No, Barry Holmes Fine and Monica Dias, 167 T. C. 13, filed 9/30/26, are neither of them the intrepid gearjammers of the arctic lakes whose adventures delight the couch cable crowd. It’s their trusty attorney, to whom I award a Taishoff “Good Try, First Class.” Even though said trusty attorney is not a Jersey Boy, he is of the same breed: be the sun high and the ice creaking, he triple-clutches his rig and dashes across the ice, flames shooting three feet high from the stack. “No guts, no glory” is engraved on his front bumper.
Said trusty attorney claims the Form 872-T Notice of Termination of Special Consent to Extend the Time to Assess Tax, his client sent terminated the last of the three (count ’em, three) Forms 872 theretofore exchanged with IRS. Hence, because the SNDs at issue here were issued more than 90 days after IRS got the 872-T, 3SOL had run.
Except.
Judge Tamara Ashford says true, 11 Cir didn’t comment on that when they affirmed Coggin v. Commissioner, T.C. Memo. 1993-209, 1993 Tax Ct. Memo LEXIS 215, at *51–52, aff’d, 71 F.3d 855 (11th Cir. 1996) on other grounds. And Barry and Monica are Golsenized to 11 Cir. Wherefore Kelley v. Commissioner, 45 F.3d 348 (9th Cir. 1995), aff’g T.C. Memo. 1990-15 which mentioned a Form 872-T knocking out a Form 872 doesn’t apply. Anyway, 9 Cir “merely recited the specific facts of that case, not opining as to the legal effect of using Form 872–T to terminate Form 872. Even if the Ninth Circuit did opine as to whether Form 872–T could be used to terminate Form 872, such a holding would be persuasive at best and would have no binding effect on this case, which is appealable to the Eleventh Circuit.” 167 T. C. 13, at p. 9, footnote 6.
The key is the difference between Form 872 Consent to Extend the Time to Assess Tax, and Form 872-A Special Consent to Extend the Time to Assess Tax. Special means special. Form 872-A is an open-ended extension. Form 872 is a fixed-date deal. Even though SOL extensions are waivers and not contracts, Judge Ashford allows contract principles to play a role here.
Open-end contracts are cancelable on reasonable notice. Fixed performance limits are just that…fixed.
Even Form 872-A is clear. “Form 872–A explicitly states that it can be terminated by signing and remitting to the IRS Form 872–T. Likewise, Form 872–T requires a taxpayer to check a box indicating that he or she is using the form to terminate Form 872–A. Indeed, both the IRS and numerous courts have stated that Form 872–T was designed to terminate Form 872–A.” 167 T. C. 13, at p. 8. Copious citation of precedent follows. And the Form 872-T that Barry and Monica submitted checked the Form 872-A box, because there is no Form 872 box. Forms don’t govern statute and regs, but the logic is clear.
Practitioner, negotiate those 872s (if you can).
