Certain issues listed below by respective Associate office require National Office review. An issue on the Associate office review list must be coordinated regardless of the stage of the case in which the issue arises (e.g., whether in examination or in litigation). Coordination on these issues should be commenced at the earliest opportunity and well before litigation, if possible.

Advice issued to the client, briefs and motions filed with the Tax Court, and suit and defense letters sent to the Department of Justice must reflect positions consistent with Service legal positions and policies and uphold the office’s reputation for the highest quality of written product. In order to ensure these attributes, documents involving novel or significant issues contained on the Associate office review list will be reviewed in Associate offices before issuance or filing of the document. The Associate Chief Counsel and Division Counsel will consult regarding the prompt removal of any pre-review requirement once the Service’s position has become sufficiently established that pre-review is no longer necessary.

The issues list set forth below contains both generic and specific significant issues. Any issue included on either list must be coordinated with the affected Associate offices. Although some Associate offices may not have a specific issue list, coordination of generic significant issues with those offices is required and should be done at the earliest opportunity. Also refer to the Significant Case Program coordination procedures at CCDM 31.2.1.1 for additional guidance for additional items that may need to be coordinated with Division Counsel.

There are issues that do not require Associate office review. An issue not described in the generic or specific significant issues list is presumed not to require Associate office review. Court documents that contain no issues requiring Associate office review and that are not of a nature that requires Associate office review may be filed directly without Associate office review. Defense and suit letters that do not contain issues on this list may be sent to the Department of Justice without Associate office review regardless of their classification as Standard or S.O.P. See CCDM 34.8.1, Settlement Procedures Overview.

Even though a case does not contain any of the issues described below, novel, unusual, or unique questions may be presented. The Division Counsel office is expected to communicate informally with the appropriate Associate office when these issues arise. In some cases, the Associate office will want to review certain documents before they are filed or issued. It is the responsibility of the attorney and the reviewer in the Division Counsel office to identify those issues that warrant review by an Associate office and to forward the document for both pre-review and review according to current procedures. For those briefs, motions, and letters that are directly filed or sent to the Department of Justice by the Division Counsel office, it is the responsibility of the Division Counsel reviewer to ensure that they are correct factually and legally and of the highest quality. In addition, attorneys and reviewers in Division Counsel are still required to perform any necessary substantive issue coordination among Division Counsel offices pursuant to existing issue coordination procedures.

When an issue is identified as significant and requires coordination, it is the responsibility of the Division Counsel office to seek and the Associate offices to provide timely advice. All such requests, and any advice provided, should generally be in writing. Generally, the Division Counsel and Associate office attorneys will come to an agreement with respect to the timing of the advice that will be given, and if an agreement cannot be reached, then the issue should be elevated through the respective management chains. In exigent situations, such as an expiring statute of limitations or court deadline, the Division Counsel and Associate office attorneys should discuss the urgency for the advice, and the advice should be provided by the Associate office in sufficient time to take the appropriate action before the exigent event. If the advice is not timely sought by the Division Counsel office, or is not timely provided by the Associate office, the Division Counsel office may proceed with the proposed position subject to modifying or changing the position, as appropriate, to reflect the correct legal position after the advice request has been fully considered and coordinated. Before doing so, however, the Division Counsel office must notify the appropriate Associate office and their Division Counsel of their intent to do so. The attorney in the Associate office who receives such notice must promptly notify his or her Associate Chief Counsel of the Division Counsel office’s intent. The failure to timely seek or provide advice when circumstances would have permitted timely coordination is a performance issue that should occur only in rare circumstances. It should be addressed at the management level. This will typically require a post-filing review of the circumstances leading to the event and a discussion between the relevant Division Counsel and Associate Chief Counsel as to how to prevent a reoccurrence.

I. Generic Significant Issues that Require Associate Office Review with the Affected Associate Office

An issue will be significant such that it requires relevant Associate office review regardless of the underlying code section or subject matter if it involves any of the following:

II. Other Specific Issues Requiring Review by an Associate Office

In addition to the foregoing issues, the following specific issues require review by an Associate office:

CNTA

Corporate

Income Tax and Accounting

International

Passthroughs and Special Industries

Procedure and Administration

Employment Taxes

Employee Plans/Qualified Plans/Executives & Nonqualified Deferred Compensation/IRAs

Health and Welfare Plans

Government Entities

Tax Exempt Organizations

Former Exhibit 35.11.1-2, Direct Filing and Service of Documents, was combined with Exhibit 35.11.1-1 per Chief Counsel Notice CC-2014-005. Although Exhibit 35.11.1-2 was deleted, the exhibit number was retained so that all the exhibits that follow would not be re-numbered.

TE/GE HAS JURISDICTION OVER TE/GE TAXPAYERS REGARDLESS OF THE ISSUES INVOLVED AND OVER TE/GE ISSUES REGARDLESS OF THE TAXPAYER INVOLVED

This exhibit identifies the more common TE/GE issues and shows when SBSE and LB&I managers must transfer a case to TE/GE or coordinate with TE/GE in the assignment or handling of these issues.

(1) IS THE TAXPAYER A TE/GE TAXPAYER?

General rule: Regardless of the issues, if a case involves an employee plan (EP); exempt organization (EO); tax exempt bond (TEB); federal, state, local government (FSLG), or Indian tribal government (ITG) taxpayer, call the Area Counsel (TE/GE) office and transfer the case.

(2) IS THE TAXPAYER AN LB&I, SBSE, OR WI TAXPAYER WITH ONE OR MORE TE/GE ISSUES?

General rule for sole issue: Transfer case to TE/GE if the sole issue is a TE/GE issue. The more common issues are shown below.

General rule for mixed issues: Call to coordinate if there are multiple issues with mixed non-TE/GE and TE/GE issues.

Exceptions:

(3) TE/GE ISSUES

4) WHETHER TO TRANSFER, COORDINATE OR SEEK TECHNICAL SUPPORT ON EMPLOYMENT TAX CASES

____

____

___

RESPONDENT MOVES, pursuant to Rule 41(a) of the Tax Court's Rules of Practice and Procedure, for leave to file an amendment to answer to seek an increased deficiency and increased additions to tax under the provisions of I.R.C. § 6214(a).

IN SUPPORT THEREOF, respondent respectfully states:

1. The petition in this case was filed with the Court on [date].

2. The answer to that petition was filed on [date].

3. During the [year] taxable year, the year at issue in the instant case, petitioner was a partner in [name of partnership], and reported items attributable to [name of partnership] on the Federal income tax return (Form 1040) for that year.

4. [Name of partnership] is a TEFRA partnership for the [year] taxable year. Accordingly. the tax treatment of the partnership items attributable to [name of partnership] for the [year] taxable year must be determined at the partnership level pursuant to I.R.C. §§ 6221-6234.

5. A notice of final partnership administrative adjustment was mailed to the tax matters partner of [name of partnership] with respect to the [year] taxable year on [date]. A petition for readjustment of partnership items was filed in this Court in response to that notice and assigned docket number [docket no.].

6. The notice of deficiency that forms the basis for the instant case was prepared by assuming that petitioner correctly reported his distributive share of partnership items attributable to [name of partnership] on the [year] Federal income tax return.

7. In Munro v. Commissioner, 92 T.C. 71 (1989), this Court held that the partnership items (whether income, loss, deduction or credits) included on a taxpayer's return should be completely ignored in determining whether a deficiency exists that is attributable to nonpartnership items. Moreover, the Court ruled that the Service may not assume the correctness of its proposed adjustments to partnership items for computational purposes in determining a deficiency, and taxpayers may not offset net partnership losses against their taxable income for purposes of deficiency proceedings.

8. The deficiency and additions to tax in the instant case have been recomputed in accordance with the Munro opinion. As a result of this recomputation, it has been determined that the correct amount of the deficiency should be $ [amount] rather than $ [amount] and the correct amount of the addition to tax under I.R.C. § 6662(b) (1) should be $ [amount] rather than $ [amount].

9. Respondent is lodging an amendment to answer concurrently herewith that seeks an increased deficiency in the amount of $ [amount] and an increase in the addition to tax under I.R.C. § 6662(b) (1) in the amount of $ [amount], claim for which is being made under the provisions of I.R.C. § 6214(a).

10. The increased deficiency and increased additions to tax referred to in paragraph 9, above, are solely attributable to the recomputation that was required in order to comply with this Court's opinion in Munro. Accordingly, petitioner will not suffer any undue prejudice as a result of the amendment to answer, since no new theories or issues are being raised and no additional evidence will have to be introduced; the increases in question are purely computational.

11. This matter has been discussed with petitioner's counsel, who has indicated that he objects to the granting of this motion.

WHEREFORE, respondent respectfully requests that this motion be granted, and that the amendment to answer, which is being lodged concurrently herewith, be filed.

____

____

8. FURTHER ANSWERING the petition, and as a defense that the statute of limitations does not bar the assessment and collection of deficiencies in income taxes due from petitioners for the taxable years [year(s)], respondent alleges:

(a) The income taxes due from petitioners for the taxable years [year(s)], may be assessed, or a proceeding in Court for the collection of such tax may be begun without assessment, at any time under the provisions of I.R.C. § 6501(c) (1), since petitioners filed false or fraudulent income tax returns for said years with intent to evade tax, as is more fully set forth by the facts alleged in paragraph 7 above, which facts are incorporated herein by reference and relied upon by the respondent as a defense to any issue involving the statute of limitations.

8. FURTHER ANSWERING the petition with respect to the tax year [year], the income taxes due from petitioners are not barred from assessment and collection by the statute of limitations and may be timely assessed pursuant to the provisions of I.R.C. § 6501(e) (1) (A), in support of which respondent alleges as follows:

(a) Petitioners' income tax return for the taxable year [year] was filed on [date].

(b) The amount of gross income stated in the income tax return filed by petitioners for the taxable year [date] and one half of the amount of gross income incorporated by reference from the [name] partnership consists of a total of $ [amount] reported as follows:

(c) During the taxable year [year], petitioners received additional income of $ [amount] as determined by use of the net worth method, as set forth in attached Exhibit A, which is incorporated herein by reference and made a part hereof. This amount of additional income was not included in the gross income stated in the return filed by petitioners for this year, and there was not disclosed on the return or in a statement attached thereto the fact that such amount was received during said year.

(d) Petitioners during the taxable year [year], did not borrow or receive from nontaxable sources any funds, or other assets, not properly taken into account by the respondent which would cause or account for the additional income as set forth in paragraph 8(c) above.

(e) The additional income of $ [amount] which petitioners received was properly includable in gross income for the taxable year [year].

(f) The $ [amount] of gross income which petitioners received and which was omitted from the income tax return filed by petitioners for the taxable year [year] is in excess of 25 percent of the gross income reported in said return.

(g) The statutory notice of deficiency setting forth the respondent's determination of petitioners' deficiency for the taxable year [year] was timely sent to petitioners by certified mail on [date], which date was prior to the expiration of the six-year period for assessment applicable under I.R.C. § 6501 (e) (1) (A).

WHEREFORE, it is prayed that the assessment and collection of the deficiency for the taxable year [year], as set forth in the statutory notice, is not barred by the statute of limitations.

8. FURTHER ANSWERING the petition with respect to the tax years [date(s)], the income taxes due from petitioners are not barred from assessment and collection by the statute of limitations and may be timely assessed pursuant to the provisions of I.R.C. § 6501(a), in support of which respondent alleges as follows:

(a) Petitioners' income tax return for the taxable year [year] was due to be filed on or before April 15, [year].

(b) Petitioners' income tax return for the taxable year [year] was due to be filed on or before April 15, [year].

(c) Examination of petitioners' [year] return, filed [date], was begun in [month, year].

(d) Respondent, when the examination began, had no record of any filing of income tax returns by petitioners for the taxable years [year(s)]

(e) Copies of petitioners' [year(s)] income tax returns, dated [date(s)], respectively, were accepted for filing on [date].

(f) The statutory notice of deficiency setting forth respondent's determination of petitioners' income tax deficiencies for the taxable years [year(s)] was timely sent to petitioners by certified mail on [date], which date was prior to the expiration of the three-year period for assessment applicable under I.R.C. § 6501(a).

WHEREFORE, it is prayed that the assessment and collection of the deficiencies for the taxable years [year(s)], as set forth in the statutory notice, are not barred by the statute of limitations.

8. FURTHER ANSWERING the petition and as a defense that the statute of limitations does not bar assessment and collection of an income tax deficiency for the taxable year [date], which deficiency may be timely assessed under the provisions of I.R.C. § 6501(c) (4), respondent alleges as follows:

(a) Petitioner's income tax return for the taxable year [year] ,was filed on [date].

(b) Prior to the expiration of the time prescribed by section 6501(a) for the assessment of income tax due from petitioner for the taxable year [year], petitioner and the respondent on [date], timely executed an agreement in writing pursuant to the provisions of section I.R.C. § 6501(c) (4) extending the period for the assessment of tax due for said year to [date].

(c) The statutory notice of deficiency setting forth respondent's determination of petitioner's income tax liability for the taxable year [year], was timely sent to petitioner by certified mail on [date], which date was prior to the expiration of the period for assessment as duly and timely extended under the agreement in writing executed by both petitioner and the respondent.

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the deficiency in income tax for the taxable year [year], as set forth in the statutory notice, be in all respects approved; and

(3) That the Court determine that the assessment and collection of the deficiency in income tax for the taxable year [date], as set forth in the statutory notice, are not barred by the statute of limitations.

8. FURTHER ANSWERING the petition, and as a defense to the assignment of error that the statute of limitations bars the assessment and collection of the deficiencies in income taxes due from petitioners for the years 2000 through 2003, respondent alleges:

a. Petitioners' income tax returns for the taxable years 2000 through 2003 were filed on April IS, 2001, August 4, 2002, June 19, 2003, and July 3, 2004, respectively.

b. Prior to the expiration of the time prescribed by I.R.C. § 6501(a) for the assessment of income tax due from petitioners for each of the taxable years 2000 through 2003, petitioners and respondent timely executed agreements in writing pursuant to the provisions of section 6501(c) (4) as follows:

Copies of these agreements are attached hereto marked Exhibits A, B, C, D, E, F, G, and H, respectively,

c. The agreements titled Special Consents to Extend Time in Which to Assess Tax, which are described in subparagraph b, provide that amount of federal income tax due on any return made by petitioners for the taxable year covered by the agreement may be assessed on or before the 90th day after: (a) the Internal Revenue Service office considering the case receives Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax, from petitioners; or (b) the Internal Revenue Service mails Form 872-T to petitioners; or (c) the Internal Revenue Service mails a notice of deficiency for the taxable year covered by the agreement. Each agreement further provides that if a notice of deficiency is sent to petitioners, the time for assessing the tax for the period(s) stated in the notice of deficiency will end 60 days after the period during which the making of an assessment was prohibited.

d. The Internal Revenue Service has not received a Form 872-T from petitioners and has not mailed a Form 872-T to petitioners.

e. The statutory notice of deficiency setting forth the respondent's determination of petitioners' income tax liabilities for the taxable years 2000 through 2003, upon which notice the above-entitled case is based, was sent to petitioners by certified mail on [date], which date was prior to the expiration of the time for assessment for each of the taxable years 2000 through 2003, as duly and timely extended under the agreements in writing executed by both petitioners and respondent.

