31.1.1  Legal Work

Manual Transmittal

March 25, 2013

Purpose

(1) This transmits revised CCDM 31.1.1, Guiding Principles; Legal Work.

Material Changes

(1) Exhibit 31.1.1-1 was revised to remove redundant language and correct the citation format under Other Specific Issues Requiring Associate Office Review.

Effect on Other Documents

CCDM 31.1.1 dated August 24, 2012 is superseded.

Audience

Chief Counsel

Effective Date

(03-25-2013)

Michael T. Cochis
Director, Planning and Management Division

31.1.1.1  (08-11-2004)
General Principles for Handling Legal Work

  1. The role of the Office of Chief Counsel is to ensure the correct and uniform application of the tax laws. It is, therefore, the responsibility of each component of the Office, individually and collectively, to ensure that all published guidance, documents filed in litigation, and legal advice issued to the Service or to taxpayers accurately reflect the position of the Office.

  2. It is the responsibility of each individual Chief Counsel attorney to ensure the uniform application of the tax laws and the fair disposition of cases. Both objectives require the attorney to thoroughly develop the facts and issues in the case before the trial or settlement of a case or the issuance of advice to any component of the Service. Where there is any doubt regarding the position of the Service, the attorney must request advice from the office or offices responsible for developing and maintaining the Service’s position on the proper interpretation of the section or sections at issue. The overall Service objective of uniform application of the tax laws must be kept in mind to ensure that the correct legal theory is maintained at all times.

  3. In interpreting and applying the provisions of the Internal Revenue Code, our responsibilities must be discharged in a balanced and impartial manner, with neither a "Government" nor a "taxpayer" point of view. It is our responsibility to find the true meaning of the statutory provision and not to adopt a strained construction with the goal of maximizing revenue. We properly protect the revenue only when we ascertain and apply the true meaning of the statute.

  4. The proper handling of problems of interpretation and application of the tax laws requires cooperation and consultation between the various offices in Chief Counsel, the Operating Divisions and other components of the Service, and the Department of the Treasury. Uniform interpretation requires efforts to arrive at common understanding of the problems involved and efforts to reach common ground for handling these problems. Although each component of the Office has a separate and distinct role to play in achieving our mission, the positions taken must be consistent with the above principles and should reflect a consensus arrived at through close coordination across all Division Counsel and Associate Chief Counsel offices. Anything signed or approved by or in the name of the Chief Counsel must represent the position of the entire office and not merely the position of a particular division or office.

31.1.1.1.1  (08-11-2004)
Determination of Service Position

  1. Service position, as a general rule, is initially determined in published guidance, which includes regulations (including proposed regulations), revenue rulings, revenue procedures, and notices and announcements published in the Internal Revenue Bulletin. It is important that all documents issued by the Office reflect service positions where it is unclear whether a published position covers a particular situation, the Associate Office with responsibility for the guidance at issue should be consulted.

  2. The Office of Chief Counsel will also occasionally transmit procedural guidance or litigating positions through Chief Counsel notices, litigation guideline memoranda (LGMs), or other documents. While such documents are not approved by the Commissioner, and, thus, cannot be relied upon by taxpayers as a statement of Service position, they should not be disregarded by Chief Counsel attorneys. Where it is unclear whether positions set forth in the documents cover a particular situation, the Associate office that issued the document should be consulted.

  3. Similarly, Technical Advice Memoranda (TAMs) and Private Letter Rulings (PLRs) can only be relied upon by the particular taxpayer whose case they address. Although not precedential, such documents should be reviewed for discussions of legal analysis as applied to particular factual scenarios. Consultation with the Associate office is appropriate prior to taking a position that appears contrary to the position taken in the TAM or PLR.

