6th Circuit Joins 2nd and 3rd Circuits in Holding § 6213(a)’s 90--day Petition-Filing Deadline is Not Jurisdictional (8/25/25)

In Oquendo v. Commissioner, ___ F.4th ___ (6th Cir. 8/25/25) (CA6 here, TN here, and GS here [to come]), the panel held unanimously that § 6213(a)’s 90-day petition-filing deadline was not jurisdictional and is thus subject to equitable tolling; so finding the panel remanded to the Tax Court to consider Oquendo’s entitlement to equitable tolling. The holding is consistent with prior decisions by the Second Circuit and the Third Circuit. Buller v. Commissioner, ___ F.4th ___ (2d Cir. 8/13/25); and Culp v. Commissioner,  75 F.4th 196 (3rd Cir. 2023), cert. den. ___ U.S. ___, ___ S.Ct. ___, 2024 U.S. LEXIS 2725 (Federal Tax Procedure Blog 2024). See Second Circuit Allows Possible Equitable Tolling for 90-day Petition for Redetermination of Deficiency (Federal Tax Procedure Blog 8/14/25), here (discussing Buller and Culp). The Supreme Court denied the Commissioner’s petition for cert in Culp; as I said in the blog on Buller, I doubt that the Government would file a petition for cert with two losses and no wins in the Courts of Appeals; now there is three losses and no wins.

JAT Comments: 

1. I suspect that the issue will not go to the Supreme Court before an actual conflict develops in the Courts of Appeals and then, of course, it would be the taxpayer petitioning for cert.

2. More likely, now with three losses, I suspect that the Tax Court will reconsider its position that § 6213(a)’s 90-day petition-filing deadline is jurisdictional. There should be cases in the pipeline that will permit the Tax Court to do that expeditiously if it wants to act expeditiously.

3. Moreover, I suspect that the Tax Court may relax its sparing approach to finding a taxpayer can satisfy the requirements for equitable tolling; if the Tax Court does not, the Courts of Appeals may intervene as these cases are appealed. On the Tax Court’s sparing approach to finding equitable tolling, see the blog cited above, quoting from the Federal Tax Procedure Book Editions.

Correction to Federal Tax Procedure Editions on the Late/Former Commissioner Billy Long's Credible Experience--Actually None (8/22/25)

A friend pointed out that, in my Federal Tax Procedure Book Editions, I misdescribed Billy Long, the recently departed Commissioner of Internal Revenue, as having “credible experience in either tax or management experience.” (See Student Ed., pp. 26-27; Practitioner Ed. p. 45.) I left out “no” before “credible.” So, with apologies to the readers of the editions, I have revised the paragraph in the 2026 Working Draft as follows (with changes in redline; text only).

          On June 12, 2025, the Senate confirmed Billy Long, President Trump’s choice, for Commissioner of Internal Revenue. The nomination and confirmation were controversial because (i) the confirmation was preceded by chaos among the acting IRS leadership, and (ii) more importantly, Long had no credible experience in either tax or management experience. Apparently, for that reason and probably also other disqualifying factors, President Trump removed Commissioner Long, dressing up that removal as a move to permit him to serve as Ambassador to Iceland (rather than a mistake in the first place). Treasury Secretary Scott Bessent is now Acting Commissioner.

 I also note that I did get it right in a footnote which ends as follows:

JAT Editorial Comment: Long appears to have no relevant qualifications to be Commissioner of Internal Revenue other than sycophancy to President Trump which is the only credential he needed to be approved by the Senate on a party-line vote.

Tax Court Rejects SCE’s Hail Mary Jarkesy Pass (8/21/25)

In Silver Moss Properties, LLC v. Commissioner, 165 T.C. ___, 1No. 3 (2025) (T.C. Dkt. No. 10646-21, here, at Entry # 109, GS [here])), the Court acting as referee called out that Taxpayer’s Hail Mary pass* to avoid the civil fraud penalty. Since the Tax Court (or someone for it) has already stated the essence of the case in a Headnote, I just copy and paste it here:

           A partnership subject to the audit and litigation procedures of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. No. 97-248, 96 Stat. 324, donated a conservation easement and claimed a charitable contribution deduction under I.R.C. § 170. P, the tax matters partner, timely petitioned this Court challenging the IRS’s Notice of Final Partnership Administrative Adjustment. R later amended his Answer to assert a civil fraud penalty against the partnership under I.R.C. § 6663(a).

