That’s Appeals’ word to the owner/principal of DCSL, LLC, T. C. Sum. Op. 2025-9, filed 10/28/25. DCSL got behind with some COVID-era FICA/DUTA/ITWs, to which IRS provided failures to file and to pay add-ons at no extra charge. DCSL paid down two of the five (count ’em, five) open quarters, but Judge Kashi (My or the High”) Way gives IRS summary J for the remaining three when the bossman of DSCL won’t tell why he won’t borrow against his dwelling to fund his company’s shortfall.

I was unaware of the provisions of IRM Exhibit 5.15.1-1 (Q&A-13) (Nov. 22, 2021), which  requires that an AO must determine an officer’s ability to lend the business money to pay its tax debt. True, the IRM does not have the force of law and confers no rights on taxpayers but can nevertheless be persuasive authority. See Romano-Murphy v. Commissioner, 816 F.3d 707, 719 (11th Cir. 2016), vacating and remanding T.C. Memo. 2012-330.T. C. Sum. Op. 2025-9, at p. 6.

For the backstory on Romano-Murphy, see my blogpost “Assessment First, Determination Afterward,” 5/21/19.

Though given a chance to explain, Bossman (name omitted) never provided that information. So Appeals’ toss of DCSL’s IA offer is sustained. And though he offered at the Tax Court to provide revised information, post-CDP offers come too late.

Practice tip- If what you tender at Appeals shows large loans to officers, be prepared to have them come up with cash (here Mr. Bossman was into the firm for north of $110K). Likewise, if the SO asks an RO to do a “courtesy investigation and financial analysis,” see my previous suggestion (only more so).

Wystan Hugh Auden’s immortal words “Agents of the Fisc pursue/Absconding tax-defaulters through/The sewers of provincial towns” strike a definite response from Judge Travis A. (“Tag”) Greaves in Tortuga Dunes Properties, LLC, Sea Oats Management, LLC, Tax Matters Partner, et al., Docket No. 23931-21, filed 10/28/25. Judge Tag Greaves has a combined box-checked TEFRA, LLC, and a BBA box-checked LLC, conjoined for trial and briefing.

Alas, we’ll have to wait to see how the before-and-after TMP and Rep swirl comes out at a later date.

This one is about subpoena enforcement and in limine preclusion, with IRS getting only a suspension as to the in limine.

IRS served a duces tecum on Mr. G. (name omitted), the financial officer of the TMP (Rep?). He says he has cancer and can’t reply, but gives petitioner they keys to whatever electronic stuff he has, which they turn over. “After further communication with respondent, Mr. G. indicated that he would resend the documents in the electronic file. Given this representation, respondent conveyed to the Court at the remote hearing that Mr. G. was cooperating with the subpoena. However, before he could resend his records located in Georgia, Mr. G. was hospitalized in Florida for his cancer.” Order, at p. 4.

IRS moves to enforce the subpoena, I presume after IRS lost the stuff that was first sent. “Balancing the undue burden on Mr. G with the value of the information respondent seeks, we will not enforce the subpoena. The burden on Mr. G. of complying with the subpoena is tremendous. He currently remains hospitalized in serious condition with end-stage cancer in a different state than his records. On the other side of the scale, the value of the information sought is insignificant. In accordance with Mr. G.’s instructions, petitioners provided the electronic file that Mr. G. created before his retirement related to the donations. Mr. G. represents that he has no further documents and was merely resending the production made by petitioners. We have no reason to doubt his representations.” Order, at p. 4.

Motion denied.

Next is a subpoena to Mr. K. (name omitted), managing member of the entity that held the majority interests in petitioner and the al. He also gets a duces tecum for both petitioner and al, but only produces for the al. He says the stuff for petitioner is with his ex-business partner (Mr. X., name omitted), with whom he has no contact.

IRS apparently wants Mr. K to do an Auden, and pursue his former partner wherever.

