Form 872-P and the Outer Limits of TEFRA Consents: Why Boilerplate Does Not Extend the Statute for Penalties, Additions to Tax, and Interest

Form 872-P and the Outer Limits of TEFRA Consents:

Why Boilerplate Does Not Extend the Statute for Penalties, Additions to Tax, and Interest

By Frank Agostino, Esq.

Counsel, Kostelanetz LLP

President, Taxpayer Assistance Corporation

I. Introduction: The Procedural Trap

This article begins with a straightforward but consequential proposition: Form 872-P does not extend the statute of limitations to assess affected items such as penalties, additions to tax, or interest.¹² The IRS cannot rely on vague, boilerplate language in a partnership-level consent form to circumvent the specific statutory requirements Congress enacted to protect individual taxpayers.³ Courts applying ordinary principles of statutory construction, contract interpretation, and TEFRA jurisprudence should—and, for the reasons explained below, likely will—hold that absent explicit partner-level extensions, penalties and related amounts are time-barred even when the partnership-level tax remains open.⁴⁵⁶

The stakes are not abstract. On a $10 million disallowed deduction with a 20% accuracy-related penalty and ten years of compounding interest at 7%, the combined exposure for a single 40% partner can exceed $5.6 million—more than the original tax deficiency. When the only consent in the file is Form 872-P, every dollar of that penalty and interest exposure may be time-barred.

The procedural trap works like this.⁷ During TEFRA partnership examinations, the IRS routinely obtained Form 872-P from the Tax Matters Partner.⁸ In many cases, the IRS did not obtain Form 872-I or any other partner-level consent from the individual partners. Years—sometimes a decade—later, the IRS issued a Final Partnership Administrative Adjustment asserting not only adjustments to partnership items but also accuracy-related penalties under I.R.C. § 6662,⁹ additions to tax under I.R.C. § 6651,¹⁰ and interest.¹¹ The FPAA proceeded to the Tax Court at the partnership level.¹² After the partnership proceeding concluded, the IRS assessed penalties against individual partners and initiated collection.¹³ Only then did the partner discover that the IRS assumed Form 872-P—which says “federal income tax” and nothing about penalties—quietly kept the partner-level penalty clock open.

In many files, that assumption is wrong.

This article explains when it is wrong, why it is wrong, and what practitioners, the IRS, and courts should do about it.¹⁴ The analysis proceeds as follows. Part II explains the statutory architecture—the five categories of liability at issue and where each lives in the Code. Part III examines what Form 872-P says and what it omits. Part IV explains how the Plain Writing Act, the Taxpayer Bill of Rights, and the IRS Restructuring and Reform Act compel narrow construction. Part V addresses the conditions precedent to an effective consent, including I.R.C. § 6501(c)(4)(B). Part VI explains why affected items require separate partner-level consents. Part VII critically evaluates the government’s arguments.¹⁵ Part VIII provides judicial forecasting.¹⁶ Part IX sets out a best-practices plan for responding to an FPAA with penalties.¹⁷ Part X explains CDP strategy. Part XI provides discovery and motion checklists.¹⁸ Part XII offers a call to action.¹⁹

II. The Statutory Architecture: Five Categories, Five Different Rules

A. Tax: Subtitle A Income Tax

The baseline rule is simple. I.R.C. § 6501(a) imposes a three-year limitations period for assessing “any tax imposed by this title” after a return is filed.²⁰ When that three-year period expires, the IRS loses assessment authority. Period.

To ensure that the unified partnership audit could run its full course, TEFRA enacted a partnership-specific minimum assessment period in former I.R.C. § 6229(a):

“The period for assessing any tax imposed by subtitle A with respect to any person which is attributable to any partnership item (or affected item) for a partnership taxable year shall not expire before the date which is 3 years after the later of—(A) the date on which the partnership return for such taxable year was filed, or (B) the last day for filing such return for such year (determined without regard to extensions).” ²⁰

The critical phrase is “tax imposed by subtitle A.”²¹ Subtitle A of the Internal Revenue Code covers income taxes—chapters 1 through 6.²² This is the universe in which Form 872-P operates.

Conditions precedent for an effective tax consent. I.R.C. § 6229(b)(3) imposes an express-reference requirement: “Any agreement under section 6501(c)(4) shall apply with respect to the period described in subsection (a) only if the agreement expressly provides that such agreement applies to tax attributable to partnership items.”²³ The Tax Court enforced this requirement rigorously in Ginsburg v. Commissioner, holding that consents lacking the specific TEFRA phrase were insufficient—even when both parties clearly intended them to cover partnership items.²⁴ This means a consent must satisfy the express-reference requirement to reach even income tax. It certainly does not reach categories the consent never mentions.

B. Affected Items: Partner-Level Consequences

TEFRA separates “partnership items”—determined in a unified proceeding—from “affected items”—computed and assessed at the partner level because they depend on each partner’s individual return and tax attributes.²⁵²⁶ A “partnership item” is “any item required to be taken into account for the partnership’s taxable year under any provision of subtitle A” to the extent determined at the partnership level. An “affected item” is “any item to the extent such item is affected by a partnership item.”

Penalties and interest are classic affected items because their computation depends on partner-specific facts: each partner’s filing date, payment history, reasonable-cause defenses, and individual tax attributes.²⁷ The Supreme Court confirmed this architecture in Woods: “any determination concerning a penalty” is “inherently provisional” because penalties are “imposed at the partner level, not against the partnership.”²⁸ A partnership-level determination tells the court whether a penalty applies in principle; the partner-level assessment determines whether the IRS can actually collect it from this partner at this time.

This separation is structural, not formalistic. The Code locates income tax in Subtitle A (chapters 1–6), penalties in Subtitle F, chapter 68, and interest in Subtitle F, chapter 67. These are different statutory neighborhoods with different rules, different conditions precedent, and different assessment mechanics. A consent that extends the period for “tax attributable to partnership items”—language anchored in Subtitle A by § 6229(a)—does not extend the partner-level clocks for Subtitle F affected items unless the consent says so.

The Affected-Item Distinction in Practice: A Concrete Illustration

The following example shows how the statute’s structural separation operates in practice. Suppose ABC Partners, LP, claimed a $10 million deduction on its 2012 Form 1065.³² The IRS opens a TEFRA examination and obtains four successive Forms 872-P from the TMP over the next decade, each extending the period to assess “any federal income tax due” attributable to ABC’s partnership items.³³ In year ten, the IRS issues an FPAA disallowing the $10 million deduction and asserting a 20% accuracy-related penalty under I.R.C. § 6662(a).³⁴

The FPAA’s adjustments flow to each partner’s individual return. Consider two partners—Partner A, a 40% interest holder, and Partner B, a 10% interest holder. The disallowed deduction produces a $4 million income adjustment on Partner A’s return and a $1 million adjustment on Partner B’s return. At this point, the analysis splits into two distinct tracks.

Track 1: The partnership-item adjustment (Subtitle A tax). The $4 million and $1 million income adjustments are computational consequences of the partnership-item change. They produce additional income tax—a Subtitle A liability. Form 872-P validly kept this assessment period open because it expressly extends “federal income tax due … attributable to the partnership items.”³³ The IRS may assess the resulting tax against each partner through the computational-adjustment mechanism under I.R.C. § 6230(a)(2)(A)(i).³⁵

Track 2: The penalty (Subtitle F, chapter 68). The 20% accuracy-related penalty under § 6662(a) is an affected item. Its computation depends on each partner’s individual circumstances—not on the partnership’s return. Partner A may have relied on a qualified tax opinion and can assert reasonable cause under § 6664(c)(1).³⁶ Partner B may have had no independent advice and no defense. The penalty is “affected by” the partnership-item adjustment, but it is “determined at the partner level” because it requires individualized factual and legal analysis. As the Supreme Court explained in Woods, “penalties for tax underpayment must be imposed at the partner level, because partnerships themselves pay no taxes.”³⁷

The same logic applies to interest. Interest under I.R.C. § 6601 accrues from the due date of each partner’s individual return.³⁸ Partner A, who filed on extension and made estimated payments, has a different interest computation from Partner B, who filed timely but made no payments. Interest is imposed under Subtitle F, chapter 67—not Subtitle A. Form 872-P does not mention interest and does not extend the period for assessing it independently.

