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MSP #20: Pre-Trial Settlements in the U.S. Tax Court

Insufficient Access to Available Pro Bono Assistance Resources Impedes Unrepresented Taxpayers from Reaching a Pre-trial Settlement and Achieving a Favorable Outcome.

TAS Recommendations and IRS Responses

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1.

TAS RECOMMENDATION #20-1

Adopt alternative methods for communicating with unrepresented Tax Court petitioners, including working with the Tax Court to modify the petition form to allow taxpayers to consent to direct contacts from local LITCs and TAS.

IRS RESPONSE TO RECOMMENDATION: Our attorneys and paralegals effectively communicate with pro se petitioners through regular pre-trial discussions or during Settlement/Pro Bono Days. We use all means of communication, including telephone, mail, fax, Virtual Service Delivery, and WebEx. Email has not been adopted as an alternate form of communication since it is prohibited for security and confidentiality reasons. IRM 1.10.3.2.1(7).

Unrepresented taxpayers receive LITC contact information with the notice of deficiency, the Answer, and the Branerton letter, as well as when trial-related documents, such as the Stipulation of Facts and Pre-Trial Memorandum, are sent to petitioners. Counsel has suggested to the Tax Court that it consider modifying the standard petition form to allow petitioners to consent to direct contacts  from local LITC attorneys. We do not think that it would be appropriate to amend the form petition to provide direct contact for Taxpayer Advocate Service (TAS). While TAS serves a valuable purpose outside of litigation, TAS should not be involved in the matter once a petition has been filed. See IRM 13.1.10.10.1(4) (“TAS employees shall not provide any information or guidance to the taxpayer or the taxpayer’s counsel (or other authorized representative) concerning the pending litigation”). Based on past experience with Settlement/Pro Bono Day events, Counsel employees, LITC representatives, pro bono volunteer attorneys have demonstrated a commitment to making these events successful and providing taxpayers an opportunity to fully resolve their docketed cases.

Moreover, as part of the partnership with the ABA, Counsel is exploring efforts to further improve the success of Settlement/Pro Bono Days. We continue to look at the data we have accumulated of past successful Settlement/Pro Bono Days in an effort to increase taxpayer participation and optimize successful outcomes for taxpayers.

CORRECTIVE ACTION: N/A

TAS RESPONSE: The National Taxpayer Advocate commends Counsel’s efforts to use multiple communication methods to communicate with unrepresented Tax Court petitioners and urging the Tax Court to consider modifying the standard petition form to allow petitioners to consent to direct contacts from local LITC attorneys. The National Taxpayer Advocate acknowledges that TAS should not intervene in a matter petitioned for Tax Court review, however, inviting TAS to participate in Settlement/Pro Bono Day events provides additional opportunities for holistic relief for taxpayers with issues before the court to address issues relating to tax years not before the court in a face-to-face environment.

ADOPTED, PARTIALLY ADOPTED or NOT ADOPTED: Adopted

OPEN or CLOSED: Closed

DUE DATE FOR ACTION (if left open): N/A

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2.

TAS RECOMMENDATION #20-2

Hold more events to encourage pre-trial resolution in easily accessible but private locations and schedule the events outside of regular business hours as necessary.

IRS RESPONSE TO RECOMMENDATION: ​Counsel agrees that pre-trial resolution should be encouraged and strives to reach such a resolution in all appropriate cases. For example, our attorneys and paralegals are encouraged to reach out to unrepresented taxpayers even before the Answer is filed in an effort to resolve those cases as early as possible.

As noted, Counsel is committed to increasing the number and effectiveness of Settlement/Pro Bono Days this fiscal year and in the future. To ensure these events reach a maximum number of unrepresented petitioners, we understand they must be at a convenient location and time and private, and petitioners must feel comfortable participating. We have not seen any difference in results between the use of government or non-government space and many of our offices are in commercial buildings. Counsel does schedule events on weekday evenings and on Saturdays, which are staffed by volunteer Counsel and IRS employees. There are generally far more employee volunteers present than are needed to work with the small number of petitioners who attend. Through our partnership with LITCs and the ABA we will continue to explore ways of improving participation, including through the use of technology (such as WebEx) at the request and convenience of unrepresented taxpayers.

