11 Cir, ignoring 2 Cir, 3 Cir, and 6 Cir, stood by Tax Court in denying equitable tolling while reaffirming Pugsley in Allen v. Com’r, No. 22-12537, 12/21/22. As I’ve said often before now, I don’t follow appellate courts; the trade press and blogosphere do that with more resources than a mancaver like me can ever muster. I didn’t blog Allen when then-Ch J Maurice B. (“Mighty Mo”) Foley tossed the petition with the usual one-page, day-late-dollar-short Order; there were dozens such then and since.

But to buttress Pugsley, apparently after an irreverent blogger questioned Tax Court’s reliance on a case decided years before Boechler, P. C., and wherein the Section 6213(a) jurisdictional barrier received less than a clause in a sentence as 11 Cir’s definitive word on jurisdiction-vs-claim-processing, Ch J Patrick J. (“Scholar Pat”) Urda has 11 Cir’s post-Boechler, P.C., statement upon which to rely. 11 Cir even cites Pugsley approvingly.

For the whole story, see Amanda Lopez Docket No. 16760-25S, filed 3/2/26. Amanda says she really got the IRS run-around.

 “In particular, petitioner highlighted having been in communication with the IRS office in Austin, Texas, since at least July of 2025, responding to earlier notices from the agency and even submitting an amended return. Strongly emphasized were the unreasonable amounts of time taken by the IRS to address or to even acknowledge her submissions and the failure by contact persons to return messages left by phone. Attached to the motion were copies of letters sent by petitioner to the IRS, supporting her statements. Petitioner also reiterated her position regarding the inaccuracy of the proposed amounts.” Order, at p. 2.

Sorry, Amanda, you’re in FL, hence Golsenized to 11 Cir, so being six (count ’em, six) days late means a trip to USDC or USCFC (if you can afford to pay the tax and your lawyer).

So the score in CCA’s March Madness stands at three to one, three for Boechler, P. C. and one for Hallmark Rsch. Collective and its kin. 

And since the Supremes denied cert in Culp (3 Cir), there’ll be more.

A couple days ago (hi, Judge Holmes), namely, 2/27/26, I noted that the page count of Tax Court Orders on DAWSON’s Creek was out of order (see my blogpost “Draining the Swamp – Part Deux.” 2/27/26). I noted that I had informed the Genius Baristas.

Now comes their reply.

“Thank you for contacting DAWSON Support. The Court’s DAWSON tech team is aware of this issue and hopes to have it resolved soon.”

It’s five years and more since the rollout of DAWSON’s Creek. Comment is superfluous.

No, not politics; must I again state that this is a nonpolitical blog? What I mean is the swamp on the margin of DAWSON’s Creek, where the page count of orders is a quagmire. Orders with tens of pages are collated not in numerical order, but by first digit. Hence, an 11-page order like Howard L. Abselet, Docket No.1063-24, filed 2/27/26, got buried at the bottom of the heap of 1 page pay-the-sixty-Georges, continuance granted, and amend-the-petition among today’s Orders, so I almost missed another attempted goal-line diving save by The Jersey Boys.

And yes, readers, I did tell the Genius Baristas.

Howard got more than half his med mal recovery scammed away. His then-trusty attorneys (not the Jersey Boys) failed to pursue the villains to Howard’s satisfaction, so he hired another trusty bunch who sued for legal malpractice, and got him $1.25 million out of the $6 million for which the scammers bilked him. 

Everyone agrees the med mal recovery was Section 104 exempt.

Howard, perhaps justifiably done with lawyers, does his own taxes, omitting the $1.25 million and his Social Security. The Jersey Boys claim the $1.25 million is return of capital, hence not accretion to wealth and thus not taxable; wherefore his Social Security is under the Section 86 85% taxability bar.

Negatory, says ex-Ch J L. Paige (“Iron Fist”) Marvel.

Look at the settlement agreement from the legal malpractice suit. All it says is legal malpractice, nothing about the med mal recovery. Tax Court looks at what you settled and said you settled, not what you wish you’d settled. And there are no “complex legal questions” regarding legal malpractice recoveries. See my blogposts “Would’a,” 2/18/21, and “Boilerplate Can Be Hazardous to Your Tax Health,” 6/7/21.

Wherefore IRS wins deficiency and five-and-ten chop. 

I thought The Jersey Boys read this my blog.