The bottom line is this: the partnership examination determines what the correct partnership items are. The affected-item determination decides what penalty or interest consequences those adjustments produce for each partner. A consent that extends the time to decide the first question does not automatically extend the time to decide the second. Form 872-P covers Track 1. It does not cover Track 2 unless the consent expressly says so—and Form 872-P does not.

The 1997 amendments to TEFRA did not collapse this distinction. Congress expanded the partnership-level proceeding to include a determination of the “applicability of any penalty, addition to tax, or additional amount which relates to an adjustment to a partnership item.”³⁹ But Congress did not convert penalties into “tax imposed by subtitle A,” nor did it eliminate the partner-level assessment step. The terms of any consent define the scope of the waiver, and courts will not add what the parties left out.⁴⁰⁴¹

C. Additions to Tax: Subtitle F, Chapter 68

Additions to tax—including the failure-to-file penalty under I.R.C. § 6651 and the failure-to-pay penalty—sit in Subtitle F, chapter 68, subchapter A.⁴² They are structurally and textually distinct from “tax imposed by subtitle A.”

I.R.C. § 6665(a)(2) provides that penalties “shall be assessed and collected in the same manner as taxes,” but expressly states that this treatment applies “except as otherwise provided.”²⁹ This is a procedural fiction—it tells the IRS how to collect penalties, not when the assessment period runs or what a consent covers. As the Supreme Court held in National Federation of Independent Business v. Sebelius, “[t]here is a difference between a tax and a penalty.”

D. Penalties: Same Chapter, Same Gap

Accuracy-related penalties under I.R.C. § 6662 and civil fraud penalties under I.R.C. § 6663 also reside in Subtitle F, chapter 68. The analysis mirrors additions to tax: Form 872-P does not mention “penalty” or “penalties.” It does not reference chapter 68. It does not purport to extend anything beyond “federal income tax due” attributable to partnership items.

An additional condition precedent applies to penalties: I.R.C. § 6751(b)(1) requires that “[n]o penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination.”⁴³ In TEFRA proceedings, the Tax Court has held that the initial determination triggering § 6751(b) is the 60-day letter. Approval obtained only before the FPAA but not before the 60-day letter is too late.

E. Interest: Subtitle F, Chapter 67

Interest arises under I.R.C. § 6601, codified in Subtitle F, chapter 67. Form 872-P does not mention interest. Even if a consent validly extends the assessment period for income tax, interest accrual is independently constrained by I.R.C. § 6404(g), which suspends interest and certain penalties if the IRS fails to provide notice of additional liability within thirty-six months after the return’s filing date or due date:⁴⁴

“If there is a failure to send notice [of liability] to the taxpayer … before the close of the 36-month period beginning on the later of (i) the date on which the return with respect to such tax was filed, or (ii) the date on which such return was required to be filed … then the Secretary shall suspend the imposition of any interest, penalty, addition to tax, or additional amount.”

This suspension operates automatically by force of law. Form 872-P does not waive it. In long-running TEFRA files—some spanning a decade—§ 6404(g) can eliminate years of interest and dramatically reduce the government’s collection base.

Separately, I.R.C. § 7508A authorizes the Secretary to postpone tax-related deadlines for taxpayers affected by federally declared disasters. In Abdo v. Commissioner, the Tax Court held the COVID-19 postponement is automatic and self-executing.⁴⁵ In Kwong v. United States, the Court of Federal Claims invalidated the Treasury regulation’s one-year cap, citing Loper Bright Enterprises v. Raimondo.⁴⁶ For TEFRA examinations open during the COVID-19 window (January 20, 2020, through July 10, 2023), practitioners must calculate the postponement’s impact on penalty and interest accrual.

III. The Textual Showdown: Form 872-P Versus the IRS’s Own Forms

A. Form 872-P: What It Says—and What It Omits

The operative sentence of Form 872-P (Rev. 7-2009) reads:

“The amount of any federal income tax due on the return(s) of the above taxpayer(s) for the period(s) specified above will be assessed on or before the date shown above. The undersigned taxpayer(s) and the Commissioner of Internal Revenue consent and agree to the assessment of the amount of any federal income tax due, which is attributable to the partnership items of [partnership name], at any time on or before [expiration date].”

The form’s title is “Consent to Extend the Time to Assess Tax Attributable to Partnership Items.” Neither the title nor the operative language references penalties, additions to tax, additional amounts, or interest. The form also includes an integration clause: “This Form contains the entire terms of the consent to extend the Time to Assess Tax. There are no representations, promises, or agreements between the parties except those found or referenced on this Form.”

B. Form 872: What It Expressly Includes

Form 872 (Rev. Jan. 2014), paragraph 4, provides:

“Without otherwise limiting the applicability of this agreement, this agreement also extends the period of limitations for assessing any tax (including penalties, additions to tax and interest) attributable to any partnership items (see section 6231(a)(3)), affected items (see section 6231(a)(5)), computational adjustments (see section 6231(a)(6)), and partnership items converted to nonpartnership items (see section 6231(b)). Additionally, this agreement extends the period of limitations for assessing any tax (including penalties, additions to tax, and interest) relating to any amounts carried over from the taxable year specified in paragraph (1) to any other taxable year(s).”

The parenthetical “(including penalties, additions to tax and interest)” appears twice in paragraph 4. The IRS added this language in the October 2009 revision of Form 872 specifically to address partnership items at the individual partner level. IRM 8.19.1 confirms that consents with a revision date prior to October 2009 “do not contain the specific language referencing partnership items.” This revision history proves the IRS was aware that general “tax” language was insufficient for partnership items and took affirmative steps to add explicit penalty language—in Form 872 but not in Form 872-P.

C. The Full Inventory of IRS Consent Forms

The IRS maintains at least six different consent forms, each tailored to a specific purpose:⁵¹

The existence of these specialized forms is itself evidence that the IRS does not treat Form 872-P as a catch-all. When the IRS wants to extend the assessment period for affected items such as penalties, it uses forms that say so.

D. The Integration Clause Forecloses Expansion

Form 872-P contains an express integration clause stating: “This Form contains the entire terms of the consent to extend the Time to Assess Tax. There are no representations, promises, or agreements between the parties except those found or referenced on this Form.” The integration clause closes the door on any attempt to read penalties into the consent by implication.⁴⁸ That language has three independent legal consequences.

First, the clause confines interpretation to the four corners of the writing. Under settled contract-law principles, when a document declares itself complete, extrinsic evidence may not vary or expand its terms.⁴⁹ A consent to extend the statute of limitations is a “voluntary, unilateral waiver of a defense.” Courts will not expand such a waiver beyond its stated terms.⁴⁰

Second, the clause triggers the parol evidence rule. If the IRS attempts to introduce testimony, internal memoranda, or correspondence suggesting that the parties “intended” Form 872-P to cover penalties, the integration clause renders that evidence inadmissible.⁵²

Third, the clause reinforces the doctrine of contra proferentem. Any residual ambiguity in the scope of a consent drafted by the IRS must be construed against the drafter.⁵⁵ The IRS chose the words on Form 872-P. It knew how to include penalty language—it did so in Form 872, paragraph 4; in Form 872-I; and in Forms 872-D and 872-AP. Having chosen narrower language in Form 872-P, the IRS bears the consequences of its drafting choice. The integration clause converts that choice into a binding limitation that neither parol evidence nor statutory construction can overcome.

