While my journalist colleagues of the blogosphere and trade press write lengthy dissertations on tax law, I cover United States Tax Court; and therein lies all the difference. I do not write law review articles, as I was not on law review. As a practitioner, my concern was and is practice; how does the machine work, how to fix it when it breaks, and how to adapt it to off-label uses.

So today Javontea D. Jones, Docket No. 12453-22, filed 9/2/22, reopens a question I asked at least six (count ’em, six) years ago: when, and by what means or method, is the sixty George big blind waived or refunded? See my blogposts “New Sheriff In Town,” 6/7/16, and “Now I’m Really Confused,” 9/27/16. There are others, but I won’t interlard this post with them.

Javontea petitions years 2021 and 2022. Needless to say, IRS has issued neither SNOD nor NOD to Javontea. His complaint is want of stimulus: “…petitioner attached various materials from the Missouri Department of Corrections reflective of his financial status as an inmate. The statements in the amended petition centered on complaints pertaining to petitioner’s failure to receive so-called economic stimulus payments.” Order, at p. 1.

I won’t dwell on Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan’s disquisition on the jurisdictional limits of United States Tax Court. IRS, unmoved by Javontea’s plight, moves to toss for want of jurisdiction.

Javontea’s riposte did not address jurisdiction. “…petitioner detailed challenges and hardships encountered as a result of petitioner’s incarcerated status and emphasized a request for leniency. Petitioner also highlighted financial difficulties and the importance that the stimulus payments could hold as petitioner sought to return to society.” Order, at p. 2.

So, while Ch J TBS “… is sympathetic to petitioner’s situation and understands the challenges of the circumstances faced and the good faith efforts made, the Court on the present record lacks jurisdiction in this case to review any action (or inaction) by respondent in regard to petitioner’s taxes. Congress has granted the Tax Court no authority to afford any remedy in the circumstances evidenced by this proceeding, regardless of the merits of petitioner’s complaints.” Order, at p. 3.

OK, then, right-about-face and march out Javontea. So why do I report this run-of-the-mill order?

Because back on 6/3/22, Ch J TBS ordered Javontea to ante up the sixty George big blind. Apparently he didn’t, so Ch J TBS waives the filing fee (without making reference to the 6/3/22 order), Order, at p. 3.

No showing Javontea filed The Form Without a Number (Application for Waiver of Filing Fee), with its quaint references in the instructions therefor to Adobe Acrobat 3.0, Internet Explorer, and Netscape Navigator. Might want to update the instructions, Ch J TBS; and give the form a number, like all its siblings.

So why the waiver? Was it Javontea’s piteous recitals, worthy of a latter-day Reading Gaol? Can other petitioners, similarly situated or not, with pathetic accounts of unmerited hardship, injustice, and oppression, lay bare their personal tragedies in aid of waiver, but without having to bare their finances on The Form Without a Number?

Perhaps a wee word to the petitioner with a sad tale might be in season: In your petition, tell your sad tale in extenso, but leave off the sixty Georges. And tell ’em Javontea sent ya.

The world-wide reach of this my blog extended overnight even to the Anatolian Plateau (and no, I didn’t know what that was before today). Looking at the board, I see six (count ’em, six) views from Armenia, the first from that country since the debut of taishofflaw.com.

What conceivable interest anyone in Armenia could have in United States Tax Court, much less my view of it, is unclear to me, but I extend a warm welcome.

Since the Tax Cuts and Jobs Act of 2017 cut the unreimbursed employee business expense deduction from Schedule A for years beginning 1/1/2018 and ending 12/31/2025, there will be no such deductions featured in Tax Court once the current crop wind their way through. And I’ll miss the variety, ingenuity, and imagination they bring to the blogger’s table.

George C. Luna, T. C. Sum. Op. 2022-18, filed 9/1/22, manages to survive the dreaded Reg Section 1.274-5T(c)(3) minefield, wherein so many of the unreimbursed come to grief. His “invoices, credit card statements, and receipts related to his trips to Brazil… ” T. C. Sum. Op. 2022-18, at p. 3, satisfy CSTJ Lewis (“The Name That Satisfies”) Carluzzo on that score.

George has been working in the non-profit sector for upwards of thirty years (voluntarily, unlike some of us who find we’re non-profit because we got stiffed). He even has a letter from his employer dated before the year at issue, stating that while George may pay (unspecified) expenses for his employer, there is no reimbursement therefor.

