The evidentiary dust-up in Amgen Inc. & Subsidiaries, Docket No. 16017-21, filed 3/16/26, has produced documents and disputes that come near to overshadowing the infamous Epstein files. The record is still open, while Judge Travis A. (“Tag”) Greaves contemplates the approaching tsunami. “During trial, we admitted into evidence thousands of exhibits, and the parties represented that they were working together to stipulate to the admission of thousands more.” Order, at p. 1.

The joust goes on. Judge Tag Greaves, however, gives us a vest-pocket précis of the FRE worth keeping in your memo of law file.

“This Court applies the FRE when deciding evidentiary issues. See § 7453; Rule 143(a). The Court has broad discretion over the admission of evidence. Relevant evidence is generally admissible. FRE 402. Evidence is relevant if ‘it has any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequence in determining the action.’ FRE 401. One exception to the general admissibility of relevant evidence is the rule against hearsay; hearsay may not be offered for the truth of the matter asserted unless an exception applies. FRE 801, 802. The Court may also ‘judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” FRE 201(b).” Order, at pp. 2-3. (Citation omitted).

Judicial notice is routinely taken of SEC filings, for example.

But IRS wants stricter rules here, for evidence submitted to reopen the record. No, says Judge Tag Greaves, the record is still open. “Neither party has sought to close the record, nor has either party sought limitations on the admission of additional evidence while the record remains open. Since the conclusion of trial, we have admitted additional exhibits into evidence pursuant to the FRE, and we see no reason to depart from that practice here.” Order, at p. 3. If IRS claims ambush, they’ll get supplemental briefing to deal with it.

Judge Tag Greaves applies a minor brake-tap to Greenberg’s Express. IRS objects to some petitioner’s exhibits (hi, Judge Holmes). “These exhibits are Notices of Proposed Adjustments and the IRS’s rebuttal to a protest filed by Amgen, in which the IRS discusses whether the expense reimbursements were at arm’s length. These exhibits satisfy the low threshold of relevance due to respondent’s argument on brief that in order to qualify for set-off treatment, respondent must have disallowed the item at issue due to the arm’s length standard. Even if their significance is tempered by the general principle that the actions or views of revenue agents do not bind the Commissioner, the exhibits nonetheless have some tendency to make a material fact ‘more or less probable.’ As such, we will admit these four exhibits. Order, at pp. 3-4). (Footnote omitted, but it says IRS didn’t argue Greenberg’s Express. Taishoff wonders why not).

So go brief whatever you have and answer a few conundra Judge Tag Greaves has for y’all at Order, at p. 5. No need for more oral argument.

By far the largest part of petitions filed in Tax Court are those where Tax Court has no jurisdiction. One would expect this in a court where 80% of petitioners are self-represented and where any courtroom experience a petitioner might have is not in an Article I Court. Still, one wonders at the utility of a court which spends most of its resources deciding that it can’t do anything.

First example, Morgan H. Orlins & Nanette P. Orlins, Docket No.  16203-25S, filed 3/13/25. The Orlinses’ bœuf is a denial of refund based on a Health Savings Account contribution, coming off a CP12 and Letter 474C. Ch J Patrick J. (“Scholar Pat”) Urda trots out the jurisdictional boilerplate and finds neither is a SND. The Orlinses’ expansive view of Tax Court jurisdiction doesn’t clear the Congressional barricade surrounding the Glasshouse at 400 Second Street, NW.

Yes, I know, IRS’ current form of individual SND prominently state that it is a SND. But that of course is not the whole story.

“It is well settled that no particular form is required for the notice of deficiency to be valid. See Benzvi v.Commissioner, 787 F.2d1541,1542(11th Cir. 1986); Jarvis v. Commissioner, 78 T.C. 646, 655 (1982). The Court of Appeals for the Eleventh Circuit, the court to which this case is appealable barring a stipulation to the contrary, has held that the notice will be treated as valid if the Commissioner demonstrates that ‘the IRS has determined that a deficiency exists for a particular year and specify the amount of the deficiency.’ Stoecklin v. Commissioner, 865 F.2d 1221, 1224 (11th Cir. 1989) (quoting Benzvi v. Commissioner, 787 F.2d at 1542), aff’g. T.C. Memo. 1987-453.” See my blogpost “Scar Tissue,” 4/14/17.

So how is a petitioner to know what might be a SND, even if it doesn’t say so? The requirement that the SND provide contact info for TAS can apparently be satisfied even without the particularity mandated by Section 6212(a) that “such notice shall include a notice to the taxpayer of the taxpayer’s right to contact a local office of the taxpayer advocate and the location and phone number of the appropriate office.” See my blogpost “Being and Nothingness,” 5/7/13. Merely citing the TAS URL is sufficient.

Next, Carol Schellinck & Edward Schellinck, Docket No. 16098-26P, filed 3/13/26, another attempt to litigate underlying debt in a passport grab. Maybe so Notice CP508C should have written somewhere on it “IF YOU WANT TO CONTEST LIABILITY, DON’T WASTE YOUR TIME.”

