How To Handle Discovery and Pretrial Preparation in Tax Court

Your petition is filed. The IRS has answered. Your case is "at issue"—meaning it's eligible for a trial calendar. Now months stretch ahead before your trial date, and no one has told you what to do during that time.

This is the phase where most of the real work happens. Discovery—the process where both sides share information and documents before trial—and stipulation negotiations determine what evidence the judge will see. The pretrial memorandum you file defines the scope of your case—including which witnesses can testify. And the Standing Pretrial Order that arrives with your Notice of Trial contains deadlines with real consequences for missing them.

Most (76%) of Tax Court cases settle before trial, and more than 99% resolve without a trial on the merits. But if your case hasn't settled—or hasn't settled yet—this guide covers what to expect during the pretrial phase, how to respond to IRS discovery requests, how to negotiate stipulations effectively, and how to prepare your pretrial memorandum.

The Quiet Period: What Happens Between "At Issue" and Trial

After the IRS files its Answer—and after you file a Reply, if one is required—your case becomes "at issue." This means the disputed issues are defined and your case is eligible to be placed on a trial calendar under Tax Court Rule 131. But that doesn't mean trial is imminent.

In most cases, months pass between "at issue" and your Notice of Trial. During this time, several things happen in parallel: the IRS may refer your case to Appeals for settlement, you continue gathering and organizing your evidence, and the discovery and stipulation process—the focus of this article—begins.

The IRS attorney assigned to your case (identified on the last page of the Answer) typically reaches out first, often with an informal letter requesting documents. This is normal. The slow pace is normal too. A Tax Court case typically takes 6-18 months to resolve, and the pretrial phase is where much of that time is spent.

Don't mistake the quiet for inactivity. This is your preparation window.

Informal Discovery: The IRS Attorney's First Requests

Shortly after the Answer is filed, the IRS attorney typically sends an informal letter requesting documents relevant to your case. This is not a formal discovery request under Rules 70–76—it's a practical request, and the Tax Court explicitly expects parties to communicate informally before turning to formal discovery tools.

There are strong reasons to respond cooperatively. First, cooperation with reasonable IRS requests is one of the four requirements under IRC § 7491(a) for shifting the burden of proof to the IRS. If you refuse to cooperate, you lose that benefit—even if your evidence on the merits is strong. Second, providing documents early demonstrates the strength of your position, which can lead to a better settlement offer. Third, judges notice when a party has been uncooperative during pretrial, and it can affect credibility.

When responding, send copies—never originals. Keep a log of exactly what you provided and when. You can mail documents to the IRS attorney's office address (listed on the Answer) or ask whether they accept email delivery. Don't volunteer documents beyond what was requested, and don't send privileged communications (such as letters between you and your attorney, if you have one).

This is also the right time to make your own requests. Ask the IRS attorney for a copy of the audit file and the examiner's workpapers. IRS counsel will often provide these informally. If you're facing penalties, request the written supervisory approval document required under IRC § 6751(b). Getting these documents early helps you understand the IRS's theory of the case and prepare your response.

Formal Discovery Tools (Rules 70–76)

When informal requests don't produce what you need, the Tax Court provides formal discovery tools under Rules 70–76. These are more common in regular cases than small (S) cases, though the Court has discretion to allow discovery in S cases as well.

Two timing constraints apply to all formal discovery. Discovery cannot commence until 30 days after the case is at issue (Rule 70(a)(2)). And all discovery must be completed—and any motions related to discovery filed—no later than 45 days before the calendar call.

There are no standard Tax Court forms for discovery requests—you draft your own. Each request must be served on the IRS attorney (typically by mail with a Certificate of Service (Form 9)) and clearly identify the case name and docket number. An LITC can help you draft discovery requests if you're unsure how to format them.

Interrogatories (Rule 71)

Interrogatories are written questions that the other party must answer under oath within 30 days. Each party is limited to 25 interrogatories, including discrete subparts. The Court expects informal communication before serving interrogatories.

For pro se petitioners, interrogatories can be useful for pinning down the IRS's legal theory. For example, you might ask the IRS to identify the basis for each adjustment, the identity of witnesses the IRS intends to call, or whether written supervisory approval was obtained for penalties under IRC § 6751(b).

Requests for Production of Documents (Rule 72)

Requests for production ask the other party to produce documents, electronically stored information, or tangible things for inspection and copying. No leave of Court is required—any party can serve a request. The responding party has 30 days to respond.

Key documents to request from the IRS include the audit workpapers, the IRC § 6751(b) penalty approval document, and any third-party records the IRS relied on in making its determination.

