Talking With the Tax Court Chief Judge: A Year of Change

U.S. Tax Court Chief Judge Maurice B. Foley discusses his path to the bench, the court’s new case management system, and pivoting to virtual during the coronavirus pandemic.

For additional coverage, read these articles in Tax Notes:

• Tax Court Hopes More Practitioners Will Use Remote Trials
• Learning Curves, Adaptation Predicted for Remote Tax Court Trial
• Coronavirus Measures Will Leave Tax Court More Accessible
• Tax Court Institutes Remote Hearings, E-Access to Court Docs
• Tax Court Proposes Formal Reference to Limited Appearances
• No Easy Solutions for Electronic Access to Tax Court Documents

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This episode is sponsored by Avalara. For more information, visit avalara.com/taxnotes.

This episode is sponsored by University of California, Irvine Law School’s Graduate Tax Program. For more information, visit law.uci.edu/gradtax.

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Credits
Host: David D. Stewart
Executive Producers: Jasper B. Smith, Faye McCray
Showrunner: Paige Jones
Audio Engineers: Derek Squires, Jordan Parrish
Guest Relations: Nicole Wilder

Transcript

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David Stewart 0:02

Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: catching up with the chief judge. Maurice Foley began his second term as chief judge of the U.S. Tax Court this year under somewhat trying circumstances. In March, the court closed its doors and pivoted to virtual hearings as the country grappled with the first wave of the coronavirus pandemic. And now, the Tax Court is working through one of its biggest technological projects yet: updating its online case management system. Here to talk more about the changes of the court under Judge Foley is Tax Notes legal reporter Nathan Richman. Nate, welcome back to the podcast.

Nathan Richman 1:37

Thanks for having me, Dave.

David Stewart 1:38

I understand you recently talked to Chief Judge Foley, but before we get into that, could you give us a little bit of background on the judge?

Nathan Richman 1:45

Well, when his nomination was confirmed in 1995, Judge Foley became the first black Tax Court judge. Before that, he worked at the Treasury department, the Senate Finance Committee, and the IRS Office of Chief Counsel.

David Stewart 1:57

Now, as I mentioned a bit earlier, Foley is now a few months into his second term as chief judge of the U.S. Tax Court. What does the role of chief judge consist of and how is the position filled?

Nathan Richman 2:07

The chief judge handles a variety of administrative duties around the court. Things like handling motions and orders in cases before they've been assigned to specific judges. That doesn't happen, for the most part, until a case is scheduled for a trial session. And the chief judge is picked by the voting Tax Court judges. Those are the judges who are serving the 15-year terms after having been approved by the Senate. So, not the senior judges, not the special trial judges. They all vote for a new chief judge every two years.

David Stewart 2:44

Just before we get to this interview, could you tell us a bit about what you talked about?

Nathan Richman 2:47

So, we chatted a bit about his background and journey to the court. And then we discussed those two big issues going on at the court right now that you mentioned: the Tax Court's new case management system and the remote proceedings it's conducting in light of the pandemic. For about the last 18 months or so, we've been hearing that the Tax Court wants to update its system for handling all of the documents filed and its various cases. The system it's working on had been developed in the 1980s. And the court is finally starting to transition to the new system, which will finally allow taxpayers to file their petitions electronically. And speaking of electronically, like so many others during the pandemic, the court had to come up with a way to conduct its business while social distancing. The court's solution was to conduct all of its trials and other hearings via video conferencing software. But interestingly, Judge Foley noted that many of these tools and techniques that the court's been employing for the pandemic could help better serve the various litigants, petitioners, IRS, and all the people involved with the court after we finally get back to normal.

David Stewart 3:57

All right, let's go to that interview.

Nathan Richman 4:01

Well, thank you for joining us, Judge Foley. It's a pleasure to have you.

Maurice Foley 4:04

It's a pleasure to be here, Nathan.

Nathan Richman 4:06

You were appointed to the Tax Court after serving the federal government for several years. Can you just share your journey to the courtroom with us?

