Finishing the play begin by Mojahad (“Mo”) H. Butta, for which see my blogpost “Bring That Discipline,” 8/5/26, Kings Road Property, LLC, Kings Road Manager, LLC, Partnership Representative, 167 T. C. 11, filed 9/21/26, picks up an IRS fumble and runs it back to survive a motion to dismiss by establishing equitable tolling.

Judge Ronald L. (“Ingenuity”) Buch tells the story.

The Kings Roadsters’ trusty attorney No. 2 (replacing trusty attorney No. 1 with a duly filed Form 2848 which timely made it to the CAF) wondered where the FPA had gone. She carefully calculated all the Section 6235(a) timeslots, called IRS well before the cutoff, but IRS’ agent said “there had been no activity on the Kings Road account and that no notices had been sent out since [the] power of attorney was put on file in August of 2024.” 167 T. C. 11, at p. 5. Trusty attorney then checked with client, who verified no FPA.

Trusty attorney petitioned timely, according to her arithmetic. IRS says they did mail, and the Kings Roadsters are late.

No, says Judge Ingenuity Buch. 

Even though there’s an evidentiary jumpball between Kings Roadsters’ past and present attorneys and USPS records, Judge Ingenuity Buch declines the invitation to hold a hearing.

The question is whether Kings Roadsters equitably tolled the 90 day cutoff in Section 6234(a). The old TEFRA learning was that no equitable tolling applied, at least at partnership level, because of the multi-tiered knock-on effect inherent in applying partnership level determinations at partner level. For more about this than you wanted to know, see my blogpost “Boechler, Meet TEFRA,” 10/21/25. But that’s not the case under the single-shot BBA approach; Congress wanted to streamline, and they did. See 167 T. C. 11 at p. 9, footnote 4.

And the Kings Roadsters and their trusty attorney No. 2 were on this case like white on rice.

” Kings Road, through its counsel, diligently pursued its rights. Kings Road followed up with its attorney and its staff to check whether the FPA had been received. See Holland, 560 U.S. at 653–54 (holding that a litigant diligently pursued his claim when he followed up multiple times with his attorney to ensure the petition was timely filed). Importantly and notably, Kings Road’s counsel did more than merely watch the mailbox. Kings Road’s counsel obtained an IRS transcript of accounts to see whether an FPA had been mailed. It did not show the issuance of an FPA. Kings Road’s counsel also contacted the IRS after the deadline for the Commissioner to mail an FPA had passed to inquire whether one had been mailed. Cf. Dotson, 30 F.4th at 1270 (holding that a litigant’s attorney’s failure to search for the existence of a denial letter or inquire into the status of administrative claims by contacting the previous law firm, USPS, or the Government’s trial counsel was a ‘garden variety claim of excusable neglect that d[id] not constitute extraordinary circumstances warranting equitable tolling’). Even after being told by the IRS that no FPA had been mailed, Kings Road filed a petition with this Court. And the deadline chosen by petitioner’s counsel was reasonably calculated by using the only date in her possession, the date the NOPPA was issued.

“Kings Road also satisfies the second element required to establish equitable tolling: Extraordinary circumstances outside of its control prevented Kings Road from filing on time. See Menominee, 577 U.S. at 256–57. Kings Road did not receive an FPA, and the record shows that the FPA packages sent to both Kings Road and its partnership representative were returned to the Commissioner undelivered. The Eleventh Circuit has recognized that ‘inefficiencies of the United States Postal Service may be a circumstance’ beyond a litigant’s control. Sandvik, 177 F.3d at 1272. We do not intend to suggest that the returned mail, alone, is sufficient to give rise to equitable tolling; in this case, there are additional circumstances surrounding the untimeliness of Kings Road’s Petition that prevented the filing of a timely petition. Kings Road’s counsel called the IRS two months after the FPA was sent and was told no notice had been sent. The Eleventh Circuit has equitably tolled relevant statutes of limitations when there has not been ‘deliberate concealment’ but when ‘the claimant nevertheless has been misinformed.’ See Jackson, 506 F.3d at 1356–57. Although there are no facts to indicate that the FPA’s issuing date was deliberately concealed by the Commissioner, Kings Road was misinformed by the IRS when it was told a notice had not been sent, whereas in fact it had been sent months earlier. And Kings Road filed a protective petition relying on a reasonably calculated deadline, unaware that the Commissioner had mailed the FPA nearly a month earlier than his deadline for doing so. Kings Road has demonstrated that extraordinary circumstances outside of its control kept it from timely filing its Petition. See id. at 1357.” 167 T. C. 11, at pp. 10-11.

Of course, Kings Roadsters’ trusty attorney No. 2 doesn’t stop. She claims the FPA is invalid due to defective mailing (bungled address), SOL has run, and her clients’ $30.5 million Dixieland Boondockery is home free.

My kind of attorney. Go for the green off the tee into the wind on a par-five, 575 foot hole. She has four (count ’em, four) arguments.

Even if the PS 3877 was dodgy, IRS did show enough to prove mailing. A misdesignation of PRep’s suite number on the address of the FPA that didn’t get there is the same on the NOPPA that did get there, so not enough to invalidate. As for prejudice due to not filing a Section 6226 push-out election, Kings Roadsters never tried, not even filing a protective one.

Their defective delegation argument also founders. The signer of the FPA was wearing enough hats to satisfy Judge Ingenuity Buch.

With an eleven (count ’em, eleven) million-dollar deficiency, plus chops and interest, Kings Road and trusty attorney no. 2 (who, upon information and belief, the source whereof is the appearance list of the ten (count ’em, ten) attorneys for Kings Road, is a reader of this my blog), followed up with commendable diligence.

