I have complained on several occasions about the fact that the Tax Court does not make documents available electronically. If you want to read my complaints look here and here. Complaints aside, I thought it might be useful to describe in detail the process of getting documents from the Tax Court for those who are interested but have never done it. Think of this post as a YouTube video explaining how to do something, only without the video.
After a hiatus of a year or two, I have been ordering documents regularly the past few weeks looking at documents in cases with dismissal orders and preparing for what may come after the Supreme Court decides Boechler, discussed here and here. This has allowed me to refresh my skills in ordering documents. I generally do this in tandem with Carl Smith, who reviews the orders online before I retrieve the documents unavailable online so we can debate what, if anything, to do. In one case where we found a duplicate filing that neither of the parties nor the court noticed, Carl prepared a motion for the taxpayer to file, and I sent it to her with an explanation of what she might do to set everyone straight. In another case I spoke with a sophisticated pro se taxpayer who had filed a late petition due to a significant medical issue but who decided paying the tax was easiest. Mostly, we reaffirm that not many cases qualify for equitable tolling in our view.
I will only describe the process for ordering over the phone since that is the only process available at the moment. When the pandemic ends, or at least when we declare victory, and the Tax Court building reopens, anyone who can get to the Tax Court from 8:00 to 4:30 can walk into the building, go down the hall on the ground floor to the clerk’s office and make a request in person. At least that was possible pre-pandemic. I don’t know if the Court will change its procedures regarding this. Several years ago, I went into the clerk’s office and used my iPhone to take pictures of documents. I posted about this possible method for obtaining records. The next time I visited the court to review and gather documents, I began to use my phone again when one of the clerks informed me I should not do that because taking pictures in the Tax Court building was not allowed. The following time I was in the clerk’s office, signs had appeared notifying visitors not to use their phones to take pictures of documents. I took solace that at least I had made an impact. So, don’t believe that blog post. If you go into the Court you will be ordering in person but paying the Court’s fee on a per page or per document basis. I don’t want to get anyone in trouble or to suggest flouting the Court’s rules.
The first thing you need to do when ordering documents from the Tax Court is identify the documents you want with specificity. Even though you cannot access the documents online, you can look at the Court docket online. Look there, and beside each entry on the docket sheet is a number on the left. For example, if you go to Docket No. 6821-21S and you wanted to order the petition so you could see what the taxpayer put at issue or the taxpayer’s phone number and address, you would order document No. 1. The document is 6 pages. Your fee is $.50 per page capped at $3.00 per document.
Once you have identified the document, you call the Tax Court clerk’s office (aka record office) at 202-521-4688. If someone answers, you identify yourself, the case and the document(s) you want. If no one answers, leave the same information and your call back number. If you leave a voice mail message, there is no stated time within which someone will get back to you. In my experience, it typically takes a day or two. If someone picks up the phone when you call, they will take the case information on the spot and let you know that they will research your request and get back to you. After the conversation in which you first speak to an actual person, someone in that office will get back to you in 3-5 business days to provide you with information you will need for the next steps.
When the clerk’s office calls back, the individual will provide the page count of your order – which you generally can calculate by looking on the docket sheet under the column entitled “Pages” and adding up the number of pages in the documents you have requested; the cost – which will be based on pages or document length; and a control number.
Once you have that information, you must go to pay.gov. Upon arriving at the home page of pay.gov, type Tax Court into the search box and it will take you to the Tax Court page. Once there, scroll down to “US Tax Court Fees – Copy Work” and click on continue. Then, you will start a five-step process, the first step of which is “Continue to the Form.” At the second step you will enter information about yourself and the case including the number of pages you are ordering, the docket number of the case (if you are ordering for more than one case it is okay to put in only one case), the control number the person in the clerk’s office provided, and the cost. Then continue to the next page.
At the third page you will enter your payment information. You can pay by credit or debit card or several other methods. I always pay by credit card and that works very well. I imagine the other payment methods work just as well, but I have not tried them. At the fourth page you will confirm the payment information and submit the request. The fifth page is a confirmation page. Because you will also receive a confirmation email, I don’t generally pay too much attention to the confirmation page.
Send the confirmation email to records@ustaxcourt.gov unless you were directed otherwise. On some of my calls, the individual with whom I spoke gave me their personal email to use rather than the “records” address. After you send the confirmation email and the Tax Court knows you have paid, it will send you the requested documents as attachments to an email. It seems to take a few hours for this to happen but can take up to the next day before it sends the documents out after you notify the court of the payment. Having done this a few times in the last couple weeks, I find the process takes about 3-5 business days from start to finish. The people with whom you will speak at the clerk’s office are uniformly pleasant and helpful.
In one instance I asked for and received expedited treatment of a request because of an upcoming response due date on a case I was considering. I would not do that again unless there was exigency in the case, but I appreciated that the individual was willing to accommodate my request.
The Court sends out PDFs of the requested documents. Unless a document is sealed, it is available.
Because the public has a right to obtain essentially all of the information in a Tax Court file, looking at the files you see why it is important to redact the taxpayer’s identifying information as you file the petition and be careful to do so with any attachments as well as being careful generally. In a high percentage of cases, taxpayers and practitioners are not careful. If you go to the links above in which I am complaining about the lack of access, you can find a link to a Tax Notes article I have written about electronic access and in that article you will find detailed information compiled by Judge Buch showing how many petitioners leave in the documents they file personal identifying information – generally the SSN. While I think there are workarounds that would allow electronic access while continuing to protect privacy, actually going to get the filed documents allows you to see the many times that personal information is displayed.