Short answer
A Branerton letter is a request from the IRS attorney in your Tax Court case to meet and exchange facts and documents informally. It is named for Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Tax Court Rule 70(a) expects this informal exchange before formal discovery, so answer it fully and on time; ignoring it invites formal requests and sanctions.
Key takeaways
- The letter comes from the IRS Office of Chief Counsel attorney on your court case, usually after the IRS files its Answer, not from the auditor.
- Tax Court Rules 70(a) and 90(a) expect both sides to try informal consultation before formal discovery or requests for admission.
- Send organized copies by issue, attend the conference, and ask for what you need from the IRS the same informal way.
- If you ignore it, expect formal discovery: unanswered requests for admission are deemed admitted after 30 days, and the court can sanction or dismiss.
- Formal discovery can’t start until 30 days after the case is at issue and must finish 45 days before the trial calendar call.
What a Branerton letter is
A Branerton letter is the first request an IRS attorney usually sends after you petition the Tax Court and the IRS has filed its Answer. It asks you to meet and to provide specific facts and documents about the issues in your case. It is not an audit letter and it does not come from the examiner: it comes from the attorney in the IRS Office of Chief Counsel who is handling your court case.
The name comes from Branerton Corp. v. Commissioner, 61 T.C. 691 (1974), the Tax Court case the IRS’s own Chief Counsel manual cites for the rule that parties must try informal consultation before formal discovery. The manual (IRM 35.4.3.2) tells IRS attorneys to request a conference about the facts and the documents they need, and says “this Branerton letter should set a conference date, time, and place” that leaves you “reasonably sufficient time to organize the requested records.” It also tells them to make requests “specific and consistent with the complexity of the issue.”
Read it as an invitation and a deadline at the same time. Answering it well is often the fastest path to a settlement, and it is the start of the stipulation of facts the court expects before trial.
Why the Tax Court insists on informal discovery first
Tax Court Rule 70(a) says “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.” Rule 90(a) says the same about requests for admission. The IRS manual describes the court as “insistent” on this and warns its attorneys that “short cuts to the use of formal discovery will not be tolerated.”
The rule runs both ways:
- For the IRS. Its attorney is expected to try a Branerton conference before serving formal requests. Your failure to give documents to Appeals does not excuse that step, and a meeting with Appeals is not a substitute for it, the manual says.
- For you. If you send the IRS formal discovery before trying informal requests, the manual (IRM 35.4.6) tells IRS attorneys to reply that they will treat your requests as informal. Serving formal discovery without informal consultation first is also one of the manual’s examples of when a protective order may be appropriate under Rule 103.
Most cases never need formal discovery. The Tax Court notes that the evidence in many trials “consists simply of the petitioner’s own testimony and documents,” and third-party documents are “most often obtained by informal requests.”
What the letter usually asks for
Every letter is written for its case, so there is no standard text. Based on the IRS manual, expect:
- A proposed conference, in person, by phone or by video, with a date, time and place.
- A list of facts and documents the IRS attorney needs for each issue in your petition, for example receipts, logs, bank statements or third-party records.
- A request to confer about the facts, which often leads into drafting a stipulation of facts and sometimes a discussion of settlement or referral to Appeals.
The request should match the issues in the case. If something seems unrelated to the adjustments in your notice of deficiency, ask the attorney why it is needed. Discovery in the Tax Court covers non-privileged matters “relevant to the subject matter involved in the pending case” and must be “proportional to the needs of the case” (Rule 70(b)).
How to respond, step by step
- Calendar the conference date. Note the date, time and place the letter proposes and when documents are requested. If you can’t make it, call the IRS attorney before the date and propose another one.
- Sort documents by issue. Group your records under each error you listed in your petition, so every disputed item has its own set of proof.
- Send copies with a cover letter. Send copies, never originals, with a numbered list of what you are sending. Keep an identical set for yourself.
- Attend the conference. Go through each issue, explain what the documents show, and ask what else the IRS attorney needs.
- Ask for what you need from the IRS. Ask informally for the documents and explanations the IRS relies on before trying formal discovery yourself.
- Work toward a stipulation or settlement. Agree in writing on facts and documents that are not in dispute, and discuss whether any issue can be settled.
- Keep a record of every contact. Log dates, names and what was sent or promised, in case the court later asks who cooperated.
A short cover letter that lists each enclosure by number makes the exchange easy to track; our audit response cover letter template adapts well, with your docket number added. If records are missing, the missing records guide explains how to rebuild them honestly; never create or backdate documents.
Bring your documents to court later even if you gave them to the IRS now. The court’s standing pretrial order says documents previously given to the IRS “are not part of the record” unless made part of the case, usually through the stipulation of facts or as trial exhibits.
What happens if you ignore it
Silence moves the case to formal tools and can cost you the case. The IRS manual tells attorneys that if a petitioner doesn’t respond or doesn’t come to the conference, they should send a second letter by certified mail setting another conference and “warning that respondent will use formal discovery in the event of continuing non-cooperation,” and then start formal discovery and requests for admission promptly.
- Deemed admissions. Under Rule 90(c), each matter in a request for admission “is deemed admitted” unless you answer or object within 30 days, and an admitted matter is “conclusively established” unless the court lets you withdraw it (Rule 90(f)).