Maurice Foley 4:13

I became interested in tax when I was in college, and I was studying economics and political science. I had a concentration in public policy and Black studies. And in my junior year of college, I took a macroeconomic policy class. It was team taught by someone from the political science department and an economics professor. And during that class for about a week, they talked about tax policy and tax incentives. And at that point, I really realized that tax policy was an amalgamation of all of the things that I really kind of cherished and that I was studying. So, I discovered that tax policy was really the nexus between economics and politics. And it also involved a heavy element of public policy. So, during this class, we studied enterprise zones, which at the time was just a fledgling concept. It had been tried in England and some of the states were starting to adopt it. And the federal government was just beginning to explore it. That really fascinated me. And it actually gave me an incentive to become a tax attorney. So, at that point, I didn't know much about tax and I talked to my professor who was teaching the class. He was a political science professor, but he was formerly a businessman. And he pointed me to a tax case that he actually had when he was in business, back in the 1960s. And, curiously enough, his tax attorney was Ted Tannenwald, who actually served on the court and I had the pleasure of serving with him many years later. But at the time I was a 20-year-old looking at this Tax Court case that was actually a section 482 case.

Nathan Richman 6:05

First court case you ever looked at?

Maurice Foley 6:05

Absolutely. The first court case I ever looked at. And little did I know that a couple of decades later I'd be, you know , going through section 482 again and dealing with cases like Xilinx and Veritas and so forth. But at age 20, I was looking at this Tax Court case learning about the Tax Court for the first time. And, you know, as I kind of tracked through the progression of this case, I realized that Ted Tannenwald, before the case went to Tax Court, he was appointed to the Tax Court and a new attorney was assigned to his case. And that was Marty Ginsburg. So , my tax professor knew a little bit about tax and he also knew a little bit about what it would take to be a really good tax attorney. So, at that point I began to consult with him and talk to him about what I needed to do to become a tax attorney. And , at the time, I had planned to go into law. I wasn't real sure about what area of the law, but I was now sure that tax policy was the route I wanted to take. After college, I went to law school. I suffered through the first year of law school with criminal law, torts, contracts, and civil procedure and I longed to take my tax classes. And , in my second year, I was able to start taking tax classes and actually worked for a nonprofit law firm while at Berkeley doing some tax work for community development corporations and things like that. Because I always had this interest in how the tax code could be used to do some of these social things that I read about when I was studying economics at Swarthmore. Actually, while I was at Berkeley, I did a paper that, that dealt with — as strange as it seems, I still have the paper. I was looking at it the other day. And I was dealing with these, you know, the substantial economic effect of certain allocations to limited partners. I was looking at the section 704(b) regulations and I said, "Boy, I must've been a really sick individual to, you know, in law school to be looking at that stuff." But, while I was looking at those regulations, there was a part of the regulations that — and it's included in a lot of the regulations — where it says, "For further information, contact Joe Smith at 1111 Constitution Avenue, Washington, D.C." And when I saw that, and after reading the regulations, I said, "You know, that's what I want to do. I want to be the guy who has a sufficient amount of technical expertise to write the regulations." And I went the career office. You know, they had this little binder of jobs that were in the chief counsel's office. And , I said, "This is what I want to do." I discovered that there was a division of the IRS called the legislation and regulations division and interviewed for that job. And received a recommendation to, by my interviewer, to go directly to the legislation and regulations division. And that's where I started. That's where I started my career. But, you know, at this point, the plan had been in place for a while. And actually, I was thinking that I was going to use my tax expertise to do tax planning for athletes and entertainers. And I had this master plan where I was going to set up their private foundations and their charitable organizations and that's how I was going to satisfy my desire to have an impact on communities that I really cared about. So, I went to work for the IRS in the legislation and regulations division. I was in the transfer tax division. And no, that's not international . That's not an international tax —

Nathan Richman 10:04

No, that's gift and estate. Right?

