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Keith Fogg & Caitlin Hird, Pro Se Precedent in the U.S. Tax Court: A Case for Amicus Briefs, Houston Bus. & Tax L. J. (forthcoming 2022).


Abstract: The United States Tax Court hears well over 90% of the federal tax cases litigated each year with only a small percentage of opinions coming out of district courts and the Court of Federal Claims. The Tax Court classifies its opinions as precedential or non-precedential based on the issues presented. Over 75% of Tax Court litigants file their petition pro se. Each year it classifies a handful of opinions as precedential in which the petitioner(s) is pro se. In almost all of these cases the Court creates binding precedent on the basis of a case in which only one side, the IRS, presents meaningful legal arguments thus turning the process leading to the decision from one based on the adversarial process to the inquisitorial process. While the Tax Court works hard to reach the right conclusion, it loses the benefit of legal argument on the side of the petitioner/taxpayer and potentially reaches a different conclusion than it might have reached had the taxpayer’s side of the argument been well developed. Tax Court opinions typically take several months or years after trial before the Court renders an opinion. This paper suggests that when the Tax Court decides to render a precedential opinion in a pro se case it pause its deliberations for a short period and appoint or solicit members of its bar, either in the low income taxpayer clinical community or other pro bono counsel, to allow the submission of an amicus on behalf of the position of the taxpayer. The paper points to practices in other courts that have developed a more formal approach to amicus briefs as models for the proposed practice. Adopting such a practice would not only benefit the individual litigant but all who follow with the same issue.