          P filed a Motion for Partial Summary Judgment, citing SEC v. Jarkesy, 144 S. Ct. 2117 (2024), and contending that this Court is barred from adjudicating the civil fraud penalty because U.S. Const. amend. VII guarantees a right to trial by jury in such actions, which is not an option in this Court.

          Held: U.S. Const. amend. VII does not apply to suits against the sovereign, and Congress has not otherwise consented to trial by jury in TEFRA partnership-level actions.

          Held, further, the “public rights” exception to U.S. Const. amend. VII applies to a civil fraud penalty under I.R.C. § 6663(a).

          Held, further, this Court may adjudicate an I.R.C. § 6663(a) civil fraud penalty.

This plaintiff in the case appears to be a Tax Matters Partner for an LLC taxed as a partnership, which appears to be the favored format for the flurry of bullshit Syndication Conservation Easement ("SCE") tax shelter cases plaguing the Tax Court now with wholly inappropriate drains on the Tax Court's , the IRS’s and the public fisc resources. I don't know if this particular case involves an abusive tax shelter, but it seems to have the same earmarks, including the same lawyers involved in some of the abusive shelter cases. 

 JAT Comments:

1. (Warning, this is a multi-paragraph comment #1): In this case, the IRS did not originally assert the civil fraud penalty, §6663, in its FPAA. The Court granted the IRS motion for leave to file the amended answer asserting the fraud penalty based on discovery from the petitioner. (See Docket entry # 37.) I presume that the FPAA originally asserted the 40%  gross overvaluation penalty. §6662(h), a penalty that is almost always finally applied by the Tax Court in these  SCE cases, if properly asserted, because well simple mathematics shows a gross overvaluation. So, the difference is 25% (which, like civil penalties, generally accrues interest from the date the return was due). Which means that the cost of playing the audit lottery can be more than the taxpayers (encouraged by the promoters who promoted bogus valuations and bogus legal opinions) counted on.

Third Circuit Holds Tax Taxpayer Fraud is not Required for 6501(c)(1) Unlimited Statute of Limitations, Creating Conflict (8/18/25)

In Murrin v. Commissioner, ___ F.4th ___ (3rd Cir. 8/18/25), CA3 here and TN here, the Court held that the §6501(c)(1), here, unlimited statute of limitations applying "In the case of a false or fraudulent return with the intent to evade tax" applies even without the taxpayer's personal fraud. The opinion is a straightforward textualist interpretation of the governing statute. Since the opinion is relatively short, I am not sure my nitpicking (aka pontificating) over the reasoning and specific text would be helpful to readers of this Blog, most of whom are already familiar with the issue.

In the event my thoughts may be helpful, I link here first my prior blogs generated by the search terms "allen fraud limitations" which picks up the blogs that discussed the issue. (If you click that link, the returns are first in some relevance scoring of the content order for the terms but there is a link to put them in reverse date order.) The more recent blog discussions that I think may be most helpful to readers wanting more than offered in Murrin are:

• On the Tax Court decision in Murrin: Tax Court Again Declines to Reconsider Its Holding that the Preparer's Fraud without the Taxpayer's Fraud Invokes Unlimited Statute of Limitations (Federal Tax Procedure Blog 1/25/24; 2/5/24), here (where I discuss and link Professor Bryan Camp's discussion of the Tax Court opinion in Murrin) (those reading the Third Circuit opinion in Murrin will see that Professor Camp filed an amicus in favor of the taxpayer's position).
• On BASR P’ship v. United States, 795 F.3d 1338 (Fed. Cir. 2015), which Murrin conflicts (Murrin substantially adopts the dissenting opinion in BASR), I did not write a separate blog on the BASR opinion, but I wrote one on the court awarding attorneys fees under § 7430: Major Attorneys Fee Award for BASR Partnership Prevailing on the Allen Issue in Federal Circuit (Federal Tax Procedure Blog 2/11/17), here. This conflict certainly insures a petition for cert by Murrin. I suspect that there may be a flurry of amicus briefs on the petition and, if cert is granted, on the merits briefing because a lot of wealthy taxpayers investing in fraudulent taxpayers have a dog in the hunt, so to speak.
• On City Wide Transit, Inc. v. Commissioner,  709 F.3d 102 (2d Cir. 2013) discussed in Murrin: Second Circuit Holds That Fraud on the Return -- Even If Not the Taxpayer's -- Causes an Unlimited Civil Assessment Statute of Limitations to Apply (Federal Tax Procedure Blog 2/4/13), here.
• My early venture into the subject discussing an important extension of a holding that the taxpayer's fraud is not required if the return is fraudulent: Civil Tax Statute of Limitations for Fraudulent Tax Shelters (Federal Tax Procedure Blog 12/19/09), here.