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the deficiencies in income tax for the taxable years 2000 through 2003, as set forth in the statutory notice, be in all respects approved; and

(3) That the Court determine that the assessment and collection of the deficiencies in income taxes for the years 2000 through 2003, as set forth in the statutory notice, are not barred by the statute of limitations.

8. FURTHER ANSWERING the petition in respect to respondent's determination that the petitioner [insert description as to the fraud committed by petitioner], respondent affirmatively relies upon the doctrine of collateral estoppel, and alleges:

a. Petitioner is the same person who was the defendant in a criminal case of the United States v. [petitioner's name], No. [case no.], in the United States District Court for the District of [location].

b. Respondent is a party in privity with the United States of America, the prosecuting party in the aforesaid criminal case in which petitioner was a defendant.

c. [Insert facts as to on what counts petitioner was indicted.] A copy of the indictment is attached as Exhibit A.

d. [Insert facts as to what the indictment charged.]

e. On [date], the United States District Court for the District of [location], following a trial by jury, entered a judgment of guilty as to each count. This judgment has become final.

f. An issue in the instant Tax Court case is whether taxpayer received any income in excess of his salary in the year [year].

g. The fact that taxpayer received income illegally (combined with his failure to report such income) is evidence that a part of his underpayment of the tax was due to fraud.

h. The issue of receiving illegal income was presented and adjudicated adversely to petitioner in the District Court case.

i. The prior criminal conviction of petitioner is conclusive and binding upon petitioner, and by reason thereof the petitioner is estopped in this case, under the doctrine of collateral estoppel, to deny that he received additional income in [year] and that the income was received as a result of his fraudulent actions against the United States.

WHEREFORE, it is prayed:

1. That the relief sought in the petition be denied

2. That the deficiency in income tax for the taxable year [year] as set forth in the statutory notice of deficiency be in all respects approved

3. That the addition to tax for the taxable year [year] under the provisions of I.R.C. § 6663(a) as set forth in the statutory notice of deficiency be in all respects approved and

4. That the Court determine that petitioner is estopped, under the doctrine of collateral estoppel, to deny that he received income in excess of his reported salary in the year [year] and that such income was received as the result of petitioner's illegal activity.

8. FURTHER ANSWERING THE PETITION, and in support of the determination that the underpayment of tax required to be shown on each of petitioners' income tax returns for the taxable years [year(s)], is due to fraud, respondent alleges:

(a) [Name], hereinafter referred to as petitioner, was a [occupation/position] herein. in [company] in each of the years at issue

(b) In [year] petitioner's father, [name], relinquished control of [company] to his sons with petitioner becoming President.

(c) The business activity of [company] was that of [specify].

(d) Petitioner diverted [specify] from the inventory of [company] for the purposes of making illegal unrecorded cash sales of [specify] for his personal benefit in each of the years [year(s)]

(e) Petitioner caused substantial cash sums generated from his illegal sales to be deposited to the business bank account of [company] during the years at issue herein and directed the accountant of [company] to credit the purchases account in an attempt to cover up his diversion and illegal sale of [specify]

(f) Petitioner maintained no sales invoices or other records relating to his illegal sales of [specify] during the years at issue herein.

(g) Petitioner, as an officer, had primary responsibility and control over the accounting and bookkeeping functions of [company] during the years at issue herein.

(h) Petitioner, as an officer had primary responsibility and control over the maintenance and inventory of all [specify] of [company] during the years at issue herein.

(i) Petitioner personally kept the proceeds of his illegal [specify] sales and did not cause to be recorded on the books and records of [company] any of such sales, during the years at issue herein.

(j) Petitioners' income tax returns for their [year(s)] taxable years were prepared by [name], Certified Public Accountant, [city, state].

(k) [Name] prepared said returns on the basis of information provided by petitioner.

(l) [Name], in accordance with his business practice, asked petitioner upon completion of the [year(s)] tax returns if all of his and his wife's income had been reported therein, to which petitioner answered it was fully recorded.

(m) Petitioner failed to maintain, or to submit for examination by respondent, complete and adequate books of account and records of his income producing activities for each of the taxable years [year(s)], as required by the applicable provisions of the Internal Revenue Code, and respective regulations promulgated thereunder.

(n) That the amount of petitioner's gross taxable income, deductions and other items required to be shown on their income tax returns for each of the taxable years [year(s)] cannot be determined from the books and records which petitioner maintained and submitted for examination by respondent, as is shown by the following facts:

1. Agents of respondent, during the calendar year [year] and subsequently during the course of their investigations, requested petitioner to submit to them for inspection and examination all the books and records maintained by him with respect to his [year(s)] taxable years for use in respondent's agents' examination and verification of petitioner's taxable income for each of said years.

2. Petitioner in response to such request, failed to submit the requested books of account and records, which were maintained by petitioner.

3. Petitioner maintained no records or invoices which reflected his illegal sales of [specify] during the years at issue herein.

4. Respondent's agents determined in their examination that petitioner had purchased assets during [year(s)] with funds that exceeded in total amount the income reflected on petitioners' income tax returns for the [year(s)] taxable years.

5. Petitioner, although aware of the recordkeeping requirements willfully failed to maintain adequate books and other records of account with respect to his income during the years at issue.

(o) Respondent has determined petitioner's correct taxable income for the taxable years [date] through [date] on the basis of the net worth method.

(p) There is attached hereto as Exhibits A through C, which are incorporated herein by reference and made a part hereof, a net worth statement of the assets and liabilities of petitioners on [year(s)]. Petitioners did in fact, on the date specified on Exhibits A through C have the specific items of assets and liabilities in the various amounts set forth therein.

(q) Petitioners had no nontaxable sources of funds or excludable receipts which require adjustments in computing their correct taxable income for the taxable years [year(s)], except as already noted in Exhibits A through C of this Answer.

(r) Petitioners had no cash on hand other than the amount indicated in Exhibit B to this Answer on [date].

(s) Petitioners maintained no checking accounts or savings accounts during the periods [date] through [date] other than those indicated in Exhibit B to this Answer.

(t) There is attached hereto as Exhibits D through H, which are incorporated herein by reference and made a part hereof, statements of various expenditures, deductible and nondeductible, income taxes paid and gifts made, and computation of depreciation allowable, applicable to the calculation of adjusted gross income of petitioners during the years [year] through [year 2], inclusive. Petitioners did in fact make expenditures, deductible and nondeductible, and make the gifts and income tax payments indicated on Exhibits D through H during the years [year] through [year 2] .

(u) In [year], petitioner received $ [amount] in dividends which he failed to report on his [year] income tax return. Through petitioner's failure to report such dividend income he fraudulently understated his taxable income in that year with the intent to evade the payment of taxes on such income.

(v) Petitioner received interest income in [year(s)] in the amounts of $ [amounts], respectively, which he failed to report as interest income on his income tax returns for each respective year. Through petitioner's failure to report such interest he fraudulently understated his taxable income in each respective year with the intent to evade the payment of taxes on such income in each respective year.

(w) In [year] petitioner sold his common stock holdings in [company] in which he had a realizable gain of $ [amount] which he failed to report on his [year] income tax return. Through petitioner's failure to report the gain on the sale of his stock he fraudulently understated his taxable income in that year with the intent to evade the payment of taxes on such income in that year.

(x) Petitioner received income in the form of Director's fees in each of the years [year(s)] in the amounts of $ [amounts] , respectively, which he failed to report in each year's respective income tax return. Through petitioner's failure to report such income from Director's fees he fraudulently understated his taxable income in each respective year with the intent to evade the payment of taxes on such income in each respective year.

(y) In [year] petitioner recognized gain on the maturity of an endowment policy with [company] in the amount of $ [amounts] which he failed to include in his [year] income tax return. Through petitioner's failure to include the gain on the endowment policy he fraudulently understated his taxable income in that year with the intent to evade the payment of taxes on such income.

(z) The net worth of petitioner during [year(s)] increased by $ [amounts], respectively.

(aa) Petitioner fraudulently understated his taxable income during his [year(s)] taxable years in the amounts of $ [amounts], respectively, with the intent to evade the payment of taxes on such income in each respective year.

(ab) Petitioner's correct income tax liability for [year] is $ [amount] , the tax liability reported on petitioner's [year] income tax return was $ [amount], and thus the understatement of tax liability for [year] was $ [amount].

(ac) - (ae) [specify each year as shown in (ab) above]

(af) Petitioner's failure to maintain complete and adequate records of his income producing activities, and illegal [specify] sales, and his failure to produce complete and accurate records for respondent in connection with the examination of his income tax returns for the taxable years [year(s)] was fraudulent with the intent to evade tax.

(ag) Petitioner's extensive use of cash and his purchase and use of cashiers checks, in excess of $ [amount], during the years at issue herein was fraudulent with the intent to evade tax on his true taxable income.

(ah) That petitioner willfully failed to report income tax liability of $ [amounts] in [year(s)], respectively, with the intent to evade the payment of such tax in each respective year.

(ai) Petitioner made misleading statements to agents of respondent during their investigations relative to his business investments and illegal cost of sales of [specify].

(aj) A part of the underpayment of tax required to be shown on petitioner's income tax returns for his [year(s)] taxable years is due to fraud.

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the deficiencies in income taxes for the taxable years [year(s)] as set forth in the statutory notice, be in all respects approved; and

(3) That the addition to the tax for each of the taxable years [year(s)], under the provisions of I.R.C. § 6663(a), as set forth in the statutory notice, be in all respects approved.

8. FURTHER ANSWERING the petition, and in support of the determination that a part of the underpayments of tax required to be shown on petitioners' income tax returns for the taxable years [year(s)] are due to fraud, the respondent alleges:

(a) During each of the taxable years [year(s)], petitioners were engaged in the business of [specify].

(b) Petitioners' principal place of business at which their books and records were maintained is located at [city, state]; said books and records were maintained, and their income tax returns were filed for the years here involved, on the cash method of accounting.

(c) During the taxable years [year(s)], petitioners sold [specify] in the amount of $ [amounts], respectively, which were not reported on their income tax returns for said years.

(d) Petitioners [names] fraudulently and with intent to evade taxes for the taxable years [year{s)], filed false income tax returns for said years that omitted the gain from the sale of [specify] as follows:

(1) Petitioners' return for [year] only included part of the sales of [specify] made by petitioners to [company], in [date], resulting in an omission of $ [amount] of gain.

(2) - (7) [specify each instance as shown in (1) above]

(e) Respondent's determination of the omission of the specific items is corroborated by the fact that petitioners sent two documents captioned Amended United States Individual Income Tax Returns for the years [year] and [year 2] to the Internal Revenue Service Center in [city, state] including all the omitted specific items for those years. These amended returns were received at the Internal Revenue Service Center on [date]. Said documents were not sent to the Internal Revenue Service Center until the Criminal Investigation Division of the Internal Revenue Service had contacted petitioners regarding their [year(s)] Federal income tax returns.

(f) When confronted at two interviews with Revenue Agent [name] on [date(s)], regarding the large decrease in [specify] sales in [year] compared to [year 2] without a corresponding decrease in the size of his [specify], petitioner [name] advised the agent that [specify]. In [year], petitioners sold [specify] to [company] which was not included on their [year] income tax return.

(g) Petitioners [names] fraudulent omission of specific items of income on their income tax returns filed for [year(s)] is a part of a three year pattern of intent to evade taxes.

(h) Petitioners understated their taxable income on their income tax returns for the taxable years [year(s)], in the amounts of $ [amounts], respectively.

(i) Petitioners understated their income tax liabilities on their income tax returns for the taxable years [year(s)] in the amounts of $ [amounts], respectively.

(j) Petitioners' failure to produce records or other information as to such sales to respondent in connection with the examination of their income tax returns for the taxable years [year(s)], was fraudulent with intent to evade tax.

(k) Petitioners fraudulently, and with intent to evade tax, omitted from their income tax returns for the taxable years [year(s)], the gain from sales of [specify] in the amounts of $ [amounts], respectively.

(1) A part of each deficiency in income tax for taxable years [year(s)], is due to fraud with intent to evade taxes.

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the deficiencies in income taxes for the taxable years [year(s)], as set forth in the statutory notice, be in all respects approved; and

(3) That the additions to the tax pursuant to I.R.C. § 6663(b) for the taxable years [year(s)], as set forth in the statutory notice be in all respects approved.

8. FURTHER ANSWERING the petition in the alternative to paragraph 7, and in support of respondent's claim for a 25-percent addition to the income tax under the provisions of I.R.C. § 6651(a), and a 20-percent penalty under the provisions of I.R.C. § 6662(a) from petitioners, respondent alleges:

(a) In the statutory notice of deficiency dated [date], upon which notice this case is based, respondent determined that petitioners were liable for the addition to tax for fraud under I.R.C. § 6663(a). Facts supporting this determination are more fully set forth in the allegations in paragraph 7 above, which facts are incorporated herein by reference and relied upon for the alternative position that the delinquency and accuracy related penalties are applicable.

(b) The income tax return of petitioners for the taxable year [year] was due to be filed on or before April 15, [year].

(c) The income tax return of petitioners for the taxable year [year] was due to be filed on or before April 15, [year].

(d) The income tax return of petitioners for the taxable year [year] was filed on [date], which date is more than [specify number of] months or fractions thereof after the due date for such return and with respect to which due date no extension of time was sought from, nor granted by, respondent.

(e) The income tax returns of petitioner for the taxable years [year(s)] were filed on [date], which date is more than [specify number of] months or fractions thereof after the respective due dates for such returns and with respect to which due dates no extensions of time were sought from, nor granted by, respondent.

(f) If the Court determines that petitioners are not liable for the addition to tax for fraud, they are liable for the addition to tax provided by I.R.C. § 6651 for failure to timely file, without reasonable cause, their tax returns for the taxable years [year(s)].

(g) If the Court determines that petitioners are not liable for the addition to tax for fraud, they are liable for the addition to tax provided by I.R.C. § 6653(a) since at least a part of the underpayment of the tax for each of the years [year(s)] is due to negligence or intentional disregard of rules and regulations.

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the deficiencies in income tax for the taxable years [year(s)], as set forth in the statutory notice, be in all respects approved;

(3) That the additions to the tax for the taxable years [year(s)], under the provisions of I.R.C. § 6663(a), as set forth in the statutory notice, be in all respects approved;

(4) That the Court determine that the assessment and collection of the deficiencies in income taxes for the taxable years [year(s)], as set forth in the statutory notice, are not barred by the statute of limitations;

(5) That, in the alternative to the addition to tax under I.R.C. § 6663(a), the Court determine that there is due a 25-percent addition to the tax under the provisions of I.R.C. § 6651, claim for which is hereby made pursuant to the provisions of I.R.C. § 6214(a); and

(6) That, in the alternative to the addition to tax under I.R.C. § 6663(a), the Court determine that there is due a 5-percent addition to the tax under the provisions of I.R.C. § 6653(a) (1), claim for which is hereby made pursuant to the provisions of I.R.C. § 6214(a).

8. FURTHER ANSWERING the petition, and in support of the determination that a part of the underpayment of tax required to be shown on petitioner's income tax return for the taxable year [year] is due to fraud, respondent affirmatively relies upon the doctrine of collateral estoppel (estoppel by judgment), and alleges:

(a) [Name], petitioner herein, is the same person who was the defendant in the criminal case of United States of America v. [name] [court, Docket No.]. The judgment entered in that case became final on [date].

