Bernard J. Donachie, coaming late to the party in Smith Mill Rock, LLC, Mulhern Jasper Exploration, LLC, Tax Matters Partner, Docket No. 13132-22. filed 6/8/26, says “there are ‘active watchdog investigations’ into the IRS appraiser who worked on the case during the examination and ‘significant procedural deficiencies regarding the Government’s expert valuation.’” Order, at p. 2.

It’s another stiped-out Dixieland Boondockery, wherein none of the partners save the TMP participated in litigation or settlement, until Bernie comes in during the 60-day Rule 248(b) nonparticipant last chance, brandishing his 2.2759232% interest in Mulhern Jasper, which makes him an indirect partner in Smith Mill Rock.

Judge Travis A. (“Tag”) Greaves is willing to look and see if Bernie has a clear and convincing reason why he’s late and that he has something to show the settlement isn’t reasonable.

Spoiler alert: He doesn’t and he doesn’t.

It took Bernie a year-and-a-half to figure out he was sent the wrong appraisal. And he got a bunch e-mails (hi, Judge Holmes), even though he claims he didn’t get some (everybody else did). And yeah, he’ll have some tax to pay, but that’s what happens when you take a minuscule interest in a deal with someone else’s finger on the button.Ultimately, whatever happened at Exam with the watchdog, the past isn’t even prologue as deficiency trials are de novo.

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.