31.1.1.1.2  (08-11-2004)
Policies of the Service

  1. In some instances the terms "policy" and "position" are used in documents interchangeably. Normally, the use of the word "policy" within the Service is confined to those matters in which the Commissioner exercises discretion or has an established policy statement on the matter in question. Thus, the term "policy" should not be used unless the reference is to a matter that is the subject of a policy statement or other document approved by the Commissioner or his delegate. In general, briefs, actions on decision, and legal memoranda should refer to the "position" of the Office. In particular cases, the Office of Chief Counsel may have an established "position" on the law which is to be followed by all Associate Chief Counsel and Division Counsel offices, but it is not generally characterized as "policy." The Chief Counsel may, however, promulgate policies to be followed by the Office in handling matters within its jurisdiction, such as the litigation and settlement of cases.

31.1.1.1.3  (08-11-2004)
Principles of Litigation

  1. The proper method for conveying the positions of the Office and the policies of the Service is through published guidance. In contrast, litigation should be used as an enforcement tool to advance and defend established positions, not as a vehicle for making policy. The importance of litigation to the administration of the tax law is not measured by the amount of taxes collected through litigation, but rather by its success in defending the Service’s position on the proper interpretation of the tax laws. The position taken in a case must be one that is reasonable based on the facts of the case and one which makes the maximum contribution to a sound tax system. Thus, it is the broad effect of the case which must govern our litigation attitude in specific cases. This litigation policy is applicable to all cases, including those we refer to the Department of Justice.

  2. The position taken in any case must represent the official position of the Service, not just the position of a particular division or office. Attorneys as well as supervisors must always take cognizance of the fact that a position taken solely to win a case against one taxpayer may in the future be used by other taxpayers against the Service. These principles apply with equal force even when the sole or primary purpose of the argument is to improve the Government’s position in settlement negotiations. Thus, the development of the litigation position of the Office of Chief Counsel must take into consideration the broad effect of such position as it affects all taxpayers in the administration of the tax laws.

  3. In applying the litigation policy of the Office, it may be necessary in particular cases to settle or concede an issue which ordinarily would be litigated. This type of situation usually arises in cases where, under the existing facts and circumstances, it would be unwise to use that case as a vehicle to establish the broad objectives of the Service. Also, where an appellate court has decided an issue in a case contrary to the Service position, it may be necessary to settle or concede the issue in cases appealable to that court until an appropriate case can be litigated in another circuit. These types of cases must be coordinated with the Associate Office or Offices responsible for interpretation of the section or sections at issue. The Associate Office should consider whether guidance is appropriate to help resolve the issue.

  4. Consistent with Executive Order 12988 on Civil Justice Reform, it is the policy of the Office of Chief Counsel, unless there are compelling reasons otherwise, to settle or eliminate as many issues as is feasible or justifiable prior to submission of a case for decision by the court. Every effort should be made to settle the issue or issues on which there are no real basic differences between the parties.

31.1.1.1.3.1  (08-24-2012)
Settlement Policy

  1. As part of the Office’s responsibility for defending the positions of the Service in deficiency proceedings, it is the policy of the Office of Chief Counsel that cases and issued being tried in the Tax Court will be settled on the merits. Even where the amount in controversy is small, the Office will defend the Commissioner’s determination and conduct cases in a manner that supports the Service’s tax administration priorities.

  2. Settlement on the merits usually involves a stipulation as to each issue before the court. Lump sum or blanket settlements which include tax, penalty, and interest should be avoided, and generally should not be entertained or accepted. The Service has a definite policy against settlements without statutory interest on the deficiency.

  3. No case is to be settled on a so called "nuisance basis" either for or against the Government. What constitutes a nuisance settlement is dependent upon the circumstances in each case. When each issue is settled on its merits, the fact that the resulting deficiency is a small percentage of the deficiency amount in the statutory notice does not result in a "nuisance basis" settlement.

