I note STJ Peter J. (“HB”) Panuthos’ Order permitting IRS to amend its answer out of time in Ashref Zarmuh, Docket No. 7127-22, filed 3/23/26, as a cautionary tale.

IRS moves to amend out of time (that means late) to up the deficiency and the Section 6662(a) chop. Ashref’s trusty attorney objects this gives IRS “a second bite at the apple.” Order, at p. 2.

STJ HB Panuthos tells the story.

“The increased deficiency and penalty arise from gross receipts on Form Schedule C of an unsigned Form 1040 provided to respondent by petitioner’s counsel as part of informal discovery. The Form Schedule C was not part of the Form 1040 electronically filed by petitioner.” Order, at p.1.

Amendment of pleadings is granted absent prejudice.

“Petitioner has not demonstrated that he would be prejudiced by allowing respondent to assert an increased deficiency at this time. The case is not calendared for trial and no formal discovery is reflected on the record. Additionally, respondent will bear the burden of proof on this increased deficiency, pursuant to Tax Court Rule 142, thus further ameliorating any potential prejudice.” Order, at p. 2. (Citation omitted).  

Practitioner, make sure you have your client’s documents, all of them, in-hand, before you ever draft a petition. If time is short, file a generic petition and amend later. E-filing can be hazardous as well as helpful; make sure you have reviewed all documents as-filed before you file.

Edited to add, 3/23/26: Especially beware of some of these “free file e-file” software services, which don’t permit the filing of schedules.

That tactic doesn’t work in Judge Courtney D. (“CD”) Jones’ division, although the approach of the Cup playoffs makes us old-time fans recollect the great Bobby Clarke of the Broad Street Bullies doing that thing again and again.

Gurpreet S. Padda & Pamela B. Kane, Docket No. 7260-19, filed 3/20/26, and IRS tell Judge CD Jones that really truly they only need 90 (count ’em, 90) days more to stip out both this case and Docket No.15807-22.

Judge CD Jones says that’s cool but move the puck (although she puts it more elegantly than I).

“The Court appreciates the parties’ representations and will grant the requested 90 days to file a stipulated decision. Nevertheless, the Court notes that the Petition in Docket No. 7260-19 was filed more than six years ago (see Doc. 1), and the Petition in Docket No. 15807-22 was filed more than three years ago (see Doc. 1). Given the age of the cases, the parties are advised that the Court will be inclined to restore each case to the general docket so that it can be calendared for trial, if a proposed stipulated decision is not filed in 90 days.” Order, at p. 1.

I’ve often before now suggested that either the Ch J or an administrative judge traverse the dockets and bestir dilatory litigants to “stip out or try the case now.”  Moreover, she “strongly encourages the parties to meet in person, if at all possible.” Order, at p. 1. (Emphasis by the Court).

It would be presumptuous of me to award Taishoff “Good Jobs” to Judges but I can express hearty agreement with Judge CD Jones’ approach.

No, not an award from the Bureau of Prisons. Michael Smith, T. C. Memo. 2026-25, filed 3/19/26, is imprisoned in one tax year by Section 86(d)(2)(A).

Mr. Smith applied for and got SSDI. But in the year wherein he was paid both a lump sum and periodic payments he was also gainfully employed. SSA wanted our money back, so Mr. Smith paid it back over the following two (count ’em, two) years.

He never reported the SSDI payments in the year received.

Mr. Smith says it’s like he was loaned money (nontaxable) which he paid back, but the statute forecloses Judge Albert G. (“Scholar Al”) Lauber from seeing it that way.

“We understand why petitioner views his predicament in this way, but this Court is bound by the provisions of the Code. Petitioner does not dispute that he received SSDI benefits in 2022, and he must include those payments in gross income to the extent provided in section 86. His repayments during 2023 and 2024 do not affect his 2022 tax liability because the payments he received during 2022 are reduced only by ‘any repayment made by the taxpayer during the taxable year.’ § 86(d)(2)(A) (emphasis added). This rule is one example of the ‘annual accounting principle’ that governs computation of taxable income generally.” T. C. Memo. 2026-25, at p. 4.

Generally (love that word!), each year stands on its own.

Claim of right is also barred by the explicit words of the statute.

