Tax Litigation 2

Bar Accredited Remote CLE Provider
All Jurisdictions

"If the matter concerns a tax deficiency, litigation and U.S. Tax Court then you should be talking to us"

Litigation Practice in the United States Tax Court

Teaching Faculty

IRS Approved Provider of CPE #RS7E4

Session 2 of 3

Remote Conference Dates

Saturday | June 4 | 2022
Saturday | June 11 | 2022
Saturday | June 18 | 2022

Trial Practice Discussions
3 P.M. to 6 P.M. EST


Former United States Tax Court Special Trial Judge
Member of the Bar United States Tax Court

Professor of Law | Distinguished Judicial Speaker Tax Law Institute | Fmr. Litigator Office of Chief Counsel | Admitted to Practice Supreme Court of the United States


Former United States Tax Court Judicial Law Clerk
Member of the Bar United States Tax Court

Professor of Law | Distinguished Author Tax Law Institute | Fmr. IRS Litigator Office of Chief Counsel | Admitted to Practice State of Indiana


​​​​​​​Stipulations for Trial for Trial & Discovery Procedures | Pretrial Procedures | Trial Procedures | Litigation of Partnership Items

With Senior Judge David Laro (deceased) of the U.S. Tax Court addresses Finding Resolution Through Concurrent Witnessing
YouTube Video Courtesy of U.S. Tax Court

NACVA Video Network

1 P.M.  - 2:30 P.M. EST


Michael Stuart
Professor Emeritus
 The Florida Bar Accredited CLE Provider | IRS Approved CPE Provider | U.S. Tax Court Trial Practice, Litigation & Appeals

Workshop Activities

Introduction to representation, strategies, writing trial documents, and electronic filing rules. Distinctions drawn between academic writing, legal reasoning, and judicial decision-making. Overview of Appeal of Tax Court cases to the Federal Circuit Court of Appeals course for the state in which the taxpayer-client resides at the time the Tax Court petition was filed. Discussions to distinguish between Tax Court opinions and Tax Court decisions, and why the terms are not interchangeable. Explanations as to why opinions are usually issued in advance of the decision or order disposing of the case, and why the parties may only take an appeal from that decision or order disposing of the case. 

6. Stipulations for Trial and Discovery Procedures
Part 1

Please take note...

These discussions will include an indepth look at the Branerton Conference from the perspective of the Tax Litigation Counsel for the Petitioner and the attorney who represents the Respondent - Commissioner of Internal Revenue Service.

A. Stipulations for Trial
6.01 Stipulations Requirements
  1. Form
  2. Binding Effect
  3. Rule 122 Cases
6.02 Motion to Compel Stipulation
  1. Form and Content
  2. Admission of Stipulations

B. Discovery Procedures
6.03 Scope of Discovery
  1. Informal Discovery Requirements
  2. Relevancy Standard
  3. Frequency of Use of Discovery Methods
  4. Use to Delay or Impede Trial Status Prohibited
  5. Obtaining Statement of Party
6.04 Discovery Period
6.05 Use of and Objections to Discovery
  1. In General
  2. Signature-Certification Requirements
6.06 Interrogatories
  1. Response
  2. Timing of Response
  3. Information Available by Inspection
6.07 Requests for Production
  1. Response
  2. Production of Documents by Foreign Taxpayers
  3. Examination by Transferees
6.08 Requests for Admission
  1. Form and Content
  2. Timing
  3. Response
  4. Signature-Certification Requirement
  5. Motion to Review
  6. Effect of Admissions
6.09 Tax Court Depositions - Overview
6.10 Consensual Discovery Depositions
  1. Nonparty Deponent
  2. Transcript
6.11 Compulsory Discovery Deposition
  1. Standard: Extraordinary Method of Discovery
  2. Procedure for Compulsory Depositions
  3. Objections
6.12 Evidentiary Depositions
  1. Depositions to Perpetuate Testimony
  2. Stipulation to Take Deposition
  3. Prepetition Evidentiary Deposition

Break | 10 minutes

    6. Stipulations for Trial and Discovery Procedures
    Part 2

    6.13 Depositions After Commencement of Trial
    6.14 Depositions Using Written Questions
    6.15 Other Deposition Types
    1. Videotaped Depositions
      1. Method
      2. Use at Trial
    2. Foreign Depositions
    6.16 General Depositions Rules and Procedures
    1. Depositions Subpoena
    2. Tender of Fees and Expenses
    3. Officer for Depositions
    4. Procedural Error and Irregularity Objectives
    5. Designation of Representative
    6. Exclusion of Witnesses
    7. Deposition Transcript
    8. Depostion Expenses
    9. Signing of Deposition
    6.17 Use of Deposition Testimony
    6.18 Supplemenation of Responses
    6.19 Discovery Sanctions
    1. Motion to Compel Discovery
    2. Motion to Compel Production
    3. Failure to Obey Discovery Order
    4. Sanctions for Failure to Admit
    5. Dismissal
    6.20 Protective Orders
    6.21 Defenses to Discovery
    1. Relevance
    2. Overbreadth and Burdensomeness
    3. Work Product
    4. Attorney-Client Privilege
    5. Government Privilege
    6. Informant's Privilege
    7. Impeachment Privilege
    6.22 Discovery from Experts
    1. Discovery of Information by Interrogatories
    2. Depositions of Experts
    3. Expert Witness Reports
    4. Discovery of Expert Witnesses Not Expected to Testify

    Reference Materials
    Form 6.1 Rule 91 Trial Stipulation
    Form 6.2 Motion for Decision Under Rule 122
    Form 6.3 Motion to Compel Stipulation
    Form 6.4 Branerton Letter from Respondent
    Form 6.5 Rule 70(c) Request for Cop of Own Statement
    Form 6.6 Rule 71 Interrogatories
    Form 6.7 Rule 72 Request for Production of Documents
    Form 6.8 Stipulation Consenting to Discovery Deposition
    Form 6.9 Rule 74(b) Notice of Deposition to Nonparty Witness (Individual)
    Form 6.10 Rule 74(b) Notice of Deposition to Nonparty Witness (Corporation)

    At this juncture in the program, trial simulations will begin with an acting presiding judge (Judge Dean) and acting IRS counsel (Professor Larson) for the respondent. Participants will be paired (attorney and USTCP applicants) taking on the role of Co-Tax Litigation Counsel for the Petitioner.

