Yes, I know, in United States Tax Court a matter of seven years is but the twinkling of an eye. However, I do want to claim modest credit for blogging away back in April, 2018, what Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan unloads on Hannah K. Heart, Docket No.  13242-24, filed 5/15/25.

Hannah tries an oldie-but-not-goodie, filing a petition but not specifying year(s) at issue, nor attaching SND nor NOD. IRS moves to dismiss for want of jurisdiction, claiming they never issued either to Hannah from 2014 (a year when she raises a Form 843 seeking abatement of a penalty or addition to tax) to the present.

OK, possibly just a misapprehension of the law. We’ve seen dozens.

Except.

“… petitioner previously filed a case in Docket No. 10216-18 seeking review of notices of deficiency and notices of determination for tax years 2000 through 2017 that was dismissed for lack of jurisdiction on the ground that no notice of deficiency or notice of determination was issued to petitioner that would permit her to invoke this Court’s jurisdiction.” Order, at p. 2.

Reckoning Hannah should know better, Ch J TBS shows Hannah the Section 6673 yellow card.

See my blogpost “I’m Beginning to See the Light,” 4/9/18.

Those amongst us who foresaw a tsunamic silt-stir when the Supremes unleashed Boechler, P. C., upon us who never did them any harm will find our fears, like rumors of Mark Twain’s early death, greatly exaggerated.

Ch J-elect Patrick J. (“Scholar Pat”) Urda raises high the bar for CDP equitable tolling in Virgil Joseph Aiello, T. C. Memo. 2025-46, filed 5/15/25. VJ had serious eye problems for five (count ’em, five) years before surgery fixed them three (count ’em, three) years before the CDP.

VJ didn’t provide papers or phone in for the CDP nor respond to the “last chance,” so Appeals issued the NOD, which VJ got two days later. VJ did send in the petition and the sixty Georges, but sent them to Appeals, which promptly returned them to VJ.

The “last chance” said to send petition to The Glasshouse in the Governmentally Efficient City.

VJ finally properly sends in petition and fee six months later, attaching a TAS letter suggesting OIC, which VJ says doesn’t solve his problem.

Neither does Judge Scholar Pat.

“To be entitled to equitable tolling, a taxpayer must establish that he pursued his rights diligently and that extraordinary circumstances outside his control prevented him from filing on time.” T. C. Memo. 2025-46, at p.4. VJ must bear this “heavy burden.”

He doesn’t.

“Mr. Aiello has not met his burden to show his entitlement to equitable tolling. As an initial matter, ‘[e]quitable tolling is a rare remedy, and the burden is on Mr. [Aiello] to show that he “diligently pursued his rights for the entire period he seeks tolled, not merely once he discover[ed] the underlying circumstances warranting tolling.”‘  Mr. Aiello argues that he diligently pursued his rights by sending his Tax Court petition to the Appeals officer. But the notice of determination explicitly told him that he needed to file that document with this Court.” T. C. Memo. 2025-46, at p. 4. (Citation omitted).

“Even assuming arguendo that sending his petition to the Appeals officer might represent an attempt to pursue his rights, Mr. Aiello has not shown that he continued to diligently pursue his rights in the six months between the Appeals officer’s return of his petition and filing fee check… and the filing of his petition in this Court…. In fact, Mr. Aiello fails to show that he took any action on this matter whatsoever in the nearly four months that followed the issuance of the June Taxpayer Advocate letter.” T. C. Memo. 2025-46, at p. 5.

The medical issue doesn’t help.

“Although Mr. Aiello faced significant medical problems beginning in 2014, these problems had resolved by 2019 (according to both Mr. Aiello and his doctor) and played no part in his tardy filing. And when given the opportunity during the evidentiary hearing to identify any other extraordinary circumstance that might explain the delay, Mr. Aiello stated: ‘Nothing stands out in my mind.’” T. C. Memo. 2025-46, at p. 5. (Footnote omitted, but read it; 1 Cir says obstruction by adversary might give rise to equitable tolling; how about misleading IRS advice? I know, statute and regs control, nothing else, but it might be worth a try with really good facts).

If you don’t know what either of those financial shellgames is, consider yourself lucky. If you want to know, Judge Morrison will Judge-‘splain them to you in Kirk Stevens & Shannon Stevens, T. C. Memo. 2025-45, filed 5/15/25.

