May 25, 2020

Tax Court Announces Limited Entries of Appearance

The concept of limited scope representation is not a new one in the legal arena. Rule 1.2(c) of the ABA Model Rules of Professional Conduct provides that “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” This rule has been broadly embraced by states. The idea of limited representation in Tax Court cases has been floating around for years. It has mostly come up in the context of pro se taxpayers who appear at calendars calls. There may be one or more volunteers willing to assist the taxpayer but are unable to enter an appearance on the spot for various reasons (e.g., inability to conduct a conflicts search, uncertainty as to whether the taxpayer will be responsive in the future, inability to determine whether case has merit). In this situation, the volunteer is usually not allowed to speak on the taxpayer’s behalf to the Court to try to assist with resolving the case and handling procedural matters.

In 2018, Special Trial Judge Carluzzo and Special Trial Judge Panuthos invited suggestions for better assisting unrepresented and low-income taxpayers in the Tax Court. In response, the American Bar Association Section of Taxation recommended that the Tax Court consider amending its rules to permit counsel to enter an appearance for a limited time or purpose. At the time of the recommendation, approximately 69% of all Tax Court petitioners and 91% of petitioners in small tax cases were self-represented. The Section of Taxation pointed out that many self-represented petitioners before the Tax Court do not understand the law or court rules and therefore are unable to make an effective legal argument. This results in inefficiencies in the Tax Court, as well as inequality because the IRS is always represented by counsel.

On May 10, 2019, the Tax Court issued Administrative Order No. 2019-01 (the Order) allowing a Limited Entry of Appearance, effective September 9, 2019. Currently, a petitioner’s counsel enters an appearance in Tax Court by signing the petition (or another initial pleading) or by filing an entry of appearance.

In accordance with Rule 201(a) of the Tax Court Rules of Practice and Procedure, and Rule 1.2(c) of the ABA Model Rules of Professional Conduct, practitioners admitted to practice and in good standing with the Tax Court may file a Limited Entry of Appearance using the form prescribed in the Order. The Limited Entry of Appearance limits an appearance to a date or dates during a scheduled Trial Session, and may not be filed earlier than the start of a scheduled Trial Session. A Limited Entry of Appearance cannot be filed electronically.

The practitioner must file with the Tax Court a separate Limited Entry of Appearance in each case. The Limited Entry of Appearance form must: (1) be executed by the practitioner; (2) contain an executed acknowledgment by petitioner(s); and (3) be served on all parties or their counsel. A practitioner’s Limited Entry of Appearance will automatically terminate at the earlier of: (1) the adjournment of the Trial Session; or (2) the end of the date(s) specified in the Limited Entry of Appearance.

Practice Point: The ability to enter into a limited scope representation is a welcome development for pro se taxpayers and volunteers. It may greatly benefit taxpayers seeking additional time to present their case or providing relevant information but lack the ability or knowledge to effectively make these points to the Tax Court and IRS counsel. We will continue to follow this development when the new rule becomes effective in the fall.

© 2020 McDermott Will & Emery

TRENDING LEGAL ANALYSIS


About this Author

Associate

Emily A. Mussio advises clients on various aspects of United States and international tax law. She is experienced with tax controversy and litigation, and federal income tax covering individuals, corporate and partnership taxation.

While in law school, Emily served as an Associate Editor for the Valparaiso University Law Review and as an Associate Justice of the Moot Court Society. She also served as a judicial extern for The Honorable Susan E. Cox, US District Court for the Northern District of Illinois.

312-984-3632
Andrew R. Roberson tax attorney McDermott Will. Andy handles tax cases in Federal court, United States Tax Court
Partner

Andrew R. Roberson is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Andy specializes in tax controversy and litigation matters, and has been involved in over 30 matters at all levels of the Federal court system, including the United States Tax Court, several US Courts of Appeal and the Supreme Court. 

Andy also represents clients, including participants in the CAP program, before the Internal Revenue Service Examination Division and Appeals Office, and has been successful in settling tax disputes through the administrative appeals and Fast Track processes.  He has extensive experience in Tax Court practice and procedure, corporate reorganizations, TEFRA, tax accounting and substance/form issues.  Andy is a frequent speaker on tax topics and has authored several articles on tax matters. 

Andy is active in the pro bono community, providing services to low-income individuals in Federal and state tax disputes on issues such as substantiation, deductions and credits, innocent spouse relief and collection matters.  He was recently named 2012 Volunteer of the Year by the Center for Economic Progress.

312-984-2732
Kevin Spencer, McDermott Will & Emery LLP , Tax Litigation Attorney
Partner

Kevin Spencer is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's Washington, D.C., office.  He focuses his practice on tax controversy and litigation issues. 

Kevin represents clients in complicated tax disputes in court and before the Internal Revenue Service (IRS) at the IRS Appeals and Examination divisions.

In addition to his tax controversy practice, Kevin has broad experience advising clients on various tax issues, including tax accounting, employment and...

202-756-8203