It is imperative that all briefs filed with the Tax Court assert positions consistent with Service’s legal positions and policies and uphold the office’s reputation for the highest quality of written product. In order to ensure these attributes, a number of briefs, prepared by Field attorneys, are reviewed by the Associate offices before filing. A brief must be reviewed by an Associate office if any issue appears on Exhibit 35.11.1–1, Issues Requiring Associate Office Review.

Even though a case involves issues which do not require review, novel, unusual or unique questions may be presented. It is the responsibility of the docket attorney and the reviewer in Field Counsel to identify those cases involving issues presenting such questions as to warrant review by an Associate office, and to forward the brief for such review according to present procedures.

All briefs requiring review by an Associate office are to be submitted via email to "TSS4510" for receipt at least ten calendar days prior to the due date, so that there will be time for an adequate review of the brief and for any coordination of the case which may be necessary. Reply briefs should be received seven calendar days prior to the due date. If the due date of the brief is 30 days or less from the date of trial, Field Counsel and the Associate office will consult and agree on the date that the brief must be submitted for review. A Field reviewer and Associate office branch reviewer can also agree to shorten the required review periods for other cases. Any agreement to deviate from the ten day and seven day rules should be memorialized in a fax or email from the Associate office reviewer to the Field reviewer, so that there will be no confusion concerning the required due date. At the time the brief is emailed to the Technical Services Support Branch ("TSS4510" ), the legal file containing a copy of the brief and background documents should be mailed to:

Only the final draft of a brief ready for filing with the Tax Court should be sent to the Associate office for review. By submitting a brief to "TSS4510" by email, the Field reviewer attests that the brief has been reviewed and, except for review by the Associate offices and a signature, is ready for filing with the Tax Court. The email transmittal must be sent by the reviewing manager (or a delegate) in Field Counsel to the mailbox "TSS4510." If the brief is sent by a delegate, the transmittal message should explicitly state that "[Name and title] has completed the brief review so that, except for Associate office review and signature, it is ready for filing with the Tax Court, and has authorized [sender’s name] to forward the brief."

The emailed memorandum transmitting the brief to the Associate offices should point out: questions of first impression; novel or unusual problems; lack of conformity with regulations, rulings, etc.; or any other feature which Field Counsel deems advisable for special consideration by the Associate offices. The transmittal should specifically state whether the court has imposed any page limitation on the brief and provide a complete description of any such limitation (e.g., whether it applies to any particular portion of the brief, such as the Argument or Points Relied Upon portions). This information is extremely helpful to the Associate offices in timely completing the review of the brief. If trouble areas are spotted prior to a detailed review, the Associate offices will be able to determine at an earlier date whether an extension motion may be required so that petitioner’s counsel can be advised.

In the exceptional case where the filing of the brief is to be made by an Associate office, the transmittal memorandum should state whether petitioner is represented by attorneys with different office addresses, or whether petitioners in a consolidated group are represented by different attorneys. This information is necessary so that the Associate office may file with the court enough copies of the brief for all counsel.

A brief will be considered received as of the date it is " received" in the "TSS4510" mailbox if it is received by 3:00 p.m. Eastern Time on a day on which the United States Postal Service delivers regular mail to the Associate office. Transmittals received in the "TSS4510" mailbox after 3:00 p.m. Eastern Time on a business day, or on any weekend or holiday, will be deemed received on the next business day.

For review of seriatim and reply briefs, a copy of the petitioner’s brief should be forwarded upon receipt by the Field attorney.

Briefs must be prepared in Word and must be named using the " .doc" extension; any transmittal should specify which version was used. Briefs over 60 pages must be zipped before being transmitted. Drafts may be exchanged directly between the assigned attorneys under the prereview process, without a formal brief review assignment, if all the parties have agreed to work on a draft of the brief. The submission of a draft, however, will not comply with the prereview or pre-filing brief review requirements. To facilitate necessary changes, all briefs must be accompanied by a computer disk containing the brief in Word format, utilizing the features for automatically generating the Table of Authorities, Table of Contents, and automatic paragraph numbering. The Field attorney should request sufficient briefing time at the conclusion of the trial to ensure that these time requirements are met. New software specifications will be provided if and when the Office of Chief Counsel migrates to a succeeding word processing platform.

The above information is required to be provided in the brief transmittal, whether by email or by Form 2237, Counsel Transmittal Memorandum.

The Associate offices are primarily concerned with whether the position taken on the issues is in accord with the Service’s position, or in accord with an Associate office’s interpretation of the applicable provision of the statutes, regulations, rulings, and the decided cases. If the Associate office determines that changes are necessary before the brief can be filed on behalf of the Chief Counsel, the Associate office will discuss the proposed changes with Field Counsel. In such cases, the Associate office will provide their proposed changes to Field Counsel not later than two working days prior to the due date of the brief.

It is recognized by the Associate offices that the Field attorney has pride in the brief and in the way of presenting the issues to the court; therefore, to the extent practicable, substantial changes should be discussed with the Field attorney and the Field reviewer. Should Field Counsel disagree with the changes proposed by the Associate office, Field Counsel must determine whether to request reconciliation with respect to the proposed changes. Field Counsel must incorporate the Associate office’s substantive changes into the brief, unless reconciliation procedures have been followed resulting in a final determination by that the Associate office’s changes were erroneous, unnecessary, or inappropriate.

