Procedurally Taxing: Depositions in Tax Court (November 24, 2021)

Keith Fogg, Clinical Professor of Law at Harvard Law, has made available for download his article, “Depositions in Tax Court” published on the Procedurally Taxing blog. The article begins as follows:

Unlike in district court where depositions play an integral role in litigation, depositions in Tax Court occur with much less frequency.  The Tax Court recently issued an order allowing the IRS to take the depositions of two witnesses via Zoom in the case of Oconee Landing Property, LLC et al v. Commissioner, Dk. No. 11814-19 (Nov. 8, 2021).  Since these orders do not come along very often and we have never blogged about depositions in Tax Court, this presents a good opportunity to discuss the issue.

In almost 45 years of practice before the Tax Court, I have never taken a deposition.  When I worked for Chief Counsel, I was deposed a couple of times in non-Tax Court cases and I have been deposed once since becoming a clinician, but that was because I was serving as an expert witness.  So, my knowledge of depositions is low.  In addition to never conducting a deposition, I do not remember any member of my office taking a deposition in a Tax Court case.  Depositions may have become more frequent since I left Chief Counsel, but I am not convinced that they have.  In an earlier era, it was almost impossible to get one authorized unless you could show the person to be deposed was going to become unavailable, usually because of impending death.  The Tax Court rules have loosened up over the years, allowing depositions in other situations, but the general default is to stipulate rather than to build the case through depositions as would occur in a district court case.

Click here to view Keith Fogg’s summary of “Depositions in Tax Court”

Posted by Anthony Tran, Associate Editor, Wealth Strategies Journal

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