(b) Respondent herein is a party in privity with the United States of America, the prosecuting party in the aforesaid criminal case in which petitioner herein was the defendant.

(c) The indictment filed on [date], in said criminal case set forth the following charge against the defendant, petitioner herein:

THE GRAND JURY CHARGES:

(d) Petitioner on [date], entered a plea of guilty to the charge set forth against him in said indictment.

(e) On [date], the United States District Court entered its judgment pursuant to said plea, a certified copy of which is attached hereto as Exhibit A.

(f) Among the issues of fact determined in the aforesaid criminal case was whether [name], the defendant therein, and petitioner herein, did in fact willfully file a false and fraudulent income tax return for the taxable year [year] with intent to evade and defeat income tax, and whether he did in fact by such means understate a part of the income tax due and owing by him to the United States of America for said year.

(g) One of the issues in the instant case is whether the addition to the tax imposed by I.R.C. § 6663(a) should be imposed against petitioner for the taxable year [year].

(h) Said issue in the instant case is the same as the issue which was presented and determined adversely to petitioner in the aforesaid criminal case to the extent that both the imposition of the addition to the tax against petitioner for the taxable year [year], under I.R.C. § 6663(a), and said judgment of conviction of petitioner for violation of I.R.C. § 7201, are each dependent upon findings that petitioner for said year did in fact file a false and fraudulent income tax return and that by reason of such fraud there is for said year an underpayment of income tax.

(i) The prior criminal conviction of petitioner under I.R.C. § 7201, for the taxable year [year] is conclusive and binding on petitioner, and by reason thereof petitioner is estopped in the instant case, under the doctrine of collateral estoppel (estoppel by judgment), from denying herein that he willfully filed a false and fraudulent income tax return for the taxable year [year] with intent to evade and defeat a part of the income due and owing by him for said year, and that due to such fraud there is for said year an underpayment of tax within the meaning of I.R.C. § 6663 (a).

(j) By reason of such prior criminal conviction, petitioner is estopped in the instant case, under the doctrine of collateral estoppel (estoppel by judgment), from denying that a part of the underpayment of income tax for the year [date] is due to fraud, and that, therefore, petitioner is liable for the addition to the tax imposed by I.R.C. § 6663(a), as determined by respondent in the statutory notice, upon which notice the instant case is based.

WHEREFORE, it is prayed that the Court determine that for the taxable year [year] petitioner is estopped under the doctrine of collateral estoppel (estoppel by judgment) from denying his liability for the addition to the tax imposed by I.R.C. § 6663 (a).

8. FURTHER ANSWERING the petition, and in support of the determination that petitioners' [petitioner A] and [petitioner B] are liable as transferees at law and in equity of [name of entity], transferor, for the deficiency in corporate income tax due from said transferor for the taxable year [year], plus interest thereon as provided by law, respondent alleges:

(a) [Name of entity], hereinafter referred to as the transferor, was incorporated under the laws of the State of [state] and had as its principal place of business [address].

(b) On [date], the transferor adopted a plan of complete liquidation.

(c) That pursuant to the plan of liquidation the transferor was dissolved on or about [date].

(d) That on or about [date], the transferor transferred to petitioners assets with fair market values as follows:

[set forth assets]

(e) Said transfers, as set forth in paragraph 7(d) above, were made to petitioners without any consideration other than the surrender of their shares of the capital stock of the transferor.

(f) By reason of the transfer of assets by the transferor to petitioners, the transferor was rendered and is, insolvent without assets with which to pay the deficiency in corporate income tax in the amount of $ [amount] , plus interest thereon as provided by law due, for its taxable year [year].

(g) The fair market value of the assets transferred to petitioners upon dissolution of the transferor was in excess of the deficiency in corporate income tax due from the transferor, plus interest thereon as provided by law.

(h) Petitioners executed and delivered to respondent an instrument in writing with respect to the transferor which provides as follows:

(i) Respondent has not issued to the transferor a statutory notice of deficiency for the taxable year ended [date], and has in every other respect duly performed all the terms and conditions of said agreement on his part to be performed.

(j) Under said agreement petitioners assumed and agreed to pay any deficiency in income tax for the [year] taxable year, together with interest thereon as provided by law, as may be determined to be due from the transferor.

(k) On [date], respondent sent to each petitioner, by certified mail, a notice of liability in which it was determined that there was a deficiency in income tax due from the transferor for the taxable year [year] in the amount of $ [amount].

(l) No part of the deficiency in corporate income tax due from the transferor, together with interest thereon as provided by law, has been paid.

(m) By reason of the transfer of assets to petitioners and their receipt by petitioners, petitioners became, and are, each transferee of assets within the meaning of section 6901, 28 U.S.C. § 3301 et seq. (the Federal Debt Collection Procedure Act), and [appropriate state fraudulent transfer act, if any] and, as such, are liable for the deficiency in income tax due from the transferor for the taxable year [year], plus interest thereon as provided by law.

WHEREFORE, it is prayed:

(1) The relief sought in the petition be denied.

(2) That the deficiency in income tax for the taxable year [year], due from transferor as set forth in the statutory notice of liability be in all respects approved; and

(3) That petitioner be held liable as transferees at law and in equity of the transferor for the deficiency in income tax for the taxable year [year], due from the said transferor, as set forth in the statutory notice of liability, plus interest thereon as provided by law.

8. FURTHER ANSWERING the petition, and in support of the determination that for the taxable year 2000 the petitioner is liable for the accumulated earnings tax imposed by I.R.C. § 531 and without, by virtue of these allegations, making any admission or concession in regard to the burden of proof, which respondent contends is in all respects upon the petitioner, the respondent alleges as follows:

(a) The respondent, pursuant to section 534(b), sent by certified mail on February 6, 2003, a notification informing the petitioner that a proposed statutory notice of deficiency included an amount with respect to the accumulated earnings tax imposed by section 531 for the taxable year 2000. A copy of said notification is attached hereto as Exhibit A.

(b) The petitioner, pursuant to section 534(c) timely submitted on April 9, 2003, a statement of the grounds upon which it relies to establish that all or a part of its earnings and profits for the taxable year 2000 have not been permitted to accumulate beyond the reasonable needs of its business. In said statement, petitioner listed the following alleged grounds:

(1) Normal working capital needs.

(2) Additional working capital needs.

(3) Expansion, diversification and modernization programs.

(4) Reserve for payment of Federal income and accumulated earnings deficiencies.

(5) Reserve for contingent liabilities for product defects. A copy of said statement is attached hereto as Exhibit B.

(c) The statement submitted by the petitioner does not comply with the requirements of section 534(c) for the reasons that the grounds set forth therein are either irrelevant or insufficient to justify petitioner's accumulation of earnings and profits, in that:

[(1) - (5), (6), . . . . .] [Insert specific factual information here to rebut each alleged grounds for accumulation.]

(d) In the alternative, however, the Court should determine whether any or all of the petitioner's grounds are clear, definitive and relevant. For the reasons set forth in subparagraph (c) of this paragraph the statement of the petitioner does not comply with section 534(c) since the grounds set forth are not supported by facts sufficient to show the basis of designated grounds

(e) In the further alternative, if the Court should determine that the statement submitted by petitioner complies with the requirements of section 534(c), respondent alleges that the petitioner did not retain any of its earnings, nor would it have been justified in retaining any of its earnings, for any of the alleged grounds set forth in said statement, in that:

(1) The petitioner, in the beginning of the year at issue, had already accumulated in prior years [insert amount] .

(2) The petitioner had not formulated any specific plans with regard to expansion, modernization and diversification.

(3) The petitioner had submitted no information from which computations could be made as to the costs of expansion or the needs for reserves.

(4) If petitioner had distributed its accumulated earnings for 1970, its primary stockholders' income tax would have been increased by $ [insert amount].

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the Court determine that the statement submitted by the petitioner, pursuant to section 534(c) does not comply with the requirements of said section and, as a result thereof, the burden of proof as to the reasonable needs of the business is on the petitioner pursuant to the provisions of section 534(a) (1);

(3) That the Court determine that the earnings and profits of the petitioner were permitted to accumulate beyond the reasonable needs of the business; and

(4) That the deficiency determined by the respondent be in all respects approved.

8. FURTHER ANSWERING the petition, and in support of the determination that for the taxable year 1975 the petitioner is liable for the accumulated earnings tax imposed by I.R.C. § 531, and without, by virtue of these allegations, making an admission or concession in regard to the burden of proof, which respondent contends is in all respects upon the petitioner, the respondent alleges as follows:

(a) The respondent, pursuant to section 534(b), sent by certified mail on March 9, 2000, a notification informing the petitioner that a proposed statutory notice of deficiency included an amount with respect to the accumulated earnings tax imposed by section 531 for the taxable year 1996. A copy of said notification is attached hereto as Exhibit A.

(b) The petitioner never submitted, pursuant to section 534(c), a statement of the grounds upon which it relies to establish that all or part of its earnings and profits for the taxable year 1996 have not been permitted to accumulate beyond the reasonable needs of its business.

(c) The allegations of subparagraphs (a) through (c) of paragraph 5 of the petition are vague, irrelevant, and insufficient to justify petitioner's accumulation of earnings and profits and sufficient grounds are not set forth therein which are supported by facts or data which can be verified by respondent.

(d) The petitioner has not alleged any facts, nor do any facts exist, which would have justified it in retaining any of its earnings for any of the alleged grounds set forth in subparagraphs (a) through (c) of paragraph 5 of the petition.

(e) The petitioner has accumulated sufficient earnings and profits from periods prior to 1996 to more than cover any reasonable needs of the business during 1996 and petitioner was therefore not entitled to an accumulated earnings tax credit under section 535(c).

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the Court determine that the burden of proof as to the reasonable needs of business is on the petitioner pursuant to the provisions of section 534(a) (1) since no statement was submitted by the petitioner pursuant to section 534(c);

(3) That the Court determine that the earnings and profits of the petitioner were permitted to accumulate beyond the reasonable needs of the business; and

(4) That the deficiency determined by the respondent be in all respects approved.

8. FURTHER ANSWERING the petition, and in support of the determination that for its fiscal taxable year ended March 31, 2000, the petitioner is liable for the accumulated earnings tax imposed by section 531 of the Internal Revenue Code of 1954, the respondent alleges as follows:

(a) During its fiscal year ended March 31, 2000, petitioner was engaged in [insert type of business].

(b) For its fiscal year ended March 31, 2000, petitioner's gross receipts or sales derived from its principal business activities were as follows: [insert specific facts]

(c) [Insert specific facts describing petitioners' business enterprise].

(d) On March 31, 2000, the petitioner's current assets, current liabilities, and net working capital were as follows: [insert specific facts]

(e) Petitioner's business activities are such that its operating cycle is [virtually instantaneous]. [Insert appropriate facts about petitioner's business operating cycle.]

(f) Petitioner has demonstrated a stable accounts receivable balance over the years with virtually no allowance for bad debts. Its receivables are converted into cash within 30 days.

(g) Petitioner does not fit within the concept of an operating cycle as that term has been defined by the courts and as determined by use of the Bardahl formula.

(h) Even assuming the petitioner's business activities fit within and can be defined by the Bardahl formula, its operating cycle is de minimis. Application of the Bardahl formula to the business enterprise of petitioner results in an inventory cycle, accounts receivable cycle and resulting operating cycle as follows: [insert specific facts]

(i) Petitioner's operating expenses including investment related expenses but less depreciation for its fiscal year ended March 31, 2000, was in the amount of $ [insert amount].

(j) Under the Bardahl formula the petitioner's total operating expenses for an operating cycle would be as follows: [insert specific facts]

(k) The petitioner has excess net working capital over its working capital needs at March 31, 2000, in an amount of not less than $ [insert amount].

(l) The corporate minutes of petitioner during the time period involved herein do not contain any mention of plans for expansion, diversification or other activity for which its excess working capital would be needed, [note exceptions as appropriate].

[(m) — (p), (q), (r), . . . ] [Insert other relevant facts about petitioner's business activities, assets and liabilities, etc.]

(s) The petitioner permitted its earnings and profits to accumulate beyond the reasonable needs of its business for its fiscal taxable year ended March 31, 2000.

(t) At all times relevant hereto, petitioner had no definite or specific plans for the utilization of its excess working capital through expansion or modernization of its facilities or diversification of its business activities.

(u) If the petitioner had distributed its excess working capital during the year at issue, its shareholders' income tax liabilities would have been substantially increased.

(v) The petitioner was formed or availed of during its fiscal year ended March 31, 2000, for the purpose of avoiding income tax with respect to its shareholders by permitting earnings and profits to accumulate beyond the reasonable needs of the business rather than being distributed.

WHEREFORE, it is prayed:

(1) That the relief sought in the petition be denied;

(2) That the Court determine that the earnings and profits of petitioner were permitted to accumulate beyond the reasonable needs of its business;

(3) That the deficiency determined by the respondent be in all respects approved; and

(4) That the addition to the tax as determined by respondent under section 6653(a) be in all respects approved.

RESPONDENT, pursuant to T.C. Rule 325(a) and King v. Commissioner, 115 T.C. 118 (2000), hereby provides Notice of the filing of a petition raising relief from joint and several liability on a joint return by the above-named petitioner, and right to intervene, to petitioner's [former] spouse, John Doe, the other individual filing joint returns with petitioner for the years in issue, as follows:

1. On , petitioner Jane Doe filed a petition with the United States Tax Court for determination of relief from joint and several liability on joint returns for tax years I, 2, and 3.

2. John Doe, petitioner's [former] spouse, filed joint returns with petitioner for the years in issue.

3. Under T.C. Rule 325(b), John Doe has a right to intervene in this matter regarding petitioner's entitlement to relief from joint and several liability. John Doe may exercise that right by filing a notice of intervention with the Tax Court no later than 60 days after service of this Notice and attaching a copy of this Notice to any notice of intervention filed with the Tax Court.

RESPONDENT MOVES that the above-entitled case be dismissed for lack of jurisdiction upon the ground that the petition was not filed within the time prescribed by I.R.C. §§ 6213(a) or 7502.

IN SUPPORT THEREOF, respondent respectfully states:

1. The statutory notice of deficiency dated [date] upon which notice the above-entitled case is based, was sent to petitioner at the last known address, [address used in notice of deficiency], by certified mail on [date of notice of deficiency], as shown by the postmark date stamped on the executed Application for Registration or Certification, United States Postal Service Form 3877, a copy [or certified mail list on file in the office of (name of office and location), a duly authenticated copy] of which is attached hereto as Exhibit A.

2. The 90-day period for timely filing the petition with this Court from said notice of deficiency expired on [day of week and date on which 90th day expired], which date was not a legal holiday in the District of Columbia.

3. The petition was filed with the Tax Court on [date on which petition was filed], which date is [number of days after date of mailing the notice] days after the mailing of the notice of deficiency.

4. The copy of the petition served upon respondent bears a notation that the date of the United States postmark stamped on the cover in which the petition was mailed by [type of mail] mail, to the Tax Court is [date], which date is [number of days after date of mailing notice] days after the mailing of the notice of deficiency.

5. The petition was not filed with the Court within the time prescribed by I.R.C. §§ 6213(a) or 7502.

WHEREFORE, it is prayed that this motion be granted.

