Also, evidentiary rules are relaxed for Small Tax Cases.

The Pre-Trial Order requires you to prepare written stipulations and to exchange witness lists and documents at least 15 days before trial. Tax Court Rule 91 mandates that the parties stipulate to the fullest extent that complete or qualified agreement can be fairly reached. This rule is mandatory, not aspirational. Failure to comply with stipulation, disclosure, and consultation rules can result in dismissal of the petition for lack of prosecution.1  Work cooperatively with the IRS attorney, and document your efforts to stipulate. If you need to subpoena documents or a potentially unfriendly witness (for example, an employer), this should be done as soon as you become aware of the Calendar Call date.

Normally, discovery by the taxpayer is unnecessary. However, if you need discovery, you should proceed promptly with consultation and discovery given tight Tax Court deadlines. Under Branerton Corp. v. Commissioner, the parties should make reasonable informal efforts to obtain information voluntarily before seeking formal discovery.2

• 1Raquet v. Comm’r, T.C. Memo 1996-279.
• 261 T.C. 691 (1974); see also Tax Court Rule 70(a).

If a taxpayer has missed the deadline to file a Tax Court petition, the most practical remedy is an “Audit Reconsideration”.1 Audit Reconsideration is an administrative remedy handled by the IRS. Audit Reconsideration is available to reevaluate a prior audit where the taxpayer disagrees with the original determination, to contest a “Substitute for Return” determination by filing an original delinquent return, or to contest the denial of a tax credit as a result of an examination.2

To request an Audit Reconsideration, the taxpayer must have filed a tax return for which the assessment remains unpaid or the IRS has reversed tax credits that the taxpayer disputes.3 A taxpayer who has paid the tax should file a formal claim by using Form 1040X. The taxpayer will also need to submit new evidence that has not been previously reviewed by the IRS. The drawback to Audit Reconsideration is that the IRS has the discretion to continue collection efforts while the Audit Reconsideration is being processed. The process may take 6 to 8 months. So, your client may end up having to make installment payments even while arguing that there is no liability. If Audit Reconsideration is successful, these payments would be refunded to the taxpayer. The IRS has the discretion to stop collections during the processing of an Audit Reconsideration, so an attorney should always request that collections be stopped. If you can submit financial information that shows that collection efforts would place an undue hardship on the taxpayer, your chances of getting this relief will be much greater. 

The IRS does not have a form for Audit Reconsideration requests. Audit Reconsideration may be requested by a Form 1040X or letter. A Form 1040X is an amended tax return. Some IRS offices request both a Form 1040X and a cover letter for an Audit Reconsideration. If a Form 1040X is used, state the request for Audit Reconsideration in the cover letter.

The letter requesting Audit Reconsideration should include:

• Taxpayer’s name, Social Security Number, and tax year at issue
• Clear statement of issues and adjustments disputed
• Relief or action desired
• History of the prior audit (Attach original audit report, Form 4549)
• Additional information not considered during the original audit

Because the IRS considers disputed issues issue-by-issue, attach new documentation on each disputed issue. The request for Audit Reconsideration should be filed with the IRS Service Center where the taxpayer’s return was filed.4

In a partially paid assessment, be careful not to miss the 3-year time limit for refund claims. The Taxpayer Advocate Service can help expedite an Audit Reconsideration.5 If a case is accepted for Audit Reconsideration, and the taxpayer’s request is disallowed in full or part, the taxpayer may request an appeal.6

• 1See I.R.M. 4.13.1.2–.3, .7; IRS Pub. 3598.
• 2Thus, audit reconsideration will often be available to review the correctness of an Earned Income Credit denial.
• 3I.R.M. 4.13.1.4.
• 4IRS Pub. 3598.
• 5I.R.M. 4.13.1.5.
• 6I.R.M. 4.13.6.1.