Dedicated to Teaching & Learning
Guide to Admission & Practice
in United States Tax Court
"preponderance of the evidence..."
Tax Law Institute
Foreword by James H. Chapman E.A.
National Tax Practice Institute Fellow
Introduction by the Honorable John F. Dean
Former U.S. Tax Court Special Trial Judge
Contributions by Professor Joni Larson
Former U.S. Tax Court Judicial Law Clerk
Available Spring 2021 for $149
In the first pocket guidebook ever written about nonattorney U.S. Tax Court admission and trial practice, Michael Stuart illuminates, in plain language, the challenges faced by nonattorney, federally authorized tax practitioners who struggle to become a "United States Tax Court Practitioner" - designation that grants approval to the nonlawyer-tax practitioner to engage in legal practice and representation of taxpayers in U.S. Tax Court; and who are in turn recognized by the Court as "Tax Litigation Counsel" for the Petitioner.
Michael Stuart is a veteran U.S. Tax Court observer and lecturer in trial practice and tax litigation strategies. In this book, he examines the frustrations among many IRS Enrolled Agents and CPAs who are unable to pass the U.S. Tax Court nonattorney examination. After talking to numerous, unsuccessful applicants, some of whom have taken the exam several times, Michael Stuart has concluded that there is one principle reason that is the cause - improper preparation.
He goes on to address the other cause for the low admission rate, and one that seems to affect a greater number of applicants each Testing Cycle - an inability to pass muster with the FBI. The most commonly cited reason is an applicant's failure to make "full disclosure" on their application to the Court. In past years, several persons who passed the exam were denied bar admission due to various "undisclosed matters" uncovered during the FBI vetting process.
Michael Stuart has been working with IRS enrolled agents and CPAs engaged in federal tax practice since 2006. In this guidebook, he explains straight-forwardly what is required of tax accounting professionals if they wish to obtain a minimum 70% passing grade in each of the four tested subjects found in the U.S. Tax Court Nonattorney Examination - administered once every other year in Washington DC. His book is a "must read" for anyone who is about to take the test as well as for anyone who has taken it and failed. It is also a book for those who have passed but who have not yet engaged in Tax Court litigation for lack of know-how.
About the Author
Michael Stuart is the IRS Approved CPE Provider at the Tax Law Institute. Operating under the auspices of the U.S. Treasury Department, Internal Revenue Service Office of Professional Responsibility he is charged to teach IRS approved continuing professional education courses to federally authorized tax practitioners. He is a specialist in U.S. Tax Court litigation. His strategic approach has been applied successfully at trial and in other proceedings by bar-admitted FATPs in U.S. Tax Courts throughout the national jurisdiction. As an educator, he works closely with various tax professionals and judicial officers, including former and sitting Tax Court judges, federal tax scholars, legal authors, IRS enrolled agents, tax attorneys and CPA members of the Tax Court bar - all of whom provide exceptional counsel, advice, criticism, and support. But the greatest contributions come from the bar applicants themselves.
Six years ago, he negotiated and formed a collaborative between the Tax Law Institute and the University of Alabama School of Law Graduate Tax Program that granted "open admission" to IRS enrolled agents to earn the Certificate in Tax Law in exchange for TLI training LL.M. graduates to practice in Tax Court. The year before he convinced a retiring U.S. Tax Court judge of the value of judicial oversight in the legal education of nonattorneys. The judge, the Honorable John F. Dean, is now in his 4th testing cycle providing legal instruction as the distinguished judicial speaker to nonattorney bar applicants.
Immediately after completing his J.D. in 2001, Michael Stuart entered public service law as a volunteer. Supervised by the head of the Bankruptcy Unit of the Consumer Division at the Legal Aid Society, he acted as a liaison between the IRS and indigent clients. Prior to attending law school, he had spent 20 years on Wall Street, trained in international business relations at the Fletcher School of Law and Diplomacy, earned a master's degree in international relations from Harvard, and advised the White House staff on matters of tax policy which he memorialized in a position paper to the president. Afterwards, he received an appointment as visiting scholar of public policy (taxation) at Yale Law School. He then returned to Harvard to begin pre-doctoral studies and was retained, for almost two years, as special consultant to the University.
To follow is an excerpt from his Guidebook wherein he offers some tips to anyone considering applying to the U.S. Tax Court. The chapter entitled, "Seven-Things You Must Do..." is realistic, sobering, and instructive. In it, he sends a clear message to Tax Court bar applicants that proper preparation is the key to passing the exam. He concludes by reminding the reader that to embark upon the road to admission to the Tax Court bar is no easy journey, even for the most seasoned tax professional.
