Thus Judge Albert G (“Scholar Al”) Lauber disposes of Section 7806(b)’s injunction that location of a Code section raises no inference, implication, or presumption of its contents. Clair R. Couturier, Jr., T. C. Memo. 2024-6, filed 1/17/24, says that it doesn’t matter where Congress placed Section 4973, it’s still a chop and thus Boss Hossable.

Clair’s been here before; he sought sealing back in 2019 (denied), tried estoppel against IRS (ditto), and his expert played the Michael Corleone classic gambit last September and lost.

Today, Clair claims the 6% excise tax on his $25 million excess IRA contribution is unBoss Hossed.

“The flush text of section 4973(a) refers to this exaction four times, in each case describing it as a ‘tax.’ The term “penalty” appears nowhere in section 4973(a) or in any of the provision’s other six subsections. The statute’s plain text thus establishes that the exaction imposed by section 4973 is a ‘tax’ under the Code.” T. C. Memo. 2024-6, at p. 4.

Besides, Subtitle D, Chapter 43, has many excise taxes triggered by pension plans and the like. Judge Scholar Al lists them, and notes that many of them direct conduct by the taxed, but that’s nothing new. And as for the 6% being “punitive,” some of the others run to 100% in Section 4975.

Chops are off in Subtitle F, and Boss Hossery has its very own Subchapter C. And additions to tax apply to the Section 4973; if it weren’t a tax, there could be no additions.

Finally, Section 6751(b) was enacted to prevent examiners from coercing settlements by using chops as chips. “Needless to say, a revenue agent could not plausibly assert a section 4973 excise tax at the conclusion of an ordinary income tax audit in an effort to induce settlement. Because section 4973 exactions cannot be used as ‘bargaining chips’ in this way, Congress is unlikely to have envisioned section 6751(b) as applying to them.” T. C. Memo. 2024-6, at p. 8.

Clair wants a functional analysis, but Judge Scholar Al says it’s simple statutory interpretation, and when Congress says “tax” they mean “tax.”