Maurice Foley 10:06

Absolutely. Absolutely. And also excise taxes. So, for the first six or seven months, I worked on excise taxes and the section 4051, the retail tax on heavy trucks. I drafted regulations in that area. And of course, if I had had to do that for more than six or seven months, I probably wouldn't be here now because I probably would have blown my brains out because it was not very exciting. But it was really good training for me. So I started in 1985, and in 1986, of course, there was there's tax reform. And we had a meeting in our branch and our branch chief asked if anyone would be interested in doing the regulations for the generation skipping transfer tax, and nobody raised their hand. So, I raised my hand because I was interested. And in 1986, the generation-skipping transfer tax was expanded to include direct skips. And, there hadn't been any regulations, of course, drafted on that. So, I wrote the temporary regulations relating to the modifications in the generation-skipping transfer tax. And that was a fascinating experience for me because I was responsible for drafting these brand new rules and became an expert in the area. So, I was traveling around the country doing these CLEs and ABA events and also working with IRS agents to kind of show them how the rules worked.

Nathan Richman 11:39

Is that one of the temporary regs that's still around?

Maurice Foley 11:43

I believe it is. I believe that. I haven't gone back to look at it, but I think they're probably still around. And it was just a fascinating experience because I was constantly fielding calls from the public as they were working on the rules and they had questions. And they would call me with the questions and it gave me an opportunity to really dig really deep into the rules and to find out where I needed to develop regulation. So, that was really a critical part of my development because it really taught me the importance of writing carefully. I discovered that if you put a comma in the wrong place, it can change the entire meaning of a sentence and proper placement of causes and all of that became became a high priority. So, I really had to focus on the written word and I had to be concise. I had to be to the point. And I had to be careful. So, that was really important training for me. And little little did I know it was good training for what I would later be doing. The other thing about my experience at the IRS is that while I was drafting regulations, I also had the opportunity for the first time to be exposed to the legislative process. And at the time, whenever the folks on the Hill were drafting legislation, they would always call up someone from the IRS to sit in on the drafting sessions. So, immediately after the 1986 act, they began drafting the technical corrections for the 1986 act. And as you might suspect, there were a lot of technical corrections for the generation-skipping transfer tax. So, I had an opportunity to go up on the Hill and sit in on those meetings, and that just opened up a whole new world for me. Because in sitting in on those meetings, after a brief exchange of pleasantries, they devolved into this kind of an amazing, very fascinating discussion that involved all these regulations cross section , cross references , the different code sections and citations, the various regulations. And somebody would go on the board and kind of sketch out what transactions they wanted to include and what things they wanted to exclude. And that just opened up a whole new world world for me. And I became fascinated with the legislative process. And I was able to kind of bring in some of the questions that I had about the rules and then watch them develop technical corrections to address some of these issues. So, I was hooked at that point. I was definitely poised and ready to delve into the policy world. So, I worked at the IRS for about two and a half years, and I actually was starting to look for a job in California. And I was all set to fulfill my dream, to go out and start practicing tax law for these athletes and entertainers. And I was actually at my desk working on my resume to send to a headhunter out in California when I got a call from the chief tax counsel of the Senate Finance Committee and asked me if I would be interested in working there. This was on a Wednesday. He asked me if I could have my resume by Monday. I wanted to tell him, "I could have it to you today if you'd like it," but I didn't want to seem too anxious. So I sent it to him that Friday and ended up getting the job at the Senate Finance Committee, which was interesting because it was just about the time when I finished my LLM. So, I'd spent two and a half years very narrowly focused on Chapter 13. And then I went to the Senate Finance Committee and I was given just really broad jurisdiction over a lot of things. In addition to estate and gift tax, which I was basically hired to deal with the estate and gift tax. So there were some issues with respect to a provision in section 2036. Section 2036(c) had an estate freeze provisions that were causing a lot of consternation and the Senate was very interested in modifying those rules. So, I was hired to take a close look at that and see what could be drafted as an alternative. But I also had responsibility for all the individual tax items: exempt organizations, cost recovery, penalties, research credit, low-income housing credit, and the earned income tax credit. As the low man on the totem pole, I got what everybody else didn't want. So, there were other individuals who handled corporate tax, international tax, employee plans, and also energy tax incentives. I worked for former Sen. Lloyd Bentsen, D-Texas. He was chairman of the Senate Finance Committee. And if you work for the senior Senator from Texas, you soon realize that that all energy tax incentives are a matter of national security. So , I was not assigned to that, but I was assigned to a very broad range of tax provisions. And it really was an exciting time for me because I was able to delve into a lot of areas that I knew nothing about. At the end of 1992, I was again interested in leaving the government and doing something else. I was going to go into the private sector. And at the time, my boss was the first cabinet pick by President Clinton. And then, at that point I decided I was going to go to the Treasury department and work there. So, after about five years at the Senate Finance Committee, I went to the Treasury department. And that again, opened up a whole new world for me. Because I was able to work on legislation. They created a new position. I was not interested in doing any regulations at that point. I was pretty burned out from my years working on the generation-skipping transfer tax. So, I wanted to work in the tax legislative counsel's office, but I didn't want to do anything dealing with regulations. And they said, "Well, that job doesn't exist." So, they created a new job, the deputy tax legislative c ounsel for legislation. And I was the first person in that position. A nd i t allowed me to basically do a lot of the things that I was doing at the Senate Finance Committee. So, I loved my time at the Treasury department because I was able to work on some things that actually got into the law. And , I can look back now and still see a lot of that. A lot of that law that has — some of those things have gone away, but there are some enduring things like the earned income tax credit. That's still there and still growing and still providing a lot of assistance to over 25 million people. So I was just blessed to be a part of that. And it was a kind of a fulfillment of my dream as 20-year-old, who was kind of a tax nerd interested in policy, to have an impact on a lot of communities that I really cared about.