CORRECTIVE ACTION: N/A

TAS RESPONSE: The National Taxpayer Advocate commends Counsel’s efforts to hold more Settlement/Pro Bono Day events and to recruit volunteers to allow the events to be held outside of normal business hours. The National Taxpayer Advocate also recognizes the value of support from IRS leadership for this program. Commissioner Rettig’s in-person attendance at a recent settlement day in Washington, D.C., received media coverage and helped to increase public awareness of Settlement/Pro Bono Days. The National Taxpayer Advocate recommends that Counsel continue to pursue new methods for raising awareness to increase taxpayer attendance at the events.

ADOPTED, PARTIALLY ADOPTED or NOT ADOPTED: Adopted

OPEN or CLOSED: Closed

DUE DATE FOR ACTION (if left open): N/A

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3.

TAS RECOMMENDATION #20-3

Provide staffing at Pro Bono Days and other pre-trial resolution events that can provide interpreting services.

IRS RESPONSE TO RECOMMENDATION: Counsel is sensitive to the fact that some unrepresented taxpayers may need or benefit from the presence of a translator. Counsel attorneys have access to the Lionbridge telephonic interpreter service, which provides interpreter services if needed during Settlement/Pro Bono Days. Additionally, SB/SE Division Counsel maintains a list of employees who are fluent in a variety of languages and dialects and who can be contacted if translation services are needed. We have found these options to be adequate.

CORRECTIVE ACTION: N/A

TAS RESPONSE: The National Taxpayer Advocate commends Counsel’s acknowledgement of the need for interpretation  services during Settlement/Pro Bono Day events. Over the phone interpreters may be satisfactory, however, if Counsel is aware in advance of an event that potential attendees live in non-English speaking communities, Counsel should seek out the assistance of local organizations that can provide in-person translation.

ADOPTED, PARTIALLY ADOPTED or NOT ADOPTED: Partially Adopted

OPEN or CLOSED: Closed

DUE DATE FOR ACTION (if left open): N/A

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4.

TAS RECOMMENDATION #20-4

Develop one-stop resolution options for pro se petitioners at Pro Bono Days and other pre-trial resolution events to include representatives from Appeals, Collection, and TAS, along with inviting local LITC or Bar Association volunteers or staff and assigning counsel attorneys from the same locality.

IRS RESPONSE TO RECOMMENDATION: ​Given that the cases at issue are docketed in the Tax Court, Settlement/Pro Bono Days are organized and staffed by Chief Counsel with the specific goal of resolving pending cases early and efficiently. These events usually include IRS employees from Appeals, Examination, and Collection, as appropriate, to provide taxpayers a one-stop resolution in their docketed case. The insertion of non-docketed tax years in the Settlement/Pro Bono Days run by Counsel may have the opposite result of thwarting resolution of the docketed case efficiently and would not be in the best interest of the parties. It would be more effective for taxpayers to resolve their administrative issues using the IRS’s existing processes. Indeed, Settlement/Pro Bono Days have contributed to the resolution of petitioners’ other tax problems since some LITCs and Pro Bono attorneys continue their representation to resolve problems administratively.

TAS can help facilitate successful Settlement/Pro Bono Days by encouraging LITCs and Pro Bono programs to work together with Counsel to organize, host, and learn from these events. However, TAS should not participate in matters relating to litigation, including Settlement/Pro Bono Days. Once a taxpayer becomes involved in litigation with the government, TAS employees have no jurisdiction over the issue(s) involved in the litigation. I.R.C. § 7803(b); IRM 13.1.10.10.1(4). Counsel has sporadically organized “Problem Solving Days,” providing a “one-stop shop” approach for taxpayers with various tax issues, but these events are typically not focused on cases pending in the Tax Court. Lastly, Appeals and Chief Counsel leadership meet regularly with LITC representatives to get their feedback and learn how we can improve the case resolution process for all taxpayers.

CORRECTIVE ACTION: N/A

TAS RESPONSE: Counsel acknowledges that some LITCs and Pro Bono attorneys continue their representation beyond Settlement/Pro Bono Days to help resolve the petitioners’ other tax problems. Given the unique opportunity to seamlessly communicate with employees from Appeals, Examination, and Collection, the National Taxpayer Advocate maintains that Counsel should encourage taxpayers attending a Settlement/Pro Bono Day event to resolve as many outstanding issues as possible, and not limit assistance to the tax periods addressed in the Tax Court petition.

ADOPTED, PARTIALLY ADOPTED or NOT ADOPTED: Not Adopted

OPEN or CLOSED: Closed

DUE DATE FOR ACTION (if left open): N/A

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