 This blog entry is cross-posted on the Federal Tax Crimes Blog, here.

Second Circuit Applies Loper Bright to Approve a Best Interpretation in Treasury Regulation (8/15/25)

In New Jersey v. Bessent, ___ F.4th ___ (2d Cir. 8/13/25), CA2 here and TN here, the Court sustained the Treasury Regulation denying a federal tax deduction for "charitable" donations where the "donor" received a state or local property tax credit in the amount of 85% to 95% of the amount "donated." The net effect of the credit is that the "donation" was largely a payment of local property tax and, if the federal donation were allowed, would skirt the SALT limitation on the federal deduction of property taxes.

The key part of the opinion for present purposes is the discussion of the merits of the Regulation, referred to in the opinion in administrative law parlance as the Final Rule. The district court sustained the Regulation (Slip Op. 5) "relying on Chevron deference to conclude that the IRS's interpretation of ambiguous statutory language in I.R.C. § 170 is a permissible construction of the statute." (See also Slip Op. 27).

As I discuss below in comments (see JAT Comments ¶ 3) that there is confusion about what Chevron deference did, but for present I simply assume that the district court applied Chevron in some way.

So, New Jersey v. Bessent Court reads its duty under Loper Bright to determine whether the Regulation was the "best" interpretation of the governing statute, without any deference. The Court cites Skidmore once (Slip Op. 29), but only for the generality of Skidmore without relating that generality to its reasoning sustaining the Regulation interpretation. The reasoning of the opinion is the determination that the agency interpretation is, under Loper Bright, the best interpretation.

The Court addresses the issue by deciding that, rather than focus on the elusive subjective donor expectation of benefit (which might make the donation not really charitable in a general sense), an objective test labeled as a "quid pro quo' test, will applies under the statute. (See Slip Op 31-46). Under that objective test, for example, the expectation of a tax deduction from a party other than the donee (e.g., the IRS) is not a quid pro quo that denies the charitable deduction; however, a substantial credit from the party receiving the donation can be a quid pro quo that denies the deduction. Under this test, the state or local tax credit denies the charitable deduction.

I will not discuss the merits of the Court's analysis in getting to the holding that the "donations" in question are not charitable and thus the Regulation states the best interpretation. (I will address that issue in JAT Comments  ¶ 2 below.) Bottom line, the Court holds (Slip Op. 46):

    We conclude that the Final Rule correctly interprets I.R.C. § 170 as applied to Appellants' tax-credit programs and that the IRS did not exceed its statutory authority.n17
   n17 We do not decide today whether the Final Rule's preclusion of a § 170 deduction in instances where the tax credit comes not from the recipient of a gift but from a third-party government exceeds the scope of I.R.C. § 170. See 26 C.F.R. § 1.170A-1(h)(4)(i). Appellants do not argue here that the rule's application to all tax-credit-for-contribution programs (exempting those where the tax credit does not exceed 15% of a contribution) renders the regulation unlawful. "In our adversarial system of adjudication, we follow the principle of party presentation" under which we do not "sally forth each day looking for wrongs to right" but instead "decide only questions presented by the parties." In re TransCare Corp., 81 F.4th 37, 58 (2d Cir. 2023).

JAT Comments:

Second Circuit Allows Possible Equitable Tolling for 90-day Petition for Redetermination of Deficiency (8/14/25)

Tax procedure enthusiasts already know that, starting with Boechler P.C. v. Commissioner, 596 U. S. 199 (2022), courts have steadily eroded time limits for procedural relief in tax matters as jurisdictional, a category that required compliance without equitable relief (tolling) for late filing, and moved them to the category of nonjurisdictional, claims processing rules, which allow for equitable relief (tolling). Even as that process of erosion continued to involve other time requirements, the Tax Court held fast to its historic view that petitions for redeterminations of deficiencies in § 6213(a) were jurisdictional, thus not permitting equitable relief for out-of-time filing of the petitions. Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022) (unanimous reviewed opinion); See Tax Court Holds that § 6213(a) Time Deadline for Petitions for Redetermination Is Jurisdictional, Thus Not Subject to Equitable Relief (Federal Tax Procedure Blog 12/13/22), here.

