That’s the per cur opinion in Rochelle v. Commissioner, 293 F.3d 740 (5 Cir, 2002), affirming Judge Vasquez’s “excellent opinion (concurred in by nine other judges), which we adopt.” 293 F. 3d at p. 741. So Ch J Patrick J. (“Scholar Pat”) Urda, adding 5 Cir to the jurisdictional limit side of the Section 6213(a) balance sheet, tosses Shedrack Aforigho, Docket No. 2956-26, filed 6/5/26. 

Except.

Taishoff says, while in no way denigrating Judge Vasquez or his nine (count ’em, nine) distinguished colleagues, that was 24 (count ’em, 24) years ago, and pre-Boechler, pre-Culp, pre-Buller, and pre-Oquendo. So a certain quantum of hydrogenated oxygen has gone over the cliché since.

Of course, we may have a 5 Cir reaffirmance of Rochelle, just as 11 Cir resuscitated Pugsley; I confess that one still rankles, but it hardens me so that, as a much finer writer than I put it, “I have been too familiar with disappointments to be very much chagrined.”

Whether it was William Blake, Aldous Huxley, or Jim Morrison who first said it, Jodell Sample, Docket No. 4394-20, filed 6/5/26, didn’t know spouse Doc Joe Sample would be unable to pay their stated tax bill for year at issue, but did know that said year’s Form 1040 MFJ substantially understated that bill.

Hence Judge Mark V. (“Vittorio Emanuele”) Holmes, without a single dissed partitive genitive, checks out Rev. Proc. 2013-34, IRS’ revised innocent spousery checklist, and finds he could have forgotten about what Jodell knew about whether Doc Joe Sample would pay. 

For the backstory that led up to this Rule 161 reconsideration, see my blogpost “The Innocent Spousery Slalom,” 11/17/25.

“We thought it more likely than not that Ms. Sample was reasonable in thinking that Dr. Sample would be able to pay the smaller amount shown due on the return, even when added to the Samples’ other existing tax debts. That is a different question than whether she knew or had reason to know that the [year-at-issue] tax return understated the couple’s tax liability. And it is not the same question as Ms. Sample paraphrases in her motion—whether Ms. Sample ‘reasonably believed that her husband would take care of their income tax liabilities.’

“On reconsideration we also note that the Revenue Procedure’s discussion of knowledge in underpayment cases may not even apply—the first sentence of the relevant paragraph conditions its applicability: ‘In the case of an income tax liability that was properly reported but not paid . . . ,’ Rev. Proc. 2013-34 § 4.03(c)(ii), and Ms. Sample concedes in her motion that the Samples’ [year-at-issue] tax return did not properly report their income.

“That means that the Court should have at least underweighted, and perhaps altogether ignored, Ms. Sample’s lack of knowledge at the time she signed the [year-at-issue] return that Dr. Sample would let the unpaid tax shown on that return remain unpaid.” Order, at pp.2-3. (Emphasis by the Court).

And before my ultrasophisticated readers yell with one voice “Loper Bright the Rev. Proc.,” the parties conceded the Rev. Proc.’s applicability on the trial. Order, at p. 1.

A word of explanation of Judge Holmes’ cognomen for those who tuned in late. See my blogpost “Code 2, Code 1,” 4/29/21.

That must be how Alvie N. Paschall and Patricia C. Paschall, T. C. Memo. 2026-46, filed 6/4/26, must feel after Judge Cary Douglas (“C-Doug”) Pugh sustains IRS’ $33K underreporting hit due to the bonus cryptocurrency Alvie got when he let his crypto be used in proof-of-stake transaction during year at issue. 

As near as i can tell, a proof-of-stake means the staker puts up his own crypto to to validate other punters’ crypto transactions. If he gets it right, he gets more crypto; gets it wrong and he loses. But see T. C. Memo. 2026-46 at p. 3, as Judge C-Doug Pugh battles through without expert testimony, which she laments, at pp. 2 and 8.

I lament even more, for I understand almost none of this. 

Howbeit, crypto is property, can be sold for cash, hence is Section 61 money’s worth. No constraints on Alvie selling in year at issue. That he never got the misaddressed Form 1099-MISC for the bonus is nothing to the point. The bonus is not like a stock dividend, because no proof that the bonus was distributed across the board in proportion to the punters’ holdings, whether or not they put up their crypto to validate others. 

Neither was it created by Alvie’s labor.

“Stakers do not create anything by themselves. Instead, the staked tokens validate transactions on the blockchain. In exchange for validation, the cryptocurrency’s protocol grants stakers additional tokens. The fact that these tokens may be newly created is immaterial because the stakers are not the ones who created them. Further, petitioners were not owners or operators of a staking pool; unlike the baker or writer, they lacked the power to decide whether (and when) the property was created.” T. C. Memo. 2026-46, at p. 10.

And IRS didn’t rely on Rev Rul. 2023-14, nor does C-Doug Pugh, so no need to get Loper Bright involved.

Taishoff says both this blogpost and Judge C-Doug Pugh’s opinion really needs expert input. Perhaps my ultrasophisticated readers would care to weigh in after reading both.