The Stipulation of Facts in Tax Court: Rule 91 Explained

You filed your Tax Court petition. The IRS answered. Now an IRS Chief Counsel attorney has called or emailed asking to schedule a "stipulation conference" and sent a draft "Stipulation of Facts" to review. You're staring at numbered paragraphs that start with "Petitioner received…" and you're terrified of agreeing to something that sinks your case.

Here's what you need to know first: the stipulation of facts is the most important document in most Tax Court cases. More important than the petition. More important than anything you'll say at trial. Under Tax Court Rule 91(e), once you sign it, the facts in it are conclusively admitted. You cannot argue against them at trial. And with around 89% of petitioners representing themselves, most Tax Court stipulations are being negotiated by people who have never seen one before.

This guide walks through Rule 91 subsection by subsection with the current rule text (as amended March 20, 2023), explains how to reserve objections without refusing to stipulate, covers the Branerton doctrine, the fully-stipulated-case procedure under Rule 122, and the traps pro se petitioners fall into most often. Where procedural detail is already covered in other articles, this guide cross-links rather than repeats.

What the Stipulation Conference Actually Is

A "stipulation conference" is a negotiation between you and the IRS Chief Counsel attorney assigned to your case—usually by phone or video, sometimes in person. No judge is present. The goal is to agree on the facts and documents that will make up the written stipulation. You can (and should) insist that all proposed language be exchanged in writing. Anything discussed on a call is not binding until it's in a signed document.

If the Chief Counsel attorney tells you that refusing to sign will result in a Rule 91(f) Motion to Compel, that's accurate—it's their procedural backstop, not a threat. The right response is not to capitulate; it's to engage in good faith, agree on what's genuinely undisputed, reserve objections on the rest, and document everything in writing. The rest of this article explains exactly how.

Why the Stipulation Matters More Than You Think

The stipulation defines the factual record. Everything the judge considers at trial—every exhibit, every fact, every document—runs through this one filing. If a fact is in the stipulation, it's locked in. If a document is attached to the stipulation, it's in evidence without you having to say another word about it.

That matters because More than 99% of Tax Court cases resolve without a trial on the merits, and most (76%) close through a formal settlement. Even when cases do go to trial, the stipulation typically carries most of the factual weight—live testimony fills in the gaps the stipulation left open.

For the broader pretrial timeline, see What Happens After You File Your Tax Court Petition and How To Handle Discovery and Pretrial Preparation in Tax Court. For the mechanics of exhibit preparation, see How To Prepare Your Evidence for Tax Court.

Rule 91(a)(1): The Duty to Stipulate Is Mandatory

The rule opens with language that is broader than most pro se petitioners realize:

"The parties are required 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, regardless of whether those matters involve fact or opinion or the application of law to fact."

Three things follow from that sentence.

Stipulation is required, not voluntary. The word the rule uses is "required." You don't get to refuse to engage because you'd rather make the IRS prove everything at trial. The Tax Court expects both sides to meet, confer, and put the undisputed facts in writing.

The scope is broader than just documents. Rule 91(a)(1) covers "fact or opinion or the application of law to fact." That means you may be asked to stipulate not just that a document is authentic, but that a particular transaction occurred, or that certain expenses were paid. Read every paragraph.

Relevance and materiality are not grounds to refuse. The rule is explicit:

"If the truth or authenticity of facts or evidence claimed to be relevant by one party is not disputed, an objection on the ground of materiality or relevance may be noted by any other party but is not to be regarded as just cause for refusal to stipulate."

Translation: you cannot refuse to stipulate a true fact because you think it's irrelevant. You stipulate the fact and reserve the relevance objection inside the stipulation itself. The mechanism for doing this lives in Rule 91(d)—covered below.

You also cannot refuse to stipulate on the theory that the IRS "should have to prove it." Burden of proof is a trial concept. Rule 91 operates before trial, and it treats every undisputed matter—burden of proof aside—as something the parties must agree to in writing.

Rule 91(a)(2): Discovery Feeds the Stipulation

Rule 91(a)(2) closes an important loophole:

"The fact that any matter may have been obtained through discovery or requests for admission or through any other authorized procedure is not grounds for omitting the matter from the stipulation. Such procedures should be regarded as aids to stipulation."