- Court sanctions. If you disobey a discovery order, Rule 104(c) lets the court treat facts as established against you, bar evidence, dismiss the case or enter a default judgment. An evasive or incomplete answer counts as no answer (Rule 104(d)).
- Dismissal for lack of prosecution. The court’s sample standing pretrial order lets a party move to dismiss when the other side “has failed to cooperate in preparing the case for trial.” The court’s guidance is blunt about dismissal for failure to prosecute: “it means you lose your case.”
If you need more time, say so in writing before the conference date. Asking is cheap; not answering is expensive.
Formal discovery: the tools and the clock
When informal exchange fails, the Tax Court Rules provide these tools. They are available to both sides.
| Tool | Rule | What it is | Time to respond |
|---|---|---|---|
| Interrogatories | 71 | Written questions answered under oath; no more than 25, counting discrete subparts, unless the parties agree or the court allows more | 30 days after service |
| Requests for production | 72 | Requests to inspect and copy documents, electronically stored information or things in the other party’s control | Written response within 30 days after service |
| Requests for admission | 90 | Statements of fact, or of law applied to fact, that the other side must admit or deny | 30 days, or each matter is deemed admitted |
| Depositions | 74 | Sworn questioning; with the consent of the parties, or without consent only in limited situations the rule calls “an extraordinary method of discovery” | Set by notice or court order |
Timing. Under Rule 70(a)(2), formal discovery can’t start, without the court’s permission, until 30 days after joinder of issue, which is generally when the IRS files its Answer (Rule 38). Requests for admission can’t start until 31 days after joinder (Rule 90(a)). Discovery must be finished, and any motion to compel filed, no later than 45 days before the date set for calling the case from the trial calendar.
Limits. Neither interrogatories nor document requests are filed with the court unless someone asks the court to enforce them. You may object to a request, but state the reasons. If a request is unreasonably burdensome or harassing, you can ask the court for a protective order under Rule 103.
Small cases and people representing themselves
The informal-first rule applies in small tax cases too. According to the manual, Chief Counsel has “traditionally” limited formal discovery and requests for admission in S cases and cases where the taxpayer has no representative, “to avoid even the appearance of an attempt to obtain unfair advantage,” but it says this is not a fixed rule. Don’t count on it: answer informal requests fully.
If you need records from someone who won’t cooperate, such as a former employer or bank, the court explains that a subpoena may be used, and you must pay the witness one day’s attendance fee and mileage when it is served. Try an informal request first.
Free help, and when to bring in a professional
You can handle a Branerton exchange on your own if the issues are narrow and your records are organized. Free help is available from Low Income Taxpayer Clinics for eligible taxpayers and from the Tax Court’s clinics and pro bono programs. The clerk’s office answers procedural questions at help@ustaxcourt.gov or 202-521-0700.
Bring in help when the request is broad, when records are missing, when requests for admission or interrogatories have already arrived, or when several years or fraud penalties are involved. Anyone who appears for you in the case must be admitted to practice before the Tax Court. Global Gate Tax Relief offers a free consultation, reviews your notice, petition and IRS transcripts, and tells you whether you can manage it yourself. If we take the case, the fee is flat and quoted upfront, with no promised outcome. Request a free case review or call 1-877-800-8180.
Frequently asked questions
An informal meeting, in person, by phone or by video, between you (or your representative) and the IRS attorney in your Tax Court case to discuss the facts and exchange documents. The IRS manual says the Branerton letter should set its date, time and place.
It is not a court order, but the Tax Court expects the parties to cooperate informally, and not answering usually leads to formal discovery. Unanswered requests for admission are deemed admitted after 30 days, and failing to obey a discovery order can lead to sanctions or dismissal.
The attorney from the IRS Office of Chief Counsel assigned to your Tax Court case, whose name appears in the IRS Answer. It is different from letters sent by the auditor during the examination.
Yes, in the sense that you should ask the IRS attorney informally for the documents and explanations you need before using formal discovery. If you serve formal requests first, the IRS manual tells its attorneys to treat them as informal.
30 days after they are served, unless the court allows a shorter or longer time (Rule 71(c)). Answers are made separately and fully under oath, or you state your reasons for objecting.
No. The Branerton letter starts the informal exchange; the stipulation of facts is the written agreement on facts and documents that often comes out of it and is filed with the court before trial.
Sources
- IRM 35.4.3 (Chief Counsel Directives Manual), Gathering Information from the Petitioner
- IRM 35.4.6 (Chief Counsel Directives Manual), Responding to Petitioner's Information Gathering Attempts
- U.S. Tax Court Rule 70, Discovery: General Provisions
- U.S. Tax Court Rule 71, Interrogatories
- U.S. Tax Court Rule 72, Production of Documents, Electronically Stored Information, and Things
- U.S. Tax Court Rule 74, Depositions for Discovery Purposes
- U.S. Tax Court Rule 90, Requests for Admission
- U.S. Tax Court Rule 103, Protective Orders
- U.S. Tax Court Rule 104, Enforcement Action and Sanctions
- U.S. Tax Court Rule 38, Joinder of Issue
- U.S. Tax Court: Sample Standing Pretrial Order (regular cases)
- U.S. Tax Court: Guidance for Petitioners, Things That Occur Before Trial
- U.S. Tax Court: Guidance for Petitioners, Starting a Case
- IRS: Low Income Taxpayer Clinics
- U.S. Tax Court: Clinics and Pro Bono Programs
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