Seven-Things You Must Do to Prepare for the Exam
1. It absolutely takes no fewer than 12 months to prepare for the U.S. Tax Court Nonattorney Exam (although repeat test-takers usually need only 2-3 months), and 5 months thereafter to learn the art of litigation if you are to be "Admitted to Practice, U.S. Tax Court," as United States Tax Court Practitioner.
2. Prior to the test, you should self-execute an investigation into your own background. It is advisable that you do this before you submit your Application to the Tax Court. If you pass the test then your final hurdle is to pass muster with the FBI. Know before you apply!
3. You should enroll at the Tax Law Institute where you can hear former U.S. Tax Court Special Trial Judge John F. Dean and Tax Evidence author and Professor Joni Larson "speak-to-the-test". Specifically, Judge Dean and Professor Larson will discuss how litigation unfolds - a process you must understand, if you want to answer correctly the questions that appear on the nonattorney exam. And better yet, to ensure that you write the answers the examiners want to see.
Further, Judge Dean and Professor Larson will describe how Tax Court evidence is presented and finds its way into the record. You will also hear a guest speaker, Harvard Law School Professor Keith Fogg, discuss tax court cases decided since the last exam that the Substantive Tax Law section is certain to test. Finally, you will hear all about the U.S. Tax Court rules, trial procedure and courtroom practices that you will also be expected to know if you want to pass.
4. You must learn to recognize "question-types" in the Nonattorney Exam. Most importantly, you must learn how to respond quickly and confidently with answers that get full or partial credit. You can only do this if you are properly trained. The TLI program will provide that sort of training. The program is rigorous and thorough, but also lots of fun. It will prepare you to do your best. And it is the only Tax Court Bar prep program that provides a free Master Tutor, who works individually with any applicant who needs help.
5. You must learn what to focus on to pass the Exam. And also, you must have some sense of how much time, expense, and effort you want to invest to get yourself admitted to the Tax Court Bar. Remember that any preparation is not going to be done cheaply. Especially if you consider that some applicants take the exam several times before they pass. You should enroll in an exam preparation program (such as TLI) that will give you a-better-than-70%-chance to pass and where you'll get the most bang for your buck.
Remember, if you pass and are vetted by the FBI, you can set up practice with your bar registration number right away (although we recommend an apprenticeship before you jump out there). But, if you are unsuccessful on the Exam, at the very least, you should have gained insight and picked up valuable professional tools that should help improve your current practice and increase your chances for passing in 2023. And, from a financial point of view, only TLI allows unsuccessful test-takers to repeat the bar prep course at no additional charge, if they don't pass the first administration of the exam (other than hotel accommodations and meals where applicable).
6. You must assure yourself that after you complete the TLI Tax Court Exam Bar Review you will possess the basic skills-set you'll need to pass the 2021 November Nonattorney Examination. That is why it is important to properly prepare for each class by completing the assigned readings beforehand, and by taking fastidious notes. And you must study, study, study, and then study some more. If you are not willing to put in the time, then save your money, because you will not pass. Those who do pass are the ones who show up prepared for class, ask questions, ask for help, and devote 3-4 hours every day to reading and re-reading, and reviewing their notes.
7. Remember that "Admitted to Practice, U.S. Tax Court," should not be just another qualification to put on your resume." You must learn the Rules and you must learn how to litigate. If you know and understand the Rules and the litigation process, then you will be able to answer correctly most questions in the exam, in which case you'll pass and be admitted (subject to an FBI check). After which you can launch your practice and have the confidence to take on just about any case-type. And, if you ever think you're in over your head, just contact U.S. Tax Court Litigators.org. Their staff will provide low-cost litigation assistance to help get you through your case successfully. Or, at the very least, settle your case to your client's satisfaction.
TLI members of the U.S. Tax Court bar will write the two required recommendation letters to the U.S. Tax Court Office of Admissions for any applicant who receives a passing grade in all four (4) sections of the 2021 Nonattorney Examination. This, however, is subject to the applicant's full disclosure of the findings of the self-requested background check. In that regard, please note that each Testing Cycle, inevitably, an applicant who passes the exam is denied admission to the Tax Court Bar, often due to their failure to fully disclose on their application.
If you prepare with us and do not pass the 2021 Nonattorney Exam then you may repeat the Program, at no charge, during the 2023 Testing Cycle.
Photo Courtesy of U.S. Tax Court
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