Nathan Richman 18:50

So, you were selected as the first black Tax Court judge. And now you're in your second term as chief judge. What sort of, or were there any, unique challenges in being the first?

Maurice Foley 19:01

Yeah. I was also very blessed in that I was raised to really focus on taking advantage of opportunities. I grew up in places like Utah and Minot, North Dakota. My dad was in the Air Force. He worked on Minuteman missiles. So we were oftentimes located in places that were pretty out of the way and isolated. Very remote, very remote. So, it was not uncommon for me growing up to be the one and only. And I became quite comfortable being the one and only to the point where it never even dawned on me. But I was raised by parents who emphasized faith and the importance of education. So while there were obstacles, they were never obstacles that I deemed to be very significant because I had a priority. I prioritized my faith and the emphasis on education. I knew that, and my father would tell me that with an education and a blessing, anything is possible. And in my life, that's proven to be the case.

Nathan Richman 20:21

So, there are big things happening at the court at the moment. I hear you're updating your case management system for managing all the documents that are filed at the court. And we've been hearing about this since at least last summer. And that also this will include the Tax Court accepting electronic petition filing. What's the latest?

Maurice Foley 21:36

Yeah, well, we're going full steam ahead on the development of our new case management system, which is going to be called Dawson. It's named after one of our former judges, Howard Dawson, who was appointed by President Kennedy back in the 1960s. Our plan is that we'll have our system online before the end of the year. And we're very, very excited about it. It's going to be a web-based system that's tailor made for us. And it's going to further facilitate our remote operations and really put us in a position where we're going to be able to really provide much better service to the public. And also, it's going to dramatically change the way we're able to access our cases and work internally. So, a lot of the work the public won't even see, but it's going to be a really huge step forward for all of us. And the public will be able to — I think you already have our new website. That's out. But, in addition, when we go live, taxpayers and litigants are going to be interfacing with our new case management system. And I think they're going to be very, very happy with it.

Nathan Richman 22:55

So, between now and the rollout — actually starting a week or so ago — you froze the electronic filing system as it is. Why was that necessary?

Maurice Foley 23:05

Well, there's a lot of work that that has to be done. We had to — we had an old system that was developed back in the back in the 1980s and now we're going to a cloud-based system that is dramatically different. So, we had to take all of the data and all of the , all of the case information and the filings that were in our old system and migrate them to a brand new system. And that's a very, very tedious process that takes a significant amount of time. And at this very moment, all Tax Court employees are engaged in the process of going through the data that's been migrated to make sure that that everything's been migrated and there's nothing missing. That is a tedious process. And it's a process that we can't delegate to contractors because of the nature of the information. So, Tax Court employees are engaged in that process and that process takes some time, but it's important. We have a very important job and we want the public to be served well. And in order for them to be served well, there has to be accuracy. And there has to be great care taken to make sure that we haven't left anything out and that we haven't made any mistakes. So, as you might imagine, when you, when you have a system that was developed in the 1980s and it wasn't continually updated —I mean, we updated it so that it could run. But, when you contrast that with a brand new system, that's cloud-based —

Nathan Richman 24:47

It's not a one-generation upgrade .