  4. In keeping with the policy of settling cases based on the merits of the position determined by the Service, collection aspects of a case are not normally considered as part of a Tax Court settlement. Where a collection based settlement can be considered in a manner consistent with the settlement principles outlined above, an offer in compromise based on collectibility can be considered by the Service prior to the conclusion of the Tax Court case. Such offers should only be considered where the taxpayer would be willing to stipulate to the full amount of the deficiency prior to final acceptance of the compromise. For procedures to follow in such cases, see CCDM 35.5, Settlement Procedures.

31.1.1.2  (08-11-2004)
Roles within the Office of Chief Counsel

  1. The role of the Associate Chief Counsel is to develop and maintain the technical positions of the Internal Revenue Service with respect to proper interpretation of the Code. Associate offices fulfill this role principally through the issuance of published guidance, the legal review of proposed policies and procedures, the issuance of program advice and other advisory products and the review of positions to be taken in the courts in the course of litigation.

  2. The role of the Division Counsel is to provide legal service to specific components of the Service through litigation on their behalf, providing legal advice in specific cases, and providing strategic advice to the executive leadership of those components. Division Counsel develops and executes litigation strategy and provides legal advice based on the technical positions developed and announced by the Associate Chief Counsel.

  3. To the extent that a regulation or ruling does not provide clear guidance on the position of the Service, or that position is not clear from existing case law or the unambiguous language of the Code, the Division Counsel or Associate Chief Counsel must seek advice from the Associate office with responsibility for the subject matter at issue. Coordination is particularly important where there has been a statutory change, new regulations have been issued, published guidance is pending, or there has been a significant new court opinion.

31.1.1.2.1  (08-11-2004)
Published Guidance

  1. Published guidance generally refers to that body of guidance that sets forth the definitive position of the Service, as approved by the Commissioner and the Department of the Treasury. Published guidance must be followed by all components of the Service and can be relied upon by taxpayers in litigation. For purposes of this section, published guidance includes treasury decisions, notices of proposed rulemaking, revenue rulings, revenue procedures, and Internal Revenue Bulletin notices and announcements.

  2. The Associate Chief Counsel is responsible for the development and issuance of all published guidance. In the course of drafting published guidance, the Associate Chief Counsel is charged with building a consensus among all interested parties within the Department of the Treasury, including other offices within Counsel, the operating divisions and other components of the Service, and the Office of Tax Policy, and with elevating significant, unresolved issues to the appropriate official for determination. To the extent necessary, the Associate Chief Counsel is also responsible for coordinating with other Federal agencies, such as the Department of Justice.

  3. The Division Counsel has two key roles to play in the development and issuance of published guidance.

    1. Although the Associate Chief Counsel will be primarily responsible for identifying the need for published guidance based on new legislation and the Service’s program level needs, the Division Counsel is uniquely qualified to identify areas of the law that are unclear to both taxpayers and the Service in the day-to-day resolution of cases. The Division Counsel should bring such issues to the attention of the appropriate Associate and begin a dialogue that will result in issuance of appropriate published guidance.

    2. Published guidance should reflect not only the correct interpretation of the law, but also the practical realities of applying the law in the course of administering the tax system. Division Counsel should contribute to the published guidance process by advising the Associate Chief Counsel on the Service’s ability to apply the proposed guidance as a practical matter.

31.1.1.2.2  (08-11-2004)
Litigation

  1. Division Counsel has primary responsibility for the litigation of cases in the Tax Court and the referral of general litigation and refund cases to the Department of Justice. In this role, Division Counsel is responsible for development and execution of litigation strategy, including selection of cases to litigate, whether to try or settle particular cases, whether to agree to mediation/arbitration, whether to employ expert witnesses, etc.

  2. In the course of litigation, Division Counsel must determine that the position to be advanced in Tax Court or other litigation accurately reflects the Service’s position on the law. To the extent that position is unclear, Division Counsel must coordinate with the appropriate Associate Chief Counsel. This coordination may be accomplished through informal or formal advice procedures, as appropriate for the issue or case.