Magnolia West Properties, LLC, Magnolia West Manager, LLC, Partnership Representative, Docket No.  6924-23, filed 2/27/26, boasts an impressive four (count ’em, four) trusty attorneys from each degree of latitude. And IRS’s four-person crew is no less credentialed.

But as Branertonians these eight (count ’em, eight) worthies are a wee bit short of the mark, according to Judge Ronald L. (“Ingenuity”) Buch.

One of IRS’ stalwarts apparently sent two (count ’em, two) letters on the same day, one to third parties and one to Magnolia, whereby the Magnolias claim he ambushed them. But Judge Ingenuity Buch finds he rectified the situation within eight (count ’em, eight) days, Order, at p. 4.

The attorneys had Branertoned with partial success, when the usual jumpball over privilege commenced. And here the Magnolias, seeking a Rule 103 protective order, are short of substance.

“In sum, Magnolia West asks us to issue a protective order to preserve privileges that Magnolia West has not established. Magnolia West asks us to order the Commissioner to destroy documents that he obtained permissibly and in a manner that allowed both the third parties and Magnolia West to preserve any privileges that might apply. And Magnolia West asks us to order the Commissioner to comply with a rule that does not apply to the actions undertaken by the Commissioner. We will deny the motion, but we will do so without prejudice. Magnolia West may be entitled to a protective order if it provides sufficient information to establish the applicability of a privilege (and the absence of a waiver) on a document-by-document basis.” Order, at p. 5.

So try again, but until then, no protective order.

Taishoff says preface every privilege claim by preparing an item-by-item privilege log in advance of your motion. It concentrates your mind, and will concentrate the judge’s mind, wonderfully.

No, not a preview of March Madness. Judge Joseph Robert (“JR”) Goeke delves deep into Schedules E and F, and Form 8960 Net Investment Income Tax–Individuals, Estates, and Trusts, in Gary M. Schwarz & Marlee Schwarz, Docket No. 12347-20, filed 2/27/26.

Doc Gary’s goofy reg case featured here sub. nom. “The Buck Stops Here,” 5/13/24, “The Goofy Silt-Stir,” 11/5/24, and “Muddying the (Goofy) Waters,” 11/24/25.

Now Judge Joseph Robert (“JR”) Goeke gets granular with the reckoning and reporting of the Section 1411 Net Investment Income Tax, as Doc Gary and IRS are enmeshed in the Rule 155 beancount. 

“Petitioners failed to address the fact that for each year the other income that they included on line 4a of their adjusted Forms 8960 was offset by their adjustments to line 4b. In effect, petitioners are seeking more than a 100% offset of the other income: (1) a 100% offset on line 4b, and (2) an additional offset on line 9c. In other words, petitioners seek both (1) a 100% offset of the other income as if it was ‘derived in the ordinary course of a non-section 1411 trade or business,’ see Form 8960 line 4b, and (2) an additional offset for ‘Miscellaneous investment expenses,’ see Form 8960 line 9c, as if the other income was gross net investment income pursuant to section 1411(c). These positions are plainly contradictory and nonsensical.

“We need not delve into the parties [sic] arguments regarding (1) whether income subject to section 183 and related expenses are included in the Net Investment Income calculation, and (2) the calculation method for line 9c deductions. At most, petitioners are entitled to offsets/deductions of 100% of the gross other income, which respondent’s calculations already include.” Order, at p. 4.

I expect my journalistic colleague Peter Reilly, CPA, will find this dénouement to a hobby-loss case a useful addition to his collection.

Three (count ’em, three) items for the scrapbook today, none worthy of an individual blogpost.

Tracey Yvonne Lucas, T. C. Memo. 2026-22, filed 2/26/26, wanted to “help people,” so she ran a sole proprietorship called “Tracey’s TLC.” Unhappily, Judge Kashi (“My or the High”) Way finds she had only one client, no separate bank account, reported no income therefrom (although she got a few bucks looking after a neighbor’s child), and got her claimed deductions Section 274’d away.

