Making his seventh (count ’em, seventh) appearance in this my blog, Clair R. Couturier, Jr., Docket No. 19714-16, filed 8/13/25, or rather his trusty attorneys, whom I’ll call “Alvah’s Guys,” fling a spanner in the IRS’ chopworks.

I’ll let Judge Albert G. (“Scholar Al”) Lauber judge-‘splain.

“In the Notices of Deficiency issued to petitioner respondent determined additions to tax under section 6651(a)(1) for failure to file Forms 5329, Additional Taxes on Qualified Plans (Including IRAs) and Other Tax-Favored Accounts. In determining these additions to tax, respondent relied on this Court’s Opinion in Paschall v. Commissioner, 137 T.C. 8, 21 (2011), which held (among other things) that the “Form 5329 is a tax return within the meaning of section 6011, and failure to file Form 5329 can result in section 6651 additions to tax.” Order, at p. 1. For the Paschall mystery, see my blogposts “Dies Ira,” 7/15/11, and “Retro,” 2/29/24.

Alvah’s Guys go for broke.

“After the trial record in this case was closed, petitioner filed his Simultaneous Opening Brief in which he contended that the Court should overrule Paschall. If the Court were to do that, petitioner says, Form 5329 would be a return required only under the authority of section 6058—which requires the filing of returns respecting tax-deferred plans—and not under the authority of section 6011. In that event, petitioner contends, failure to file Form 5329 could not result in additions to tax under section 6651.” Order, at p. 1.

Taishoff says, wotta move! May not win, but worth a Taishoff “Good Try, Hail Mary Division.”

Howbeit, Alvah’s Guys have rattled IRS counsel.

Wherefore, IRS seeks to amend the answer to assert “an alternative position, that petitioner’s failure to file Forms 5329 generates additions to tax under section 6652(e). That section imposes additions to tax for failure to file a return required by section 6058.” Order, at p. 1.

Except.

IRS never alleged Boss Hossery, because no need to get Boss Hoss sign-off for any addition to tax under section 6651, 6654, 6655, or 6662.” See § 6751(b)(2)(A).

Except.

Section 6652(e) is not among the “blessed communion, fellowship divine” un-Boss Hossed by Section 6751(b)(2)(A).

So IRS moves to reopen the record to wild-card in the declarations of the super and the suped, affirming Boss Hossery, a mere nine (count ’em, nine) years after the petition was filed. Apparently both super and suped are, like the hero of the Platters’ 1959 immortal hit, “still around.”

I’m surprised IRS didn’t just have them sign off now, as assessment hasn’t yet occurred and Clair is Golsenized to the Korner-cutting 9 Cir.

Don’tcha just love this stuff?