31.1.1.2.3  (08-24-2012)
Pre-Review of Litigation Documents by the Associate Chief Counsel

  1. In general, documents to be filed in Tax Court, as well as letters to the Department of Justice regarding the prosecution or defense of cases in the bankruptcy or district courts, will not be subject to pre-review by the Associate Chief Counsel. Mandatory pre-review of such documents will, however, be required where:

    1. The continued development of the Service’s position on either the law or the appropriate use of a particular type of motion or other procedural mechanism warrants close coordination between field counsel and national office subject matter experts;

    2. The case raises novel or significant issues. Novel or significant issues include issues relating to recently enacted legislation, issues of first impression, and issues relating to the validity of a regulation or revenue ruling; or

    3. The document to be filed or the proposed letter to the Department of Justice advocates a position contrary to the position taken in published guidance or attempts to distinguish a case from a position taken in published guidance based on the facts of the case.

  2. The Associate Offices, in conjunction with Division Counsel, will establish a list of issues in which pre-review will be required. This will ensure that uniform positions and procedures are adopted and that the published guidance being prepared by the Associate Office is informed by the practical information to be derived from this review. The Associate Chief Counsel and Division Counsel will consult regarding the prompt removal of any pre-review requirement once the Service’s position has become sufficiently established that pre-review is no longer necessary. For a list of issues for which pre-review is mandatory, see Exhibit 31.1.1-1, Issues Requiring Associate Office Review, and Exhibit 35.11.1.-1, Issues Requiring Associate Office Review. Each office is, however, responsible for determining whether pre-review or coordination is warranted based on the standards articulated in paragraph (1), above, regardless of whether the case involves an issue specifically included on the established pre-review list. In addition certain Tax Court documents require review by the Associate Offices. See Exhibit 31.1.1-2, Direct Filing and Service of Documents.

31.1.1.2.4  (08-24-2012)
Sanctions and Attorneys Fees

  1. As provided in Executive Order 12988 on Civil Justice Reform, a motion for sanctions must be reviewed by the agency sanctions officer. This includes motions by the Government asking the court to sanction opposing parties, as well as motions by opposing parties seeking sanctions against counsel, the United States, the Service, or its employees. The Associate Chief Counsel (Procedure and Administration) is the designated sanctions officer for the Office of Chief Counsel.

  2. Sanctions subject to review by the sanctions officer under the Executive Order include motions to sanction a taxpayer’s representative for violations of section 6673(a)(2), sanctions under the Tax Court Rules of Practice and Procedure, and sanctions based on the Tax Court’s inherent power to regulate conduct in cases that come before it, including any such sanctions imposed or sought to be imposed against Chief Counsel attorneys or Service employees.

  3. In addition to the review required by the Executive Order, it is the policy of the Office that certain other matters involving sanctions will also be subject to pre-review by the Sanctions Officer. Those matters include letters advising opposing counsel of a potential conflict of interest or of a potential motion to disqualify based on a conflict, letters to the Department of Justice recommending that sanctions be sought against an opposing party, and any referral of a private practitioner to the IRS Office of Professional Responsibility. Requests for imposition of the section 6673(a)(1) penalty and motions for attorneys fees (unless involving alleged misconduct by counsel) are generally not subject to Sanctions Officer procedures. Procedures for obtaining the required review are found at CCDM 35.10.2.2.3, Sanctions Requiring National Office Review.

31.1.1.2.5  (08-24-2012)
Appellate Matters

  1. Adverse decisions of the Tax Court, Federal District Courts, the Court of Federal Claims, and the Courts of Appeals will be reviewed by the appropriate Associate Office which will prepare a letter to the Department of Justice recommending for or against appeal. Procedures for preparing appeal recommendations can be found in CCDM 36.2,, Appeal/Certiorari Recommendations.

31.1.1.2.6  (08-11-2004)
Tax Court Liaison

  1. Procedural issues relating to practice before the Tax Court cut across all divisions and offices. In order to maintain uniformity in this area, the Associate Chief Counsel (Procedure and Administration) acts as the Office’s liaison with the Tax Court and the Court of Federal Claims and is responsible for matters of Tax Court procedure.

