6th Circuit Joins 2nd and 3rd Circuits in Holding § 6213(a)’s 90--day Petition-Filing Deadline is Not Jurisdictional (8/25/25; 9/8/25)

In Oquendo v. Commissioner, ___ F.4th ___ (6th Cir. 8/25/25) (CA6 here, TN here, and GS here [to come]), the panel held unanimously that § 6213(a)’s 90-day petition-filing deadline was not jurisdictional and is thus subject to equitable tolling; so finding the panel remanded to the Tax Court to consider Oquendo’s entitlement to equitable tolling. The holding is consistent with prior decisions by the Second Circuit and the Third Circuit. Buller v. Commissioner, ___ F.4th ___ (2d Cir. 8/13/25); and Culp v. Commissioner,  75 F.4th 196 (3rd Cir. 2023), cert. den. ___ U.S. ___, ___ S.Ct. ___, 2024 U.S. LEXIS 2725 (Federal Tax Procedure Blog 2024). See Second Circuit Allows Possible Equitable Tolling for 90-day Petition for Redetermination of Deficiency (Federal Tax Procedure Blog 8/14/25), here (discussing Buller and Culp). The Supreme Court denied the Commissioner’s petition for cert in Culp; as I said in the blog on Buller, I doubt that the Government would file a petition for cert with two losses and no wins in the Courts of Appeals; now there is three losses and no wins.

JAT Comments: 

1. I suspect that the issue will not go to the Supreme Court before an actual conflict develops in the Courts of Appeals and then, of course, it would be the taxpayer petitioning for cert.

2. More likely, now with three losses, I suspect that the Tax Court will reconsider its position that § 6213(a)’s 90-day petition-filing deadline is jurisdictional. There should be cases in the pipeline that will permit the Tax Court to do that expeditiously if it wants to act expeditiously.

3. Moreover, I suspect that the Tax Court may relax its sparing approach to finding a taxpayer can satisfy the requirements for equitable tolling; if the Tax Court does not, the Courts of Appeals may intervene as these cases are appealed. On the Tax Court’s sparing approach to finding equitable tolling, see the blog cited above, quoting from the Federal Tax Procedure Book Editions.

4. (Added 9/8/25 @ 2:15pm): I note to readers an excellent article on the Buller and Oquendo appellate decisions. Robert S. Horwitz, With Strikes in the Third and Now the Second and Sixth Circuits, Will the Commissioner Admit He Is Out on the Claim that the 90-Day Deadline for Filing a Tax Court Petition Is Jurisdictional? (Tax Litigator 9/8/25), here. (Note that there are references to §6713(a) that should be to §6713(a), but readers can quickly adjust to that and read the excellent article.)

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.

Tax Court Holds that § 6213(a) Time Deadline for Petitions for Redetermination Is Jurisdictional, Thus Not Subject to Equitable Relief (12/13/22)

I have not yet written on Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022)  (unanimous reviewed opinion), TCPamphlet here & GS here.

The holding is that the § 6213(a) 90-day / 150-day period for petitions to redetermine deficiencies is jurisdictional, meaning that there is no equitable relief to file out-of-time petitions. I won’t analyze the holding because the opinion speaks for itself and makes, perhaps, the best case for the holding. (That is not a statement that it is a correct holding.) The issue was whether § 6213(a) was subject to the recent trend to treat time statutory time deadlines as claims processing rules rather than jurisdictional requirements (meaning must be met). The most relevant and recent iteration is Boechler, P.C. v. Commissioner, 142 S. Ct. 1493 (2022), where the Court held that the § 6330(d)(1) 30-day CDP deadline was not jurisdictional, thus subject to equitable relief.

Readers interested in this area of law have already seen several, perhaps many, comments on the Hallmark holding. I don’t think I have anything to add to those commentaries. Perhaps the longest and strongest criticism of the Hallmark opinion is in a series of posts by Carl Smith on the Procedurally Taxing Blog titled What’s Wrong with the Tax Court’s Hallmark Opinion: Part 1 ….., here (I think there are more Parts to come, but the link is a search link and should pick up the later Parts). 

