Kenneth W. Guenther and Marva Guenther v. Commissioner of Internal Revenue

ORDER

We are sufficiently troubled by allegations that Commissioner’s counsel improperly made an ex parte communication which prejudiced the trial judge’s disposition of this case that we defer review of the merits and instead order this temporary remand.

I

Kenneth and Marva Guenther (individually “Kenneth” and “Marva” and collectively “taxpayers”) were husband and wife during 1978 and 1979 and filed joint income tax returns for both years. In auditing these returns, the Internal Revenue Service (“IRS”) uncovered alleged errors resulting in issuance of a Notice of Deficiency. Taxpayers filed a petition with the United States Tax Court seeking redetermination.

Sometime prior to trial in the tax court, Commissioner’s counsel delivered ex parte a memorandum to the trial judge. Its contents have not been provided to this court, but the Commissioner concedes its existence. It is unclear how taxpayers discovered that such a document had been submitted, but just prior to trial they moved to compel disclosure. The tax court denied the motion on the second day of trial.

Reference to the ex parte memorandum is mentioned once briefly on the record at trial. The colloquy consists of the…