Table of Contents
- How to Prepare for a Tax Court Case When the IRS Will Not Concede
- Why “The IRS Will Not Concede” Changes The Case
- Step 1: Re-Center The Case Around The Actual Issues
- Step 2: Confirm The Procedural Posture And Deadlines
- Step 3: Build The Evidence File Like A Trial Lawyer Would
- Step 4: Expect Stipulations To Matter More Than You Think
- Step 5: Prepare For Informal Discovery Before Formal Discovery
- Step 6: Think Carefully About Witnesses, Not Just Documents
- Step 7: Do A Serious Burden-Of-Proof Review
- Step 8: Prepare For Calendar Call As A Real Event
- Step 9: Treat Settlement As An Ongoing Process, Not A One-Time Failure
- Step 10: Understand The Risk Of Default, Dismissal, And Procedural Missteps
- Step 11: If You Are Unrepresented, Explore Clinic And Pro Bono Options Early
- What Experienced Tax Court Preparation Often Looks Like
- A Final Word On Strategy When The IRS Will Not Concede
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How to Prepare for a Tax Court Case When the IRS Will Not Concede
If the IRS is not backing down, Tax Court can start to feel less like a paperwork dispute and more like real litigation. That shift matters. A case that looked negotiable a few months ago may suddenly revolve around evidence, witnesses, deadlines, stipulations, and trial preparation.
For many taxpayers, that is the moment when the stakes become clear: the IRS is not conceding, Appeals did not fully resolve the dispute, and the case is moving closer to calendar call or trial. In general terms, that is also the point where preparation often becomes the difference between a manageable case and a chaotic one.
In this post you’ll learn how Tax Court cases typically progress when the government holds its position, what preparation often matters most, where self-represented taxpayers run into trouble, and how an attorney with documented experience in highly similar matters may help evaluate strategy, evidence, and settlement posture. If you want a foundation on the process itself, this overview of how Tax Court works before you pay the disputed tax provides useful background.
Scroll to the bottom for every post in this series.
Why “The IRS Will Not Concede” Changes The Case
A lot of Tax Court cases still settle. In fact, the National Taxpayer Advocate reported that 75.8% of Tax Court cases closed by settlement in FY 2024, while only 0.8% were tried and 23.4% ended in dismissal or default. The same report noted that about 89% of taxpayers petitioning the Tax Court appeared pro se, meaning without counsel. Those numbers say two important things at once: most cases resolve without a full trial, and unrepresented taxpayers are very common in the system (Taxpayer Advocate Service Annual Report to Congress).
When the IRS “will not concede,” it often means one of several things:
- the government believes the facts are not fully developed;
- the IRS thinks the law favors its position;
- penalties are still in dispute;
- the taxpayer has not produced records in a form that is easy to use;
- settlement discussions have narrowed, but not resolved, the issues.
Here’s what this often means in practice: the case becomes less about arguing in broad terms and more about proving specific facts in an admissible, organized way.
Step 1: Re-Center The Case Around The Actual Issues
As trial gets closer, broad frustration with the IRS tends to matter less than issue-by-issue analysis. Tax Court cases are won, lost, narrowed, or settled based on defined disputes: unreported income, substantiation, worker classification, basis, passive loss limitations, innocent spouse issues, valuation, penalties, or something else entirely.
A useful early question is not “Why is the IRS being unreasonable?” but “What exactly remains disputed?”
The Tax Court’s sample pretrial memorandum asks parties to identify the amounts in dispute, status of the case, expected motions, status of stipulations, issues, witnesses, summary of facts, legal authorities, and evidentiary problems (U.S. Tax Court sample pretrial memorandum). That tells you what the Court expects parties to be ready to discuss.
Some taxpayers benefit from reducing the case to a chart with columns like:
- issue;
- tax year;
- dollar amount;
- IRS position;
- taxpayer position;
- proof available;
- proof missing;
- witness needed;
- legal authority.
That kind of organization may sound simple, but it often exposes the real pressure points. Sometimes the problem is not the law at all. It is the documents. Sometimes it is not the deficiency, but the penalty approval issue, reasonable cause record, or credibility of testimony.
Step 2: Confirm The Procedural Posture And Deadlines
Preparation gets easier once the posture of the case is clear. Is this a small tax case or regular case? Has the answer been filed? Has the case gone to Appeals and come back? Has a trial notice been issued? Is a standing pretrial order in place?
The filing deadline that gets taxpayers into Tax Court is famously strict. The Taxpayer Advocate Service explains that a petition challenging a notice of deficiency generally must be filed within 90 days of mailing, or 150 days in certain foreign-address or out-of-country situations (Taxpayer Advocate Service). But after the petition is filed, a different set of deadlines starts to matter: discovery timing, exchange of records, pretrial filings, and trial session obligations.
The IRS Internal Revenue Manual states that in regular cases, trial notices generally issue at least five months before the scheduled trial session, while in small tax cases, trial notices generally issue at least two months before trial (IRS IRM 35.4.1 Trial Planning). That timeline often gives taxpayers more runway than they expect, but it also creates a false sense of security. A case can feel dormant for months and then accelerate quickly.