I am agnostic as to the resolution of the issue of whether the § 6213(a) deadline must be met (jurisdictional) or not (claims processing subject to equitable relief). However, I do note that there are some consequences if that particular deadline is deemed to be claims processing rather than jurisdictional that should be considered given the collateral provisions (such as statute of limitations suspension while the taxpayer can file a petition, etc.); I am not sure they have been fully dealt with in the Hallmark opinion, perhaps because the Court held that the deadline was jurisdictional; still they should be considered as perhaps reasons that the deadline must be jurisdictional in order to make the parts of the superstructure work.

D.C. Circuit Holds Equitable Tolling May Apply to Time Limit in Whistleblower Case (7/4/19)

In Myers v. Commissioner, ___ F.3d ___, 2019 U.S. App. LEXIS 19757 (D.C. Cir. 2019), here, the Court applied the jurisdictional/nonjurisdictional distinction to determine that the time period in § 7623(b)(4) to petition the Tax Court with respect to an IRS whistleblower determination is nonjurisdictional, thus allowing the potential for equitable tolling of the time period.  The Court of Appeals remanded the case to the Tax Court to determine whether equitable tolling applied.  (See also Carlton Smith (Guest Blogger), D.C. Circuit Holds Tax Court Whistleblower Award Filing Deadline Not Jurisdictional and Subject to Equitable tolling (Procedurally Taxing 7/3/19), here.

Based on Myers, I have just revised the section of my tax Federal Tax Procedure book working draft and offer it here.  (I remind readers that the next updated version of the book will by in early August.)  Here is the revised discussion of equitable tolling (without footnotes, although I do offer the text and footnotes in a pdf available here, but do caution readers that the quote has been "cleaned up" which I note in the footnote in the pdf version):

VII. Smoothing the Harsh Effects of Statutes of Limitation.

* * * *

C.  General Equitable Principles (Herein of Jurisdictional/Nonjurisdictional).

The Code’s time limits (often called statutes of limitations) are classified for some purposes as either jurisdictional or nonjurisdictional.  This issue is presented for time limits throughout federal law, including applications of time limit in the Code. In the tax context, this distinction has been in issue most importantly where there are time limits for a taxpayer to obtain court review of IRS action (such as the 90-day period to petition for redetermination of a notice of deficiency or the periods for filing claims or suits for refund).  The question is how rigid the time limits are.  If the time limits are rigid time limits that must be met without exception, they are called jurisdictional because failure to meet the time limit will deprive a court of “jurisdiction” to consider the dispute between the taxpayer and the IRS.  By contrast, if a time limit is nonjurisdictional, it may not be quite so rigid, and may permit relief by way of “tolling” or suspending the time limit in certain cases.  Ultimately, the question the distinction is based upon the court’s interpretation of the time limit (both the text and the context) as evidencing Congress’s choice that the time limit to be rigid or, alternatively, to permit some tolling or suspension of the time limit based on traditional equitable considerations.

In a tax case in 2019, The D.C. Circuit explained:

The Supreme Court in recent years has pressed a stricter distinction between truly jurisdictional rules, which govern a court's adjudicatory authority, and nonjurisdictional claim-processing rules, which do not.  Key to our present decision, the Court has made plain that most time bars are nonjurisdictional; they are quintessential claim-processing rules which seek to promote the orderly progress of litigation, but do not deprive a court of authority to hear a case.  Therefore, although the Congress is free to attach the jurisdictional label to a rule that we would prefer to call a claim-processing rule, we treat a time bar as jurisdictional only if Congress has clearly stated as much.  The Supreme Court has explained that this clear statement requirement is satisfied only if the statute expressly refers to subject-matter jurisdiction or speaks in jurisdictional terms. It is not enough, for instance, that a statute uses mandatory language.

The issue of jurisdictional/nonjurisdictional as to when the Code’s time limits must be met or might be tolled or suspended based on equitable considerations is not fully fleshed out.  As noted in the quote above, the Supreme Court “in recent years” began pressing a stricter distinction; that process of pressing the distinction generally has resulted in many time limits throughout the law to be nonjurisdictional so that rigid compliance is not required.  As with much of federal law, most of the time limits in the Code were adopted at a time before the jurisdictional/nonjurisdictional distinction became prominent, so Congress did not make its “intent” clear as to whether the time limit is to be rigid or not.  The courts thus have to consider closely the text and context, the statutory language and its context in the tax system involving millions of taxpayers where, at least in some cases, not imposing rigid time limits could impose its own inequities and impose unacceptable administrative burdens on the IRS.