Maurice Foley 24:49

It's a quantum leap forward. And it's interesting because I think we're going to be at the forefront of institutions in the government that have done this. So, we have gone from being in the dark ages to being at the forefront of the technological development for managing cases .

Nathan Richman 25:09

So, ahead of the courts that are on the PACER system.

Maurice Foley 25:13

Absolutely. Absolutely. And like I said, we have a system that's going to be tailor made for the Tax Court. And we're going to be in a position because it's all open source material, and we're going to be in a position where as issues pop up — it's an agile software development. as issues pop up, we're going to be able to develop the software and make changes in the code that are going to allow us to address those changes immediately. And that puts us in a very, very good position for the future.

Nathan Richman 25:49

So, just a little bit more on the blackout period. The notice says at the latest December 28. I read that as at the latest rather than that's your ETA. Is there some sort of sooner ETA? Or how far along in the process, can you update us on that?

Maurice Foley 26:08

Well, we're currently proceeding according to schedule. If of course we get it finished before December 28, we will go live before December 28. But December 28 is the date that we've set as the deadline. So, that's what we're working toward. If we can do better than the deadline, we will do so. But my emphasis is to make sure that we don't go past the deadline.

Nathan Richman 26:38

What differences will litigants see in the e-filing process? And will anything be changed for somebody who filed one way already and now their case is still open afterwards?

Maurice Foley 26:52

One of the more significant changes is you'll be able to file petitions electronically. And heretofore we've been limited to filing petitions on paper, so we're going from a paper-based system to on that's almost entirely electronic, and that's significant. And one of the reasons why it's significant is illustrated by the pandemic. The pandemic affected everyone and we had people who were in a position where they couldn't leave their homes and things like that. And, in going to a system that's completely electronic, we are putting ourselves in a position where we can deal with things like that. Instances where there are travel restrictions or because something that's going on in a particular area like natural disasters or other things that might affect somebody's ability to file a petition. By going completely electronic, we're able to kind of cut through all of that and put us in a position to handle a lot better some of these unforeseen circumstances that have in the past kind of stopped us cold.

Nathan Richman 28:09

What sort of testing did you do on this system? I've seen it demonstrated and heard a lot of the discussion about how it's supposed to be so much more intuitive, easy, and like an Intuit product. But have you say, had somebody outside the court try to use it? Somebody not tax educated?

Maurice Foley 28:29

Yeah . We've had all the stakeholders participate in the process. So in testing it, we've had average people interface with the system and we've also had professionals. We've had folks from the clinics, we've had folks from the IRS, we've had folks from the bar to interface with the system and make recommendations. So, we wanted to make sure that this is something that is not just accessible, but we wanted it to be something that people could understand and they could be very comfortable with. So, one of the biggest changes is that the interface that individuals using this system [is] going to be much cleaner and much more modern, and it's going to resemble other websites that people interact with every day. You know, some taxpayers come to our court and they're only there for one time. I mean, they're not frequent flyers and we want to make it comfortable for them. So, we've taken great pains to make sure that just because the tax code is mind- numbingly complex, we don't want someone's interaction with the Tax Court to be difficult. So, we wanted to make sure that pro se taxpayers can access our system easily. And as you know, Nathan, you know, more than 70 percent of the individuals who have cases in Tax Court do not have representatives. So, we have always put that as as a priority to make sure that they have not just access, but that they're able to access it easily and understand it.

Nathan Richman 30:21

Speaking of access, I've been hearing a lot from the IRS especially on expanding language access. More and more and more languages that forms will be in. Have you done anything like that with the new system?

Maurice Foley 30:35

Well, Nathan, you're really pushing us. As I tell my staff all the time, I struggle with the English language, so we haven't explored that. We're trying to focus on making sure that all of the things that we have to do are being communicated well and being communicated clearly. But we're using the English language.