So George is home, right? He has ducked the two biggest traps for the unreimbursed: poor or no documentation, and available but unclaimed employer reimbursement.

Not quite. George’s non-profit employer was strictly State-side. While he was on the board of directors of a Brazilian outfit that did somewhat parallel work, there was no affiliation between the US non-profit and Brazil or the Brazilian. Remember, the unreimbursed employee must be spending money in aid of the employer; and prove it.

“As petitioner sees the matter, the contacts he makes, or has made, from his various travels and professional associations serve to advance the interests of [employer]. According to petitioner, ‘it helps [employer]. There’s no question about it.’  As we see the matter, there are some questions about it.” T. C. Sum. Op. 2022-18, at p. 6.

Like where’s specific evidence how the Brazil trips helped employer? And where’s the substantiation for George’s other unreimbursed travel? George fails on both scores.

George did buy some tax prep software, for which he might have gotten a deduction, were it not for the enhanced 2% AGI knock-out caused by the lost deductions.

IRS concedes the chops.

I’ll welcome these cases back in 2026.

When dueling motions jam the River of Resolution, it takes a crowbar to clear the way. Trust Ch J Kathleen (“TBS = The Big Shilleagh”) Kerrigan to wield the Rooseveltian big stick. Christina Cavallaro, Transferee, et al., Docket No. 1128-21, filed 9/1/22, doesn’t want a trial, and neither does IRS. But IRS wants summary J, and so moves; ChrisCav wants Appeals to sort it out, and seeks a stay three (count ’em, three) weeks after IRS.

I’m not saying Appeals doesn’t want to work, but this is a good opportunity to freeze sorting until IRS’ motion gets handled.

Ten months of silence provokes an order from Ch J TBS to bukh about status. Hearing this standstill, Ch J TBS orders each side to respond to the other’s motion.

“…the Court received petitioners’ Motion for Reconsideration of Order. That motion explains tha ‘requiring petitioners to respond to respondent’s motion for summary judgment runs counter to [their request for a stay] by allowing proceedings to continue apace.’ Given the fact that no action was taken by the parties to work towards resolution of these issues during the preceding ten months, it appears to the Court that directing responses to the pending motions is appropriate. Upon the filing of this Order and the assignment of the motion to stay, the parties should be prepared to participate in a conference call to discuss the pending Motion to Stay Proceedings.” Order, at p. 1.

And STJ Peter (“HB”) Panuthos gets the motion to stay.

Now we all know that STJ HB Panuthos earned the sobriquet “HB” because he engages in old-time head-banging. For any who don’t, see my blogpost “Old-Time Head-Banging – Part Deux,” 9/4/20.

And Ch J TBS tolerates no delay.

I’m sure many of my readers (that small but mighty band) have sat, knees to chin in thirty-one inch pitch straightjackets, electronics locked away, peering through plexiglass parallelograms at endless lines of aluminum tubes, cursing the HR or management committee that decreed economy class for domestic travel. “Line up and wait,” said Air Traffic Control.

Judge Albert G (“Scholar Al”) Lauber, having first disposed of Long Leaf Property Holdings, LLC, Long Leaf Manager, LLC, Tax Matters Partner, Docket No. 11982-16, filed 8/31/22, and its intervenor non-TMP members’ motion for summary J, is ready to award summary J to IRS on the usual “highly contestable readings of what it means to be perpetual.”

But of course the Long Leaves syndicated some SC boondockery. Wherefore Golsen, right? Which means 11 Cir, which means Hewitt.

Not hardly.

Judge Scholar Al exemplifies once again my mantra: A lawyer who can’t find an ambiguity should find another way to make a living.

“We are obligated to follow the law as established by the Eleventh Circuit on this issue. See Golsen v. Commissioner, 54 T.C. 742, 756–57 (1970), aff’d, 445 F.2d 985 (10th Cir. 1971). However, there is some uncertainty as to how the Eleventh Circuit would evaluate the deed involved here, which is deficient not because of a carve-out for ‘donor improvements’ but because it caps the donee’s share of post-extinguishment sale proceeds at a fixed historical value. It is not entirely clear whether the Eleventh Circuit invalidated the ‘judicial extinguishment’ regulation in its entirety, or whether the court invalidated that regulation only insofar as it is interpreted to disallow deductions based on carve-outs for donor improvements. Compare Hewitt, 21 F.4th at 1353 (‘[T]he Commissioner’s interpretation of [the regulation] to disallow the subtraction of the value of post-donation improvements . . . is arbitrary and capricious . . . .”), with id. at 1339 n.1 (‘[W]e conclude that § 1.170A-14(g)(6)(ii) is procedurally invalid under the APA . . . .’). The Eleventh Circuit may have the opportunity to define further the scope of its opinion in Hewitt, and we hesitate to address the question presented before the authoring court has had the chance to do so.” Order, at p. 7.