Trusty attorney No. 2 gets a Taishoff “Good Job, First Class, with Swords and Diamonds” and a Taishoff “Good Try, Second Class” for the attempted knockout of the FPA.

I’ll come back to the diligent followup when a big deficiency is on the table in a subsequent blogpost.

I should be pleased that Section 6751(b) Boss Hossery furnishes so much blogfodder and such ample opportunity for scouting (pejorative: look it up) the wretched drafting of the statute. But the enormous waste of judicial resources and litigants’ effort is headshaking material. The statute doesn’t accomplish what Congress intended; even if it could, the ensuing jurisprudence has made it worse than useless. 

Here we go again. Harvey Birdman & Diane Birdman, Docket No. 28897-10, filed 9/18/26, make their third appearance in this my blog. Harv & Di are leads in six (count ’em, six) cases, all old Section 932 Virgins, Congress’ unguided largesse to Our Insolvent Islands in the Sun.

IRS wants Boss Hoss summary J only as to Harv & Di, but trusty attorneys list all six docket numbers in their opposition papers, earning a reproof from Judge Cary Douglas (“C-Doug”) Pugh. Order, at p. 1, footnote 1.

But IRS’ paperwork is far from exemplary. I won’t attempt to condense, much less set forth in full, the Penalty Approval Form, more particularly bounded and described at Order, at p. 2. It tops Bud Abbott and Lou Costello’s celebrated “Who’s-On-First?” routine.

Judge C-Doug Pugh manages to rescue the Section 6663 fraud and the Section 6662(b)(1) negligence chops from under the hooves of this staggering Boss Hoss, incidentally reiterating everything wrong with the statute.

“The statute requires approval ‘in writing’—it does not prescribe a particular form that writing must take. See § 6751(b)(1); Belair Woods, 154 T.C. at 17. Likewise, this Court has consistently declined to prescribe a particular format or style for a supervisor’s written approval under section 6751(b). See, e.g., Palmolive Bldg. Invs., 152 T.C. at 86 (2019) (citing Deyo v. United States, 296 F. App’x 157, 159 (2d Cir. 2008) (requiring ‘only personal approval in writing, not any particular form of signature or even any signature at all’)); Belair Woods, 154 T.C. at 17. Because petitioners fail to raise a material factual dispute regarding supervisory approval of the section 6663 fraud and section 6662(b)(1) negligence penalties, we will grant respondent’s motion in part.” Order, at p. 4.  (Footnote omitted, but it says deposing the RA adds nothing to her declaration for the purposes of this motion; presumably petitioner can get their whack at trial, see Order at p. 4.)

One final reproof to petitioners’ trusty attorney, and this is one we had ding-dinged into our heads in Civil Procedure One (thanks Dean Warren). ” We note that Mr. D’s declaration contains many pages of legal argument. We address his legal argument as if it were contained in petitioners’ Opposition brief because it is argument only and not factual support. We caution counsel that arguments do not belong in declarations.” Order, at p. 2, footnote 3. (Name omitted).

Once again, memory drifts me back to the Hill Far Above and a former millennium, more particularly bounded and described in my blogpost “The Battle of the Forms,” 11/16/17. Now, however, there’s a clear winner, as Form 872-M o’ercrows Form 8981, bringing DIBC Buffalo Hills Ranch, LLC, LC Fulenwider, Inc., Partnership Representative, Docket No. 13369-25, filed 9/18/26, squarely within Tax Court jurisdiction.

The Buffalo hillbillies claim 3SOL, but the designated hitter of their PRep, duly designated in Form 8979, Partnership Representative Revocation, Designation, and Resignation, duly signed two (count ’em, two) successive Forms 872-M, Consent to Extend the Time to Make Partnership Adjustment, during which second extension IRS dropped their NOPPA and FPA.

Judge Christian N. (“Speedy”) Weiler takes up the story.

“Petitioner did not request any changes or modifications in response to the. NOPPA; however, …petitioner electronically submitted Form 8981, Waiver of the Period under IRC Section 6231(b)(2)(A) and Expiration of the Period for Modification Submissions Under IRC Section 6225(c)(7). A representative of IRS, however, never countersigned Form 8981 nor sent an executed copy of the Form 8981 back to petitioner.” Order, at p. 3. (Footnote omitted, but it says IRS sent the FPA after the 270 day cutoff.)

So battle is joined. “Petitioner contends that since it submitted Form 8981 … under section 6235(a)(2), the IRS was required to issue the FPA within 270 days from the date of submission of Form 8981…. Respondent contends that since the partnership never submitted a request for modification or changes, section 6235(a)(2) has no application; moreover, even if there was a valid Form 8981 executed by the parties, the parties had previously agreed to extend the limitations period under Form 872–M.” Order, at p. 5.

For those who remember my blogpost “A New Day – Extended,” 9/9/26, the outcome is no surprise.

“In any event, ‘any agreed-upon extension under section 6235(b) would necessarily extend the limitations period for making adjustments, and any extension must be taken into consideration in determining the latest of the periods found in paragraphs (1), (2), and (3).’ Katanga Properties, LLC, 167 T.C. slip op. at 7–8. In this case the parties agreed to extend the limitations period under section 6235(a)(1) on two separate occasions: the first Form 872–M extended the adjustment limitations period until December 31, 2024, and the second Form 872–M further extended the adjustment limitations period until December 31, 2025. Both periods were extended prior to the expiration of such period.” Order, at p. 6. (Footnote omitted, but it says Extension One was timely.)

The Buffalo hillbillies’ trusty attorney cannot be faulted for not foreseeing Katanga at the hearing of the summary J motion back in June. He gets a Taishoff “Good Try, third class.”