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Part 35. Tax Court Litigation

Chapter 9. Post Opinion Activities

Section 3. Closing Procedures

35.9.3  Closing Procedures

35.9.3.1  (08-11-2004)
Duties of Field Counsel

  1. Field Counsel will close "S" and regular cases, whether tried, settled, defaulted, or dismissed after the decision becomes final. Under current closing procedures, Field Counsel is to retain and close the legal file(s) unless an appeal is filed or a special need exists for permanent storage in the appropriate Associate office. If files are forwarded to the appropriate Associate office for appeal consideration, but no appeal is filed, the files are returned to the Field Counsel for closing and storage.

  2. Files closed by Field Counsel should normally be retained for one year and then forwarded to a Federal Records Center for storage. During the year that such files are retained, each file should be readily retrievable if it is needed by any attorney working on related or similar cases. Upon forwarding files to a Federal Records Center, the relevant FRC data ( e.g., record group number, accession number, FRC box number, and the FRC location number) should be recorded and retained to assist in the event retrieval from the records center is necessary. Local procedures should determine what FRC data is necessary for rapid file retrieval.

35.9.3.2  (08-11-2004)
Closing Case Files

  1. For a discussion of file closing, see CCDM 30.9.1.6 and the Tax Litigation Guidebook, located on the Intranet website.

35.9.3.3  (08-11-2004)
Closing Tax Court Cases — Ready Reference

  1. "S" Cases Tried, Defaulted or Dismissed. Upon receipt of a correct Tax Court decision for the respondent, the legal, miscellaneous law, and administrative files should be closed by Field Counsel immediately upon the expiration of 90 days following the entry of decision.

    1. Upon receipt of a correct decision entered pursuant to T.C. Rule 155, the legal, miscellaneous law, and administrative files may be closed immediately if petitioner has signed a waiver of restrictions on assessment. Otherwise, the files should be closed 100 days following the entry of decision. The additional ten-day waiting period beyond the appeal period of 90 days from the date of the entry of decision provides time for the Field Counsel to be notified of an appeal.

  2. Settled Cases: "S" and Regular. Upon receipt of the Tax Court’s entered decision, the legal, miscellaneous law, and administrative files should be closed within seven days by Field Counsel, if petitioner has signed a waiver of restrictions on assessment. Otherwise, the files should be closed ten days after the expiration of the 90-day appeal period.

  3. Regular Cases Tried, Defaulted, or Dismissed — Decision for Respondent. Upon receipt of a correct Tax Court decision for the respondent, the legal, miscellaneous law, and administrative files should be closed by Field Counsel ten days after expiration of the 90-day appeal period if Field Counsel has not been notified that a notice of appeal has been filed by the petitioner. See CCDM 36.2.4 Closing Appeal Cases.

    1. In all appealed cases, the Field attorney should keep a " dummy" file consisting of copies of the petition, the answer, the opinion, and the decision, as well as any other significant documents in the file.

    2. Upon notification that a notice of appeal has been filed by the petitioner and that no appeal bond has been filed, the legal and miscellaneous law files should immediately be sent to the appropriate Associate office, or directly to DJ, if requested. The administrative file should be forwarded to Appeals with a memorandum notifying that office of the petitioner’s appeal and requesting immediate action for the making of any necessary assessments.

    3. Upon notification that a notice of appeal and an approved appeal bond have been filed by the petitioner, the legal and miscellaneous law files should immediately be sent to the appropriate Associate office, or directly to DJ, if requested. Field Counsel should notify Appeals that a bonded appeal has been filed by the petitioner, but should retain the administrative file since no assessment may be made until the decision on appeal has become final, except for amounts not covered by the bond. Upon notification from an Associate office that the decision on appeal has become final, the administrative file should immediately be forwarded to Appeals for any necessary assessments.

  4. Regular Cases Tried, Defaulted, or Dismissed — Decision for Petitioner or Decision under T.C. Rule 155. If no appeal or action on decision is recommended, after receipt of a correct decision either for the petitioner or pursuant to T.C. Rule 155 in a case in which no action on decision or appeal recommendation is required, the legal, miscellaneous law, and administrative files should be closed by Field Counsel ten days after the expiration of the appeal period if the field has not been notified that a notice of appeal has been filed. See CCDM 36.2.4 Closing Appeal Cases.

