But The Supremes Can

My readers no doubt have noted that I have not yet mentioned Boechler P. C.. v. Com’r, 20-1472, decided 4/21/22. Of course, I was made aware of it by my colleague, Peter Reilly, CPA, as soon as it came out. But I don’t cover appeals as a rule; the blogosphere and the trade press have resources far beyond my reach, and would easily beat my poor efforts to cover these. Moreover, I make no representation and undertake no obligation that I will cover appeals from the Tax Court cases I report. And I never reported Boechler, in Tax Court, as it had nothing new. Then.

Now for what I think.

If equitable tolling is adopted in CDP cases, then IRS may have started collection, then have collection stayed by Section 6330(e) on the late-filed petition after the original thirty-day jurisdictional cutoff, then unstayed by Tax Court after trial or summary J, and possibly restayed on appeal. This is chaos.

The Supremes’ psycholinguistic canoe-paddle through our insane English grammar is stirring up a ton of silt. In proof thereof, here’s Ha Tran, Docket No. 19335-21L, filed 4/29/22.

Ha sends letters apparently alleging innocent spousery, although Ch J Maurice B (“Mighty Mo”) Foley doesn’t so characterize them. At all events, Ha has blown the thirty-day cutoff. Pre-Boechler, that would be Game Over. IRS wants summary J tossing Ha.

“In her objection and letter in opposition to respondent’s motion to dismiss, as supplemented, petitioner does not address respondent’s jurisdictional allegations. Rather, petitioner focuses on explaining the merits of her claims and asserting that her ex-spouse is responsible for their joint tax liabilities…. ” Order, at p. 2.

But Ch J Mighty Mo bows down to the mighty.

“However, for the reasons set forth in Boechler, P.C. v. Commissioner, discussed above, we will deny so much of respondent’s motion to dismiss, as supplemented, relating to [four of] petitioner’s…tax years.” Order, at p. 2.

There was no SNOD or NOD for two (count ’em, two) of petitioner’s tax years, so IRS gets summary J tossing those two, at least until the Supremes rev up their engines again.

Oh Judge Holmes, your metaphor is truly a gift that keeps on giving. What a silt-stir this will be!

I can just see petitioners who got tossed two, three, or even ten years ago, come running back, claiming they were wrongfully tossed, and demanding return of property seized and sold a decade ago, and demanding trillions in damages.

I can imagine the glee of Chas Weiss and his trusty attorney DP (for whom see my blogpost “Ya Can’t Make This Stuff Up,” 8/17/16). Now they can petition late, play the equivalent hearing game, and when the game is up, ask for equitable tolling. Or even better, file late and then decide which card to play. Judge Albert G (“Scholar Al”) Lauber can expect a bushelbasketful of cases from rounders, defiers, protesters, wits, wags, and wiseacres, all playing the Boechler gambit, with variations.

The Supremes claim “we have endeavored ‘to bring some discipline’ to use of the jurisdictional label.” Boechler, at p. 3 (Citation omitted).

Yeah, most F affirmativo, roger that. Supremos, like an Authority even higher than your august Court, you have not brought peace but a sword.