This is an edited repost of a blogpost I inadvertently deleted while trying to edit a typo on the Firefox browser; Firefox is incompatible with WordPress, the platform wherein this my blog lives, moves, and has its being, as I found to my chagrin.

Brendan James Trainor, Docket No. 14996-22, filed 4/19/22, conflates liability with deficiency, and trots out some protester jive, but Judge Mark V. (“Vittorio Emanuele”) Holmes, finds “a couple quirks that merit discussion” to spur his ongoing war with the partitive genitive. Order, at p. 1.

One, the deficiency doesn’t include any withholding credits. BJ owes less than the deficiency.

Two, BJ’s deficiency arises from unreported income based on third-party reporting, as reflected in an AUR. IRS’ counsel admits in its pretrial memorandum that they need proof of Section 6751(b) Boss Hossery, but says they’ll put in on the trial, which they don’t. There’s no CPAF attached to the SND, nor is there one in the parties’ stip. Order, at p. 3.

There is a saver, but IRS doesn’t pick it up. Judge Holmes sets it forth in a footnote.

“Section 6751(b)(2)(B) creates an exception to the usual requirement that the IRS has to show supervisory approval for a penalty for a penalty that is ‘automatically calculated through electronic means.’ And we’ve held that this exception applies to substantial-understatement penalties determined by the IRS’s computers in an Automated Correspondence Exam or through the Automated Underreporter program. Wahlquist [sic; should be Walquist] v. Commissioner, 152 T.C. 61, 70-71 (2019).” Order, at p. 3, footnote 1.

“We’ve also held that, when the only mention of a penalty under section 6662 is the generic language listing every type of penalty under that section – exactly the language that’s in the notice that the IRS sent to Mr. Trainor – we have to look to any more specific language in the approval form. See Rogers v. Commissioner, 118 T.C.M. 79, 91 (2019).” Order, at pp. 3-4.

For Walquist, see my blogpost “I Sing the Penalty Electronic – Part Deux,” 2/25/19. For Rogers, see my blogpost “I Must Make Amends – Part Deux,” 5/30/19.

No CPAF, no chops. 

Judge Nega cannot tell whether the response of Spencer Olson, Docket No. 16457-24L, filed 4/30/26, to the Section 6662 chop AUR laid upon him before issuance of the SND that gave rise to this CDP was acted upon, as abatement thereof never made it into the account transcript incorporated in the administrative record. 

Judge Nega Judge-‘spains why this matters.

“AUR penalties require supervisory approval to be included in the Notice of Deficiency if the taxpayer responds to a notice of the penalty prior to the issuance of the Notice of Deficiency. SO J appears to have concluded that petitioner made such a response in this case and that no supervisory approval was secured, making the penalty invalidly assessed when it was included in the Notice of Deficiency. See § 6751(b)(1).” Order, at p. 1. (Name omitted).

Moreover, “(A)fter deciding that the penalty must be abated, SO J appears to have completed a Form 3870, Request for Adjustment, on September 5, 2024, requesting that the section 6662 penalty be abated. This request is mentioned in the Notice of Determination issued on September 17, 2024, but nothing in the record makes it clear whether this request was actually processed.” Order, at p. 1. (Name omitted).

So let IRS’ counsel dish whether the chop is off the table, so Judge Nega needn’t deal with it.

Takeaway- Although electronically-assessed chops are Boss Hoss-exempt per Section 6751(b)(2)(B), there is an escape hatch for those who move quickly.

My long-running series on Tax Court depositions continues with Chad Burris & Julie Burris, et al., Docket No. 18712-22, filed 4/29/26. Judge Cary Douglas (“CD”) Pugh gives IRS more time to file document demands, based on Chad’s & Julie’s trusty attorneys slowplaying document production. See my blogpost “Scrapbook 3/27/26 and a Leftover,” 3/27/26.

But with trial 120 (count ’em, 120) days away, IRS says it may want to depose three (count ’em, three) nonparties, depending upon what’s in the aforesaid slowplayed documents.

That’s a bridge too far for Judge CD Pugh.

“Respondent also represents that depositions of three key persons may be needed depending on information respondent obtains through petitioners’ documents, informal communication with petitioners, and the stipulation process. The sudden need for depositions of three key persons comes too late, especially if the information may be obtained from other sources. We are reluctant to require a nonparty to incur the expense that necessarily accompanies a notice of deposition that the nonparty and petitioner might dispute unless and until we conclude that respondent has established that the information may not be obtained by other means.” Order, at p. 2.

