Now, as before, I cannot share with my readers the joke of which the title hereof is the punchline. This my blog is strictly G-rated, for reading around the family circle. But IRS’ gimmick du jour, the Boss Hossery summary J motion, brings into sharp focus the inartfully-drafted (to put the best face on it) Section 6751(b). Way back in 2016 I was denouncing the careless language which has caused such confusion. See my blogpost “Money-Back Guarantee Meets the Boss Hoss,” 11/30/16.

For those tuning in late, Section 6751(b) provides “No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate.”

The word “assessed” is the serpent in the garden.

Leave it to Judge Albert G (“Scholar Al”) Lauber to get to the heart of the matter.

“In Kroner v. Commissioner, 48 F.4th 1272, 1276 (11th Cir. 2022), rev’g in part T.C. Memo. 2020-73, the U.S. Court of Appeals for the Eleventh Circuit held that ‘the IRS satisfies [s]ection 6751(b) so long as a supervisor approves an initial determination of a penalty assessment before [the IRS] assesses those penalties.’ The court interpreted the phrase “initial determination of [the] assessment” to refer to the ‘ministerial’ process by which the IRS formally records the tax debt. See id. at 1278.” Sunfish Cove, LLC, Marlin Woods Capital LLC, Tax Matters Partner, Docket No.14163-21, filed 3/23/23.

Except that thus defining the word “assessment” makes hash of the statute. The “ministerial process” of assessment is automatically stayed by Section 6213. Consequently, “initial determination” could take place years after the evil Section 6751(b) was enacted to prevent, namely, the bludgeoning of taxpayers with threats of condign penalties at exam, to coerce unjust settlements. The statute is supposed to curb the juniors’ enthusiasm by letting senior, presumably cooler, heads prevail.

IRS wins partial summary J in the syndicated conservation easement case. There’s enough timely Boss Hossery to keep IRS’ amended claim for Section 6663 75% fraud chops in play.

But the wordplay workaround 11 Cir and Judge Scholar Al need to get around this sloppy draftership could easily be solved by substituting the words “imposed” and “imposition” for “assessed” and “assessment.”

Of course, that would take an act of Congress. As this is a nonpolitical blog, I’ll say no more.