That’s STJ Daniel A. (“Yuda”) Guy. And the people who have him disinterested are Samer Mikhail & Mariana Mikhail, Docket No. 20199-12S, filed 7/22/14, a designated hitter on a very dull day in Tax Court.

The Mikhails were told to put in their numbers on a Rule 155 beancount, after they lost a Section 7463(b) small-claimer back in April. I didn’t blog it at the time, as it was the usual Section 183 no-profit case.

IRS put in its numbers, the Mikhails didn’t, but asked Judge Guy to abate interest on the deficiency. But until numbers are computed and a decision is entered, no deficiency.

Judge Yuda: “Although the Court has the authority under section 7481(c) to redetermine the correct amount of interest due on a tax deficiency assessed pursuant to section 6215, the deficiency in this case has not been assessed, petitioners have not paid the deficiency or the interest related thereto, and their motion otherwise fails to satisfy the requirements of Rule 261.” Order, at p. 1.

So no deficiency, no jurisdiction, no abatement–and no interest.

No, not the National Public Radio current-events quiz show. That’s Appeals’ answer to Edmond Harris, Esq., tax matterer for Valteau, Harris, Koenig and Mayer, which law firm’s nonpayment of withholding taxes is the subject of 2014 T. C. Memo. 144, filed 7/21/14, Judge Goeke providing some continuing education to Mr Harris and his firm.

Ed claims he became tax matterer after the firm canned its CPA, although Ed claims he “…was not qualified to handle petitioner’s tax liabilities even though he was designated as petitioner’s tax matters partner.” 2014 T. C. Memo. 144, at p. 6.

Howbeit, Ed also claims that all past due FICA, FUTA and income tax withholdings were eventually paid, but that IRS miscomputed one year’s worth (but Ed had no evidence of what the right numbers were, so that’s a non-starter) and IRS misapplied some payments, which, if properly applied, would have reduced the liabilities, interest and penalties.

For starters, Judge Goeke needs to consider standard of review, de novo or abuse-of-discretion. “There is some uncertainty in our precedents as to whether a de novo standard of review applies where (as here) the controversy concerns the proper application, to the tax liability at issue in the CDP hearing, of a credit, an overpayment, or a remittance. Petitioner contends that respondent’s refusal to honor its designation was inconsistent with a published IRS administrative position. If that is so, respondent’s proposed collection action would be impermissible under either standard. We accordingly do not need to decide whether petitioner’s challenge involves a dispute concerning its underlying tax liability as to which a de novo standard of review would apply.” 2104 T. C. Memo. 144, at p. 8. (Footnote omitted).

In any case, Ed is out of luck. If the deposit rules apply, Section 6656(e), which controls, doesn’t permit depositor to direct how deposit is to be applied until depositor has gotten a failure to deposit penalty notice, and Ed never did. And if payment rules apply, Ed put his directions on paper “…Forms 8109-B, Federal Tax Deposit Coupon (FTD coupon or coupon), and submitted them with the remittances to banks authorized to accept tax deposits. The FTD coupons indicated the period to which the remittances were to apply as did the memo line of each check. Petitioner designated many of the remittances to satisfy past due liabilities. Because the coupons and payments were submitted to banks rather than to respondent, respondent did not always receive petitioner’s designation instructions.” 2014 T. C. Memo. 144, at p. 4.

Since Ed never gave IRS directions how to apply the firm’s payments, but only gave them to the depository bank, IRS could do as it liked.

This was of course in the pre-electronic filing days. Nowadays the rules would be different. So beware of pouring new wine into old wineskins, as somebody remarked in a much more solemn context.

Finally, the real point: “Although it failed to timely pay its employment and unemployment taxes during the periods at issue, petitioner continued to operate as usual.  Petitioner never missed a payroll and continued to make bonus payments to its employees. Petitioner also organized yearend parties for its employees and took only minimal steps to reduce its expenses.” 2104 T. C. Memo. 144, at pp. 4-5.