Requests for Admission (Rule 90)

Requests for admission are one of the most powerful—and most dangerous—discovery tools in Tax Court. A request for admission asks the other party to admit or deny specific facts. If the responding party does not respond within 30 days, the matters are deemed admitted. That means they are conclusively established for the case under Rule 90(f).

This cuts both ways. A pro se petitioner can use requests for admission to establish facts the IRS does not genuinely dispute—simplifying the case before trial. But if the IRS sends you requests for admission and you fail to respond within 30 days, facts can be established against you without any further proof. The 30-day clock is absolute.

Requests for admission require leave of Court if served within the first 31 days after the case is at issue. Every request must advise the opposing party of the deemed-admitted consequence.

Depositions (Rule 74)

Depositions—live, recorded testimony taken outside of court—are available in Tax Court but are explicitly described as an "extraordinary method" of discovery. With consent of all parties, depositions can be arranged through a stipulation filed with the Court (Rule 74(b)). Without consent, depositions require a motion and are available only after the Notice of Trial is issued or the case is assigned to a judge (Rule 74(c)). Party depositions without consent require leave of Court.

For most pro se petitioners, depositions are not practical. They are procedurally complex and expensive. Interrogatories, document requests, and requests for admission are the tools that matter most.

How To Negotiate Stipulations

A stipulation is a written agreement between you and the IRS about facts that aren't in dispute—removing those facts from contention so the trial focuses only on what you actually disagree about. The stipulation process is one of the most important parts of pretrial preparation. Tax Court Rule 91 requires both parties to stipulate "to the fullest extent to which complete or qualified agreement can or fairly should be reached." This isn't optional. The Court expects stipulations in every case.

Here's how it typically works:

1. The IRS attorney sends a proposed stipulation of facts. This is a written document listing facts the IRS considers undisputed, with supporting documents attached as exhibits.

2. Review each proposed fact carefully. For each item, you have three options: agree, agree with a modification, or disagree with a reason. Don't rush this step.

3. Respond in writing with your markups. Send the document back with your agreement, proposed changes, or stated reasons for disagreement on each point.

4. Negotiate back and forth. Multiple rounds of negotiation are typical. The IRS attorney may revise proposed facts, and you may reconsider positions as you review documents more carefully.

5. Finalize, sign, and file with the Court before trial. The completed stipulation of facts—with all attached exhibits—must be filed at least 14 days before the first day of the trial session per the Standing Pretrial Order.

What To Stipulate

Stipulate genuinely undisputed facts: the authenticity of documents (tax returns, the Notice of Deficiency, bank statements), background facts (your state of residence, filing status, the tax years at issue), and any facts both sides agree on. Stipulating these items saves trial time and keeps the judge focused on the actual disputes.

What NOT To Stipulate

Do not stipulate to facts you genuinely dispute. Do not stipulate to characterizations you disagree with—for example, an IRS description of a transaction that subtly assumes a conclusion you're contesting.

Watch for legal conclusions disguised as facts. "Petitioner received unreported income of $50,000" is not a fact if the amount or characterization is in dispute. "The IRS issued a Notice of Deficiency determining additional income of $50,000" is a fact.

Binding Effect

Stipulations are binding. Under Rule 91(e), a stipulation is treated as a conclusive admission by the parties. Once you stipulate to a fact, you cannot contest it at trial. Be certain before you agree.

Exhibit Numbering

Under Rule 91(b), exhibits attached to a stipulation are numbered serially with a party designation: 1-P (petitioner), 2-R (respondent), 3-J (joint). Stipulations must be in writing, signed by both parties, and follow Rule 23 formatting requirements.

How To Write Your Pretrial Memorandum

The Pretrial Memorandum is a form filed with the Court and served on the IRS attorney. It summarizes your case and tells the judge what to expect at trial. The deadline is 21 days before the first day of the trial session per the Standing Pretrial Order.

