How To Write Your Tax Court Pretrial Memorandum

A "Notice Setting Case for Trial" arrived, and stapled behind it is a "Standing Pretrial Order" several pages long with a calendar of deadlines. Buried in that packet is one document that can decide your case before you ever say a word to the judge: the Pretrial Memorandum.

Most of the order tells you what to do and when. The Pretrial Memorandum is different. It is the one filing where what you leave out can be held against you—a witness you forget to list can be barred from testifying, an issue you do not frame can be treated as abandoned, and not filing it at all can get your whole case dismissed with the IRS's number entered against you.

This guide walks through what the Pretrial Memorandum is, where it sits in your case, exactly why it carries that weight, and how to write every section of it without a lawyer. It is the companion to The Stipulation of Facts in Tax Court: Rule 91 Explained—two different documents, two different deadlines, both decided in the same three weeks before trial.

What the Pretrial Memorandum Is (and Is Not)

The Pretrial Memorandum is a short, structured document each party files before trial that tells the judge, in advance, what the case is about. Who the parties are. The years and dollar amounts in dispute. Whether the case is likely to settle or be tried. The issues the Court has to decide. The witnesses each side will call. A chronological summary of the facts. The party's legal authorities. Any evidentiary problems on the horizon.

It exists because the judge hearing your trial session reads it cold. The judge assigned to a trial calendar has never seen your case. The Pretrial Memorandum is how the judge learns, before the session, what your dispute is, how long it will take, whether it is likely to settle, and what to expect at trial. It is your roadmap and your legal theory, handed to the judge in advance.

It is not the stipulation of facts. The stipulation of facts, governed by Tax Court Rule 91, is a joint document in which you and the IRS agree on facts and exhibits—a conclusive admission of the things both sides accept. The Pretrial Memorandum is your document: your side's roadmap, filed separately from the IRS's. One records what is agreed; the other previews what is contested and how you intend to prove your side. The full Rule 91 walkthrough is in the Stipulation of Facts guide; this article assumes you have that document in progress alongside the memorandum.

It is also not a post-trial brief. A brief under Tax Court Rule 151 is a written legal argument filed after trial—once the judge has already heard all the evidence—explaining why the law and the facts mean you should win. The Pretrial Memorandum comes before trial and previews your position to a judge who knows nothing yet. Treating the memorandum like a brief—pages of legal argument—misses its job. Treating it like a throwaway form—one line per section—wastes the single best chance to tell the judge your story before trial.

Where It Sits in the Timeline

To understand why the memorandum matters, it helps to see where it falls in the life of a Tax Court case.

You filed your petition. The IRS filed an answer. Then comes a long quiet stretch—a case in Tax Court typically takes 6-18 months from petition to resolution, and much of that time is spent in informal discovery and stipulation talks with an IRS Chief Counsel attorney, with no court dates on the calendar. For the front half of that timeline, see What Happens After You File Your Tax Court Petition and How To Handle Discovery and Pretrial Preparation in Tax Court.

Then the Notice Setting Case for Trial and the Standing Pretrial Order arrive together. That is the signal that the quiet period is over and a sequence of hard deadlines has started. You meet and confer (a required good-faith discussion) with the IRS attorney, exchange documents, and try to stipulate—formally agree in writing—on everything you can agree on. The Pretrial Memorandum is due no later than 21 days before the first day of the trial session. Then comes calendar call—the opening day of the trial session, when the judge calls every case on the calendar to confirm its status and set trial times—and then, if the case has not resolved, trial. The downstream end of this is covered in What To Expect at Your Tax Court Trial.

Here is the part that should lower your blood pressure: most cases never reach trial. More than 99% of Tax Court cases close without a trial on the merits, and most (76%) close through a formal settlement. Filing a Pretrial Memorandum does not mean a trial is inevitable—many cases settle in the weeks after it is filed, and the memorandum's "Status of Case" box has a "Probable Settlement" option precisely because of that reality.

But you write the memorandum as if your case will be tried. You cannot know in advance whether yours is one of the cases that settles, and the cost of a thin memorandum in a case that does go to trial is severe. Prepare for trial; settle if you can.

The Standing Pretrial Order: The Source of the Obligation

The Pretrial Memorandum is not a courtesy or a suggestion. It is ordered.

