4.5 Drafting the Petition

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).