The Tax Court’s Rules provide for either seriatim (one after another) or simultaneous briefs. If seriatim (non-simultaneous) briefs are ordered, one party (usually the petitioner) files its “Opening Brief” first, the opposing party thereafter responds to the opening brief with an “Answering Brief,” and the first party thereafter responds to the answering brief with a “Reply Brief.”

If the court specifically indicates that a formal brief is not desired, a Memorandum of Authorities may be filed, with permission of the court. This document will rarely be ordered in regular cases and, in such cases, should be reviewed in the appropriate Associate offices if it involves issues that must be submitted to such offices for review. See CCDM 35.7.3.2.

A memorandum of authorities should contain a brief recitation of the issues, respondent’s position, reference to the pertinent Code and Regulation sections, and a general discussion of the applicable law.

The memorandum of authorities should incorporate the facts established at the trial. The extent of discussion of the facts in a memorandum prepared prior to trial and submitted at trial will depend upon the nature of the case and the stipulation of facts.

In some instances the court may request the parties to file proposed findings of fact as a stand-alone document. This document is headed, "Respondent’s Proposed Findings of Fact." It is rarely used, and when requested by the judge, it is preferable to include, in addition to the proposed findings of fact, the ultimate facts desired by the respondent and a Memorandum of Authorities on the issues involved.

A memorandum brief is headed Memorandum Brief for Respondent. It is used primarily in connection with motions and, in some instances, for cases tried under the "S" case procedures. A memorandum brief may be used as an accompaniment to, and in support of, a motion by respondent when it is necessary to enlarge upon the grounds for granting the motion beyond those set forth in the motion. It also may be used in opposition to a petitioner’s motion when it is advisable to inform the court in writing of the respondent’s position, either prior to the argument on a petitioner’s motion or at a hearing. Upon the completion of an oral argument on a motion, the court sometimes requests a memorandum brief on the legal points involved. The use of this type of brief in tried cases is unusual except for cases coming under the "S" case procedures.

The form of a memorandum brief depends upon the number of legal points discussed, its length, and the purpose for which it is prepared. If only a single legal issue is involved, the Contents page may be omitted. If few cases are cited, the Citations page may also be omitted. The Questions Presented page is generally omitted unless a number of issues are argued. The section for Respondent’s Request for Findings of Fact is omitted, and the pertinent facts are summarized in the beginning of the Argument on each issue. The Points Relied upon section is also usually omitted. The Preliminary Statement section is omitted, but the opening paragraphs of the brief should contain statements as to how the issues arose before the court and the reasons for filing the brief. A Conclusion is included as in a regular brief. There are no definite rules for its preparation. Before preparing a memorandum brief in a tried case, the attorney should discuss the matter with the reviewer in order to reach an understanding about the form and content of the brief.

In the opinion of a number of the judges of the Tax Court, an answering brief considerably strengthens a party’s case. This factor should be borne in mind in the preparation of the brief. Because the answering brief addresses the arguments and contentions made by petitioner, the court is not left with any uncertainty as to the position of the respondent on any new phases of the case. No assumption can therefore be made by the court as to the abandonment by the respondent of any point in the case. Furthermore, if an argument is not fully and completely made in the original brief, such argument can, and should, be strengthened in the answering brief.

An answering brief will be filed by the respondent in virtually all cases. The attorney cannot assume that merely because respondent’s requested findings and arguments are contrary to or incompatible with petitioner’s requested findings and arguments, respondent’s original brief has answered the petitioner’s brief. The inconsistencies between petitioner’s and respondent’s requested findings and arguments should be specifically handled in the answering brief. The answering brief should also make clear to the court that respondent is not abandoning or conceding any issues. This can be done in two ways: by addressing each issue in the answering brief or by including a disclaimer. The disclaimer should state, for example, that failure to address issues covered in the opening brief does not constitute a concession or abandonment of those issues, that the answering brief is confined to matters not previously discussed or requiring clarification, and that the opening brief adequately covers the relevant factual and legal arguments for the issues not discussed.

While the general rule is that answering briefs should be filed in all cases in which simultaneous original briefs are filed by the parties, there are instances in which an answering brief is not necessary. These exceptions will be rare, and any doubt should be resolved by Field Counsel in favor of filing an answering brief. No specific guidelines can be laid down that will be applicable in all cases. An answering brief certainly should be filed in instances in which the parties are not in accord in their requested findings of fact. In this instance the court should be advised as to those requested findings of the petitioner with which we are in accord and as to those requested findings with which we are not in accord. The reasons for the disagreement should be stated. An answering brief should also be filed in instances in which petitioner’s arguments are based upon points, facts, statutory provisions, or case law that have not been fully and completely covered in respondent’s original brief. This is a troublesome area, and while respondent’s original brief may have included to some extent an argument dealt with more fully in petitioner’s brief, it is often necessary, or at least desirable, to enlarge upon such arguments, without unnecessary duplication, in an answering brief. It should never be assumed that petitioner’s argument is facetious or lacks substance; such factors should be respectfully and in a proper manner pointed out to the court in an answering brief. Furthermore, it must be kept in mind that some judges of the court specifically require the filing by the parties of answering briefs; these requirements must be strictly complied with in all instances. There are other judges who do not specifically request the parties to file an answering brief. Judges may, however, give consideration to the failure of one party or the other to respond to the opponent’s requested findings of fact and arguments in an answering brief.

In some cases, an answering brief may not be necessary due to the nature and contents of petitioner’s brief and the requested findings and arguments of respondent’s original brief. A decision not to file an answering brief should be made by the Field attorney in consultation with the reviewer. After such a determination, Field Counsel will prepare, within the due date for filing an answering brief, a document entitled, "Notice of Intent Not to File Answering Brief." See Exhibit 35.11.1–121. If the original brief was filed directly with the court by Field Counsel, the Notice of Intent Not to File Answering Brief should be signed by Field Counsel and filed directly with the court. If the original brief was reviewed by an Associate office, the notice of intent, together with the legal file containing copies of the transcript and the parties’ original briefs, should be sent to that Associate office for review.

A brief may be supplemented in several ways. One method is the filing of a formal document in the nature of a responsive brief, which is filed after respondent has filed the briefs permitted by the rules or an order of the court. This document must be accompanied by a motion for leave to file. A more common method of supplementing a brief is the filing of a Notice that simply calls the court’s attention to a recent decision on point or distinguishes a case or cases relied upon in a reply brief, answering brief, surreply brief, or supplemental brief filed with the court. The Tax Court has several forms for such a Notice that may be selected through eAccess for electronic filing: (1) Notice of Judicial Ruling; (2) Notice of Relevant Judicial Decisions; and (3) Notice of Supplemental Authority. The e-filed Notice form of supplementing a brief replaces the former procedure of sending a letter addressed to the trial judge, with a copy to petitioner or opposing counsel, informally advising the court of a recent judicial development. The Notice form of supplementing a brief may not be used if its purpose is to make extensive legal arguments or answer in detail a new argument raised by the petitioner in an answering or reply brief. The Notice does not require a motion for leave to file. Formal supplemental briefs or Notices supplementing a brief are reviewed in the appropriate Associate office to the same extent as any other brief.