31.1.1.2.7  (08-24-2012)
Legal Advice

  1. Division Counsel offices are responsible for providing legal advice relating to case development to their respective clients. Such advice is not subject to pre-review by the Associate Chief Counsel except to the extent consultation is necessary to determine the position of the Service. For procedures regarding pre-review of legal advice, see CCDM Part 33, Legal Advice.

  2. Associate offices are responsible for providing legal advice to the Operating Divisions, other components of the Service, and Division Counsel regarding the technical position of the Service with respect to proper interpretation of the Code.

  3. Occasionally, the field client will request case-specific advice directly from the Associate Chief Counsel, rather than going to local Division Counsel, or may turn to local Division Counsel for advice on matters of interpretation of the Code that may be of national application. In such cases, the receiving office should review the request and either forward the request to the appropriate office or coordinate the response as appropriate.

Exhibit 31.1.1-1 
Issues Requiring Associate Office Review

Issues Requiring Associate Office Review

Certain issues require National Office (Associate office) review. There are issues that do not require Associate office review. An issue not listed among those requiring Associate office review is presumed not to require Associate office review. Court documents that contain no issues requiring Associate office review and that are not of a nature that requires Associate office review may be direct filed without Associate office review. See Exhibit 31.1.1-2. Defense and suit letters that do not contain issues on this list may be sent to the Department of Justice without Associate office review regardless of their classification as Standard or S.O.P. See CCDM 34.8.1, Settlement Procedures Overview.

It is imperative that all briefs and motions filed with the Tax Court and suit and defense letters sent to the Department of Justice reflect positions consistent with Service legal positions and policies and uphold the office’s reputation for the highest quality of written product. In order to ensure these attributes, certain documents involving novel or significant issues will be reviewed in Associate offices before filing with the Tax Court or transmission to the Department of Justice. The Associate Chief Counsel and Division Counsel will consult regarding the prompt removal of any pre-review requirement once the Service’s position has become sufficiently established that pre-review is no longer necessary.

Even though a case does not contain any of the issues described below, novel, unusual, or unique questions may be presented. It is the responsibility of the docket attorney and the reviewer in the field to identify those issues presenting such questions as to warrant review by the Associate offices, and to forward the brief for both prereview and review according to present procedures.

For those briefs, motions, and letters which are directly filed or sent to the Department of Justice by the field office, it is the responsibility of the field reviewer to ensure that they are correct factually and legally and of the highest quality.

Significant Issues that Require National Office Review

A case will be significant such that it requires Associate office review if it involves any of the following, regardless of the underlying code section or subject matter:

  1. The validity of a regulation, temporary regulation, revenue ruling, or revenue procedure

  2. A proposed Treasury regulation

  3. An issue where the Government attempts to distinguish a regulation, proposed regulation, temporary regulation, revenue ruling, or revenue procedure

  4. A corporate tax shelter that is a listed transaction within the description in Treas. Reg. § 1.6011–4(b)(2)

  5. A Coordinated Industry Case issue or one that is the subject of a coordinated issue paper; or the case involves an international issue or a tax treaty issue

  6. A notice case

  7. A change in litigation position

  8. An argument contrary to Chief Counsel advice issued in the case

  9. Any statute or statutory amendment that has been enacted within the year preceding the filing date of the document or the due date of the letter to the Department of Justice

  10. Matters to be submitted to the Justice Department Office of Legal Counsel

  11. Nonfrivolous constitutional challenges to statutes, regulations, published guidance or Service administrative practices or any nonfrivolous assertion of the application of the Religious Freedom Restoration Act. Examples of frivolous constitutional issues that need not be reviewed are contained in The Truth About Frivolous Tax Arguments that can be found at http://www.irs.gov/pub/irs-utl/friv_tax.pdf.