No, not the usual six or seven pager with its injunction to play nice and prep for trial. Jones Bluff, LLC, Green Rock Management, LLC, Partnership Representative, 166 T. C. 6, filed 3/19/26, claim that the partners therein are deprived of due process because the Bipartisan Budget Act of 2015 vests sole right to challenge the FPA IRS unleashed on the Jones Bluffers via the Green Rockers.

Ch J Urda, and Judges Buch, Nega, Pugh, Ashford, Copeland, Jones, Toro, Greaves, Marshall, Weiler, Way, Landy, Arbeit, Guider, Jenkins, and Fung aren’t buying. Ex-Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan tells us why.

After a review of partnership taxation from before TEFRA to the current BBA régime, the Green Rockers are without standing to assert the claims of the Jones Bluff partners. Sure, the Green Rockers have standing to fight the FPA. But do they have standing to represent the partners?

“The third-party standing inquiry adds a second set of prudential considerations to the Article III requirement of injury in fact. Once a party has satisfied the requirements of Article III standing, the doctrine of third-party standing requires a plaintiff to meet additional factors to assert another party’s rights. A decision to grant third-party standing is one of ‘judicial self-governance.’” 166 T. C. 6, at p. 9. (Citations omitted). And courts are reluctant to do so except in First Amendment cases. 

Now there is a close relationship between partnership and partners, satisfying one branch of the third-party standing test. But the Green Rockers fail to satisfy the other branch, that the third party is hindered in seeking redress if third-party standing is withheld. There’s always a CDP or a pay-and-seek-refund in USDC, 166 T. C. 6, at p. 11, footnote 6.

Moreover, the summary J motion here isn’t ripe for adjudication. BBA section 6226 lets the partnership push out liability to the partners, or pay at partnership level. But that depends on whether there’s liability at all, and nobody knows that until trial and decision final beyond appeal. Courts refrain from deciding cases where the result will depend on contingent future events that may or may not happen.

“The passing on of that liability to the individual members will occur, if at all, as a result of petitioner’s actions and not respondent’s actions. Petitioner’s actions therefore are ‘contingent future events’ that render the claims it is making on behalf of the individual members not ripe at this time.” 166 T. C. 6, at p. 12. (Footnote omitted).

Judge Buch concurs, joined by Judges Copeland, Way, Jenkins, and Fung.

The Green Rockers’ claim that TEFRA let partners intervene is misleading. Some partners (like one-percenters in large partnerships) were more equal than the non-notice types. The non-noticed might be bound in TEFRA cases by decisions which no partner entitled to petition did so, or of which they were unaware, or which stiped out without their consent. And all that survived due process challenge. 

Whether the BBA communications provisions are valid or not is beyond the scope of this case. And if the PR, like predecessor TMP, didn’t tell the non-noticed, that’s not IRS’ fault.

Finally, we get another vintage Judge Ronald L. (“Ingenuity”) Buch in full cry as he quotes from Vander Heide T. C. Memo. 1996-74, at p. 8: “We sympathize with [the partners], but must point out that [they] are not victims of [the Commissioner] or the Internal Revenue Code. They are victims of unscrupulous purveyors of tax shelters . . . . [They] are also victims of their own greed and naivete by investing in these scams, obtaining outrageous deductions and credits without paying attention to the details of the tax laws, nor putting into place some sort of check and balance system to monitor their own investments.” 

Cf. my blogpost “Judge Buch Says It All Here,:” 7/17/25.

The mysterious English Elizabethan poet was once charged, but never convicted, with counterfeiting money. He supposedly said that he had as good a right to coin money as Queen Elizabeth I (or II, for that matter, I suppose).

Benjamin A. Rogovy & Carol J. Castellon Miranda, Docket No. 17513-24, filed 3/18/26, bitcoin aficionados, would agree. Howbeit, IRS claims they were hard-forked, and thus owe tax.

Judge Ronald L. (“Ingenuity”) Buch understands these things, which I totally do not, despite having among my nearest and dearest one who can block a chain with the best of them. So I’ll let Judge Ingenuity Buch judge-‘splain.

