Pretrial memoranda are generally required by the terms of the Court’s pre-trial order for all cases where no basis of settlement has been reached as of the date of the report. The attorney should consult with her reviewer to determine whether a pretrial memorandum is appropriate in a given case. The purpose of the pretrial memorandum is to provide the Court with information about the status of the case, the relative development of the facts and stipulation of facts, the prospective witnesses, issues in dispute and evidentiary questions which may arise. The trial memo is one of the first opportunities for trial advocacy in connection with a Tax Court case and care must be taken to assure the trial memo is complete, accurate, fair and effective. The Court may limit the case to those issues and witnesses identified in the pretrial memorandum. The form and content of the trial memo is specified in the order and should be followed. See an example of a pretrial memorandum at Exhibit 35.11.1–106. Use the Chief Counsel macros to generate a trial memo in proper form.

Pretrial memoranda may be directly filed with the Tax Court except for abatement of interest, collection due process answered cases or when the burden of proof or a Shea issue is raised in the petition. See Exhibit 35.11.1–1. Tax Court Documents Requiring Associate Office Review, for those issues requiring coordination. In addition, national office review is required prior to filing where the pretrial memorandum seeks to distinguish a position set forth in published guidance.

Pretrial memoranda in"S" Cases - Pretrial memoranda will be required in"S" cases when ordered by the Court.

Status reports are submitted to the Court where specifically ordered or where appropriate to the orderly processing of the case. Examples of matters for which status reports are required or appropriate include:

Status reports may be joint or separate and are generally formal in form.

In the event action by the Court is required to deal with the status of the case, consider filing an appropriate motion in addition to the status report.

The judge or special trial judge to whom the case has been assigned for trial, will often conduct chambers conferences or telephone conference calls in which discovery schedules, stipulation difficulties, the parties’ position on the issues, and other pretrial issues are discussed. Occasionally the parties’ recollection of facts or issues agreed upon differs from that of the trial judge or each other. Since there is no transcript, there is often very little the field attorney can do to counter the judge’s or opposing counsel’s contrary memories. In these instances, the field attorney should consult with his or her reviewer as to the advisability of memorializing any agreements or lack of agreement for the record. Sound judgment is required in these instances. In general it is better practice to confirm in writing any agreements or concessions made by the parties in contacts where no transcript will be prepared.

If such a conference is held during trial sessions, and it is advisable to memorialize the agreements or lack of agreements, a Court reporter would normally be available for this purpose. The field attorney should request permission of the Court to go on the record at the earliest convenient time for purposes of stating the substance of the conference. The field attorney should state for the record the terms of any stipulations reached, as he or she understands them. In addition, the field attorney will state for the record, that, while other matters were discussed, no other agreements were reached. For example,"The parties have just concluded a chambers conference with the Court; we have agreed to stipulate that [terms stipulated], and will file a written stipulation to that effect by Friday, [date]. While other matters were discussed, no other agreements were reached."

Telephone conference calls have been widely used by the Court to conduct pretrial scheduling in lieu of formal status hearings. Since the opportunities for misunderstandings exist, field attorneys should consult with their reviewers in exercising judgment whether to follow up such conference calls with a letter to the petitioner’s representative, with a copy to the trial judge, confirming the agreements reached and acknowledging those areas in which agreements were not reached. In general it is better practice to confirm in writing any agreements or concessions made by the parties in contacts where no transcript will be prepared.

The ten-day Pre-Trial Report has been discontinued for cases scheduled for trial commencing with the Fall 2003 Trial Term.