Once again, Tax Court depositions are anything but the daily grist that comes to the mill in other courts.

It was obviously adopted as a benefit to the pro se or pro bono, so that a written statement (with any necessary exhibits) may substitute for personal attendance at a motion hearing. Multiple motions may be made and heard years before trial; Rule 50(c) was adopted before remote hearings became commonplace. A pro se of limited means, or a pro bono with no payday, should not have to travel to be heard.

Except.

Lola M. Hussey, Docket No. 1870-24L, filed 4/28/26, submitted a Rule 50(c) written statement in support of her Rule 161 reconsideration motion. And lost.

“Counsel for respondent appeared, objected to the relief requested in the motion, and offered point-by-point responses to the arguments advanced in the motion.” Order, at p. 1.

Now STJ Lewis (“A Name for the Ages”) Carluzzo doesn’t tell us what arguments tipped the scales, or how Lola’s arguments fell short. Without facts, I won’t speculate that Lola’s personal presence and response would have made any difference. Her past record certainly doesn’t so indicate. See my blogposts “Milk Run,” 12/26/25, and “Milking the Milk Run,” 2/11/26.

But IRS certainly has poured resources into a case that looks, at least superficially on the past record, like a walkover.

So practitioners might want to consider a personal appearance at a motion hearing, even if meager resources are stretched thinner.

As the Metropolitan Opera Company puts it “The Voice Must Be Heard.”

In order to achieve the result long and loudly touted by the CLEfloggers, you have to make proper requests and demands. Duane P. Kuck & Cindy-Leigh Kuck, Docket No. 13722-24, filed 4/27/26 didn’t, says Judge Benjamin A. (“Trey”) Guider, III.

DP and Cindy-Leigh were offside with their Branerton request, serving before IRS had answered, hence the case wasn’t “at issue” as required by Rule 38. Hence, no sanctions.

Next, formal discovery must wait 30 (count ’em, 30) days after case is at issue before formal discovery can commence. DP and Cindy-Leigh served their interrogs five (count ’em, five) days after case at issue, hence Rule 70(a)(2) bars Rule 104(a) sanctions for IRS nonreponse.

DP and Cindy-Leigh have a point, though. IRS’ reasons why their charitable donation deductions were disallowed wasn’t stated in the Form 886 attached to the SND; all the 886 said was the deduction was disallowed.

OK, says Judge Trey Guider, except.

“However, the 27-page Form 886 sent to petitioners in the March 19, 2025, administrative file– and attached to petitioners’ motion for sanctions as Exhibit 2–contains a comprehensive explanation of why the noncash charitable deductions were disallowed. While this document was not attached to the NOD as respondent stated, it has nonetheless been in petitioners’ possession for more than a year. And the fact that petitioners attached this Form 886-A to their motion acknowledges their awareness of the document and its contents. As such, sanctions are not warranted.” Order, at pp. 2-3.

No general bad-faith sanctions, either, as Rule 104(a)s are only available when a party disobeys a court order, and there are none here.

Taishoff respectfully asks Tax Court judges to denominate 90-day letters (Section 6213(a) notices of deficiency) as either SNODs or SNDs (Statutory Notices of Deficiency) and not NODs, to avoid confusion with Notices of Determination, such as result from CDPs, EE-vs-IC classifications, 501(c)(3) revocations, whistleblower award denials or rejections, Section 7345 passport grabs, pension plan revocations, interest abatement denials, et hoc genus omne. 

Someone at The Western Union Company and Subsidiaries, Docket No. 10368-25, filed 4/24/26, filed Form 1128 instead of Form 5471, so maybe so might could be its Section 898(c)(2) short-year, one-month-cutoff election wasn’t approved, only received, by IRS.

Ex-Ch J Michael B. (“Iron Mike”) Thornton says it’s a question of fact whether the letter Western U relies upon is an “acceptance” or merely a “receipt.” The letter is stamped “Received,” but even that has been crossed out by an unknown hand, which also crossed out the date stamped thereon.

Western U claims IRS issued a Rev. Proc. after they elected the short year, which “is substantively invalid, as contrary to section 898(c)(2), and procedurally invalid for failure to follow the notice and comment procedures under the Administrative Procedure Act, 5 U.S.C. section 553.” Order, at pp. 1-2. Moreover, even if valid, the Rev. Proc. isn’t retroactive.

