Paulette Shomo, Docket No. 9309-21L, filed 5/8/25, has truly reprised Strickland W. Gillian’s classic. Even that Obliging Jurist, Judge David Gustafson, could not put Pauline on the compliance track.

Pauline would file late and underpay, year after year, because she chronically underwithheld. After a CDP and remand, when she repeated the process, Judge David Gustafson threw in the cliché.

“This case involves the circumstance of a taxpayer being non-compliant, becoming compliant, and relapsing into non-compliance—a risk inherent in the passage of time during the CDP process. We sometimes criticize IRS Appeals when we think it the CDP hearing too hastily to the disadvantage of the taxpayer, but IRS Appeals must no doubt keep an eye on the consequences of its patience and forbearance: A taxpayer in the CDP process might propose an OIC or an IA when she is up-to-date on her return-filing and payment obligations; but if her CDP proceeding is not complete before the next April 15 rolls around, and if she fails to file her return, then IRS Appeals would have to evaluate her collection alternative in the absence of important information—her mounting liabilities.” Order, at pp. 10-11. (Footnote omitted).

And it’s been seven (count ’em, seven) years since the years-at-issue underpaid taxes have been sitting uncollected. IRS’ forbearance collides with the need to collect the revenue. And Pauline could pay.

But Judge David Gustafson is thorough. IRS bounced the supplemental CDP because of Pauline’s nonfiling, but she subsequently did file. Chenery mandates judging what the agency did and said it did, not what it might have done or said.

“We do not construe the Chenery rule to require that tunnel vision. In the first place, IRS Appeals eschewed such tunnel vision when it moved for a remand (for Ms. Shomo’s benefit) and refrained from asking us to sustain the initial NOD on the basis of the non-compliance that, as of that time, was still uncured. More important, compliance with tax-payment and tax-filing requirements is an ongoing obligation of the CDP petitioner who seeks a collection alternative. Ms. Shomo’s failure to file her returns and correct her under-withholding for 2023 and 2024 are simply the continuation of the non-compliance that rendered her CDP hearings fruitless. It would be perverse if IRS Appeals forfeited its non-compliance contentions by granting latitude to the taxpayer, and if we were to invoke the Chenery rule to punish IRS Appeals for its forbearance, we would discourage the patience we hope that IRS Appeals will extend. In taking 2023 and 2024 into account to sustain the supplemental NOD in this case, we are not inventing new grounds to sustain the supplemental NOD but rather are addressing the same principles that IRS Appeals invoked to deny collection alternatives and sustain the proposed levy.” Order, at pp. 12-13. (Emphasis by the Court).