3rd Circuit Holds that Collection Statute of Limitations Is Suspended through Supreme Court Finality (11/2/22; 11/3/22; 11/7/22)

Section 6330(e)(1) ( provides that certain levy actions and certain statutes of limitations (including collection) are suspended while Collection Due Process (“CDP”) “hearing and appeals therein are pending.”  Readers will recall that the taxpayer invokes the CDP hearing by making a timely request and then, if not satisfied, can petition the Tax Court for review.  The Tax Court will then review, and that taxpayer and the IRS have the standard appeals processes to the Court of Appeals and, by petition for writ of certiorari, to the Supreme Court.

In United States v. Weiss, 52 F.4th 546 (3rd Cir. 11/2/22), CA3 here, the Court held that, for statute of limitations suspension in CDP cases, “appeals therein” and “pending” mean not until all appeals processes (including Supreme Court, if invoked as it was in Weiss) are final.  That holding stated that way makes sense—even common sense. 

But, it was not so simple for the Third Circuit.  The authoring judge, Judge Phipps, seized the opportunity to elaborate in 15 pages not including the cover caption page -- bringing out the dictionaries and other interpretive tools to tackle the weighty issue of what “appeals therein” and “pending” mean.  Stating the standard pablum that you look to the meaning of statutory words at the time of enactment, the judge holds forth on that and finds some potential ambiguity that can be cleaned by going through dictionaries and maxims. 

For those interested in reading footnotes, I commend footnotes 2-4, covering most of pages 8-10, particularly n4 where he holds forth on the “autohyponym.”  That was a new word for me.  He explains in the footnote:

   n4 Because the general meaning of ‘appeal’ fully encompasses its narrower meaning, that word is known as an autohyponym. See Laurence R. Horn, Ambiguity, Negation, and the London School of Parsimony, 14 N.E. Linguistics Soc’y 108, 110–18 (1984) (discussing a number of common autohyponyms). A common autohyponym is the word ‘finger,’ which can refer generally to all the digits on one’s hand, but it can also refer to only the non-thumb digits. See Anu Koskela, Inclusion Contrast and Polysemy in Dictionaries: The Relationship Between Theory, Language Use & Lexiographic Practice, 12:4 Rsch. in Language 319, 320–22 (2014). A common legal term that is an autohyponym is ‘res judicata’: it has a general meaning that encompasses both claim preclusion and issue preclusion, but it also has a narrower meaning that refers only to claim preclusion. See United States v. 5 Unlabeled Boxes, 572 F.3d 169, 173–74 (3d Cir. 2009); see also Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 535– 36 (5th Cir. 1978); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4402 (3d ed. Apr. 2022 update) 

I did a search of federal opinions, all levels, in Google Scholar and found no reference to autohyponym.  That’s, I guess, because the Weiss opinion has not been loaded to Google Scholar.  (Note, as of 11/7/22, the Weiss case now appears when the word authohyponym is searched (see here); it is the only case using the word as of 11/7/22.) Still, I like the example he gives for autohyponym – “res judicata” to encompass both claim preclusion and issue preclusion but also with the narrower meaning of claim preclusion.  I do use those words occasionally in my writings, but had just not recognized that they were components of an autohyponym to which I have just been introduced (although I am not sure that I will have an occasion to use it).  So, if you were not previously aware, you can now whip out the word without pause and will know what it means when it is sprung on you.

I did a Google search and turned up this either more or less helpful discussion:

What are hyponyms examples?

In simpler terms, a hyponym is in a type-of relationship with its hypernym. For example: pigeon, crow, eagle, and seagull are all hyponyms of bird, their hypernym; which itself is a hyponym of animal, its hypernym. Hypernymy or hyperonymy is the converse of hyponymy.

What tax procedure enthusiasts should really remember about the case is its bottom line holding that the words “appeals therein” and “pending” mean after all appeals processes (including certiorari) are exhausted.  Cf. § 7481, Date when Tax Court decision becomes final (stating a similar rule in a more elaborate fashion for other Tax Court cases).