“Mr. K. filed an objection to the… Motion. Therein, he represented that he provided all the requested documents in his possession, custody, and control. As for respondent’s claim that he could obtain documents from Mr. X., Mr. K. represented that this imposes an undue burden on him because he is no longer in business with Mr. X., has no communication with him, nor knows of any way to contact him.” Order, at p. 5.

Btw, IRS tried and failed to subpoena Mr. X.

Judge Tag Greaves is apparently no fan of Auden. “As for respondent’s insistence that Mr. K. track down his former business partner, the request is unduly burdensome. Even assuming that our interpretation of ‘possession, custody, or control’ from the party discovery rules stretches to third party subpoenas, there is no indication that Mr. K. has sufficient control over Mr. X. to obtain the documents in Mr. X’s possession. Mr. K. represented that he has no ongoing relationship with Mr. X and does not know how to contact him. We will not require Mr. K. to go on a hunt for Mr. X. when even respondent cannot locate him. Therefore, we will deny respondent’s motion.” Order, at p. 5.

IRS makes the same motion as to the petitioners’ appraiser, the celebrated Mr. W. But petitioners handed over whatever they had, the contract retaining Mr. W. gave them no rights in his work folder, ands he won’t dish for fear of criminal prosecution. Motion denied.

The last motion is a doozy. IRS wants to preclude any rebuttal evidence on Mr. W.’s qualification as an appraiser per Reg. Section 1.170A-13(c)(5)(ii), because they can’t get some documents that vanished in a petitioners’ e-mail migration.

Anybody remember the celebrated roll-out of DAWSON a couple years ago (hi, Judge Holmes, remember when your 271 (count ’em,  271) page opinion in the Michael Jackson Estate case disappeared? No? Then see my blogpost “Welcome to DAWSON, ” 5/4/21)?

Judge Tag Greaves won’t wear it. “Respondent’s motion is premature at this point. Despite the email migration issue and uncooperative third parties, petitioners appear to be cooperating in good faith during discovery. As we have found in this Order and our prior discovery orders, we have no reason to conclude that petitioners are withholding documents from respondent. Granting respondent’s motion would effectively disallow petitioners’ deduction before trial on technical grounds. We see no reason to take such drastic action at this point. We appreciate respondent’s difficulty in preparing his case given the absence of contemporaneous emails. However, petitioners likewise lack these documents and it is ultimately their burden to show that Mr. W. was a qualified appraiser.” Order, at pp. 7-8. But you can try again iof you can do better.

You can sure say one thing about Dixieland Boondockery: it’s equal opportunity. It brings out the worst in everybody.

Your early November trial sessions are shut down along with the government. Here’s the skinny.

The late Andy Warhol’s signature comment (which he didn’t say in the words often misquoted) is expanded by Judge Christian N. (“Speedy”) Weiler in Longwood Preserve Holdings, LLC, Longwood Preserve Investors, LLC, Tax Matters Partner, Docket No. 12421-19, filed 10/27/25. IRS wants trial testimony from individual syndicatees in this Dixieland Boondockery, to which said syndicatees object.

The syndicatees claim they have no personal knowledge as to the qualifications of appraisers VS & W or the adequacy of their appraisal. VS & W, for those who tuned in late, are regulars on the Dixieland Boondockery circuit. But IRS may want more from them than what they don’t know about Messrs. VS & W.

“Although petitioner presents declarations from the subpoenaed individuals, which indicates they lack personal knowledge with respect to the original appraisal and appraisers involved in the conservation easement donation; we anticipate respondent intends to call these individuals for other reasons, namely introduction of emails and other communications that they each had as potential investors in petitioner and the conservation easement at issue.” Order, at p. 6.

But requiring the five (count ’em, five) individuals to show up and sit through the trial is a bit much for Judge Speedy Weiler, so he limits their burdens.”… we will require their attendance at trial from each of the nonparties; however (to lighten the costs and inconvenience to everyone involved) we will permit the testifying individual to appear at a date and time certain of their choice during the week of November 10, 2025 having the choice to appear in person or virtually (by ZoomGov) and imposing a time limit of two hours on the testimony of each individual, with up to sixty minutes allocated to each party.” Order, at p. 6.