III-A. Rules of Construction Applied to IRS Consent Forms

1. The Foundational Nature of Consent Forms as Waivers

The Supreme Court’s characterization of consent forms controls the interpretive framework. In Stange v. United States, 282 U.S. 270, 276 (1931), the Court held that a consent to extend the assessment period is “essentially a voluntary, unilateral waiver of a defense by the taxpayer.” Because the taxpayer is waiving a statutory defense, the waiver receives no broader scope than what the plain language provides. A waiver of a limitations defense is not a bargained-for contract—it is a surrender of a statutory right. Courts construe such surrenders strictly, giving effect only to what the taxpayer actually agreed to relinquish.

In Piarulle v. Commissioner, 80 T.C. 1035, 1042 (1983), the Tax Court held that while consent forms are technically unilateral waivers, they are interpreted using contract-law principles—specifically, the objective manifestation of mutual assent. The court looks to “the objective manifestation of mutual assent as evidenced by the parties’ overt acts, not the parties’ secret intentions.” This objective approach confines analysis to the four corners of the document. If Form 872-P says “tax” and not “penalties,” the objective manifestation of the parties’ agreement covers only tax.

2. Six Federal Circuits Enforce Plain Language Strictly

Hodgekins v. Commissioner, 28 F.3d 610, 614–15 (7th Cir. 1994), is the most powerful decision for the proposition that the IRS is bound by the plain meaning of its own forms. Judge Posner wrote: “We give effect to the words in the forms according to their plain meaning, because the plain meaning is the best indication of what the parties intended.” The court then delivered the critical passage: “The IRS cannot—as it did with Hodgekins—compel a party to give up the protection afforded by the statute of limitations, based on a representation that it would only seek to reopen a claim under a limited condition, and then try to ignore the condition, or substitute a different condition.” The court awarded attorney’s fees, finding the government’s position not substantially justified.

Stenclik v. Commissioner, 907 F.2d 25 (2d Cir. 1990), held that “[t]he parties to such an extension are free to determine the terms of the extension.” The Second Circuit refused to look beyond the written terms, establishing that the four corners of the document control.

Anthony v. United States, 987 F.2d 670, 673 (10th Cir. 1993), held that the word “taxes” in a consent agreement does not automatically include interest, even though § 6601(e)(1) provides that references to “any tax imposed by this title” are deemed to refer to interest. The Tenth Circuit reversed the district court, distinguishing between the statutory definition and the parties’ intended meaning in a consent form. This case directly supports the argument that “tax” in Form 872-P does not sweep in penalties.

Tolve v. Commissioner, 31 F. App’x 73, 75 (3d Cir. 2002), addressed whether a consent extending the time to assess “tax” also extended the period for additions to tax and interest. The Third Circuit stated: “We cannot say that they clearly include additions and interest.”

Ripley v. Commissioner, 103 F.3d 332, 337 (4th Cir. 1996), applied narrow construction principles, holding that the scope of a consent should be determined by the specific language of the form itself.

3. The Doctrine of Contra Proferentem

The doctrine of contra proferentem—the rule that ambiguities in a contract are construed against the drafter—applies with particular force to IRS consent forms. These are standardized, pre-printed instruments drafted exclusively by the IRS. Taxpayers have no meaningful ability to negotiate or modify the language. As the Hodgekins court recognized, when an IRS attorney asked to modify form language, he was told “the IRS forms could not be changed.” This take-it-or-leave-it character makes consent forms quintessential adhesion documents subject to contra proferentem. If Form 872-P is ambiguous about whether “tax” covers “penalties,” that ambiguity must be resolved against the IRS as drafter.

The Tax Court applied this principle in Silverman v. Commissioner, 70 T.C. 145, 152 (1978), and Piarulle, 80 T.C. at 1042. Both cases held that the ordinary rules of contract interpretation—including contra proferentem—apply to IRS consent forms, and that ambiguities are resolved in favor of the taxpayer.

4. The Four-Corners Rule and the Integration Clause

The four-corners rule provides that the meaning of a written agreement is determined by examining the language within its four corners without resort to extrinsic evidence. Form 872-P’s integration clause—“This Form contains the entire terms of the consent”—converts the form into a fully integrated agreement. Every circuit that has addressed IRS consent forms—the Second (Stenclik), Fourth (Ripley), Seventh (Hodgekins), and Tenth (Anthony)—has applied this rule to confine consent scope to what the document actually says. If the IRS attempts to introduce testimony or memoranda suggesting that “everyone understood” the form covered penalties, the integration clause renders that evidence inadmissible under the parol evidence rule.

5. Expressio Unius Est Exclusio Alterius

The Supreme Court recognized this canon in Russello v. United States, 464 U.S. 16, 23 (1983): “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” The IRS knows exactly how to include penalty language—it does so explicitly in Form 872 paragraph 4, Form 870-LT(AD), Form 870-PT(AD), and Form 872-D. The deliberate omission of such language from Form 872-P creates an overwhelming inference that the omission was intentional.

IV. The Plain Writing Act and the Reinforcing Statutory Framework

A. The Plain Writing Act of 2010

The Plain Writing Act requires every federal agency to draft “all communications … clearly, concisely, and in plain language so that the public can easily understand them.”⁵⁶ This statutory mandate applies to IRS consent forms, including Form 872-P. When the IRS drafts a form that says “tax” and omits “penalties,” the plain-language mandate requires that the form mean exactly what it says. A reasonable taxpayer reading Form 872-P in plain English would understand that it covers tax—not penalties, not interest, and not other affected items.

B. The IRS Restructuring and Reform Act of 1998

RRA ’98 reinforces the clarity duty by requiring the IRS to “provide prompt, courteous, and accurate service” to all taxpayers—an obligation that extends to the transparency of its communications.⁵⁷ The same statute added I.R.C. § 6501(c)(4)(B), discussed in detail in Part V.

C. The Taxpayer First Act of 2019

The Taxpayer First Act further mandates that the IRS “deliver clear, effective, and timely communications” to taxpayers so that they can make fully informed decisions.⁵⁸

D. The Taxpayer Bill of Rights

Congress codified the Taxpayer Bill of Rights at I.R.C. § 7803(a)(3).⁵⁹ Three rights bear directly on Form 872-P:

The Right to Be Informed. Taxpayers have the right “to be informed of IRS decisions about their tax accounts.”⁶⁰ If the IRS believes Form 872-P covers penalties, it has an obligation to say so on the form.

The Right to Finality. Taxpayers have the right “to know the maximum amount of time they have to challenge the IRS’s position as well as the maximum amount of time the IRS has to audit a particular tax year.”⁶¹ A consent form that silently extends the period for categories it never mentions violates this right.

The Right to Pay No More Than the Correct Amount.⁶² If the statute has expired for penalties, those penalties are not “legally due.”

These four statutes—the Plain Writing Act, RRA ’98, the Taxpayer First Act, and the Taxpayer Bill of Rights—create a reinforcing framework that compels a narrow reading of IRS consent forms. If the IRS wants a consent to cover penalties, interest, or other affected items, it must say so in plain language.

