Supreme Court Grants Cert on Issue of Whether CDP 30-day Time Limit is Jurisdictional (9/30/21)

The Supreme Court granted the petition for writ of certiorari in Boechler v. Commissioner, 2020 U.S. App. LEXIS 23306 (8^th Cir. 2020) to consider the following question:

Whether the time limit in Section 6330(d)(1) is a jurisdictional requirement or a claim processing rule subject to equitable tolling.

The Procedurally Taxing Blog has a good discussion on the grant of cert:  Christine Speidel, Supreme Court Agrees to Decide Whether the CDP Petition Filing Deadline Is Jurisdictional (Procedurally Taxing Blog 9/30/21), here.

There are other time limits in the IRC for the taxpayers and the IRS to act.  The quintessential time limit is the 90-day period for filing a petition for redetermination of a deficiency.  That has always been deemed jurisdictional, meaning that a taxpayer either complies with it or does not; there is no equitable relief for failure to file in the time period.  Another quintessential time limit is for filing a claim for refund, which the Court held in United States v. Brockamp, 519 U.S. 347 (1997) did not permit equitable tolling.  Congress thereafter enacted § 6511(h), here, to permit some equitable factors to toll the refund claim time period requirement.

Two reasonable inferences from Brockamp and § 6511(h) are:

• Some time periods in the IRC are jurisdictional in the sense that equitable tolling is not permitted.
• When Congress wants time periods, particularly those required for orderly functioning of the ubiquitous tax system, to be subject to equitable tolling, it provides specifically for that relief.

In this context, the § 6330(d)(1) time limitation is hard to distinguish between the petition for redetermination and claim for refund time periods.

I suppose the good thing is that perhaps the Court can come up with some workable way to distinguish between jurisdictional time limits (thus not subject to equitable tolling except as required by statute) and non-jurisdictional time limits thus subject to equitable tolling even when the statute does not require it).

One other good thing is that, by focusing on this type of issue, the Court is avoiding wading into areas of the tax law that it can screw up.  I am sure most tax pundits (professors and practitioners) have a list of such screw-ups, but my list has these examples at the top:  Frank Lyon Co. v. United States, 435 U.S. 561 (1978); and Gitlitz v. Commissioner, 531 U.S. 206 (2000).  Can one even imagine the damage that the Supreme Court might wreak if it fired one of its limit tax review bullets at something like (i) the substance over form doctrine so important to policing taxpayer and practitioner abuse or (ii) proper application of § 482?  E.g., Altera Corp. v. Commissioner, 145 T.C. 91 (2015), rev’d 926 F.3d 1061 (9th Cir. 2019), reh. en banc den. 941 F.3d 1200 (9th Cir. 2019), cert. denied, 591 U.S. ___, 141 S.Ct. 131 (2020).