  12. Issues appearing on the current Guidance Priority List of pending published guidance projects

Code Sections that Require Review

In addition to the preceding matters, cases involving the following code sections require Associate office review:

  1. Section 29 credit claimed for synthetic fuels derived from coal

  2. Section 66 relief from spousal liability in community property states

  3. Section 74(c) — the taxability of employment achievement awards

  4. Section 162 limited to deductibility of a payment of a shareholder’s expenses in the context of a corporate reorganization or buyout and unreasonable compensation in the context of mergers or buyouts or golden parachute payments

  5. Section 170 charitable contribution deductions involving quid pro quo issues for contributions to churches or religious organizations

  6. Section 274, unless limited purely to substantiation

  7. Section 385(c)

  8. Sections 401 through 418 — the qualification of or deductions for employee benefit plans

  9. Sections 513, 543 and 613 regarding rents and royalties paid for oil and gas interests or whether payments to tax-exempt organizations constitute rent or royalties

  10. Sections 1311 through 1341 — mitigation and claim of right

  11. Section 3201(q) where the definition of wagering transaction is in dispute

  12. Sections 4001 through 4907 — excise taxes in chapters 31, 32, 33, 35, 36 subchapters B and D, 38, and 40

  13. Section 4958 — excess benefit transaction issues

  14. Section 4971— pension underfunding taxes in bankruptcy cases

  15. Section 6015 — spousal liability, except where relief from liability is requested solely under section 6015(b)

  16. Section 6109 — the issuance or use of individual taxpayer identification numbers (ITINs); objections to the use of a dependent’s Social Security Number or Taxpayer Identification Number to claim a dependency exemption. See paragraph (19) below under Other Specific Issues Requiring Associate Office Review.

  17. Section 6201(d) — a reasonable dispute with respect to an item of income reported on an information return

  18. Sections 6221 through 6234 (10) — TEFRA partnership/S corporation procedural issues (certain TEFRA procedural motions may be filed directly)

  19. Section 6330 and 6320 Collection Due Process — briefs, motions, and other Tax Court documents (including motions for summary judgment) raising novel or significant issues. Issues that are considered novel or significant include (but are not limited to):
      • Challenges to the admission of evidence based on the administrative record rule (rule that abuse of discretion review is limited to the administrative record)
      • TEFRA Partnership issues
      • Substantive bankruptcy issues such as whether taxes are discharged
      • Challenges to regulations, rules and procedures governing the acceptance, rejection, and termination of offers in compromise and installment agreements
      • Challenges to regulations, rules and procedures governing the conduct of the administrative hearing
      • Issues involving whether an opportunity for an Appeals conference, without judicial review rights, is a prior opportunity under section 6330(c)(2)(B)
      • Issues involving whether the validity of an assessment or application of payments are "liability" issues under section 6330(c)(2)(B) subject to de novo review
      • Issues involving whether an assessment is invalid because there is insufficient proof of the issuance of a notice of deficiency, Letter 1153 or other opportunity to raise liability
      • Issues involving credits or overpayments from non-CDP years to the CDP year(s), and whether the Tax Court has jurisdiction over these matters
      • Issues involving ex parte communications with Appeals
      • Issues involving prior involvement under section 6330(b)(3)
      • Issues involving whether the Tax Court has general equitable authority to order the Service to take or refrain from taking certain collection actions
      • Issues involving whether a Notice of Determination was issued in violation of the automatic stay
      • Issues involving whether the Tax Court has jurisdiction over a petition from a denial of a hearing under section 6330(g)

  20. Section 6332(d)(2) — penalty for failure to honor levy

  21. Section 6404(c) — reversal of abatements based on bankruptcy discharges

  22. Sections 6601, 6611, and 6621(d) involving issues of restricted interest or global netting

  23. Section 6651(f) — the fraudulent failure to file penalty

  24. Section 6673(a)(2) — penalty against counsel for unreasonable and vexatious multiplication of proceedings in Tax Court

  25. Section 6721(e) and 6722(c) — penalties for intentional disregard of information reporting requirements

  26. Section 7121 — closing agreements that will include taxpayer’s consent to public disclosure

  27. Section 7430 — responses or briefs filed in opposition to taxpayers’ motions for attorneys’ fees under section 7430. For the requirements of such documents, see CCDM 35.10.1.1.1, Awarding of Costs and Fees Under Section 7430; for the rules regarding approval of settlements of section 7430 claims, see CCDM 35.10.1.1.2, Settlement Authority.