In practice, this means two things.

What you learn through discovery belongs in the stipulation. If the IRS produces documents in response to your Rule 72 request, and those documents establish facts that aren't really in dispute, those facts go into the stipulation. Discovery is a tool to find the truth; the stipulation is where the undisputed truth ends up in the record.

Rule 90 admissions are self-executing. Under Rule 90(f), a matter admitted in a request for admission is "conclusively established" for the case. Rule 91(a)(2) confirms that even if the parties forget to copy a Rule 90 admission into the stipulation, the Court can still consider it. You don't lose an admission by omission.

Rule 91(b): Form—What the Document Must Look Like

Rule 91(b) sets the structural requirements. A Rule 91 stipulation must be:

• In writing. Oral agreements on the courthouse steps are not Rule 91 stipulations.
• Signed by the parties or their counsel.
• Compliant with Rule 23 (form and style of papers).
• Organized in separate paragraphs, each appropriately lettered or numbered.
• Clear and concise.

Exhibits attached to the stipulation are numbered serially with a party designator:

• 1-P, 2-P, 3-P—exhibits offered by the Petitioner
• 1-R, 2-R, 3-R—exhibits offered by the Respondent (the IRS)
• 1-J, 2-J, 3-J—Joint exhibits that both parties offer

For paper filings in open court, Rule 91(b) requires a duplicate original plus one set of exhibits. For electronic filing through DAWSON, the standard single transmission applies.

Rule 23 itself sets formatting details you may not have thought about:

• Paper size: 8½ × 11, side margins of at least 1 inch, top and bottom margins of at least ¾ inch.
• Typeface: 14-point Times New Roman or Century Schoolbook (proportional), 12-point Courier (nonproportional), or typewriter at 12 characters per inch.
• Spacing: double-spaced text; quotations over five lines set off and indented; quotations and footnotes single-spaced.
• Caption: full names, no titles ("Mr.", "Ms.", "Dr." are out); estate or trust name precedes the fiduciary ("Estate of Mary Doe, Deceased, Richard Roe, Executor").
• Signature block: name, mailing address, email, telephone, and Tax Court bar number (if any) typed or printed below each signature; date of signature on every paper.
• Case names italicized or underscored.

Rule 91(c): Filing—When the Document Has to Be In

The rule itself sets a backstop deadline:

"Executed stipulations prepared pursuant to this Rule, and related exhibits, must be filed by the parties at or before commencement of the trial of the case, unless the Court orders otherwise. A stipulation that has been filed need not be offered formally to be considered in evidence."

Two takeaways.

The rule's baseline is "at or before commencement of trial." The practical deadline practitioners actually face—14 days before the first day of the trial session—comes from the Court's Standing Pretrial Order, not from Rule 91 itself. This distinction matters because the Standing Pretrial Order is an order in your specific case, and you should read it when it arrives with your Notice of Trial. (More on Rule-based vs. Order-based deadlines below.)

No formal offer needed. Once the stipulation is filed, it and its exhibits are automatically in evidence. A pro se petitioner does not need to stand up at trial and say "I offer Exhibit 1-J into evidence." That exhibit is already in. Save the formal offer language for exhibits introduced live at trial that were not part of the stipulation.

Rule 91(d): How To Reserve Objections Without Refusing To Stipulate

This is the subsection pro se petitioners most often get wrong. The rule text is one sentence:

"Any objection to all or any part of a stipulation should be noted in the stipulation, but the Court will consider any objection to a stipulated matter made at the commencement of the trial or for good cause shown made during the trial."

Paired with Rule 91(a)(1)'s rule that relevance is not just cause for refusal, this gives you a safety valve. You can stipulate a fact while preserving your right to object to it on relevance or materiality grounds. The preferred mechanism is to write the objection directly into the stipulation—either in a preamble at the top, or in a note at the end of the specific paragraph.