Maybe so might could be I don’t have to go there, says ex-Ch J Iron Mike. I’ll deny Western U summary J without prejudice, and let the parties have discovery. Let’s see what turns up.

Taishoff says of course the actions hereinabove described took place eight (count ’em, eight) years ago, so who knows who is still around, and remembers what. And is submitting Form 1128 substantial compliance when Form 5471 is stated in a Rev. Proc.? 

Whether said deficient fruit “don’t spoil the whole bunch, girl,” as the Osmonds remarked 55 (count ’em, 55) years ago, one material fact disputed under oath by one with personal knowledge spoil (I beg your pardon, spoils) the whole summary J motion.

So says Judge Kashi (“My or the High”) Way to IRS’ counsel in Jeffrey Godwin, Docket No. 10699-24L, filed 4/24/26.

Tax Court Judges are always ding, dinging in our ears that “the nonmovant may not rest on the allegations or denials in that party’s pleading.” Order, at p. 2. (Citations omitted).

Nevertheless, Jeff’s trusty attorney steps up, in the teeth of the ABA Model Rule 3.7 ban on lawyer-as-witness, declaring he did show for the meeting at Appeals and that Jeff did provide the financial information requested by the SO. Remember, the specific evidence offered to defeat summary J may not necessarily be admissible on the trial; summary J is issue-finding, not issue-deciding.

Taishoff says my money is on ABA Model Rule 3.7(a)(3) and Jeff’s trusty attorney.

Judge Way doesn’t bother with that question yet. “A single nonconclusory affidavit, based on personal knowledge and addressing a material issue, is sufficient to defeat summary judgment.” Order, at p. 2. (Citation omitted).

Anyway, since the parties filed status reports claiming they’re working on a settlement, Judge Way denies summary J without prejudice.

When I asked recently for feedback from readers, frequent commenter Bob Kamman, Esq., facetiously suggested “(M)ore opera reviews. Every Tax Court case is the same, but every Met production is different.” While not quite so obliging as Judge David Gustafson, I am willing to try.

It’s been years since I last saw Eugene Onegin at the Met, but happy memories persist, so I looked forward to last night’s (April 23) performance. There was plenty to like, but a perfect performance is not yet.

In an almost all-Slavic cast, Frenchman Stanislas de Barbeyrac was a stand-out Lenski, great power and presence, and made you believe he was a poet. He dominated the second act, which is quite a feat, as Maria Barakova’s Olga was one to remember. Barakova, who must stand close to two (count ’em, two) meters tall with voice to match (classic Russian iron-throat mezzo), looked ready to beat up both tenor and bass-baritone singlehanded, despite being twice floored during a hyperathletic struggle with her jealous lover.

Lithuania contributed Asmik Grigorian, for which many thanks. An incandescent Tatiana in the badly-staged letter scene, she turned it up in the third act. Likerwise, I do not grasp why Deborah Warner has Iurii Samoilov stagger about the stage in the third act as if he were playing the Flying Dutchman in a full gale.

Speaking of Samoilov, he has a serviceable voice wanting a certain darkening quality for Onegin. He seemed entirely too genial for the role, which needs a Byronesque brooder. For me, Sherrill Milnes had the darkness and brood the role demands, plus of course the voice. It may be the staging; an ultra-physical Onegin isn’t true to the text.

Speaking of staging, using a single set for first and second acts may be easy on the stagehands and the budget, but playing the letter scene other than in Tatiana’s bedroom (as was done in the 1977 production I remember) is like watching from the bleachers a skilled gemcutter at work on the pitcher’s mound in Yankee Stadium. The smallness of the bedroom enlarges the passion and tension of the scene. Tatiana must be trapped in the moment emotionally and physically. Grigorian had to do it all with her voice and body; she could have done with help from the stage setting.

I know the current fashion in operatic staging is to have the singers doing basic infantry training PT while belting away; I find it impressive, really I do, but it might be well to rein it in a wee bit. Tenors and bassos flinging sopranos around takes some of the magic away.

Tony Stevenson was a magical Monsieur Triquet, and the minor roles are well-served. Good to see Richard Bernstein again, even briefly as Zaretski.

Cannot finish with a loud “bravo” to conductor Timur Zangiev. He reached the ultimate degree of what G. B. Shaw described as the goal of an operatic conductor. He got the Met orchestra to play so as to cause concussion of the brain.

