Tax Court’s New Document System Achieves New Low In Transparency

The Tax Court after going dark for a month has rolled out DAWSON its new filing and case management system. The system is supposed to honor the late Howard A. Dawson Jr. Judge Dawson was the longest serving judge on the Tax Court. I’m thinking that if he could speak to his colleagues from those chambers in the sky, he might say that he would have been happier if they had named a conference room for him. 

There is close to universal disdain for the system in my small circle. To be fair though it may be that we are using the site for an incidental purpose. I did find one positive report, but I will start with the reaction from four grumpy old men of which I am the youngest.

Broken Links

One of the things that I do for my readers is provide links to the Tax Court opinions that I write about. All those opinions are in the new document management system (I think, although there is some doubt). Now when you click on any of those links, this is what you will see:

<Error><Code>AccessDenied</Code>

<Message>Access Denied</Message>

<RequestId>5QCW0MBK0NBXFMDG</RequestId><HostId>WZYv5GM478FsXuRJnJmmhnjOdVN3GgpnTKteI9I+1/+d6K/XBZco3JhjdZ3hlmK638Yr4U9QVtI=</HostId>

</Error>

It is not just my work that is affected of course, but it may be worse for me than for most other tax journalists. When I wrote about a case in which it was pretty apparent that the litigants would not want me to make them more famous, all I provided to my readers was a link. I made up names for the litigants.

I had an exchange with the public affairs counsel of the the Tax Court. Here is how it went.

PJR: I write on taxes for Forbes.com and have been covering the Tax Court for over a decade. As a convenience to my readers I generally include links to decisions in my articles. Presumably because of the new system it seems that all the links are now broken. I imagine I am not alone in this. Will anything be done to address this issue?

Public Affairs: Thanks for your inquiry. All of the opinions that were previously available through the Court’s website remain publicly available. We will be adding search functionality to locate and retrieve those opinions. Opinions, however, do not have the same URL as with the previous case management system, and links to items in the old system will not retrieve items in the new system. 

PJR: Was any consideration given to the effect that that decision has on tax journalists? I have been covering the Tax Court for over ten years and my articles always included links.

Public Affairs: Unfortunately, we were unable to preserve the links.

I took that as a “No. Why should we care about tax journalists?”, but that is just me being a grumpy old man.

What About Yesterday And The Day Before?

Lucien Gauthier of the Boston Tax Institute is one of the best informed tax guys that I have ever met. (Disclosure I am on the BTI faculty). A week or two into December, we were talking about something and he threw out a proposed wager. “Hey I will bet you a buck you can’t tell me how many Tax Court opinions have issued this month?”.

I hesitated, because since Lu tends to know everything I figured it was a trick question, but finally I told him that the answer was zero. It turned out that he had not known about the DAWSON December blackout.

Now it is January and he wants to catch up on reading the latest opinions. He can get today’s opinions and that’s it. Yesterday’s are still in there, but you have to have a name or docket number in order to get at them. That particular problem does not trouble me thanks to RIA Checkpoint, but still.

Don’t Get Him Started

Lew Taishoff covers the Tax Court with an incredible intensity. As I struggle with this single post on January 25, which will probably not be done till January 26, I see that he has posted four time today. He doesn’t just cover opinions. He also covers orders. He wrote me:

 Briefly, the rollout was bungled, input from necessary stakeholders (inter alia, the trade press and blogosphere) was neither considered nor solicited, a Beta version was not available for comment (which would have spared much trouble), and the latest patchwork fixing has produced a system that, from my perspective, limps where its predecessor ran.

Mr. Taishoff’s blog has a number of other DAWSON complaints. There is The Case Of The Disappearing Appearance

Formerly, under the old and much-lamented no-name system, the docket sheet showed appearances. If petitioner were self-represented, that showed. If counsel filed the petition, or entered appearance thereafter, that showed. And IRS’ counsel was shown as soon as assigned.

That enabled me to call out dubious practitioners and sharp practice, and to praise those who did well, strove diligently, and generally took one for the side.

And it might have served as a referral service for pro ses in above their depth and looking for cover.

But the new, improved (ya gotta be kiddin’), jazzy, jim-handy DAWSON eliminated all that, and anonymity reigns.

