Tax Litigation 3

Bar Accredited Remote CLE Provider
All Jurisdictions

"If the matter concerns a tax deficiency, litigation and U.S. Tax Court then you should be talking to us"

Litigation Practice in the United States Tax Court

Teaching Faculty

IRS Approved Provider of CPE #RS7E4

Session 2 of 3

Remote Conference Dates

Saturday | July 9 | 2022
Saturday | July 16 | 2022
Saturday | July 23 | 2022

Trial Practice Discussions
3 P.M. to 6 P.M. EST


Former United States Tax Court Special Trial Judge
Member of the Bar United States Tax Court

Professor of Law | Distinguished Judicial Speaker Tax Law Institute | Fmr. Litigator Office of Chief Counsel | Admitted to Practice Supreme Court of the United States


Former United States Tax Court Judicial Law Clerk
Member of the Bar United States Tax Court

Professor of Law | Distinguished Author Tax Law Institute | Fmr. IRS Litigator Office of Chief Counsel | Admitted to Practice State of Indiana


​​​​​​​Post-Trial Proceedings | Refund Claims | Periods of Limitations for Filing Claims for Refund | Administrative Procedures on Filing Refund Claims | Jurisdictional Prerequisites and Pretrial Considerations for Tax Refund Litigation | Special Refund Litigation Considerations
With Nina Olsen, former National Taxpayer Adocate
YouTube Video Courtesy of U.S. Tax Court and the National Taxpayer Advocate

1 P.M.  -  2:30 P.M. EST


Michael Stuart
Professor Emeritus

 The Florida Bar | Accredited CLE Provider | IRS Approved CPE Provider | U.S. Tax Court Trial Practice, Litigation & Appeals

Workshop Activities

Introduction to representation, strategies, writing trial documents, and electronic filing rules. Distinctions drawn between academic writing, legal reasoning, and judicial decision-making. Overview of Appeal of Tax Court cases to the Federal Circuit Court of Appeals course for the state in which the taxpayer-client resides at the time the Tax Court petition was filed. Discussions to distinguish between Tax Court opinions and Tax Court decisions, and why the terms are not interchangeable. Explanations as to why opinions are usually issued in advance of the decision or order disposing of the case, and why the parties may only take an appeal from that decision or order disposing of the case. 

10. Special Proceedings

A. Small Tax Cases
10.01 Small Tax Case Procedure
10.02 Election of Small Tax Case Procedure
  1. In General
  2. Discontinuance of Proceedings
10.03 Pleadings in Small Tax Cases
  1. Petition
  2. Responsive Pleadings
  3. Place of Trial
10.04 Trial and Decision in Small Tax Cases
  1. Trial
  2. Decision and Appellate Review

B. Disclosure Actions
10.05 Disclosure Actions - Jurisdiction
  1. Jurisdiction Prerequisites
  2. Pleadings
  3. Burden of Proof
  4. Anonymity
  5. Joinder of Parties and Intervention
  6. Confidentiality of Proceedings

C. Collateral and Supplemental Proceedings
10.06 Collateral and Supplemental Proceedings - In General
10.07 Motion to Restrain Assessment or Collection of Tax
10.08 Motion for Review of Jeopardy Assessment or Jeopardy Levy
10.09 Motion to Review Proposed Sale of Seized Property
10.10 Supplemental Proceeding to Enforce Overpayment
10.11 Supplemental Proceeding to Redetermine Interest
10.12 Supplemental Proceeding in Estate Tax Case Involving Section 6166 Election

D. Other Proceedings
10.13 Review of Denial of Claim for Abatement of Interest
10.14 Proceeding for Determination of Employment Status
  1. Filing of a Petition
  2. Availability of Small Case Procedures
  3. Trial and Post-Trial Procedures
10.15 Proceeding for Determination of Innocent Spouse Relief
  1. Electing Innocent Spouse Relief
  2. Petition for Tax Court Review
  3. Tax Court's Review of Petition
10.16 Proceeding to Review Seizure Pursuant to Lien or Levy
  1. Tax Court's Jurisdiction to Review
  2. Petition for Tax Court Review
  3. Tax Court Review of Collection Due Process Hearing Determinations
    1. Review of Underlying Liability
    2. Review of Collection Process
    3. Appellate Review of Collection Due Process Cases

11. Post-Trial Proceedings

A. Opinions, Reports, and Decisions
11.01 Overview
  1. Reports
  2. Review by Court
11.02 Deficiency Computation
11.03 Rule 155 Agreed Computation
11.04 Rule 155 Unagreed Computation
  1. New Issues
  2. Computational Adjustments
  3. Carrybacks and Carryovers
  4. Estate Tax Deduction Developing At or After Trial
11.05 Entry of Decision

B. Post-Trial Motions
11.06 Motion for Reconsideration of Opinion or Finding
11.07 Motion to Vacate or Revise Decision
11.08 Motion for Correction of Transcript
11.09 Harmless Error

C. Appellate Review in Court of Appeals
11.10 Courts of Review
11.11 Appellate Venue
  1. In General
  2. Transfer of Appeal to Correct Venue
11.12 Reviewable Decisions
  1. Appeal from Interlocutory Orders
  2. Multi-Year Proceedings
  3. Estate Tax Deficiencies
11.13 Appeal Consideration
  1. Govenrment Attorney on Appeal
  2. Cross-Appeals and Protective Appeals
  3. Standard of Review on Appeal
11.14 Notice of Appeal
11.15 Designation and Preparation of Record
11.16 Appeal Bond to Stay Assessment and Collection