    1. Upon notification that a notice of appeal has been filed by the petitioner and that no appeal bond has been filed, the legal and miscellaneous law files should immediately be sent to the appropriate Associate office, or directly to DJ, if requested. The administrative file should be forwarded to Appeals with a memorandum notifying that office of the petitioner’s appeal and requesting immediate action for the making of any necessary assessments.

    2. Upon notification that a notice of appeal and an approved appeal bond has been filed by the petitioner, the legal and miscellaneous law files should immediately be sent to the appropriate Associate office, or directly to DJ, if requested. Field Counsel should notify Appeals that a bonded appeal has been filed by the petitioner, but should retain the administrative file since no assessment may be made until the decision on appeal has become final, except for amounts not covered by the bond. Upon notification from an Associate office that the decision on appeal has become final, the administrative file should immediately be forwarded to Appeals for any necessary assessments.

  5. Action on Decision or Appeal Recommendation Required. If an action on decision or appeal recommendation is required, the legal and miscellaneous law files should immediately be sent to the appropriate Associate office with the action on decision or appeal recommendation. The administrative file should be retained by Field Counsel. The appropriate Associate office will retain the legal and miscellaneous files until the expiration of the appeal period, and will notify Field Counsel whether or not a notice of appeal has been filed by either party. See CCDM 36.2.6.2.2.1.3, Notification to the Field. In the case of a decision adverse to the Service, if a claim for litigation costs is made, the legal file may be retained by Field Counsel when necessary for the proceedings under T.C. Rules 231 and 232.

    1. Upon notification that no notice of appeal has been filed either by the petitioner or the respondent, the administrative file should be forwarded to Appeals for any necessary assessments. The legal and miscellaneous law files will be retained and closed by an appropriate Associate office ten days after the expiration of the appeal period. The Associate office may, in lieu of closing a case directly, return the legal and miscellaneous files to the Field Counsel office for closing.

    2. Upon notification that a notice of appeal has been filed by the petitioner without posting an appeal bond, any remaining material for association with the legal or miscellaneous law files should immediately be forwarded to the appropriate Associate office, or directly to DJ, if requested. The administrative file should be forwarded to Appeals for any necessary assessments.

    3. If Field Counsel is notified either that the petitioner has filed a notice of appeal and has posted an appeal bond approved by the Tax Court, or that the government has filed a notice of appeal, any remaining material for association with the legal or miscellaneous law files should immediately be forwarded to the appropriate Associate office, or directly to DJ, if requested. Field Counsel should notify Appeals by memorandum that an appeal has been filed, but should retain the administrative file since no assessment can be made until the decision on appeal is final, except for amounts not covered by the bond. Upon notification received that the decision on appeal has become final, the administrative file should be forwarded to Appeals for any necessary assessments. The legal and miscellaneous law files will be retained and closed by an appropriate Associate office immediately after the decision on appeal has become final. See CCDM 36.2.5.12.5.1, Monitor Case Status. The Associate office may, in lieu of closing a case directly, return the legal and miscellaneous files to the Field Counsel office for closing.

    4. If a decision of the Tax Court is reversed or modified by a court of appeals or by the Supreme Court, and the case is remanded to the Tax Court for appropriate action, the legal and miscellaneous law files will be forwarded to Field Counsel upon expiration of the period for initiating further appellate proceedings or upon denial of, or order of the Supreme Court upon, a petition for a rehearing. Cases which are remanded are thereafter closed by Field Counsel in accordance with the normal procedures outlined above.

35.9.3.4  (08-11-2004)
Withdrawal of Exhibits

  1. After a decision becomes final, Field Counsel may request that the Tax Court return certain exhibits, including original documents. If the decision is not yet final, Field Counsel must file a motion requesting the withdrawal of the exhibits.

  2. Exhibits may not be withdrawn from the Tax Court except for photocopying or under the court’s order until the decision becomes final. Exhibits are withdrawn upon the closing of the case. The Field attorney and reviewer should determine which exhibits, if any, should be withdrawn. In general, the Field attorney should request withdrawal of original documents, including returns.

