That’s where Judge Joseph Nega leaves Andre Jackson, T. C. Memo. 2026-97, filed 9/28/26, after Andre drops his “quintessential tax protester arguments” before trial and tries a Section 7491(a) BoP shift. This is a lough lie in any case, and Andre is in a sandtrap.

“Petitioner produced (1) a Freedom of Information Act (FOIA) request he made to respondent … requesting a plethora of documents relating to tax year 2019; (2) a fax transmission report… indicating the FOIA request made on the same date was faxed from petitioner to respondent’s disclosure office; and (3) a response to petitioner’s request from respondent… with 74 pages of records enclosed. Petitioner contends that he reasonably disputed the Form 1099–R by requesting records from IRS disclosure and [his pension plan trustee] and requesting a review by respondent’s Independent Office of Appeals, and he asserts that he fully cooperated with respondent by trying to identify and obtain underlying records.

“We are not convinced. Petitioner’s mere suggestion that some portion of the distribution may be nontaxable, without more, does not reasonably dispute the information return. Petitioner’s FOIA request does not amount to an actual reasonable dispute of the taxable amount reported on the information return, and he never suggests what the correct amount should be…. No documentary evidence exists in the record or was presented at trial that contradicts the full taxability of the … distribution reported on Form 1099–R. Petitioner’s uncorroborated and vague suggestion that some unspecified amounts of the retirement account distribution may be nontaxable is insufficient to constitute a reasonable dispute…. 

“Further, petitioner did not fully cooperate with respondent because he neither filed federal income tax returns for [years at issue] nor provided respondent with any additional records.” T. C. Memo. 2026-97, at p. 4. (Citations omitted).

Not only has Andre not shifted the BoP, he has retained the burden of the failure to file, failure to pay tax, and failure to pay estimateds add-ons.

A regarded business entity gets an accepted OIC for FICA/FUTA/ITW, but a responsible person gets tagged for the full TFRPs. That’s the plight of Thomas Amodio, T. C. Memo. 2026-96, filed 9/28/26.

But to the rescue comes STJ Lewis (“Oh That Name”) Carluzzo, who employs “common sense and the general principles that govern joint and several federal tax liabilities,” T. C. Memo. 2026-96, at p. 6, to bail out Amodio.

Amodio’s closely-held C Corp did high-class carpentry and was a union shop. Between slowpaying customers and union contracts, Amodio’s office manager and third-party payroll processor paid the union and workers first, and Amodio knew it. Noble motive, but the gov’t comes first. Amodio’s willfulness argument craters.

IRS says C Corp’s OIC has nothing to do with Amodio’s liability.

“IRM 5.8.4.22.1(2) (May 10, 2013) states that the settlement of an outstanding liability by an offer-in-compromise with a corporation does not eliminate the TFRP liability of a responsible person and may still be collected from the responsible person.” T. C. Memo. 2026-96, at pp. 5-6. (Footnote omitted, but it says the current version of that IRM is IRM 5.8.4.21.1(2) (Apr. 25, 2025)). And IRM is cited as “policy,” not law or reg.

After copious citation of what limited precedent there is, STJ Lew finds Amodio’s rescue in one word.

“There might be circumstances that ‘may’ support respondent’s decision to collect from a responsible person a TFRP liability that exceeds a corporation’s related employment tax liability that has been adjusted by an offer-in-compromise, but in the absence of a specific reason for doing so in this case we are more persuaded to proceed by applying common sense and the general principles that govern joint and several federal tax liabilities.

“In so doing, it follows and we hold that respondent may proceed with collection as determined in the Notice but only in amounts that do not exceed the amount of [C Corp]’s employment tax liability for each period in dispute, as adjusted by the offer-in-compromise.” T. C. Memo. 2026-96, at p. 6.

Here’s the follow-on to my blogpost a couple months ago (hi, Judge Holmes), the subpoena scrap with the Virgin Island Bureau of Internal Revenue in Harvey Birdman and Diane Birdman, et al., Docket No. 28897-10, filed 9/28/26.

Harv’s and Di’s trusty attorneys are again trying to befog and befuddle their adversary with discovery doodads, but Judge Cary Douglas (“C-Doug”) Pugh isn’t wearing it.

Did VIBIR deep-six Harv’s and Di’s 2003 and 2004 tax records when they should have put on a litigation hold?

No, says Judge C-Doug Pugh: “…because petitioners did not provide adequate notice to VIBIR to do so. The joint audit program and VIBIR’s request to participate in other Tax Court cases was not sufficient notice to VIBIR that petitioners in these cases anticipated or were involved in litigation. And the statement attached to petitioners’ 2005 Form 1040X filed April 4, 2011, makes no mention of a dispute about petitioners’ 2003 and 2004 tax years.” Order, at p. 4. (Emphasis by the Court).

VIBIR also claims Section 6103 protection. Taishoff says that’s a weak latch, because Section 6103(h)(4) opens a pretty wide door in this case. But nobody seems to want to look through, much less walk through, that door.

Trusty attorneys seek VIBIR’s US claims logbook, which supposedly lists a record of all transmittals to the IRS with respect to the 2003, 2004, and 2005, tax years for the Birdmans and the als. But VIBIR says they don’t have that, because the requested items exceed VIBIR’s record retention period of 10 years. Order, at p. 3.

Judsgew C-Dopugh Pugh ois down with that. “Petitioners issued the first set of subpoenas in 2018, approximately seven years after litigation for the 2003–05 tax years began, and years after VIBIR’s document retention policy required destruction of the requested records. VIBIR should not be faulted for following its retention policy. Had petitioners sought the records when this litigation began in 2011, which was before VIBIR’s policy required destruction, VIBIR could have preserved them (or be faulted had it failed to do so).” Order, at p. 4.

VIBIR’s responses to petitioners’ motions are not models of clarity or consistency, and Judge C-Doug Pugh points out a bunch thereof. Even the closest trusty attorneys come to a valid claim, that notice of intent to litigate tax year 2005 in a Form 1040X filed in 2011, seeking to amend the 2005 1040, might constitute notice to hold onto 2003 and 2004, fails for want of evidence of bad faith.

Spoliation means destruction in bad faith.

 “Even if we consider the statement sufficient to require VIBIR to place a litigation hold on tax year 2005, petitioners still have not provided any evidence of VIBIR’s bad faith in destroying the records. See Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (‘[A]n adverse inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith.’) (citing Vick v. Tex. Emp. Comm’n, 514 F.2d 734, 737 (5th Cir. 1975)). Accordingly, we will deny all three of petitioners’ Motions as no adverse inference is warranted and we cannot compel the production of documents that no longer exist.” Order, at p. 5.