Added 11/3/22 6:35am:

1. So, readers might ask why I was even reading footnotes in Weiss. Many people do not read footnotes. Justice Scalia famously said at one Supreme Court oral argument: "I don't read footnotes, normally." (Of course he wrote some, presumably with the expectation that someone would read them.) I both read footnotes (normally, though not always, particularly enjoying footnotes offering more than one or two lines (e.g., a case citation) as in Weiss) and write footnotes (e.g. 4,633 in the latest version of Federal Tax Procedure (2022 Practitioner Ed.), here).. See particularly On Footnotes and the Demise of Appendix C from FTPB (Federal Tax Procedure Blog 7/28/21), here, where I digress on footnotes with the following teaser for the blog:

“Encountering [a footnote], is like going downstairs to answer the doorbell while making love.” Attributed to Noel Coward in Arthur A. Austin, Footnotes as Product Differentiation, 40 Vand. L. Rev. 1131, 1152 (1987); NPR Weekend Edition Transcript, "The Possible Demise of the Footnote" (Sept. 7, 1996).  The attribution to Coward may be imperfect, as Prof. Austin develops in a subsequent, appropriately long, footnote.  See Arthur A. Austin, Footnote*, Skulduggery** and Other Bad Habits***, 44 U. Miami L. Rev. 1009, 1012 n.20 (1990). Still, regardless of who said or should have said it, the point is well made. 

** Over the years the footnote has regularly provided a safe refuge for untenable hypotheses. Writers are inclined to behave as if they will be held less accountable for indiscretions committed below the text than in it. . . . Lunacy in small print is lunacy nonetheless, and it is particularly reprehensible when it is not even amusing.

Arthur A. Austin, Footnote*, Skulduggery** and Other Bad Habits***, 44 U. Miami L. Rev. 1009 (1990) (as an article title footnote, with the other article title footnotes omitted), quoting Bowersock, The Art of the Footnote, 53 Am. Scholar 54, 61 (1983/1984). To the extent that I have lunacy here, I hope it is at least amusing.

While I did not find footnote 4 in Weiss amusing in its content, what I did find amusing--well puzzling--is why the footnote was even in the opinion. I don't think it added anything to the import of the opinion. So, why was it there? To be sure, the point about res judicata is important to understand, and I present it at pp. 619-620 of the FTPB, without using the term autohyponym (or any variant). For the 2023 edition, I will include the term in the footnote now appearing as footnote 2721 in the 2022 Edition after the following text sentence: "The historical terms used were res judicata for claim preclusion and collateral estoppel for issue preclusion, with res judicata sometimes used to cover both concepts."  I will give credit to Weiss fn. 4. Readers of future Editions who bother to read that footnote might ask, why is the discussion of autohyponym there, particularly since it is not amusing?

2. (Added 11/7/22 2:45pm). Following on the theme in my comment #1, Judge Stephanos Bibas, also of the 3rd Circuit Court of Appeals, gave a lecture at Harvard Law School lamenting judges' "show-off" opinions. See Cebra Cassens Weiss, Federal appeals judge complains about 'show-off' opinions (ABA Journal 11/3/22), here; and Jonathan Adler, Judge Bibas on "Judges Gone Wild" (The Volokh Conspiracy 11/2/22), here.  I am reminder of an example that is related to the concern expressed by Judge Bibas. In Judge Gorsuch's concurring opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142. 1153 (10th Cir. 2016), GS here, he lamented: “There’s an elephant in the room with us today,” to lead into a rant about Chevron. That concurring opinion was in a case where Judge Gorsuch wrote the panel opinion (no dissents) and the two other judges could not agree with his detour in the concurring opinion.  In any event, in his posturing for the Supreme Court, that phrase became symbolic of his anti-deep state credentials which I am sure played well in the appointment and confirmation.  I address in my article The Report of the Death of the Interpretive Regulation Is an Exaggeration  (SSRN December 14, 2021), here, at pp.  110-116 under the caption "b. Gorsuch's Imagined Elephant in the Room.").