“Bitcoin is a cryptocurrency that can be traded, exchanged into fiat currencies, and used to pay for goods and services. See I.R.S. Notice 2014-21, 2014-16 I.R.B. 938. Bitcoin exists on a blockchain, which is a public ledger of cryptocurrency transactions. The Bitcoin blockchain is governed by a set of rules and technical standards, and any changes to the protocols governing the blockchain require consensus from the Bitcoin network, which includes all participants interacting on the blockchain.

“Bitcoin is held on the blockchain at a specific address. A participant can send Bitcoin to another address on the blockchain using public and private keys. These keys are alphanumeric codes that serve a similar function to a bank account password (private) and a bank account number (public). Private keys are stored in ‘wallets’ and public keys are shortened into a ‘wallet address’ which is the identifier for specific Bitcoin addresses.” Order, at p. 2.

But Ben’s problems start at the fork. He got some forked bitcoins.

“The blockchain can split in a process called a ‘hard fork.’ A hard fork occurs when the blockchain is copied and a new protocol is adopted for the newly copied blockchain, thus creating a forked blockchain. This forked blockchain is an exact copy of the legacy blockchain at the time of the fork, but future transactions on the forked blockchain will follow the new protocol. A hard fork has no impact on the continued functioning of the legacy blockchain, and it does not alter the holdings of the legacy cryptocurrency. After a hard fork, an individual who has a wallet that controls a cryptocurrency on the legacy blockchain also has a corresponding wallet address and public key for the forked blockchain that represents the newly ‘forked coins.’ The number of forked coins in the forked blockchain wallet corresponds to the number of coins in the legacy wallet. After a hard fork, an individual would need to take additional steps to obtain the forked coins.” Id, as my expensive ex-colleagues would say.

The question is did Ben actually have constructive receipt of the forked coins. IRS claims he had receipt of $9 million worth. Ben claims he didn’t, and wants summary J.

He doesn’t get it. Too many fact questions.

I have eschewed all the obvious puns about the forking process.

To any who object that I put out too many discovery blogposts, that’s what takes up the greatest number of Tax Court Order pages beyond routine pay-and-amend or tossed-for-lateness. The CLE merchants who peddled “win your case at discovery” the last thirty (count ’em, thirty) or so years have swept the board. Pretrial faceoffs are the game; if the game itself takes place at all, it’s an afterthought.

By way of illustration of the foregoing (as my expensive former colleagues say), here’s Judge Rose E. (“Cracklin'”) Jenkins unloading eight (count ’em, eight) pages anent document production in GO Management Inc., et al., Docket No. 14012-21, filed 3/17/26, another microcaptivity dodge. 

Most of the Order deals with case-specifics, but there is one general interest point. I’ll let Judge Jenkins judge–‘splain.

“…despite respondent’s request for documents to be produced in their native format, each document produced was produced as a PDF file. Although referenced, respondent’s electronically stored information provided previously in connection with informal discovery requests, and respondent provided them with a follow-up request to provide the documents in accordance with such specifications…. Respondent also states that petitioners at no point raised concerns about the omission of the specifications. The Motion Response states that petitioners provided documents in the format in which they were maintained and, in any event, that respondent’s failure to include the ESI specifications with the Request originally was determinative.

“Respondent did make an ESI specifications request in the Request, and petitioners did not, in the Request Response, raise any specific objections to that request, as instructed in Rule 72(b)(2). Even in the Motion Response, petitioners do not raise substantive objections to the ESI specifications but simply argue that they did produce them in the format in which they were stored, which, as noted in the Reply, is the requirement under Rule 72(b)(3)(B) only if a specific form has not been requested. Furthermore, as respondent also points out in the Reply, it is dubious that all of the items produced, e.g., emails and Microsoft Excel files, were stored in PDF format. Accordingly, the Court will order petitioners to produce ESI according to the ESI specifications referenced in the Request.” Order, at. p. 2.

Scrub the metadata is an obvious desideratum. PDF does that. Taishoff says Judge Jenkins is right to call it “dubious” that documents subject, or potentially subject, to a litigation hold would be stored in PDF only. Once preserved in PDF, an essential element of the original is gone. Spoliation of evidence, maybe so? I do hope none of the aforementioned merchants are making this suggestion.

