It’s a variant on my old mantra “Stipulate, Don’t Capitulate.” When entering into a stipulated decision, be aware that anything written below the judge’s signature, though not a judicial decision, nevertheless is an agreement between the parties, in fact a stipulation, and will be enforced.

Just ask Don L. Rockafellor and Kathleen M. Rockafellor, T. C. Memo. 2023-137, filed 11/14/23, and ask Judge Travis A. (“Tag”) Greaves. There’s a lot about issue preclusion and leg-before-wicket petitioning (petition before NOD), but I want to focus on the stipulated decision Don and IRS entered into back in 2018.

That covered, among other things, a Section 6694(b) preparer chop against Don. IRS dropped the chop for want of Section 6751(b) Boss Hossery. But attached to said decision was a “below the line” (where the judge signed) agreement that  “stated that the preparer penalty was abated for lack of compliance with section 6751(b) but stated it was ‘without prejudice to respondent’s right to reassess the civil penalty under I.R.C. § 6694(b) for the [year at issue] pursuant to the procedures prescribed in the Internal Revenue Code, to the extent permitted by law.’” T. C. Memo. 2023-137, at pp. 14-15.

Don argues SOL on the chop, but a Section 6694(b) chop can be assessed “at any time.”

And a below-the-liner, although not a finding by the Court and not preclusive, is enforceable in accordance with its terms and the law.

For more about these landmines, see my blogpost “Three Point Play,” 10/25/21.

Judge Elizabeth A. (“Tex”) Copeland has issued a corrected opinion in Estate of James E. Caan, Deceased, Jacaan Administrative Trust, Scott Caan, Trustee, Special Administrator, 161 T. C. 6, filed 11/14/23, replacing the 10/18/23 opinion under same caption.

For the backstory, see my blogpost “The Wrong Corleone,” 10/18/23.

However, Judge Tex Copeland has not marked or identified the corrections made, and the Genius Baristas have obliterated the earlier version of this opinion, so I am unable to enlighten you as to exactly what has changed. However, the Estate still loses for the same reasons (so far as I can tell): rollover not of same property (partnership interest redeemed for cash, and cash deposited), and made in tranches far beyond the 60-day cutoff.