If you already know, you might read the fifty (count ’em, fifty) pages of Judge Morrison’s words and figures. I lost him at around page 3, but I found that even he got confused around page 23.

“Pomerantz (one of petitioners’ experts) further calculated that by Date.14 (January 1, 2018), the accrued interest and principal on the 2016 note would have been compounded over eight quarters and would be $142,467,412.14 This loan-balance amount, Pomerantz explained, is ‘identical’ to $160,679,613 minus $18,032,207, or $142,647,406. Indeed, the two amounts differ by a trivial $6.” T. C. Memo. 2025-45, at  p. 23. No Judge, by my arithmetic it comes to a less-than-trivial $180,000, unless 467 was mistranscribed as 647.

Does nobody proofread these opinions?

But after all the mathematical gyrations, the case goes off on the promissory notes offset with the Bermuda options yielding a zero result, hence no economic effect, hence not true indebtedness entitling Kirk & Shannon to OID interest deductions offsetting the big gain they got when they sold their business.

As for chops, IRS is in a muddle deciding between 20% and 40%, but sort it out at 20%, especially when the tax attorney whose high-priced opinion Kirk & Shannon bought for $40K disavowed same.

I’m going to quote the following from Judge Morrison’s opinion, and contrary to my usual practice, I’m naming names and dates. Gopman is a tax attorney who specialized in trusts and estates. Rubinger is the tax attorney who gave the opinion. SLS is Kirk’s & Shannon’s business, which they sold. Shannon is a long-time accountant who ran her own tax prep business.

“Bill McDermott, a certified public accountant, began preparing SLS’s tax return for the tax year 2014. McDermott had a copy of Rubinger’s tax opinion letter. On or before August 21, 2015, McDermott suggested to Shannon Stevens that it was advisable for taxpayers to disclose ‘certain tax shelter’ transactions to the IRS and asked her whether she thought such a disclosure was warranted with respect to the deductions for interest accruing on the 2014 note. On August 21, 2015, Shannon Stevens asked Gopman about McDermott’s inquiry. Gopman in turn sought Rubinger’s views. Rubinger explained to Gopman that he would advise against claiming the interest deductions at all. Rubinger asked Gopman not to reveal this advice to petitioners. Gopman refused. He explained to Rubinger: ‘We cannot keep the advice between you and me though as we have to advise them [i.e., petitioners] the right way.’ Gopman made petitioners aware that Rubinger advised against claiming the interest deductions.” T. C. Memo. 2025-45, at p. 14.

Gopman gets a Taishoff “Good Job.” I expect Rubinger got The Phone Call.

Late Boss Hossery gets rescued by Laidlaw’s Harley Davidson after some adroit testimony from IRS exam personnel.

Judge David Gustafson is a model of courtesy. Arthur M. Bialer, Docket No. 6983-19W, filed 5/14/25, has furnished Judge Gustafson much material, and furnished me no fewer than six (count ’em, six, and I have) blogposts. I have already designated Arthur as successor to the late Fighting Joe Insinga.

It seems Arthur wants to take his war with DC Cir’s view of whistleblowing to a “pre-trial” conference in Tax Court. While Judge David Gustafson isn’t quite so obliging, he’s perfectly willing to let Arthur take the hold off IRS’ summary J motion. Judge Gustafson put Arthur’s case on hold pending appellate decisions in Lissack and Shands, both of which I blogged at Tax Court (I leave appeals to the trade press and blogosphere). Those appeals having been decided and become final beyond possibility of further appeal, Judge Gustafson was waiting on Meidinger (which I blogged) and Kennedy, T. C., Memo. 2021-3 (which I didn’t).

Leaving aside the obvious point that there are no Tax Court trials in Section 7623 whistleblower cases (they’re all record-rulers; did the Whistleblower Office abuse its discretion, based on the administrative record as permissibly supplemented?), Judge Gustafson will let Arthur respond to IRS’ stalled summary J motion without the benefit of any good language that an appellate decision in either Meidinger or Kennedy might afford him.