Gets No Help from Boechler

That’s the bad news from Judge Adam B. (“Sport”) Landy to Arbor Vita Corporation d.b.a. Hemediagnostics, 166 T. C. 5, filed 3/16/26. Heme, a CA Corp, was decorpitated by the CA Franchise Tax Board for failure to pay State taxes. While thus powerless, Heme got a NFTL for failure to pay FUTA and file W-2s sustained by Appeals, so Heme timely petitioned. Heme doesn’t get restored to CA good standing until five (count ’em, five) months after the 30-day claim processing limitation has run. 

IRS claims want of corporate capacity and moves to toss. If this sounds familiar to my longtime readers, you’re right; see my blogpost “Being and Nothingness,” 5/7/13.

Except.

Judge Sport Landy checks CA law and finds while revival gives back corporate powers and allows continuation of litigation, it doesn’t deprive opponent in ongoing litigation of claims or defenses. IOW, revival doesn’t defeat SOL Judge Sport Landy is more elegant in his phraseology. “…if relation back of revival would prejudice or invalidate an opposing party’s defense that accrued because of the suspension of corporate status, regardless of the nature of that defense, then revivor cannot retroactively validate an otherwise procedural act.” 166 T. C. 5, at p. 5.

What about Boechler?

Cases like Hom, referred to in my above-cited blogpost, were deficiency cases, not CDPs. So there is some wiggle room for defunct corporations in CDPs. 

Except.

“…31 days after issuing the Notice of Determination, the Commissioner accrued a statute of limitations defense against any petition filed by Arbor Vita. To retroactively validate Arbor Vita’s Petition at this juncture would prejudice the Commissioner’s defense by effectively nullifying it because Arbor Vita’s Petition would be considered valid and timely filed. Therefore, under California law, we cannot relate Arbor Vita’s corporate revival back to the time it filed its Petition.” 166 T. C. 5, at p. 7. (Citations omitted).

Except.

Doesn’t Boechler take away jurisdictional SOL?

Yes, but here the petition was timely filed. While CA law allows revival to validate a notice of appeal filed while a corporation was defunct, the Supremes have said pore l’il ol’ Tax Court isn’t an appellate court. 

Equitable tolling works to extend the 30-day cutoff for petitions from a CDP NOD. But since the petition was timely filed here, there’s nothing to extend.

Heme’s trusty attorney gets a Taishoff “Good Try, Third Class.”

The evidentiary dust-up in Amgen Inc. & Subsidiaries, Docket No. 16017-21, filed 3/16/26, has produced documents and disputes that come near to overshadowing the infamous Epstein files. The record is still open, while Judge Travis A. (“Tag”) Greaves contemplates the approaching tsunami. “During trial, we admitted into evidence thousands of exhibits, and the parties represented that they were working together to stipulate to the admission of thousands more.” Order, at p. 1.

The joust goes on. Judge Tag Greaves, however, gives us a vest-pocket précis of the FRE worth keeping in your memo of law file.

“This Court applies the FRE when deciding evidentiary issues. See § 7453; Rule 143(a). The Court has broad discretion over the admission of evidence. Relevant evidence is generally admissible. FRE 402. Evidence is relevant if ‘it has any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequence in determining the action.’ FRE 401. One exception to the general admissibility of relevant evidence is the rule against hearsay; hearsay may not be offered for the truth of the matter asserted unless an exception applies. FRE 801, 802. The Court may also ‘judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” FRE 201(b).” Order, at pp. 2-3. (Citation omitted).

Judicial notice is routinely taken of SEC filings, for example.

But IRS wants stricter rules here, for evidence submitted to reopen the record. No, says Judge Tag Greaves, the record is still open. “Neither party has sought to close the record, nor has either party sought limitations on the admission of additional evidence while the record remains open. Since the conclusion of trial, we have admitted additional exhibits into evidence pursuant to the FRE, and we see no reason to depart from that practice here.” Order, at p. 3. If IRS claims ambush, they’ll get supplemental briefing to deal with it.

