I’ve said it often, any lawyer who can’t find an ambiguity should find another way to make a living. Happily, once again, that Obliging Jurist Judge David Gustafson proves beyond mayhap or peradventure that he has found the right way.

See Denise Celess Garris, Docket No. 22405-19L, filed 7/18/23. Of course, Judge Gustafson has a major assist from IRS and Appeals, who seem unable to decide if they gave Denise Celess a NITL or a NFTL or both, and what happened at Appeals; on a remand, Appeals sustained the NFTL but held the NITL “not now sustained.” Order, at p. 3.

Appeals’ one-size-fits-all NITL-NFTL NOD brings to Judge Gustafson’s memory his famous “and/or”. rant about the Ogden Sunseteers’ use of the ambiguous locution, Order, at p. 2, footnote 1.

Denise Celess wants a vacation of an agreed decision from sixteen (count ’em, sixteen) months ago. The agreed decision confirmed a stipulated installment agreement that Denise Celess claims IRS breached.

The record, however, is a wee bit scanty. “If … the IRS did issue (as it alleges) both a notice of lien filing and a notice of proposed levy, and if (as the IRS seems to assume) Ms. Garris requested a CDP hearing as to both lien and levy, then IRS Appeals’ … determination apparently addressed (and sustained) only the notice of lien filing, and did not constitute a determination as to the levy notice. Thus, Ms. Garris was granted a CDP hearing as to the lien; but as to the levy, the CDP process has not yet been completed.

“Therefore, on these assumptions, Ms. Garris did not have the predicate for filing a Tax Court petition as to any proposed levy. Rather, when she filed her petition, we acquired jurisdiction to review only the lien-based determinations in the… notice.” Order, at p. 5.

My readers will cry out with one voice “30-day SOL on vacations!” Yes, but there’s an exception where Tax Court never had jurisdiction to render the order or decision at issue. And here the supplemental NOD appears to deal with a NITL that never was before the Court. Maybe Boechler, P. C. tolls this mess. Or maybe so there is still a pending NITL CDP that neither Denise Celess nor Appeals knows about.

In any case, let IRS bukh about “…what a taxpayer’s remedy is when, after a CDP case sustaining a notice of determination after the taxpayer and IRS Appeals reached an agreement, the IRS fails (more than 30 days after decision is entered) to honor that agreement.” Order, at p. 6.

But this is Judge Gustafson. He’s a master of the “nudge nudge, wink wink.”

“The Tax Court operates under Congressionally mandated strictures that define what we can and cannot address. The parties sometimes have liberty to go beyond those strictures. This might be a case in which the parties can resolve any disputes more efficiently and justly than the courts can. We encourage them to attempt to do so.” Order, at p. 6.

Settle the case, guys. Before Judge Gustafson finds more ambiguities.