Section 6751(b) Boss Hossery, at least in its classic form as the ABA Tax Section persuaded Congress to enact it in 1998, is well on its way to the glue factory. 9 Cir and 11 Cir have digested the dictionary chaw of ex-Ch Judge Michael B. (“Iron Mike”) Thornton, and held that the Boss Hoss can sign off whenever, as long as s/he is still Boss Hoss pre-assessment, even if dragged bodily from his/her retirement party to sign off on chops litigated to the Supreme Court years before.

But Judge Patrick J (“Scholar Pat”) Urda removes Boss Hossery to an even higher level, with a dictionary nibble at our old lexicographical canapé “or,” in Rock Bottom BBS, LLC, Barnett Properties, Tax Matters Partner, Docket No. 9145-21, filed 11/3/23.

No doubt their immediate supe, while still immediate supe, signed off on the chops the co-RA examiners recommended at LB&I, before word thereof ever got to the Rockers. IRS didn’t play the usual partial summary J move to nail this down.

But with a little more than one week to go before trial, the Rockers’ trusty attorneys try for summary J, with the following.

“During all times pertinent to the resolution of the pending motion, a provision in the Internal Revenue Manual (IRM) relating to LB&I stated that, ‘[f]or a tax shelter case involving a listed transaction, the decision to impose or not impose an accuracy-related penalty must be approved by the respective Director of Field Operations (DFO).” I.R.M. 20.1.5.2.1(3) (Apr. 22, 2019). In November 2020, the DFOs for the Eastern Compliance and Enterprise Activities Practice Areas issued a blanket approval ‘of the assertion or non-assertion of accuracy-related penalties under IRM 20.1.5.2.1(3)’ for conservation easement cases assigned to LB&I, noting (1) that no such requirement applied to ‘virtually identical’ conservation easement cases assigned to other IRS divisions, (2) the need to treat similarly situated taxpayers the same, and (3) the highly coordinated nature of such cases. [Doc. 56 at 13–14.].” Order, at p. 2 (Footnote omitted, but it says IRS subsequently struck this from the IRM; I wonder why).

The Rockers point out that the section 6751(b)(1) contemplates approval “by the immediate supervisor . . . or such higher level official as the Secretary may designate,” and argues that the IRM’s DFO approval requirements represents a delegation of the authority by the Commissioner that displaces the immediate supe.

Judge Scholar Pat has oodles of reasons (a favorite phrase; see my blogpost “Oodles of Cases, 6/16/23, and “More Virgins, More ‘Oodles’,” 6/20/23) why to deny their motion for partial summary J.

“This argument is wrong for any number of reasons that we will not go into given that trial begins in little more than a week. Suffice to say that the word ‘or’ as used in section 6751(b) permits approval by either of two types of officials, and the requirement here was satisfied by SRA M’s written sign-off as the immediate supervisor.” Order, at p. 3. (Citations, name, and footnote omitted).

Omitted footnote says trusty attorneys haven’t shown any statutory context why “or” isn’t disjunctive, and anyway, IRM confers no rights on petitioners and doesn’t have the force of law.

Besides, the now-discarded Boss Hossblanket is just fine.

So Taishoff asks, why bother with Boss Hossery at all? Why not a general Boss Hossblanket for every chop of every kind everywhere, whenever?