Then in Well, Sir – Your Credentials? – Redivivus

The reader will doubtless note I haven’t cited to specific language for the substance of Judge Eminent’s opinion. The Genius Baristas of Dawson’s Creek have again created new problems without solving any old ones. I can’t cut and paste language from the website text today, although I could do so yesterday. To do so today, I’d have to input the language separately. Why this should be I have no idea. As a journalist on deadline, I have not the luxury of time to copy Judge Eminent’s wisdom, well worth the labor though it is.

Perhaps the Geniuses are afraid someone might make these matters public, despite Section 7461’s mandate that they should be publicly available.

I had promised I would forswear ranting about the Genius Baristas’ shambolic schemozzle. I take my pledged word seriously. But the Genius Baristas have provided density altitude that shortens the runway, so I may have a very bad fit of plain speaking if they don’t sort this out.

That’s enough. Like I said. Don’t get him started.

From The EO Tax Journal

The most bitter criticism I have seen comes from Paul Streckfus of the EO Tax Journal, although it is about the general problem of lack of transparency rather than just DAWSON

“Pursuant to 26 USC Section 7461(a), all reports of the Tax Court and all evidence received by the Tax Court, including a transcript of the record of the hearings, generally are public records open to inspection by the public.”

This is true in theory only. Access depends on being able to find a case. Finding an EO tax case should be without difficulty. Docket numbers for EO cases are followed by an “X”. That should make it easy to find all current EO tax cases (there are not a lot of them), yet the Tax Court refuses to assist in this effort (or even allow a search of their database).

The Tax Court has recently launched a new case management system, called DAWSON (Docket Access Within a Secure Online Network). This system is no better than the prior one for public access, but there may be a way to pry public information out of this system that I and others are going to be exploring this year.

As I’ve said before, no other federal court in the United States blocks public access to public records the way the Tax Court does. It is a stain on the integrity of the Tax Section of the American Bar Association that it tolerates this improper lack of transparency by the Tax Court towards court records that everyone agrees are open to public inspection. Chief Judge Maurice B. Foley, who I first knew as a staffer on the Senate Finance Committee, should be ashamed that this situation continues under his watch. Secret tax law begets secret tax deals and inconsistent results so that similarly-situated taxpayers are treated differently. “Applying the tax law with integrity and fairness to all” should never be said by anyone associated with the Tax Court or the IRS Office of Chief Counsel.

A Positive Review

Steve Milgrom has a review of DAWSON on Procedurally Taxing which is positively giddy – DAWSON is Awesome.

DAWSON! As a tax lawyer who already talks in Code, I’ve added a new word to my lexicon. DAWSON! What a fabulous word it is! And it didn’t even take an act of Congress.

Dawson is the name given to the Tax Court’s new case management system. If this is the wonkiest thing I’ve ever celebrated I don’t know what is. Why the celebration? With the role out of Dawson on December 26^th the Tax Court now permits Petitions to be e-filed. And yes, December 26^th was a Sunday. Someone was actually working the weekend to get it going.

On the other hand Mr. Milgrom does echo Mr. Streckfus’s concern.

Now if we could just get the Tax Court to give us equal access to court filings. While Chief Judge Foley recently wrote that the pandemic has revealed that geography is not a barrier to connection, it sure is a barrier to Taxpayer Rights. Just like other Federal courts, the Tax Court’s records should be available for remote viewing so we can all have the benefit of learning from what others do in their cases

Who Are The Stakeholders?

It might be that Mr. Milgrom’s positive review indicates that DAWSON was designed with practitioners and litigants in mind, so maybe the grumpy old men should just find some lawn trespassing kids to yell at. (I was going to share a clip about that, but the language is unsuitable.)

The Tax Court is not just about deciding disputes between taxpayers and the IRS, though. It serves an educational function. Judge Buch explained it in 2014, when he took the trouble to go through the arguments in Peter Hendrickson’s Cracking The Code that Steven Waltner had relied on.

Judicial opinions are the “‘heart of the common law system'” and serve as “a critical component of what we understand to be the ‘law.'” Statutes and regulations provide simply an outline; judicial opinions fill in the details by providing the rule of law the court applied, the court’s rationale in applying that law, and the underlying facts.

Judicial opinions serve many purposes: they assist attorneys in advising clients and preparing cases; they provide the lower court’s rationale when the appellate court must evaluate its decision; they inform the public of the court’s analysis; and they establish clear and articulate rules for the future.

And tax practitioners who don’t have the time to read every single Tax Court opinion rely on people like the grumpy old men to find the ones that are of particular interest to them.