Mark Hassan, Docket No. 10565-19, filed 2/26/26, has Judge Fung denying IRS document production and Mark’s assertion of privilege with what I would call RTFSPTO (“Read The Standing Pre Trial Order”)(the “F” is for emphasis). “Given the procedures and impending deadlines set out in the Court’s Standing Pretrial Order, we need not address any infirmities in the parties’ filings and we will not address whether petitioner’s assertion of the attorney-client privilege and the work-product doctrine is sufficient to defeat the relief sought in respondent’s Motion. If either party intends to use any documents at trial, that party must exchange them as part of the Stipulation of Facts or as the party’s Proposed Trial Exhibits within the prescribed deadlines.” Order, at p. 2. Maybe privilege is a shield, not a sword; if ya hide ’em, ya can’t use ’em.

Todd O. Olson, Docket No. 28000-22L, filed 2/26/26, would give rise to a Shakespearean pun if I were that way inclined, but I’ll spare you. Judge Cary Douglas (“C-Doug”) Pugh exhaustively surveys Tax Court’s mechanisms for holding no-show petitioners in default, and so holds Todd. Judge C-Doug Pugh adds a stinger: “We warned petitioner on multiple occasions that we may impose a penalty pursuant to section 6673 if he persisted in making frivolous arguments. Petitioner’s silence may imply that he had no non-frivolous response to respondent’s Motion. But because he did not respond with frivolous arguments after we warned him, we will not impose a section 6673 penalty at this time. We remind petitioner that our warnings regarding section 6673 also apply to any future cases in this Court.” Order, at p. 4, footnote 2.

Judge Goeke is a late entrant in the conundrum stakes, but he has a couple good ones (hi, Judge Holmes) in Antonia Gettridge, Docket No. 16153-23, filed 2/25/26.

Antonia claims a $45K Section 1341 claim of right credit that wipes out year at issue’s taxes and she overstates the withholding for which she claims a refund. IRS issues a SND embodying these, plus some other credits that Judge Goeke can’t make out. There’s also some other income in the mix, but for now the issues are the disallowed Section 1341 credit and the misstated withholding.

To have a Tax Court deficiency case there must first be a deficiency. So, since IRS gave Antonia no rebates, the basic Section 6211 definition here is tax due minus tax reported.

Except.

“Section 6211(b)(4) expands the definition of a deficiency to include the disallowance of certain refundable credits. The expanded definition of a deficiency allows taxpayers to contest the IRS’s disallowance of the designated refundable credits in deficiency proceedings. Under section 6211(b)(4), any excess of refundable credits allowable over the tax imposed by subtitle A, and any excess of reported refundable credits over the tax reported on a taxpayer’s return, ‘shall be taken into account as negative amounts of tax’ for purposes of section 6211(a).” Order, at p. 3.

OK, so Antonia has a valid SND?

Maybe not.

“Section 6211(b)(4)(A) lists the refundable credits in the following Code sections as subject to the deficiency procedures: sections 21, 24, 25A, 32, 34, 35, 36, 36B, 6428, 6428A, 6428B, and 7527A. The section 1341 credit is not among the listed credits.” Ibid., as my expensive former colleagues would say.

So does the disputed Section 1341 claim of right credit give rise to Tax Court jurisdiction?

As for the withholding jumpball, “(T)he amount of federal income tax withholding is not taken into account in determining the amount of a deficiency. Section 6211(b)(1) provides that Tax Imposed and Tax Reported are determined without regard to the section 31 credit for tax withheld on wages. Thus, withholding credits and overstatements are excluded from the definition of a deficiency.  The IRS may summarily assess tax in the amount of an  overstated withholding credit. §§ 6201(a)(3); 6213 (b)(1). Overstated withholding credit is not subject to the deficiency procedures. Accordingly, we will direct the parties to address whether we have jurisdiction in this deficiency case to determine the correct amount of petitioner’s withholding.” Order, at pp. 3-4. (Citations omitted).

So what, if anything, can Judge Goeke decide is the correct amount of Antonia’s withholding?

Submit memos by 4/15/26, along with what else you have to do on that date.

One would think that from anyone from his/her grade school days would remember that to explain a serious health-related absence a doctor’s note was essential. I’m surprised that the well-credentialed trusty attorneys for GO Risk Management, Inc., et al., Docket No. 14012-21, filed 2/25/26, didn’t seek (or allege that they sought but were refused) such.

Said trusty attorneys want to depose MT (name omitted) “…for the purpose of perpetuating his testimony because, petitioners assert, ‘Petitioners have substantial and well-founded concern that MT may not survive until the currently scheduled trial date of July 5, 2026, or that his condition will deteriorate to the point where he will be unable to communicate effectively.’” Order, at p. 1.