Judge Goeke is not amused by such spendthrifty behavior. “Petitioner did not demonstrate a willingness to decrease its expenses, reduce salaries, or lay off personnel in an attempt to meet its tax obligations. Mr. Harris testified that petitioner did not have excess expenses to cut, because it paid only for necessities. However, during the periods at issue petitioner continued to pay for Christmas parties, provide yearend bonuses to its employees, and pay the partners all of their guaranteed payments. Petitioner’s preference for these expenses over its tax obligations does not demonstrate ordinary business care and prudence in providing for payment of tax liabilities. It is this type of spendthrift behavior section 301.6651-1(c)(1), Proced. & Admin. Regs., warns against.”2014 T. C. Memo. 144, at pp. 19-20. (Footnotes omitted).

Takeaway–Read the Code and Regs when deciding when and how to direct application of payments or deposits. And don’t party-on when you’re behind with your withholdings.

It must have been in my second year under the Peace Tower atop The Hill, that a visiting professor, an Irish-American of formidable erudition and even more formidable capacity for good Bourbon (an Old Forester kind of guy), told us the story of the last Serjeant-at-Law in England (and the story has been told of many other persons, localities and dates). The Serjeant, an Irishman from the South, when asked by the Judge if he was familiar with the doctrine “qui fecit per alium fecit per se”, replied,  ”Why, Your Honour, in Ballyjamesduff we speak of little else.”

Well, that line might not come amiss when considering Section 6751(b), of which I had never spoken at all before my blogpost “Penalty Kick”, 7/16/14.

And that discussion might have faded into obscurity had not my esteemed colleague, Joel  E. Miller, Esq., sent me a copy of the decision in US of A v. Jacob Rozbruch et al., 11 Civ 6965, decided by Magistrate Judge Gabriel Gorenstein, USDCSDNY, 7/9/14.

While there is an interesting New York City cooperative apartment priority-of-lien issue in the case, the parties duck that issue in the best approved manner by not asking MJ Gorenstein to decide it, Decision, at p. 6. And he doesn’t.

But IRS is seeking TFRPs against Jacob and Mrs Jacob, as responsible persons of Jacob’s professional corporation known as “Ortho”.

Jacob’s counsel interpose the Section 6751(b) defense. Agreeing that Jacob and Mrs Jacob owed but didn’t pay, they say IRS hasn’t shown that the requisite intermediate supervisor signed off on the imposition of the Section 6672 100% chop, which is called a penalty throughout the Code and Regs.

MJ Gorenstein has a dozen cases that say that just because something is called a penalty doesn’t make it so. Besides, Section 6671(a), not cited by IRS counsel but picked up by the keen eyes of MJ Gorenstein (or his clerk), says TFRPs are to be assessed and collected as taxes. Decision, at p. 11-12.

Remember our eminent Chief Justice’s skating and sand-dancing in National Federation of Independent Business V. Sebelius, 132 S. Ct. 2566 (2012), where a tax might be a penalty or maybe a penalty might be a tax?

Anyway, MJ Gorenstein doesn’t need 193 pages to deal with the issue. You don’t need no Section 6751(b) sign-off for TFRPs, because Section 6671(a) says you don’t, and besides, the 6672 “penalty” isn’t, it’s a device to collect from defaulting trustees what is due to the beneficiaries, namely the Federal fisc as to income tax and the FICA and FUTA accounts of the employees from whose wages the trust funds were withheld.

Looks like we’re going to see more Section 6751(b) arguments. Just not for TFRPs.

Welcome the Texas Technophobes

I don’t know that Terri M. Morgeson, Esq., would necessarily make that claim about the Texas Tech University School of Law Low-Income Tax Clinic. But she must be technophobic, because she’s seeking exemption from e-filing in the case of David Morales Guerrero, Docket No. 25670-13S, filed 7/18/14.

Judge Nega isn’t unduly technophobe-friendly, however. He says that Terri claims: “(1) she is the Director of the Texas Tech University School of Law; and (2) she is not registered with the Court’s electronic case management system.” Order, at p. 1.

Not quite, Judge. The Texas Tech University School of Law website lists Terri as staff, with a phone number and no picture; her name is missing from amongst the nine (count ‘em, nine) deans shown thereon. She may direct the low-income tax clinic, but that is a fact not in evidence.

In any event, no one proofreads these orders, do they? Or does what we called “cite and substance checking” in my young law school days fifty years ago. If I were ever to retire, I might apply for that position, if such exists. There is certainly a want thereof.

Howbeit, while low-income pro ses, who are assisted (my emphasis) by such pro bonos as Ms. Morgeson either directs or in which she serves, are exempt (per Tax Court Rule 26(b)(2)), the clinics and the clinicians are not, absent good cause shown.

