The latest iteration of the Supremes’ ongoing expedition to bring discipline to the wayward acts of Congress and the boardinghouse reach of the Executive founders on sovereign immunity in Riddle Aggregates, LLC, Ornstein-Schuler, LLC, Tax Matters Partner, 165 T.C. 12, filed 12/15/25. This time it’s the “accuracy-related penalty under section 6662(a), (b)(1)–(3), (c), (d), (e), and (h) for an underpayment due to negligence, substantial understatement of income tax, substantial valuation misstatement, and gross valuation misstatement” that, for want of a jury trial, should be held Constitutionally invalid. 1`65 T. C.12, at p. 4.

Jarkesy, you’ll recall, was the shootdown of SEC’s fraud penalties. But those were like an ordinary citizen suing for fraud and seeking punitives, not an exercise of collecting the revenue, a uniquely sovereign function. See my blogpost “Full House,” 8/21/25.

Same story here, says ex-Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan.

“Recently in Silver Moss Properties, LLC v. Commissioner, No. 10646-21, 165 T.C. (Aug. 21, 2025), this Court held that the Seventh Amendment does not apply to suits against the sovereign and that Congress has not otherwise consented to trial by jury in TEFRA partnership-level actions. That holding fully resolves petitioner’s claim here. We see no reason to revisit that holding.” 165 T. C. 12, at p. 4. (Footnote omitted, but see infra.)

“It is well settled that there is no right or mechanism to a trial by jury in either this Court or the Court of Federal Claims.” Silver Moss Props., LLC, 165 T.C., slip. op. at 4–5 (first citing Mathes v. Commissioner, 576 F.2d 70, 71–72 (5th Cir. 1978)(“[A] taxpayer who elects to bring his suit in the Tax Court has no right, statutory or constitutional, to a trial by jury.”), aff’g per curiam T.C. Memo. 1977-220; then citing Swanson v. Commissioner, 65 T.C. 1180, 1181–82 (1976); and then citing Rohland v. United States, 135 Fed. Cl. 36, 38 (2017)). Additionally, a jury trial is not available in. district court for TEFRA partnership-level actions. Id. at 5.” 1645 T. C. 12, at p. 5, footnote 5.

“Petitioner’s Motion [partial summary J] suggests that petitioner itself fundamentally misapprehends the nature of its own suit. Petitioner largely focuses on circumstances in which the government brought judicial actions seeking monetary awards from taxpayers. But here petitioner sued the government, not the other way around. And it is petitioner who seeks to prevent the government from taking the next step in assessing and collecting administratively the tax the government believes is due from Riddle Aggregates’ partners. In this context the analytical framework reflected in petitioner’s Motion papers is inapplicable, and the authorities on which petitioner relies are inapposite.” 165 T. C.12, at p. 5.

Ex-Ch J TBS launches into a historical disquisition anent the history of Section 6662 penalties, their ancestors and progeny. The FUBAR penalty, dissed on Eighth Amendment grounds (“excessive fines”) by 11 Cir in Schwarzbaum, 127 F. 4th 259 (11 Cir, 2025), doesn’t apply here; these chops are remedial, not punitive.

Taishoff says roger that, most affirmative, tell that to the dudes who have to pay.

I see my reader, whom I’ll call Mr. Mac, and my colleague whom I’ll name, Lyle B. (“Full-Court”) Press, Esq., were on the losing side. For now. Maybe this one gets to the Supremes.