Herbert J. Stokey, T. C. Memo. 2025-44, filed 5/12/25, is 140 (count ’em, 140, and Judge Albert G. (“Scholar Al”) Lauber has) days late with the petition from a SND; so why a T. C. Memo. and not a Ch J boilerplate Hallmark Collective toss?

Herb moved from NY to NJ early in year at issue. Although his last known address was still NY, by moving to NJ prepetition he gets 3 Cir Culp equitable tolling. For the Culp story, see Culp v. Commissioner, No. 22-1789, 2023 WL 4612024 (3d Cir. July 19, 2023.

But all Herb argues about is mailing to last known address. Except the NY address was on his tax return filed most recently before SND issued, and he can’t show he gave Reg. Section 301.6212-2(a) “clear and concise” notice of new address until after the SND issued.

“To be entitled to equitable tolling, a taxpayer must establish that (1) he pursued his rights diligently and (2) extraordinary circumstances beyond his control prevented him from filing on time.” T. C. Memo. 2025-44, at p. 5. (Citations omitted but get them for your memo of law file).

Even if Herb got the SND after the 90-day cutoff, he still waited another 95 (count ’em, 95) days before filing a petition. T. C. Memo. 2025-44, at p. 6. Too long.

Note also Judge Scholar Al recharacterized IRS’ motion for summary J to a motion to dismiss for failure to state a claim upon which relief can be granted. That’s apparently the style for a motion to toss the inequitably tolled.