Judge Speedy Weiler does quash IRS’ trial subpoena to a local realtor with no connection to the deal or the parties. Looks like IRS wants an unpaid expert rebuttal witness.

There a lot of argy-bargy about introducing public land records (Order, at pp. 3-4), which I leave to specialists, but the records go in. The authentication declaration by a local court official, and a spreadsheet prepared by a local government appraiser, are put on hold. Word to IRS: better subpoena the people for trial.

While that famous dictum from Lawrence Peter Berra has been often cited, even in this my blog, it is not so for Ch J. Patrick J. (“Scholar Pat”) Urda. Though his trusty attorney, who has entered a Limited Entry of Appearance (no form number assigned), may be of the opinion that her work is done, Ch J Scholar Pat has one last task.

If she “wishes to terminate her limited appearance, she shall file, on or before November 24, 2025, a notice of completion.” Order, at p. 1. And Ch Clk Jeane should attach a copy of the form of notice of completion (also without form number) to the order served upon trusty attorney.

Her services (moving for change of place at trial, which was granted, and appearing at the now-canceled 10/27/25 Tampa, FL trial session) do seem to have been completed.

The case is Roy C. Cave, Docket No. 594-24S, filed 10/24/25.

Opening up a petition in Tax Court generally draws counterbattery fire. While attorneys new to The Glasshouse in the Occupied City often are surprised that the FRCP and other usual Federal practices do not exert their usual sway, and most civilians are quite at a loss when thus confronted, IRS counsel have pretrial paths well-trodden and use them.

According to Judge Nega, Louis Felicetta, Esq., Docket No. 19116-24L, filed 10/23/25, was formerly denied an IA for want of submitting documentation, Order, at p. 2. This time he is denied for submitting an out-of-date Form 433-A and not updating same when requested and given three (count ’em, three) chances to do so, Order, at p. 6. Likewise Attorney Felicetta failed to provide proof that he was current with his estimateds, ibid., as my expensive colleagues would say.

Practice tip- When seeking an IA, OIC,  PPIA, or CNC status, have your Form 433-A (or B, if applicable) and backups prepared when you file your Form 12153, or if short on time, start on them immediately after. And stay current, or come current, with estimateds and filings. I know, those who read it don’t need it, and those who need it won’t read it or heed it; but you have to try.

OTOH, I don’t know if Nancy Evans, Docket No. 11199-25, filed 10/23/25, is an attorney, EA, CPA, or other tax professional. I chose this Order from Ch J Patrick J. (“Scholar Pat”) Urda because, with his usual attention to detail and desire to help those possibly unfamiliar with Tax Court practice, he unpacks Rule 37’s post-Answer procedure.

Once IRS answers the petition, the petitioner can Reply thereto within 45 days as of right, contesting any statements of fact made in the Answer. If the petitioner doesn’t Reply, the facts are deemed denied. But then IRS gets 45 days to move for an Order deeming specific facts admitted for all purposes, to which petitioner must Reply or have those facts deemed admitted.

And for those unfamiliar with legal pleadings, Ch J Scholar Pat has a primer on what we State courtiers call a DKI (“Deny knowledge or information sufficient to form a belief as to the truth or otherwise of the allegations in Par. X”).

 “Rule 37(b) states: In response to each material allegation in the answer and the facts in support thereof on which the Commissioner has the burden of proof, the reply shall contain a specific admission or denial; however, if the petitioner shall be without knowledge or information sufficient to form a belief as to the truth of an allegation, then the petitioner shall so state, and such statement shall have the effect of a denial. In addition, the reply shall contain a clear and concise statement of every ground, together with the facts in support thereof, on which the petitioner relies affirmatively or in avoidance of any matter in the answer on which the Commissioner has the burden of proof.” Order, at p. 2.

I need not, I hope, remind candidates for the November 5 D-Day assault to bone up on Tax Court pleadings rules.

