Government Files Petition for Cert on Issue of Whether 90-day Period for Tax Court Petitions is Jurisdictional (3/26/24)

The Government has filed a petition for certiorari with the following requested issues (see Petition in Commissioner v. Culp (S. Ct. No. 22-1789), here (Pet. (I):

1. Whether 26 U.S.C. 6213(a) grants the Tax Court jurisdiction to review an untimely petition for redetermination of a tax deficiency?

2. Even assuming that the Tax Court has jurisdiction to review some untimely petitions for redetermination of tax deficiencies, whether that jurisdiction extends to a petition filed after the Internal Revenue Service has already assessed the previously determined deficiency, as it is required to do under 26 U.S.C. 6213(c) “[i]f the taxpayer does not file a petition with the Tax Court within the time prescribed.”

Readers of this blog (and most others paying attention to tax procedure matters) will already be familiar with the first issue, so I won’t address that issue further here except to say that the Government requests Supreme Court review because the court of appeals decision (Culp v. Commissioner, 75 F.4th 196 (2023)) is: (i) wrong; and (ii) to resolve a conflict among the Circuits.

The second issue is apparently a new or at least newly articulated as a separate issue if the Court were to hold that the 90-day period is not jurisdictional. Specifically, it articulates a point in which an open-ended inquiry for equitable relief can apply based on the statutory mandate to assess the tax if the taxpayer does not file a petition. The Government makes its argument on this as a separate issue in a footnote under the heading B. The Decision Below Creates A Clear Circuit Conflict On An Important And Recurring Question (Pet. 28 n. 3):

    n3 Because every other court to have addressed the question has held that the 90-day deadline is itself jurisdictional, no circuit conflict exists on the second question presented, see p. i, supra, concerning whether a post-deadline assessment made in compliance with Section 6213(c) independently deprives the Tax Court of deficiency jurisdiction. But because that question is itself jurisdictional, is closely related to the first question presented, and could not arise in circuits that treat the 90-day deadline as jurisdictional, it should be considered in this case along with the first question presented.

The Government thus seeks throw the jurisdictional umbrella over this issue to justify its consideration without having not separately asserted it before. (Of course, this raises the footnote holding in a tax case (Estate of Saunders v. Commissioner, 745 F.3d 953, 962 n. 8 (9th Cir. 2014)) that "Arguments raised only in footnotes * * * are generally deemed waived." But generally jurisdictional issues cannot be waived.)

Added 3/27/24 @ 9:00pm: I offer the following from the Federal Tax Procedure Book: On the topic of footnotes, Justice Scalia stated his lack of appreciation for footnotes in the oral argument in a Supreme Court case when a lawyer referred to a footnote in a prior Supreme Court opinion, whereupon Justice Scalia responded: “I had not recollected that footnote. I will -- I will find it. I don't read footnotes, normally.” But, even as he claimed to not read footnotes normally, he did write them; it is hard to believe that any Supreme Court advocate in oral argument would have told Justice Scalia that he or she–the advocate–did not read footnotes anymore, particularly Justice Scalia’s footnotes.

As I see it, that requirement in § 6213(c) may be just another reason to hold that the 90-day period is jurisdictional. The fact is that the Government can reverse the assessment is the Tax Court were to accept an otherwise out-of-time petition; indeed, it would have to reverse the assessment because, in theory, it would be illegal if an out-of-time petition were accepted as jurisdiction. In this regard, there are already circumstances where, because of not knowing of or not properly processing an in-time petition, the IRS assesses the tax and then is required to reverse the assessment.

The Supreme Court docket entries for Culp are here.