In Uncategorized on 12/08/2022 at 16:42

When I say that this is a nonpolitical blog, I mean it is nonpartisan; I advocate for no policies, grind no axes, support neither programs nor candidates. All those I do elsewhere.

Today I have to inveigh against the current silt-stir, or should I better say maelstrom, that is coming from Boechler, P.C.,  the Supremes’ gift to United States Tax Court.

I chronicled the first attempt of the Tax Court bench to deal with equitable tolling post-Boechler in my blogpost “Ya Can’t Make This Stuff Up – Part Deux,” 4/29/22. But that pioneering effort of ex-Ch J Maurice B (“Mighty Mo”) Foley to extend whatever benefits Boechler might bestow upon the hapless pro se has gone nowhere.

Judge David Gustafson’s corrected masterpiece Hallmark Research Collective is only the final nail on the cliché.

See, for example, Corrie L. Bowman & Anna M. Bowman, 4502-22S, filed 12/8/22. Corrie & Anna, pro sese (natch) are two (count ’em, two) days late with their petition from a SNOD. Howbeit, a docket search shows IRS didn’t get the petition from Tax Court for almost a month, but were able to bang out an answer in two weeks. And IRS didn’t raise the late petition defense.

So maybe the government wasn’t prejudiced by the two day delay in filing.

But Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan issues an OSC why the petition should not be tossed for want of jurisdiction.

The first, basic question when equitable tolling is in view is “was the party against whom equitable tolling is asserted prejudiced?” Had that party changed its position in reliance on the SOL? Was evidence, or witnesses, formerly available rendered unavailable or impaired by passage of time?

But Tax Court does now not consider that question.

In my above-cited blogpost, I described the Boechler opinion as a “psycholinguistic canoe-paddle through our insane English grammar.” Judge David Gustafson refuted Boechler, as to petitions from deficiencies, with “copious citation of precedent” in Hallmark.  

Yes, the history is clear, but that is not the end.

Congress can clear the matter up. Is there to be equitable tolling for SNODs, NODs, or both or neither?

As this is a non-partisan, non-political blog, my position here is that of Lord Melbourne, Prime Minister under Queen Victoria in the mid-Nineteenth Century, at the end of a Cabinet Council. He put his back against the door and said to his colleagues before he let them out of the room—”Now, gentlemen, are we agreed that a sliding scale lowers or raises the price of corn? I do not care myself twopence which it is, but let us all have the same story.”


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