Rare Suspension of Statute of Limitation Due to Continuous Absence from United States

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In Reinhart v. Commissioner the Tax Court addressed, in the CDP context, the statute of limitations provision of IRC 6503(c), which provides that “the running of the period of limitations on collection after assessment prescribed in section 6502 shall be suspended for the period during which the taxpayer is outside the United States if such period of absence is for a continuous period of at least 6 months.”  This provision does not get much play.  The case deserves attention for that fact alone but it brings along a host of other procedural issues that also deserve mention.

In this two part post, the first post will focus on the procedural issues surrounding the lien refiling and CDP lien notices. The discussion primarily raises questions because the facts here do not fit any norms for federal tax liens.  The description of what happened raises more questions than it answers but working through those questions can provide some insight into the process.  A second post will follow in order to discuss the burden of proof issue and the facts in this case as they related to proof of Ms. Reinhart’s residence and how it could have extended the statute of limitations on collection.

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As mentioned, the case raises a host of procedural issues concerning the federal tax lien and CDP. First, the IRS did not issue Ms. Reinhart a determination letter.  Rather, it issued her a decision letter.  When a taxpayer requests a CDP hearing, a timely request results in a “regular” CDP hearing with full appeal rights to the Tax Court while an untimely request for a CDP hearing – one filed more than 30 days after the issuance of the CDP notice but less one year thereafter – results in an “equivalent” hearing.  At the conclusion of a regular CDP hearing the IRS issues a determination letter giving the taxpayer the right to petition the Tax Court.  After an equivalent hearing the IRS issues a decision letter giving the taxpayer the final answer since no rights to the Tax Court exist following the decision of Appeals in an equivalent hearing

In this case Ms. Reinhart received a decision letter and she filed a Tax Court petition in response to that letter. The sending of the decision letter appears simply to have been a mistake by the settlement officer but it might have created some concern for Ms. Reinhart and her representatives since the decision letter would have contained language to the effect that the decision was final and that she could not go to Tax Court.  Nonetheless, she filed what was accepted as a timely petition and the Court, citing Craig v. Commissioner, accepted the petition as appropriate following the determination of Appeals since the parties stipulated that she had timely submitted her CDP request.

I have never had a client who received a decision letter when Appeals should have sent a determination letter. This case makes clear that going immediately to Tax Court is a valid option.  The case does not discuss what happens if the taxpayer does not go to Tax Court within 30 days after receiving the erroneous decision letter.  My research assistant could find no cases or IRS pronouncements on this issue.  If a taxpayer properly invoked the CDP procedures within 30 days of receiving the CDP Notice and Appeals mistakenly sends out a decision letter instead of a determination letter, could that taxpayer fail to file a Tax Court petition within 30 days of the decision letter and later insist on a determination letter from Appeals giving the taxpayer a ticket to Tax Court?  What is the effect of a decision letter on the running of the opportunity to go to Tax Court where Appeals should have sent a determination letter.  What is the effect of a decision letter in this circumstance on the statute of limitations on collection which is suspended during the CDP case?  Is the CDP case concluded if it should be concluded by a determination letter and no determination letter gets sent?

This case and the Craig case provide a clear answer where the taxpayer takes the improperly issued decision letter and petitions the Tax Court within 30 days. With that type of certainty available, the best advice should you have this issue is file the petition but a case will come where the wrong letter is issued and no petition is filed within 30 days thereafter.  The outcome will be interesting to observe.

The trust fund recovery penalty here arose from a company in which Ms. Reinhart had an interest and which did not pay over the trust fund taxes for the period ending June 30, 1992. The assessment occurred on July 15, 1993, and the first notice of federal tax lien was filed on July 26, 1993.  Filing a notice of federal tax lien only 11 days after making an assessment does not follow normal IRS practice in 1993 or today.  The opinion does not say why the IRS filed the notice so quickly, and it does not matter to the outcome but it does raise my interest.  Absent jeopardy or some serious concerns, I would not expect the notice of federal tax lien filing to occur so shortly after assessment.  Given the slow pace of the apparent efforts by the IRS to collect from her thereafter, this action stands in stark contrast.