My readers doubtless recall the flurry of articles and blogposts a dozen years ago as the Bipartisan Budget Act of 2015 (BBA) was wending its way into law, AFAIK the last enactment to bear the title “Bipartisan.” But I recall none thereof discussing the problem of the misdesignated partnership representative (whom I call the PaRep, but whom Judge Christian N. (“Speedy”) Weiler calls the “PR.”  I’ll use Judge Speedy Weiler’s abbreviation hereafter). 

Judge Speedy Weiler has to confront the issue today in Infinity Cycle, LLC, John L. Green, Partnership Representative, Docket No. 9369-24, filed 3/12/26. B, managing member and 99% interest holder in Infinity Cycle, didn’t designate a PR in its 1065, but subsequently filed Form 8979, Partnership Representative Revocation, Designation, and Resignation, designating his attorney K as its PR for year at issue; names omitted.

When the FPA hit, B tried reaching K, but discovered K was ill and no longer practicing law, so B had Green, attorney for the partnership, file the petition timely. IRS answered, and five (count ’em, five) months later amends, alleging the petition didn’t name the PR or provide the contact info the regs require, so is ineffective and should be tossed. Infinity Cycle files a new 8979, but gets it wrong by not putting in the relevant year(s) for which PR acts and put the new PR, Green, in the wrong place among entities. IRS moves to toss the petition.

Judge Weiler loads up the “somber reasoning and copious citation of precedent” cannons.

“Compliance with Treasury Regulation § 301.6223 and the subsequent revocation and designation of a PR under section 6223 are not the only issues before us. Rather, the precise question here is whether we have jurisdiction under the Code to consider a Petition after amendment and when a succeeding PR ratifies the original filing.” Order, at p. 4.

Rule 60(a) provides for ratification if the right person didn’t sign on to the petition. There’s bushelbasketsful of old TEFRA precedent that BBA didn’t wipe out. And Mr. B submits an affidavit telling the whole tale.

“Here, the original Petition was timely filed by the attorney representing Infinity Cycle. Mr. Green was retained by Mr. B—the managing member of Infinity Cycle. Mr. B authorized Mr. Green to respond to the FPA, and under the circumstances, file a Petition with the Court on behalf of Infinity Cycle. If we were to grant respondent’s Motion to Dismiss, then Infinity Cycle and its partners would have no judicial remedy with respect to the partnership adjustments determined in the FPA. We find the evidence surrounding the filing of this Petition–namely with authorization from the managing member of Infinity Cycle–to be compelling.” Order, at p. 5. (Name omitted.)

“Respondent contends that Form 8979, submitted by Infinity Cycle, was incomplete and not a valid revocation under Treasury Regulation § 301.6223-1(e) since the form did not indicate for which taxable year the Partnership was changing its PR, and incorrectly revoked an entity partnership representative (and designated individual), when in fact K was previously designated as an individual PR for Infinity Cycle. Petitioner argues that while there may have been inconsistencies in revocation and designation of Mr. Green as successor PR, the submission to IRS nevertheless substantially complied with Treasury Regulation §301.6223-1(e). Petitioner contends that the minor discrepancies were not material to Form 8979 as the IRS received actual notice of Infinity Cycle’s intent to designate a new PR. We agree, and conclude the PR revocation made by Infinity Cycle, followed by subsequent designation of Mr. Green, substantially complies with Treasury Regulation § 301.6223-1(e)(5).” Order, at pp. 6-7.

While substantial compliance isn’t always applied, since where compliance is essential to fulfillment of the statute there is no room for “good enough,” where the rule is merely procedural or directory good enough is good enough.

“Under the BBA, the introduction of the concept of the partnership representative was ‘intended to address the shortcomings of the TMP as the representative of the partnership under TEFRA.’ Centralized Partnership Audit Regime, 82 Fed. Reg. 27334, 27338 (June 14, 2017) (proposed regulations). These resolutions to shortcomings included broader selection of those who can be a PR—including a nonpartner—and it provided that the PR had the sole authority to bind the partnership and any final decisions in a proceeding brought under subchapter C of chapter 63. Id. at 27338–39. The purpose of Treasury Regulation § 301.6223-1(e) is to ‘provide[] flexibility to the partnership in [certain] circumstances [where the partnership would like to change the designation], allowing the partnership, through its partners, to revoke a prior designation.” Id. at 27348. Consistent with its purpose we conclude that Treasury Regulation §301.6223-1(e) is merely procedural. A PR was established to be a centralized authority for the partnership. Overall, Treasury Regulation § 301.6223-1(e) requires a taxpayer to inform the IRS by written notice for revocation of a PR and appointment of a successor PR. Therefore, substantial compliance with the requirement will suffice.” Order, at p. 7.

And, ultimately, “respondent does not contend these two discrepancies prejudice the IRS or failed to provide actual notice of the successor PR as required under the regulations.” Order, at p. 8. 

Anyway, Rule 256.6(a) gives Tax Court the power to “take such action as may be necessary to establish the identity of the partnership representative.” Order, at p. 8. Judge Speedy Weiler says he runs his own docket. 

No hurt, no foul.

So welcome aboard, Green, salute the quarterdeck and stand to your kit. And here’s a Taishoff “Good Job, First Class” to pin on your dress blues.