Caitlin Hird (Harvard) & Keith Fogg (Harvard), Professional Se Precedent within the U.S. Tax Courtroom: A Case for Amicus Briefs:
The US Tax Courtroom hears properly over 90% of the federal tax instances litigated every year with solely a small share of opinions popping out of district courts and the Courtroom of Federal Claims. The Tax Courtroom classifies its opinions as precedential or non-precedential primarily based on the problems offered. Over 75% of Tax Courtroom litigants file their petition professional se. Annually it classifies a handful of opinions as precedential through which the petitioner(s) is professional se. In nearly all of those instances the Courtroom creates binding precedent on the premise of a case through which just one facet, the IRS, presents significant authorized arguments thus turning the method resulting in the choice from one primarily based on the adversarial course of to the inquisitorial course of. Whereas the Tax Courtroom works exhausting to achieve the best conclusion, it loses the advantage of authorized argument on the facet of the petitioner/taxpayer and doubtlessly reaches a unique conclusion than it may need reached had the taxpayer’s facet of the argument been properly developed.
Tax Courtroom opinions usually take a number of months or years after trial earlier than the Courtroom renders an opinion. This paper means that when the Tax Courtroom decides to render a precedential opinion in a professional se case it pause its deliberations for a brief interval and appoint or solicit members of its bar, both within the low revenue taxpayer scientific group or different professional bono counsel, to permit the submission of an amicus on behalf of the place of the taxpayer. The paper factors to practices in different courts which have developed a extra formal method to amicus briefs as fashions for the proposed apply. Adopting such a apply wouldn’t solely profit the person litigant however all who observe with the identical subject.