The Long Leaves’ split is 501(c)(3) gets inception FMV at extinguishment, regardless of actual FMV at extinguishment. “If the Property were to appreciate—real estate often does—[501(c)(3)] would ‘watch its proportion of potential extinguishment proceeds shrink over the years.’ Thus, the easement’s conservation purpose is not protected in perpetuity.” Order, at pp. 6-7. (Citation omitted).

Judge, I’ve been through at least seven (count ’em, seven, and I have) real estate booms and busts. I’ve heard of putative heirs holding oxygen bottles to laboring lips while shaky hands sign the contract to buy. I’ve also done foreclosure auctions on the courthouse steps when even the pigeons flew away. If the crazy valuations these dodgefloggers put on this junk are anywhere in the same galaxy with FMV, the 501(c)(3)s are quids-in.

Howbeit, what to do until the Supremes sort this out?

“… we will deny respondent’s Motion for Partial Summary Judgment at this time, without prejudice to his resubmission of the arguments set forth therein should subsequent developments warrant that action. This is the course we have followed in other cases presenting this scenario. See, e.g., Park Lake II, LLC v. Commissioner, T.C. Dkt. No. 12115-20 (Order served June 17, 2022); Park Lake III, LLC v. Commissioner, T.C. Dkt. No. 8018-21 (Order served June 17, 2022); Maxwellton Propco, LLC v. Commissioner, T.C. Dkt. No. 11598-20 (Order served May 9, 2022); Sand Valley Holdings, LLC v. Commissioner, T.C. Dkt. No. 12141-20 (Order served Feb. 18, 2022); Rocky Comfort Creek Holdings, LLC v. Commissioner, T.C. Dkt. No.12106-20 (Order served Feb. 17, 2022). And we will hold intervenors’ Motion for Partial Summary Judgment in abeyance pending further appellate developments on the validity of Treas. Reg. § 1.170A-14(g)(6). See Briarcreek Preserve, LLC v. Commissioner, T.C. Dkt. 1547-18 (Order served Apr. 4, 2022); Montgomery-Ala. River, LLC v. Commissioner, T.C. Dkt. 9254-19 (Order served Feb. 25, 2022); Oconee Landing Prop., LLC v. Commissioner, T.C. Dkt. No. 11814-19 (Order served Jan. 10, 2022); Wisawee Partners II, LLC v. Commissioner, T.C. Dkt. No. 6105-18 (Order served Jan. 7, 2022).” Order, at p. 8.

LGA Departure has nothing on Judge Scholar Al.

Judge David Gustafson completes the saga of Johannes Lamprecht and Linda Lamprecht, T. C. Memo. 2022-91, filed 8/31/22. For those seeking backstory, I’ve done six (count ’em, six) blogposts featuring the Lamprechts’ duel with IRS, but Judge Gustafson outdoes me with complete list of his orders by reference to the docket, at p. 11, footnote 12.

The Lamprechts were Swiss nationals with US green cards for years at issue, who didn’t disclose their Swiss earnings on their US 1040s. But the famous Section 7609 John Doe subpoena to UBS, which kicked off OVDI, put Johannes and Linda on the IRS radar. Thereupon, Johannes and Linda filed amended returns, and paid up the $621K they owed for Year One, and the $1.8 million they owed for Year Two.

But they never paid the substantial understatement chops, claiming their amended returns were Section 6664 qualifying amended returns so they came clean before they were nailed, the 6SOL had run before the SNOD, and the Boss Hoss Section 6751(b) was defective.

Last one first. The RA used “‘Form 5345–D, “Examination Request-ERCS (Examination Returns Control System) Users’, requesting that the Lamprechts’ return for the [Year Two] be opened for xamination for the purpose of assessing the section 6662 accuracy-related penalty.” T. C. Memo. 2022-91, at p. 9. The RA later used the same form for Year Two. And both were signed off before Johannes and Linda heard Word One about chops. But Johannes and Linda claim RA should’a used a CPAF, per IRM.