Before raising the want of underpinning, Judge Rose E. (“Cracklin'”) Jenkins notes the want of a Rule 81(b)(2) certificate of service on MT. 

Taishoff says maybe trusty attorneys should have foreseen this problem by alleging that MT’s condition precludes personal service, and none of attorney, guardian, conservator, or next friend could be located to receive service (if such were the case). And HIPAA may be a barrier to obtaining medical information.

Howbeit, the underlying problem with the application for deposition remains: “…petitioners provide nothing other than counsel’s assertions in the application in support of the contentions concerning Mr. Theisen’s health.” Order, at p. 1. And as petitioners haven’t shown that MT was served, Judge Jenkins can’t know what MT would say. or even knows about this.

Judge Jenkins has a suggestion.

“Given the allegations concerning MT’s health, the Court might consider granting a procedurally compliant application that provided a better foundation for the necessity and timing for the proposed deposition, as opposed to remote testimony at trial, but the infirmities of the application before the Court warrant its denial.” Order, at p. 1.

Application tossed without prejudice; try again.

Turns out that maybe Judge Travis A. (“Tag”) Greaves and your reporter spoke too soon. Maybe my account of the Section 7436 worker classification 90-day cutoff isn’t the whole story. See Belagio Fine Jewelry, Inc., Docket No. 35762-21, filed 2/24/26.

For the backstory, see my blogposts “Is It or Isn’t it?” 6/25/24, and “It Is!” 4/15/25.

IRS moves to toss Belagio’s petition for failure to state a claim (maybe because Belagio is Golsenized to 11 Cir and maybe Pugsley isn’t the last word) and asks for a decision “determining the proper employment status of the worker at issue, and the proper amount of employment taxes, additions to tax, and penalties due from petitioner.” Order, at p. 1.

Belagio’s representative is present at the motion hearing and doesn’t object. Sounds to Taishoff like a stiped decision. So maybe equitable tolling is available in Section 7436 reclassifications. 

Except.

Judge Tag Greaves orders “respondent’s Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted…is granted, and this case is dismissed because the Petition was not filed within the period prescribed by I.R.C. section 7436(b)(2).” Order, at p. 2.

Taishoff says huh? If petition not timely filed, Court has no jurisdiction, unless equitable tolling applies, which is never discussed. If Court rules petition fails to state a claim, Court must have or assert jurisdiction to do so, and Court only gets jurisdiction with a timely filed (or equitably tolled) petition. Which is it, Judge?

Anyway, Benny the employee gets a two page W-2. And Belagio will get a bill for the Section 6651(a)(2) failure to pay timely add-on when the parties figure it out.

No, not another reality TV show for tax practitioner CPE. Jeffrey Pesarik, T. C. Memo. 2026-20, filed 2/23/26, has a trusty attorney who did a good job eliciting enough from Jeff and his credit card and bank statements to eke out $21K of capital expenditures to offset the sale of one of the two (count ’em, two) houses he built or rehabbed, both of which he sold in the same year. Trouble was, Jeff didn’t report either sale.

I’m surprised Jeff, a property manager in multiple States, never encountered a 1099-S.

Howbeit, as to one building, Ch J Patrick J. (“Scholar Pat”) Urda allows Jeff nothing, and moreover denies him Section 121 primary residence exclusion, as Jeff has no useful paperwork and his testimony is less than convincing.

On the other, his credit cards showing charges from builders’ merchants allows Ch J Scholar Pat to cut Jeff some Cohanslack.

Trusty attorney’s try to get Jeff off negligence chops doesn’t get far.

“Mr. Pesarik also argues that assorted disabilities, including posttraumatic stress disorder, depression, and attention deficit hyperactivity disorder, supply reasonable cause. ‘Where a taxpayer’s disability is raised as part of a reasonable cause defense, we have looked to the severity of the disability and the impact it had on the taxpayer’s life . . . .” Remisovsky v. Commissioner, T.C. Memo. 2022-89, at *5 (quoting Jones v. Commissioner, T.C. Memo. 2006-176, 2006 WL 2423425, at *6). Mr. Pesarik fails to demonstrate that his disabilities interfered with his ability to satisfy his tax reporting obligations or led to the substantial understatement here.” T. C. Memo. 2026-20, at p. 13.