V. Conditions Precedent: Section 6501(c)(4)(B) and the Consent Process

A. What the Statute Requires

I.R.C. § 6501(c)(4)(B), enacted in 1998, requires the IRS to notify “the taxpayer” of the right to refuse or limit a consent extension “on each occasion when the taxpayer is requested to provide such consent.”⁶³ The legislative history is explicit: “The conferees believe that taxpayers should be fully informed of their rights regarding assessment statute extensions so that any consent given is knowledgeable and voluntary.”⁶⁴

The IRS operationalized this requirement through IRM 25.6.22.3, which directs agents to provide a completed, dated Letter 907 and a copy of Publication 1035 with every consent request and to document this in the case file on Form 9984.⁶⁵

B. The Three Independent Failures in TEFRA Practice

The Form 872-P boilerplate fails on three independent grounds.

First, notification goes exclusively to the TMP—not to the individual partners whose assessment periods are being extended. Section 6501(c)(4)(B) requires notification to “the taxpayer.” In a TEFRA partnership, the taxpayers whose limitation periods are affected are the partners.

Second, the IRS does not provide Publication 1035 to individual partners in connection with Form 872-P solicitations. A boilerplate paragraph on a pre-printed form does not satisfy a statute that demands individualized notice explaining available options—including the right to limit the extension to specific issues or periods. In J.B. v. United States, 916 F.3d 1161, 1167 (9th Cir. 2019), the Ninth Circuit held that “[b]oilerplate language in a publication does not satisfy the ‘notice’ required under the statute.” If generic boilerplate cannot constitute reasonable notice of third-party contacts, generic “tax” language in Form 872-P cannot constitute adequate notice that the taxpayer is also consenting to extend the statute for penalties.⁶⁶

Third, the IRS frequently fails to document compliance. TIGTA’s annual reviews of IRS consent practices have revealed systemic noncompliance. In its FY 2025 report, TIGTA reported that it only received 6 percent of the paper audit files it requested because IRS management was unable to locate the remainder.⁶⁷ When the government cannot produce evidence that it met § 6501(c)(4)(B)’s requirements, courts have reason to question whether any purported extension has effect beyond its plain terms.

C. The Consequences of Noncompliance

When the IRS fails to comply with § 6501(c)(4)(B), five concrete litigation consequences follow.

First, the consent may be invalid as to items beyond the scope of a properly noticed consent.⁶⁶

Second, the IRS bears the burden of proving a valid extension.³⁰

Third, the presumption of regularity collapses. TIGTA’s findings destroy any basis for presuming compliance.⁶⁷⁶⁸

Fourth, the Accardi doctrine may apply. When an agency fails to follow its own binding regulations, any action taken in reliance on the deficient process is voidable.⁶⁹

Fifth, in CDP, Appeals cannot verify lawful assessment without the missing records.⁷⁰

VI. Why Affected Items Require Separate Partner-Level Consents

A. The Structural Separation Between Partnership Items and Affected Items

Congress designed TEFRA to unify partnership-level determinations—the common items—while preserving the partner-level computation and assessment of affected items.⁷¹ A consent that extends the period for “tax attributable to partnership items” operates on partnership items. It does not operate on the partner-level affected-item clocks unless the consent expressly says so. The IRS’s own forms confirm this principle. Form 872-I expressly covers additions to tax and interest. Form 872, paragraph 4, expressly covers penalties and interest. These forms exist because the IRS recognizes—and the Code requires—that affected items need their own extension instruments.⁵¹

B. The IRS’s Own Manual Confirms Penalty Statutes Are Independent

IRM 20.1.6 states: “Extending the statute on a taxpayer’s return with a Form 872, Consent to Extend the Time to Assess Tax, does NOT extend the statute for the return preparer penalty case.”⁷² IRM 20.1.12 confirms: “Extension of the statute on the related tax case does not extend the IRC 6695A penalty statute.”⁷³

These provisions do not create judicially enforceable rights for taxpayers. The IRM is internal guidance that does not bind the Commissioner in litigation. But the IRM is powerful evidence of what the IRS itself understands the law to require. When the IRS’s own manual tells its employees that extending the tax assessment period does not extend the penalty assessment period, that institutional understanding weighs heavily against the government’s litigation position.

VII. The Government’s Counterarguments—Critically Evaluated

Intellectual honesty demands presenting the government’s position in its strongest form before demonstrating why the text demands a different result. Credibility before any court depends on acknowledging opposing arguments. The IRS advances at least eight arguments. Each carries surface appeal. Several carry genuine force. The practitioner must understand them, not dismiss them.

A. “Penalties Are Determined at the Partnership Level”

The government’s argument. Under I.R.C. § 6226(f), the Tax Court may determine penalty “applicability” in FPAA proceedings.⁷⁶ In Silver Moss Properties,⁷⁷ the court adjudicated civil fraud penalties in TEFRA proceedings. In Moxon Corporation,⁷⁸ the court held TEFRA penalties may be directly assessed as computational adjustments. In Warner Enterprises,⁷⁹ the court held that § 6751(b) challenges must be raised at the partnership level.

Why it has limits. This argument conflates two distinct questions: (1) whether the Tax Court has jurisdiction to decide penalty applicability at the partnership level, and (2) whether Form 872-P’s extension of the period for assessing “tax attributable to partnership items” operates as an extension of the period for assessing penalties. The first question is settled: the answer is yes, under Woods.⁸⁰ But jurisdictional expansion does not transform penalties into “tax.” As Justice Brandeis observed in Iselin, courts are “not at liberty to add one word to expand the provision beyond its natural import.”⁸¹

B. “Section 6229(g) Creates a Bridge”

The government’s argument. I.R.C. § 6229(g) provides that “[t]he provisions of this section” apply to penalties “in the same manner as if such addition or additional amount were a tax imposed by subtitle A.”⁸² The Commissioner argues this encompasses all of § 6229—including subsection (b), which authorizes extension by agreement.

Why it has limits—five independent reasons. This is the government’s strongest statutory argument, and practitioners must take it seriously.

First, § 6229(g) establishes a statutory minimum period—a floor, not a ceiling.⁸³ The scope of a consensual extension is not a “provision of this section”—it is the product of negotiation.

Second, Congress demanded extra clarity in the consent context. § 6229(b)(3) requires that any agreement “shall apply … only if the agreement expressly provides that such agreement applies to tax attributable to partnership items.”⁸⁴ If Congress required express language to extend even “tax,” it is implausible to treat penalties as silently swept in without a single word in the form.

Third, the 1997 amendments prove the point. If § 6229(g) had already performed this work wholesale, the 1997 amendment would have been surplusage. Courts avoid readings that render statutory text meaningless.⁸⁵

Fourth, § 6229(g) covers only a subset of penalties. By its terms, it applies to additions imposed under subchapter A of chapter 68. This excludes assessable penalties under subchapter B (§§ 6671–6725) and penalties outside chapter 68.

Fifth, Form 872-P’s integration clause independently bars the expansion.

Sixth, the rule of lenity demands strict construction. Commissioner v. Acker, 361 U.S. 87, 91 (1959), established that “penal statutes are to be construed strictly” against the government. Bittner, 598 U.S. at 94–95, reaffirmed: “statutes imposing penalties are to be ‘construed strictly’ against the government and in favor of individuals.” If § 6229(g)’s application to consensual extensions is genuinely ambiguous—and the government’s own CCA 200906047 concedes ambiguity by using the word “probably”—the ambiguity must be resolved in the taxpayer’s favor. The Tax Court applied lenity in Rand v. Commissioner, 141 T.C. No. 12 (2013), and Mohamed v. Commissioner, T.C. Memo. 2013-255, to resolve ambiguous penalty provisions against the government. The same principle applies here.

