That’s Judge James S. (“Big Jim”) Halpern’s directive to IRS’ counsel in Michael W. Aubin and Kerry A. Aubin, Docket No.  1814-20, filed 12/11/23. This is the ongoing Australian Outback kerfuffle (no, not a burnt Bloomin’ Onion, the hush-hush Pine Gap operation) about the Section 911(a) foreign earned income exclusion for the Pine Gappers.

For the backstory, see my blogpost “Not Even His Hairdresser Knows For Sure – Part Deux,” 6/8/23.

Remember, Section 7121(b) says that a closing agreement signed by Sec’y or delegate is final and conclusive, except fraud, malfeasance, or misrepresentation, and those have been blown away here.

This is the not-unfamiliar case of the boss running out of the office, while telling a subordinate “sign this for me and send it out.”

Mr. S, the signatory upon whom IRS relied, wasn’t in the class named in the Delegation Order. But his job description might get him in under the wire.

“While ‘[t]he development of a delegation order’ is the ‘preferred method’ for effecting a delegation of authority, other forms of delegation may be permissible. See IRM 1.11.4.3 (Oct. 10, 2008). In particular ‘[p]osition descriptions and other documents that describe an official’s duties with sufficient particularity are sufficient to provide the official with the authority necessary to carry out such duties.” Id. at 1.11.4.3.(4).” Order, at p. 2. ( Footnote omitted, but it mandates a proper Delegation Order when litigation is expected).

Mr. S’ job description says he’s “responsible for planning, developing, directing, and implementing a comprehensive, Servicewide, tax treaty administration program that enhances compliance with international tax laws and tax treaties.” Idem, as my expensive colleagues would say.

Well, the US-Australia tax treaty is certainly in play here.

OK, so Mr. S is in. Except he isn’t. He never signed nuttin’. Ms. P. signed. (Names omitted).

IRS “relies on Delegation Order 1-2, IRM 1.2.40.3 (Aug. 29, 1996), which grants to ‘[a]ll supervisory officials’ the authority ‘[t]o designate acting supervisory officials in the Internal Revenue Service.” Respondent argues that Mr. S, ‘[i]n his position as Assistant Deputy Commissioner (International) . . . was a supervisory official.’” Order, at p. 3.

Not good enough for Judge Big Jim, no way.

“Even if we were to accept that Mr. S was a supervisory official, he could not have delegated to Ms. P the authority to exercise the responsibilities of his position if he had received his own authority as Acting Assistant Deputy Commissioner (International) by delegation from another supervisory official under Delegation Order 1-2. The authority granted by Delegation Order 1-2 cannot be redelegated. IRM 1.2.40.3(4) (Aug. 29, 1996). And respondent’s motion does not address the question of how Mr. S received the authority to act as the Assistant Deputy Commissioner (International).” Order, at p. 3.

Formerly, delegation orders were a fave of protesters, but they went out of style when Boss Hossery came along. Guess they’re back.