Rule 161 reconsiderations are rare beasts, but when both petitioner and respondent (IRS) agree the judge got it wrong, even so strong-minded a jurist as ex-Ch J Kathleen (“TBS= The Big Shillelagh”) Kerrigan gives heed. 

Ex-Ch J TBS tossed Robert S. Koenigsberger & Dilek I. Koenigsberger, Docket No. 12537-10, filed 6/16/26 (no misprint, this case is antique) back in November, 2023, when they sought overpayment relief for the enhanced Section 6662 accuracy chop they claim they paid, because the Ks still owed tax, interest and penalties. Turns out the Ks were in one of those depreciated currency partnership dodges, but a partner other than the TMP settled out for a 10% Section 6662(a) chop back in 2009.

Now the Ks want to settle out the whole deficiency and the 10% chop just like the former partners did, just a wee bit late.

“After the Court issued its Order, petitioners made an additional payment for [year at issue]. The parties also stipulated that petitioners have paid the entire amount of tax, penalty, and interest that would be due if respondent’s determinations in the notice of deficiency and notice of computational adjustment are sustained. Additionally, petitioners submitted a refund claim in response to the notice of computational adjustment.” Order, at p. 2.

Obviously, this is under the now-defunct TEFRA régime. Chops were partnership items, hence affected items as to partners, so couldn’t be litigated at partner level, even if included in a SND. No Section 6512(b) overpayment jurisdiction unless compliance is had with Reg. Section 301.6611-1(b) , namely, “the entire tax liability (including any interest, addition to tax, or additional amount is satisfied.” Order, at p. 3.

Well, it has, belatedly.

But aren’t Rule 161s post-trial? Generally (love that word) but see Bedrosian, 144 T. C. 10, and my blogpost “Mox Nix,” 3/17/15.

Changed circumstances, so ex-Ch J TBS tosses the former toss and leaves the parties to clean up.

And a Taishoff “Good Job” to the Ks trusty attorneys for getting the client to pony up what has to be a heavy-duty amount and getting IRS to agree.

I’ve quoted Rudy Kipling’s advice to the infantry before now, but it was pointed at developing facts. Now it’s pointed at getting those facts into the administrative record. Even in non-record rule cases, treat the record as your sole chance to make your case.

That’s Judge Mark V. (“Vittorio Emanuele”) Holmes’ advice to Richard A. Garber, Docket No. 11630-25W, filed 6/15/26.

Richard wants to supplement (not complete, as Charles Jeane’s hardlaboring clerks rename Richard’s motion) the record with a deposition not yet taken of a former agent (RA? SA?). This former agent might know something about what IRS collected from Target by way of fines or forfeitures. And there’s a press release from the US attorney for NDNY that Richard wants in.

Problem is, Richard hasn’t got the right stuff. Speculation about what the former agent might know, and no firm connection between press release and what use IRS made of Richard’s information aren’t enough.

“Someone who wants to add evidence to the administrative record in the form of a deposition has to make a ’significant showing’ that the requested deposition would reveal material in the IRS’s possession ‘indicative of bad faith or an incomplete record.’” Prescott v. Commissioner, T.C. Memo. 2025-121 at *6 (internal citations omitted).” Order, at pp. 1-2.

For Tom Prescott’s story, see my blogpost “Three on a Match,” 11/19/25.

But IRS did collected some money from Target. So Judge Holmes directs Richard “to review the administrative record, and then try to link the information that he provided to what was collected.”  Order, at p. 2. 

Credit is due constant reader Bob Kamman, Esq., for pointing out a seemingly innocuous request by Ch J Patrick J. (“Scholar Pat”) Urda in Capitol Places II Owner, LLC, Historic Preservation Fund 2014 LLC, A Partner Other Than the Tax Matters Partner, Docket No.  16536-23, filed 6/12/26.

Unhappily, the DAWSON Genius Baristas have posted this order in a format wherefrom I cannot cut-and-paste, but possibly their reason in this case is made clear in the text.

Could someone have tinkered with the language of a Supreme Court opinion? Check out a trusted version of 464 US 386, at p. 391. Then compare with Order, at p. 1.

The refrain of the Mexican folksong first quoted at the head hereof may be the answer.