The IRS’s own materials cut against its litigation position. CCA 200906047 concluded that Form 872-P “probably does not extend” the § 6707A penalty period, reasoning from the form’s text.⁸⁶

C. The YA Global “Broad Reading” Precedent

The government’s argument. In YA Global Investments, LP v. Commissioner, the Tax Court read Form 872-P’s preprinted language broadly enough to cover I.R.C. § 1446 withholding tax.⁸⁷

Why it has limits. YA Global is distinguishable on a critical axis: § 1446 withholding tax is an income tax imposed by Subtitle A. Penalties are imposed under Subtitle F. The holding does not bridge the gap between “tax” (Subtitle A) and “penalties” (chapter 68 of Subtitle F). YA Global is on appeal to the Third Circuit (No. 25-1766, pending as of March 2026).

D. “Section 6665(a)(2) Treats Penalties as Tax”

Why it fails. The statute says “except as otherwise provided.”⁸⁸ If § 6665(a)(2) transformed penalties into “tax” for all purposes, Forms 872-D, 872-AP, and 870-LT would be unnecessary. As the Supreme Court made clear in NFIB v. Sebelius, there is a difference between a tax and a penalty.

E. The 1950s “Broad Tax” Cases: Marx, Marbut, and Picard—and Why They No Longer Control

The government’s argument. The Commissioner relies on three Tax Court decisions—Marx v. Commissioner, 13 T.C. 1099 (1949); Marbut v. Commissioner, 28 T.C. 687 (1957); and Picard v. Commissioner, 28 T.C. 955 (1957)—which interpreted “tax” in consent forms broadly enough to encompass penalties.

What these cases actually held. All three were decided under the Internal Revenue Code of 1939, where penalties were treated as “civil incidents of the assessment and collection of the income tax” under Helvering v. Mitchell, 303 U.S. 391 (1938). Sections 293 and 294 of the 1939 Code imposed penalties as part of “the tax imposed by this chapter”—penalties and income tax occupied the same statutory chapter. Marbut relied on E.C. Newsom, 22 T.C. 225, and Charles E. Myers, Sr., 28 T.C. 12, for the proposition that § 294 additions constituted “deficiencies” within the meaning of § 271(a) of the 1939 Code.

Ten reasons these holdings carry diminished weight today.

First, the 1954 and 1986 Code reorganizations placed penalties in a distinct subtitle—Subtitle F, Chapter 68—structurally separated from “tax imposed by subtitle A.” The conflation of tax and penalties within a single chapter that undergirded Marx no longer exists.

Second, I.R.C. § 6501(c)(4)(B), enacted in 1998, created a statutory right to limit a consent to “particular issues.” If a consent for “tax” automatically covered penalties, this right would be meaningless—there would be nothing to “limit.” The legislative history states that “taxpayers should be fully informed of their rights regarding assessment statute extensions so that any consent given is knowledgeable and voluntary.” H.R. Conf. Rep. No. 105-599, at 289 (1998). This informed-consent regime did not exist in 1949.

Third, the Supreme Court in NFIB v. Sebelius, 567 U.S. 519, 543–44 (2012), drew a sharp distinction between “taxes” and “penalties” as legally distinct concepts, destroying the premise of Marx that “tax” automatically includes “penalties.”

Fourth, Bittner v. United States, 598 U.S. 85, 97 (2023), mandated strict construction of penalty provisions and applied expressio unius to omitted language—precisely the analytical framework that Form 872-P’s omission of penalty language invites.

Fifth, Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), eliminated Chevron deference, holding that courts must exercise their own independent judgment about what the law means rather than deferring to an agency’s interpretation. If the IRS argues its interpretation of Form 872-P to cover penalties is reasonable, that interpretation now receives no judicial deference.

Sixth, the Plain Writing Act (2010), the Taxpayer Bill of Rights (codified 2015), the Taxpayer First Act (2019), and RRA ’98 created a reinforcing framework demanding specificity and clarity in IRS communications—a framework that simply did not exist when Marx was decided.

Seventh, the IRS’s own creation of penalty-specific forms after these cases—including Forms 870-PT(AD), 870-LT(AD), 872-D, and 872-AP—demonstrates that the agency itself recognizes general “tax” language does not cover penalties. If Form 872-P’s “tax” language covered penalties, these forms would be superfluous.

Eighth, the IRS added explicit penalty language to Form 872 paragraph 4 in the October 2009 revision—but chose not to add corresponding language to Form 872-P. This post-Marx drafting choice is the strongest evidence that the IRS itself does not treat the 1950s broad-reading cases as controlling.

Ninth, Commissioner v. Acker, 361 U.S. 87, 91 (1959), established that “penal statutes are to be construed strictly” and that one “is not to be subjected to a penalty unless the words of the statute plainly impose it.” This rule of lenity applies to Form 872-P: if the form’s “tax” language is ambiguous about whether it covers penalties, the ambiguity must be resolved against the government.

Tenth, the practical absurdity test: if Marx, Marbut, and Picard meant that “tax” in a consent form always includes penalties, then the IRS would have had no reason to create Forms 872-D, 872-AP, or 870-LT. The existence of these specialized forms is a post-Marx institutional admission that the broad reading does not reflect the law.

F. “The Presumption of Regularity”

Why it fails. TIGTA’s findings—a 6% file-production rate in FY 2025—eliminate any presumption that the IRS followed proper procedures.⁹¹

G. “Policy Requires Symmetry”

Why it fails. Congress created this structure deliberately. The IRS has readily available tools to avoid the asymmetry: it could draft Form 872-P to include explicit penalty language, solicit partner-level consents, or use Form 870-LT. The IRS’s failure to deploy these tools is an administrative choice, not a statutory gap.

H. The IRM as Support

The government’s argument. Current TEFRA guidance in the IRM states that Form 872-P extends the statute for all partnership items and affected items.⁹²

Why it has limits. The IRM does not have the force of law. Other IRM provisions directly contradict the government’s broad reading.⁹³

VIII. Judicial Forecasting: How the Courts Will Likely Rule

A. The Tax Court

The Tax Court’s institutional orientation is mixed. Ginsburg demonstrates strict textual fidelity.⁹⁵ YA Global suggests willingness to read Form 872-P broadly—but only within Subtitle A.⁹⁶ Farhy confirmed that penalties are not “tax” absent express authorization.⁹⁷ The Tax Court reaffirmed Farhy’s reasoning in Mukhi (en banc, 15-1), even after the D.C. Circuit’s reversal. The issue is being litigated in at least one pending case.⁹⁸

Predicted outcome. On penalties, the Tax Court is likely to give the textual argument a fair hearing but may find § 6229(g)’s bridge persuasive for post-1997 years. The odds are close to even. On § 6501(c)(4)(B) notice failures, the taxpayer’s argument is strong when the administrative record lacks documentation. On interest suspension under § 6404(g), the taxpayer’s argument is strongest.