The Standing Pretrial Order is authorized by Tax Court Rule 131. Rule 131(b), "Standing Pretrial Order," reads:

"In order to facilitate the orderly and efficient disposition of all cases on a trial calendar, at the direction of the trial judge, the Clerk shall include with the notice of trial a Standing Pretrial Order or other instructions for trial preparation. Unexcused failure to comply with any such order may subject a party or a party's counsel to sanctions. See, e.g., Rules 104, 123, and 202."

So the chain is straightforward: Rule 131 authorizes the Standing Pretrial Order, the Clerk sends the order with the Notice Setting Case for Trial, and the order sets the 21-day Pretrial Memorandum deadline. The judge reads the memorandum before the session and uses it to manage the calendar, set a specific trial date and time, and tell the likely-to-settle cases apart from the cases headed for trial. The order's authority is also discussed in What Happens After You File Your Tax Court Petition, which introduces it when it first arrives.

The memorandum does not stand alone in the order. The Standing Pretrial Order is a ladder of deadlines, each one preparing the case for trial:

• 60 days before the first day of the session: a Motion for Summary Judgment may be filed.
• 45 days before: motions related to discovery or stipulations should be filed. (This tracks Rule 91(f): a motion to compel stipulation must be filed "not later than 45 days before the date set for call of the case from a trial calendar.")
• 31 days before: Motion for Continuance (see Rule 133), Motion to Proceed Remotely, and any Expert Report.
• 21 days before: a Proposed Stipulated Decision, the Pretrial Memorandum, a Motion to Dismiss for Lack of Prosecution, or a Status Report.
• 14 days before: the Stipulation of Facts with all stipulated documents, and proposed trial exhibits exchanged.
• 7 days before: any supplemental stipulation and unagreed proposed trial exhibits filed with the Court.

Seeing the memorandum in that ladder is the point: it is not the only thing you owe the Court, but it is the document the judge reads to understand the whole case. The 21-day deadline is also one of four mutually exclusive things you can file at that point. If you have settled, you file a Proposed Stipulated Decision. If settlement is genuinely in progress, you file a Status Report explaining the delay. If the case "appears that a trial is necessary," you file the Pretrial Memorandum. Most pro se petitioners file the memorandum, because most do not have a signed settlement three weeks out. When in doubt, file the Pretrial Memorandum—being ready for trial is never the wrong choice. How a settlement actually gets reached and turned into a Proposed Stipulated Decision is covered in How To Settle Your Tax Court Case.

Regular case versus small case. The obligation level depends on which track your case is on. In a regular case, the Standing Pretrial Order uses mandatory language. Numbered paragraph 4 of the regular-case order states:

"If a basis for settlement has not been reached and it appears that a trial is necessary, each party must file a Pretrial Memorandum no later than 21 days before the first day of the trial session. A Pretrial Memorandum form is attached to this Order."

In a small tax case—a case where the amount in dispute is $50,000 or less per year and you elected S-case procedures—the order uses softer language. Paragraph 7 of the small-case order states:

"If a basis for settlement has not been reached and it appears that a trial is necessary, each party should file a Pretrial Memorandum no later than 21 days before the first day of the trial session. You can use the Pretrial Memorandum form attached to this Order. The Pretrial Memorandum should identify witnesses the party expects to call and provide a brief summary of the witnesses' anticipated testimony."

"Must file" versus "should file." The deadline—21 days before the first day of the session—is identical. The obligation is not. We come back to what "should" really means for S-case petitioners below, because the consequences of skipping it are the same in both tracks.

How to count the 21 days. The clock runs from the first day of the trial session, not from a specific trial date. Cases on a calendar are not necessarily tried in the order they are listed, so you must be ready from day one of the session. Find the first day of the trial session on your Notice Setting Case for Trial, count back 21 calendar days, and file on or before that date. Hypothetical: if your Notice sets the session to begin September 8, 2026, count back 21 calendar days—your Pretrial Memorandum is due on or before August 18, 2026, and filing earlier is better. File early through DAWSON—do not wait until the deadline. And read the actual order you received: the sample orders are the Court's public templates, but your assigned judge issues your order, so follow the exact dates in your packet.