Please click here for the text description of the image.

Please click here for the text description of the image.

Please click here for the text description of the image.

RESPONDENT MOVES, pursuant to Rule 40 of the Court's Rules of Practice and Procedure, that this Court dismiss the above entitled case for failure to state a claim upon which relief can be granted; and find in its order that there is due from the petitioner deficiencies in income taxes and additions to the taxes under I.R.C. § 6662 for the years and in the amounts set forth in the statutory notice of deficiency dated [date], upon which notice the above-entitled case is based.

IN SUPPORT THEREOF, respondent respectfully states:

1. On [date], petitioner filed a petition with this Court and alleged a disagreement with the notice of deficiency, in which respondent disallowed a war tax credit taken by the petitioner on his income tax returns filed for the taxable years [year (s)].

2. Petitioner's basis for claiming the above credit as stated in the petition is that petitioner is, upon religious grounds, opposed to the use of tax money for military purposes. In addition, petitioner claims a constitutional right to freedom of religious practice and therefore a right to have approximately [amount] percent of the income taxes refunded as a tax credit.

3. This Court and other federal courts have repeatedly held that a taxpayer may not refuse to comply with the federal tax laws based upon the taxpayer's disagreement, no matter how sincere, with the policies of the Federal Government. Greenberg v. Commissioner, 73 T.C. 806 (1980); Graves v. Commissioner, 579 F.2d 392 (6th Cir. 1978), aff'g T.C. Memo. 1976-353. In addition, this Court has repeatedly held in similar cases that the taxpayer's right to freedom of religion under the First Amendment to the Constitution was not violated by the requirement that the taxpayer pay income taxes even though part of his tax dollar went towards armaments. Muste v. Commissioner, 35 T.C. 13 (1961); Palmer v. Commissioner, T.C. Memo. 1981-604. Further, there is no provision in the Internal Revenue Code for the petitioner's claimed credit.

4. In similar cases where respondent has sought to dismiss an action because the petitioners have failed to state a claim upon which relief can be granted, this Court has approved the assertion of an addition to tax under I.R.C. § 6662 where the petitioners have not alleged in the petition specific facts to support their position that no addition to tax is warranted except their objection on moral, religious, or frivolous constitutional grounds to paying federal income taxes. Greenberg v. Commissioner, 73 T.C. 806 (1980); Wright v. Commissioner, T.C. Memo. 1981-65; Evans v. Commissioner, T.C. Memo. 1981-580.

5. The petition filed in this case does not allege any justiciable error with respect to the respondent's determinations in the notice of deficiency, and no justiciable facts in support of such error are extant therein as required by T.C. Rule 34 (b) (4) and ( 5) .

6. Accordingly, petitioners have failed to state a claim upon which relief can be granted.

WHEREFORE, it is prayed that this motion be granted.

______

RESPONDENT MOVES, pursuant to the provisions of Rule 51(a) of the Court's Rules of Practice and Procedure, that the Court enter an order requiring the petitioner to file a more definite statement of the alleged errors of the respondent and the facts upon which petitioner relies to sustain the alleged errors of respondent.

RESPONDENT FURTHER MOVES, pursuant to the provisions of Rule 51(b) of the Court's Rules of Practice and Procedure, that upon failure of the petitioner to amend the petition in accordance with such order, the Court strike from the petition the allegations of error in subparagraphs [#] through [#], of paragraph [#] of the petition and the purported allegations of facts in subparagraphs [#] through [#] of paragraph [#] of the petition.

IN SUPPORT THEREOF, respondent respectfully states:

1. In the statutory notice of deficiency dated [date], upon which notice the above-entitled case is based, the respondent determined that there are deficiencies due from the petitioner in income taxes and additions to tax under I.R.C. § 6662 for the years and the amounts set forth in said notice of deficiency.

2. The determination of the respondent is based on his decision that the petitioner is not entitled to claimed employee business expenses in the amounts of $ [amounts] for taxable years [year(s)], respectively; claimed itemized deductions in the amounts of $ [amounts] for taxable years [year(s)], respectively; claimed exemptions for alleged dependents in the amounts of $ [amounts] for taxable years [year(s)], respectively; and that the underpayment of income taxes for taxable years [year(s)] was due to the petitioner's negligent or intentional disregard of rules and regulations.

3. In the petition filed with this Court on [date], the petitioner makes no allegations of justiciable error as to the adjustments to taxable income made by the respondent or as to the determination that the underpayment of income taxes was due to the petitioner's negligent or intentional disregard of rules and regulations, except in regard to the disallowance of the claimed exemptions. Subparagraphs [#] through [#] of paragraph [#] and subparagraphs [#] through [#] of paragraph [#] of the petition contain irrelevant, immaterial, and frivolous allegations of error.

4. Subparagraphs [#] through [#] of paragraph [#] of [#] the petition contain irrelevant, immaterial, and frivolous allegations of facts and do not contain clear and concise statements of facts as required by Rule 34(b) (5) of the Court's Rules of Practice and Procedure.

WHEREFORE, respondent prays:

That the Court enter an order requiring the petitioner to file an amended petition containing a more definite statement as to each and every justiciable error which the petitioner is relying on in petitioner's attempt to prove that the respondent's determination of deficiencies and additions to tax was incorrect and containing clear and concise statements of facts on which petitioner bases a more definite statement of justiciable errors;

That upon failure of the petitioner to comply with such order of the Court, that the Court strike from the petition subparagraphs [#] through [#] of paragraph [#] and subparagraphs [#] through [#] of paragraph [#] of the petition.

RESPONDENT MOVES , pursuant to the provisions of Rule 37(c) of the Court's Rules of Practice and Procedure, that the Court enter an order in the above-entitled case that the undenied allegations of fact set forth in paragraph(s) of the answer be deemed to be admitted.

IN SUPPORT THEREOF, respondent respectfully states:

1. Respondent on [date], timely filed an answer setting forth the material allegations of fact relied upon to sustain the issue(s), in respect of which the burden of proof is placed upon respondent by [statute or Rule 142(a)] A copy of the answer was served on petitioner by respondent on [date].

2. Although required to do so under the provisions of T.C. Rule 37, petitioner filed no reply. The time within which to file such reply expired on [date].

3. The material allegations of fact set forth in the paragraphs of respondent's answer listed above stand undenied.

4. In the absence of the filing of the required reply, the case may not be deemed at issue under the provisions of T.C. Rule 38 until the entry of an order under T.C. Rule 37(c), as is herein requested.

5. The period within which to file a motion with respect to a reply will not expire until [date], and this motion is filed within the time permitted by T.C. Rule 37(c).

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES that this case, insofar as it purports to be an appeal by or on behalf of [name], deceased, be dismissed for lack of prosecution, and that the Court find in its order that there is due from petitioner [name], deceased, a deficiency in income tax for the taxable year [year] in the amount of $ [amount] and an addition to the tax for the taxable year [year], under the provisions of I.R.C. § 6651, in the amount of $ [amount], as reduced from the deficiency in the amount of $ [amount], and an addition to the tax in the amount of $ [amount], as set forth in the statutory notice of deficiency dated [date], upon which the above-entitled case is based.

IN SUPPORT THEREOF, respondent respectfully states:

1. Respondent has been advised that petitioner [name], deceased, died on [date], at [location, city, state], which date is subsequent to the filing of the petition in this case. A copy of petitioner's death certificate is attached as Exhibit A.

2. Respondent has been advised that no representative or fiduciary is currently authorized to act on behalf of the estate of [name], deceased.

3. Respondent has been advised that petitioner [name], deceased, left a will naming the surviving spouse, [name], as executrix, but because the estate is de minimis the will has and will not be submitted to the Surrogate's Court for probate. Thus, there is no duly authorized representative available to act on behalf of the estate.

4. At present, the only ascertainable heirs at law of the decedent are the surviving spouse, [name] and the surviving issue, [name], who resides at [full street address, city, state], and [name], [full street address, city, state].

5. No issues have been raised upon which the burden of proof is upon respondent. However, respondent has conceded a portion of the disallowance initially set forth in the statutory notice of deficiency. Attached hereto, as Exhibit A, is a computation setting forth the basis of the proposed deficiency.

6. No evidence has been adduced in support of the assignments of error raised in the petition with the exception of the items previously allowed.

7. A stipulation of settlement, reflecting the agreement between respondent and petitioner [name] is submitted herewith for filing.

8. Neither the surviving spouse or surviving issue object to the granting of the motion to dismiss as to petitioner [name].

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES , pursuant to the provisions of Rule 133 of the Tax Court's Rules of Practice and Procedure, that this case be continued from the calendar of the Court commencing [date], in [city, state], and restored to the Court's general trial docket.

IN SUPPORT THEREOF, respondent respectfully states:

1. The petition in this case was filed [date filed] / the case was at issue on or after [date]. The tax year involved in this case is [year].

2. Petitioner [name] is the subject of a criminal referral to the Department of Justice. The matter referred involves the same issues as those that are pending in this case. The criminal matters are expected to be completed by [estimated completion date].

3. The potential exercise by petitioner [name] of his Fifth Amendment rights in connection with this case will prevent the respondent from adequately presenting its case.

4. The trial of this case during the [calendar date] session of this Court would be premature and may present legal problems and issues that could be avoided if the parties had the opportunity to develop fully their cases.

5. The granting of this motion will conserve the Court's time and will avoid undue hindrance in the resolution of this case.

6. Petitioners' counsel objects to the granting of this motion.

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES that the Court calendar Docket No. [docket no.] for trial at the Trial Session of the Court scheduled to commence at [city, state] on [date]. This case is related to Docket No. [docket 2 no.] presently scheduled for trial at that trial session.

RESPONDENT FURTHER MOVES that if the motion to calendar be granted, the cases at Docket Nos. [docket no.] and [docket 2 no.] be consolidated for trial, briefing and opinion.

RESPONDENT FURTHER MOVES that if the motion to calendar be denied, the case at Docket No. [docket 2 no.], presently scheduled for trial, be continued generally and the related cases in any event be consolidated for future trial, briefing and opinion.

IN SUPPORT THEREOF, respondent respectfully states:

1. The case at Docket No. [docket 2 no.] is presently scheduled for trial at [city, state] on [date].

2. Petitioners in the case at Docket No. [docket no.] are the same as the petitioners in the case at Docket No. [docket 2 no.]

3. [Insert a brief description as to what the cases involve.]

4. Consolidation of the trial of these cases will conserve the time of the Court and of the parties.

5. Respondent estimates that only three additional trial hours will be necessary if Docket No. [docket no.] is added to the trial calendar.

6. If the motion to calendar Docket No. [docket no.] is denied, the Court should continue the case at Docket No. [docket 2 no.] from the present trial session in order that both cases may be tried together, thereby conserving the time of the Court and preventing the duplication of witnesses, evidence, briefs, etc.

WHEREFORE, it is prayed:

(1) That the Court grant the motion to calendar Docket No. [docket no.]; and

(2) That the above-entitled cases be consolidated for trial, briefing and opinion; or

(3) In the alternative, if the Court denies the motion to calendar Docket No. [docket no.], that the Court continue Docket No. [docket 2 no.] generally and consolidate such cases for purposes of trial, briefing and opinion.

RESPONDENT MOVES, pursuant to provisions of Rule 110 of the Tax Court's Rules of Practice and Procedure that the Court schedule an informal pretrial conference at the United States Tax Court in Washington, D.C., on [date], in lieu of or in addition to its scheduled hearing on the same date at its Motions Session at 10:00 a.m. This request is made for the purpose of responding to all of the matters described in this Court's Order and discussing all essential matters relative to the preparation of this case for trial, especially the stipulation of facts, evidence, and issues.

IN SUPPORT THEREOF, respondent respectfully states:

1. On [date], following the presentation of an oral status report by the parties on [date], among other things this Court ordered the parties to make a further oral status report at its Motions Session at 10:00 a.m. on [date], in Washington, D.C., for the purpose of informing the Court "exactly what issues and/or items have been settled and inform the Court further as to what issues and/or items the parties expect to have been settled when this case is called for trial on [date]."

2. The parties have been diligently preparing various drafts of stipulations, incorporating voluminous evidence, approximating two full file cabinets in volume.

3. The parties have made substantial progress but have not reached a formal agreement as to any final portion of the stipulation.

4. An orderly and expeditious trial cannot take place without a comprehensive stipulation, which incorporates the above described documents.

5. For the above reasons, it is believed that this Court will not want to require a trial of this case until a comprehensive stipulation has been executed.

6. It is anticipated that a large number of witnesses will be required, to some extent depending upon whether various third party records can be stipulated without objection.

7. Accordingly, the Court's informal guidance will be beneficial in furthering the parties efforts to be ready for an orderly and efficient trial presentation.

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES, pursuant to the provisions of Rule 91(f) of the Tax Court's Rules of Practice and Procedure, that the Court issue an Order To Show Cause requiring the above-named petitioners, at the earliest practical time, to show cause why the facts and evidence set forth in the attached copy of respondent's proposed Stipulation of Facts, marked Exhibit A, should not be accepted as established for the purposes of this case.

IN SUPPORT THEREOF, respondent respectfully states:

1. The Court by its trial notice set the above-entitled case for trial at the [city, state] trial session which commences on [date]. This motion is timely under the provisions of Rule 91(f) (1), which requires such motion to be filed not later than 45 days prior to the date set for the call of the case from a trial calendar.

2. This case involves the petitioners' liability for deficiencies in income taxes and additions to taxes for the taxable years [year(s)]. The deficiencies in taxes and additions to taxes, which were asserted under I.R.C. § 6663(a), total $ [amount] . During the years in issue, the petitioners received taxable income from various third-party sources.

3. In a telephone conversation with respondent's counsel on [date], petitioners' counsel stated that in the absence of any settlements of this case, [he/she] refuses to stipulate to any facts involved in the case. [He/she] added that [he/she] wouldn't even stipulate to the taxpayers' names.

4. Respondent has set forth in Exhibit A, attached hereto, a proposed Stipulation of Facts along with Exhibits, in accordance with the requirements of Rule 91(a) of the Tax Court Rules of Practice and Procedure.

5. Respondent has set forth in Exhibit B, attached hereto, numbered in conformance with Exhibit A, the source or present location of the evidence on which each fact in Exhibit A is based.

6. In compliance with the Proof of Service requirement of Rule 91(f) (1) (E) and pursuant to the provisions of I.R.C. § 7455, a copy of this motion, together with the attachments, was served on petitioners' counsel by certified mail on [date], as shown by the Certificate of Service signed by an attorney for respondent, a copy of which is attached hereto as Exhibit C.

WHEREFORE, it is prayed:

(1) That this motion be granted and that the Court order the petitioners to show cause why the facts and evidence covered by this motion, set forth in Exhibit A attached hereto, should not be accepted as established for the purpose of this case in accordance with Rule 91(f) of the Court's Rules of Practice and Procedure; and

(2) If pursuant to the Order To Show Cause, the petitioners do not agree to accept as established the facts set forth in attached Exhibit A, a hearing thereon be held at a convenient date prior to [date].

RESPONDENT MOVES, pursuant to Rule 121 of the Court's Rules of Practice and Procedure, for a summary adjudication in respondent's favor upon all of the legal issues in controversy.