The IRM Model Preamble

The IRS's own manual (IRM 35.4.7) gives Chief Counsel attorneys a model preamble for reserving objections. You can use the same pattern:

"It is hereby stipulated that for the purposes of this case the following statements may be accepted as facts and all exhibits referred to herein and attached hereto may be accepted as authentic, and are incorporated in this stipulation and made a part hereof; provided, however, that either party has the right to object to the admission of any such facts and exhibits in evidence on the grounds of relevancy and materiality, but not on other grounds unless expressly reserved herein, and provided, further, that either party may introduce other and further evidence not inconsistent with the facts herein stipulated."

That language does three things. It confirms the facts for the case. It reserves relevance and materiality objections for both sides—and crucially, notes that other objection grounds (hearsay, authentication, best-evidence) are waived unless you expressly reserve them in the stipulation itself. And it makes clear that the stipulation does not limit what additional evidence either side may introduce at trial.

If you want to reserve a ground beyond relevance and materiality—hearsay is the most common—add it explicitly. For example: "Petitioner reserves all objections on grounds of hearsay as to paragraphs 4, 7, and 9, and Exhibits 6-R and 7-R."

Authenticity vs. Truth vs. Relevance

The practical pattern for pro se petitioners works like this:

• Authenticity of a document is almost always stipulable. "Exhibit 3-J is a true and correct copy of the Notice of Deficiency dated March 4, 2025" is a fact, regardless of what the notice says.
• Truth of contents is different. If the notice asserts you had $50,000 of unreported income, stipulating authenticity does not stipulate that the assertion is correct. Agree to what the document is; do not agree to what it says, if you dispute what it says.
• Interpretation and legal effect generally do not belong in the stipulation when disputed.
• Relevance and materiality ride along in the preamble and can be asserted again at commencement of trial.

Hearsay is trickier. You generally cannot refuse to stipulate a fact just because the source document contains hearsay—the inquiry is whether the fact itself is disputed. If the stipulation paragraph itself is a pure out-of-court statement offered for its truth, consider narrowing the language rather than refusing outright. If unsure, ask a Low Income Taxpayer Clinic to review before you sign.

Rule 91(e): Binding Effect—Why You Cannot Take It Back

Rule 91(e) is the reason to read every paragraph carefully before you sign. The full text:

"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. A stipulation and the admissions therein are binding and have effect only in the pending case and not for any other purpose, and cannot be used against any of the parties thereto in any other case or proceeding."

Three takeaways.

"Conclusive admission" means conclusive. Once you stipulate a fact, you cannot contest it at trial. If you stipulate that a deposit of $50,000 hit your bank account on a particular date, you cannot stand up at trial and say that never happened. That is the cost of the stipulation process and the reason the Court puts so much weight on what's in it.

Relief is narrow. The only escape is "if justice requires," and courts apply that standard sparingly. Fraud, clear mistake, or fundamental misunderstanding might qualify. Buyer's remorse does not. Read before you sign.

Binding only in the pending case. A stipulation cannot be used against you in a later case—a subsequent tax year, a state tax matter, a bankruptcy proceeding. This is protection, not a loophole. It means you should not feel that agreeing to a fact in your 2022 Tax Court case somehow locks you into the same position for 2023 or for a state return.

For the related "Stipulation of Settled Issues" used when part of your case settles before trial, see How To Settle Your Tax Court Case.

Rule 91(f): When the Other Side Refuses—Motion To Compel

Rule 91(f) is the procedural lever the Court gives a party whose opponent will not engage. It has four paragraphs. For a broader tour of Tax Court motions, see Common Tax Court Motions.

(f)(1) Motion To Compel Stipulation

A Motion to Compel Stipulation can be filed after the Notice of Trial is served and no later than 45 days before the date set for call of the case from a trial calendar. That 45-day deadline is written into Rule 91(f)(1) itself—it is Rule-based, not Order-based.

The motion is triggered by either (a) refusal or failure to confer on entering a stipulation, or (b) refusal or failure to stipulate any matter within Rule 91.

The rule requires the motion to contain four elements:

1. Identify with particularity, by separately numbered paragraphs, each matter claimed for stipulation.
2. Set forth in express language the specific stipulation proposed, and annex or make available each document for which a stipulation is desired.
3. Set forth the sources, reasons, and basis for claiming each matter should be stipulated.
4. Show that the opposing party has had reasonable access to the sources and has been informed of the reasons.