The form covers:

• Case information: name, docket number, self-represented status
• Amounts in dispute: deficiencies and penalties by tax year
• Status of case: probable settlement, probable trial, or definite trial
• Trial time estimate: how many hours you expect the trial to take
• Expected motions: any motions you plan to file before trial
• Status of stipulation: whether the stipulation of facts is completed or in progress
• Issues remaining in dispute: the specific questions the judge needs to decide (for example: "Whether petitioner is entitled to a Schedule C deduction of $12,000 for business expenses in 2023")
• Witnesses: name and brief summary of anticipated testimony for each witness
• Summary of facts: a chronological narrative of the relevant facts—written in plain language, covering what happened and when, from the transaction or event through the audit and notice of deficiency
• Legal authorities: a brief synopsis of the law supporting your position—cite the IRC sections or Tax Court Rules you rely on (if you're unsure what to cite, focus on the sections referenced in your petition)
• Evidentiary problems: any issues with exhibits or evidence you anticipate

The witness identification requirement is critical. Under the Standing Pretrial Order, witnesses must be identified in the pretrial memorandum with a brief summary of their anticipated testimony. Witnesses not identified will not be permitted to testify at trial without a showing of good cause. If you plan to testify yourself—and you almost certainly will—list yourself as a witness.

The pretrial memorandum also defines the scope of your case. The Court may restrict the case to the issues identified in the memorandum. Be thorough. Don't omit an issue you intend to raise at trial.

For regular cases, the pretrial memorandum is required ("must file"). For small cases, the Standing Pretrial Order uses "should file"—it's strongly recommended even if not strictly mandatory.

The Standing Pretrial Order: Your Compliance Checklist

When the Court issues your Notice of Trial, it comes with a Standing Pretrial Order—a detailed set of instructions with firm deadlines. There are separate versions for regular cases and small cases. The Standing Pretrial Order has the force of a court order. Failure to comply can result in sanctions under Rules 104, 123, and 202.

All deadlines are measured from the first day of the trial session:

For regular cases, the 21-day and 14-day deadlines use "must"—these are mandatory. For small cases, several deadlines use "should"—aspirational rather than strictly mandatory. But noncompliance in either case type can result in sanctions, including exclusion of evidence or witnesses.

The Standing Pretrial Order also requires you to participate in any pretrial conferences or conference calls scheduled by the judge. Failure to participate can result in dismissal of your case. If the judge's chambers contacts you about a conference, respond promptly.

The most consequential deadline for most pro se petitioners is the 21-day pretrial memorandum. Missing it means the Court may not know what issues you're raising, what witnesses you're calling, or how long your trial will take. The 14-day stipulation deadline is equally important—evidence not properly stipulated or exchanged by this date may be excluded.

When the IRS Doesn't Cooperate: Motions To Compel

If the IRS refuses to respond to discovery requests, you can file a motion to compel discovery under Rules 70–76. If the IRS refuses to stipulate to genuinely undisputed facts, you can file a motion to compel stipulation under Rule 91(f).

Both types of motions must be filed no later than 45 days before the calendar call (the court session where the judge reviews cases scheduled for trial and determines trial order). The standard for motions to compel stipulation comes from Branerton Corp. v. Commissioner, 61 T.C. 691 (1974), which established that the Court will compel stipulation of matters that are not genuinely disputed—but will not weigh competing factual claims or resolve genuinely controverted issues in advance of trial. This standard is now reflected in Rule 91(f)(4).

If a party fails to comply with a discovery order, sanctions under Rule 104 escalate in severity: facts can be deemed established against the noncompliant party, claims or defenses can be prohibited, pleadings can be struck, and—in extreme cases—the case can be dismissed or default judgment entered.

All motions are filed through DAWSON and must include a Certificate of Service (Form 9).

Using Discovery To Challenge Penalties

If your case involves penalties, discovery offers a concrete, high-value strategy. IRC § 6751(b) requires that the initial determination of most penalties be personally approved in writing by the immediate supervisor of the person making the determination. If the IRS cannot produce this written approval, the penalty fails as a matter of law—regardless of the merits.

Three discovery tools can target this requirement:

• Request for production (Rule 72): Request the written supervisory approval document for any penalty asserted in the Notice of Deficiency.
• Interrogatory (Rule 71): Ask who approved the penalty, when approval was given, and under what authority.
• Request for admission (Rule 90): Ask the IRS to admit or deny that timely written supervisory approval was obtained before the penalty was assessed.

This is one of the most effective discovery strategies available to pro se petitioners in penalty cases. For more on penalty defenses, see How To Request IRS Penalty Abatement.

Expert Witnesses (Rule 143(g))

Most pro se cases don't involve expert witnesses, but if yours does—most commonly in valuation disputes involving charitable contributions of property or business valuations—there are specific requirements under Rule 143(g).

An expert witness report must be served on the opposing party no later than 31 days before the first day of the trial session per the Standing Pretrial Order. The report must include: a complete statement of all opinions with the basis and reasons; the facts or data considered; supporting exhibits; the expert's qualifications including publications from the last 10 years; a list of cases in which the expert has testified over the past 4 years; and a statement of compensation.