  28. Section 7433(e) — civil damages for unauthorized collection

  29. Section 7435 — civil damages for unauthorized enticement of information disclosure

  30. Section 7436 which provides for Tax Court jurisdiction over worker classification issues and whether the relief provided under section 530 of the Revenue Act of 1978 should apply to employers

  31. Section 7491 burden of proof issues

  32. Section 7502 limited to cases where the taxpayer argues timely mailing is timely filing based on Wood or Anderson

  33. Section 7522 limited to arguments regarding the application of Shea v. Commissioner

  34. Section 7525 — the Tax Practitioner privilege

  35. Section 7602 — limited to summonses involving designated summonses, John Doe summonses, promoter summonses, summonses for audit or tax accrual workpapers, or where the Right to Financial Privacy Act or Health Insurance Portability and Accountability Act has been argued in a suit to enforce or quash summons

  36. Section 7602(c) third-party contact issues

  37. Section 7623 whistle-blower claims

  38. Section 7805(b) retroactive relief from the effect of a ruling or regulation

Other Specific Issues Requiring Associate Office Review

In addition to the foregoing issues, the following specific issues not linked to code sections require Associate office review:

  1. Collection issues involving disregarded entities or the collection of partnership tax liability from partners or the application of United States v. Craft — collection of liability of one spouse from property held in tenancy by entireties

  2. Bankruptcy issues under B.C. § 362(c)(3)(A), termination of automatic stay in repeat bankruptcy filings

  3. Bankruptcy issues under B.C. § 523 (a)(1)(B)(i) involving a Form 1040 filed after assessment

  4. Employee independent contractor issues under section 530 of the Revenue Act of 1978 not involving section 7436

  5. The ex parte rules on communications with Appeals

  6. General receiver appointments requested by the Government

  7. Injunction, mandamus, or declaratory judgment sought by the Government

  8. Issue or claim preclusion (estoppel or res judicata) and equitable doctrines

  9. Privilege logs and similar documents identifying third parties, see CC Notice CC-2002-028

  10. Privilege and taint issues involving informants, see CC Notice CC-2010-004

  11. Sanctions officer issues including misconduct on the part of Service employees or field counsel or opposing counsel, disqualification of counsel, recusal or disqualification of judges, referrals to the Director of Practice or other ethical issues in litigation

  12. Statistical sampling used by taxpayers to support a refund claim

  13. Suppression of evidence

  14. Taxpayers who are federal, state or local governments including Indian Tribal Governments

  15. Tort liability for attempting to defeat tax collection

  16. Tortious conversion of a tax lien

  17. Valuation issues — valuation of corporate stock with restrictive sales agreements, valuation of minority interest discounts or post-death events or valuation issues in the context of family limited partnerships

  18. Any conscience-based objections to the use of a dependent’s Social Security Number (SSN) or Taxpayer Identification Number (TIN) to claim an exemption under Section 151. Objections may include that the requirement is contrary to the Religious Freedom Restoration Act of 1993 or any provision of the Constitution, such as the Due Process and Equal Protection Clauses of the 14th Amendment, the Due Process Clause of the 5th Amendment, or the Free Exercise and Establishment Clauses of the First Amendment, or cases in which the taxpayer states a belief that a SSN or TIN is the "mark of the beast."