IN SUPPORT THEREOF, respondent respectfully shows unto the Court:

1. On [date], respondent issued a statutory notice to petitioner involving his [year] personal income tax liabilities and asserting additions to tax under I.R.C. § 6662(d).

2. On [date], a petition was filed with the Tax Court alleging that respondent erred in determining deficiencies in the amount of $ [amount], and section 6662(d) penalties in the amount of $ [amount].

3. In respondent's answer, respondent denied petitioner's allegations [optional: and alleged an increased deficiency to $ [amount] for the [year] tax year.

4. Petitioner is liable for a deficiency for tax year [year] of $ [amount] instead of the $ [amount] determined in the statutory notice of deficiency.

5. [Set forth appropriate legal analysis].

6. In further support of this motion, respondent [optional: files a memorandum of law herewith and] respectfully states that counsel of record has reviewed the administrative file and has concluded, on the basis of the review and the facts deemed admitted, that there remains no genuine issue of material fact for trial, and that the record made in this case, including the supporting affidavit and exhibits annexed thereto, amply support the pending motion for summary judgment.

WHEREFORE, it is prayed that this motion be granted and that the determination of the Commissioner be sustained.

RESPONDENT MOVES, pursuant to the provisions of Tax Court Rule 50, that the Court enter a decision in the above-entitled case pursuant to the agreement of the parties and in accordance with the attached proposed decision document (Exhibit A), which reflects a deficiency in income tax due from petitioner for the taxable year [year] in the amount of $ [amount].

IN SUPPORT THEREOF, respondent respectfully states:

1. Prior to the date the Court had set for trial of this case, petitioner and respondent reached a basis of settlement of the above-captioned matter; however, the parties were unable to execute a decision document reflecting the settlement prior to this date.

2. On [date], respondent represented to the Court that the case was settled and requested additional time in which to submit the decision document.

3. On [date], respondent mailed petitioner's representative a proposed decision document, a copy of which is attached as Exhibit A. The accompanying letter requested that petitioner's representative execute and return the decision document by [date]. A copy of this letter is attached as Exhibit B.

4. On [date], respondent telephoned petitioner's representative in regard to the decision document. Petitioner's representative assured respondent that the executed decision document would be forthcoming.

5. On [date], respondent mailed a letter to petitioner's representative stating that if the decision document was not signed and returned by [date], this motion would be filed with the Court. A copy of this letter is attached as Exhibit C.

6. Not having received any communication from petitioner's representative by [date], this motion is submitted to the Court in order that the agreement reached by petitioner and respondent, as represented to the Court on [date], might be effectuated by the Court by entering a decision determining a deficiency in income tax due from petitioner for the taxable year [year] in the amount of $ [amount], as shown in Exhibit A.

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES that the Court vacate the decision entered in the above-entitled case.

IN SUPPORT THEREOF, respondent respectfully states:

1. Attached hereto as Exhibit A is a copy of the decision received by [Field Counsel office], on [date of receipt]. The Court placed the date of [date of decision], on that decision, when the year of entry should have been [correct year].

2. The respondent has contacted petitioner's counsel to advise of the typographical error and the respondent is submitting this motion as [his/her] motion rather than a joint motion solely because of the 30-day time constraint of Rule 162 of the Tax Court's Rules of Practice and Procedure.

3. The parties in this case continue with the desire to be bound by the settlement agreement reached. Accordingly, the respondent has submitted to the petitioner a new decision document so that the Court can reenter the decision with a current date of entry. That new decision will be submitted to the Court as soon as it has been returned to the respondent by petitioner's counsel.

4. The respondent believes that the Court's file should show the date the entered decision was received by mail from the respondent, and that date should be in [correct year] . If the Court requires further evidence of the time of submission of the original decision document, respondent requests such an order be issued.

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES that the Court dismiss the above-captioned case for lack of jurisdiction on the ground that no valid statutory notice of deficiency under I.R.C. § 6212 was issued to the petitioner for the year 2001, the year purportedly in dispute in the above case.

IN SUPPORT THEREOF, respondent respectfully states:

1. A document entitled notice of deficiency was issued on [date] (Notice), to petitioner with respect to the taxable year [year] and purported to determine a deficiency in income tax in the amount of $ [amount]. The petition filed in this case is based upon the January Notice.

2. All of the adjustments to petitioner's [tax year] taxable income appearing in the Notice arise from the petitioner's interest in, and deductions claimed from, a partnership entitled [name of partnership].

3. [name of partnership] is a TEFRA partnership which for the taxable year [year] has its tax treatment determined at the partnership level pursuant to I.R.C. § 6221 through § 6234. The partnership is not excluded from the TEFRA provisions by reason of the small partnership exception of I.R.C. § 6231(a) (1) (B) (i) since the partnership had more than ten partners at one time during the taxable year. A notice of the beginning of administrative proceedings under § 6223(a) (1) was issued by respondent with respect to the [name of partnership] prior to the Notice in this case.

4. There are no non-TEFRA partnership items appearing in the Notice upon which the petition in this case was based.

5. The [date] notice is invalid and prohibited by I.R.C. § 6225. Maxwell v. Commissioner, 87 T.C. 783 (1986).

6.No valid statutory notice of deficiency under I.R.C. § 6212 was issued to petitioner for the taxable year [year].

7. Petitioner's counsel has been contacted and has no objection to the granting of this motion.

WHEREFORE, respondent requests that this motion be granted.

RESPONDENT MOVES that the court dismiss the portion of the above-captioned case insofar as it relates to adjustments from or to [name of partnership] and to strike the portion of the adjustments and pleadings pertaining to (and only to) [name of partnership].

IN SUPPORT THEREOF, respondent respectfully states:

1. A notice of deficiency was issued on [date], to petitioner with respect to a deficiency in income tax for the taxable year [year].

2. Certain, but not all, of the adjustments to petitioner's [year] taxable income appearing in the [date], notice of deficiency arise from the petitioner's interest in, and deductions claimed from, a partnership entitled [name of partnership].

3. [name of partnership] is a TEFRA partnership which for the taxable year [year] has its tax treatment determined at the partnership level pursuant to I.R.C. § 6221 through § 6234. The partnership is not excluded from the TEFRA provisions by reason of the small partnership exception of I.R.C. § 6231(a) (1) (B) (i) since the partnership had more than ten partners at one time during the taxable year. A notice of the beginning of administrative proceedings under I.R.C. § 6223(a) (1) was issued by respondent with respect to the [name of partnership] prior to the [date], notice in this case.

4. There are additional non-TEFRA partnership items appearing in the [date], notice upon which the petition in this case is based.

5. The [date] notice is valid, as non-TEFRA partnership items were adjusted and a deficiency was determined with respect to such non-TEFRA partnership items. However, insofar as adjustments to or from [name of partnership] were determined, the notice is invalid and prohibited by I.R.C. § 6225. Maxwell v. Commissioner, 87 T.C. 783 (1986).

6. Petitioner’s counsel has been contacted and has no objection to the granting of this motion.

WHEREFORE, respondent requests that this motion be granted.

RESPONDENT MOVES that the Court dismiss the above-captioned case insofar as it relates to additions to tax and to strike that portion of the pleadings pertaining to additions to tax.

IN SUPPORT THEREOF, respondent respectfully states:

1. On [date], pursuant to I.R.C. § 6223(a) (2), the respondent issued a notice of Final Partnership Administrative Adjustment to [name of tax matters partner], tax matters partner of [name of partnership], determining adjustments to the taxable year [insert applicable tax years ending before August 6, 1997] partnership return of [name of partnership].

2. In the [date], notice of partnership administrative adjustment, the respondent included an addendum raising additions to tax under I.R.C. § 6662. This addendum was attached for informational purposes only.

3. On [date], pursuant to I.R.C. § 6226(a), [name of ax matters partner] of [name of partnership] filed the instant petition with respect to the notice of final partnership administrative adjustment for the taxable year [year].

4. In the petition, petitioner seeks a redetermination of adjustments to the partnership return of [name of partnership] and the penalties under I.R.C. § 6662.

5. For taxable years ending before August 6, 1997, the Tax Court only has jurisdiction to determine partnership items of [name of partnership]. See I.R.C. § 6226(f).

6. The additions to tax are affected items as defined in I.R.C. § 6231(a) (5) that require factual determinations to be made at the partner level. See N.C.F. Energy Partners v. Commissioner, 89 T.C. 741 (1987). These items must be determined in a statutory notice of deficiency following the completion of the partnership proceeding. GAF v. Commissioner, 114 T.C. 519, 528 (2000).

7. The Court should dismiss the instant case with respect to the additions to tax because, pursuant to I.R.C. § 6226(f), the Court only has jurisdiction over partnership items in this proceeding.

8. Petitioner's counsel has been contacted and has no objection to the granting of this motion.

WHEREFORE, respondent requests that this motion be granted.

RESPONDENT MOVES that the above-entitled case be dismissed for lack of jurisdiction on the ground that the petitioner failed to exhaust its administrative remedies at the time the petition herein was filed.

IN SUPPORT THEREOF, respondent respectfully states:

1. On [date], the organization filed Form 1023, Application For Recognition of Exemption, under section 501 (c) (3) of the Internal Revenue Code.

2. On [date], the Form 1023 was returned to the organization. The organization was requested to provide additional information including the articles of incorporation, the certification of incorporation, a statement of receipts and expenditures and a statement of assets and liabilities.

3. The resubmitted Form 1023 was received by the Internal Revenue Service on [date].

4. By letter [date], the organization was requested to provide information which was omitted from the Form 1023 filed with the Service. The requested information included a request regarding an explanation of the organization's activities and its relationship to its founders and/or directors.

5. Additional information was submitted to the Internal Revenue Service on or about [date].

6. By letter dated [date], the respondent issued a proposed adverse determination letter in which the organization was given 30 days to protest the determination set forth in the letter.

7. By letter dated [date], the organization protested the proposed adverse determination letter issued on [date].

8. By letter dated [date], the organization submitted an amendment to the Articles of Incorporation.

9. By letter dated [date], a conference which was scheduled for [date] with the Appeals Office was confirmed.

10. A conference was held with an appeals officer and a representative of the organization on [date].

11. By letter dated [date], the organization submitted additional information regarding its activities. Such information was requested by the appeals officer during the conference held on [date].

12. By letter dated [date], the organization requested from the appeals officer a status report with respect to its request for exempt status.

13. On [date], the appeals officer advised the organization's representative by telephone that the submitted information was being considered and processed by the Internal Revenue Service.

14. On [date], the administrative file and record and the proposed final adverse determination letter were submitted to the Area Counsel for review.

15. On [date], the file and record and the proposed final adverse determination letter were returned by the Area Counsel to the Appeals office, with suggested changes with respect to the final adverse determination letter.

16. On [date], the organization filed a complaint in the United States District Court for the District of [state] in which the organization requested the district court to determine that it is an organization exempt from taxation under the provisions of section 501 (c) (3).

17. On [date], the petitioner filed with the Tax Court a petition in which the organization requested that the Court determine that the organization is an organization exempt from taxation under the provisions of section 501(c) (3). The petition was served on the Chief Counsel's office on [date].

18. On [date], the respondent issued a final adverse determination to the organization with respect to the exempt status under section 501(c) (3).

19. On the date the petition was filed with the Tax Court, [date] I the Internal Revenue Service had not issued a final adverse determination letter to the organization.

20. The respondent had been working within its administrative procedures in discussing with the organization and its representative the requirements for exempt status and in evaluating the information submitted by the organization prior to [date] I the date the petition herein was filed.

21. I.R.C. § 7428 requires the petitioner to exhaust all administrative remedies available to it within the Internal Revenue Service before the Tax Court can issue a declaratory judgment decree under the authority of that section.

22. Treas. Reg. § 601.201(n) provides procedures for the appeal of disagreed issues to the Appeals office.

23. Treas. Reg. § 601.201(n) (7) provides additional procedures for applications filed for exempt status under 501(c) (3). Pursuant to this regulation, the 270-day period referred to in section 7428(b) (2) will be considered by the Service to begin on the date a substantially completed Form 1023 is submitted. A substantially completed Form 1023 is one that is signed by an authorized individual and includes an employee identification number, a statement of receipts and expenditures, a balance sheet for the current year and the three preceding years, a statement of proposed activities, a description of anticipated receipts and contemplated expenditures, a copy of the organizing or enabling document, and a copy of the adopted bylaws.

24. Treas. Reg. § 601.201(n) (7) requires an organization to file a substantially completed Form 1023, to timely submit all additional information requested to perfect the exemption application, and to exhaust all administrative appeals available within the Service.

25. Section 7428(b) (2) provides that a declaratory judgment will not be issued by the Court unless the organization establishes that it has exhausted all administrative remedies available to it within the Internal Revenue Service.

26. Section 7428 does not provide that an organization can automatically petition the Court for declaratory judgment upon the expiration of the 270-day period from the date of the initial filing of the Form 1023 with the Service.

27. It is the respondent's position that all the facts and circumstances surrounding the submission of the Form 1023 should be evaluated in order to determine whether the petitioner exhausted its administrative remedies on the date the petition herein was filed.

28. The respondent in this case has proceeded diligently in processing the application, and, therefore, it is respondent's position that the petitioner had failed to exhaust its administrative remedies on [date], the date the petition herein was filed.

29. Additional information was sought from the organization with respect to its application on [dates]. This information was being considered and evaluated by the Service according to its procedures.

30. It is the respondent's position that the organization failed to exhaust its administrative remedies at the time the petition herein was filed with the Court on [date].

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES, pursuant to Rule 217 of the Tax Court's Rules of Practice and Procedure, that the Court issue an Order to Show Cause why this case should not be submitted on the basis of the administrative record filed by respondent on [date] and appropriately certified as to its genuineness.

IN SUPPORT THEREOF, respondent respectfully states:

1. This case involves a declaratory judgment action pursuant to I.R.C. § 7428. The issue is whether the petitioner qualifies as an organization described in I.R.C. § 501(c) (3), which is exempt from tax under I.R.C. § 501(a).

2. Tax Court Rule 217(a) provides that disposition of an action for declaratory judgment will ordinarily be made on the basis of the administrative record as defined in T. C. Rule 210(b) (12). The Rule further provides that only with permission of the Court, upon good cause shown, will any party be permitted to introduce before the Court any evidence other than that presented before the Internal Revenue Service and contained in the administrative record as so defined.

3. Tax Court Rule 210(b) (12) defines the administrative record as including the request for determination and all documents, papers, and protests submitted to the Internal Revenue Service as well as written correspondence between the Internal Revenue Service and petitioner, all pertinent returns, and the notice of determination by the Commissioner.

4. Tax Court Rule 217(b) (1) provides that the Court will expect the parties to file with the Court the entire administrative record stipulated as to its genuineness within 30 days after service of the answer; and if the parties are unable to file such a stipulated administrative record, then, not sooner than 30 days or later than 45 days after service of the answer, the Commissioner shall file with the Court the entire administrative record as defined in T.C. Rule 210 (b) (12), appropriately certified as to its genuineness by the Commissioner or by an official authorized to act for the Commissioner.

5. In accordance with T.C. Rule 217(b), counsel for respondent made an attempt by letter dated [date] to stipulate the genuineness of the entire administrative record, a copy of which letter is attached hereto as Exhibit A.