“In describing the context of this case, petitioner’s motion refers to ‘grossly erroneous judicial decisions’ of the Tax Court and the Court of Appeals; refers to ‘cases in which the Court of Appeals has issued one or more opinions in gross error, and under procedural circumstances that shock the conscience’; and explains that ‘each of the holdings that led, directly or indirectly, to Shands [cited above]— Cooper [v. Commissioner, 136 T.C. 597] (2011), Cohen [v. Commissioner, 139 T.C. 299 (2012), aff’d per curiam, 550 F. App’x 10 (D.C. Cir. 2014)], Kasper [v. Commissioner, 150 T.C. 8 (2018)], and Li [v. Commissioner, 22 F.4th 1014 (D.C. Cir. 2022), abrogating Lacey v. Commissioner, 153 T.C. 146 (2019)]—was devoid of analysis based on relevant legal authority, and each was issued under appalling procedural circumstances’.” Order, at p. 2.

With becoming delicacy, Judge David Gustafson suggests “(W)e therefore tentatively conclude it is likely that petitioner intends to respond to the motion for summary judgment by filing a response that proposes that multiple precedential opinions of this Court and of the Court of Appeals should be overruled.” Order, at p. 2.

Unhappily, Golsen. Pore l’il ol’ Tax Court can’t overrule DC Cir, and meek and modest Judge David Gustafson can’t overrule a bunch his colleagues (hi, Judge Holmes) all on his lonesome.

But Judge Gustafson has an offer that Arthur can refuse or accept.

“We are inclined to await the D.C. Circuit’s opinions in Kennedy and Meidinger before deciding the Commissioner’ motion for summary judgment in this case. We would have supposed that petitioner might likewise prefer to await those opinions so he could take them into account in composing his opposition to the Commissioner’s motion. But if he would prefer to file his opposition now, we will allow it.” Order, at p. 3.

So Arthur, the choice is yours: file your answer to IRS’ summary J motion, or file a status report stating that you’ll await the outcome of the aforesaid appeals, or make “another appropriate filing.” Order, at p. 4.

Non-attorney aspirants to admission to the United States Tax Court Bar are well advised to devote substantial study to the FRE; questions concerning same take up 25% of then examination. Those questions will come fast and furious, allowing little time for cogitation (and the exam is closed-book anyway). At trial, evidentiary scrimmages are the plat du jour, so the practitioner needs instant recall. Hearsay is a major evidentiary component.

Judge Travis A. (“Tag”) Greaves has an extensive review of Rule 807 residual exceptions and a few pointers on the specific exceptions in Rule 803 in Amgen, Inc, and Subsidiaries, Docket No. 16017-21, filed 5/13/25.

Section 7453 and Rule 143(a) subject Tax Court to the FRE.

“Generally, out of court statements offered to prove the truth of the matter asserted are inadmissible hearsay. Fed. R. Evid. 801(c), 802. But there are many exceptions to this general rule, such as the public-record exception, the ancient records exception, and the residual hearsay exception…. The proponent of the hearsay bears the burden of showing that it is admissible. Regardless of the admissibility of the hearsay, an expert may rely on hearsay as the basis for his opinion. Fed. R. Evid. 703. (Order, at p. 1). (Citation omitted).

Guaranteed trustworthiness lets in 10-Ks filed with SEC and annual reports to shareholders of publicly-tradeds. The penalties for lies or misstatements are sufficiently severe to keep ’em honest.

“Fed. R. Evid. 803(8) sets forth the public record exception to hearsay. A record or statement of a public office or agency is admissible under the public record exception if it sets out (1) the office’s activities, (2) a matter observed while under a legal duty to report, or (3) factual findings from a legally authorized investigation. Fed. R. Evid. 803(8)(A). A legal duty to report is broadly interpreted to include records that are created or maintained in the course of carrying out the agency’s duties.” Order, at p. 3. But not everything on an agency’s website or in its reports is covered: statements not authored or prepared by the agency are subject to exclusion as hearsay.

Government agency reports (Bureau of Labor Statistics, Commerce, State, Food and Drug) go in.

Congressional Committee reports are inherently political, hence untrustworthy. That’s Judge Tag Greaves speaking, guys,not my political comment.

FRE 803(16) lets in documents prepared before January 1, 1998, whose authenticity is established. This exception (“ancient documents”) to hearsay can apply to newspaper articles and magazine clippings.

Documents can be admitted to show what information was available when prepared, or to show they exist, but not for the truth of what the documents say.