Terri doesn’t. So now she gets a chance to do so.

Come on, Terri, win one for the Texas Technophobes.

We’ve a wee bit more than three weeks to go before the twelfth of August, the traditional start of the UK grouse-hunting season for would-be successors to the Pallisers, Lord Peter Wimsey, and other Masterpiece Theatre wannabes. But the IRS-hunting season is in full swing, with the hunters out on the tax moors and loaded up.

Two days ago it was Circular 230 §10.27(b) in the crosshairs, with Judge Cooper of USDCDC bringing it down. See my blogpost “It’s Contingent? Great!”, 7/17/14.

Now there just flopped into my e-inbox some hour-and-a-half ago a missive from something called “The Progressive Accountant”, claiming that AICPA has filed, or will file, suit against Big John Koskinen and his minions, seeking to blast the voluntary preparers’ program from the skies over Taxland.

Apparently the gravamen (that’s two-yacht lawyer talk for “gist” or “essence”) of the suit is that Big John’s “voluntary” program for preparers is an end-run around the sacred preserve of Loving, which leaves forever free from the toils and trammels of Circular 230 everything and everyone taxic short of an actual audit or lawsuit.

See my blogpost “That’s Right, Tom; A Volunteer’s Worth Two Pressed Men”, 6/27/14. Apparently the high command at AICPA is afraid Big John’s vultures are a-skulking round the tax preparers’ nests, waiting their chance to swoop down.

Stay tuned; this should yield a good bag of grouse and grousing.

That is, it’s great if you’re in DC Circuit, the land of the Loving. The assault on IRS’ long-arm approach to roping in tax practitioners from the breaking of dawn to the fall of eventide goes on apace, the latest being the partial collapse of the §10.27 barrier to contingent fees.

You’ll recall the rule: “(b) Contingent fees — (1) Except as provided in paragraphs (b)(2), (3), and (4) of this section, a practitioner may not charge a contingent fee for services rendered in connection with any matter before the Internal Revenue Service.

(2) A practitioner may charge a contingent fee for services rendered in connection with the Service’s examination of, or challenge to —

(i) An original tax return; or

(ii) An amended return or claim for refund or credit where the amended return or claim for refund or credit was filed within 120 days of the taxpayer receiving a written notice of the examination of, or a written challenge to the original tax return.

(3) A practitioner may charge a contingent fee for services rendered in connection with a claim for credit or refund filed solely in connection with the determination of statutory interest or penalties assessed by the Internal Revenue Service.

(4) A practitioner may charge a contingent fee for services rendered in connection with any judicial proceeding arising under the Internal Revenue Code.” 31 CFR 10.27(b).

Well, Gerald Lee Ridgely, Jr., CPA, charged a contingent fee in connection with filing an “Ordinary Refund Claim”, and Jake Lew and the 1111 Constitution Avenue gang landed on Gerry Lee with both feet.

But Judge Cooper of USDCDC, home of Loving, wasn’t buying it.

Read all about it in Gerald Lee Ridgely, Jr., v. Jacob Lew, et al., Civil Action No. 1:12-cv-00565 (CRC), filed 7/16/14. And thanks to Christopher S. Rizek, Esq., for bringing this to my attention.

Judge Cooper is a man of few words. “ORDERED that Defendants lack statutory authority to promulgate or enforce the restrictions on contingent fee arrangements, as delineated in 31 C.F.R. § 10.27, with respect to the preparation and filing of Ordinary Refund Claims, where ‘preparation and filing’ precedes the inception of any examination or adjudication of the refund claim by the IRS and any formal legal representation on the part of the practitioner….” Order, p. 1.

Summary judgment to Gerry Lee.

Bottom line- until there is something adversarial or controverted, no one is representing anyone before the IRS by just filing a form, and so Circular 230 and its numerous strictures are off the table.

What is a “government”? Usually we’d answer that it’s an organized group, based in a specific geographical area, with command-and-control powers over all therein. But how about a multinational group, encompassing geography ostensibly governed by existing governments that have been there for years?

That’s the €20 million question, leading off Vol. 143 T. C., in Guardian Industries Corp., 143 T. C. 1, filed 7/17/14, with Judge Lauber writing for a unanimous Court.

