First Circuit Holds that the Time Period to File Petition in § 6213(a) is NonJurisdictional But Mandatory, Hence No Equitable Tolling (8/19/26)

In Kyick Holdings, LLC v. Commissioner, ___ F.4th ___ (1st Cir. 2026), CA1 here and GS here [to come], the Court held that

1. The IRS properly sent the notice to the taxpayer’s last known address. This is the less exciting holding, but I will address it below in my Comment #2.

2. Section 6213(a)’s timely filing requirements are not jurisdictional. (Caution on this label “jurisdictional” though, as I note below.)

3. As a matter of statutory interpretation § 6213(a)’s timely filing requirements are “mandatory,” meaning that the periods to file the petition is not subject to equitable tolling. This latter holding has the same practical effect as would have applied if the Court had agreed with the consensus holdings in the Courts of Appeals that § 6213(a)’s time periods were jurisdictional.

The key holdings for purposes of this blog are ## 2 & 3, although they are not outcome-determinative in terms of the holdings of other Circuit Courts of Appeals. That is because regardless of whether a Court bases its outcome on jurisdiction or a mandatory analysis, the result is the same in denying the availability of equitable tolling.

For that reason, I worry whether courts futzing around with “jurisdiction” in this context is meaningful. Courts could just go to the heart of the disposition that the time periods are mandatory. In many cases, courts are just writing at length about jurisdiction which has some esoterica when mandatory should do.

Other JAT Comments:

1, In reading Kyick, I focused on an issue that I have developed in my thinking about Chevron and Loper Bright—the need for default rules to decide cases in a state of interpretive equipoise (aka ambiguity). The jurisdictional/nonjurisdictional line of cases developed a default rule in a state of interpretive equipoise. If the Court labels the time period requirement “nonjurisdictional,” the time period requirement is “presumptively subject to equitable tolling.” Kyick, Slip Op. 35 (citing Boechler, P.C. v. Commissioner, 596 U.S. 199, 209 (2022) which cited Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 95-96 (1990)). However, the presumption of equitable tolling can be rebutted where tolling is inconsistent with the statutory scheme. Id. The holding in Kyick was that equitable tolling was inconsistent with the statutory scheme which made the time periods mandatory, although not jurisdictional. Thus, the default rule of equitable tolling did not apply because Kyick could determine the best interpretation of a mandatory requirement.

For my most recent detailed discussion of the need for default rules in interpretive equipoise, see John A. Townsend, Loper Bright Flip Flops on Chevron Deference: A Tax Lawyer’s Perspective, 79 Tax Lawyer 323, 334-339 (2026). I cite the rule of lenity and Chevron as such default rules where the tools of statutory interpretation did not permit a court to determine the best interpretation as between an agency interpretation and an opposing interpretation, requiring a default rule to decide the case. Of course, Loper Bright boldly proclaims that Chevron can no longer supply the default rule to decide the case. The problem is that Loper Bright offers nothing to guide a judge to a proper result in a state of interpretive equipoise.

On July 13, 2026, I asked ChatGPT the following question: “What does a judge do, following Loper Bright, when after applying the tools of statutory interpretation, the judge still believes the statutory text is ambiguous--meaning that the judge cannot determine whether the agency interpretation or the opposing interpretation is best (a state of interpretive equipoise)?” The conclusion in the response was: “Loper Bright eliminates Chevron deference, but it leaves unresolved what a court should do in the rare case of true, irreducible interpretive equipoise.” In my article, I suggest that, in truth based on my research, APA § 706(2)(A) supplies that default rule by permitting a court to set aside the agency action (here interpretation) only if the court finds the action “not in accordance with law,” a standard that facially requires the agency interpretation to stand if a court is in interpretive equipoise. (One other theme in the “not in accordance with law” standard is that it is drawn from the statute interpreted to require deference. Dobson v. Commissioner, 320 U.S. 489 (1943).)

1a. Added 8/19/26 5:45pm: In further thinking about Boechler cited above which set off much of the craziness on time deadlines in the Internal Revenue Code of 1986, it is worth noting that even where equitable tolling is allowed, it is rarely granted because taxpayers usually cannot show that the equities allow tolling. More to the point of this blog, though, the Supreme Court's opinion itself serves up another default rule in interpretive equipoise--the so-called "clear statement" rule that statutory deadlines are subject to equitable tolling unless the statute clearly states that they are jurisdictional. E.g., Myers v. Commissioner, 928 F.3d 1025, 1034 (D.C. Cir. 2019) (noting also perhaps inconsisently with Kyick that "It is not enough, for instance, that a statute uses mandatory language.")

2. Back to the last known address requirement ubiquitous for notices the IRS must send to taxpayers. Kyick had some interesting observations about a so-called “reasonable diligence standard” which was developed in some courts prior to the 2001 regulation. Kyick noted (Slip Op. 11) that the regulation did not have a “reasonable diligence standard” which put was in “tension” with the prior standard developed in the courts. (Slip Op. 11, citing Gyorgy v. Commissioner, 779 F.3d 466, 479 (7th Cir. 2015).) Without resolving the tension, Kyick held that the IRS had met the reasonable diligence standard in any event.(Slip Op. 12-13.)