By Amy Lee Rosen

Law360 (June 1, 2020, 8:50 PM EDT) -- The U.S. Tax Court said it will conduct remote proceedings during its fall trial calendar session because of the novel coronavirus pandemic and will allow the public to listen to the sessions.

The court issued an administrative order Friday setting procedures for holding remote proceedings. Tax Court Judge Cary Pugh told Law360 on Monday that it is unclear what cities around the country will be accessible for proceedings in the fall, so the court can't follow its usual practice of sending judges to different cities for trials. 

Under the remote procedures, "the parties have a lead time to work the cases out, and we have some certainty with scheduling," Judge Pugh said.

"We can't just keep having a backlog," the judge said. "Parties come to Tax Court to have their cases resolved, and this is the safest way we can do it."

The Tax Court previously canceled trial sessions for March and April because of COVID-19, the respiratory disease caused by the novel coronavirus. The court then closed its building in Washington, D.C., but still allowed people to file petitions and other documents to abide by statutory deadlines. Mail sent to the building is being held until the court reopens.

Virtual Tax Court sessions will use videoconferencing software Zoomgov, which does not require a personal Zoom account and will not cost anything, according to the order issued Friday. People can attend virtual sessions using a computer or tablet's audio and video feed, or dial in to an audio-only feed over the phone.

The audio feed will allow journalists and the public to listen to the proceedings, similar to how other federal courts are conducting virtual sessions, Judge Pugh said. The U.S. Supreme Court has been holding oral arguments by teleconference. 

Parties must still participate in pretrial matters such as scheduled conference calls and pretrial calls; otherwise a judge may dismiss a case and enter a decision against the nonparticipating party, according to the order.

The order also adjusted certain trial deadlines. Before the pandemic, the court required parties to send a pretrial memo 14 days ahead of trial, but that memo is now due 21 days ahead of trial, according to the order. Pretrial memos are also now required to be filed for small tax cases, or those with $50,000 or less at stake, 21 days in advance, more than the previous seven days before trial.

On Friday the Tax Court also issued an administrative order that supersedes prior procedures for limited entry of appearances by attorneys representing clients before the court. Normally, an entry of appearance at the court is effective until a case is resolved or the court grants an attorney's motion to withdraw. In 2019, the court began to allow limited entries of appearance during a trial session specific to the dates when the representation would be in effect.

Before the COVID-19 pandemic, a Tax Court judge would tell an unrepresented taxpayer the day of a trial that there were pro bono clinic practitioners available for representation on a limited basis, Judge Pugh said. The petitioner would consult with the attorney, who would hand in a form on the day of the trial to represent the client on a limited basis, she said. Now that sessions will not be held in person, the administrative order relaxes the limited representation requirements so that as soon as the court issues a notice setting a trial, an attorney can file a limited entry of appearance electronically on behalf of a pro se taxpayer, Judge Pugh said.

An attorney who is already appearing in a case cannot later file a limited entry of appearance unless the court allows the representative to withdraw his or her entry of appearance. But a practitioner who files a limited entry of appearance is allowed to later file a standard entry of appearance, the FAQ said.

If a practitioner is entering a limited appearance, that does not limit professional responsibilities regarding conflicts of interest and competent representation, the court said.

Judge Pugh told Law360 that the court spent a lot of time coming up with the procedures but that they may change depending on their effectiveness and comments from other judges and practitioners.

"We want to get it right. We know there's going to be a need to be flexible, going forward, and to be able to exercise discretion," she said. "But we wanted people to get a sense of things we had to adjust … [and] we're not going to let technology be the impediment."

--Additional reporting by Theresa Schliep, Elise Hansen and Jimmy Hoover. Editing by Tim Ruel.

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