Step 3: Build The Evidence File Like A Trial Lawyer Would
When the IRS will not concede, evidence usually becomes the center of gravity.
The Tax Court’s rules and guidance make clear that litigation is not just about telling your story. It is about presenting facts in a form the Court can use. The IRS’s own trial planning guidance says proper trial preparation requires a clear understanding of the issues, the gathering of evidence, and the organization of the evidence as it relates to the issues (IRS IRM 35.4.1).
In practical terms, that often means organizing records into categories such as:
- income records;
- bank statements;
- invoices and receipts;
- mileage logs;
- payroll and contractor records;
- emails and texts;
- accounting files;
- prior returns and amended returns;
- appraisals or expert materials;
- medical or hardship records if penalties or timing are involved.
Just having documents is rarely enough. The more important question is whether the documents are usable. Can someone unfamiliar with the case understand what each exhibit proves? Does each record map to a disputed issue? Are dates and amounts consistent across records?
A common Tax Court problem is volume without structure. Boxes of receipts, unsorted PDFs, screenshots without context, and bank records without tracing often do not move the case very far. Many attorneys spend significant time turning raw records into a provable chronology.
Step 4: Expect Stipulations To Matter More Than You Think
Tax Court litigation involves a strong expectation that parties will stipulate facts and documents that are not genuinely disputed. Under Rule 91, matters relevant to the case are expected to be set forth comprehensively in a written stipulation, and executed stipulations generally must be filed at or before the start of trial unless the Court orders otherwise (U.S. Tax Court Rule 91).
That often surprises taxpayers. Many people imagine trial preparation as “saving it all for court.” Tax Court procedure tends to move in the opposite direction. The parties are expected to narrow the disputes before trial.
Here’s what this often means:
- undisputed bank records may be stipulated;
- authenticity of business records may be stipulated;
- basic timeline facts may be stipulated;
- calculations may be partially stipulated even when legal conclusions remain disputed.
This matters because failure to cooperate in stipulating facts can create credibility and procedural problems. It can also make trial longer, more expensive, and less predictable.
For taxpayers, the practical takeaway is straightforward: if a fact is not honestly in dispute, treating it as disputed anyway often does not help.
Step 5: Prepare For Informal Discovery Before Formal Discovery
Tax Court discovery has its own rhythm. According to an IRS litigation deskbook, Tax Court Rule 70(a) requires counsel to use informal communications before serving formal discovery, and a “Branerton” letter is often used to request an informal conference and documents before interrogatories or document requests begin (IRS Deskbook).
That means a taxpayer may receive requests that look less formal than court-issued discovery, but still matter a great deal. Ignoring them can push the case toward harder-edged litigation.
If the IRS attorney is asking for categories of documents, explanations, or an informal conference, that phase is often a signal that trial preparation is already underway on the government side. A taxpayer who responds late, partially, or disorganized may unintentionally strengthen the IRS position that the case is not ready for concession.
An attorney with relevant experience in tax litigation may help decide what to provide, how to frame it, and how to preserve positions without turning every exchange into a fight.
Step 6: Think Carefully About Witnesses, Not Just Documents
Some cases are mostly documentary. Others turn heavily on testimony.
The Tax Court’s pretrial materials specifically ask parties to identify the witnesses they expect to call and provide a short summary of expected testimony (U.S. Tax Court sample pretrial memorandum). That is a reminder that witness planning is not an afterthought.
Potential witnesses might include:
- the taxpayer;
- spouse or former spouse;
- bookkeeper;
- return preparer;
- office manager;
- contractor or employee;
- valuation expert;
- medical provider;
- third-party payer or customer.
Witness preparation is often less about rehearsing polished language and more about identifying what facts each person can genuinely establish. If a witness does not have first-hand knowledge, their testimony may have limited value. If a witness is inconsistent with the records, that can become its own problem.
Tax judges evaluate credibility all the time. So do IRS counsel and Appeals officers. A case with strong documents and weak testimony may settle differently than a case with thin records but a very credible factual narrative.
Step 7: Do A Serious Burden-Of-Proof Review
Not every disputed issue works the same way. In some situations, the taxpayer carries the burden of proof. In others, burden issues can shift or become more nuanced depending on substantiation, production of evidence, penalties, or statutory requirements.
For example, the IRS’s trial planning guidance specifically tells field attorneys to ensure penalties complied with Internal Revenue Code section 6751(b)(1), the supervisory approval requirement for many penalties (IRS IRM 35.4.1). Penalty issues can therefore become distinct from the underlying tax issue.
A strong trial-prep review often separates:
- the tax adjustment itself;
- the legal basis for the adjustment;
- the factual proof supporting it;
- the penalty claim;
- the IRS’s proof obligations on penalties;
- any reasonable cause or good-faith defenses.
That issue-splitting exercise can materially affect leverage. Sometimes the deficiency issue is difficult, but the penalty issue is more negotiable. Sometimes the reverse is true.
