Judge Goeke is a late entrant in the condundrum stakes, but he has a couple good ones (hi, Judge Holmes) in Antonia Gettridge, Docket No. 16153-23, filed 2/25/26.

Antonia claims a $45K Section 1341 claim of right credit that wipes out year at issue’s taxes and she overstates the withholding for which she claims a refund. IRS issues a SND embodying these, plus some other credits that Judge Goeke can’t make out. There’s also some other income in the mix, but for now the issues are the disallowed Section 1341 credit and the misstated withholding.

To have a Tax Court deficiency case there must first be a deficiency. So, since IRS gave Antonia no rebates, the basic Section 6211 definition here is tax due minus tax reported.

Except.

“Section 6211(b)(4) expands the definition of a deficiency to include the disallowance of certain refundable credits. The expanded definition of a deficiency allows taxpayers to contest the IRS’s disallowance of the designated refundable credits in deficiency proceedings. Under section 6211(b)(4), any excess of refundable credits allowable over the tax imposed by subtitle A, and any excess of reported refundable credits over the tax reported on a taxpayer’s return, ‘shall be taken into account as negative amounts of tax’ for purposes of section 6211(a).” Order, at p. 3.

OK, so Antonia has a valid SND?

Maybe not.

“Section 6211(b)(4)(A) lists the refundable credits in the following Code sections as subject to the deficiency procedures: sections 21, 24, 25A, 32, 34, 35, 36, 36B, 6428, 6428A, 6428B, and 7527A. The section 1341 credit is not among the listed credits.” Ibid., as my expensive former colleagues would say.

So does the disputed Section 1341 claim of right credit give rise to Tax Court jurisdiction?

As for the withholding jumpball, “(T)he amount of federal income tax withholding is not taken into account in determining the amount of a deficiency. Section 6211(b)(1) provides that Tax Imposed and Tax Reported are determined without regard to the section 31 credit for tax withheld on wages. Thus, withholding credits and overstatements are excluded from the definition of a deficiency.  The IRS may summarily assess tax in the amount of an  overstated withholding credit. §§ 6201(a)(3); 6213 (b)(1). Overstated withholding credit is not subject to the deficiency procedures. Accordingly, we will direct the parties to address whether we have jurisdiction in this deficiency case to determine the correct amount of petitioner’s withholding.” Order, at pp. 3-4. (Citations omitted).

So what, if anything, can Judge Goeke decide is the correct amount of Antonia’s withholding?

Submit memos by 4/15/26, along with what else you have to do on that date.

One would think that from anyone from his/her grade school days would remember that to explain a serious health-related absence a doctor’s note was essential. I’m surprised that the well-credentialed trusty attorneys for GO Risk Management, Inc., et al., Docket No. 14012-21, filed 2/25/26, didn’t seek (or allege that they sought but were refused) such.

Said trusty attorneys want to depose MT (name omitted) “…for the purpose of perpetuating his testimony because, petitioners assert, ‘Petitioners have substantial and well-founded concern that MT may not survive until the currently scheduled trial date of July 5, 2026, or that his condition will deteriorate to the point where he will be unable to communicate effectively.’” Order, at p. 1.

Before raising the want of underpinning, Judge Rose E. (“Cracklin'”) Jenkins notes the want of a Rule 81(b)(2) certificate of service on MT. 

Taishoff says maybe trusty attorneys should have foreseen this problem by alleging that MT’s condition precludes personal service, and none of attorney, guardian, conservator, or next friend could be located to receive service (if such were the case). And HIPAA may be a barrier to obtaining medical information.

Howbeit, the underlying problem with the application for deposition remains: “…petitioners provide nothing other than counsel’s assertions in the application in support of the contentions concerning Mr. Theisen’s health.” Order, at p. 1. And as petitioners haven’t shown that MT was served, Judge Jenkins can’t know what MT would say. or even knows about this.

Judge Jenkins has a suggestion.

“Given the allegations concerning MT’s health, the Court might consider granting a procedurally compliant application that provided a better foundation for the necessity and timing for the proposed deposition, as opposed to remote testimony at trial, but the infirmities of the application before the Court warrant its denial.” Order, at p. 1.

Application tossed without prejudice; try again.

Turns out that maybe Judge Travis A. (“Tag”) Greaves and your reporter spoke too soon. Maybe my account of the Section 7436 worker classification 90-day cutoff isn’t the whole story. See Belagio Fine Jewelry, Inc., Docket No. 35762-21, filed 2/24/26.

For the backstory, see my blogposts “Is It or Isn’t it?” 6/25/24, and “It Is!” 4/15/25.

IRS moves to toss Belagio’s petition for failure to state a claim (maybe because Belagio is Golsenized to 11 Cir and maybe Pugsley isn’t the last word) and asks for a decision “determining the proper employment status of the worker at issue, and the proper amount of employment taxes, additions to tax, and penalties due from petitioner.” Order, at p. 1.

Belagio’s representative is present at the motion hearing and doesn’t object. Sounds to Taishoff like a stiped decision. So maybe equitable tolling is available in Section 7436 reclassifications. 

Except.

Judge Tag Greaves orders “respondent’s Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted…is granted, and this case is dismissed because the Petition was not filed within the period prescribed by I.R.C. section 7436(b)(2).” Order, at p. 2.

Taishoff says huh? If petition not timely filed, Court has no jurisdiction, unless equitable tolling applies, which is never discussed. If Court rules petition fails to state a claim, Court must have or assert jurisdiction to do so, and Court only gets jurisdiction with a timely filed (or equitably tolled) petition. Which is it, Judge?

Anyway, Benny the employee gets a two page W-2. And Belagio will get a bill for the Section 6651(a)(2) failure to pay timely add-on when the parties figure it out.