Yesterday, in Buller v. Commissioner, ___ F.4th ___ (2d Cir. 8/13/25), CA2 here and TN here, the Court held that the § 6213(a) petition 90-day period is not jurisdictional and therefore is subject to equitable tolling. The Court remanded to the Tax Court to determine whether the requirements for equitable tolling were met. In Culp v. Commissioner,  75 F.4th 196 (3rd Cir. 2023), cert. den. ___ U.S. ___, ___ S.Ct. ___, 2024 U.S. LEXIS 2725 (2024), the Court held that the § 6213(a) time period is not jurisdictional and thus subject to equitable tolling. The Government petitioned for writ of certiorari but the Supreme Court denied the petition. See Government Files Petition for Cert on Issue of Whether 90-day Period for Tax Court Petitions is Jurisdictional (Federal Tax Procedure Blog 3/26/24) (discussing issues presented in the petition), here.

I have no special insight into whether the Government will petition for writ of certiorari in Buller, but since there is no conflict among the Circuits, I suspect that the Court would not grant the petition. Moreover, with the Circuit breakdown is now 2-0, perhaps the Tax Court will at the next opportunity reconsider its prior holdings and get in line with the trend in the cases.

Federal Tax Procedure Book 2025 Editions on SSRN (8/9/25)

The 2025 versions of the Federal Tax Procedure Book are now posted on SSRN. SSRN still has to approve them, but those interested can view or download them in the interim. The SSRN editions can be linked on the page in the column to the right titled “Federal Tax Procedure Book (2025 Editions),  here.

Those using the 2025 versions should consult the Update page in the column to the right here.

Loper Bright’s Effects on the § 6751(b) Regulations (Herein Difference Between Regulations and Interpretations) (8/7/25)

I am today considering the wonders and discontinuities of Loper Bright Ent. v. Raimondo, 603 U.S. 369 (2024)(“Loper Bright”). I do this in the context of updating my Federal Tax Procedure Book editions. For this blog, I zero in on one facet related to Loper Bright’s perceived command that courts apply de novo the best statutory interpretation (whether or not it is the agency interpretation). The general rule is that judicial interpretations apply retroactively to the effective date of the statute. Harper v. Va. Dep't of Taxation, 509 U.S. 86 (1993). 

The context is the § 6751(b) regulations. 26 C.F.R. § 301.6751(b)-1, with an effective date of December 23, 2024. Those regulations were promulgated to resolve the inconsistent interpretations of § 6751(b) as courts flailed around, often inconsistently, to apply the textually nonsensical statute. Loper Bright denied Chevron deference from the fiction of statutory ambiguity, but said nothing about a statute that is ambiguous and textually nonsense. That requires that either (i) § 6751(b)  is facially invalid with no application or (ii) susceptible to interpretation which will require that lines be drawn similar to the way a line was drawn in United States v. Correll, 389 U.S. 299 (1967) (adopting the agency sleep and rest interpretive line for the statutory “away from home” requirement). In other words, a best interpretation could not be made until some authority draws the line.

At least in theory, in order to pass Loper Bright muster, the § 6751(b) interpretive regulations must state the best interpretation. For purposes of this discussion, I distinguish between the interpretation and the regulation which adopts the interpretation. The best interpretation should apply from the effective date of the statute. That means, for example, that the § 7805(b) limitations on retroactive effective dates for interpretive regulations may still apply to the regulation but are meaningless if the regulations state the best interpretation.

This phenomenon was always true but perhaps was not true for agency interpretations of ambiguous text that had no best interpretation from the effective date of the statute, but with a best interpretation discernible only by some action, such as a regulation interpretation, that permitted a best interpretation to be applied. E.g., United States v. Correll, 389 U.S. 299 (1967) (once the line drawing was approved in Correll, it applied to all pending and future cases).

Thus, the conundrum of effective dates for the § 6751(b) regulations is presented. If the interpretations in the § 6751(b) regulations are best interpretations, they apply from the effective date of the statute and should apply to pending Tax Court cases for periods prior to the regulations’ effective date of December 2024. If that is right, should not the courts in pending cases for periods prior to the December 2024 effective date be considering whether the regulations interpretation (not the regulation) applies. If the § 6751(b)  regulations are best interpretations for validity, why should courts for those pre-effective date periods not apply the best interpretations. In other words, why are Tax Court judges applying the mish-mash of interpretations preceding the effective date of the § 6751(b) regulations without considering the § 6751(b) interpretations? See e.g., Hancock County Land Acquisitions LLC v. Commissioner, T.C. Memo. 2025-50.