Judge Gustafson: “The IRM is a sprawling instruction manual, the various parts of which are amended at different times, and its penalty-related provisions are scattered throughout. The year after these Forms 5345–D were signed, the IRM included an express provision that examiners ‘gain their manager’s approval to open a penalty case’ (the action taken by Form 5345–D) ‘[a]fter [the] examiners determine that a penalty is warranted.’ IRM 20.1.9.2.1(1) (July 8, 2015) (emphasis added).” T. C. Memo. 2022-91, at p. 18, footnote 17.

 The IRM is not law, creates no obligation on IRS, nor creates any rights in petitioners.

The 7609 John Doe is complicated by the facts. UBS got its back up, and the Helvetian Confederation got its back up, so there was reference to the US-Swiss tax treaty after IRS went to USDC to enforce the subpoena. The US, UBS, and the Confederation stiped to dropping the enforcement proceeding, but not the subpoena. Bottom line is that there was compliance, and Johannes and Linda amended only after compliance. But how long was the tolling of 6SOL on account of noncompliance? Johannes’ and Linda’s argument that dropping enforcement ended the toll loses. Their argument that the subpoena was improper as a method of getting what IRS could’a gotten under the tax treaty also loses; using two methods to get discoverable material is OK. And query the standing of a party not subpoenaed or named in the subpoena to question the validity of a subpoena. So longer tolling, and 6SOL didn’t run when the SNOD for the chops issued.

Finally, the qualified amended return issue. Johannes and Linda rely on Reg. Section 1.6664-2(c)(3)(i)(D)(1), which says you’re not qualified if you claimed a tax benefit on the return you’re seeking to amend. They claim they took no benefit, only didn’t report income. Johannes said he didn’t think Swiss income was taxable to a US green cardholder.

Judge Gustafson says that Johannes was trying a defective Foreign Earned Income Exclusion. If allowed, it would make nonreporting and amending later better than reporting upfront and losing. Also, Johannes and Linda itemized their deductions, and the amended returns substantially increased the phaseouts of their Schedule As. So they did claim the benefit of the unphased deductions, which they had to amend away.

IRS gets summary J for the chops. And Johannes’ and Linda’s trusty attorney gets a Taishoff “Good Try.”

Way back, in what seems another lifetime, I made the callow (not to say silly) remark that I wouldn’t cover the Section 7463 small-claimers. Man, did that earn me a lifetime’s supply of roast crow!

Here’s a couple small-claimers (hi, Judge Holmes) that tell interesting stories.

George W. Butterfield and Christina L. Butterfield, T. C. Sum. Op. 2022-16, filed 8/30/22, looks like another indocumentado unreimbursed business expenses case. But there’s a twist. Roadie construction supervisor George maybe so can beat the Reg. Section 1.274-5T(c)(3) tag for some meals and lodging. But George got travel per diem payments from his employer.

CSTJ Lewis (“My Kind Of Name”) Carluzzo needs to get it sorted out.

“Under section 62(a)(2)(A), an employee can deduct certain business expenses incurred in connection with the performance of services for an employer under a reimbursement or other expense allowance arrangement. If these expenses are reimbursed by the employer pursuant to an ‘accountable plan,’ then the reimbursed amount is not reported as wages on the employee’s Form W–2 and is exempt from withholding and payment of employment taxes. Treas.  Reg. § 1.62-2(c)(4). A reimbursement arrangement must satisfy certain regulatory requirements to be considered an accountable plan; if the
arrangement does not satisfy these requirements, amounts paid under the arrangement will be treated as paid under a ‘nonaccountable plan.’ Id. subpara. (3). Amounts treated as paid under a nonaccountable plan are included in the employee’s gross income, are reported as wages on the employee’s Form W–2, and are subject to withholding and payment of employment taxes. Id. subpara. (5). Expenses attributable to these amounts may be deducted, provided the employee can substantiate the full amount of his or her expenses. Id.

“The parties have not addressed whether the per diem payments were made under an accountable or a nonaccountable plan, and otherwise there is conflicting evidence on the point. If the per diem payments were paid under a nonaccountable plan and included in the income shown on petitioners’ return, then petitioners are entitled to deductions for meals and lodging to the extent deemed substantiated as discussed above. See id. To the extent that the per diem payments were paid under an accountable plan (or were otherwise not included in petitioner’s income from [employer]), petitioners are not entitled to a deduction for meals and lodging because they have not established that the expenses for those items exceed the amount of the reimbursement.” T. C. Sum. Op. 2022-16, at p. 6. (Citation omitted).