6. Petitioner's counsel failed to respond or to advise counsel for respondent of his willingness to stipulate to the administrative record.

7. In conformity with T.C. Rule 217(b) (1), counsel for respondent filed with the Court on [date] the entire administrative record, as defined by T.C. Rule 210(b) (12), appropriately certified by an official authorized to act for the Commissioner.

8. The administrative record in this case as defined in T.C. Rule 210(b) (12) and as filed by the respondent constitutes the only source of evidence upon which to determine whether petitioner qualifies as an organization described in I.R.C. § 501(c) (3) which is exempt from tax under I.R.C. § 501(a).

9. Petitioner has not shown good cause why this case should not be submitted and disposed of on the basis of the administrative record as defined in T.C. Rule 210(b) (12).

WHEREFORE, it is prayed that this motion be granted and the Court order the petitioner to show cause why this case should not be submitted on the basis of the administrative record as filed by respondent.

RESPONDENT MOVES, pursuant to the provisions of Tax Court Rule 140(c), that the Court change the place of trial in this case from [city, state] to [city, state].

IN SUPPORT THEREOF, respondent respectfully states:

1. This case was originally scheduled for trial at the Trial Session of this Court that was scheduled to begin in [city, state], on [date]. On [date], petitioner filed a motion for continuance because [reason for motion to change place of trial] . The Court continued the case on [date].

2. The case was next scheduled for trial at the session of Court that was to begin in [city, state], on [date]. Just prior to the time of the trial, the petitioner filed a motion for continuance on the ground that [state grounds] precluded the proper preparation of the case for trial. In order to not unduly delay the trial of the case, however, petitioner requested that the place of trial be changed to [city, state] and that the case be calendared on a scheduled [date], [city, state] trial calendar. Judge [name] continued the case from the [date], [city] trial session and indicated he/she would recommend the case be placed on a [month, year] [city] trial calendar, the next scheduled trial calendar in the vicinity of [state] that [he/she] thought the case might be placed on.

3. The case was not calendared on the [month, year] [city] trial calendar, but has been tentatively scheduled for a [date] [city] trial calendar. The only reason that the parties considered [city, state] as a possible place of trial in [month, year], was that it was a then current trial calendar that would permit an early disposition of the case. Neither petitioner nor respondent have any connection with [city, state] and, accordingly, there is presently no reason for trying the case in [city, state].

4. Since petitioner is located in [city], as are most of the witnesses that the respondent will call in this case, it is requested that the place of trial of this case be changed from [city, state], to [city, state].

5. Respondent has contacted petitioner's representative and has been advised that petitioner has [objected/no objection] to the granting of this motion.

WHEREFORE, it is prayed that this motion be granted.

RESPONDENT MOVES, pursuant to the provisions of Rule 63 of the Court's Rules of Practice and Procedure, that the Court substitute [name of executor/personal representative], as a party in this case, and change the caption to read [name of petitioner], [name of executor/personal representative), EXECUTOR/PERSONAL REPRESENTATIVE.

IN SUPPORT THEREOF, respondent respectfully states:

1. On or about [date], petitioner, [name] filed a U.S. Individual Income Tax return for the taxable year [year].

2. On [date], respondent issued a statutory notice of deficiency to the petitioner, [name], determining a deficiency in the amount of $ [amount].

3. On [date], a petition from the aforementioned statutory notice of deficiency was filed in the name of [name]. The petition was signed by [name], petitioner's [executor/personal representative].

4. On [date], the undersigned counsel for respondent spoke with [name of executor/personal representative]. [Name of executor/personal representative] stated that his relationship to petitioner, [name], is that of [executor/personal representative]. [Name of executor/personal representative] provided proper documentation of the appointment to the undersigned counsel for respondent.

5. Rule 63(a) of the Court's Rules of Practice and Procedure provides that if a petitioner dies, the Court, on motion of a party or the decedent's successor or representative or on its own initiative, may order substitution of the proper parties.

6. Respondent respectfully submits that under the circumstances of this case, [name], petitioner's [executor/personal representative], should be added as a party to represent the petitioner.

WHEREFORE, it is prayed that this motion be granted.

Please click here for the text description of the image.

Please click here for the text description of the image.

Please click here for the text description of the image.

Please click here for the text description of the image.

Respondent requests that petitioner answer under oath, in accordance with T.C. Rule 71, the following interrogatories:

1. Attached hereto and marked Exhibit [letter] is a list of deposits made by the petitioner during [year] at the [bank name] , account no. [#], and the [bank name ], account no. [#]. With respect to each of these deposits listed on Exhibit [letter], please answer in detail the following questions:

a. Whether the petitioner contends that a particular deposit does not represent income taxable to him during the year [year].

b. In regard to each particular deposit which the petitioner contends does not represent taxable income to him in [year] explain, identify the deposit items which are the source for each deposit. When used with respect to a deposit item which constitutes a financial instrument, such as a check, money order, draft, or other negotiable instrument, the term identify shall mean to state the issue date of such instrument, its amount, payee, identifying number, letters, or symbols, identity of issuer, maker, or drawer, identity of financial institution on which drawn, name and identifying number of account on which drawn, endorsement, if any, and maturity date, if any.

c. In regard to each particular deposit which the petitioner contends does not represent taxable income to him in [year] explain the legal basis and the factual circumstances in regard to the source of each such deposit in sufficient detail so that the respondent may understand the factual and legal reasons as to why the petitioner believes a particular deposit does not represent income taxable to him during the year [year].

2. On petitioner's [year] Federal income tax return (Form 1040) I petitioner claimed a total interest expense deduction of $ [amount]. During the audit of petitioner's Federal income tax return for the year [year] I petitioner supplied documentary evidence to substantiate interest expense deductions in the amounts of [DOLLAR AMOUNT] from [bank name] I and $ [amount] from [bank name].

a. Please identify the amounts and name of other creditors to whom petitioner made interest payments during the year [year] I exclusive of the interest deductions previously allowed.

b. Identify the documentary evidence and/or witnesses petitioner intends to offer at the trial of this case to support the additional interest deductions which petitioner identified in response to subparagraph a above.

3. Explain the factual circumstances as to why petitioner should not be held liable for the delinquency penalty provided by I.R.C. § 6651(a) (1) in view of the fact that petitioner did not file his [year] Federal income tax return until [year].

PLEASE TAKE NOTICE that a copy of such answers must be served upon the undersigned within 30 days after service of these interrogatories.

RESPONDENT MOVES, pursuant to Rule 90(e) of the Court's Rules of Practice and Procedure, that the Court order the petitioner to serve answers to the respondent's requests for admissions.

IN SUPPORT THEREOF, respondent respectfully states:

1. The petition in the case was filed on [date]. Respondent's answer was filed on [date]. A reply was filed on [date].

2. Subsequently, numerous conferences have been held regarding the facts of this case and various information and documents have been exchanged in compliance with T.C. Rule 90(a). Despite this, to date, respondent's counsel does not have any stipulations or admission as to any facts in regard to the net worth and personal expenditures allegations set forth in respondent's answer.

3. On [date], respondent served upon petitioner and filed with this Court his Requests For Admissions, a copy of which is attached hereto as Exhibit A.

4. On [date], petitioner served upon respondent his objections to respondent's request for admissions, a copy of which is attached hereto as Exhibit B.

5. Petitioner's objection is based primarily on [his/her] erroneous assumption that [he/she] has a privilege under the Fifth Amendment to refuse to answer respondent's requests for admission. Petitioner is not presently and has not been previously under criminal investigation by the agents of the respondent and therefore does not have a legitimate fear of prosecution. Accordingly, petitioner's claim that [his/her] answers to said requests for admissions would result in self-incrimination are unfounded.

WHEREFORE, respondent prays that this motion be granted.

RESPONDENT MOVES, pursuant to the provisions of Rules 71(c) and 104(b) of the Court's Rules of Practice and Procedure, that the Court enter an order compelling the petitioner to answer the interrogatories served on petitioner on [date].

RESPONDENT FURTHER MOVES, pursuant to the provisions of Rule 104 of the Court's Rules of Practice and Procedure, that the Court order, on failure of the petitioner to completely comply with any order issued by it in respect to this motion to compel, that [specify sanctions requested].

IN SUPPORT THEREOF, respondent respectfully states:

1. Respondent sent a letter to the petitioner on [date] in which respondent invited petitioner to a conference on [date] at [location] and also informally requested the petitioner to answer certain questions. Attached hereto and marked Exhibit A is a copy of said letter. [Describe any other attempts to informally conduct informal discovery with respect to issues covered by interrogatories.]

2. Petitioner failed to attend the conference scheduled for [date], failed to furnish the respondent with answers to said questions and failed to contact the respondent for the purpose of scheduling another conference. [Substitute other information concerning conference as appropriate.]

3. On [date], pursuant to T.C. Rule 71, respondent served on the petitioner Respondent's Interrogatories, which is attached hereto as Exhibit B.

4. On [date], petitioner mailed to respondent "Petitioner's Response to Respondent's Interrogatories" in which [he/she] objected to respondent's request in its entirety. Such response is attached hereto as Exhibit C. [Substitute allegations concerning lack of response, or incomplete or evasive response, as appropriate] .

5. To date, none of the interrogatories have been answered by the petitioner. [Substitute allegations concerning evasive or incomplete response as appropriate].

6. On [date], respondent's counsel called petitioner's counsel who reported that [describe attempts to contact petitioner or petitioner's representative and any explanation from petitioner for failing to respond to interrogatories.]

7. The answers to said interrogatories are all relevant to this case and are necessary for the respondent both to properly and timely prepare his defense against the contentions of the petitioner.

8. Petitioner's failure to answer these interrogatories frustrates compliance with T.C. Rule 91, which requires the parties to stipulate all relevant facts and documents.

WHEREFORE, respondent prays that this motion be granted.

RESPONDENT MOVES, pursuant to the provisions of Rules 72(b) and 104(b) of the Court's Rules of Practice and Procedure, that the Court enter an order requiring petitioner to produce at [location], for inspection and copying within [number of days] and to continue from day to day for so long as is reasonably necessary to examine and copy, the documents set forth in Respondent's Request for Production of Documents served on petitioner on [date].

RESPONDENT FURTHER MOVES, pursuant to the provisions of Rule 104 of the Court's Rules of Practice and Procedure that the Court order, on failure of the petitioners to completely comply with any order issued by it in respect to this motion to compel, that [specify sanctions requested].

IN SUPPORT THEREOF, respondent respectfully states:

1. Respondent sent a letter to the petitioner on [date] in which respondent invited petitioner to a conference on [date] at [location] and also informally requested the petitioner to bring various documents to this conference. Attached hereto and marked Exhibit A is a copy of said letter. [Describe any other attempts to informally obtain the requested documents.]

2. Petitioner failed to attend the conference scheduled for [date], failed to furnish the respondent with the requested documents, and failed to contact the respondent for the purpose of scheduling another conference. [Substitute other information concerning conference as appropriate.]

3. On [date], pursuant to Rule 72, respondent served on the petitioner Respondent's Request for Production of Documents, which is attached hereto as Exhibit B.

4. On [date], petitioner mailed to respondent "Petitioner's Response to Respondent's Request for Production of Documents" in which [he/she] objected to respondent's request in its entirety. Such response is attached hereto as Exhibit c. [Substitute allegations concerning lack of response, or incomplete or evasive response, as appropriate].

5. To date, none of the requested documents have been provided to respondent. [Substitute allegations concerning evasive or incomplete response as appropriate.]

6. On [date], respondent's counsel called petitioner's counsel who reported that [describe attempts to contact petitioner or petitioner's representative and any explanation from petitioner for failing to produce documents.]

7. The documents requested are all relevant to this case and are necessary for the respondent both to properly and timely prepare his defense against the contentions of the petitioner.

8. Petitioner's failure to respond substantively to the request for documents frustrates compliance with T.C. Rule 91, which requires the parties to stipulate all relevant facts and documents.

WHEREFORE, respondent prays that this motion be granted.

RESPONDENT MOVES, pursuant to the provisions of Rules 72(b) and 104(b) of the Court's Rules of Practice and Procedure, that the Court enter an order requiring that, within ten days after entry thereof, petitioners allow respondent to enter upon the premises of petitioners' residence located at [street address], for the purpose of inspecting, measuring, and photographing property and designated objects.

RESPONDENT FURTHER MOVES, pursuant to the provisions of T.C. Rule 104(c) that, upon failure of petitioners to comply completely with the discovery order, the Court impose sanctions, including dismissal of the petition.

IN SUPPORT THEREOF, respondent respectfully states:

1. This case appears on a trial calendar at [city, state] scheduled to commence on [date].

2. The petition was filed on [date]. The case became at issue upon the filing of the respondent's answer on or about [date]. The issues are largely factual.

3. Petitioners' attorney has held numerous meetings with the [city] Appeals office. After exhausting all settlement possibilities, this case was returned to the Field Counsel's office for trial preparation on [date].

4. Respondent sent a letter to petitioners' counsel dated [date], inviting petitioners' counsel to a conference on [date], and also informally requesting permission for entry. Annexed hereto and marked as Exhibit A is a copy of the request without attachments.

5. Petitioners' counsel did not attend the conference scheduled for [date], nor did [he/she] respond to respondent's informal request for entry upon the premises of petitioners' residence for the purpose of measuring, inspecting, and photographing property and designated objects.

6. On [date], pursuant to T.e. Rule 72(a) (2), respondent served on counsel for petitioners' Respondent's Request to Petitioners for Permission for Entry, Inspection, Measuring, and Photographing Property and Designated Objects, a copy of which is annexed hereto as Exhibit B.

7. [Insert paragraph(s) containing facts concerning respondent's efforts to obtain compliance from petitioner.]

8. [Insert specific reason(s) why inspection is necessary for defense of case.)

9. Respondent's Request to Petitioners for Permission for Entry, Inspection, Measuring, and Photographing Property and Objects is relevant to this case and is necessary for respondent to properly and timely prepare his defense against the contentions of the petitioners.

10. Petitioners' failure to respond substantively to the Request for Permission for Entry, Inspection, Measuring, and Photographing Property and Objects frustrates compliance with T.C. Rule 91, which requires the parties to stipulate to all relevant facts.

WHEREFORE, it is prayed:

(1) That the Court enter an order compelling petitioners to comply with Respondent's Request to Petitioners for Permission for Entry, Inspection, Measuring, and Photographing Property and Objects within ten days from the entry thereof;

(2) That should petitioners fail to comply with the order of the Court, prayed for above, the Court enter an order pursuant to T.C. Rule 104(c) (3) dismissing the petition;

(3) In the alternative, if the Court does not dismiss the petitioners' petition, that the Court enter an order precluding petitioners from introducing any evidence to support claims or defenses with respect to any matter which was subject to Respondent's Request to Petitioners for Permission for Entry, Inspection, Measuring, and Photographing Property and Objects; and

(4) That the Court impose such other and further sanctions upon petitioners as the Court may deem appropriate under the circumstances.

RESPONDENT MOVES for an order, pursuant to Rule 104(c) of the Court's Rules of Practice and Procedure, imposing sanctions upon the petitioner for failure to comply with the Court's order dated [date].

IN SUPPORT THEREOF, respondent respectfully states:

1. On [date], the Court ordered petitioner to produce and make available to respondent's trial counsel for inspection and copying all documents requested in Respondent's Request For Production of Documents by [date].