  3. T.C. Rule 12(a) provides, in substance, that the Clerk of the Court shall not permit any exhibit to be withdrawn from the court except as ordered by a judge or as the Clerk may find necessary in furnishing photocopies until the decision of the court becomes final. Upon the decision of the court becoming final, the Clerk disposes of the exhibits in accord with T.C. Rule 143(d)(2). After the decision is final, the Field attorney may write a letter to the court requesting the return of the exhibits and explaining the circumstances for requesting the withdrawal.

  4. Since exhibits in other than settled cases may not be withdrawn in the usual procedure prior to the date the decision becomes final, a motion is necessary to withdraw exhibits prior to the expiration of the appeal period. Thus, in a tried case in which neither party will appeal the court’s decision, a motion must be filed with the court for the withdrawal of the exhibits when such exhibits are needed for related cases prior to the expiration of the appeal period. In this instance photocopies or certified copies may be obtained and oftentimes will suffice. If it is necessary to permanently withdraw such exhibits, the motion should set forth the fact that the case will not be appealed and the reasons for the necessity of permanently withdrawing the exhibits at that time. Whenever possible, such motion should be endorsed "No Objection" by the petitioner.

35.9.3.5  (08-11-2004)
Closing TEFRA Cases

  1. Special attention should be paid to closing TEFRA cases for the following reasons. First, the statute of limitations for assessment in TEFRA cases is different than in other cases. Second, settled TEFRA cases should be closed quickly to give Appeals time to recompute tax attributable to the partners. Third, each settled TEFRA case file must be annotated to alert case processors as to the proper period in which to assess the tax against the partners.

  2. Closing TEFRA Cases in Seven Days. Unlike settled deficiency cases which normally contain waivers of restrictions on assessment, cases settled under T.C. Rule 248 do not contain a waiver paragraph permitting immediate assessment of the deficiency. Neither the petitioner nor the Tax Matters Partner is generally authorized to execute waivers for all partners. The tax cannot be assessed against the parties, who include all nonpetitioning and nonintervening partners with an interest in the outcome, until the decision becomes final 90 days after the decision is entered. Notwithstanding, all settled TEFRA cases should be closed in the same seven day period in which settled statutory notice cases are closed. The reason for closing TEFRA cases within seven days is that, unlike deficiency cases where the amount of the deficiency is set forth in the decision, assessment in TEFRA cases must be preceded by complex recomputations of tax attributable to partnership items for each affected partner. Closing the case within seven days will enable Appeals and Exam to get a head start on the complex task of recomputing the tax attributable to the partnership level adjustments in the TEFRA decision for the individual partners.

35.9.3.5.1  (08-11-2004)
Annotating the TEFRA Case File

  1. Since no assessment can be made until the appeal period expires, the following should be added on the closing transmittal in TEFRA cases:

    This is a settled TEFRA partnership case. Please advise the appropriate Service Center that assessment of any resulting deficiencies and the issuance of any notices of deficiencies for penalties should not be made until after [date].

  2. The blank should be filled in with the appeal expiration date. If an appeal with an adequate appeal bond is subsequently filed, a follow up memorandum to this effect should be immediately forwarded to the Service Center advising that assessment should be delayed pending the decision becoming final.

35.9.3.5.2  (08-11-2004)
Assessing TEFRA Cases

  1. Once the decision of the Tax Court in a TEFRA case becomes final, the Service has one year in which to assess the tax (plus any additional time obtained through "tacking." ). See section 6229(d). The decision of the Tax Court will become final 90 days (or 120 days if there is a cross-appeal) after entry of the decision if neither party files a notice of appeal during that period. See section 7481 for the determination of when a Tax Court decision becomes final.

  2. Although, as to tax years on appeal, the statute of limitations on assessment is suspended until the appellate court proceedings are concluded and the Tax Court decision becomes final and for one year thereafter in TEFRA cases, it is the position of the Service to have the deficiency assessed at the earliest opportunity.

35.9.3.5.2.1  (08-11-2004)
Tacking

  1. Tacking refers to the additional period of time provided by the unexpired portion of the three-year limitation period at the time the Final Partnership Administrative Adjustment is issued. This period may be tacked onto the one-year period for assessment following the finality of the Tax Court’s decision.


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