Trustworthiness is a judgment call. See Order, at pp.7-8, for the balancing act. And the document must also be more probative of the facts asserted therein than anything else reasonably available. “Petitioner argues that we should overrule respondent’s hearsay objection because the article satisfies the residual exception to hearsay. Regardless of whether the article is trustworthy, it is not more probative than other evidence…. The effectiveness…was a prominent issue at trial. Several experts filed expert reports and testified on the effectiveness…. Fact witnesses also covered this topic in their testimony. Several exhibits have been admitted into evidence establishing Amgen’s contemporaneous views…,.. All of this evidence, most of which is specific… is more probative than Dr. S’s paper. Therefore, we will sustain respondent’s objection….” Order, at p. 8. (Name omitted).

Most importantly, don’t rely on my abstract. Read Judge Tag Greaves’ analyses.

One of the rounds in the attorney professional disciplinary bandolier is the public censure. For some reason, this sanction is not expressly included in the Rule 202(c) laundry list. May I therefore most respectfully suggest that incoming Ch J Patrick J (“Scholar Pat”) consider adding it when first he undertakes to amend the Rules of Procedure and Practice?

Judge Jeffrey S. (“Schwer”) Arbeit might wish to make use thereof in Peter Joseph Isaiah Gibbons O’Connor, T. C. Memo. 2025-42, filed 5/12/25, in addition to the Section 6673 $2K chop he hands PJIGO.

In addition to being a member of the CA Bar, PJIGO is admitted to practice in United States Tax Court. Moreover, he represented a client years ago who unloaded substantially the same protester/defier jive that PJIGO ventilates here.

PJIGO doesn’t bother filing eight (count ’em, eight) years’ worth, for which IRS slugs him with a SND north of $1.1 million, plus add-ons. PJIGO ripostes with 1000 (count ’em,1000) pages of jive, wherein he asserts “1) the Sixteenth Amendment was not properly ratified and is therefore invalid, (2) section 1 does not plainly and clearly impose a tax on the income of petitioner, (3) the income tax is an excise tax to which his income is not subject, and (4) petitioner is a citizen of Nevada and therefore not subject to federal income tax. To the extent he asserts other claims (e.g., a purported cost basis in his personal labor), they fit within these general themes. All are frivolous.” T. C. Memo. 2025-42, at pp. 4-5.

He does stip that if these defenses crater, he owes the tax. He reserves a claim of reasonable cause for the add-ons for the first time in his opening brief, T. C. Memo. 2025-42, at p. 3.

They crater.

Judge Schwer Arbeit is not amused by more hard work.

“Petitioner is a tax lawyer licensed in California and admitted to practice before this Court. Throughout his briefing he acknowledges that he understands the substantial caselaw establishing that his arguments are without support. He knows that his arguments were found frivolous in cases that he cites. See, e.g., Miller v. United States, 868 F.2d 236, 238, 241–42 (7th Cir. 1989) (per curiam) (noting prior sanctions and imposing additional sanctions for a frivolous challenge to ratification of the Sixteenth Amendment). Nevertheless, he persists in making his frivolous arguments. Further, he has done so in a way—filing more than 1,000 pages in this case—that could only hinder the work of the Court.” T. C. Memo. 2025-42, at p. 10.

Why only a $2K Section 6673 chop?

He only frivoled on brief, not at trial (there was no trial; see infra). His previous frivoling was nearly 20 years ago.

“Finally, and most importantly, petitioner’s cooperation with respondent in stipulating ‘to the fullest extent,’ see Rule 91(a)(1), and agreeing to submit this case fully stipulated under Rule 122 tempers our view of his otherwise flagrant conduct. Our forbearance shows the great weight we attach to our Rules promoting judicial economy and especially to our pretrial procedures. See Branerton Corp. v. Commissioner, 61 T.C. 691, 692 (1974).” T. C. Memo. 2025-42, at p. 11.

Judge, if I may be heard, a far higher Authority even than the United States Tax Court once remarked about similar goings-on, “These people honor me with their lips, but their hearts are far from me.”

Herbert J. Stokey, T. C. Memo. 2025-44, filed 5/12/25, is 140 (count ’em, 140, and Judge Albert G. (“Scholar Al”) Lauber has) days late with the petition from a SND; so why a T. C. Memo. and not a Ch J boilerplate Hallmark Collective toss?

Herb moved from NY to NJ early in year at issue. Although his last known address was still NY, by moving to NJ prepetition he gets 3 Cir Culp equitable tolling. For the Culp story, see Culp v. Commissioner, No. 22-1789, 2023 WL 4612024 (3d Cir. July 19, 2023.

