The most controversial cricket dismissal, which can get you a fierce debate in many a pub or pavilion on soil whereupon the sun now or formerly never set, is a hardy Tax Court perennial.

It features in Gail Etta Moore, Docket No. 323-23, filed 7/20/26.

Gail Etta says she faxed first a disagreement to the CP 2000 gave her for year at issue and then a Form 843 seeking abatement of interest, but IRS says they got neither. Then Gail sent another Form 843, which IRS did get, but then IRS sent Gail Etta a SND, which she timely petitioned.

Gail Etta stiped out the deficiency. Judge Alina I. (“AIM”) Marshall finds IRS hadn’t assessed interest up to three (count ’em, three) days before the parties filed the stip.  IRS moves to toss because they can’t assess interest while the petition is pending, and didn’t before, so no jurisdiction. Gail Etta “argues that we have jurisdiction to review her interest abatement claim because respondent did not issue her a notice of final determination within the time prescribed under section 6404(h)(1)(A)(ii).” Order, at p. 2.

“Pursuant to section 6404(h), the Court is authorized, in certain circumstances, to ‘determine whether the Secretary’s failure to abate interest under this section was an abuse of discretion.’ However, we do not have jurisdiction pursuant to section 6404(h) unless and until (1) the Secretary has assessed interest and mailed an assessment of interest and (2) the Secretary has mailed his final determination not to abate such interest, or the Secretary has failed to issue a notice of final determination not to abatement interest within 180 days after petitioner filed a request for interest abatement.” Order, at p. 3, followed by copious citation of precedent.

I echo the telehucksters’ nocturnal cry. But wait, there’s more!

“Finally, a Notice of Deficiency cannot be treated as a notice of final determination not to abate interest for purposes of section 6404(h) unless the Commissioner intends it as such.” Order, at p. 3. If the SND expressly excludes any finding relating to interest, or doesn’t mention it at all, it’s not a final determination.

“The Notice of Deficiency does not indicate that respondent gave consideration to whether it was appropriate to abate an assessment of interest in this case. That is unsurprising because respondent has not yet assessed any interest on petitioner’s deficiency for tax year [at issue].” Order, at p. 4.

Though Gail Etta is out lbw, there’s always another day and another match.

“Although we have no jurisdiction to consider petitioner’s dispute as to the interest on the agreed upon deficiency that the IRS has not yet assessed, after the Court enters a decision in this case and the IRS assesses interest on the agreed upon deficiency, petitioner is free to pursue actions against the IRS in accordance with sections 6404(h) and 7481(c).” Order, at p. 4.