D. Review by Supreme Court
11.17 Certiorari to Supreme Court

E. Rules of Finality
11.18 Finality of Tax Court Decision
11.19 Exception to Finality: Fraud on the Court

Reference Materials
Form 11-1 Decision After Rule 155 Computation
Form 11-2 Stipulated Decision Pursuant to Settlement Agreement
Form 11-3 Notice of Appeal (Tax Court)

12. Refund Claims

12.01 Introduction

A. Proper Party to File a Claim for Refund
12.02 Taxpayer Entitled to Refund
  1. Joint Return
  2. Corporations
  3. Partnerships
  4. Assignees , Agents, and Successors in Interest by Operation of Law
    1. Powers of Attorney and Agent
    2. Assignments by Operation of Law
  5. Third-Party Payers of Another's Taxes
  6. Employers and Withholding Agents

B. Administrative Requirements as to Claim for Refund
12.03 Form for Refund Claim
12.04 Content Requirements for Refund Claim
12.05 State of Facts and Grounds
  1. Alternative Grounds
  2. Supplemental Statement of Ground
12.06 Informal Claims and Waivers
12.07 Protective Claims
12.08 Filing a Claim

Reference Materials
Form 12-1 Claim for Refund -- IRS Form 843
Form 12-2 Claim for Refund -- IRS Form 1040X
Form 12-3 Claim for Refund -- IRS Form 1120X
Form 12-4 Claim for Refund -- IRS Form 8849
Form 12-5 Extension of Period of Limitations for Filing Suit -- IRS Form 907

Break | 10 minutes

13. Periods of Limitations for Filing Claims for Refund

13.01 General Periods of Limitation
13.02 Three Years from Filing Return
13.03 Two Years from Payment of Tax
13.04 Date of Payment
  1. Withheld Taxes
  2. Claim of Right Situations
13.05 Pre-Assessment Remittance
13.06 Premature Refund Claim
13.07 Calculation of Limitation Period
13.08 Strategic Considerations as to Filing Date for Refund Claim
13.09 Amended Refund Claims
13.10 Special Situations
13.11 Bad Debts and Worthless Securities
13.12 Net Operating and Capital Loss Carrybacks
13.13 Foreign Tax Credit
13.14 Miscellaneous Statutory Extensions
13.15 Tax Court Litigation
13.16 Retroactive Statutes

14. Administrative Procedures on Filing Refund Claims

14.01 Internal Revenue Service Review Procedure
14.02 Joint Committee Review
14.03 Interest on Allowed Overpayment
  1. Date of Payment
  2. Pre-Assessment Remitances
  3. Termination of Interest
14.04 Disallowance of Refund Claim
  1. Waiver of Notice of Disallowance
  2. Request for Immediate Disallowance

15. Jurisdictional Prerequisites and
Pretrial Considerations for Tax Refund Litigation

Please take note...

Post-trial success in Tax Court may require the well-informed Tax Litigation Counsel (attorneys and United States Tax Court Practitioners) to be prepared to discuss all aspects of refund litigation with their taxpayer-client. This includes having knowledge of the refund litigation procedures that may be brought in the United States district courts and the Federal Court of Claims.

Even though USTCPs may not extend their practice beyond U.S. Tax Court, they may offer counsel to current or prospective taxpayer-clients in this area of litigation, which is considered to be within the scope of their practice.

Whereas attorneys may practice in the U.S. district courts and Court of Federal Claims, once admitted. Consideration should be given to further training surrounding the commencement of a tax refund suit and initial pleadings. Such instruction is available through our CLE programming.

A. Jurisdictional Prerequisites
15.01 Introduction
15.02 Proper Party Plaintiff
  1. Anti-Assignment Act
  2. Amendment of Pleadings
  3. Intervention
  4. Class Actions and Consolidation of Related Actions
15.03 Full Payment of Tax
  1. Installment Payments
  2. Divisible Taxes
  3. Excise Taxes Under Chapters 42 or 43
  4. Interest
  5. Penalties
15.04 Proper Refund Claim
15.05 Period of Limitations for Filing Suit
  1. Multiple Notice of Claim Disallowance
  2. Premature Filing of Suit
  3. Suit Commencement Date
  4. Waiver of Notice of Disallowance
  5. Extension of Two-Year Period of Limitations
  6. Reconsideration of Disallowed Claims

    B. Pretrial Considerations
    15.06 Choice of Forum
    1. Appellate Jurisdiction and Precedent
    2. Availability of Jury Trial
    3. Procedural Rules
    4. Forum Shopping
    15.07 Representation of Parties
    1. Taxpayer's Counsel
    2. Counsel for the United States

    16. Special Refund Litigation Considerations

    16.01 Burden of Proof
    1. Taxpayer's Dual Burden of Proof
    2. Government Counterclaim
    3. Fraud Penalties
    4. Government Setoffs
    16.02 Government's Defense
    1. Waiver
    2. Taxpayer Responses
    3. Internal Tax Division Procedure
    16.03 Setoffs and Equitable Recoupment
    1. Setoffs
      1. In General
      2. Taxpayer Counter - Setoffs
    2. Equitable Recoupment
    16.04 Estoppel From Filing Refund Suit by Reason of
    Administrative Settlement
    1. In General
    2. Reservation of Rights by Taxpayer
    16.05 Priority of Related Tax Court Proceeding
    1. Prior Tax Court Case
    2. Subsequent Tax Court Case
    3. Related Tax Court Case
    16.06  Action for an Account Stated
    1. In General
    2. Jurisdictional Prerequisites


    Accredited CLE Provider
    The Florida Bar

    U.S. Tax Court
    Continuing Legal Education Services
    for United States Tax Court Trial Practice
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    Washington DC 20036
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