But all Herb argues about is mailing to last known address. Except the NY address was on his tax return filed most recently before SND issued, and he can’t show he gave Reg. Section 301.6212-2(a) “clear and concise” notice of new address until after the SND issued.

“To be entitled to equitable tolling, a taxpayer must establish that (1) he pursued his rights diligently and (2) extraordinary circumstances beyond his control prevented him from filing on time.” T. C. Memo. 2025-44, at p. 5. (Citations omitted but get them for your memo of law file).

Even if Herb got the SND after the 90-day cutoff, he still waited another 95 (count ’em, 95) days before filing a petition. T. C. Memo. 2025-44, at p. 6. Too long.

Note also Judge Scholar Al recharacterized IRS’ motion for summary J to a motion to dismiss for failure to state a claim upon which relief can be granted. That’s apparently the style for a motion to toss the inequitably tolled.

What do you do when you discover that you took in $7.5 million in income that you’re not entitled to over seven (count ’em, seven) tax years? You give it back and deduct it, of course, says Norwich Commercial Group, Inc., T. C. Memo. 2025-43, filed 5/12/25. No, says IRS, because the money came from the line of credit {LOC} Norwich had with a CT bank, hence it was repayment of a loan. And Norwich had to collateralize the overdraft in year of discovery because they couldn’t repay it all at once.

Norwich was a mortgage originator, borrowing money from the CT bank to underwrite and fund home mortgages, unload mortgages to investors, send the payments from the investors to the CT bank, which would fund Norwich’s operating account. Norwich would send the info to the CT bank, who would transfer the money as directed. Except the CT bank didn’t.

Neither the CT bank nor Norwich’s trusty CPA found the mistakes. It took months to unscramble this frittata.

This kind of accounting garbuglio is a walk in the park for Judge Elizabeth A. (“Tex”) Copeland.

“What makes these cases particularly complicated is that Norwich was in the business of facilitating loans. In order to earn mortgage fee income, Norwich relied on borrowing from its LOCs. Thus, the Commissioner focuses on the origin of the funds rather than the origin of the transaction that caused Norwich to receive funds as income. It is that income that all now agree Norwich was not actually entitled to receive. Thus, we must step back and look at the full picture of what occurred. The lending transactions were legitimate transactions and there is no doubt that the… LOC draws deposited into Norwich’s clearing account were required to be repaid. The key to these cases is that because [CT bank] accidentally advanced more funds than it should have and failed to properly secure repayments from sales to investors; both parties (Norwich and [CT Bank]) operated under the assumption that Norwich was holding more collateral (assets) than existed; and Norwich was entitled to disbursement of more mortgage fee income than it had earned. Liberty transferred funds in error from the clearing account to the operating account, which were then accounted for as Norwich’s earned mortgage fee income. See Treas. Reg. §1.1341-1(a)(2) (defining ‘”income included under a claim of right” [as] an item included in gross  income because it appeared from all the facts available in the year of inclusion that the taxpayer had an unrestricted right to such item”). If the mortgage receivables had been correctly accounted for, the mortgage fee income disbursements would not have occurred.

“Important here is that Norwich incorrectly overreported its assets and its income and correctly reported its “Warehouse LOC Payable.'” T. C. Memo. 2025-43, at p. 18.

So the overstated income was received and reported under a claim of right, except Norwich was wrong. And when Norwich and CT bank finally got the numbers right, Norwich hocked whatever it had to CT bank to secure repayment, which it made over the next two years.

So when does Norwich deduct the repayment? Norwich is an accrual basis taxpayer, so the all-events test comes into sharp focus.

“Section 461(h) sets forth parameters for determining when economic performance occurs, and section 461(h)(2) outlines the timing rules for economic performance. Given that the claim of right doctrine effectively creates a liability for repayment of overstated income in the year of discovery, the most applicable timing provision is found in section 461(h)(2)(B), which establishes that ‘[i]f the liability of the taxpayer requires the taxpayer to provide property or services, economic performance occurs as the taxpayer provides such property or services.’” T. C. Memo. 2025-43, at p. 23. See also Reg. Section 1.1341-1(e). And Norwich and CT bank signed the collateralization agreement in year when Norwich claimed the deduction.

Norwich wins.

Interesting how this cascading mess evolved during the Great Mortgage Meltdown.