The Lock-In Effect—Why This Document Decides Your Trial

This is the heart of the matter, and it is the reason the Pretrial Memorandum deserves more care than any other single filing in the pretrial phase.

There is no single sentence in the Standing Pretrial Order that says "the memorandum locks in your case." The lock-in is a combined effect—the interaction of the witness-preclusion rule, the binding-stipulation rule, the exhibit cutoff, and the Court's power to dismiss. Each piece is anchored in primary text.

Witnesses are locked in. The regular-case Standing Pretrial Order states, verbatim, in its witnesses provision:

"Witnesses must be identified in the pretrial memorandum with a brief summary of their anticipated testimony. Witnesses who are not identified will not be permitted to testify at the trial without a showing of good cause."

Read that twice. A witness you do not name in the memorandum can be barred from testifying at your trial unless you can show "good cause" for the omission. That includes a corroborating witness—a spouse, an employer, a bookkeeper, an accountant—and it can include you if you intended to testify and did not list yourself. The small-case order does not carry that standalone preclusion sentence, but the "Getting Ready for Trial Checklist" attached to both orders tells every petitioner: "Consider whether you need any witnesses to support your case. If you plan to have a witness, let the IRS know no later than 21 days before trial. Make sure the witness is available for trial at the trial session." Same expectation, both tracks.

Facts and exhibits are locked in. This runs through Rule 91 and the exhibit deadlines. Rule 91(a)(1) requires the parties to "stipulate, to the fullest extent to which complete or qualified agreement can or fairly should be reached, all matters not privileged that are relevant to the pending case." And Rule 91(e), "Binding Effect," states:

"A stipulation will be treated, to the extent of its terms, as a conclusive admission by the parties to the stipulation, unless otherwise permitted by the Court or as agreed by those parties. The Court will not permit a party to a stipulation to qualify, change, or contradict a stipulation in whole or in part, except that it may do so if justice requires."

On top of that, the regular Standing Pretrial Order warns that "the Court may refuse to receive in evidence any document or material that is not filed as a Proposed Trial Exhibit no later than 7 days before the first day of the trial session." Between the conclusive-admission rule and the 7-day exhibit cutoff, the documentary record is largely fixed before trial. The Pretrial Memorandum is where you confirm that everything you need is either in the stipulation or queued as a proposed exhibit.

The case itself can be lost for not filing. Both Standing Pretrial Orders state, in plain language, that "if you do not follow this Order, the Judge may dismiss your case and enter a Decision against you." That power comes from Rule 123, "Default and Dismissal." Rule 123(b) provides:

"For failure of a petitioner properly to prosecute or to comply with these Rules or any order of the Court or for other cause which the Court deems sufficient, the Court may dismiss a case at any time and enter a decision against the petitioner."

And Rule 123(d) makes a dismissal "other than a dismissal for lack of jurisdiction" operate "as an adjudication on the merits"—meaning it ends the case as if you had lost on the facts. IRC § 7459(d) then closes the loop: a dismissal of a deficiency petition "shall be considered as its decision that the deficiency is the amount determined by the Secretary." Translated: not filing the Pretrial Memorandum is not a paperwork slip. It can result in the IRS's entire proposed deficiency being entered against you, with no trial.

Put the pieces together and the honest framing is this: the Pretrial Memorandum is the moment your case takes its final shape. List every witness, frame every issue, and make sure your documents are in the stipulation or filed as proposed exhibits—because after this point the Court generally will not let you add what you left out, and not filing at all risks losing the whole case by dismissal.

Why does this matter so much for a self-represented taxpayer in particular? Because the stakes are not evenly distributed. The National Taxpayer Advocate's data showed pro se petitioners prevailing in full or in part about 12% of the time at trial, versus about 23% for represented petitioners. We are not claiming the memorandum explains that gap—many factors do, and most cases never reach a trial verdict at all. But it does mean the procedural traps in this document fall hardest on the people least equipped to spot them. Getting the memorandum right is one of the few places where careful preparation directly closes part of that gap.

Field-by-Field: How To Write Each Section

The Court provides a fillable Pretrial Memorandum form attached to the Standing Pretrial Order itself. You do not need to download anything—the blank form is the last pages of the Standing Pretrial Order that arrived in your packet, and that copy is already matched to your case track (the regular and small-case versions differ). You are not required to use the form, but it is the cleanest way to make sure every required element is covered, and it explicitly says it "may be expanded as necessary." Use it, and attach extra pages wherever a single line is not enough.