(f)(2) Procedure—The 20-Day Response

When a Rule 91(f) motion is filed, the Court issues an order to show cause. The rule sets the response deadline:

"Within 20 days of the service of the order to show cause, the party to whom the order is directed must file a response with the Court."

That 20-day clock is Rule-based. Your response must:

• List each matter on which there is no dispute, referring to the numbered paragraphs in the motion.
• For matters disputed only in part, show which part is admitted and which is disputed.
• If you are willing to stipulate with a variance or qualification, set out that variance and the admission you will make.
• Where there is a genuine dispute, show the sources, reasons, and basis for your position.

The Court may also set the order to show cause for hearing at any time.

(f)(3) Failure of Response—Matters Deemed Stipulated

The teeth of Rule 91(f) live here:

"If no response is filed within the period specified with respect to any matter or portion thereof, or if the response is evasive or not fairly directed to the proposed stipulation or portion thereof, that matter or portion thereof will be deemed stipulated for purposes of the pending case, and an order will be issued accordingly."

The consequence is exactly what you might guess. If you ignore the order to show cause or give a non-responsive answer, the facts in the motion are deemed stipulated against you. Same legal effect as if you had signed the stipulation yourself.

(f)(4) Matters Considered—The "Patently Incredible" Standard

Rule 91(f) is not a back-door summary judgment. The rule limits what the Court will decide in a stipulation dispute:

"Opposing claims of evidence will not be weighed under this Rule unless the evidence is patently incredible. Nor will a genuinely controverted or doubtful issue of fact be determined in advance of trial. The Court will determine whether a genuine dispute exists or whether in the interest of justice a matter ought not be deemed stipulated."

For a pro se petitioner, this is the most useful sentence in all of Rule 91. If the IRS tries to use a Motion to Compel Stipulation to force you to agree to something genuinely in dispute—the fair market value of a donated easement, whether an expense was ordinary and necessary, whether a particular deposit was a loan or income—the Court will not short-circuit that dispute through Rule 91(f). Only "patently incredible" evidence gets stripped out. Your real dispute goes to trial.

The Branerton Doctrine: Talk Before You File

Before you send a formal discovery request or a Motion to Compel Stipulation, the Court expects you to have tried to work it out informally. That expectation is the Branerton doctrine.

The Case

Branerton Corp. v. Commissioner, 61 T.C. 691 (1974) (Docket Nos. 5040-73 and 5042-73). More than 30 days after joinder of issue but before any informal consultation, petitioner's counsel served written interrogatories on the IRS. The IRS moved for a protective order. The Tax Court granted it, directing the parties to attempt to attain the objectives of discovery through informal communication first. The Court wrote:

"For many years the bedrock of Tax Court practice has been the stipulation process, now embodied in Rule 91. Essential to that process is the voluntary exchange of necessary facts, documents, and other data between the parties as an aid to the more expeditious trial of cases as well as for settlement purposes."

Where It Lives Now

Branerton is codified in the second sentence of Rule 70(a)(1):

"However, the Court expects the parties to attempt to attain the objectives of discovery through informal consultation or communication before utilizing the discovery procedures provided in these Rules."

The Tax Court reaffirmed Branerton in Schneider Interests, LP v. Commissioner, 119 T.C. 151 (2002), holding that service of formal discovery is inconsistent with Rule 70(a)(1).

In practice, the IRS typically opens the conversation with a Branerton letter—a written informal request for documents and information—rather than a formal interrogatory under Rule 71. You should do the same. Pick up the phone or send an email before you serve formal discovery or file a Rule 91(f) motion. Branerton and Rule 91 are two sides of the same coin: the Court wants parties talking (Rule 70(a)(1)) and the output written down (Rule 91).

Rule 122: Submitting a Case Without Trial

Rule 91 sometimes does so much work that a trial isn't necessary at all. That is what Rule 122 is for. The rule text:

"(a) General: Any case not requiring a trial for the submission of evidence (as, for example, where sufficient facts have been admitted, stipulated, established by deposition, or included in the record in some other way) may be submitted at any time after joinder of issue (see Rule 38) by motion of the parties filed with the Court. The parties need not wait for the case to be calendared for trial and need not appear in Court.