B. The Courts of Appeals

Appellate courts are more likely to engage with the textual and structural arguments. Several circuits have demonstrated commitment to strict construction of TEFRA provisions.⁹⁹ Key circuits to watch: the Third Circuit (considering YA Global, No. 25-1766); the Fifth Circuit (Curr-Spec); the Seventh Circuit (Hodgekins); the Tenth Circuit (Anthony).¹⁰⁰ No appellate court has squarely resolved the Form 872-P penalty question. The appellate courts are more likely to distinguish between a statutory limitations rule and a consensual extension.¹⁰¹

C. The Supreme Court

Five landmark decisions point toward the taxpayer’s position:

1. United States v. Woods: “[A]ny determination concerning a penalty is ‘inherently provisional.’” Penalties are partner-level.¹⁰¹

2. Bittner v. United States: “When Congress includes particular language in one section of a statute but omits it from a neighbor, we normally understand that difference in language to convey a difference in meaning.”¹⁰²

3. National Federation of Independent Business v. Sebelius: “[T]here is a difference between a tax and a penalty.”¹⁰³

4. CIC Services, LLC v. IRS: The Court’s dislike of formalistic tax bootstrapping.¹⁰⁴

5. Loper Bright Enterprises v. Raimondo: Courts must exercise independent judgment rather than reflexively defer to agency interpretations.¹⁰⁵

A Supreme Court applying these precedents would demand a precise match between the form, the statute, the regulations, and the administrative record. The most realistic forecast: the Court would hold that Form 872-P extends only what it says—tax attributable to partnership items—and that the omission of penalty language from a form the IRS drafted is dispositive.¹⁰⁶

IX. Best Practices Plan for Responding to an FPAA with Penalties

When the IRS issues an FPAA to a TEFRA partnership that includes penalties, additions to tax, or interest, practitioners should follow this eight-step protocol.

Step 1: Preserve the 90-Day Deadline. I.R.C. § 6226(a) requires a Tax Court petition within 90 days of the FPAA’s mailing date. This deadline is jurisdictional and cannot be equitably tolled.¹⁰⁷

Step 2: Examine Every Form 872-P. Obtain copies of every consent form executed during the examination. Compare the language against Form 872. Confirm the absence of penalty, additions, and interest language. Review the integration clause.

Step 3: Verify § 6501(c)(4)(B) Compliance. Request the complete administrative file. Examine it for Letter 907, Publication 1035, Form 9984, and representative notification letters.

Step 4: Calculate § 6404(g) Suspension. For each partner individually: identify the return filing date; add 36 months; determine whether the IRS provided notice of liability within that window; quantify the suspension period; calculate the dollar impact. On a $2 million deficiency with a five-year suspension, the interest reduction can exceed $700,000.¹⁰⁸

Step 5: Identify § 7508A Disaster Postponements. For any period overlapping with January 20, 2020, through July 10, 2023 (COVID-19), compute the postponement’s impact on penalty and interest accrual.¹⁰⁹

Step 6: Audit § 6751(b) Penalty Approval. Request the penalty approval record. Compare the approval date against the 60-day letter date.¹¹⁰

Step 7: Advise All Partners. Under I.R.C. § 6223(g), the TMP must keep all partners informed.¹¹¹ Each individual partner should execute a declaration under penalty of perjury.¹¹²

Step 8: Move Early on Discrete Legal Questions. The best early motions are usually partial and issue-specific.

IX-A. Challenging Interest and Penalty Calculations: §§ 6404(g), 6404(e), 6404(f), and 7508A

In TEFRA partnership files spanning a decade or more, the interest component of the assessment often exceeds the underlying tax deficiency. Three independent statutory mechanisms—§ 6404(g) suspension, § 6404(e)/(f) abatement, and § 7508A disaster postponement—can eliminate substantial portions of that interest. Each operates independently. Each must be calculated separately for each individual partner. And each must be affirmatively asserted—the IRS rarely applies these provisions without a taxpayer request.

A. Section 6404(g): The 36-Month Notice Suspension

I.R.C. § 6404(g)(1)(A) provides that if the IRS fails to send notice “specifically stating the taxpayer’s liability and the basis for the liability” within 36 months after the later of the return filing date or the return due date, the IRS “shall suspend the imposition of any interest, penalty, addition to tax, or additional amount” with respect to the underpayment. The suspension begins the day after the 36-month period closes and ends 21 days after notice is finally provided.

Originally enacted as part of RRA ’98 with a one-year notification window, the period was extended to 18 months by the American Jobs Creation Act of 2004 and to 36 months by the Small Business and Work Opportunity Tax Act of 2007. The provision applies to taxable years ending after July 22, 1998.

Calculating the suspension in TEFRA cases. The 36-month period runs from the individual partner’s return filing or due date—not the partnership return date. For a partner who filed a 2012 return on October 15, 2013, the 36-month window closes October 15, 2016. If the IRS did not issue an FPAA until May 2023, the suspension period runs from October 16, 2016, through 21 days after the FPAA’s mailing date. On a $2 million deficiency at 7% compounded daily, a six-year suspension period eliminates approximately $1.1 million in interest.

B. Sections 6404(e) and 6404(f): Error, Delay, and Erroneous Advice

I.R.C. § 6404(e) provides discretionary abatement of interest attributable to “any unreasonable error or delay by an officer or employee of the Internal Revenue Service in performing a ministerial or managerial act.” In TEFRA files where the examination stretched a decade through the IRS’s own inaction, the delay is itself evidence of an unreasonable ministerial or managerial failure. I.R.C. § 6404(f) provides mandatory abatement of penalties and additions attributable to erroneous written advice furnished by an IRS officer or employee. Both require administrative filing via Form 843 before judicial review.

C. Section 7508A: The COVID-19 Disaster Postponement

The Tax Court’s decision in Abdo v. Commissioner, 162 T.C. No. 7 (2024) (reviewed, 13 judges, no dissent), held that § 7508A(d) provides an unambiguously self-executing, mandatory postponement that cannot be narrowed by regulation. The court invalidated Treas. Reg. § 301.7508A-1(g)(1)–(2) to the extent they conflicted. The Court of Federal Claims in Kwong v. United States, No. 23-267 (Fed. Cl. Nov. 25, 2025), extended this analysis. The reasoning in Abdo, combined with the Supreme Court’s holding in Loper Bright eliminating agency deference, provides a strong basis to challenge the Treasury regulation’s one-year cap on the postponement. Practitioners should argue that the postponement period runs for the full duration from January 20, 2020, through July 10, 2023—approximately 39 months.

The government has designated the relevant regulation for removal in its 2025–2026 Priority Guidance Plan—a significant concession. Under the Kwong analysis, interest and penalties that accrued during the postponement window are suspended by operation of law. Refund claims for amounts already paid must be filed on or before July 10, 2026.

D. Section 6603 Deposits: Stopping the Interest Clock

I.R.C. § 6603, enacted by the American Jobs Creation Act of 2004, permits taxpayers to make deposits that suspend underpayment interest from the deposit date. The deposit is not a payment—it does not trigger the refund statute of limitations, preserves Tax Court jurisdiction, and can be returned on written request. At current IRS interest rates of approximately 7% compounded daily, § 6603 deposits are an increasingly important planning tool for partners facing large interest exposure during protracted TEFRA litigation. Rev. Proc. 2005-18 governs the mechanics. The taxpayer must remit a check with a written statement designating the remittance as a deposit under § 6603, specifying the type of tax, tax year(s), and amount of “disputable tax.”

E. Procedural Roadmap: Where and How to Raise Each Claim

At the partnership level: The court lacks jurisdiction over interest abatement. See Alpha I, L.P. v. United States, 86 Fed. Cl. 126, 134 (2009). However, practitioners should preserve the record by raising § 6404(g) as a ground for reducing the government’s computational adjustments in the partnership proceeding.

At the partner level: File Form 843 for each partner claiming § 6404(g) suspension, § 6404(e)/(f) abatement, and § 7508A postponement. If the IRS denies the claim or fails to act within 180 days, petition the Tax Court under § 6404(h) (for interest abatement) or file a refund suit in the Court of Federal Claims or district court (for overpaid penalties and interest).