Nathan Richman 30:59

So, the COVID-19 pandemic has hit us all. Tax Court, first of course, had to close its doors and cancel all its spring in-person trial sessions. This summer there's the announcement of remote proceedings, which started mostly in September. So, what's different about these remote proceedings? And what sorts of solutions did you have to work through and what sorts of rules did you have to adjust?

Maurice Foley 31:23

Yeah, well we knew early on in March, after we decided that that everything was going to be remote in terms of our staff, and we had to make a lot of changes, but even in March, we realized that we were going to have to significantly change the way that we operated. So, one of the first things that we did was set up a working group to start to address all of the issues on remote hearings and trials. And the working group was benefited by all of the experiences of a lot of the state courts: the Michigan state court, the Texas state courts, which were far ahead of the federal government in terms of doing things remotely. We even looked at what the Alaska courts were doing, who are constantly faced with geographical challenges that really required a great deal of creativity. And, it involved all the stakeholders. So, we gathered all the stakeholders together and got the views of the bar and the clinics and the IRS. And what we discovered is that we had some unique challenges, but because we're a national court that typically holds cases and court sessions in 74 different cities. But we also had some unique advantages. And, first of all, we don't deal with criminal issues, so we didn't have to worry about juries. The Tax Court stipulation process, which is the bedrock of Tax Court litigation, is the envy of a lot of courts. The fact that we're able to focus on stipulations and narrow issues, and really hone in on legal issues and issues where there's a dispute. That put us in a position where we were really, really well- suited to doing things remotely. And I've been very pleased with how pro se petitioners and IRS counsel , and many law firms have embraced these changes. But it's different. It's very different. We're making use of technology and we're making it work for us. Now, you know, one significant thing about the tax code is we have a statutory mandate under section 7446 to provide hearings and trials with as little inconvenience and expense to taxpayers as is practicable. That's our statutory mandate — to give taxpayers a forum in a way that minimizes their expense and inconvenience. So, in a sense, these remote trials are a fulfillment of our statutory mandate. We have instances now where individuals who are on the road 365 days a year can have their trial in a location while they're on the road, and they don't have to come back to a particular city in order to have their case resolved.

Nathan Richman 34:29

A pilot with a foreign source income issue trying to litigate from Singapore or someplace like that.

Maurice Foley 34:36

Sure. We've got pilots. You've got truck drivers. You've got people who travel a lot. And this has provided wonderful flexibility for them. And the technology is being put to good use. There's a lot that we can do over the telephone. You've got telephone conference calls, we're using Zoomgov. That's the platform that we're using and that's accessible on the computer, tablet, smartphones . So, there's no real special equipment needed and it's free. It's free to all participants. So we're seeing that it's expanded access. I think that it's making it a lot easier for people.

Nathan Richman 35:31

But aren't there some people who, with technology issues — you know, not everybody even has a smartphone — that are encountering some problems?

Maurice Foley 35:39

Well, even if you don't have a smartphone, if you have a landline, we still have conference calls. We still have ways where you can move your case forward. And one of the significant things that we did is we modified our pre- trial deadlines. So, we used to have the pre-trial memo sent to us two weeks in advance. Well , we increased that period of time to three weeks. And one of the reasons why we did that is that we wanted the judges to be involved earlier on in the case. So that cases could be resolved earlier. In the past when we had the two-week period between pre- trial memos and the actual trial, what would oftentimes happen is that when you got to calendar call, in many instances, there were a lot of cases that weren't resolved because the parties hadn't met. They hadn't had any contact with each other and they were getting together for the first time or having their first conversations at calendar call. So, we expanded that period and the judges are engaged earlier on in the process, so that we don't have those instances where calendar call involves all these people coming who previously haven't done any work on the case .

Nathan Richman 37:09

So, more of the judges are taking more advantage of pre- trial conferences?

