I have long been an advocate of summary judgment (summary J), Rule 121, as the best tool for discovery. not only of your adversary’s story, but of your client’s story and of the judge’s take on the whole thing. But while booming the benefits, I haven’t mentioned a concomitant burden: you educate your adversary.

IRS learns this in Kathryn L. Anderton & G. Douglas Anderton, Docket No. 17705-23L, filed 10/15/24. On its face, a run of the mine petition from a CDP NOD, a rejected IA (not eligible for streamlining, and no Form 433-A) and a general request for “abatement of penalties,” without specifics. Order, at p. 2.

IRS’ counsel seem to take this as a walk in the park and move for summary J. And STJ Diana L. (“Sidewalks of New York”) Leyden OKs the IA shootdown; no IA without Form 433-A. Kathryn’s & GDoug’s trusty attorneys got that one wrong, and STJ Di has copious citation of precedent to prove it. Order, at p. 5.

But the AO left the barn door unlocked. The Boss Hoss is on the loose.

“However, the record shows that the Appeals Office did not properly verify that the requirements of all applicable laws and administrative procedures were met in the processing of petitioners’ case.

“The IRS cannot assert a penalty under section 6662 unless it is approved by a supervising manager in writing. I.R.C. § 6751(b). Respondent bears the burden of production with respect to the required managerial approval.” Order, at pp. 5-6.

The AO never checked the administrative record to make sure the magic hoofprint was there. Just relying on the general objection by Kathryn’s and GDoug’s trusty attorneys to bounce the CDP isn’t enough; IRS has to establish they touched all the bases.

So STJ Di sends Kathryn &GDoug back to Appeals for a supplemental hearing. Now both sides know what they need (or what the judge told them they need).

Practitioner, beware. Summary J may teach you more than you wanted to know.