He Can’t Represent Her

It’s beyond a perennial, more like an invasive species. This is the representative (who would be an ‘Agent” under a State POA, but Form 2848 styles a “representative”) who signs a Form 2 petition.

The boilerplate rebuke is common, and probably resides in the Tax Court form file. But before a copy-and-paste hits the screen, someone should really eyeball the resulting Order one last time.

Here’s Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan in Camille Nini, Docket No. 5936-255 (sic), filed 5/9/25. Camille did sign the petition.

“The petition was also signed by Robert J. Bugdal who appears to be petitioner’s non-attorney representative. The record shows that Robert J. Bugdal is not admitted to practice before the Tax Court. The United States Tax Court, which is separate and independent from the Internal Revenue Service, has certain requirements that must be met before an individual can be recognized as representing a petitioner before the Court. Unlike the IRS, the Court does not recognize powers of attorneys and, thus, petitioner’s non-attorney representative may not represent it in this case.

“The Court has prepared Q&A’s on the subject ‘Representing a Taxpayer Before the U.S. Tax Court’. The Court also encourages practitioners and non-attorneys seeking admission to practice before the Court to consult ‘Guidance for Practitioners’ on the Court’s website at http://www.ustaxcourt.gov/practitioners.html. At this juncture James E. Wilson will not be associated with this case and we encourage petitioner’s representative to review the Court’s admissions requirements.” Order, at p. 1.

Taishoff respectfully suggests that Messrs. Bugdal and Wilson, and any other non-attorney who wants to jump into the Adult Swim on Second Street, NW, check out my blogpost “Coming in November,” 5/6/25. And hit those study resources hard; if you’re expecting an easy trip, you won’t get it.

Come to think of it, maybe so y’all should check out my blog every working day.

Paulette Shomo, Docket No. 9309-21L, filed 5/8/25, has truly reprised Strickland W. Gillian’s classic. Even that Obliging Jurist, Judge David Gustafson, could not put Pauline on the compliance track.

Pauline would file late and underpay, year after year, because she chronically underwithheld. After a CDP and remand, when she repeated the process, Judge David Gustafson threw in the cliché.

“This case involves the circumstance of a taxpayer being non-compliant, becoming compliant, and relapsing into non-compliance—a risk inherent in the passage of time during the CDP process. We sometimes criticize IRS Appeals when we think it the CDP hearing too hastily to the disadvantage of the taxpayer, but IRS Appeals must no doubt keep an eye on the consequences of its patience and forbearance: A taxpayer in the CDP process might propose an OIC or an IA when she is up-to-date on her return-filing and payment obligations; but if her CDP proceeding is not complete before the next April 15 rolls around, and if she fails to file her return, then IRS Appeals would have to evaluate her collection alternative in the absence of important information—her mounting liabilities.” Order, at pp. 10-11. (Footnote omitted).

And it’s been seven (count ’em, seven) years since the years-at-issue underpaid taxes have been sitting uncollected. IRS’ forbearance collides with the need to collect the revenue. And Pauline could pay.

But Judge David Gustafson is thorough. IRS bounced the supplemental CDP because of Pauline’s nonfiling, but she subsequently did file. Chenery mandates judging what the agency did and said it did, not what it might have done or said.

“We do not construe the Chenery rule to require that tunnel vision. In the first place, IRS Appeals eschewed such tunnel vision when it moved for a remand (for Ms. Shomo’s benefit) and refrained from asking us to sustain the initial NOD on the basis of the non-compliance that, as of that time, was still uncured. More important, compliance with tax-payment and tax-filing requirements is an ongoing obligation of the CDP petitioner who seeks a collection alternative. Ms. Shomo’s failure to file her returns and correct her under-withholding for 2023 and 2024 are simply the continuation of the non-compliance that rendered her CDP hearings fruitless. It would be perverse if IRS Appeals forfeited its non-compliance contentions by granting latitude to the taxpayer, and if we were to invoke the Chenery rule to punish IRS Appeals for its forbearance, we would discourage the patience we hope that IRS Appeals will extend. In taking 2023 and 2024 into account to sustain the supplemental NOD in this case, we are not inventing new grounds to sustain the supplemental NOD but rather are addressing the same principles that IRS Appeals invoked to deny collection alternatives and sustain the proposed levy.” Order, at pp. 12-13. (Emphasis by the Court).