The Chicago White Sox are playing in the 6751(b) league today, but they strike out on the Notice of Proposed Adjustments (NOPA).

It’s not a “determination,” says Judge Buch. Here’s Tribune Media Company f.k.a. Tribune Company & Affiliates, 2020 T. C. Memo. 2, filed 1/6/20.

The magic language? “Based on the information we now have available and our discussions with you, we believe the proposed adjustment listed below should be included in the revenue agent’s report. However, if you have additional information that would alter or reverse this proposal, please furnish this information as soon as possible.” 2020 T. C. Memo. 2, at p. 20.

But there was no 30-day letter, giving the Sox a chance to appeal. So once again, the silt becomes Clay.

“The first formal communications of the initial determinations of the penalties to which section 6751(b)(1) applied were the notice of deficiency… and the FPAA …. The Commissioner did not send … any document that conferred the opportunity for an administrative appeal, which can be one of the important indicia of formality. Nor did the Commissioner send any other written communication purporting to determine a penalty with any sense of finality. As a result, the notice of deficiency and the FPAA were the Commissioner’s first formal written communications … informing them that the Commissioner had determined to assert penalties.” 2020 T. C. Memo. 2, at p. 17.

And that was what got the Boss Hoss sign-offs.

We all want certainty, bright lines. The issue is what goes on between the lines.