Tax Court Rejects a Bullshit Tax Shelter False Valuation Claim with Warning of Sanctions for Taxpayers, their Counsel, and Expert Witness Proffering the Bullshit (7/16/25; 7/18/25)

I write today on a “dictated” oral decision at the conclusion of trial in Veribest Vesta, LLC, True North Resources, LLC, v. Commissioner (T.C. Dkt # 9158-23; docket entries here at docket # 199). Bottom line, the taxpayer’s (only because they got caught) claim went “True South.”

Note on Tax Court Orders: Orders can be relatively short dealing with routine procedural matters or may be longer when they serve the same function as T.C.M. opinions. Juge Buch’s opinion is the latter sort where he enters as an a one-page order attaching his lengthy findings of fact and conclusions dictated into the record at the close of the lengthy trial. This Order serves as the report (same as T.C. and T.C.M. opinions) required by § 7459(a), here. One difference between an Order and the other Tax Court opinions is that the Order does not list counsel. Readers can identify counsel for the parties by clicking the docket entries link above and clicking at the box on upper right for a printed docket sheet.

Veribest involved a standard plain vanilla bullshit Syndicated Conservation Easement shelter, with many Tax Court opinions and Circuit Court affirmances in other similar cases preceding Veribest in essence calling out the bullshit. Some cases have been decided on other grounds, but there was always a common problem of false hyper-inflated valuations of the easements; often (I can’t say always) the valuations claimed were many, many times the real cost of the whole property (including the easement) reasonably close to the date the easement was carved out and “donated” to a willing “charity.” There could be several procedural footfaults for claiming deductions, but false overvaluations have been a common feature of many bullshit tax shelters since the days of Jackie Fine Arts and Barrister. Old timers will remember those shelters from the 1970s and 1980s.

In the SCE cases that have barraged the Tax Court dockets with much wasted resources involving many lawyers making lots of money, one feature has been the taxpayers (through their lawyers making lots of money) proffering expert witnesses who lack credibility. I include at the end of this blog some earlier blog offerings in bullshit tax shelters (including one-off rather than syndicated) with valuations that were not credible.

Today, I want to note Judge Buch’s warning of the potential for Section 6673 penalties. Section 6673, here, is titled “Sanctions and costs awarded by courts.” The Section permits the Tax Court to award costs:

Is Consistency the Hobgoblin of Small Minds for Chief Justice Roberts? Herein of Loper Bright and Chevron (7/10/25)

I was just today pointed to Perttu v. Richards, 605 U.S. ___ (6/18/25), SC here, I was interested because, although not a case about Chevron or Loper Bright (citing neither Chevron or Loper Bright or using the word deference in either Chief Justice Roberts’ Opinion of the Court or Justice Barrett’s dissent), Chief Justice Roberts says this (Slip Op. 6, of the Opinion and p. 10 of the pdf (because the Syllabus precedes the Opinion, here):

That usual practice matters for interpreting the statute because “Congress is understood to legislate against a background of common-law adjudicatory principles . . . with an expectation that the principle[s] will apply except ‘when a statutory purpose to the contrary is evident.’”

I am interested in the quote because I am authoring an article on Loper Bright also authored by Chief Justice Roberts. I think it is commonly understood that Chevron deference had achieved the status of a common law adjudicatory principle by the time Loper Bright was decided. So, how could Chief Justice Roberts say with a straight face (or maybe a straight computer keyboard) that the Court should honor common law adjudicatory principles in Richards but not in Loper Bright? Congress was certainly legislating with Chevron as a background common law principle (as Justice Kagan notes in her Loper Bright dissent at pp. 463-464 here and Chief Justice Roberts ignores in his Opinion of the Court in Loper Bright)? (This is my reason for referring to the "small minds" aphorism in the title to this blog.)

If anyone has thoughts on this conundrum, please let me know either by comment to this article or by email to jack@tjtaxlaw.com. If appropriate and the commenter gives permission, I will acknowledge the credit in the article.

* Note that the Loper Bright page numbers and links are to the Preliminary Print (as opposed to the Slip Op.) which has “preliminary” page numbers that may change before the final U.S. volume. And, of course, the Richards quote is from the Slip Opinion not yet incorporated in a Preliminary Print.