Exhibit 31.1.1-2 
Direct Filing and Service of Documents

The following is a list of documents that may be directly filed with the Tax Court. Any document not on this list must be forwarded to the Associate Chief Counsel (Procedure and Administration) Branches 6 and 7 for review at least five working days prior to filing with the Tax Court. In addition, any document presenting issues listed on Exhibit 31.1.1-1, Issues Requiring Associate Office Review, is not to be direct filed prior to approval from the appropriate Associate office.

Type of Document Directly Served Copies to Tax Court
(see note 1)
Answers and Amendments Yes Orig. only
Motions to Amend Answers with Accompanying Amendments Yes Orig. & 4 (Motion)
Orig. & 2 (Answer)
Motion for Leave to File Answer Out of Time with Accompanying Answer Yes Orig. & 4 (Motion)
Orig. & 2 (Answer)
Motion to Extend Time Within Which to Move or Answer Yes Orig. & 4
Designation of Place of Trial Yes Orig. & 2
Motion to Change Place of Trial Yes Orig. & 4
Motion to Change Caption Yes Orig. & 4
Motion to Dismiss for Lack of Jurisdiction Yes Orig. & 4
Motion to Remove Small Tax Case Designation Yes Orig. & 4
Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Yes Orig. & 4
Motion to Strike Yes Orig. & 4
Motion Under Rule 37(c) Yes Orig. & 4
Respondent's Request for Admissions Yes Orig. only
Stipulation for Discovery Deposition No Orig. & 1
Respondent's Response to Petitioner's Request for Admissions Yes Orig. only
Stipulation for Trial No Orig. (with exhibits) & 1
Motion to Compel Stipulation Under Tax Court Rule 91(f) Yes Orig. & 4
Response to Order to Show Cause Under Tax Court Rule 91(f) Yes Orig. only
Motion to Consolidate Yes Orig. & 4 plus 1 for each additional docket in consolidated group
Motion to Sever from Consolidated Group Yes Orig. & 4 plus 1 for each additional docket in consolidated group
Joint Motions
(see note 1)
No Orig. & 4
Motions Endorsed No Objection
(see note 1)
Yes Orig. & 4
Notice of Proceeding in Bankruptcy Yes Orig. & 4
Notice of Objection or No Objection Yes Orig. & 4
Motion for Writ of Habeas Corpus Ad Testificandum Yes Orig. & 4
Motion to Quash Subpoena Yes Orig. & 4
Submission of Expert Witness Report Yes Orig. only
Motion to Continue Yes Orig. & 4
Motion to Continue Hearing on Motion Yes Orig. & 4
Motion to Restore to General Docket Yes Orig. & 4
Motion to Calendar for Trial Yes Orig. & 4
Respondent's Status Report Yes Orig. & 2
Joint Status Reports No Orig. & 2
Motion for Summary Judgment or Partial Summary Judgment
(see note 1)
Yes Orig. & 4
Motion for Judgment on the Pleadings
(see note 1)
Yes Orig. & 4
Pretrial Memorandum
(see note 1)
Yes Orig. only
Motion to Extend Time to File Brief Yes Orig. & 4
Stipulated Decision
(see note 2)
No Orig. & 2
Respondent's Computation for Entry of Decision and Proposed Decision Under Rule 155
(see notes 2 & 3)
Yes Orig. & 2 (computation and decision each)

Notes to Exhibit 31.1.1-2

  1. See Exhibit 31.1.1-1 for list of issues requiring Associate Chief Counsel Office review before document may be filed with the Tax Court and direct served.

  2. Stipulated decisions and decisions accompanying Rule 155 computations in cases in consolidated groups are to be filed on the same date using separate captions for each decision (and computation statement). If decisions and computations in such cases cannot be filed simultaneously, a motion to sever the case or cases in which the decisions are being filed from the consolidated group should accompany the decision documents.

  3. Rule 155 computations (agreed or unagreed) should not be directly filed if a substantial question exists on which assistance is required concerning how the court's opinion should be reflected in the computation.


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