## Facts

- Calvin and Roz Kovens executed IRS Form 872-A, extending the limitations period on assessment indefinitely until terminated as specified in the form.
- Under Form 872-A, the taxpayers could terminate the extension only by submitting Form 872-T, and termination would be effective upon the IRS’s receipt of Form 872-T.
- The Kovenses asserted they could not readily obtain Form 872-T and alleged the IRS intentionally or negligently impeded access to it, amounting to breach.
- The Kovenses mailed a Form 872-T to the IRS.
- Before the IRS received the Form 872-T, the IRS issued a notice of deficiency for years covered by the Form 872-A extension.
- The Kovenses petitioned the Tax Court and moved to dismiss for lack of jurisdiction, claiming the notice was untimely because the consent had terminated upon mailing (or should be treated as terminated due to IRS breach).
- The Tax Court previously denied the motion to dismiss, concluding the consent remained effective until IRS receipt of Form 872-T.
- The Kovenses then moved for certification to pursue an interlocutory appeal under I.R.C. § 7482(a)(2) and Tax Court Rule 193.

## Issues

1. Whether a Form 872-A extension is terminated upon the taxpayer’s mailing of Form 872-T, or only upon the IRS’s receipt, and whether alleged IRS impediments to obtaining Form 872-T alter that result.
2. Whether the Tax Court should certify its limitations/jurisdiction ruling for interlocutory appeal under I.R.C. § 7482(a)(2) and Tax Court Rule 193.

## Decision

- The Tax Court denied certification for an interlocutory appeal.
- The court treated its prior limitations/jurisdiction ruling as a straightforward application of the unambiguous “receipt” condition in Form 872-A.
- The court found the statutory criteria for certification unmet: no controlling question of law with substantial ground for difference of opinion, and no showing that immediate appeal would materially advance termination of the litigation.

## Legal Principles

- Form 872-A is generally enforced according to its express terms; when it states termination is effective upon IRS receipt of Form 872-T, mailing does not suffice.
- Alleged administrative difficulties in obtaining Form 872-T, without a legally cognizable breach that changes the agreement’s terms, do not shift the effective termination date from receipt to mailing.
- Interlocutory appeal from the Tax Court requires certification that the order involves (i) a controlling question of law, (ii) substantial ground for difference of opinion, and (iii) that immediate appeal may materially advance the litigation’s termination; certification is discretionary and disfavored.

## Conclusion

The Tax Court refused to certify an interlocutory appeal, holding that its earlier refusal to treat a Form 872-A extension as terminated before IRS receipt of Form 872-T did not satisfy the stringent standards for interlocutory review under I.R.C. § 7482(a)(2) and Rule 193.


Kovens v. Commissioner, 91 T.C. 74 (1988)