    7. Pretrial Procedures

    A. General Pretrial Practice
    7.01 Pretrial Conferences
    7.02 Large Case and Expedited Case Joint Motions
    1. Large Case Joint Motions
    2. Expedited Case Joint Motion

    B. Pretrial Procedural and Evidentiary Motions
    7.03 Pretrial Procedural and Evidentiary Motions -- In General
    7.04 Motion to Sever
    7.05 Motion to Consolidate
    7.06 Motion in Limine
    7.07 Motion to Seal the Record

    C. Settlement Procedures
    7.08 Settlement Practice -- In General
    1. Post-Petition Settlement
    2. Tax Court Involvement
    3. Test Case Procedures
    7.09 Appeals Office Settlement Jurisdiction
    7.10 District Court Settlement Jurisdiction
    7.11 Alternative Dispute Resolution
    1. Arbitration
    2. Mediation

    D. Setting the Case for Trial
    7.12 Tax Court Calendar
    1. Trial Status Reports
    2. Report Calendar
    3. Motion Calendars
    4. Trial Calendar
    7.13 Continuances
    1. Grounds for Continuance
    2. Timing

    Reference Materials
    Form 7.1 Request for Trial Status Report
    Form 7.2 Tax Court Standing Pretrial Order
    Form 7.3 Stipulation of Settlement
    Form 7.4 Decision
    8. Trial Proceedings

    8.01 Burden of Proof
    1. General Rule
    2. New Matters, Increases in Deficiency, and Affirmative Defenses
    3. Fraud
    4. Transferee Liability
    5. Accumulated  Earnings Tax
    6. Information Return Disputes
    8.02 Evidence
    1. Testimonial Evidence
    2. Interpreters
    3. Documentary Evidence
    4. Expert Witnesses
    5. Judicial Notice
    6. Foreign Laws
    7. Grand Jury Information
    8. Application of the Exclusionary Rule
    8.03 Trial Subpoenas
    1. In General
    2. Objections to and  Enforcement of Subpoenas
    8.04 Chronology of Trial
    1. Call of Trial Calendar
    2. Opening Statements
    3. Trial Stipulations and Other Documents
    4. Taxpayer's Evidence
    5. Commissioner's Evidence
    6. Trial Protocols
    7. Closing Argument
    8.05 Tax Court Briefs
    1. Timing and Order
    2. Service of Briefs
    3. Form and Content of Briefs
    4. Amicus Curiae and Supplemental Briefs
    5. New Issues
    8.06 Sanctions
    1. Failure to Appear
    2. Section 6673 Penalty
    3. Other Potential Sanctions

    Reference Materials
    Form 8.1 Rules Governing Conduct During Proceedings of the United States Tax Court (April 15, 1986)

      9. Litigation of Partnership Items

      9.01 Introduction
      1. Background
      2. Tax Equity and Fiscal Responsibility Tax Act of 1982 (TEFRA)
      9.02 Scope of TEFRA
      1. Partnerships
      2. Small Partnerships
      3. Large Partnerships
      4. S Corporations
      9.03 Classification of Items
      1. Partnership Item
      2. Affected Item
      3. Nonpartnership Item
      4. Computational Adjustments
      5. Classification of Items and Jurisdiction
      9.04 Consistent Treatment Rule
      1. Description of Rule and Exceptions
      2. Penalties and Consequences
      9.05 Classification of Partners
      1. Partner
      2. Tax Matters Partner
      3. Notice Partner and Notice Group
      4. 5-percent Group
      5. Indirect Partner
      6. Pass-Thru Partner
      9.06 Administrative Proceedings Under TEFRA
      1. Notice of Administrative Proceedings
      2. Notice of Final Partnership Administrative Adjustment (FPAA)
      3. Request for Administrative Adjustment (RAA)
      4. Statute of Limitations
      9.07 Litigation Under TEFRA
      1. FPAA Litigation
        1. Choice of Forum
        2. Filing
        3. Priority of Actions
        4. Deposit Requirements
        5. Appellate Review
      2. The Petition for Readjustment
        1. General Petition Requirements
        2. Ancillary Tax Court Jurisdiction
        3. Special Rules for Innocent Spouse Defense
      3. RAA Litigation
        1. Choice of Forum
        2. Filing Appellate Review
      9.08 Electing Large Partnership Procedures
      1. Deficiency Procedures
      2. Judicial Review of Notice of Partnership Adjustment
      3. Request of Administrative Adjustment
      4. Operational Rules


        Accredited CLE Provider
        The Florida Bar
        U.S. Tax Court
        Continuing Legal Education Services
        for United States Tax Court Trial Practice
        1717 N Street, NW, Ste. 1
        Washington DC 20036
        Telephone +1.800.737.6134

        Office Hours
        Mon - Fri: 09:00 AM - 05:00 PM