Within five days of receiving the brief, the appropriate Associate office will acknowledge receipt of the brief and provide the person submitting the brief the names of the attorneys assigned to such brief. Matters requiring extensive consideration by an Associate office should be anticipated by Field Counsel and in such cases the briefs should be received by the Associate office in sufficient time to permit adequate and complete consideration. Ordinarily, after completion of review in the appropriate Associate offices, Field Counsel will make any necessary changes to the brief as agreed upon between Field Counsel and the Associate offices and mail the completed brief to the Tax Court for filing. A copy of the completed brief as filed must be sent to the Associate offices for normal copying and distribution. Alternatively, Field Counsel and an Associate office may agree that the filing of any individual brief will be made by an Associate office.

The Associate office attorney assigned to the review of a brief has the following responsibilities:

Changes are not to be made in a Field Counsel brief merely for the sake of change or because the reviewing attorney would have used a different style in writing. All changes proposed by the reviewing attorney in a brief are to be made only with the approval of the reviewer.

The Associate office will advise Field Counsel of proposed changes to be made in the brief at least two days before the brief due date absent exigent circumstances.

A brief review checksheet is utilized by Associate offices in their review of Tax Court briefs. The checksheet is intended to help field offices identify strengths and weaknesses, concentrate on any shortcomings, and ultimately obtain a better quality product. The checksheet identifies several quality factors which should be of interest to the originating field office and gives the Associate office’s evaluations and comments on those factors.

A checksheet will be prepared by the Associate office on each Tax Court brief received for review. Briefs will be evaluated in accordance with the general guidelines for brief form and content set forth in CCDM 35.7.2 et seq. The reviewing attorney will complete the checksheet and add any pertinent comments that may be of benefit to the originating office. Copies of the completed checksheet will be sent to the originating field office, and to Division Counsel.

Briefs addressing issues that are not listed on Exhibit 35.11.1–1 (Issues Requiring Associate Office Review) may be directly filed with the Tax Court by Field Counsel. As a general rule, if there is any doubt or hesitation as to whether the brief is one of the types which should be reviewed by an Associate office, it would be preferable to send it to such office for review prior to filing.

For those briefs which are directly filed by Field Counsel, it is the responsibility of the Field reviewer to ensure that they are correct factually and legally and of the highest quality.

The timely filing of briefs with the court is critical. While the "timely mailing as timely filing" provisions of section 7502 apply to the filing of Tax Court briefs, field offices ideally should mail all briefs in sufficient time so that they will be received by the court on or before the due date. See T.C. Rule 22. Each brief should be mailed separately by certified mail or via a designated private delivery service qualified under section 7502(f). The brief should not be mailed in the same envelope with any other documents being directly filed with the court. If possible, the person posting the brief by certified mail should attempt to have the United States Postal Service postmark the envelope containing the brief. In addition, a postmarked sender’s receipt for certified mail, or receipt provided by a designated private delivery service under section 7502(f), should be retained in the event it is necessary to prove timely mailing of the brief to the court.

Field Counsel must forward two copies of every directly filed brief to the Technical Services Support Branch ("TSS4510"), Associate Chief Counsel (CC:PA:LPD:TSS), Room 5331, 1111 Constitution Avenue, N.W., Washington, D.C. 20224 at the same time the original is mailed to the court. The transmittal to TSS4510 should identify the issues and the exception which permits the direct filing without review by an Associate office. One copy of the brief will be forwarded TSS4510 to the appropriate Associate office for determination if formal post review of the brief is required. Within five days of the receipt of the brief, the Associate office will make the determination if formal post review of the brief is required. This determination will be recorded on the Post Review of Direct Filed Briefs form and returned to TSS4510. One copy of the direct filed brief will be forwarded to the Digest room where they are indexed and stored for future use.

Ordinarily, Field Counsel will direct mail all briefs to the Tax Court for filing, including those briefs required to be reviewed by the Associate offices. See CCDM 35.7.3.2. Alternatively, Field Counsel and an Associate office may agree that the filing of any individual brief will be made by the Associate office. T.C. Rule 151(c) provides that service of briefs will be made by the Clerk of the Court unless the brief bears a certificate of service, and except that, in the event of simultaneous briefs, briefs are not to be served until the corresponding brief of the other party has been filed, unless the court directs otherwise. Accordingly, simultaneous briefs ordinarily should not be served on the opposing party. Instead, the Clerk will effectuate service on petitioner upon receipt of petitioner’s brief.

Petitioners’ counsel often furnish courtesy copies of their briefs to the respondent’s attorney or serve their briefs directly on respondent’s field office. In the spirit of the Tax Court’s rule mandating simultaneous service of simultaneous briefs, respondent’s counsel should generally avoid reading petitioner’s brief until counsel has either direct mailed respondent’s brief to the court or otherwise confirmed that respondent’s brief has been filed.