As the probably-fictional law student pronounced it, res judicata features in Crystal R. Vettel, T. C. Memo. 2025-110, filed 10/22/25. Crystal’s husband was a self-made millionaire who wound up stashing another million in a Swiss bank account, titled in a Belize corporation, at the suggestion of said Swiss bank. He never told Crystal, a high school graduate, and never told IRS. Of course, FUBAR blew the gaff, hubby opted into and then out of OVDI, and hired trusty attorney, who petitioned the SND that followed the opt-out.

Trusty attorney did represent both hubby and Crystal. Though trusty attorney and trusty CPA considered innocent spousery for Crystal and even drafted a Form 8857, when IRS offered them what they thought was a good deal, they dropped innocent spousery to grab a quick stiped decision, on which Crystal signed off.

Now Crystal wants innocent spousery, but IRS raises the stiped decision. A decision in a case precludes anything raised or that could have been raised. For innocent spousery, Section 6015(g)(2) gives an out: if either innocent spousery wasn’t an issue or Crystal didn’t “meaningfully participate“ in the litigation, no claim or issue preclusion.

Judge Elizabeth Crewson Paris checks the boxes.

“While the Court accepts petitioner’s claim that she was unaware of the existence of the [Swiss stash] account or of the details of Mr. Vettel’s international business dealings when the returns were filed, it is clear from the record that, by the time the Vettels initiated the deficiency case, Mr. Vettel had made petitioner aware of the matter, and she kept herself informed of the progression of the case. Nothing in the record suggests that information was withheld during the deficiency proceeding or that she was denied a voice in the decision-making process.

“Furthermore petitioner did participate directly, as well. She personally signed the proposed stipulated decision…stipulating the deficiency and penalty amounts for the years at issue. That decision was entered by the Court…. Petitioner does not contend, nor is there any evidence to suggest, that she was coerced into signing that document or that she did not understand its effect.” T. C. Memo. 2025-110, at p. 10.

Taishoff says the dual representation of Crystal and spouse would raise an issue. Judge Paris doesn’t say whether Crystal signed a conflict letter (if the conflict is waivable at all) or was made aware of the conflict. Participation through one’s counsel is meaningful participation.

“There is nothing in the record to indicate that she was denied access to information about the ongoing case, that Mr. Vettel or their counsel sought to exclude her from the decision-making process, or that her counsel acted against her interests. Rather, through the advocacy of her counsel, petitioner avoided liability for the section 6662(a) penalties for tax years 2006, 2007, 2008, 2009, and 2010. Indeed, the evidence shows that petitioner was typically included on emails discussing the case, and petitioner admitted that she reviewed the draft Form 8857 while the deficiency case was ongoing.” T. C. Memo. 2025-110, at p. 12.

I want to circle back to the conflict here. Crystal admittedly had only a high school diploma; her business experience was working as a bank teller and a receptionist at a dermatologist’s office, interrupted by about ten years as a stay-at-home Mom, T. C. Memo. 2025-110, at p. 2. Spouse was an international highroller. Crystal may have been shown all the documents, but how much did she understand? Being cc’d on emails is all very well, but it doesn’t help if they’re written in unintelligible legal gibberish. And if spouse is writing the check for their high-priced counsel, they’ll both want to be sure that Crystal is in as deep as spouse. Note that as of trial Crystal and spouse were still married (idem.); given their relative economic situations, I’m not surprised. I’m not as sure as Judge Paris how material was Crystal’s participation, although I didn’t see the witnesses or hear their testimony. Maybe Crystal is a lot more hip, and shows it on the stand, than her CV would indicate. Still, I wonder. Especially at counsel rushing to make the deal that IRS offered at the cost of throwing Crystal’s innocent spousery overboard; I know second-guessing other lawyers’ strategy is our profession’s second-favorite indoor sport, but is it true in FUBAR settlements that “first money, best money”? Readers, what do you think?

