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.

It is now apparent that most tax time limits are generally nonjurisdictional, claims processing rules, for which equitable tolling can apply. The key exceptions are for time limits for refunds. See Applegarth v. Commissioner, T.C. Memo. 2024-107, discussed in Tax Court Memo Opinion Denying Refund under § 6512 Offers Excellent Examination Question for Tax Procedure Class (Federal Tax Procedure Blog 12/13/24), here.

Finally, just because equitable tolling may apply does not mean that it will apply. The taxpayer still has to prove entitlement to equitable tolling. As I say in my Federal Tax Procedure Books (Student Ed. at 134; Practitioner Ed. at .202):

Finally, Tax Court recognition of the right to claim equitable tolling for limitations relief does not mean that a court will award relief. The facts must support the application of equitable tolling. Boechler, involving the CDP petition time period was a 2022 case, and Professor Bryan Camp, a prominent commentator of Tax Court opinions, said on May 25, 2025 that “I have not yet seen anyone convince the Tax Court to apply equitable tolling to excuse a late CDP petition.” n949 Further, the Tax Court has held that equitable tolling is “a rare remedy” where the taxpayer has the burden to show facts justifying equitable tolling. And, as to petitions to redetermine deficiency in those circuits (such as the Third) where equitable tolling could apply, courts often find the facts do not support equitable tolling. Of course, given the significant number of Tax Court filings in cases where equitable tolling can be asserted, there will undoubtedly be worthy cases in the future, but they are likely the rare exception rather than the rule.
    n949: Bryan Camp, Lesson From The Tax Court: No Equitable Tolling For Brain Farts (Tax Prof Blog 5/25/25) (note Professor Camp had two “yets” in the sentence; I have omitted one for readability) (discussing Belagio Fine Jewelry Inc. v. Commissioner, 164 T.C.243 (2025) where equitable relief was denied under the facts). Indeed, on remand in Boechler, P.C., the Tax Court held that the petitioner had not shown facts warranting equitable relief. Boechler, P.C. v. Commissioner (Tax Court No. 18578-17L, Order (dictated at end of trial of the equitable relief issue) and Decision at dkt ## 81 and 82, dated 7/15/25).

Proving entitlement to equitable tolling may be daunting indeed. Still, in Buller, the Second Circuit remanded for the taxpayer to make the attempt.