Here is every labeled section, in plain English, with a pro se example for each.

Name of Case / Docket No(s). Copy the case name and docket number exactly as they appear on your petition and on the Notice Setting Case for Trial—character for character. Example: John Q. Taxpayer, Petitioner v. Commissioner of Internal Revenue, Respondent; Docket No. 12345-25. The S in an S-case docket number ("12345-25S") matters; do not drop it.

Trial Calendar / Date. The city and session date from the Notice. Example: Los Angeles, California—Session beginning September 8, 2026. This is the date you count back 21 days from.

Attorneys / Parties. Your name, mailing address, phone, and email; and the IRS Chief Counsel attorney's name, phone, and email. Where the form asks for "Attorneys: Petitioner," a self-represented filer writes their own name and "Pro se." You will have the IRS attorney's contact details from the answer and your stipulation correspondence.

Amounts in Dispute. A short table: the year(s) or period(s); the deficiencies or liabilities; and any additions to tax or penalties. Take these straight off the Notice of Deficiency. Example: 2023—deficiency $8,412; accuracy-related penalty $1,682. If you concede part, say what remains in dispute.

Status of Case. Check one: Probable Settlement, Probable Trial, or Definite Trial. Be honest. If serious settlement talks are underway, "Probable Settlement" tells the judge to expect a stipulated decision. If you have a real, unresolved dispute and no agreement, "Probable Trial" or "Definite Trial" is accurate. This box is one reason the form exists—the judge triages the calendar from it.

Current Estimate of Trial Time. In hours. Most pro se deficiency cases are short—often a half day or less. The orders ask parties to jointly tell the judge "as early as possible if they expect trial to require 3 days or more," but that is rare for a self-represented case. A realistic estimate (for example, "2 hours") is fine; do not pad it.

Motions You Expect To Make. Title and a one-line description of any motion you anticipate. If you expect none, say "None anticipated." If the IRS attorney has gone silent and you may need to ask for relief, this is where you flag it. For the menu of motions and how they work, see Common Tax Court Motions.

Status of Stipulation of Facts. Check "Completed (will be filed electronically)" or "In Progress." If it is in progress, say briefly where it stands—for example, "Draft exchanged; petitioner's edits returned; expected to be finalized before the 14-day deadline." This tells the judge whether the Rule 91 process is on track.

Issues. This is the section that defines your trial—write it precisely and write it yourself. State each issue as a clean question for decision. Example: Whether petitioner is entitled to deduct $14,300 in claimed business expenses for the 2023 tax year under IRC § 162. Keep it neutral and specific. Do not adopt the IRS's framing wholesale—if the Notice of Deficiency frames the issue as "petitioner failed to substantiate," reframe it as the actual question the Court must answer, in language that does not concede the point.

Witness(es) You Expect To Call. Each witness's name and a one-to-two-sentence summary of what they will testify to. This is the preclusion trap from the section above. List everyone who might testify—including yourself, if you intend to take the stand—with a short summary for each. Many pro se cases have exactly one witness: you. If you are your only witness you still list yourself, with a one-sentence summary of what you will testify to; an unlisted petitioner can face the same preclusion problem as any other unlisted witness. Example: John Q. Taxpayer (petitioner): will testify to the nature and business purpose of the claimed expenses and the records he kept. Maria Lopez (bookkeeper): will testify to how the petitioner's receipts were recorded and reconciled. It is far better to list a witness you ultimately do not call than to omit one you end up needing and have them barred for lack of "good cause." One timing trap: if you intend to call an expert witness, the expert's written report is generally due 31 days before the session—earlier than this memorandum—and under Tax Court Rule 143(g) undisclosed expert testimony can be excluded absent good cause. If your case turns on a valuation or similar expert question, calendar that earlier date now.

