An early lesson all lawyers should learn, even before they are licensed, is to protect the record. Briefly, the contrapositive of the old Yellow Pages (for those of you not card-carrying Medicare members, that was a book with actual yellow paper pages listing businesses and professional service providers) advertising slogan “If it’s out there, it’s in here.” If it’s not in here (in the record), it’s not out there (for judicial review).

Judge Rose E. (“Cracklin'”) Jenkins has a prime example in Halal Farms USA, Inc., Docket No. 2601-21L, filed 11/21/25. You can read the history for yourself at pp. 2-6. Judge Jenkins must unscramble Appeals apparent unawareness of the difference between a C Corp and a Sub S, while trying to deal with the 2009 amendment that blocks the passthrough of Subtitle C employment taxes.

IRS moves for summary J, here a Hail Mary so forlorn that “hopeless” doesn’t begin to describe it.

Here’s a sample.

“…the administrative record’s complete dearth of notes from Appeals from any point in its consideration of petitioner’s issues is not only notable in light of the suggestion in the RO’s notes that Appeals case activity records exist. It also makes it impossible for this Court to understand Appeals’ reasoning and actions with respect to a number of issues. In particular, the lack of tax assessed with respect to petitioner and the RO’s notes about petitioner being an ‘S corp’ and filing an ‘1120S’ suggest that there could be merit to petitioner’s position that it was an S corporation, within the meaning of section 1361, required to file a Form 1120–S, U.S. Income Tax Return for an S Corporation, instead of a Form 1120…. There is no indication of consideration of this issue in the purported attachment to the purported notice of determination, and no notes to otherwise reflect what issues Appeals did consider, leaving this Court to draw inferences in the light most favorable to petitioner to conclude that there was no such consideration.” Order, at p. 8.

And unlike the vast majority of CDP cases where petitioners try to wildcard in liability issues where they blew the prior opportunity to contest, here the Halals did timely raise the issues but there’s nothing in the record to show what Appeals did or didn’t do therewith.

So of course there’s a remand for Appeals to try to get the record straight.

Taishoff says that if this is all IRS has, they had best settle.

I am not jumping on Appeals or IRS here; their errors could well have counterparts on the other side. Rather, I am using this order as a lesson to practitioners on both sides of the scrimmage: protect the record. Make sure it tells your whole side of the story.