Do I have to respond to a Branerton letter?

It is an informal request, not a court order, but you should respond. Tax Court Rule 70(a)(1) expects parties to try informal consultation before formal discovery, and a non-responsive party invites formal requests, motions to compel, and a weaker settlement posture.

What happens if I ignore IRS requests for admission?

Under Tax Court Rule 90(c), each matter is deemed admitted unless you serve a written answer or objection within 30 days after service. Admitted matters are conclusively established under Rule 90(f) unless the Court allows withdrawal. Answer every request on time.

Can the IRS take my deposition in Tax Court?

Depositions are limited in Tax Court. Rule 74 allows depositions on consent of the parties and, without consent, only in limited circumstances. Most fact development happens through informal exchange, interrogatories, document requests, and stipulations.

Branerton Letters and Tax Court Discovery

Q: When can formal discovery start in Tax Court?

Under Rule 70(a)(2), not until 30 days after joinder of issue without leave of Court. Discovery must be completed and any motion to compel filed no later than 45 days before the call of the case from a trial calendar, unless the Court orders otherwise.

If you have litigated in a federal district court, Tax Court discovery will feel different. The Court expects the parties to exchange information informally first, and to use formal discovery only when informal efforts fail. The case that established that expectation gave its name to the letters IRS counsel now sends in almost every docketed case.

The Branerton case

In Branerton Corp. v. Commissioner, 61 T.C. 691 (1974), the Tax Court addressed a party's use of formal discovery without first attempting informal consultation. The Court made clear that formal discovery procedures are not to be used until the parties have made a reasonable informal effort to obtain the information.

That principle is now written into the Tax Court Rules. Rule 70(a)(1) says the Court expects the parties to attempt to attain the objectives of discovery through informal consultation or communication before using the discovery procedures in the Rules. Rule 90(a) repeats the expectation for requests for admission.

What a Branerton letter is

A Branerton letter is the informal request IRS Chief Counsel attorneys commonly send early in a docketed case. It typically asks you to:

Identify the witnesses you expect to call and the subject of their testimony.
Provide the documents you intend to rely on.
Explain the facts supporting your assignments of error.
Schedule a meeting or call to discuss the issues and possible stipulations.

It is not a subpoena or a formal discovery request. But ignoring it is a mistake. The informal exchange is the foundation for the stipulation process under Rule 91, for settlement, and for any later motion to compel.

How to respond

Respond in writing and on time. If you need more time, say so and propose a date.
Produce what you will rely on. Documents you withhold now may be excluded later under the pretrial order, which commonly requires exchange of trial documents well before the session.
Ask for what you need in return. Informal consultation runs both ways. Ask for the revenue agent's workpapers, the examination file, and the documents the IRS will rely on.
Protect privilege. Do not produce communications with your attorney or work product. Rule 70(c)(3) protects trial preparation materials, and Rule 70(d) explains how to describe withheld items without revealing the protected content.
Use it to settle. A clear, organized response often leads directly to settlement discussions.

Here's the part most people miss: the Branerton exchange is often where the IRS attorney decides how strong your case is. A thorough, credible response does more for settlement than any argument in the petition.

Formal discovery, when informal efforts fail

Rule 70(a)(1) lists the formal methods: written interrogatories (Rule 71), production of documents and electronically stored information (Rules 72 and 73), depositions on consent of the parties (Rule 74(b)), and depositions without consent in limited circumstances (Rule 74(c)). Depositions are far less common in Tax Court than in district court.

Timing

Under Rule 70(a)(2), discovery may not begin, without leave of Court, until 30 days after joinder of issue. Discovery must be completed, and any motion to compel filed, no later than 45 days before the date set for the call of the case from a trial calendar, unless the Court orders otherwise.

Scope

Rule 70(b) allows discovery of any nonprivileged matter relevant to the subject matter of the case, and it must be proportional to the needs of the case, considering factors such as the issues at stake, the amount in controversy, and the burden of the discovery compared to its likely benefit.

Requests for admission

Rule 90 is a powerful tool and a dangerous trap. A party may serve written requests to admit facts, the application of law to fact, or the genuineness of documents. Requests may not be served, without leave, until 31 days after joinder of issue.

The trap is in Rule 90(c): each matter is deemed admitted unless, within 30 days after service, the party serves a written answer or objection. Under Rule 90(f), a matter admitted is conclusively established unless the Court permits withdrawal. A taxpayer who ignores IRS requests for admission can lose the case on the facts without a trial.

If you receive requests for admission, calendar the 30 days immediately and answer each one specifically. A denial must fairly meet the substance of the request.

Sanctions and motions to compel

If a party fails to respond to formal discovery, the other side can move to compel, and the Court can impose sanctions under the discovery rules in Title X of the Tax Court Rules. Before filing a motion to compel, the moving party should be able to show that informal consultation was attempted. That is Branerton again, enforced through motion practice.

How discovery feeds the stipulation

Rule 91(a)(2) says discovery and admissions are aids to stipulation, not substitutes for it. Matters obtained through discovery should be set out in the stipulation of facts. The practical sequence in most Tax Court cases is: Branerton exchange, then stipulation drafting, then formal discovery only for what remains genuinely contested. See stipulations under Rule 91.

Discovery is not a substitute for preparation

Discovery in Tax Court is narrower than many litigants expect, and it runs on a short clock tied to the trial calendar. The parties are expected to know their own cases. The IRS attorney will rely heavily on the examination file and on what you produce informally. You should rely on your own records first and use discovery to fill specific gaps, such as how the IRS computed an adjustment or what third-party records it obtained.

The same is true in reverse. If the IRS's case depends on records it has not produced, ask for them in writing early. If they are not provided, a motion to compel after informal efforts is available within the deadlines in Rule 70(a)(2). And if you need to understand how the answer and any affirmative allegations shape what must be proved, see the IRS answer and your reply.

The documents you should ask the IRS for

The revenue agent's report and workpapers.
The activity record or case history from the examination.
Any third-party information the IRS obtained, such as bank records or summons responses.
Penalty approval documentation, including written supervisory approval under IRC 6751(b) where it applies.
Any computations underlying the deficiency.

You may also be able to obtain parts of your file through a Freedom of Information Act request, which runs on a separate track. Do not let a FOIA request substitute for timely discovery in your case.

Let's talk

A Branerton letter is the IRS attorney's first real look at your evidence. If you have received one, call (813) 229-7100 before you respond. Let's talk.

General information, not legal advice. Reading this page does not create an attorney-client relationship. Statutes, regulations, IRS procedures, and dollar thresholds change; confirm current rules before acting.

Branerton Letters and Informal Discovery in Tax Court