Judge Tag Greaves applies a minor brake-tap to Greenberg’s Express. IRS objects to some petitioner’s exhibits (hi, Judge Holmes). “These exhibits are Notices of Proposed Adjustments and the IRS’s rebuttal to a protest filed by Amgen, in which the IRS discusses whether the expense reimbursements were at arm’s length. These exhibits satisfy the low threshold of relevance due to respondent’s argument on brief that in order to qualify for set-off treatment, respondent must have disallowed the item at issue due to the arm’s length standard. Even if their significance is tempered by the general principle that the actions or views of revenue agents do not bind the Commissioner, the exhibits nonetheless have some tendency to make a material fact ‘more or less probable.’ As such, we will admit these four exhibits. Order, at pp. 3-4). (Footnote omitted, but it says IRS didn’t argue Greenberg’s Express. Taishoff wonders why not).

So go brief whatever you have and answer a few conundra Judge Tag Greaves has for y’all at Order, at p. 5. No need for more oral argument.

By far the largest part of petitions filed in Tax Court are those where Tax Court has no jurisdiction. One would expect this in a court where 80% of petitioners are self-represented and where any courtroom experience a petitioner might have is not in an Article I Court. Still, one wonders at the utility of a court which spends most of its resources deciding that it can’t do anything.

First example, Morgan H. Orlins & Nanette P. Orlins, Docket No.  16203-25S, filed 3/13/25. The Orlinses’ bœuf is a denial of refund based on a Health Savings Account contribution, coming off a CP12 and Letter 474C. Ch J Patrick J. (“Scholar Pat”) Urda trots out the jurisdictional boilerplate and finds neither is a SND. The Orlinses’ expansive view of Tax Court jurisdiction doesn’t clear the Congressional barricade surrounding the Glasshouse at 400 Second Street, NW.

Yes, I know, IRS’ current form of individual SND prominently state that it is a SND. But that of course is not the whole story.

“It is well settled that no particular form is required for the notice of deficiency to be valid. See Benzvi v.Commissioner, 787 F.2d1541,1542(11th Cir. 1986); Jarvis v. Commissioner, 78 T.C. 646, 655 (1982). The Court of Appeals for the Eleventh Circuit, the court to which this case is appealable barring a stipulation to the contrary, has held that the notice will be treated as valid if the Commissioner demonstrates that ‘the IRS has determined that a deficiency exists for a particular year and specify the amount of the deficiency.’ Stoecklin v. Commissioner, 865 F.2d 1221, 1224 (11th Cir. 1989) (quoting Benzvi v. Commissioner, 787 F.2d at 1542), aff’g. T.C. Memo. 1987-453.” See my blogpost “Scar Tissue,” 4/14/17.

So how is a petitioner to know what might be a SND, even if it doesn’t say so? The requirement that the SND provide contact info for TAS can apparently be satisfied even without the particularity mandated by Section 6212(a) that “such notice shall include a notice to the taxpayer of the taxpayer’s right to contact a local office of the taxpayer advocate and the location and phone number of the appropriate office.” See my blogpost “Being and Nothingness,” 5/7/13. Merely citing the TAS URL is sufficient.

Next, Carol Schellinck & Edward Schellinck, Docket No. 16098-26P, filed 3/13/26, another attempt to litigate underlying debt in a passport grab. Maybe so Notice CP508C should have written somewhere on it “IF YOU WANT TO CONTEST LIABILITY, DON’T WASTE YOUR TIME.”

My readers doubtless recall the flurry of articles and blogposts a dozen years ago as the Bipartisan Budget Act of 2015 (BBA) was wending its way into law, AFAIK the last enactment to bear the title “Bipartisan.” But I recall none thereof discussing the problem of the misdesignated partnership representative (whom I call the PaRep, but whom Judge Christian N. (“Speedy”) Weiler calls the “PR.”  I’ll use Judge Speedy Weiler’s abbreviation hereafter). 

Judge Speedy Weiler has to confront the issue today in Infinity Cycle, LLC, John L. Green, Partnership Representative, Docket No. 9369-24, filed 3/12/26. B, managing member and 99% interest holder in Infinity Cycle, didn’t designate a PR in its 1065, but subsequently filed Form 8979, Partnership Representative Revocation, Designation, and Resignation, designating his attorney K as its PR for year at issue; names omitted.