That’s how Judge Cathy (“NCY = No Cognomen Yet”) Fung sees Section 7517, so she denies summary J to Estate of Kurt A. Amplatz, Deceased, Security Bank & Trust Company, Personal Representative, T. C. Memo. 2025-35, filed 4/23/26.

True, IRS never responded at either of the two (count ’em, two) opportunities it had when SecBank asked them for the Section 7517 bukh on how they got their valuation numbers, wherewith to whack the Estate with the Section 6662(b)(5) and (g) estate tax 40% substantial undervaluation chop. IRS says the Form 886 or their expert’s report did the trick, even though IRS never said so until they moved for summary J.

“Even assuming arguendo that respondent did not comply with section 7517, the remaining question is what remedy, if any, is available to the Estate. As a consequence of respondent’s noncompliance, the Estate asks us to preclude respondent from asserting the value of Mr. Amplatz’s estate determined in the Notice of Deficiency—$15,145,000. Precluding respondent from asserting his determined value would leave us with the Estate’s asserted value of zero, rendering the Notice of Deficiency essentially hollow. We decline to grant that relief. The Estate cites no authority to support its requested relief, and we are not aware of any such authority. We presume the ‘legislature says in a statute what it means and means in a statute what it says there.’ By its plain text, section 7517 does not suggest any consequence for noncompliance, let alone the harsh result the Estate seeks. 

“We have previously declined to impose severe consequences for noncompliance where the statute itself supplies no enforcement mechanism.” T. C. Memo. 2026-35, at pp.10-11. (Citations omitted).

If the Estate feels it’s been prejudiced by the nonresponse to its Section 7517 ask, “…the Estate may obtain any other necessary information through discovery. With respect to an expert appraisal under section 7517(b)(3), the statute does not contemplate that the Commissioner employ an expert appraisal in all cases. Section 7517(b)(3) refers to ‘a copy of any expert appraisal made.'” T. C. Memo. 2026-35, at p. 12. (Emphasis by the Court). Here, the expert’s report hadn’t yet been prepared when the Estate made its Section 7517 request.

It is for Congress to provide a remedy.

Of course, by this late date, IRS gets the Boss Hossery right.

Cathryn A. Simmons, T.C. Memo. 2026-34. filed 4/22/26, ran a shop thus entitled with her sister, which sold “handmade and small-batch specialty goods,” T. C. Memo. 2026-34, at p. 2. Cathryn and sister funded operations with multiple credit cards and family loans, all in their individual names.

Ch J Patrick J (“Scholar Pat”) Urda holds the interest the sisters paid on these were personal interest, as their documentation that these were obligations of Stuff, their box-checked LLC. Ch J Scholar Pat also notes that neither the Cathryn’s trusty attorney nor IRS’s counsel raised TEFRA or BBA, but the partnership-level adjustments appear to be correct, T. C. Memo 2026-034, at p. 5, footnote 4.

Want of documentation writes off much of what IRS doesn’t concede, but Stuff’s charity party deductions survive.

“The Commissioner here concedes that Stuff spent $4,407 on advertising and promotion expenses and $20,668 on its charity parties. He asserts, however, that Ms. Simmons did not carry her burden to show\ that the party expenditures served a legitimate business purpose. We disagree. As Ms. Simmons’s sister testified, Stuff used its associations with charities to promote the purchase of its merchandise. For over a month near the end of the year, Stuff hosted parties for various charities, which typically received 15% of the sales from the day or evening of the party. By tying charitable contributions to sales on a particular day, Stuff leveraged the milk of human kindness to encourage customers to visit its store and purchase its merchandise. Stuff saw the expenses associated with its charitable parties as a means to drive sales, and we conclude that they were legitimate business expenses.” T. C. Memo. 2026-34, at p. 12.

Caution is advised, however, before you cite this case in your next charitable donation memo of law.

“Relying on Treasury Regulation § 1.162-15(a), the Commissioner argues that Stuff’s charity party expenditures were not legitimate expenses because they were not made with a reasonable expectation of financial return commensurate with the amount of payment. We note that the version of the regulation on which the Commissioner relies was not issued until 2020 and has no applicability to Stuff’s 2017 tax year. See Treas. Reg. § 1.162-15(a)(4).” T. C. Memo. 2026-34, at p.12, footnote 10.

Cathryn’s trusty attorney did well with a poor set of facts, earning a Taishoff “Good Job, third class.”