On the tines is James Haber, 166 T. C. 2, filed 2/23/26. James (Little Jim”) Haber, famous immunologist and dodgeflogger who furnished much blogfodder, goes down for Section 6707 assessable chops for Section 6111 nonreportage.

Little Jim’s trusty attorneys elected to try a CDP and avoided a trip to Appeals.  They tried a divisible (partial) payment in USCFC, which tossed them because the Section 6707 chops are nondivisible. Must pay all to seek refund. Fed Cir affirms and denies rehearing. CDP, stayed during USCFC litigation, denies challenge to chops as Little Jim had a prior chance at Appeals. They petition.

No go, says Judge Emin (“Eminent”) Toro.

Reg Section 01.6330-1(e)(3), Q&A-E2 says a trip to Appeals is a prior opportunity to contest chops; Tax Court decisions have upheld the reg. And declining the trip is the same as having chosen the trip. See my blogpost “The CDP Is the Trial,” 9/19/22. Little Jim can’t say the Appeals route would have been “precooked” or meaningless because they never went. Their Chenery claims about which IRS communication was the offer of the Appeals trip likewise fails; all the letters are there. And timeliness of the letters is likewise irrelevant.

There’s the standard Appointments clause argument, but that fails because they never showed up before the AO. Anyway, Tooke took care of that argument. See my blogpost “Scrapbook, 1/29/25.”

Of course, Loper Bright gets a workout, but Judge Eminent Toro has CCA learning to stave off that attack.

Their Fifth Amendment attack is unclear, says Judge Eminent Toro, and the Eighth Amendment argument on the underlying penalties are off the board on prior right to contest.

I give Little Jim’s trusty attorneys a Taishoff “Good Try, Third Class” for effort. They should have read my blogpost “Appeal? Don’t  Appeal? You’re Forked,” 3/20/17.