Summary of Facts. A chronological narrative—dates first, no argument. This is the judge's first exposure to your story, so make it readable on its own and complete. The form invites you to "attach separate pages, if necessary, to inform the Court of facts in chronological narrative form." Take that invitation. Tell what happened, in order, without arguing why it means you win. A clean fact narrative also helps you on the burden of proof: while the petitioner generally bears the burden, IRC § 7491(a) can shift it to the IRS on a factual issue where you "introduce credible evidence," provided you substantiated items, kept required records, and cooperated with reasonable IRS requests. You cannot promise yourself that shift, but a complete, well-supported factual record is what makes it possible—so write the facts as if proving them is your job, because it is.

Brief Synopsis of Legal Authorities. Your legal position in plain English, naming your core authority—the key statute, regulation, or case. You are not expected to brief like an attorney. One clear paragraph naming the rule you rely on is enough: for example, "Petitioner contends the claimed expenses are ordinary and necessary business expenses deductible under IRC § 162, substantiated by the contemporaneous records attached as proposed exhibits." Do not overreach with a string of half-remembered case names; cite only what the research and the law actually support, and only what you can stand behind. In a small case this section carries extra weight—see the S-case section below.

Evidentiary Problems. Flag anticipated disputes about admissibility before they ambush you at trial. Common ones: a document whose authenticity the other side may question, a hearsay objection you expect, or a missing original. Rule 143 governs evidence in regular cases (the Federal Rules of Evidence apply). One point reassures a lot of pro se petitioners: Rule 143(e)(1) provides that "a copy is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original"—so the fact that you only kept copies is usually not fatal. Note any real evidentiary problem here; do not invent one.

Date and Signature. Sign and date it. An unsigned memorandum is not properly filed.

The single most common waste in this form is the one-line answer. The form is built to compress or expand. A one-sentence "Summary of Facts" or a blank "Issues" line throws away your only pre-trial chance to put your case in front of the judge. Use the attachments.

Pretrial Memorandum vs. Stipulation of Facts

Petitioners conflate these two documents constantly. They are filed days apart, they both shape the trial, and they sound similar. They are not the same thing.

The simplest way to keep them straight: the stipulation is the agreed evidentiary foundation; the memorandum is your preview of everything that is not agreed and how you intend to handle it. The full Rule 91 treatment—how to reserve objections, the 45-day motion-to-compel deadline, the binding-effect trap—is in The Stipulation of Facts in Tax Court: Rule 91 Explained. Read both documents when they arrive; they are due 21 and 14 days out, respectively, so they are negotiated in the same window.

Small Cases (Rule 174)

If your dispute is $50,000 or less per year and you elected small-case procedures, your case runs under Rule 174, and your Standing Pretrial Order says you "should file" a Pretrial Memorandum rather than "must file."

Do not read "should" as "optional." File it anyway, and here is why. The judge in a small case still reads the memorandum cold, still uses it to manage the session, and still expects to know your witnesses and issues in advance. The consequences of skipping it—an uninformed judge, surprise objections, a witness who is not allowed to testify because the IRS was never told—land the same way in an S case as in a regular case. The "Getting Ready for Trial Checklist" attached to the small-case order tells S-case petitioners to identify witnesses to the IRS no later than 21 days before trial regardless of the softer "should."

There is one feature of small cases that raises the stakes of the single trial. Rule 174(b) makes S-case trials informal—"any evidence deemed by the Court to have probative value shall be admissible"—and Rule 174(c) provides that "neither briefs nor oral arguments will be required in small tax cases unless the Court otherwise directs." Because briefs are not used, your Pretrial Memorandum's legal-authorities section may be your only written statement of your legal position the judge ever sees. And IRC § 7463 makes the decision in a small case neither appealable nor precedential. You get one trial, no appeal, and often no brief—so the one document where you frame your issues and name your authority does more work in an S case, not less. For the trade-offs in electing S-case status in the first place, see Small Case or Regular Case: Which Should You Choose?.

What Happens If You Get It Wrong

This section is concrete, not a scare. These are the real failure modes, in rough order of how often they bite.

You file late, or not at all. This is the most dangerous one. A missing Pretrial Memorandum is a failure to comply with the Standing Pretrial Order, which is grounds for dismissal "for failure properly to prosecute" under Rule 123(b). Both orders say it directly: the judge "may dismiss your case and enter a Decision against you." Under Rule 123(d) that dismissal is an adjudication on the merits, and under IRC § 7459(d) a dismissed deficiency case is treated as a decision that the deficiency is the full amount the IRS determined. The IRS's number, entered, no trial.