How to sort this out? Let George and IRS do a Rule 155 beancount, whereat they can “determine easily” which the per diems were. But if they can’t, let them come back for more trial. T. C. Sum. Op. 2022-16, at p. 6, footnote 4.

Ruben H. Domdom, Jr., T. C. Sum. Op. 2022-17, filed 8/30/22, loses his Section 911 Foreign Earned Income Exclusion, but it isn’t because of the US condo he rented, nor the US house he owned where ex-spouse and children lived, or the US bank account where he kept that foreign income. And it isn’t because of the walled enclosure in Iraq where he lived, or his limited sorties therefrom.

No, Ruben filed HOH.

CSTJ Lew puts the inside seam of the baseball on the outside corner of the plate at the knees.

“To qualify as the head of a household the taxpayer must, among other requirements, ‘maintain[] as his home a household which constitutes for more than one-half of such taxable year the principal place of abode . . . [of] a qualifying child.’ §2(b)(1)(A)(i). Section 152(c)(1)(B) provides that a child is a qualifying child of a taxpayer if,  among other requirements, he or she ‘has the same principal place of abode as the taxpayer for more than one-half of such taxable year.'” T. C. Sum. Op. 2022-17, at p. 5.

But the SNOD bouncing Ruben’s Section 911 status never contested, and IRS never pled, Ruben’s filing status. IRS only raised the issue on a post-trial motion to conform pleadings to proof, to which Ruben objected as to timing, not substance. CSTJ Lew agreed and bounced the motion, but Ruben never claimed or conceded his filing status was anything but HOH.

So since Ruben has BoP, and since he cannot have a simultaneous abode in Iraq (for the 911) and in the US (for HOH), his proof is internally inconsistent, and he loses.

But since Ruben used a paid preparer, to whom he told the whole story, he avoids the five-and-ten substantial-understatement-of-tax chop.

Two physical injury exclusion-excuses cases are on tap at 400 Second Street, NW, today. Leading off, Thomas J. Dern and Peggy M. Dern, T. C. Memo. 2022-90, filed 8/30/22. No question Tom was sick: gastrointestinal bleeding and a heart attack caused hospitalization more than once. Tom was a traveling salesman who couldn’t travel, and his employer fired him. Tom sued for disability discrimination, and got a big settlement.

You can guess the rest. The settlement documents never mentioned physical ailment or injury. Tom’s ailments weren’t caused by his work. While his six-figure legal fees and court costs were deductible per Section 62(a)(20), the rest wasn’t. Tom’s trusty PI attorney would have benefitted from the settlement-drafting course given by the New York State Academy of Trial Lawyers a couple months back (hi, Judge Holmes). Best and cheapest CLE around.

Judge Vasquez, often pro-petitioner, can’t help Tom.

“While the settlement agreement provides for a payment ‘to compensaten [Mr. Dern] for alleged personal injuries,’ it does not specify whether those injuries were physical. Instead, it provides for a broad general release by Mr. Dern of  ‘all claims known or unknown.’ This general release does not specifically allocate any part of the settlement agreement to personal physical injuries or physical sickness. The nature of Mr. Dern’s claim cannot be determined from such a release.” T. C. Memo. 2022-90, at pp. 6-7.

Of course, general releases are broadly drawn; defendants pay for peace, and want to make sure they get it. But viewing the complaint to find what the parties think they settled doesn’t help. The complaint specifies violations of CA employment and human rights laws. Now I don’t fault Tom’s trusty PI attorney for the State law discrimination approach. Arguing and trying physical injury when same not caused by employer or worksite conditions is likely to get tossed on motion in State court (and probably Federal Court too). The issue was discrimination based on physical disability, not what caused the disability.

Tough case.

George Anton Remisovsky and Ellen Jones-Remisovsky, T. C. Memo. 2022-89, filed 8/30/22, raises disability as an excuse for Section 6651 late-filing and late-paying add-ons. This one comes up on a CDP concerning the add-ons, as the taxes are self-assesseds.

GA claims depression and other ills as excuses, and rejects the IA Appeals offers because it includes the add-ons. Judge Albert G (“Scholar Al”) Lauber says GA made no counter, so SOs need not negotiate with themselves.

As for disability, GA doesn’t establish that he was incapacitated when the returns were due.