I read footnotes. However much I mock them in law review articles (whose authors, like generals who measure success by the casualty lists, count coup thereby), Tax Court Judges, unlike the residents of Tommy Gray’s country churchyard, rarely waste their sweetness on the desert air. Much of the judicial nectar is found in footnotes.

Andrew Mitchell Berry and Sara Berry, T. C. Memo. 2025-109, filed 10/21/25, is a much-of-a-muchness unreported income case, where the pro se members of the family Sub Ss try to manufacture ex post facto evidence and play lawyer. You can read Judge Cary Douglas (“C-Doug”) Pugh’s recounting for yourself.

Here are the stories of attempts to put in documents after the PTSO 14-day cutoff and Rule 131(b) lockout.

“Ronald was not a petitioner in this case and appeared only as a fact witness. He did not respect this distinction, however, and his efforts to help Andrew, from the stand and from the audience, undermined his credibility.” T. C. Memo. 2025-109, at p. 5, footnote 7.

Ron also claimed he was unaware of Andrew’s case, and SPTOs. Judge Pugh responds with a brisk “Yeah right, roger that.”

“In addition to this case, standing pretrial orders were entered at least once in all of Andrew’s cases before this Court. See, e.g., Standing Pretrial Order, Berry v. Commissioner, No. 11739-22 (T.C. Feb. 15, 2024); Standing Pretrial Order, Berry v. Commissioner, No. 11180-19 (T.C. July 30, 2020); Standing Pretrial Order, Berry v. Commissioner, No. 6584-19 (T.C. Oct. 29, 2019); Standing Pretrial Order, Berry v. Commissioner, No. 18196-16 (T.C. May 30, 2017); Standing Pretrial Order, Berry v. Commissioner, No. 9707-15 (T.C. Oct. 28, 2015). Likewise, this Court issued standing pretrial orders in all of Ronald’s cases that were set for trial. See, e.g., Standing Pretrial Order, Berry v. Commissioner, No. 7832-24S (T.C. May 14, 2025); Standing Pretrial Order, Berry v. Commissioner, No. 20086-23 (T.C. Aug. 7, 2024); Standing Pretrial Order, Berry v. Commissioner, No. 18635-16 (T.C. Sept. 26, 2017); Standing Pretrial Order, Berry v. Commissioner, No. 14090-15 (T.C. Apr. 12, 2016); Standing Pretrial Order, Berry v. Commissioner, No. 18162-14 (T.C. June 3, 2015).” T. C. Memo. 2025-109, at p. 7, footnote 10.

Read the opinion. Tell me if I got it wrong.

It had to happen, and of course my colleague Lyle (“Full-Court”) Press, Esq., is onboard with the defense. We get four (count ’em, four) opinions for the price of one in this exagmination round the factification of a statute repealed effective as of seven (count ’em, seven) years ago.

At least part of the Ornstein-Schuler crew are at bat in North Wall Holdings, LLC, Schuler Investments, LLC, A Partner Other Than the Tax Matters Partner, 165 T. C. 9, filed 10/21/25. Pitching for the USTC is Judge Ronald L. (“Ingenuity”) Buch, joined by JJ. Kerrigan, Nega, Pugh, Ashford, Copeland, Greaves, Way, Arbeit, Guider, and Jenkins in full: Ch J Urda, and JJ Jones, Marshall and Judge Emin (“Eminent”) Toro join as to Part VI (spoiler alert: Part VI is why Congress didn’t want equitable tolling in TEFRA latecomer cases). Judge Emin (“Eminent”) Toro does concur as to result and writes a concurrence in which Ch J. Urda and Judge Pugh join. Next up, Judge Weiler writes to concur in result. Judge Alina I. (“AIM”) Marshall concurs in part and dissents in part, while Judges Landy and Fung wisely concur in result and stand mute.

Clear? Thought not.

Anyway, Schuler, a notice partner, comes 18 (count ’em, 18) days late to the 60-day TMP afterparty, apparently tipped off to the FPAA by the TMP in time to file timely. IRS moves to toss for want of jurisdiction, Schuler responding that the 150-day cutoff to petition a FPAA is nonjurisdictional (while not claiming equitable tolling, thus ducking the extraordinary blockage and prompt follow-up issues, which ultimately costs them).