A surprise witness or exhibit is excluded. A witness you did not identify in the memorandum "will not be permitted to testify at the trial without a showing of good cause" (regular-case order). A document you did not file as a proposed exhibit by the 7-day cutoff may be refused. The case you wanted to put on is not the case you are allowed to put on.

An issue you did not raise is effectively abandoned. The memorandum frames the issues the Court will decide. If you let the IRS's framing stand and never state your own issue—or never raise a defense or argument at all—you can find at trial that the dispute is narrower than you thought, with no room to broaden it.

Sanctions in egregious cases. IRC § 6673(a)(1) lets the Tax Court require a taxpayer to pay a penalty of up to $25,000 for proceedings instituted or maintained primarily for delay, for frivolous or groundless positions, or for unreasonably failing to pursue administrative remedies. Also relevant: Rule 149(a) provides that "the unexcused absence of a party or a party's counsel when a case is called for trial will not be ground for delay. The case may be dismissed for failure properly to prosecute." This is not aimed at an honest pro se petitioner who files a thin memorandum—it targets tax-protester arguments and deliberate delay. But it exists, and one cautious sentence is worth saying: do not treat the trial calendar as something you can ignore.

None of this happens to a petitioner who files a complete memorandum on time, lists their witnesses, and shows up. The failure modes are avoidable, and the rest of this guide is about avoiding them.

A Practical Build Checklist

Here is an ordered way to assemble the memorandum from the materials you already have—the stipulation, your discovery, and your evidence file.

1. Pull the form. It is attached to your Standing Pretrial Order. Use that one; it is the version matched to your track (regular or small).
2. Copy the caption exactly. Case name and docket number from the petition and the Notice Setting Case for Trial. Trial city and session date from the Notice.
3. Lift the amounts from the Notice of Deficiency. Years, deficiencies, penalties. Note anything you have conceded so the disputed amount is clear.
4. Set the status honestly. Probable Settlement, Probable Trial, or Definite Trial—based on where settlement talks actually are.
5. Draft the Issues from your own analysis, not the IRS's. One clean question per issue. Neutral, specific, and framed so it does not concede the point you are contesting.
6. List every possible witness, including yourself. Name plus a one-to-two-sentence testimony summary for each. When in doubt, list them.
7. Write the Summary of Facts as a chronology. Dates first, no argument. Attach extra pages. Cross-check it against your stipulation so the two do not contradict each other.
8. State your legal position in one or two plain paragraphs. Name your core authority. Do not overreach.
9. Flag genuine evidentiary problems. Authenticity, hearsay, missing originals—only real ones.
10. Sign, date, and file early through DAWSON. Do not wait for the 21-day deadline.

If the IRS attorney will not engage—will not return calls, will not exchange documents, will not work on a stipulation—you are not stuck. The Court expects informal contact first (the Branerton expectation, covered in the Stipulation of Facts guide): send a written request to meet and confer, in writing, and keep the record. If that fails, the Standing Pretrial Order's deadline ladder gives you motion practice—a motion to compel stipulation no later than 45 days before calendar call, and other motions covered in Common Tax Court Motions. Document the IRS's non-cooperation in your memorandum's "Status of Stipulation" and "Motions" sections so the judge sees who failed to engage.

Filing and service. File through DAWSON, the Court's electronic filing system, if you are registered. Each party files its own Pretrial Memorandum—unlike the joint stipulation, this is not a shared document. If you are not registered for eFiling, both Standing Pretrial Orders require you to send the opposing party a copy of anything you file with the Court, so serve the IRS attorney with a paper copy. After filing, watch for a Status Report obligation if your case status changes, and be ready for trial from the first day of the session—the Court may set a specific date and time after the memoranda are in. What that day looks like is covered in What To Expect at Your Tax Court Trial, and getting your documents trial-ready is in How To Prepare Your Evidence for Tax Court.

Common Mistakes

The patterns that sink pro se petitioners on this document, specifically:

Adopting the IRS's framing of the issues. The Notice of Deficiency frames the dispute the IRS's way. If you copy that framing into your Issues section, you have argued the IRS's case for them. State the question the Court must decide in neutral terms that do not concede your position.

