“Thou are a rare noodle, Master. Do what was done last time is thy rule, eh?” G.B. Shaw, Saint Joan, Scene VI

Ex-Ch J Foley dissents, not quite so colorfully,  expressing his disagreement with Hallmark Collective and desiring to extend Boechler, P. C. to deficiency cases in Tiffany Lashun Sanders, 161 T. C. 8, filed 11/2/23. Judge Christian N. (“Speedy”) Weiler joins him. The language of Section 6213(a) is insufficiently clear that the 90-day cutoff is sufficiently disciplined for the Supremes.

Tiffany was a couple days (hi, Judge Holmes) late with her petition from a SNOD, and is willing to drop the case, but Tiffany is from MD, which is in 4 Cir, and 4 Cir hasn’t said anything yet.

Judge Nega has this one, and there’s plenty about 3 Cir in Culp, which failed to find sufficient nexus between jurisdiction and the 90-day cutoff in Section 6213(a). But Judge Nega and the majority hang their hats on the prior construction canon, not stare decisis alone. Prior construction seems to be what Shaw put in Saint Joan’s mouth. Hence Judge Gustafson’s lengthy historical excursus in Hallmark Collective and the majority’s intention to follow their own honest beliefs until the Supremes tell them “no” decide the case. Tiffany is auf’d.

Ch J Kerrigan, Jj Buch, Pugh, Ashford, Urda, Copeland, Toro, Greaves, and Marshall are on board with this.

Judge Courtney D. (“CD”) Jones concurs in result, and Judge Ronald L. (“Ingenuity”) Buch unloads seven (count ’em, seven) pages of somber reasoning and copious citation of precedent concurring, to quell ex-Ch J Foley’s argument, with which all the majority agree. You be the judge who has the better argument.

Taishoff says that while Judge Buch has much to say about Section 7459(d) preclusion in bankruptcy, neither he nor anyone else has addressed the issue of the automatic stay in Section 6213(a), which prevents collection or enforcement while a proceeding is pending, or could be pending. The 90-day cutoff could run, IRS start collecting, then the petition be retroactively resuscitated, then dismissed, and then born again on an appeal. Chaotic result.