Tax Court Issues a Precedential Opinion (T.C.) Holding that Form 872-T Does Not Revoke a Proper Form 872 Consent to Extend the Statute of Limitations; Well, Duh! (9/30/26; 10/6/26)

The Tax Court today issued a regular opinion in Fine v. Commissioner, 167 T.C. ___, No. 13 (2026) (T.C. # 24390-21 at #43 and GS here. The issue was, to use tax jargon, whether a taxpayer can use Form 872-T to terminate a Form 872 consent to extend the statute of limitations. OK, to be more precise, Form 872 is a Consent to Extend the Time to Assess Tax; Form 872-T is Notice of Termination of Special Consent to Extend the Time to Assess Tax. (Bold-face supplied by JAT.) On its face the name alone should tip one-off that it may not apply to Form 872, because Form 872 is not nominated a “Special” Consent. Reading Form 872-T, one can quickly determine that it applies to the Form 872-A, nominated Special Consent to Extend the Time to Assess Tax (bold-face supplied by JAT).

I dare say that only the most unaware tax practitioner would have known that a Form 872-T cannot revoke the date certain in a Form 872. But apparently such an unaware tax practitioner was the Fines' lawyer (both with respect to deploying / filing the Form 872-T (5 times) and making the argument in the Tax Court case (see Slip Op. 4 n. 5 identifying the person submitting the form as “individual is also counsel of record for petitioners in this case.”).

So, why would the Tax Court use a regular precedential opinion to state a truism known to all minimally competent tax lawyers? In my mind, this opinion should have been issued as an order and not even elevated to T.C. Memo. status. (But they are Tax Court Judges, and I am not.)

 For readers’ further consideration, I offer the following:

1. I asked ChatGPT Plus the following prompt: “What are the guidelines the Tax Court uses to determine whether an opinion should be issued as a regular opinion ("T.C."), a Memo Opinion ("T.C. Memo.), or an Order?” The response was quite good, so I offer it to readers here. Readers may also refer to my discussion in my Federal Tax Procedure Book—2026 Practitioner Edition pp. 599-601 and 2026 Student Edition pp. 406.

2. Why would the Court not impose sanctions on the practitioner for making the argument? See § 6673(a)(2), here. Perhaps the taxpayer raised other arguments that were not frivolous and that deflected the Court from imposing sanctions. Perhaps.

3. The Court repeats the nonsense that a consent to extend the statute "‘is essentially a voluntary, unilateral waiver of a defense by the taxpayer,’ not a contract.” Feldman v. Commissioner, 20 F.3d at 1132 (quoting Stange v. United States, 282 U.S. 270, 276 (1931). My late former partner, Larry Jones and I debunked that notion long ago. John A. Townsend & Lawrence R. Jones, Jr., Interpreting Consents to Extend the Statute of Limitations, 78 Tax Notes 459 (1998), here.

3. This reminds me of a hyperbolic issue I raised while with DOJ Tax Appellate. Sometimes propositions are so obvious that they should not require a statement of authority which just tended to clutter up brief content and table of cases. I proposed that after such propositions, we use my “o.p.” convention (for obvious proposition) rather than case authority for the obvious proposition. (I never used that convention and could not convince my colleagues to use, so the best I can say for it is that no courts ever commented on it.) Indeed, I think if you read many Supreme Court and Circuit court opinions, obvious propositions are stated without case (or other) authority without even flagging for the obvious proposition.

I am aware of one instance where the Supreme Court did exactly that. In Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), GS here, Justice Jackson said for a unanimous Court: “This Court has long given considerable and in some cases decisive weight to Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin.” He cited no authority for that then-obvious proposition. Indeed, the Court had just said in 1943 that obvious proposition (with citation of authority) in Dobson v. Commissioner, 320 U.S. 489 (1943), GS here (Jackson also for a unanimous Court applying deference to a Tax Court interpretation of law because (i) by statute the Tax Court was an agency rather than deference to statutory  interpretation and (ii) the statutory review standard “not in accordance with law” required deference. (Let the latter sink in: syntactically, a reviewing court could only reverse the Tax Court if it could find that an agency interpretation was “not in accordance with law;” thus in a statute of statutory ambiguity (interpretive equipoise not permitting the court to determine the best interpretation) the court must adopt the agency interpretation.)

JAT Editorial Comment #1: Given that the proposition was so obvious at the time, I am stunned that Chief Justice Roberts in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 393-394 (2024), Preliminary Print here, could claim that the law at the time of consideration and enactment of the APA did not include deference to agency interpretations. (My cut, CJ Roberts just made that up to fit the result he wanted in the case (with the other Justices in the majority just tagging along to fit their preferred outcome even when they knew better.)

JAT Editorial Comment # 2: Inexplicably, Chief Justice claimed that an article by Professor John Dickinson published shortly after enactment of the APA had claimed that the APA text eliminated deference. That article which had lapsed into oblivion after it was published, only being resurrected in the Chevron wars after 2015 was hardly persuasive on that issue (given all the deference law that came out after the APA); equally importantly, Professor Dickinson’s premise for making the claim was that the law at the time of enactment required or permitted deference, setting Dobson up as his proof of that claim. The premise was correct; but obviously CJ Roberts wanted to ignore that part of the article. Sort of like looking over all the evidence like being at a party and choosing your friends (the common complaint from conservatives about using legislative history for statutory interpretations).

Editorial Comment # 3 (Admission). Our article cited above has, like John Dickinson’s article, lapsed into oblivion after publication. Still, I am waiting for some courts sometime (where is CJ Roberts when I need him) to recognize the arguments, hopefully for their inherent beauty rather than as false prompts for some other narrative they wish to tell.

Added 10/4/26 3:30pm: 

 In Fine, the Court also addressed the respective burdens that the parties have I have just added the key points on that to the working draft of my Federal Tax Procedure book as follows (w/o footnotes; the update is noted in the page the footnote copy from the working draft is here):

    As noted, the statute of limitations defense is an affirmative defense that the taxpayer must plead and then establish if it is contested at trial. At trial, the burden of persuasion is allocated as follows: (i) the taxpayer has the initial burden, usually an easy burden, to prove that the assessment or notice of deficiency predicate to assessment in deficiency cases in the Tax Court is outside the statutory period–three years as noted above; (ii) the IRS then bears the burden to prove that the assessment or notice of deficiency is timely; and (iii) the burden is on the taxpayer to show an untimely assessment. At least that is the way the shifting burden of persuasion  is articulated. Query though, if the IRS meets the burden in (ii) is the shift to the taxpayer in (iii) meaningful? I think not; indeed because the burden at step (i) is an easy burden, the more practical statement of the burden is that the IRS bears the burden to show a timely assessment (e.g., by showing the application of an exception to the three year assessment period or a valid consent to extend the assessment period).

Added 10/6/26 5:30pm: For an example of how the foregoing plays out in the real world of litigation, in Mitchell v. Commissioner, T.C. Memo. 2026-102, GS here, at Slip Op. 10 the Court cuts to the chase:

    Since the date of the Notice of Deficiency is later than three years after petitioners’ joint return was filed, we need to determine whether petitioners filed a false or fraudulent return with the intent to evade tax.

The FTPB locations of the insertion are: 

• 2026 Practitioner Ed. 230 immediately before IV. Collections.
• 2026 Student Ed. 157 immediately before IV. Collections.