In CDP: Insist that Appeals verify the interest computation, including § 6404(g) suspension and § 7508A postponement, before approving collection.

X. CDP Strategy: What Partners Should Do When Collection Follows

When the IRS initiates collection after assessing penalties against individual partners, the partner may receive a Final Notice of Intent to Levy or a Notice of Federal Tax Lien. Under I.R.C. § 6330, the partner has the right to a CDP hearing.¹¹³

A. The Right to a CDP Hearing

Upon receiving a Final Notice of Intent to Levy (Letter 1058) or a Notice of Federal Tax Lien Filing, a partner has 30 days to request a CDP hearing before IRS Appeals. I.R.C. § 6320 governs lien hearings; I.R.C. § 6330 governs levy hearings. The request must be timely—an untimely request results in an equivalent hearing that carries no right of judicial review in the Tax Court.

B. Verification Challenges

Under I.R.C. § 6330(c)(1), Appeals must verify that the IRS complied with applicable law and procedure, including verifying that partner-level penalty assessments were made within valid limitations periods.

C. Underlying Liability Challenges

Under I.R.C. § 6330(c)(2)(B), the taxpayer may contest the underlying liability if there was no prior opportunity for judicial review.¹¹⁴ A time-barred penalty is not a “legally due” liability. An assessment made outside a valid limitations period is invalid.

D. The Arguments in CDP

First, the underlying penalty liability is time-barred because Form 872-P did not extend the partner-level penalty period.

Second, interest was suspended under § 6404(g) for the period between the close of the 36-month notice window and the date the IRS actually provided notice.

Third, any disaster postponements under § 7508A must be applied to the interest and penalty computation.

Fourth, if § 6751(b) supervisory approval was untimely, the penalty assessment itself is procedurally defective.

XI. Discovery and Motion Checklists

A. Discovery Requests for Every TEFRA File with Penalties

B. Motions Checklist

XII. Why This Issue Still Matters After TEFRA

XIII. A Call to Action for Tax Controversy Practitioners

The arguments presented in this article are available in any TEFRA proceeding where the only extension instrument is Form 872-P and the FPAA includes penalties, additions to tax, or interest. When you encounter such a case:

1. Examine the Form 872-P. Does it mention penalties or affected items? If not, the argument is available.

2. Plead the statute-of-limitations defense. Failure to raise it waives it. It is an affirmative defense that must appear in the petition or answer.

3. File early dispositive motions. Resolution before trial saves years and expense.

4. Invoke the TBOR and the Plain Writing Act. These statutes give interpretive force to the narrow-construction argument.

5. Share this analysis with colleagues. The more practitioners raise this argument, the sooner courts will resolve it.

The statute of limitations is a right, not a technicality. Congress enacted it to protect taxpayers from the government’s power to assess liabilities years after the fact. When the IRS seeks to extend that period through a consent, it must play by the rules Congress established. Form 872-P is one of those rules—and it says what it says.

About the Author

Frank Agostino is Counsel to Kostelanetz LLP and President of the Taxpayer Assistance Corporation, a nonprofit organization providing pro bono and low-cost tax representation in Hackensack, New Jersey. He has more than four decades of experience representing taxpayers in the United States Tax Court, federal district courts, and federal courts of appeals.

© 2026 Taxpayer Assistance Corporation. All rights reserved.

ENDNOTES

1. The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. No. 97-248, § 402, 96 Stat. 324, 648–71, created a unified partnership audit and litigation regime codified at former I.R.C. §§ 6221–6234 (repealed for partnership tax years beginning after Dec. 31, 2017, by the Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 1101(a), 129 Stat. 584, 625). See H.R. Rep. No. 97-760, at 599–601 (1982) (Conf. Rep.).

2. Form 872-P (Rev. 7-2009), Consent to Extend the Time to Assess Tax Attributable to Partnership Items.

3. Bittner v. United States, 598 U.S. 85, 97 (2023) (“When Congress includes particular language in one section of a statute but omits it from a neighbor, we normally understand that difference in language to convey a difference in meaning.”).

4. Badaracco v. Commissioner, 464 U.S. 386, 391 (1984).

5. Iselin v. United States, 270 U.S. 245, 251 (1926).

6. YA Global Invs., LP v. Comm’r, 161 T.C. No. 11 (2023), appeal pending, No. 25-1766 (3d Cir.).

7. I.R.C. § 6501(c)(4)(B). H.R. Conf. Rep. No. 105-599, at 289 (1998).

8. Former I.R.C. § 6229(b)(1)(B) (2002). See I.R.C. § 6231(a)(7).

9. I.R.C. § 6662(a), (b). Penalties are codified in Subtitle F, Chapter 68, Subchapter A.

10. I.R.C. § 6651(a)(1)–(3). Additions to tax reside in Subtitle F, Chapter 68, Subchapter A.

11. I.R.C. § 6601(a). Interest is codified in Subtitle F, Chapter 67.

12. Former I.R.C. § 6226(a). The 90-day deadline to petition the Tax Court is jurisdictional and not subject to equitable tolling. See, e.g., Bedrosian v. Comm’r, 144 T.C. 152 (2015).

13. Former I.R.C. § 6230(a)(2)(A)(i) (2002); I.R.C. § 6230(c).

14. The eight counterarguments are addressed in Part VII, infra.

15. Former I.R.C. § 6229(g) (2002). Analyzed in Part VII.B, infra.

16. Part VIII, infra.

17. Part IX, infra.

18. Part XI, infra.

19. Part XII, infra.

20. I.R.C. § 6501(a); former I.R.C. § 6229(a) (2002).

21. Subtitle A covers I.R.C. §§ 1–1564. Penalties: Subtitle F, Ch. 68. Interest: Subtitle F, Ch. 67.

22. Id.

23. Former I.R.C. § 6229(b)(3) (2002) (emphasis added).

24. Ginsburg v. Comm’r, 127 T.C. 75, 89 (2006).

25. Former I.R.C. § 6231(a)(3) (2002).

26. Former I.R.C. § 6231(a)(5) (2002).

27. Treas. Reg. § 301.6221-1(c), (d).

28. United States v. Woods, 571 U.S. 31, 42 (2013).

29. I.R.C. § 6665(a)(2). See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 543–44 (2012).

30. Lucas v. Pilliod Lumber Co., 281 U.S. 245, 249 (1930).

31. Farhy v. Comm’r, 160 T.C. 399 (2023), rev’d, 100 F.4th 223 (D.C. Cir. 2024). But see Mukhi v. Comm’r, 163 T.C. No. 8 (2024) (en banc) (reaffirming Farhy’s reasoning, 15–1 en banc vote).

32. Hypothetical illustration.

33. Form 872-P (Rev. 7-2009).

34. I.R.C. § 6662(a).

35. Former I.R.C. § 6230(a)(2)(A)(i) (2002).

36. I.R.C. § 6664(c)(1).

37. Woods, 571 U.S. at 42.

38. I.R.C. § 6601(a). Subtitle F, Chapter 67.

39. I.R.C. § 6221(a) (as amended by Pub. L. No. 105-34, § 1239, 111 Stat. 788, 1026–30). See T.D. 8808, 64 Fed. Reg. 3838 (Jan. 26, 1999).

40. Stange v. United States, 282 U.S. 270, 276 (1931).

41. Iselin, 270 U.S. at 251.

42. I.R.C. § 6651(a) (Subtitle F, Chapter 68, Subchapter A).

43. I.R.C. § 6751(b)(1). See Belair Woods, LLC, 154 T.C. No. 1 (2020); Palmolive Bldg. Investors, LLC, 152 T.C. 75 (2019).

