On May 5, 2023, the U.S. Tax Court released Administrative Order 2023-02, announcing changes to the Tax Court’s electronic filing and case management system that will protect taxpayers’ right to be informed. Beginning August 1, 2023, the Tax Court’s electronic filing and case management system will make all newly filed posttrial briefs filed by government and non-government practitioners admitted to practice before the Tax Court and all newly filed amicus briefs filed pursuant to Rule 151.1 of the Tax Court Rules of Practice and Procedure in non-sealed cases available to the public remotely. This is a welcome step forward. With limited exceptions, all non-sealed documents are “public records open to the inspection of the public,” pursuant to IRC § 7461, and maintaining easy access to those public records is important for tax practitioners as well as non-practitioners. The Administrative Order limited the posting of briefs to those filed by “practitioners admitted to practice before the Court.” In fiscal year 2022, taxpayers petitioned the Tax Court without a practitioner representing them in about 90 percent of cases so that will limit the number of petitioner briefs available for electronic viewing. But this should not limit the number of briefs filed by the government available for remote viewing, as its attorneys are admitted to practice before the Tax Court.
The Tax Court’s electronic filing and case management system, Docket Access Within A Secure Online Network (DAWSON), was launched in December 2020. DAWSON offers some of the same features as Public Access to Court Electronic Records (PACER), the system that provides for dockets in other U.S. courts. For example, DAWSON and PACER provide an online option for parties to a case to file and process documents and manage cases. DAWSON also has a public search feature that allows the public to search for cases, orders, and opinions that are not sealed. However, unlike PACER, DAWSON does not allow nonparties (i.e., the public) online access to anything beyond opinions and orders.
The Tax Court provides several resources, including general information about filing a petition and answers to frequently asked questions. However, if a petitioner wants to research the pleadings in cases with similar issues, DAWSON does not provide remote access. Nonparties are only able to access non-sealed evidence, briefs, pleadings, and transcripts of proceedings by visiting the Tax Court building in Washington, D.C., during normal business hours or by calling the Tax Court records department and requesting items on a particular docket by telephone. However, the nonparty would need to provide information about the specific document, date, and docket number for the request. Without first seeing the docket, the nonparty may be unable to provide the necessary information to request the correct records by phone.
Tax Court Rule 27 requires certain redactions in filings with the Tax Court, such as: (1) taxpayer identification numbers, (2) dates of birth (just the year is permissible), (3) names of minor children, and (4) financial account numbers. The Tax Court limits access to pleadings on DAWSON because filings don’t always have the necessary redactions to comply with Rule 27, and the Tax Court seeks to prevent the inadvertent disclosure of confidential information. However, the Tax Court could expand access to non-sealed documents on dockets without violating privacy rights by 1) using redaction software that would automatically redact certain types of sensitive or protected information, even when inadvertently included in a filing, and 2) improving awareness and educational materials for unrepresented taxpayers to alert the Tax Court before filing documents with the Tax Court if they have a special need to redact information from publicly available filings.
Although I welcome this change and thank the Court for increased access and transparency, I renew the recommendation in my 2022 Annual Report to Congress, in which I encouraged the Tax Court to use DAWSON to provide full access to case dockets on par with what the PACER system provides for dockets in other U.S. courts. With Administrative Order 2023-02, the Tax Court is improving public access by making posttrial and amicus briefs available electronically through DAWSON; however, the Tax Court should provide similar electronic access to the pleadings in non-sealed cases. Taxpayers deserve access and transparency in our court system and tax administration regardless of where they are located.
The views expressed in this blog are solely those of the National Taxpayer Advocate. The National Taxpayer Advocate presents an independent taxpayer perspective that does not necessarily reflect the position of the IRS, the Treasury Department, or the Office of Management and Budget.