Guardian admits it was a “little black sheep that has gone astray”, as Rudy Kipling would have it, entering into a price-fixing deal as regards its sales of “…float glass, fabricated-glass products, fiberglass insulation, and other building materials to customers in Europe and elsewhere.” 143 T. C. 1, at p. 11.

The Commission of the European Community, the executive arm of the European Union, has first whack at suspected price-fixers by treaty and executive order (or equivalent), and local regimes are supposed to defer to the Lord High Executioner, a/k/a the Commission.

But is the Commission a “government”, as that term is defined in Section 162(f), which bars deducting the USD$30 million or so that Guardian claimed was the dollar value of the price-fixing claim they paid, namely, the aforesaid €20 million.

“Respondent agrees that the Commission is neither ‘[t]he government of a foreign country’ nor ‘[a] political subdivision’ thereof. Accordingly, the question for decision is whether the Commission is an ‘entity serving as an agency or instrumentality’ of ‘[t]he government of a foreign country’ within the meaning of this regulation. The parties have not brought to our attention, and we have not discovered, any prior authority that addresses this question directly.” 143 T. C. 1, at p. 14. (Footnotes omitted, but Judge Lauber tells IRS to butt out; he can figure the answer without looking at IRS’ view of its regulations).

Like the New York/New Jersey Port Authority, lately in the news as a lane-closer-fixer on the George Washington Bridge, and which is an instrumentality of two governments, the Commission is not out as an instrumentality merely because it serves more than one government. So Judge Lauber uses Second Circuit learning, because, even though Guardian is a Michigan corporation, Sixth Circuit apparently hasn’t dealt with this yet.

Guardian didn’t concede that the payment was a “fine or penalty”, but wasn’t going to fight it out in Tax Court.

Judge Lauber diligently parses the terms “agency” or “instrumentality” (Guardian claims it means “subordinate”, but Judge Lauber finds five varieties of ambiguity in those terms). And the Commission need not exercise every governmental function to be recognized as an agency or instrumentality; it is enough that it exercises an essential function, and enforcing anti-monopolies laws certainly fit the bill.

“When sovereign states enter into a treaty to accomplish shared goals, it is rare that any signatory nation exercises unilateral control over the entities thus created. Typically, signatories voluntarily restrict their authority to act unilaterally, as the EC member states have done, in favor of a collective regulatory scheme that they believe will serve their long-term interests. The fact that the Commission is not subordinate to, or subject to the control of, any individual member state thus has little relevance in deciding whether it is an ‘agency or instrumentality’ of the member states collectively.” 143 T. C. 1, at p. 36.

And if the usual five-point test for governmental agency is applied, the Commission gets three out of five easily. The five are : (1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign country]; and (5) how the entity is treated under foreign state law. See 143 T. C. 1, at p. 42.

Sorry, Guardian, you’re out of commission.

Yes, I know the World Cup is over. And so, I presume, does that Obliging Judge David Gustafson. But Judge Gustafson has a penalty kick anyway, and he gives it in favor of one who made a guest appearance on this blog, Lawrence G. Graev & Lorna Graev, Docket No. 30638-08, filed 7/16/14.

And yes, this is another order that should have been a designated hitter, but wasn’t. This is what keeps me up at night, digging this stuff out.

On background, check out my blogpost “Money Back Guarantee”, 6/24/13. Briefly, Larry and Lorna had a high-priced Manhattan MacMansion, whereupon they placed a façade easement, which blew up to the extent of a 40% overvaluation chop.

It’s who does the chopping that causes Judge Gustafson to kick.

“Petitioners assert that respondent [IRS] failed to comply with the requirement of section 6751(b)(1) that ‘the initial determination of such [penalty] assessment [must be] * * * personally approved (in writing) by the immediate supervisor of the individual making such determination’.” Order, at p. 1.

Responses and counter-responses flew back and forth, but Judge Gustafson still isn’t satisfied.