(b) Burden of Proof: The fact of submission of a case, under paragraph (a) of this Rule, does not alter the burden of proof, or the requirements otherwise applicable with respect to adducing proof, or the effect of failure of proof."

When Rule 122 Fits

Rule 122 is the "fully stipulated case" procedure. If every relevant fact can be stipulated or is already established by admissions, depositions, or the record, the parties can submit the case on the stipulation alone and skip trial. Cases that typically fit:

• Purely legal disputes. Both sides agree what happened; they disagree on how the law applies (statute of limitations, whether a deduction is allowable in principle, a constitutional challenge).
• Declaratory judgment cases. Routinely submitted on Rule 122.
• Cases where travel to a trial session would be burdensome and the evidence is all documentary.

Rule 122 submission requires a motion "of the parties"—meaning both parties. The Court will not force one party into a paper-only submission if the other insists on trial.

The Rule 122(b) Burden-of-Proof Trap

Rule 122(b) says submission does not alter your burden of proof. If you have the burden (and on most deductions, credits, and unreported income, you do), you still have to put evidence in the record to carry it. The stipulation is your only chance. If it doesn't contain evidence supporting your position—documents, admissions, properly established facts—you lose. There is no trial where you can fill the gap with live testimony.

A traditional trial is usually safer than a Rule 122 submission for a pro se petitioner. Trial lets you testify, introduce late-discovered documents, and adjust on the fly. Rule 122 locks everything in on paper. Before agreeing to a Rule 122 submission, confirm that every piece of evidence you would have put on at trial is already in writing.

For the comparison between Tax Court and other federal forums, see Tax Court vs. District Court vs. Court of Federal Claims.

Rule-Based vs. Standing Pretrial Order Deadlines

Two sets of deadlines govern the stipulation process. They come from different documents, and missing that distinction causes confusion.

Rule-based deadlines are written into the Tax Court Rules themselves. They apply in every case.

Order-based deadlines come from the Standing Pretrial Order that arrives with your Notice of Trial. They apply only in your specific case.

The 14-day stipulation deadline that practitioners talk about constantly is not in Rule 91. It is in the Standing Pretrial Order in your case. Read both documents.

The Standing Pretrial Order also has teeth for lack of cooperation. The regular-case order (paragraph 5.A) states:

"All facts and documents must be stipulated (agreed upon in writing) to the maximum extent possible. If a complete stipulation of facts is not ready for submission no later than 14 days before the first day of the trial session, or when otherwise ordered by the Court, and if the Court determines that this is due to lack of cooperation by either party, the Court may order sanctions against the uncooperative party."

And paragraph 4.C:

"If a party has been unresponsive and has failed to cooperate in preparing the case for trial or resolution or to participate in preparing a Stipulation of Facts, the opposing party should file a Motion to Dismiss for Lack of Prosecution no later than 21 days before the first day of the trial session."

Two consequences. Sanctions for lack of cooperation on the 14-day stipulation. Motion to Dismiss for Lack of Prosecution—which, if granted, ends your case without a decision on the merits.

IRC § 6673 Sanctions: The $25,000 Lever

The Court's financial sanction against bad-faith litigation is IRC § 6673. In its decision, the Tax Court may require the taxpayer to pay a penalty not in excess of $25,000 when:

• (A) proceedings have been instituted or maintained "primarily for delay";
• (B) the taxpayer's position "is frivolous or groundless"; or
• (C) the taxpayer "unreasonably failed to pursue available administrative remedies."

IRC § 6673(a)(2) separately allows the Court to require an attorney who "unreasonably and vexatiously" multiplies proceedings to pay excess costs, expenses, and reasonable attorney's fees. This applies to counsel on both sides—including IRS counsel.

When It Connects to the Stipulation Process

IRC § 6673 is the Court's lever against a party who:

• Refuses to stipulate obvious facts just to stall the case.
• Takes a frivolous position in opposing stipulation.
• Skips informal consultation and administrative remedies entirely.

