How to File a U.S. Tax Court Petition: Forms, Fees and Filing

Filing a petition with the United States Tax Court does three things at once. It stops the IRS from assessing the disputed deficiency while the case is pending under IRC 6213(a). It puts your case on track for review by IRS Appeals and Chief Counsel. And it gives you a judge if settlement fails.

The overview of the 90-day letter explains why you file. This guide is about how.

The package you file

According to the Tax Court's guidance for starting a case, a petition filing has four parts:

• The petition. Form 2 is the Court's standard petition form. Tax Court Rule 34(d) says a properly completed Form 2 satisfies the petition requirements.
• A copy of the IRS notice. Rule 34(b)(2) requires a copy of the notice of deficiency to be attached. Redact Social Security numbers and EINs from the copy.
• Form 4, Statement of Taxpayer Identification Number. This is the only document that should contain your SSN or EIN, and the Court says it is never visible as part of the case record.
• Form 5, Request for Place of Trial. Rule 140(a) requires it. See requesting Tampa as your place of trial.

Plus the $60 filing fee, which can be paid by check, money order, or Pay.gov. If you cannot pay, the Court may waive the fee on an Application for Waiver of Filing Fee, signed under penalty of perjury. For a joint petition, one waiver form signed by both petitioners is enough.

What the petition must say

Rule 34(b)(1) lists the required contents for a deficiency case. The ones that matter most:

• Your name and state of legal residence (or, for an entity, its principal place of business). This determines which circuit hears any appeal under IRC 7482(b).
• The date of the notice and the IRS office that issued it. These establish jurisdiction.
• The amount of the deficiency, the type of tax, and the years. If you dispute only part, state the approximate amount in dispute.
• Assignments of error. In separately lettered paragraphs, clear and concise statements of each error you claim the IRS made. Rule 34(b)(1)(G) is unforgiving: any issue not raised in the assignments of error is deemed conceded.
• Statements of fact. In separately lettered paragraphs, the facts supporting each error, except for issues where the IRS bears the burden of proof.
• A request for relief. What you want the Court to do.
• Signature and contact information. Each petitioner's or counsel's signature, mailing address, email address, and telephone number, plus counsel's Tax Court bar number.

Assignments of error: be complete, not clever

The assignments of error are the heart of the petition. Go through the Form 886-A explanation of items attached to the notice and assign error to every adjustment you dispute, including penalties. If you are unsure whether to dispute something, it is generally safer to include it. You can concede an issue later. Adding a forgotten issue requires an amendment under Rule 41, and the longer you wait, the harder that becomes.

Penalties deserve their own paragraphs. If the IRS asserted an accuracy-related penalty, assign error to it specifically, and consider whether the IRS obtained written supervisory approval under IRC 6751(b). For individuals, IRC 7491(c) puts the burden of production on penalties on the IRS.

Facts should be specific but not exhaustive. You are not trying the case in the petition. You are telling the Court and the IRS what the dispute is.

Filing electronically through DAWSON

The Tax Court's electronic filing system is DAWSON. The Court's guidance lays out the steps: prepare your documents first (petition, redacted notice, Form 4), create a DAWSON account, start the case through the guided steps, receive a docket number, and pay the fee. Two cautions from the Court are worth repeating:

• Once you start the DAWSON filing process, you cannot save your work and return to it. Have everything ready.
• The Court must receive an electronically filed petition no later than 11:59 p.m. Eastern Time on the last date to file. Tampa is on Eastern Time, but a DAWSON outage at 11:50 p.m. is still your problem.

File once. The Court specifically warns not to file a petition both electronically and by mail.

Filing by mail

Paper petitions go to the United States Tax Court, 400 Second Street, N.W., Washington, DC 20217. The timely mailing rule of IRC 7502 treats a petition as filed on the postmark date if it is mailed by U.S. mail with a timely postmark, properly addressed, with postage prepaid. Designated private delivery services can qualify too, but only specific services and service levels. Certified mail with a receipt is the safest paper option because it creates proof of the mailing date.

Here's the part most people miss: the timely mailing rule protects the mailing date, but disputes over postmarks are miserable to litigate. Do not mail on the last day if you can avoid it.

Joint petitions and separate notices

Rule 34(b)(3) generally requires a separate petition for each notice of deficiency, but allows a single petition covering all notices issued to the same person, or to more than one person such as two spouses, if each contests the notice. If a notice was issued to both spouses, each spouse who wants to contest it must file a separate petition or join in a joint petition, and each must meet all the requirements, including signing. A petition signed by only one spouse generally protects only that spouse.

Small case or regular case

Form 2 asks whether you want the small tax case procedure. If every year in dispute is $50,000 or less including penalties, you can elect it. The decision is final and cannot be appealed. Decide deliberately.

Things not to put in the petition

• Your Social Security number or EIN anywhere other than Form 4.
• A claim for litigation costs. Rule 34(f) says it must not be included; costs are claimed later by motion.
• Frivolous arguments. IRC 6673(a)(1) allows a penalty of up to $25,000 for frivolous or groundless positions. See the Section 6673 penalty.
• Statements you would not want quoted back to you at trial. The petition is a pleading, and the IRS's answer will respond to it paragraph by paragraph.

After you file

You will receive a docket number and a notice of receipt. The IRS has 60 days from service to answer under Rule 36. If Appeals has not already considered the case, it will generally be referred to Appeals for settlement under Rev. Proc. 2016-22. Interest continues to accrue on any deficiency ultimately determined, so consider whether a deposit under IRC 6603 makes sense while the case is pending.

Let's talk

A petition is short, but every paragraph has consequences. Darrin T. Mish is admitted to practice before the U.S. Tax Court. If you are inside your 90 days, call (813) 229-7100. Let's talk.