Judge Goecke won’t stir it just yet, but the Boechler, P. C., equitable tolling silt is a definite maybe. Island Shoals Henry 430, LLC, Island Shoals Investments, LLC, A Partner Other Than the Tax Matters Partner. Docket No. 31759-21, filed 2/6/23, is nowise behindhand in slipping the Boechler gambit into IRS’ motion to toss the notice partner for late filing in this TEFRA hangover.

TEFRA may be long gone, but the memory (and the cases) linger on. IRS has eight (count ’em, eight) attorneys deployed, against Island Shoals’ three, and it looks like they’ll need every one of them.

Island Shoals claims the FPAA was sent to the wrong address for the TMP, and the Section 6223(d)(2) notice partner mailing wasn’t timely mailed. So Judge Goecke orders an evidentiary hearing on dates and places (what was sent, when and where).

Though Island Shoals’ trusty attorneys are onto something, Judge Goecke thinks they missed the remedy. “Petitioner has not filed a cross-motion to dismiss, but a decision in its favor on either of the arguments it advances appears to require dismissal. See I.R.C. § 6223(e).” Order, at p. 1. (Citation omitted).

But said trusty attorneys have a backstop, in case they lose the evidentiary hearing; and that’s maybe why they didn’t move to dismiss. Judge Goecke deals with the backstop in a footnote.

“Alternatively, petitioner argues that the deadlines to file a petition in I.R.C. § 6226 are nonjurisdictional and subject to equitable tolling. We understand that we must address this argument only if we decide that the FPAA issued to the tax matter partner was valid and the FPAA was timely mailed to petitioner. Accordingly, we will not address it at this time.” Order, at p. 1, footnote 1.

I am even-handed, favoring neither taxpayer nor IRS. But this time I’m rooting for IRS. I’d love a chance to blog Boechler and Section 6226.

A Taishoff “Thanks, Guys” to the team at Asbury for providing the opportunity..