Failure to serve the report results in exclusion of the expert's testimony absent a showing of good cause.

Discovery and the Burden of Proof

The connection between discovery cooperation and the burden of proof deserves emphasis. The "burden of proof" determines which side must prove its case to the judge—normally the taxpayer must prove the IRS is wrong, but under certain conditions, the burden shifts to the IRS. Under IRC § 7491(a)(2)(B), shifting the burden to the IRS requires that you "cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews."

This means responding to the IRS attorney's informal requests and formal discovery requests is not just good practice—it's a prerequisite for one of the few procedural advantages available to you. A pro se petitioner who ignores IRS discovery requests risks losing the burden-shift benefit, even if the underlying evidence is strong.

Cooperate. Respond on time. Keep records of everything you provide.

Common Mistakes

Ignoring the IRS attorney's informal requests. This hurts both your burden-shifting position under IRC § 7491(a) and your credibility with the judge. Respond promptly and keep copies of everything you send.

Missing Standing Pretrial Order deadlines. Evidence not exchanged by the 14-day deadline may be excluded. Witnesses not identified in the pretrial memorandum by the 21-day deadline may not be allowed to testify. These deadlines exist for a reason.

Stipulating to legal conclusions disguised as facts. Review proposed stipulations carefully. A "fact" that characterizes a transaction or assumes a legal conclusion you're contesting should not be stipulated. Propose alternative language that states the underlying fact without the characterization.

Not requesting the IRS's audit file. The audit workpapers and administrative file often reveal the basis for the IRS's adjustments, the quality of the examination, and whether proper procedures were followed—including penalty approval under IRC § 6751(b).

Filing discovery motions too late. All discovery and stipulation motions must be filed at least 45 days before the calendar call. Late motions are typically denied.

Skipping the pretrial memorandum. Even in small cases where filing is not strictly mandatory, the pretrial memorandum tells the judge what your case is about and preserves your right to raise issues and call witnesses at trial.

Get Help

Discovery and pretrial preparation are among the most procedurally complex phases of a Tax Court case. If you're feeling overwhelmed, you're not alone—and there's help available.

Low Income Taxpayer Clinics (LITCs) provide free representation to taxpayers whose income is below 250% of the poverty line and whose dispute is $50,000 or less. LITCs can assist with discovery requests, stipulation negotiations, and pretrial memorandum preparation. Find a clinic through the IRS LITC Directory. For a detailed walkthrough, see How To Find and Use a Low Income Taxpayer Clinic.

Calendar call volunteer programs pair unrepresented petitioners with volunteer practitioners at trial sessions. The Court provides information about these programs with your Notice of Trial.

Resources

• Tax Court Guidance: Before Trial—the Court's official pretrial guide
• Pretrial Memorandum Form—the form you file 21 days before trial
• Standing Pretrial Order—Regular Cases (sample)
• Standing Pretrial Order—Small Tax Cases (sample)
• Tax Court Rule 70—General Provisions on Discovery
• Tax Court Rule 71—Interrogatories
• Tax Court Rule 72—Production of Documents
• Tax Court Rule 74—Depositions
• Tax Court Rule 90—Requests for Admissions
• Tax Court Rule 91—Stipulations for Trial
• Tax Court Rule 104—Sanctions
• Tax Court Rule 131—Trial Calendars
• Tax Court Rule 143—Evidence (including Expert Witnesses)
• IRC § 6751(b)—Supervisory Approval for Penalties
• IRC § 7491(a)—Burden of Proof
• IRC § 6673—Sanctions for Frivolous Positions
• Certificate of Service (Form 9)
• DAWSON Portal—file documents and monitor your case
• IRS LITC Directory—find free legal help
• What Happens After You File Your Tax Court Petition—the post-filing timeline
• How To Prepare Your Evidence for Tax Court—evidence organization and substantiation
• How To Settle Your Tax Court Case—settlement as the alternative to trial
• What To Expect at Your Tax Court Trial—trial day itself
• How To Find and Use a Low Income Taxpayer Clinic—free representation for qualifying taxpayers
• Small Case or Regular Case: Which Should You Choose?—procedural differences including pretrial requirements
• How To Respond to an IRS Audit—understanding the audit file and workpapers
• How To Get and Read Your IRS Transcripts—transcripts as evidence during discovery
• How IRC 6213 Protects You While Your Tax Court Case Is Pending—collection protection during discovery and pretrial

This article is for informational purposes only and does not constitute legal or tax advice. For advice specific to your situation, consult a qualified tax professional or attorney.