“The statutory notice of deficiency (“SNOD”) that underlies this case … was signed by a ‘Territory Manager’ in the IRS’s “Small Business and Self-Employed” (‘SBSE’) division. In that SNOD respondent determined gross valuation misstatement penalties pursuant to section 6662(h) and asserted, in the alternative, that petitioners are liable for section 6662(a) accuracy-related penalties. It appears that respondent’s position is that, for purposes of section 6751(b)(1), ‘the individual’ who made ‘the initial determination’ of the alternative section 6662(a) accuracy-related penalties is attorney X, of the Office of Chief Counsel–and not the Revenue Agent originally assigned to this case, Mr. Y (or any another individual in Exam or the Technical Services Unit)–and that X’s immediate supervisor approved his determination in compliance with section 6751(b). We understand respondent’s contention to be not that X simply advised or recommended the penalty to IRS examination personnel who then made the determination (since advising and recommending are evidently not subject to section 6751(b)), but rather that X was ‘the individual’ who made ‘the initial determination’. However, the document asserting that penalty determination is not a pleading filed in this suit by Chief Counsel (e.g., an answer or amended answer that newly pleads an alternative penalty), but is instead the original SNOD issued by SBSE.” Order, at pp. 1-2. (Names omitted).

Now Delegation Order 4-8 (Internal Revenue Manual pt. 1.2.43.9 (Sept. 4, 2012) lets SBSE Territory Managers sign SNODs, but Office of Chief Counsel is not among the blessed communion, fellowship divine, so empowered.

So Judge Gustafson wonders “If, in fact, it was X who made ‘the initial determination of such [sec. 6662(a) penalty] assessment’, then it would seem that there must be some delegation of authority to Chief Counsel to make such a determination. The undersigned judge is unaware of any other delegation to Chief Counsel of the authority to determine a penalty liability in an [sic] SNOD; and respondent has not yet identified a relevant delegation of authority that would enable a Chief Counsel attorney to be ‘the individual’ who makes such a determination.” Order, at p. 2. (Name omitted).

So Judge Gustafson wants IRS to find the delegation.

Note this is not the old tax protester dodge that the SNOD wasn’t signed by the Secretary or his delegate. The SNOD isn’t at issue here, it’s who determined, rather than advised or recommended, to assert the penalty set forth in the SNOD. And there’s a specific statutory provision on that point.

A Taishoff “good job” to petitioners’ counsel.

No, not the USC fight song, which many of us have heard booming from the television surround-sound, amidst popcorn, peanuts, nachos et hoc genus omne, as the football went sailing through the uprights.

No, this is the apparently unending story of James (“Little Jim”) Haber, Tax Court perennial and master immunologist, this time in a continuation of Humboldt-Shelby Holding Corporation and Subsidiaries, Docket No. 25936-07, filed 7/16/17.

Little Jim wants a Rule 161 reconsideration, and Rule 162 vacation, claiming Judge Goeke didn’t properly Golsenize his previous opinion. What previous opinion, you ask? Well, check out my blogpost “Immunology”, 3/18/14, and enlightenment will be yours, at no extra cost.

Little Jim claims that if his deal could have made money (and everyone agrees it could have yielded a pittance, provided one disregards the fees Little Jim paid to acquire this bargain), game over, and economic substance, sham and all that nastiness are off the table.

Unhappily, the case Little Jim relies on is a broken reed.

First, the obligatory bow to Golsen v. Com’r, 54 T. C. 742, at p. 757 (1970). Tax Court must follow controlling Circuit Court of Appeals precedent.

Here, it’s our own Second Circuit, up the street from me at Foley Square. And Second Circuit has two prongs, rather than unitary, when dissecting the economics of a deal. First, could it make a profit? Judge Goeke agrees it could, if he left out the acquisition fees aforesaid, but whether he counts the fees or not, mox nix (as we say).

“However, the effect of that finding [that Little Jim might have made maybe a few bucks] was tempered by the significant tax savings the transaction was sure to generate. Our analysis was consistent with the Second Circuit’s economic substance approach. Although the Second Circuit has not before compared a transaction’s tax benefits to its profit potential, it has indicated that all facts and circumstances are relevant in determining whether a transaction has economic substance. The disparity between the guaranteed tax savings and the potential profit in this case was a relevant fact and convinced us that petitioner engaged in the transaction solely for tax reasons.” Order, at pp. 2-3. (Citations omitted).

Little Jim does have one last down, and he throws the usual “Hail Mary”.

Little Jim has a 1991 Second Circuit case called Gilman where the Court only analyzed whether the deal could make a profit, however minimal.

