Posted by: Taxlitigator | July 28, 2017

Do Not Overlook Tax Court Designated Orders by JONATHAN KALINSKI

Every lawyer should leave no stone unturned when it comes to representing their client. Advantages, like your car keys, can be found in places you never think to look.  The Tax Court issues three types of opinions, Division or TC opinions, Memorandum opinions, and Summary opinions.  Division opinions have precedential value and tend to cover issues of first impression.  Memorandum opinions are technically non-binding, but are frequently cited.  Summary opinions are for small tax cases and have no precedential value.  All representatives know how to search for cases and the value favorable case law has, especially if there is a Division opinion supporting your position.

These aren’t the only places to find possible published advantages. The Tax Court probably issues over a hundred orders every day, most of which have no relevance outside of the case it applies to.  Judges, however, can issue a Designated Order, that the judge believes might be of wider interest.  Designated orders will be posted to the Tax Court’s website each day, and all orders after June 17, 2011 are searchable.  The individual judge who issues the order has the discretion as to whether the order is designated.  Designated orders can cover a wide variety of topics such as summary judgment and other motions.  Under Tax Court Rule 50(f), orders are not to be treated as precedent.  As one recent designated order shows, however, they can be immensely helpful.  Do not overlook them.

On July 20, 2017, Judge Gustafson issued an order in Vallee v. Commissioner, Docket No. 13513-16W, a whistleblower case.[i]  In the order, Judge Gustafson tells the parties that in preparing their response and reply, respectively, to a motion to compel, they may wish to reflect on “non-precedential orders” issued in another whistleblower case.  Judge Gustafson highlights that the orders are not precedential, and that the Court doesn’t expect the parties to cite them, distinguish them, or rely of them, but states that orders, “May be helpful to the parties in showing the undersigned judge’s thinking about this area.  The parties are invited to correct that thinking where they think it may be in error.”

As an attorney, you don’t always get this type of explicit direction from a Judge telling you he thinks prior orders may be important. Searching for relevant orders can let you know what the judge is thinking, which is worth its weight in gold.  Most cases will settle before going to trial and requiring an opinion, but before settling the Court may have issued a detailed order giving you useful information.  Failing to search orders might result in failing to gain your client the advantage they need.

Jonathan Kalinski specializes in both civil and criminal tax controversies as well as sensitive tax matters including disclosures of previously undeclared interests in foreign financial accounts and assets and provides tax advice to taxpayers and their advisors throughout the world.  He handles both Federal and state tax matters involving individuals, corporations, partnerships, limited liability companies, and trusts and estates.

Mr. Kalinski has considerable experience handling complex civil tax examinations, administrative appeals, and tax collection matters.  Prior to joining the firm, he served as a trial attorney with the IRS Office of Chief Counsel litigating Tax Court cases and advising Revenue Agents and Revenue Officers on a variety of complex tax matters.  Jonathan Kalinski also previously served as an Attorney-Adviser to the Honorable Juan F. Vasquez of the United States Tax Court.

[i] The order can be found at https://www.ustaxcourt.gov/InternetOrders/DocumentViewer.aspx?IndexSearchableOrdersID=234317


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