44. I.R.C. § 6404(g)(1)–(2).

45. Abdo v. Comm’r, 162 T.C. No. 7 (2024).

46. Kwong v. United States, No. 23-267, — Fed. Cl. — (Nov. 25, 2025), appeal pending. See Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).

47. Form 872-P (Rev. 7-2009).

48. Form 872-P integration clause.

49. Stange, 282 U.S. at 276. See Restatement (Second) of Contracts § 213(1) (1981).

50. Form 872 (Rev. Jan. 2014), ¶ 4.

51. Form 872-I; Form 872-D (Rev. May 2013); Form 872-AP; Form 870-LT.

52. Piarulle v. Comm’r, 80 T.C. 1035, 1042 (1983). See also Silverman v. Commissioner, 70 T.C. 145, 152 (1978).

53. Tax Ct. R. 143; Fed. R. Evid. 402, 403.

54. See Petitioner’s Objection, Docket No. 16536-23, at 22–23 (T.C. Feb. 7, 2025).

55. Silverman, 70 T.C. at 152; Piarulle, 80 T.C. at 1042.

56. Plain Writing Act of 2010, Pub. L. No. 111-274, 124 Stat. 2861 (codified at 5 U.S.C. § 301 note).

57. Pub. L. No. 105-206, § 1205, 112 Stat. 685, 722–23.

58. Pub. L. No. 116-25, 133 Stat. 981.

59. Pub. L. No. 114-113, Div. Q, § 401(a), 129 Stat. 2242, 3053.

60. I.R.C. § 7803(a)(3)(A).

61. I.R.C. § 7803(a)(3)(G).

62. I.R.C. § 7803(a)(3)(J).

63. I.R.C. § 6501(c)(4)(B).

64. H.R. Conf. Rep. No. 105-599, at 289 (1998).

65. IRM 25.6.22.3 (Nov. 20, 2020); IRM 25.6.22.2.1 (Nov. 20, 2020).

66. CCA 200221006 (May 24, 2002); FSA 200052017 (Dec. 29, 2000).

67. TIGTA, Ref. No. 2025-1S-0018, at 2, 5 (Mar. 28, 2025). See also TIGTA, Rep. No. 2019-30-043, The Consents to Extend the Assessment Statute of Limitations Process Needs Improvement (May 14, 2019).

68. TIGTA, Ref. No. 2023-10-049 (Nov. 2024); TIGTA, Ref. No. 2021-30-048 (Sept. 2021).

69. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

70. McNeill v. Comm’r, 148 T.C. 481 (2017).

71. Treas. Reg. § 301.6221-1(c).

72. IRM 20.1.6 (Aug. 11, 2022).

73. IRM 20.1.12 (Oct. 24, 2023).

74. IRM 8.19.2 (Oct. 1, 2013).

75. IRM 8.19.11 (Oct. 1, 2013).

76. Former I.R.C. § 6226(f) (2002).

77. Silver Moss Props., LLC v. Comm’r, 165 T.C. No. 3 (2025).

78. Moxon Corp. v. Comm’r, 165 T.C. No. 2 (2025).

79. Warner Enters., Inc. v. Comm’r, T.C. Memo. 2023-31.

80. Woods, 571 U.S. at 42; I.R.C. § 6226(f).

81. Iselin, 270 U.S. at 251.

82. Former I.R.C. § 6229(g) (2002). See note 15, supra.

83. Rhone-Poulenc Surfactants & Specialties, L.P. v. Comm’r, 114 T.C. 533 (2000); Andantech L.L.C. v. Comm’r, 331 F.3d 972 (D.C. Cir. 2003); Curr-Spec Partners, L.P. v. Comm’r, 579 F.3d 391 (5th Cir. 2009).

84. Ginsburg, 127 T.C. at 89.

85. Duncan v. Walker, 533 U.S. 167, 174 (2001).

86. CCA 200906047 (Feb. 6, 2009).

87. YA Global Invs., LP v. Comm’r, 161 T.C. No. 11 (2023), appeal pending, No. 25-1766 (3d Cir.).

88. I.R.C. § 6665(a)(2). See NFIB v. Sebelius, 567 U.S. at 543–44.

89. Marx v. Comm’r, 13 T.C. 1099 (1949); Marbut v. Comm’r, 28 T.C. 687 (1957); Picard v. Comm’r, 28 T.C. 955 (1957).

90. Bittner, 598 U.S. at 97; Loper Bright, 603 U.S. at 394–413; NFIB, 567 U.S. at 543–44.

91. TIGTA, Ref. No. 2025-1S-0018, at 2, 5 (Mar. 28, 2025). See Accardi, 347 U.S. at 267.

92. IRM 25.6.22.6.5.1(8) (Aug. 7, 2025); IRM 8.19.1.7.6.8.1 (Oct. 1, 2013).

93. IRM 20.1.12 (Oct. 24, 2023); IRM 8.19.11 (Oct. 1, 2013).

94. Fredericks v. Comm’r, 126 F.3d 433 (3d Cir. 1997).

95. Ginsburg, 127 T.C. at 89.

96. YA Global, 161 T.C. No. 11.

97. Farhy, 160 T.C. at 399. See Mukhi, 163 T.C. No. 8.

98. Docket No. 16536-23 (T.C.) (pending).

99. Petaluma FX Partners, LLC v. Comm’r, 591 F.3d 649 (D.C. Cir. 2010); Jade Trading, LLC v. United States, 598 F.3d 1372 (Fed. Cir. 2010).

100. Tolve, 31 F. App’x 73, 75 (3d Cir. 2002); Stenclik, 907 F.2d 25 (2d Cir. 1990); Ripley, 103 F.3d 332 (4th Cir. 1996); Hodgekins, 28 F.3d 610, 614 (7th Cir. 1994); Anthony, 987 F.2d 670, 673 (10th Cir. 1993).

101. Woods, 571 U.S. at 42.

102. Bittner, 598 U.S. at 97.

103. NFIB v. Sebelius, 567 U.S. at 543–44.

104. CIC Services, LLC v. IRS, 593 U.S. 209, 219–24 (2021).

105. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394–413 (2024).

106. See Woods, 571 U.S. at 42; Bittner, 598 U.S. at 97; NFIB, 567 U.S. at 543–44; CIC Services, 593 U.S. at 219–24; Loper Bright, 603 U.S. at 394–413.

107. Former I.R.C. § 6226(a). See, e.g., Bedrosian v. Comm’r, 144 T.C. 152 (2015).

108. See IRM 20.2.7 (Oct. 2, 2019).

109. I.R.C. § 7508A(d). See Abdo, 162 T.C. No. 7; Kwong, No. 23-267 (Fed. Cl. Nov. 25, 2025).

110. Belair Woods, 154 T.C. No. 1; Laidlaw’s Harley Davidson Sales, Inc., 154 T.C. No. 4 (2020).

111. Former I.R.C. § 6223(g) (2002). Tax Ct. R. 241(f). Tax Ct. R. 245.

112. 28 U.S.C. § 1746.

113. I.R.C. § 6330.

114. I.R.C. § 6330(c)(2)(B).

115. McNeill, 148 T.C. at 481.

116. Tax Ct. RR. 120, 121, 72, 104, 142(a), 143; I.R.C. § 7491(a).

117. Tax Ct. RR. 120, 121; I.R.C. § 6501(c)(4)(B).

118. Pub. L. No. 114-74, § 1101(a), 129 Stat. 584, 625.

119. I.R.C. § 6511; Treas. Reg. § 301.6402-2.

120. I.R.C. § 6229(f) (2002); I.R.C. § 6231(b).