2. Petitioner has not made available to respondent's counsel any of the requested documents and therefore has failed to comply with this Court's order of [date].

3. [Describe attempts to contact petitioner or petitioner's representative and any explanation from petitioner for failing to comply with Court's order].

WHEREFORE, respondent prays that this motion be granted and the Court impose the following sanctions:

[Request sanctions that are appropriate based upon petitioner's failure to comply] .

(a) That the above-entitled case be dismissed for lack of prosecution and that a decision be entered finding that there is due from the petitioner a deficiency in income tax for the taxable year [year] in the amount of $ [amount], as set forth in the statutory notice of deficiency dated [date], upon which notice this case is based; or, in the alternative,

(b) That all documents covered by the respondent's request, which the petitioner should have made available in response to the respondent's Request For Production of Documents, shall be excluded from evidence in this case, and

(c) That the issues, to which the respondent's discovery request pertains, shall be taken as established as set forth in the notice of deficiency dated [date].

(d) That the assignments of error in the petition which involve the subject matter covered by said production of documents be stricken and petitioners be prohibited from offering evidence to rebut the determination made in the notice of deficiency with regard to the subject matter covered by Respondent’s [Interrogatories/Request for Production of Documents].

(e) Any other sanctions that the Court may deem appropriate.

___________________________________

Note: This procedure is not required if the customer is a corporation, trust, or partnership of six or more individuals. See 12 U.S.C. §§ 3401(4), 3401(5).

RESPONDENT MOVES, pursuant to I.R.C. § 7456(a), that [initials or name], an inmate at the Federal Correction Institution located at [address], be made available as a witness for respondent in the trial of the captioned case, which is scheduled for the trial session beginning [date].

IN SUPPORT THEREOF, respondent respectfully states:

1. The captioned case is scheduled for trial during the Tax Court trial-session in [city] beginning on [date].

2. Respondent and petitioner have agreed, subject to the Court's ratification, that trial of this case should begin on [date] i it is anticipated that trial of this case will involve at least eight (8) hours of trial time.

3. Respondent requires the testimony of [initials or name] to rebut anticipated testimony of petitioner or petitioner's witnesses and to aid in satisfying respondent's burden or proof relating to the assertion of the fraud penalty.

4. [Initials or name], who is presently incarcerated in the Federal Correction Institution, located at [address], has agreed to testify for respondent at this trial; therefore, it is requested that [initials or name] be made available in the United States Tax Court located on the xth floor of [address], at [time] of [date].

5. This witness is intended to be used both for the purpose of providing direct testimony and for the purpose of rebutting anticipated testimony.

WHEREFORE, respondent prays that the motion be granted.

Please click here for the text description of the image.

RESPONDENT MOVES, pursuant to the provisions of Rule 103(a) (2) of the Court's Rules of Practice and Procedure, that the Court enter an order that respondent, at this time, need not answer the request for admissions served on him by petitioner.

IN SUPPORT THEREOF, respondent respectfully states:

1. On [date], petitioner filed [his/her] petition in the above-captioned case.

2. On [date], respondent filed [his/her] answer.

3. On [date], petitioner filed [his/her] reply

4. On [date], petitioner served on respondent a request for admissions, a copy of which is attached here to as Exhibit A.

5. Petitioner has had no informal conferences with respondent's counsel with respect to this case. Respondent has not denied the petitioner the right to any informal conference.

6. Respondent is willing to meet with petitioner at a mutually convenient time to discuss the issues involved herein and attempt to stipulate facts in accordance with T.C. Rule 91 (a).

7. T.C. Rule 90(a) provides in part that the Court expects the parties to attempt to attain the objectives of such a request through informal consultation or communication before utilizing the procedures provided by this Rule.

8. Petitioner has not complied with the letter or spirit of T.C. Rule 90 regarding admissions and the use of purported request for admissions by petitioner herein is an abuse of the Court's procedures. Branerton Corp. v. Commissioner, 61 T.C. 691 (1974), Odendhal v. Commissioner, 75 T.C. 400 (1980).

9. This motion is made without prejudice to respondent's right to assert specific objections to any of the attached requests for admissions in accordance with T.C. Rule 90(c) at a later appropriate time.

WHEREFORE, respondent prays that this motion be granted.

The attached Notice Setting Case for Trial notifies the parties that this case is calendared for trial at the trial session beginning on [day, date]

Communication Between the Parties. The parties shall begin discussing settlement and/or preparation of a stipulation of facts as soon as practicable. Valuation cases and reasonable compensation cases are generally susceptible of settlement, and the Court expects the parties to negotiate in good faith with this goal in mind. All minor issues should be settled so that the Court can focus on the issue(s) needing a Court decision. If a party has trouble communicating with another party or complying with this Order, the affected party should promptly advise the Court in writing, with a copy to each other party, or request a conference call for the parties and the trial Judge.

Continuances. Continuances (i.e., postponements of trial) will be granted only in exceptional circumstances. See Rule 133, Tax Court Rules of Practice and Procedure. (The Court’s Rules are available at www.ustaxcourt.gov.) Even joint motions for continuance are not granted automatically.

Sanctions. The Court may impose appropriate sanctions, including dismissal, for any unexcused failure to comply with this Order. See Rule 131(b). Such failure may also be considered in relation to sanctions against and disciplinary proceedings involving counsel. See Rule 202(a).

Electronic Filing (eFiling). eFiling is required for most documents (except the petition) filed by parties represented by counsel in cases in which the petition is filed on or after July 1, 2010. Petitioners not represented by counsel may, but are not required to, eFile. For more information about eFiling and the Court’s other electronic services, see www.ustaxcourt.gov.

To help the efficient disposition of all cases on the trial calendar:

1. Stipulation. It is ORDERED that all facts shall be stipulated (agreed upon in writing) to the maximum extent possible. All documents and written evidence shall be marked and stipulated in accordance with Rule 91(b), unless the evidence is to be used only to impeach (discredit) a witness. Either party may preserve objections by noting them in the stipulation. If a complete stipulation of facts is not ready for submission at the start of the trial or when otherwise ordered by the Court, and if the Court determines that this is due to lack of cooperation by either party, the Court may order sanctions against the uncooperative party.

2. Trial Exhibits. It is ORDERED that any documents or materials which a party expects to use (except solely for impeachment) if the case is tried, but which are not stipulated, shall be identified in writing and exchanged by the parties at least 14 days before the first day of the trial session. The Court may refuse to receive in evidence any document or material that is not so stipulated or exchanged, unless the parties have agreed otherwise or the Court so allows for good cause shown.

3. Pretrial Memoranda. It is ORDERED that, unless a basis of settlement (resolution of the issues) has been reached, each party shall prepare a Pretrial Memorandum containing the information in the attached form. Each party shall serve on the other party and file the Pretrial Memorandum not less than 14 days before the first day of the trial session.

4. Final Status Reports. It is ORDERED that, if the status of the case changes from that reported in a party’s Pretrial Memorandum, the party shall submit to the undersigned and to the other party a Final Status Report containing the information in the attached form. A Final Status Report may be submitted to the Court in paper format, electronically by following the procedures in the "Final Status Report" tab on the Court’s Web site or by fax sent to 202-521-3378. (Only the Final Status Report may be sent to this fax number; any other documents will be discarded.) The report must be received by the Court no later than 3 p.m. eastern time on the last business day (normally Friday) before the calendar call. The Final Status Report must be promptly submitted to the opposing party by mail, email, or fax, and a copy of the report must be given to the opposing party at the calendar call if the opposing party is present.

5. Witnesses. It is ORDERED that witnesses shall be identified in the Pretrial Memorandum with a brief summary of their anticipated testimony. Witnesses who are not identified will not be permitted to testify at the trial without a showing of good cause.

6. Expert Witnesses. It is ORDERED that unless otherwise permitted by the Court, expert witnesses shall prepare a written report which shall be submitted directly to the undersigned and served upon each other party at least 30 days before the first day of the trial session. An expert witness's testimony may be excluded for failure to comply with this Order and Rule 143(g).

7. Settlements. It is ORDERED that if the parties have reached a basis of settlement, a stipulated decision shall be submitted to the Court prior to or at the call of the calendar on the first day of the trial session. Additional time for submitting a stipulated decision will be granted only where it is clear that all parties have approved the settlement. The parties shall be prepared to state for the record the basis of settlement and the reasons for delay. The Court will specify the date by which the stipulated decision and any related settlement documents will be due.

8. Time of Trial. It is ORDERED that all parties shall be prepared for trial at any time during the trial session unless a specific date has been previously set by the Court. Your case may or may not be tried on the same date as the calendar call, and you may need to return to Court on a later date during the trial session. Thus, it may be beneficial to contact the Court in advance. Within 2 weeks before the start of the trial session, the parties may jointly contact the Judge’s chambers to request a time and date certain for the trial. If practicable, the Court will attempt to accommodate the request, keeping in mind other scheduling requirements and the anticipated length of the session. Parties should jointly inform the Judge as early as possible if they expect trial to require 3 days or more.

9. Service of Documents. It is ORDERED that every pleading, motion, letter, or other document (with the exception of the petition and the posttrial briefs, see Rule 151(c)) submitted to the Court shall contain a certificate of service as specified in Rule 21(b), which shows that the party has given a copy of that pleading, motion, letter or other document to all other parties.


 

[Judge’s name]

Judge

Dated:

Dear Mr./Mrs./Ms. [name]:

In order to finalize our settlement, we must file with the Tax Court a decision document that shows the amount of tax and additions to tax/penalties that you owe based on that settlement.

Enclosed are the following documents:

Please carefully review the Statement of Account, the interest computations and the decision document to make sure that you agree with them. It is important that they be correct because the United States Tax Court will usually not change its decision, even if there is a mistake, unless the Court is notified of the mistake within 30 days after the decision is accepted by the Court. If you believe that there are mistakes in our calculations of the amount you owe or in the decision, please telephone me as soon as possible.

If you agree with the calculations and the decision document, please sign the original and one copy of the decision document and return them to this office for filing with the Tax Court. The remaining copy as well as the Statement of Account and the calculation of interest are for your records. [Please note that because the title of the Tax Court case is under both of your names, both of you must sign the decision.] [The United States Tax Court has ordered the parties to file the decision by [date decision due with Court], so you should return the decision to us before that date so that we can file it with the court on time.]

Once the decision document is filed and entered by the Tax Court, the Internal Revenue Service will send you a bill for the amount you owe. [Because a joint return was filed, both spouses are jointly and severally liable for the tax, any additions to tax and penalties and the interest.] In case you want to pay the tax, [additions to tax/penalties] and interest before you receive the bill, you may do so. As previously noted, the interest calculations are estimates and only apply until [dates noted above]. A final computation will be made at the Service Center. The interest you owe will increase if full payment is not made by those dates. Also, interest will continue to run on the unpaid portions if you pay less than the total amount due.

If you decide to immediately pay some or all of the amount you owe, please mail a check to the [name and address of local Service Center]. The check should be made payable to the United States Treasury. In order to process the check and apply the payments appropriately, please include all of the following information with your check:

Please be advised that you should not consider any agreement to settle this case final and binding until we have executed the decision documents and mailed them to the Tax Court for filing. If you have any questions about this matter, please let me know.

This exhibit illustrates cases involving a complete settlement or concession, as distinguished from a partial settlement or concession, in which a report to the Joint Committee is required covering all the years shown before any settlement document is filed with the court.

Settlement of docketed years involving a tentative allowance of a refund or credit under I.R.C. § 6411 not previously reported to the Joint Committee and deficiencies resulting from the settlement:

This exhibit illustrates cases involving a complete settlement, as distinguished from a partial settlement or concession, in which review by the Joint Committee is not required because the aggregate net overpayment for all years is less than the jurisdictional amount.

Dear Chairperson:

As required by section 6405 of the Internal Revenue Code, the following refunds or credits of income tax owing to [case name] of [city, state] in Docket No. [docket number] are reported before entry of stipulation:

Counsel’s proposed settlement of an issue relating to [description of issue] will cause a net aggregate overpayment in excess of the jurisdiction amount. The principal cause of the overpayments in [year] and [year 2] was [brief description of cause]. The years [years] are before the Tax Court. With respect to [year], there is a deficiency of $ [amount] and a section 6405(b) credit in the amount of $ [amount 2], for a net deficiency of $ [deficiency amount]. Accordingly, the section 6405(a) refund for purposes of the computation to determine if the threshold for Joint Committee jurisdiction is met is $ [amount]. Counsel’s proposed disposition is more fully explained in the attached Counsel Settlement Memorandum.

The taxable income and tax liability reported on the returns and the taxable income as finally determined are as follows:

*Consolidated return.

Net operating loss deduction allowed:

Taxpayer History

The taxpayer was incorporated in [state] on [date], for [original business]. It has since expanded to [current business]. The taxpayer’s stock is publicly owned and listed on the New York Stock Exchange. The taxpayer has a subsidiary but did not file consolidated returns for [years].

The [year] return is a consolidated return and $ [amount] of the finally determined consolidated loss of $ [amount] is attributable to the taxpayer. The principal causes for the [year] loss were [description of causes].

The overpayments for [years] were caused by [describe cause of overpayments].

Prior Examination and Appeals History

The revenue agent made numerous adjustments for the years [years]. Most of these adjustments have been agreed to by the taxpayer at the examination level. However, no agreement was reached as to the issues concerning [description of issues]. Subsequently, a 30-day letter was issued by the Examination Division and the taxpayer filed a protest with respect to the two unagreed issues. The Revenue Agent’s Report, which sets forth both the agreed and unagreed adjustments for the years [years], was issued on [date].

The case was sent to the [city] Appeals office for consideration. As part of the appeals process, the issue concerning [describe] was resolved. However, no agreement was reached as to the issue concerning [describe]. Action by Appeals is more fully explained in the attached Appeals Transmittal Memorandum and Supporting Statement dated [date].

The overassessments are approved.

Attachments:
Appeals Transmittal Memorandum and Supporting Statement
Appeals Audit Statement
Counsel Settlement Memorandum

______

Note: The name, symbols, and telephone number of the attorney preparing the report should be indicated. While the report is addressed to the Chairman, Joint Committee on Taxation, the envelope should be addressed to Senior Refund Counsel, Room 3565, Internal Revenue Service, 1111 Constitution Avenue, N .W., Washington, DC 20224.

JOINT MOTION FOR VOLUNTARY BINDING ARBITRATION

THE PARTIES JOINTLY MOVE the Court to issue an order directing the parties to submit the issue of the valuation of oil, gas, and mineral (subsurface) rights to an agreed upon expert pursuant to the stipulation filed concurrently herewith.

IN SUPPORT THEREOF, the parties respectfully state:

1. The above entitled cases are currently calendared for trial at the trial session of [date], in [city, state].

2. The parties have prepared a Stipulation to be Bound by Findings of an Expert under supervision by the Court, with a view to reaching an agreement of the parties for entry of a decision in these cases.

3. The only issue to be submitted to the expert is a totally factual issue requiring the valuation of certain subsurface rights in land purchased from a partnership which includes the petitioners.

4. The parties hereby request the Court to issue an Order providing for Court supervision and appropriate instructions to the parties and to the expert.