“Assuming arguendo that petitioner husband was too ill to file, petitioners presented no evidence that petitioner wife (who did not testify at trial) was unable to discharge this obligation. Petitioner wife was employed…as a retail manager and had an independent filing obligation. Each taxpayer has a nondelegable duty to file. The incapacity of one’s spouse does not constitute a per se excuse for failure to file a return. Indeed, petitioners at the relevant times appear to have had an established relationship with an accountant, who prepared their [previous year’s] return and hand-delivered it to the IRS…. Petitioners did not explain why one of them could not have telephoned the accountant to set the wheels in motion for the preparation and filing of a [year at issue] return.” T. C. Memo. 2022-89, at p. 6. (Citations omitted).

You may be hurt, but IRS committed no foul.

Section 6751(b) Boss Hossery means approval of chops, not examination of chops. Thus Judge Albert G (“Scholar Al”) Lauber, whose paths take him far from his M. A. alma mater Clare College, Cambridge, and through endless GA boondockery, in Sparta Pink Property LLC, Sparta Pink Manager, LLC, Tax Matters Partner, T. C. Memo. 2022-88, filed 8/29/22.

This is an improvements-out perpetuity squawk, Golsenized Hewitt-ward to 11 Cir, where it’s a dead loser. Judge Scholar Al denies IRS summary J “… without prejudice to his resubmission of the arguments set forth therein should subsequent developments warrant that action.” T. C. Memo. 2022-88, at p. 5.

Translated from Judgespeak, that means when the Supremes put paid to this dodge.

Meantime, the Pinks’ trusty attorney tries the cross-examine RA and supervisor gambit to review the review.

“We have repeatedly rejected any suggestion that a penalty approval form or similar document must ‘demonstrate the depth or comprehensiveness of the supervisor’s review.’ Faced with assertions that IRS officers gave insufficient consideration to the matters before them, we have ruled such lines of inquiry ‘immaterial and wholly irrelevant to ascertaining whether respondent
complied with the written supervisory approval requirement.’” T. C. Memo. 2022-88, at p. 8. (Citations omitted).

As long as sign-off is obtained before the dread communication, Boiss Hoss is a done deal.

That’s what Jaroslaw Sek and Danuta Petrow-Sek, T. C. Memo. 2022-87, filed 8/29/22 feel, after Jaroslaw takes his 18-months of COBRA medical insurance from his ex-boss, and then takes four more from the NY Exchange. The parties don’t seem sure of the proper name for said exchange, but it’s NY’s meet-and-match for ACA beneficiaries.

Jaroslaw claims the COBRA premiums as Health Care Tax Credits, but Judge Gale sinks that.

“The HCTC allowed under section 35 is ‘an amount equal to 72.5 percent of the amount paid by the taxpayer for coverage of the taxpayer and qualifying family members under qualified health insurance for eligible coverage months beginning in the taxable year.’ §35(a). A month is an eligible coverage month only if, among other requirements, the taxpayer  ‘is an eligible individual.’ § 35(b)(1)(A)(i). To be an eligible individual for HCTC purposes, a taxpayer generally must receive certain benefits under the Trade Act of 1974 or from the PBGC. § 35(c). A spouse or other qualified relative of an eligible individual may also be treated as an eligible individual during a 24-month period following the occurrence of certain events, including the death of the eligible individual or the finalization of a divorce from the eligible individual. See § 35(g)(10).

“Petitioners have stipulated that neither of them received any of the types of benefits… that would have made them eligible individuals for HCTC purposes. Petitioners have also stipulated that neither of them was a family member of a deceased eligible individual, and they have not otherwise raised any factual dispute suggesting a possibility that either of them could be treated as an eligible individual for purposes of the HCTC….” T. C. Memo. 2022-87, at p. 5.

But Jaroslaw and Danuta make the 400% of poverty cut (319%), so they’re in the zone for the Premium Tax Credit after they’ve finished with COBRA. The plan they bought from the NY Exchange was a wee bit too rich for full PTC, but Jaroslaw didn’t get any Advance Premium Assistance, so they can get the full $1700 credit that Judge Gale calculates at pp. 9-10.

Jaroslaw claims equitable relief, in that the whole system is incomprehensible, IRS’ guidance is opaque, his COBRA cover costs almost the same as the Exchange’s (did ya expect a bargain in NY, Jaroslaw?), and that a NYS unemployment office type told him to take COBRA first.

Judge Gale is sympathetic but has no equitable jurisdiction, and IRS waives the chops.