In practice, § 6673 sanctions against pro se petitioners get imposed in flagrant cases—tax-protester arguments, repeated frivolous filings, refusal to engage in any part of the pretrial process. An ordinary pro se petitioner who genuinely disputes a fact and refuses to stipulate it is not the target. The target is the petitioner who takes the position that wages aren't income, or who won't return the IRS's calls, or who files four motions a month to delay trial.

Small Cases (Rule 174): Rule 91 Still Applies

If your disputed amount is $50,000 or less per year, you may have elected small case (S case) procedures under Rule 174. For the trade-offs in that election, see Small Case or Regular Case: Which Should You Choose?.

Rule 174 relaxes the evidence rules:

"(b) Conduct of Trial and Evidence: Trials of small tax cases will be conducted as informally as possible consistent with orderly procedure, and any evidence deemed by the Court to have probative value shall be admissible."

What Rule 174 does not do: exempt S cases from Rule 91. The small-case Standing Pretrial Order still requires a Stipulation of Facts 14 days before trial. The 45-day Rule 91(f) deadline still applies. Sanctions for lack of cooperation still apply.

The main differences in S cases:

• The Pretrial Memorandum is "should file" rather than "must file" in the S-case Standing Pretrial Order.
• Briefs are optional under Rule 174(c)—cutting against using Rule 122 in an S case, since the point of Rule 122 is to submit on briefs.
• The evidentiary gate at trial is lower, so a less-polished stipulation is less fatal.

A well-prepared stipulation still helps in an S case. It narrows the judge's attention to what actually matters, saves trial time, and puts your exhibits in evidence without fuss.

Sample Stipulation Structure

You will not usually draft the stipulation—the IRS attorney prepares a draft and sends it to you. But you should know what a Rule 91-compliant stipulation looks like so you can spot mistakes and push back on errors. The skeleton:

1. Caption. Case name ("John Q. Taxpayer, Petitioner v. Commissioner of Internal Revenue, Respondent"), docket number, Tax Court header—all per Rule 23.
2. Title. "STIPULATION OF FACTS" (or "FIRST STIPULATION OF FACTS" if more than one is anticipated; "SUPPLEMENTAL STIPULATION OF FACTS" for the 7-day supplement required by the Standing Pretrial Order).
3. Preamble. The objection-reservation language from IRM 35.4.7 (or equivalent) goes here.
4. Numbered paragraphs. Each stipulated fact on its own numbered line. Example: "1. Petitioner is an individual whose legal residence was in Suffolk County, New York at the time the petition was filed. 2. Attached as Exhibit 3-J is a true and correct copy of the Notice of Deficiency dated March 4, 2025."
5. Exhibit block. A list of the exhibits with the party designator (1-P / 2-R / 3-J).
6. Signature block. Date, signature of each party or counsel, name, address, email, telephone, and Tax Court bar number (for counsel).
7. Certificate of Service (for paper filings if the filer is not on DAWSON; DAWSON service is automatic for e-filed documents).
8. Exhibits attached. Labeled with their exhibit number. Pages numbered or Bates-stamped.

Read every numbered paragraph before you sign. Read every exhibit. If a paragraph contains an assertion you disagree with, say so—either strike the language, propose a substitute, or note the objection in the preamble or at the end of the paragraph.

Safe vs. Dangerous Paragraphs: Examples

Four examples of what Chief Counsel may propose and how to handle each:

Words to flag on a scan: admitted, acknowledged, received, owed, failed to, willfully, negligently, knowingly, lacked, improperly, unsubstantiated. These are red-pen words. They may still be correct in context, but they deserve a second look before you sign.

You can also propose your own paragraphs and your own exhibits—marked 1-P, 2-P, and so on. If a document helps your case, getting it into evidence through the stipulation is cleaner than offering it at trial and arguing over admissibility. Draft your paragraphs in the same neutral, factual style and send them to Chief Counsel for inclusion.

Pro Se Traps To Avoid

Seven mistakes pro se petitioners make most often:

1. Stipulating to legal conclusions disguised as facts. "Petitioner received unreported income of $50,000" looks like a fact. It isn't—it's a characterization and amount, both of which may be in dispute. The neutral version is: "The IRS issued a Notice of Deficiency determining that Petitioner had additional taxable income of $50,000 for the 2023 tax year." That is a fact about what the IRS did. Whether the IRS was right is what you are in Tax Court to contest.