Maurice Foley 37:13

Absolutely. Absolutely. That's a significant change in the that the court as a whole is operating. Now prior to this many of the judges — and I know I've always had a lot of conference calls before the trial session because I found early on in my career that was a way to ensure that the parties were working on their cases. It also results in fewer unresolved issues at calendar call. So under the current procedures, we know before we get to the so-called calendar call, we know what's going on with most of the cases. And in many instances, calendar call just consists of calling cases where there's a motion to dismiss for failure to prosecute. But all the cases where there needs to be a trial and all that kind of stuff that can, prior to calendar call, the trial dates and all that stuff can be set. So that, the goal was to come up with a system where we couldn't have people meeting in courtrooms. It just wasn't safe. So, in response to that, we had to come up with a system that eliminated the need for that. And, by doing things remotely, it provided us with some opportunities to do things more efficiently. And of course, we didn't want to really replicate exactly what happens at calendar call, because there w ere some inefficiencies with respect to that. So, we've changed things. And now, a lot of what would typically happens at calendar call, happens in that three-week period before the session actually starts. And we've made other modifications to make that easier.

Nathan Richman 39:09

What about documents?

Maurice Foley 39:10

Well, the documents are typically received before the trial. We have documents that are stipulated and we encourage all of that to happen before the trial. But then, we also make provisions for things to be filed during the trial. We leave the electronic filing system open so that things can be filed during the trial calendar. That was a change that we made. We also made some changes with our acceptance of limited entries of appearance. So now we have taxpayers can get counsel earlier on in the process. If there are attorneys who just want to represent someone during this process prior to calendar call, or just at calendar call, they can enter a limited entry of appearance and represent taxpayers for just pieces of their case.

Nathan Richman 40:11

But they used to have to do that at the calendar call?

Maurice Foley 40:14

That's right. That's right. And prior to that, the limited entries of appearance started at calendar call and terminated after the trial session. Well, now we're in a situation where it's just prudent and reasonable to allow those limited entries of appearance to be filed as soon as the case starts. So, that's a huge benefit to the court. And more importantly, it's a huge benefit to individuals who need counsel and the assistance.

Nathan Richman 40:48

I saw you recently added limited entries of appearance to the actual rules, so it's no longer just these announcement documents. So, it sounds like that's going to be permanent.

Maurice Foley 40:58

Yeah, I certainly hope so. It's something that has really been a big improvement to the system. And I must point out that our decision to allow limited inches of appearance, that issue was raised by the bar. And after we considered it, we had the various committees on the court take a look at it. And then we decided it was a great idea, and adjusted, and made some changes to the rules to accommodate it. And I think that the public is better served as a result. I would anticipate that as people get used to it, it's going to pick up in terms of the number of people who are using it. But it is an important addition to the way that we've been operating.

Nathan Richman 41:58

Speaking of permanence and getting back more directly to remote trials, what sorts of that stuff do you expect to last after the pandemic? Out of particular interest, the YouTube channel?

Maurice Foley 42:10

Oh. Well, you know, I think that's one of the wonderful things in terms of increased access. You know, we have the availability for individuals to listen in on trials via YouTube. And if you are a tax junkie , you can listen to Tax Court trials while we're in session. You can wake up in the morning and and listen to a New York trial. And then mid-afternoon, you can listen to something in Chicago. And then later on, you can listen to something in Los Angeles. And that's a significant thing. But, in general, after the pandemic, remote proceedings are going to be a valuable tool in our toolbox. I mean, it took an amazing amount of effort to put us in the position we're in today. And I don't want to go backwards. I want to move forward. I don't want to simply return to the pre-pandemic state of affairs. We plan to emerge from this pandemic more efficient, more productive, more nimble, more flexible, and better prepared to meet our statutory mandate to provide taxpayers with a reasonable opportunity to appear before us with as little inconvenience and expenses practicable. So, I think that as a result of these remote proceedings, we've got increased access to taxpayers. They may not live close to a place of trial. In Los Angeles, even if you live close to the place of trial, it takes a while to drive into LA. Or if you're in New York, you have to navigate some serious traffic issues in order to get to the court. So, by doing it remotely, we kind of addressed that problem. I would also hope that, that we'll see lower default rates as a result of the increased access and ability to just kind of sign on via Zoom. And I realize it doesn't have some of the formality. It's a little different doing it online. But it's still a court proceeding and with all the rules that accompany it. But I think that the fact that it's online, that might make it a little easier for people to be comfortable and to present their case. There's some cities we only go to once a year: Anchorage; Honolulu; Billings, Montana; Aberdeen; and Pocatello. You know, we go there once a year typically. But now with remote proceedings, we have the ability to deal with those cases in more than just that one week that we've set aside. So, that's significant, too. So, if we're in Alaska and we're only there in June or something like that, we can set a trial for later on in the year and not have any problems. And that's a big convenience to the taxpayer. In addition for us, there're reduced expenses. There's greater availability of tax counsel with respect to the clinics. Now, they're not limited to clinics that are in their area, but we can connect them with clinics that are in other parts of the country. So in that sense, it's a major advantage for taxpayers who need help. And, not to even mention some of the other advantages that it may have. And one that I particularly enjoy is t hat it allows t he chief judge to on occasion have a trial session. I do have difficulty finding time for it, but, but it at least opens that opportunity where I, o r whoever's c hief judge, can have an opportunity to travel to another location.