Judge Buch does a historical walk through TEFRA’s attempt to bring all partnership issues into a single case. Neither TMP nor a notice partner nor 5-percenter can jump the queue, but an early notice partner petition gets held in abeyance until the TMP is timed out or qualifies as a notice partner. The whole thrust is one single proceeding, not tag-teaming petitions.

Issue is subject-matter jurisdiction (can the Court hear anything?) vs. claim processing (orderly disposition of the case). Only Congress can set those boundaries, and old Section 6226 with its interlocking timeframes is clear enough for Judge Ingenuity Buch and the majority, especially since Congress amended the first version of Section 6226 to allow a premature notice partner’s petition to await the TMP, rather than to be tossed as premature. If the premature petition was simply claim processing, why amend the statute?

And both 5 Cir and 9 Cir have held it jurisdictional (pre-Boechler).

Treating Section 6226 as nonjurisdictional would create chaos, with overlapping claims, late petitions in Tax Court, and cases in USDC or USCFC (concurrent jurisdiction for FPAAs, but Tax Court goes first) subject to stays.

And like a deficiency case, while a FPAA case is pending, no assessment or collection of tax from partners; IRS could start collecting after time ran out, only to be stayed by an equitably-tolled petition. Section 6229(d) only allows a year to enter assessments against partners after a Rule 155 beancount or expiry of time to petition a deficiency if noncomputational. Equitable tolling collides with all time limits, and allows for gamesmanship; one partner’s equitable tolling tolls every other partner, whether the others have a meritorious claim or not.

The presumption in favor of equitable tolling is just that – a presumption. Judge Ingenuity Buch demolishes the presumption in this case. History is on his side.

Judge Emin (“Eminent”) Toro says, sure toss the Schulers, but why the jurisdictional argy-bargy? Say they’re late, and walk away. Let 11 Cir deal with this.

Judge Christian N. (“Speedy”) Weiler, says he’s cool with tossing the Schulers, but three (count ’em, three) USCCAs going for equitable tolling in Section 6213(a) cases is a pattern, not a coincidence. There’s a compelling case for equitable tolling, but the Schuler’s attempted sashay around the prerequisites for equitable tolling (extraordinary circumstances delaying filing and prompt follow-up when able) by claiming nonjurisdictional without producing evidence in support of equitable tolling rules them out.

Judge Alina I. (“AIM”) Marshall says she’s down with the toss, but should be for failure to state a claim, not want of jurisdiction. There is jurisdiction, but got to plead and prove equitable tolling. The Schulers didnl’t.

Those words from Section 7502(a)(1) are sufficient to scuttle the petition of Laura Booth, Docket No. 20531-24, filed 10/20/25. The German postmark was late, anyway.

Although late-filed petitions are the most commonly tossed, I mention Ch J Patrick J. (“Scholar Pat”) Urda’s three-page order because of the tour d’horizon he furnishes of the CCAs take on Boechler equitable tolling in Section 6213(a) deficiencies.

“In a deficiency case our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213; Edwards v. Commissioner, 791 F.3d 1, 4 (D.C. Cir. 2015); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022) (collecting cases); see also Sanders v. Commissioner, 161 T.C. 112, 119–20 (2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit). Contra Oquendo v. Commissioner, 148 F.4th 820 (6th Cir. 2025) (holding that the deficiency deadline is not jurisdictional and subject to equitable tolling); Buller v. Commissioner, No. 24-1557, 2025 WL 2348969 (2d Cir. Aug. 14, 2025) (same); Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023) (same), cert. denied, 144 S.Ct. 2685 (2024).” Order, at pp. 2-3.

Less than three (count ’em, three) weeks to go before the 11/5/25 Slaughter of the Innocents (a/k/a the examination for nonattorney applicants for admission to practice before the United States Tax Court), guys. Hasten your preparations to conclusion, and stand to!