2. Refusing to stipulate the authenticity of obvious documents. The Notice of Deficiency and your filed tax return are real documents. Refusing to stipulate authenticity wastes trial time and signals bad faith. Stipulate authenticity; reserve relevance in the preamble.

3. Not reserving relevance objections in the preamble. Without the IRM-style preamble, you may have waived relevance objections to the exhibits attached. Add the preamble or insist the IRS attorney include theirs.

4. Missing the 14-day Standing Pretrial Order deadline. The 14-day deadline for filing the Stipulation of Facts is not in Rule 91—it's in the Standing Pretrial Order. Read that order when you receive it with your Notice of Trial.

5. Treating Rule 122 as an easy way out. Rule 122(b) preserves your burden of proof. If you have the burden and your stipulation does not contain evidence supporting your position, you lose on paper with no chance to recover.

6. Ignoring the order to show cause on a Rule 91(f) motion. You have 20 days under Rule 91(f)(2). Ignoring it or filing a non-responsive answer means the facts are deemed stipulated against you.

7. Confusing the stipulation with the pretrial memorandum. The stipulation is the evidentiary foundation—facts and exhibits. The pretrial memorandum is where you outline your legal theory, identify witnesses, and frame the issues for the judge. Different documents, different deadlines, both matter.

What To Do If You Receive a Draft Stipulation

A short checklist for when an IRS Chief Counsel attorney sends you a draft Stipulation of Facts.

• Don't agree to anything on the phone. Verbal statements are not binding until they're in a signed written stipulation. If Chief Counsel calls, say you'll respond in writing after you've reviewed the draft.
• Read every paragraph twice and question each assertion on the second pass. Scan for the red-pen words listed above.
• Mark each paragraph as agree, agree-with-modification, or disagree. The mechanics don't matter—Word track changes, PDF comments, or a reply email with "Proposed substitute for paragraph 7: …" all work. What matters is that your changes are legible and attributable.
• Insist on the objection-reservation preamble. If the draft doesn't have one, propose the IRM 35.4.7 language. Explicitly reserve hearsay or other grounds you want to preserve.
• Propose your own facts and exhibits (1-P, 2-P, etc.) that support your position. The stipulation is a two-way document.
• Send your markup back in writing. Email or letter, not a phone call. This creates a record that you engaged in good faith under Branerton.
• Keep a copy of every draft and every email in case a dispute arises later about what was agreed.
• Watch the 14-day Standing Pretrial Order deadline. Leave time to negotiate, revise, and file.
• Get help if you can. Stipulation negotiation is exactly what a Low Income Taxpayer Clinic can help with, at no cost if you qualify (generally income at 250% of the poverty line and a dispute of $50,000 or less). See When To Get Professional Help With Your Tax Dispute if your situation is complex enough to justify paid representation.

Resources

• Tax Court Rule 91—Stipulations for Trial (amended March 20, 2023)
• Tax Court Rule 70—Discovery general provisions, including the Branerton codification
• Tax Court Rule 23—Form and style of papers
• Tax Court Rule 122—Submission without trial
• Tax Court Rule 174—Small tax case procedures
• Standing Pretrial Order (regular case)—14-day stipulation deadline lives here
• IRC § 6673—Sanctions for frivolous or delay tactics
• IRM 35.4.7—IRS Chief Counsel manual on stipulating facts and documents, including the model preamble
• Branerton Corp. v. Commissioner, 61 T.C. 691 (1974)—informal consultation doctrine

Related articles on this site:

• How To Handle Discovery and Pretrial Preparation in Tax Court
• How To Prepare Your Evidence for Tax Court
• Common Tax Court Motions
• How To Settle Your Tax Court Case
• What Happens After You File Your Tax Court Petition
• What To Expect at Your Tax Court Trial
• How To File Your Tax Court Petition
• Small Case or Regular Case: Which Should You Choose?
• Tax Court vs. District Court vs. Court of Federal Claims
• How To Find and Use a Low Income Taxpayer Clinic

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.