Nathan Richman 46:04

That's a perfect segue to basically my last question about feedback. You've had one, and also understanding is the parties have feedback forms. So, what sorts of feedback have you, in your experience, have the judges, have the parties, given you?

Maurice Foley 46:22

Well, overall the feedback has been very, very positive. But there have been things that, things that you would expect that folks might have some concerns about. I mean, we've had comments about, "Well, I didn't hear the judge when he turned his head to the side, and there were incidents where I couldn't hear very well."

Nathan Richman 46:40

When I've been listening, I've definitely heard some people are closer to their microphones than others.

Maurice Foley 46:44

Yeah. Yeah. So, there are things like that. You know, we've had some instances where individuals have had difficulty connecting. They've had to walk them through how to connect. There's standard things that everybody has run into when they're using Zoom. You know, the common question , "Oh, I think you're muted." You know, little things like that, but these are all issues that are resolvable. And I think that as we continue, these are things that we can address and address effectively.

Nathan Richman 47:26

Well, thank you very much for sharing your time with us. It's been a very interesting discussion.

Maurice Foley 47:32

Thank you, Nathan.

David Stewart 47:32

If you'd like to hear more from this interview, including Chief Judge Foley's path to the U.S. Tax Court and the challenges facing the court today, check out the extended edition on the Tax Analysts YouTube channel. And now coming attractions. Each week, we highlight new and interesting commentary in our magazines. Joining me now from her home is Acquisitions and Engagement Editor in Chief Faye McCray. Faye, what will you have for us?

Faye McCray 47:55

Thank you, Dave. In Tax Notes Federal, Stanley Langbein argues that the IRS should withdraw Notice 2020-32. Andrew Weiner examines the Anti-Injunction Act, arguing that its purpose will be violated if taxpayers can challenge pre-enforcement tax obligations in court. In Tax Notes State, Rick Handel and Brittnee Pool conclude their two-part series on the MTC’s new draft statement concerning the ambiguities inherent in P.L. 86-272. Richard Cram examines recent Illinois legislation partially merging sales tax and seller-collected use tax. In Tax Notes International, Andrew Hughes begins a series providing transfer pricing benchmarkings that can be replicated by practitioners using readily available public data. Christopher Callahan examines the U.S. tax treatment of foreign pensions, retirement accounts, and social security programs. And on the Opinions page, Nana Ama Sarfo discusses with European Member of Parliament Paul Tang some of his priorities as the first chair of the European Parliament's new subcommittee on tax. Ben Willis wonders how does America address an unprecedented economic crisis amid a presidential transition?

David Stewart 49:12

You can read all that and a lot more in the pages of Tax Notes Federal, State, and International. That's it for this week. You can follow me online @TaxStew, that's S-T-E-W. And be sure to follow @TaxNotes for all things tax. If you have any comments, questions, or suggestions for a future episode, you can email us at podcast@taxanalysts .org . And as always, if you like what we're doing here, please leave a rating or review wherever you download this podcast. We'll be back next week with another episode of Tax Notes Talk.