The two-year-three-year Section 6511 lookbacks get equitable tolling scrutiny, but flunk the Boechler test, in Paul V. Applegarth, T. C. Memo. 2024-107, filed 12/10/24.

No doubt Paul overpaid about an aggregate of $75K in income tax over the two (count ’em, two) years at issue. And no doubt Paul’s refund claims (one of which was dubious at best, an unsigned 1040 sent to IRS’ counsel, not IRS) were too late for the Section 6511 deadlines. And Paul never claims physical or mental impairment.

Judge Morrison finds that, unlike the Section 6330(d)(1) general language that underpins Boechler, P. C. equitable tolling, the “detailed” and “technical” language of section 6511(a) precludes any unguided judicial lookback largesse. “Furthermore, the enactment of the narrow section 6511(h) exception for physical and mental impairment suggests that Congress did not intend there to be a broader equitable-tolling exception to the period in section 6511(b)(2) (or the other periods in section 6511).” T. C. Memo. 2024-107, at p. 13.

Paul sent an unsigned 1040 to IRS’ counsel for the second of the years at issue, asserting the refund, but that’s not a claim, says Judge Morrison. Even if it were, Paul’s overpayments for that year were made outside the three-year-two-year barriers.

So all Paul’s trusty attorneys have is equitable tolling. I give them a Taishoff “Good Try, Hail Mary Division.” And they keep trying, attempting to use some pretrial calendar call colloquy involving Paul and IRS counsel to claim the case was settled with IRS folding the refunds. See T. C. Memo. 2024-107, at pp. 18-19.

No, says Judge Morrison, the only writing was the decision setting forth the amount of the deficiency, not whether it was paid or overpaid. The record contains only an ambiguous reference in an exhibit. Any lawyer who can’t find an ambiguity should,,,but you know the rest.

And while oral stips in open court can constitute settlement of a case, behind which the Court ordinarily may not look, what Paul has here is well below the bar.

Judge Morrison: “For example, if a case is called by the Court, and one-party states on the record that there is a settlement agreement with the other party, and that party states with specificity the essential terms of that settlement agreement, and the other party states that this is the settlement agreement so described, the Court may view this oral discussion as a valid settlement agreement.” T. C. Memo. 2024-107, at p. 18.  

The Boechler silt-stir continues. This should have been a full-dress T. C.