Step 8: Prepare For Calendar Call As A Real Event
The Tax Court explains that on the first morning of the trial session, the clerk calls each unsettled case at calendar call. The judge may ask questions about the status of the case, and after calendar call the Court schedules cases for trial at specific times during the session (U.S. Tax Court guidance for petitioners).
That is not a ceremonial step. It is part status conference, part pressure point, and part logistics checkpoint.
By calendar call, taxpayers often benefit from being ready to discuss:
- what issues remain;
- whether settlement discussions are active;
- what has been stipulated;
- what records are exchanged;
- expected witnesses;
- trial length;
- any pending motions or evidentiary problems.
The IRS manual also notes that counsel may be expected to explain the issues, expected trial time, and the extent to which the facts have been stipulated or why they have not been stipulated (IRS IRM 35.6.1 Calendar Calls).
In other words, by the time you reach calendar call, the Court generally expects the parties to know what the case is really about.
Step 9: Treat Settlement As An Ongoing Process, Not A One-Time Failure
One of the biggest mistakes taxpayers make is assuming that a failed settlement conversation means settlement is over.
The National Taxpayer Advocate describes the normal flow this way: after a petition is filed, Chief Counsel files an answer, the case is generally referred to Appeals for settlement consideration, and if Appeals does not resolve it, the case returns to Chief Counsel, which may also settle the case (Taxpayer Advocate Service Annual Report). The IRS also defines “session settlement” as a settlement reached after the case is set for trial or during the pretrial hearing/request session period (IRS IRM 8.4.1).
That means settlement can remain live very late in the process.
What often changes settlement dynamics?
- stronger document production;
- narrowing the issues;
- better legal briefing;
- separating penalties from underlying tax;
- witness credibility becoming clearer;
- the IRS recognizing trial risk;
- the taxpayer recognizing proof problems.
Preparing seriously for trial can sometimes improve settlement posture because it gives both sides a clearer view of what would happen if the case is actually tried.
Step 10: Understand The Risk Of Default, Dismissal, And Procedural Missteps
Tax Court cases are not lost only on the merits. They are also lost procedurally.
Rule 123 states that if a party fails to plead or otherwise proceed as required by the Rules or the Court, the Court may hold that party in default and enter a decision against them or impose sanctions (U.S. Tax Court Rule 123).
That risk is not theoretical. The Taxpayer Advocate’s FY 2024 data shows that 23.4% of Tax Court cases were closed through dismissal or default rather than settlement or trial (Taxpayer Advocate Service Annual Report).
For taxpayers, the lesson is simple: the Court expects participation. That includes complying with orders, showing up, communicating, exchanging information, and preparing the case. Procedural neglect can end the case before the judge ever weighs the underlying tax dispute.
Step 11: If You Are Unrepresented, Explore Clinic And Pro Bono Options Early
The Tax Court notes that in many cities, tax clinics and bar-sponsored calendar call programs may provide assistance to self-represented taxpayers, and the Court may identify volunteer practitioners at the beginning of the session (U.S. Tax Court guidance for petitioners). The Court also maintains information about clinics that provide free legal assistance and operate independently from both the IRS and the Court (U.S. Tax Court clinics page).
The IRS likewise explains that Low Income Taxpayer Clinics help low-income individuals in disputes with the IRS and provide outreach to people who speak English as a second language (IRS LITC page).
For some taxpayers, a clinic may be the right fit. For others, especially where the dollar amounts are larger, the facts are technical, or the records are complicated, private counsel with demonstrable experience in comparable Tax Court matters may be more appropriate.
What Experienced Tax Court Preparation Often Looks Like
A lawyer preparing a non-conceded Tax Court case often works through a checklist that includes:
- identifying the precise issues and burdens;
- developing a provable chronology;
- organizing exhibits by issue;
- communicating with IRS counsel about stipulations;
- responding to informal discovery;
- preparing formal discovery when necessary;
- evaluating motions;
- analyzing penalty defenses;
- preparing witness outlines;
- assessing settlement posture at each stage.
That work is hard to see from the outside, but it often drives outcomes more than courtroom dramatics. In fact, because so few Tax Court cases actually go to trial, the practical leverage in many cases comes from disciplined preparation that clarifies the evidentiary strengths and weaknesses on both sides.
A Final Word On Strategy When The IRS Will Not Concede
When the IRS refuses to concede, it does not automatically mean the government is right. It also does not automatically mean trial is inevitable. More often, it means the case has entered a stage where organization, admissible proof, procedural discipline, and issue-by-issue analysis carry more weight than frustration or broad fairness arguments.
Many taxpayers discover late in the process that their case is not just about tax law. It is also about records, witness credibility, stipulations, timing, penalties, and litigation judgment. That is why finding counsel based on objective criteria, case similarity, and documented experience based on court records can matter so much in tax disputes.
If you’re trying to prepare for Tax Court while the IRS is holding firm, an attorney with verified experience in highly similar matters may help you understand the real issues, evaluate settlement posture, and prepare the case in a way the Court can actually use.
Visit ReferU.AI to get matched with an attorney who has demonstrable experience in cases like yours — for free.
