When 11 Cir got done with Section 6751(b) Boss Hossery (see Kroner v. Com’r., 48 F. 4th 1272, 11th Cir. 2022), we had a replay of ex-Ch J Michael B. (“Iron Mike”) Thornton’s dictionary chaw in Graev (see my blogpost “A Non-Christmas Story,” 12/26/16).

“Hard cases make bad law,” my old mentors on The Hill Far Above drummed into my barely-post-adolescent skull, and is that ever true in Kroner. See my blogpost “Imaginary Friend,” 6/1/20. Burt Kroner comes off as a heavy-duty wit, wag, and wiseacre, so 11 Cir wants his head on a platter. Ex-Ch J L Paige (“Iron Fist”) Marvel is no friend of such types, but she properly found IRS was out on chops leg before wicket, having hit Burt with a Letter 915 and then a Letter 950, each time attaching Form 4549, but no Boss Hoss sign-off had yet occurred. 11 Cir went back to “assessed” as entry on IRS’ books, which is where ex-Ch J Iron Mike concluded his dictionary chaw.

By 11 Cir logic, as assessment of a deficiency cannot occur until after judicial resolution (Section 6213(a)), Boss Hossery need not take place until after trial, appeal, remand, retrial, appeal, further appeal, and remand. Given the leisurely pace of Tax Court litigation, assessment may not take place until twenty (count ’em, twenty) years after chops first are mentioned.

True, 11 Cir did require that the Boss Hoss still retain supervisory authority at time of signoff. But as signoff need occur only at the end of the road, one can imagine IRS’ counsel dragging the Boss Hoss from his/her retirement party to scrawl “OK” on the document (which need not be on paper, need not have a wet signature, and need take no specific form), to wave at the last person standing.

This is farcical.

For an application of this schemozzle, see Steven Feller & Louise Feller, Docket No. 11581-02, filed 8/2/23. Unhappily, Steve’s & Lou’s witness made no notes of pre-Boss Hoss discussions of chops with IRS, so can’t specify names or dates, only generally mentioning some IRS types with whom he dealt. Judge Christian N. (“Speedy”) Weiler finds that insufficient to defeat IRS’ motion for (surprise, surprise) partial summary J, even if 11 Cir hadn’t held that Boss Hossery could take place in the sweet bye-and-bye.

“Under section 6751(b), respondent is not required to make a negative showing that a formal communication did not occur. Rather, the taxpayer will be required to produce evidence of a prior formal communication since such communication, if it exists, would have been received by the taxpayer. An earlier communication between an examining agent and a taxpayer regarding potential penalty imposition would not insulate the taxpayer against a future formal determination of penalties. A formal communication by respondent of the penalty to the taxpayer, after supervisory approval has been secured, is the mandate of section 6751(b).” Order, at p. 3, footnote 2. (Citation omitted).

I most respectfully submit the foregoing formulation makes Section 6751(b) worse than worthless; it makes examination a free-fire zone where examining agents can threaten fraud penalties and worse to extort settlements, while Tax Court and 11 Cir piously clutch their dictionaries.