When the FPA hit, B tried reaching K, but discovered K was ill and no longer practicing law, so B had Green, attorney for the partnership, file the petition timely. IRS answered, and five (count ’em, five) months later amends, alleging the petition didn’t name the PR or provide the contact info the regs require, so is ineffective and should be tossed. Infinity Cycle files a new 8979, but gets it wrong by not putting in the relevant year(s) for which PR acts and put the new PR, Green, in the wrong place among entities. IRS moves to toss the petition.

Judge Weiler loads up the “somber reasoning and copious citation of precedent” cannons.

“Compliance with Treasury Regulation § 301.6223 and the subsequent revocation and designation of a PR under section 6223 are not the only issues before us. Rather, the precise question here is whether we have jurisdiction under the Code to consider a Petition after amendment and when a succeeding PR ratifies the original filing.” Order, at p. 4.

Rule 60(a) provides for ratification if the right person didn’t sign on to the petition. There’s bushelbasketsful of old TEFRA precedent that BBA didn’t wipe out. And Mr. B submits an affidavit telling the whole tale.

“Here, the original Petition was timely filed by the attorney representing Infinity Cycle. Mr. Green was retained by Mr. B—the managing member of Infinity Cycle. Mr. B authorized Mr. Green to respond to the FPA, and under the circumstances, file a Petition with the Court on behalf of Infinity Cycle. If we were to grant respondent’s Motion to Dismiss, then Infinity Cycle and its partners would have no judicial remedy with respect to the partnership adjustments determined in the FPA. We find the evidence surrounding the filing of this Petition–namely with authorization from the managing member of Infinity Cycle–to be compelling.” Order, at p. 5. (Name omitted.)

“Respondent contends that Form 8979, submitted by Infinity Cycle, was incomplete and not a valid revocation under Treasury Regulation § 301.6223-1(e) since the form did not indicate for which taxable year the Partnership was changing its PR, and incorrectly revoked an entity partnership representative (and designated individual), when in fact K was previously designated as an individual PR for Infinity Cycle. Petitioner argues that while there may have been inconsistencies in revocation and designation of Mr. Green as successor PR, the submission to IRS nevertheless substantially complied with Treasury Regulation §301.6223-1(e). Petitioner contends that the minor discrepancies were not material to Form 8979 as the IRS received actual notice of Infinity Cycle’s intent to designate a new PR. We agree, and conclude the PR revocation made by Infinity Cycle, followed by subsequent designation of Mr. Green, substantially complies with Treasury Regulation § 301.6223-1(e)(5).” Order, at pp. 6-7.

While substantial compliance isn’t always applied, since where compliance is essential to fulfillment of the statute there is no room for “good enough,” where the rule is merely procedural or directory good enough is good enough.

“Under the BBA, the introduction of the concept of the partnership representative was ‘intended to address the shortcomings of the TMP as the representative of the partnership under TEFRA.’ Centralized Partnership Audit Regime, 82 Fed. Reg. 27334, 27338 (June 14, 2017) (proposed regulations). These resolutions to shortcomings included broader selection of those who can be a PR—including a nonpartner—and it provided that the PR had the sole authority to bind the partnership and any final decisions in a proceeding brought under subchapter C of chapter 63. Id. at 27338–39. The purpose of Treasury Regulation § 301.6223-1(e) is to ‘provide[] flexibility to the partnership in [certain] circumstances [where the partnership would like to change the designation], allowing the partnership, through its partners, to revoke a prior designation.” Id. at 27348. Consistent with its purpose we conclude that Treasury Regulation §301.6223-1(e) is merely procedural. A PR was established to be a centralized authority for the partnership. Overall, Treasury Regulation § 301.6223-1(e) requires a taxpayer to inform the IRS by written notice for revocation of a PR and appointment of a successor PR. Therefore, substantial compliance with the requirement will suffice.” Order, at p. 7.

And, ultimately, “respondent does not contend these two discrepancies prejudice the IRS or failed to provide actual notice of the successor PR as required under the regulations.” Order, at p. 8. 

Anyway, Rule 256.6(a) gives Tax Court the power to “take such action as may be necessary to establish the identity of the partnership representative.” Order, at p. 8. Judge Speedy Weiler says he runs his own docket. 

No hurt, no foul.

So welcome aboard, Green, salute the quarterdeck and stand to your kit. And here’s a Taishoff “Good Job, First Class” to pin on your dress blues.