5. Authority for this procedure is derived from T.C. Rule 124, providing for voluntary binding arbitration.

6. The parties attach hereto as Exhibit A, a proposed order covering this procedure for consideration by the Court.

WHEREFORE, it is prayed the parties motion be granted.

Pursuant to T.C. Rule 124, the parties hereto, petitioner, [name], and respondent, the Commissioner of Internal Revenue, hereby stipulate and agree to submit certain issue[s] in the above-entitled case to binding arbitration on the following basis:

1. The parties agree to be bound by the final report of an arbitrator and further agree not to take any appeal from such report to a judge of the United States Tax Court or to any higher appellate court.

2. The parties have agreed on the identity of an arbitrator, who is: [name, address, and telephone number]. This person has agreed to serve as the arbitrator subject to the approval of the Court.

[OR]

2. The parties have agreed on a procedure to select an arbitrator under which [describe procedures]. Upon selection of the arbitrator, the parties will notify the Court of the identity of the arbitrator by supplementing this stipulation. The supplemental stipulation shall include the name, address and telephone number of the arbitrator so that the Court can issue an appropriate order under T.C. Rule 124(b) (3) to appoint the arbitrator.

3. The matter to be submitted to and determined by the arbitrator is the following factual issue: (description of issue)

4. The parties agree that the above-described issue is factual in nature and does not present any issues of law and does not require the arbitrator to rule on any issue of law in preparing a final report.

5. The parties will file herewith a joint motion requesting the United States Tax Court to issue an order directing the parties to proceed under the terms of this stipulation. Such joint motion is based upon the mutual understanding that the Court's order will charge the arbitrator to conduct [his/her) activities in accordance with the terms and procedures set forth in this Stipulation.

6. The parties agree that the following documents and information will be submitted to, or made available to, the arbitrator for consideration:

a. [Itemize documentation and other evidentiary facts.)

b. [If relevant, describe the agreed access of the arbitrator to such documentation, including, if appropriate, the location at which such access is to be made available.]
No other documents or information will be submitted or made available to the arbitrator except with the joint agreement of both parties.

7. The parties agree that the documents listed in Paragraph Six of this Stipulation shall be provided to the arbitrator together with a copy of this Stipulation under cover of a joint letter signed by counsel for each of the parties, within [insert] days after entry of the order described in Paragraph Five. [The parties further agree that access provided for in Paragraph Six of this Stipulation shall be provided to the arbitrator within [#] days after entry of the order described in Paragraph Five.]

[OPTIONAL]

8. a. The parties agree that the arbitrator, upon request, shall have the right to interview [ names], and no other persons, except upon joint agreement of both parties. The parties shall specify the form and content of the questions to be asked by the arbitrator. The parties shall specify the dates of the interview(s). Any such interviews shall be held only after reasonable opportunity is given to counsel for both parties to be present.

b. The parties agree that the arbitrator, upon request, shall have the right to inspect [insert item, e.g., specific property or documents], and no other evidentiary material, except upon joint agreement of both parties. Such inspection shall occur only after reasonable opportunity is given to counsel for both parties to be present.

9. The parties agree that there shall be no ex-parte communication with the arbitrator by either party. In addition, no party or witness or agent for a party shall have contact with the arbitrator without prior notice to the other party and reasonable opportunity for counsel for all parties to be present during such contact with the arbitrator.

10. The parties agree that the methodology to be used by the arbitrator in deciding the issue described in Paragraph Three above must follow the principles set forth below: [insert guidelines here]

11. The parties agree that the arbitrator shall be directed to complete a final written report no later than [#] days after the order granting binding arbitration is signed by this Court.

12. The parties agree that the arbitrator's final written report shall explain in detail the determination of the issue made by the arbitrator and the methodology utilized in such determination.

13. The parties agree that the final report of the arbitrator shall be simultaneously mailed by the arbitrator by certified mail to counsel for the parties at the address undersigned below and to the supervising judge of the United States Tax Court at 400 Second Street, N.W., Washington, D.C. 20217.

14. Each party shall pay an equal share of the total cost of the arbitrator's fees, including all reasonable expenses incurred by the arbitrator.

15. The parties shall make timely payment in full to the arbitrator for services rendered within a reasonable period of time after receipt of the final report by the parties, but in no event later than 30 days after receipt of the final report by the parties.

16. No later than [#] days after the date of the arbitrator's final report, the parties shall file with the Tax Court for entry by the supervising judge a stipulated decision on the issue determined by the arbitrator.

JOINT MOTION TO CONTINUE FOR SETTLEMENT PURPOSES

THE PARTIES JOINTLY MOVE, pursuant to the provisions of Rule 133 of the Tax Court's Rules of Practice and Procedure, that the Court remove the above-entitled case from the trial session of the Court scheduled to commence in [city, state], on [date], for the purposes of settlement pursuant to T.C. Rule 124.

IN SUPPORT THEREOF, the parties respectfully inform the Court, that on [date], the parties filed a joint motion for voluntary binding arbitration pursuant to the provisions of T.C. Rule 124.

WHEREFORE, it is prayed that this motion be granted.

1. The Mediation Process. This mediation is intended to help [name of taxpayer] and the Internal Revenue Service (the PARTIES) reach their own negotiated settlement of the issues to be mediated. See (2) below for the participants in the mediation process. To accomplish this goal, the mediator will act as a facilitator, assist in defining the issues and promote settlement negotiations between the PARTIES. The mediator will inform and discuss with the PARTIES the rules and procedures pertaining to the mediation process. The mediator will not have settlement authority and will not render a decision regarding any issue in dispute. The PARTIES WILL CONTINUE TO HAVE SETTLEMENT AUTHORITY FOR ALL ISSUES CONSIDERED UNDER THE MEDIATION PROCESS.

2. Nature of Process, Withdrawal. The mediation process is optional. The participants in the mediation session from [name of taxpayer], will be [name], [title]; and from the Office of Chief Counsel, will be [name and title]. The PARTIES must have participants attending the mediation session with decisionmaking authority, or such persons should be available by telephone. Either party may withdraw from the mediation process at any time prior to reaching a settlement of the issues to be mediated by notifying the other party and the mediator in writing.

Each PARTY:
a) may involve other appropriate persons in the mediation;
b) must notify the mediator and the other PARTY two weeks before the mediation session regarding participants on their mediation team; and
c) may withdraw from the process at any time prior to reaching a settlement of the issues to be mediated by notifying the other PARTY and the mediator in writing.

3. Selection of Mediator, Costs. The PARTIES, by mutual agreement, will select a mediator. The mediator may be a non-IRS individual or an Appeals representative, with previous mediation training or experience. Co-mediators can also be selected. A mediator shall have no official, financial, or personal conflict of interest with respect to the PARTIES, unless such interest is fully disclosed in writing to the parties, and they agree that the mediator may serve. The costs of a non-IRS mediator or co-mediator will be shared equally by the PARTIES, subject to applicable rules and regulations for Government procurement. If an Appeals mediator or co-mediator is selected, the IRS will pay the expenses associated with the mediator (or co-mediator). Due to the inherent conflict that results because the Appeals mediator is an employee of the IRS, Appeals will provide to the taxpayer a statement confirming the employee’s proposed service as a mediator, that the person is a current employee of the IRS and that a conflict results from that mediator’s continued status as an IRS employee.

4. Issues to be Mediated. The mediation session will encompass the following items at issue in the Tax Court petition filed in [Name of petitioner] v. Commissioner, Docket No. [docket no.].
a) [issue #1]
b) [issue #2]

5. Submission of Materials. Each PARTY will present to the mediator a separate written summation not to exceed 20 pages (exclusive of exhibits consisting of pre-existing documents and reports) regarding the items in issue. The mediator will have the right to ask either PARTY for additional information before the mediation session if deemed necessary for a full understanding of the issues to be mediated. A copy of the information a PARTY gives to the mediator will be provided simultaneously to the other PARTY.

.

7. Place of Mediation: The PARTIES should attempt to select a site near [name of taxpayer]’s office or an Internal Revenue Service Counsel office.

8. Confidentiality: The mediation process will be confidential. [name of taxpayer] acknowledges that the Mediator and the other persons invited by the PARTIES to participate in the mediation, will have access to all of [name of taxpayer]’s return or return information pertaining to the issues being mediated pursuant to I.R.C.§§ 6103(b), 6103(c) and 6103(n) and the regulations thereunder. (See attached Consent to and Acknowledgment of Disclosure of Return and Return Information.) Service employees involved in any way in the mediation process, and any person under contract to the Service that the Service invites to participate, will be subject to the confidentiality and disclosure provisions of the Internal Revenue Code, including I.R.C.§§ 6103, 7213 and 7431. IRS employees, [name of taxpayer], the outside mediator, and persons invited to participate by the PARTIES in the mediation shall not voluntarily, or through discovery or compulsory process, disclose any information regarding the mediation process or any communication made during the mediation process, including the settlement terms.

9. I.R.C. § 7214(a)(8) Disclosure: The PARTIES to this agreement acknowledge that Service employees involved in this mediation are bound by the I.R.C. § 7214(a)(8) disclosure requirements concerning violations of any revenue law.

10. No Record. There will be no stenographic record or tape recording of the mediation process.

11. Ex Parte Contacts Prohibited. There will be no ex-parte contacts with the mediator outside the mediation session.

12. Stipulation of Settled Issues or Decision Document . If the mediation process enables the PARTIES to reach an agreement on the issues, Counsel will draft a stipulation of settled issues or a decision document for the PARTIES’ signature and submission to the Tax Court. If the PARTIES cannot reach agreement on the issues being mediated, the PARTIES will prepare for trial as normal.

13. Precedential Use: A settlement reached by the PARTIES through mediation shall not serve as an estoppel in any other proceeding. Such settlement may not be considered in any factually unrelated proceeding and may not be used as precedent.

Case Name:________

Submitted by:________

Date:________

All participants who will attend the mediation on behalf of [name of party], including witnesses, consultants, and attorneys, are listed below. This form must be sent to the other PARTY and to the mediator two weeks before the mediation session.

RESPONDENT MOVES that the document attached hereto be admitted into evidence in the above-entitled case and substituted for the uncertified copy of the same document admitted during the trial on [date].

IN SUPPORT THEREOF, respondent respectfully states:

1. The trial of the above-captioned proceeding was held on [date], at the Small Tax Case Trial Session in [city, state], the Honorable [name] presiding.

2. At the trial, the respondent moved the admission into evidence as respondent's exhibit an uncertified copy of pages [page numbers] of a transcript in the judicial proceedings in the case of [petitioner's name], in the Circuit Court for the County of [name], [state].

3. At that time, respondent requested that the record be kept open to permit respondent to substitute a certified copy of the partial transcript in the case of [petitioner's name], in the Circuit Court for the County of [name], [state], for the uncertified copy referred to in paragraph [number] herein.

4. The Court admitted into evidence the uncertified copy of the transcript of the state court proceedings subject to the substitution by respondent of certified copy of those pages of the transcript within 45 days from [date], which date is [date]

5. The respondent has attached hereto a certified copy of pages [#] through [#], inclusive and pages [#] and [#], inclusive of the state court proceedings which were previously introduced into evidence by respondent, together with the certification of the Deputy Clerk of the Circuit Court for the County of [name], [state], identifying said pages as true and accurate copies.

6. Said certificate transcript is admissible into evidence as a self-authenticating public record pursuant to Rules 902(4) and 901(7) of the Federal Rules of Evidence and pursuant to the hearsay exception contained in Rule 803(8).

WHEREFORE, respondent requests that this motion be granted.

RESPONDENT MOVES, pursuant to Tax Court Rules 50 and 143(d), that the Court permit respondent to withdraw respondent's Exhibit [#], the U.S. Individual Income Tax Return, Form 1040, filed by [petitioner's name], for tax year [year], for purposes of copying that return and substituting the copy for the original in the Court record.

IN SUPPORT OF THIS MOTION, respondent respectfully states:

1. These cases were tried before the Honorable [Judge's name] on [date], and the original [year] return filed by [petitioner's name] was submitted into evidence at the Court's request.

2. Special Agent [name] has advised respondent's counsel that as a part of a related investigation, [agent's name] desires to make copies of the original [year] federal return filed by [petitioner's name].

3. Respondent's counsel expects that the exhibit may be withdrawn, copied, and a copy returned to the Court within four weeks.

WHEREFORE, respondent respectfully requests that this motion be granted.

OF COUNSEL:
[NAME]
Division Counsel
[Division]
[NAME]
Area Counsel
[Division Area]
[NAME]
Associate Area Counsel
[Division Area]
[NAME of Field counsel]
Attorney
[Division Area]
Internal Revenue Service
[address]
[telephone number]

THE PARTIES JOINTLY MOVE, pursuant to the provisions of Rule 10(e) of the Federal Rules of Appellate Procedure, that the Court revise the decision in the above-entitled case to reflect that said decision was entered pursuant to the opinion of the Court filed [date], in [Petitioner's name] v. Commissioner, [case citation] and that the supplemental record reflecting the Court's order be certified and transferred to the United States Court of Appeals for the [Circuit].

IN SUPPORT THEREOF, the parties respectfully state:

1. The Court entered a stipulated decision in this case on [date of decision], a copy of which is attached hereto and marked Exhibit A.

2. Prior to entry of this decision, this case was part of a consolidated group of cases, cases that were the subject of the Court's opinion in [Petitioner's name] v. Commissioner, [case citation] .

3. Subsequent to the issuance of the Court's opinion, respondent's trial counsel, [Name of respondent's counsel], ceased to be involved in the case.

4. Subsequent to the issuance of the Court's opinion, the petitioners and substitute counsel for the respondent, [name of respondent's counsel], conclusively resolved by agreement all issues in this case except those relating to the federal income tax consequences of the transfer of warrants by [petitioner's name] to a foreign situs trust and the subsequent sale of the stock acquired as a result of the exercise of the warrants that was the subject of the Court's opinion in [Petitioner's name] v. Commissioner, [case citation] .

5. Subsequently, respondent's attorney, [name of respondent's counsel], was assigned the responsibility of preparing an appropriate decision document for this case.

6. [Name of respondent's counsel] was not informed that the petitioners intended to appeal any issues in the case and believed all issues had been settled pursuant to an agreement.

7. [Name of respondent's counsel] prepared the stipulated decision that was entered by the Court in this case.

8. Petitioners' counsel, pursuant to T.C. Rule 190, filed a notice of appeal on [date]. A copy of the notice of appeal is attached hereto as Exhibit B.

9. Petitioners' counsel was not aware that a stipulated decision should only be filed in the event of a fully agreed case. Petitioners' counsel and respondent's counsel were not aware that the parties should have filed a decision pursuant to T.C. Rule 155 in lieu of a stipulated decision, indicating that the issues in this case were settled pursuant to an agreement when in fact there was an agreement only as to some issues.

10. Revision of the Court's decision is necessary in order for the record on appeal to accurately reflect that the decision on appeal was not a fully agreed decision but a decision pursuant to the opinion of the Court on a contested issue.

WHEREFORE, the parties respectfully request that this motion be granted.

I.R.C. §§ 6511(b)(2) and 6512(b)(3)(C)
Return filed, [date], pursuant to six-month extension granted for filing the return from [date]
Claim filed [date]
No agreements executed
Deficiency notice mailed [date]