OK, says Judge Goeke, but “(T)he Second Circuit held that the transaction in Gilman presented no reasonable opportunity for profit. Therefore, the court did not have to consider whether, if it did, the profit was sufficient to give the transaction economic substance. The Gilman court’s analysis did not foreclose our consideration of additional facts once we determined petitioner’s transaction had profit potential. The Second Circuit has not decided an economic substance case under such circumstances, so the Golsen rule did not prevent us from looking to cases in other jurisdictions for guidance. Respondent’s notices of objection to these motions further expound on this matter, and we agree in whole with their analysis.” Order, at p. 3.

Wanna bet that Second Circuit will get the chance to decide “an economic substance case under such circumstances”, Judge, if Little Jim has a shot at getting there?

Little Jim may or may not have gone to USC, but he’s sure singing their fight song.

Now I’ve got as bone to pick with Judge Goeke, and it’s a tale I’ve told before. Specifically, I’ve told it in my blogpost “And Waste Its Sweetness On The Desert Air”, 5/8/14. To quote me quoting Tommy Grey, “But too many Judges are wont to issue orders to fortune and to fame unknown. And I’ve blogged these.” Op. cit., as my high-priced colleagues would say.

Have I ever. This Order has some important learning in it. But Judge Goeke hasn’t designated it. It’s sitting, in the words of Bartolomeo Vanzetti, “unknown, unmarked, a failure,” amidst six pages of soul-destroying banalities.

Today, 7/16/14, we have three small-claimers with unsupplied 433-As or missing documentation, and three designated hitters with absolutely nothing new in any of them. And we have this gem from Judge Goeke, that alone is worthy of my time, effort, and wordprocessor.

I know the judicial mill has little grist to spare for us bloggers. But gee, Judge Goeke, cut me a wee bit slack, huh? If it’s worth three pages, it should be worth a DH.

UPDATE

I got so wound-up with Judge Goeke’s modesty that I plumb forgot the partitive genitive. Should be “But gee, Judge Goeke, cut me a wee bit of slack, huh?”

My beloved Aunt Augusta presented me, some sixty years ago, with one of the myriad editions of Ebenezer Cobham Brewer’s classic Brewer’s Dictionary of Phrase and Fable. I have it still, and the 14th edition as well. They’ve been standbys and go-tos again and again, and this time old E. Cobham (as he was known to his friends) has a lesson for an AO at Appeals.

E. Cobham defined the English folk song “The Song The Old Cow Died On” as “Advice instead of relief; remonstrance instead of help.”

And Judge Haines sings the refrain (“consider, good cow, consider”) to Appeals in Synergy Environmental, Inc,.2014 T. C. Memo. 140, filed 7/15/14.

Synergy was a corporation whose philosophy was, apparently, “go for broke”, and they did. Synergy had about four years’ worth of unpaid tax, for which they offered $600 as an OIC, claiming they were stone cold dead.

IRS kicked the OIC, Synergy did nothing, but about a year later IRS laid a NFTL on Synergy. Synergy appealed the kicked OIC (then a year old), but Appeals said “no, and here’s a NOD”. Synergy petitions.

The NOD said “[b]ecause the Offer in Compromise was filed … a year earlier than the Request for a Collection Due Process Hearing for the filed federal tax lien any decision on the Offer in Compromise is covered under an earlier, separate work unit.” 2014 T. C. Memo. 140, at pp. 5-6.

Maybe so, but Judge Haines politely inquires “so what?”

“This statement does not find or decide anything with respect to the appropriateness of the …OIC. Hence, the determination does not contain all the statements required by section 301.6330-1(e)(3), Q&A-E8, Proced. & Admin. Regs.

“Additionally, the statement indicates that AO X did not consider petitioner’s … OIC as a collection alternative in making his determination pursuant to section 6320. That the … OIC was concurrently being considered in a separate appeal did not obviate the need to consider the … OIC in the section 6320 hearing. See secs. 6320(c), 6330(c)(2), (3), and (4). We think it is necessary to remand this case to Appeals for a supplemental hearing.” 2014 T. C. Memo. 140, at p. 6. (Name and footnotes omitted).

One of the omitted footnotes distinguishes Synergy from an earlier case, where an OIC had been the subject of a decided appeal. Here the OIC had never been previously disposed of by Appeals.

So Synergy gets an interesting second swing at the baseball.

And Appeals should heed the old song: “Consider, good cow, consider”.