In Boechler, P.C. v. Commissioner, 583 U.S. ___, 142 S.Ct. 1493 (2/21/22), SC here and GS here, the Court held that “Section 6330(d)(1)’s 30-day time limit to file a petition for review of a collection due process determination is a nonjurisdictional deadline subject to equitable tolling.” (From the Syllabus.) The holding is based on a close reading of § 6330(d)(1) and the notion that for jurisdictional status or prohibition of equitable tolling, an express or clear statement is required, which this statute lacks. And, it seems that even nonjurisdictional time limits may not be equitably tolled if there is some reason in the text to conclude that. (I am not sure equitable tolling is separate from the nonjurisdicitional conclusion, but the Court seems to think so. E.g., Slip Op. 8, “Of course, the nonjurisdictional nature of the filing deadline does not help Boechler unless the deadline can be equitably tolled.”)
Other than permitting equitable tolling for § 6330(d)(1)’s time
limit, I am not sure the opinion offers any broader important lessons. However,
the opinion does state (Slip Op. 14-15):
Finally, the broader statutory context confirms the lack of any clear statement in §6330(d)(1). Other tax provisions enacted around the same time as §6330(d)(1) much more clearly link their jurisdictional grants to a filing deadline. See 26 U. S. C. §6404(g)(1) (1994 ed., Supp. II) (the Tax Court has “jurisdiction over any action . . . to determine whether the Secretary’s failure to abate interest under this section was an abuse of discretion, . . . if such action is brought within 180 days”); §6015(e)(1)(A) (1994 ed., Supp. IV) (“The individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed during the 90-day period”). These provisions accentuate the lack of comparable clarity in §6330(d)(1).
So, I guess we know what the answer is for those provisions.
The Court
then says this about § 6213(a)’s 90-day limit to file a petition for redetermination of a deficiency
(a deficiency proceeding), which has historically been considered jurisdictional and not subject to equitable tolling.
(Slip Op. 7-8):
The Commissioner’s weakest argument is his last: He insists that §6330(d)(1)’s filing deadline is jurisdictional because at the time that deadline was enacted, lower courts had held that an analogous tax provision regarding IRS deficiency determinations is jurisdictional. (That provision says that “[w]ithin 90 days . . . the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.” 26 U. S. C. §6213(a).) According to the Commissioner, Congress was aware of these lower court cases and expected §6330(d)(1)’s time limit to have the same effect. So, he says, the statutory backdrop resolves any doubt that might linger in the text.
The Commissioner’s argument misses the mark. The cases he cites almost all predate this Court’s effort to “bring some discipline” to the use of the term “jurisdictional.” Henderson, 562 U. S., at 435. And while this Court has been willing to treat “ ‘a long line of [Supreme] Cour[t] decisions left undisturbed by Congress’ ” as a clear indication that a requirement is jurisdictional, Fort Bend County v. Davis, 587 U. S. ___, ___ (2019) (slip op., at 6), no such “long line” of authority exists here.
So, I guess that, for now, § 6213(a)’s 90/150-day limit to
petition for redetermination of a deficiency stands as jurisdictional.
Finally, I repeat what I said when the Court accepted certiorari in Boechler (Supreme Court Grants Cert on Issue of Whether CDP 30-day Time Limit is Jurisdictional (Federal Tax Procedure 9/30/21), here:
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).
Just think of what could happen if this Court (at least its conservative majority) were to weigh in on significant tax issues as the district court did on a health issue in Health Freedom Defense Fund, Inc. v. Biden, 2022 U.S. Dist. LEXIS 71206 (M.D. Fla. 4/18/22), CL here. See On The Further Weaponization of the APA and Chevron Deference (Federal Tax Procedure Blog 4/19/22) here. (One point on the relationship of the district court opinion and Boechler, a close textualist reading is employed in both opinions, but I submit not really objectively producing the determinate outcome claimed in both opinions.) Just to be clear, I am agnostic as to whether the Supreme Court decided Boechler correctly. The benefit of the opinion is that we now have a uniform answer for § 6330(d)(1).
Added 4/25/22 9:44 am (and revised 4/29/12:00 pm):
Keith Fogg has posted a series of blogs offering arguments for why § 6213(a)’s 90/150-day limit to petition for redetermination of a deficiency may not be jurisdictional and thus may be subject to equitable tolling.
- Keith Fogg, What Happens After Boechler – Part 1: The IRS Argues IRC 6330 is Unique (Procedurally Taxing Blog 4/25/22), here.
- Keith Fogg, What Happens After Boechler – Part 2: The IRS Argues the Floodgates Will Open if the Tax Court Follows Boechler in Interpreting IRC 6213(a) (Procedurally Taxing Blog 4/26/22), here.
- Keith Fogg, What Happens After Boechler – Part 3: The IRS Argues that IRC 7459 Requires that IRC 6213(a) Treat the Time for Filing a Tax Court Petition as Jurisdictional? (Procedurally Taxing Blog 4/27/22), here.
- Keith Fogg, What Happens After Boechler – Part 4: The IRS Argues That Equitable Tolling Would Not Apply in Deficiency Cases (Procedurally Taxing Blog 4/29/22), here.
Keith cites Bryan Camp’s article New Thinking About Jurisdictional Time Periods in the Tax Code (January 21, 2019), 73 The Tax Lawyer 1 (2019), here.
I posted a comment to Keith's first blog as follows:
Does it matter on the jurisdiction issue that there are collateral consequences to timely filing a petition that should be considered if a petition filed outside the 90/150 day period is considered timely by equitable tolling? For example,
1. Can the IRS assess after the 90/150 day period when there is a possibility of equitable tolling? Reg. § 301.6213(c) seems to require assessment if the petition is not filed “within the period prescribed in section 6213(a).”
2. Does the assessment statute of limitations pick up under § 6502(a)(1) if there is a possibility of asserting equitable tolling on the original 90/150 day period?
3. Under Chevron, could the IRS provide the clear statement in a regulation? I guess this would apply to any limitations period.
And, in terms of clear statement, how does § 6213(a) differ from § 6511(a) which the Court held in Brockamp was not subject to equitable tolling, thus requiring Congress to enact § 6511(h) to permit limited equitable tolling for claims for refund?
Finally, does it matter if there are other paths to judicial review (e.g., CDP) that may be available?
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