On August 27, 2021, the Tax Court issued a press released stating that it anticipates returning to in-person proceedings starting with the winter trial sessions for 2022. In the announcement, the Tax Court also states that it will continue to hold trials remotely where appropriate.
All of the Tax Court calendars scheduled for the Fall 2021 calendars are remote. Until the August 27 announcement it was unknown when Tax Court judges would begin holding in-person trials again. It was also unknown if the Tax Court would continue to offer remote proceedings as an option. In issuing Administrative Order 2021-1 the Tax Court terminated Administrative Order 2020-2 which replaced in-person proceedings with remote proceedings and set a path forward for post-pandemic trials at the Tax Court. By adopting a rule that allows for both in-person and remote proceedings, the Tax Court follows another Article 1 court, the Court of Veterans Appeals, and provides maximum flexibility for the parties and itself to conduct future proceedings.
The announcement creates some rules for requesting remote proceedings. The rules contemplate that starting with the Winter 2022 Tax Court calendars the default setting for a trial will return to in-person proceedings. Judges and trial clerks will start buying their plane tickets to the 73 cities where the court holds trials outside of D.C. While in-person proceedings return to the normal Tax Court setting, the announcement provides that either party can request a remote proceeding by filing a motion up to 31 days prior to the first day scheduled for the trial session on which the court sets the case.
The announcement provides that a petitioner could request a remote proceeding at the time of filing the petition or any time between that date and the 31st day before the trial calendar start date on which their case appears. Although not specifically stated, I assume respondent (the IRS) could request a remote proceeding at the time it answers the case or any time prior to the 31st date before the calendar. The Court included with the announcement a sample motion that the parties could use to make the request. It would seem that parties could start making the request now if they knew they wanted a remote proceeding.
Whether to grant the motion for a remote proceeding is at the judge’s discretion. The announcement doesn’t say which judge would grant the motion if the party makes the motion before assignment of the case. Typically, Tax Court cases remain unassigned until they appear on a calendar. Orders issued in unassigned cases usually come from the Chief Judge’s chambers. Once a case appears on a calendar, the judge assigned to that calendar takes control of the case. If the party waits for the assignment of a calendar to request a remote proceeding, the judge in charge of that calendar will make the decision whether to put the case for a remote proceeding.
If a case is removed to a remote proceeding, the court indicates that it will seek to place the case on a stand-alone remote trial session “that is at least 5 months away.” This sounds like a party seeking a remote proceeding after issuance of a calendar will receive a continuance of sorts. This may be why the court requires the motion be made 31 days in advance. Motions to continue made in the last 30 days before a trial session are presumed to be for purposes of delay.
The announcement does not make clear whether the trial judge assigned for the in-person calendar would be the same trial judge who would handle the remote calendar. Depending on how that works, it is possible that filing the motion could not only allow the party more time to get ready for trial but allow the party to obtain a new judge to try the case. Maybe that’s not such a big deal in the Tax Court as it might be in other courts. By and large the trial judge in the Tax Court is not very outcome determinative but there could be times when a petitioner or the respondent might want a different judge than the one assigned to the calendar. This could provide a path to that result if the judge in charge of the remote session is not the same as the judge at the in-person session.
The announcement does make clear that the presiding judge for a calendar not only makes the decision regarding whether to allow the remote proceeding when the motion is filed after the issuance of the calendar but also can decide whether to handle the remote trial themselves at an agreed upon time or put the case over to the remote calendar. In addition to the normal considerations regarding how much time a judge has invested in a case, I imagine the size of the trial location could also play a role in this decision. Small venues that typically have only one trial calendar per year do not normally have a full complement of 100 cases on a calendar. It may not make sense to create a virtual calendar for those locations that consists of only one or two cases and the presiding judge may default to retaining jurisdiction.
The remote trial sessions will all begin at 1:00 PM ET. This allows for the sessions to begin at the same time across the country and is a departure from the normal 10:00 AM starting time in the time zone where an in-person trial session is held. The parties in Hawaii might need to get up a little early under this system but the court has adopted this rule to reduce confusion.
The announcement states that the public will have access to remote proceedings. I expect the public would have the same type access it has to remote proceedings today. The court also indicates that it will continue to coordinate with low income tax clinics and local bar sponsored pro bono programs to provide assistance for petitioners who end up on a remote calendar. I expect the court will do that it much the same way it has done with remote calendars over the past year.
The court’s announcement will undoubtedly get Chief Counsel’s office thinking about the policies it wants to adopt regarding remote proceedings. When will it make a request for remote proceedings? When will it oppose remote proceedings? Sometimes for workload reasons it shifts cases from one office to another requiring it to send attorneys from one city to another at some expense. Will it request remote proceedings in those situations as a cost savings measure? Will it request remote proceedings even if the petitioner wants to conduct the trial in person? Will it object to motions made 31 days in advance of trial as a tactic to obtain a continuance? It will have lots to consider.
The announcement moves the Tax Court into a new phase. It now becomes a court that does not need to travel quite as much and can schedule cases remotely. Will the trial judge with only one case left on the North Dakota calendar exert some pressure on the parties to try the case remotely and save the judge two days of travel time? Will there be other factors that influence the court in granting or denying requests for remote proceeding? So far, the switch for remote or in person has been an on/off switch. The court was either in person or remote but not optional. It will be interesting to see how the parties and the court adapt to the optional world and where the Tax Court ends up 10 years from now.