The Business, Entrepreneurship & Tax Law Review
Article Title
No More Document Dumps or Secret Subpoenas: Amending the U.S. Tax Court Rules to Conform to the Federal Rules of Civil Procedure, Streamlining Pretrial Discovery
Abstract
The U.S. Tax Court Rules of Practice and Procedure governing pretrial discovery and subpoena production should be amended to closely mirror the Federal Rules of Civil Procedure. Over the years, extensive amendments and regular updates were made to the Federal Rules, keeping them current with federal court practice. This is not true of the Tax Court Rules, which caused several pretrial discovery rules to become outdated. Specifically, the Tax Court Rules regarding subpoena enforcement. They currently allow for last-minute document dumps on the eve of, and sometimes day of, trial. This outdated rule creates a significant challenge for those who practice and litigate before the Tax Court. Amending the rules will bring transparency to the subpoena process, limit opportunities for parties to conduct “trial by ambush” on their opponents, and provide consistency and efficiency in enforcing the turnover of subpoenaed information before trial. The proposed Tax Court Rule amendment in this article does not expand the discovery rules beyond what is already contemplated in their plain language, but merely allows an earlier exchange of documents, encouraging earlier settlement between parties.