Writing "various witnesses" or leaving the witness section vague. The preclusion rule turns on whether a witness was identified. "Various witnesses" identifies no one. Name each person and summarize their testimony.

Omitting a witness you later need. This is the same trap from the other side. The cost of listing an extra witness is nearly zero. The cost of omitting a needed one is a barred witness and possibly a lost case. List broadly.

Listing facts you cannot prove. The Summary of Facts is not a wish list. State what you can support with testimony or documents already in the stipulation or queued as exhibits. A confident assertion you cannot back up hurts your credibility with the judge.

Arguing the law at length as if the memorandum were a brief. It is not a Rule 151 brief. A page of case citations in the legal-authorities section is wasted effort and can read as overreach. Name your core authority clearly and stop.

Missing the 21-day deadline. Count back from the first day of the session, not from a trial date you guessed. File early. There is no automatic extension: if you genuinely cannot meet the deadline, file a written motion with the Court before the deadline asking for more time—see Common Tax Court Motions—rather than simply filing late.

Treating the S-case "should" as "skip it." The small-case order says "should file," but the judge still reads the memorandum and the preclusion-style consequences still bite. File it.

When To Get Help

Most pro se petitioners can write a competent Pretrial Memorandum from the form and this guide. Some situations call for help, and recognizing them protects your case.

Free or low-cost help. A Low Income Taxpayer Clinic can represent you for free if your income is at or below 250% of the poverty line and the amount in dispute is $50,000 or less. Pretrial preparation—issue framing, witness identification, the memorandum itself—is squarely within LITC casework. Many clinics take cases at exactly this stage.

Calendar-call volunteer attorneys. Many trial sessions have volunteer attorneys available at calendar call who can give limited free advice to unrepresented petitioners on the day. That is a backstop, not a substitute for a memorandum filed three weeks earlier—but if you are at the session unsure of something, ask whether a calendar-call program is operating.

A paid professional. When the issue is novel or unsettled, when the dollars are large enough that the cost of representation is small next to the exposure, or when the evidentiary problems are real and complex, bring in a professional. When To Get Professional Help With Your Tax Dispute walks through that decision. The arc of the case after a decision is entered—appeal, finality, what a small-case decision means—is in What Happens After Your Tax Court Decision.

Resources

Tax Court Rules

• Tax Court Rule 91—Stipulations for Trial
• Tax Court Rule 123—Default and Dismissal
• Tax Court Rule 131—Trial Calendars (Rule 131(b) authorizes the Standing Pretrial Order)
• Tax Court Rule 143—Evidence
• Tax Court Rule 149—Failure To Appear or To Adduce Evidence
• Tax Court Rule 151—Briefs
• Tax Court Rule 174—Trial (Small Tax Cases)
• Tax Court Rules of Practice and Procedure (index)

Tax Court Guidance and Forms

• Standing Pretrial Order (regular case sample)—the Pretrial Memorandum form is the last pages
• Standing Pretrial Order for Small Tax Cases (sample)—the S-case Pretrial Memorandum form is the last pages
• DAWSON electronic filing—file your memorandum here; for help, email [email protected]
• U.S. Tax Court main site

Statutes (Cornell LII)

• IRC § 6673—Sanctions and costs awarded by courts
• IRC § 7459—Reports and decisions
• IRC § 7463—Disputes involving $50,000 or less
• IRC § 7491—Burden of proof

Related Articles

• How To Handle Discovery and Pretrial Preparation in Tax Court—the preparation the memorandum culminates
• The Stipulation of Facts in Tax Court: Rule 91 Explained—the companion 14-day document
• What Happens After You File Your Tax Court Petition—where the Standing Pretrial Order first appears
• What To Expect at Your Tax Court Trial—what happens after the memorandum is filed
• How To Prepare Your Evidence for Tax Court—getting exhibits trial-ready
• Common Tax Court Motions—the motions on the deadline ladder
• What Happens After Your Tax Court Decision—appeal and finality
• Small Case or Regular Case: Which Should You Choose?—the election behind "must" vs. "should"
• How To Find and Use a Low-Income Taxpayer Clinic—free help under 250% of the poverty line
• When To Get Professional Help With Your Tax Dispute—recognizing when this is no longer DIY

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.