Usually my curiosity on matters such as this remains unsatisfied; however, Les found an article that probably satisfies my curiosity on the unbelievably quick filing of the notice of federal tax lien and on the refiling issue discussed below. His discovery does not satisfy my curiosity about what the IRS did for 10 years following the filing of the notice of federal tax lien.  In 2009, the Department of Justice filed a civil injunction lawsuit against Ms. Reinhart, alleging that she helped individuals hide assets and income through sham trusts and corporations under the guise of asset protection planning.  The complaint noted that Ms. Reinhart operated the tax scheme from Florida and the Bahamas and during the period 2000-2005 she helped participants disguise approximately $28 million of assets and income.  The information in this article aptly explains why the IRS was paying careful attention to her when it filed the notice of federal tax lien and why it decided to take a closer look at Ms. Reinhart’s tax history and the applicable statute of limitations several years after the lien was released.

The original notice of federal tax lien filed against Ms. Reinhart occurred prior to the passage of RRA 98 and the creation of IRC 6320. At the time of this filing, she would not have received an opportunity for a hearing with Appeals.  This brings up the issue of what causes a taxpayer against whom the notice of federal tax lien was filed prior to the creation of IRC 6320 to get the opportunity to go to Appeals and that raises interesting questions about how she got her CDP opportunity.  Fortunately, the regulations shed some light on this issue.  “Under section 6320(b)(2), the taxpayer is entitled to a CDP hearing under section 6320 for each tax period with respect to the first filing of a NFTL on or after January 19, 1999, with respect to an unpaid tax, whether or not a NFTL was filed prior to January 19, 1999, for the same unpaid tax and tax period or periods.”  Treas. Reg. §301.6320-1(b)(2) (providing questions and answers).

The IRS did not refile the notice of federal tax lien within the time required by IRC 6323(g)(3)(A). Based on the assessment date reported in the opinion, I calculate the required refiling date as August 14, 2003.  The I.R.M. also supports this conclusion.  The Court states that August 14, 2002, marked the last refiling date for this notice of federal tax lien.  I cannot reconcile that date with the assessment date.  The statute provides that the IRS must refile the notice of federal tax lien during the “required refiling period” defined as “the one-year period ending 30 days after the expiration of 10 years after the date of the assessment of the tax.”  The refiling period should have opened on August 15, 2002 and ended on August 14, 2003.  The precise date does not matter in this case because the IRS did not actually refile before either date.  The failure to refile triggered the release language in the filed notice and caused the federal tax lien to cease to exist at the end of the refile period.

At some point after, apparently long after, the normal statute of limitations on collection of the TFRP liability ended, the IRS came to the realization that the Ms. Reinhart’s departure from the United States before the statute of limitations expired caused a suspension of the statute of limitations. The opinion does not say how the IRS came to that conclusion so long after the statute expired.  The awakening almost certainly resulted from the investigation linked above.

Having discovered the possibility that the statute of limitations on collections had not expired, the IRS had to deal with the fact that it had released the federal tax lien. To address this issue the IRS filed Form 12474-A, Revocation of Certificate of Release of Federal Tax Lien on or about December 30, 2010.  The filing of the revocation reinstated the federal tax lien and came after the passage of IRC 6320.  The filing of this form did not trigger the issuance of a CDP notice to Ms. Reinhart; however, revoking the release put the IRS in a position to file a new notice of federal tax lien which would be the first notice filed after 1998 for this liability.  The IRS filed the notice of federal tax lien shortly after filing the revocation and the IRS mailed the CDP lien notice on February 8, 2011.

The facts get very jumbled and suggest that the Court did not quite understand tax lien filing. The Court states as though it matters “this NFTL was not recorded in the county of petitioner’s last known address.”  Many notices of federal tax lien get recorded in a county where the taxpayer does not reside because to perfect the federal tax lien notice it must be filed in every locality where the taxpayer has property.  This is just another part of the description of this case that leaves me wondering if the Court totally understood the lien laws with which it was working.  The description here also baffles me because it says that the IRS sent a second CDP lien notice on March 14, 2011,  “(this time, in the county of petitioner’s last known address)” yet the IRS should send only one CDP lien notice per period.  If the IRS sends more than one CDP lien notice for a period, the notices sent after the first notice should not give rise to a CDP hearing or a trip to the Tax Court.  The Tax Court has opined on this issue with respect to both liens and levies.

Adding more confusion to the situation, the Court indicates that the taxpayer “timely” submitted the CDP request on April 18, 2011 – a date more than 30 days after the second CDP lien notice. How can a CDP request be submitted more than 30 days after the CDP notice?  The likely answer is that the request was postmarked prior to April 14th.  The decision does not make that clear but no one seems concerned that the IRS sent more than one CDP lien notice, and that petitioner did not respond to the first.  In a case with a very weird original notice of federal tax lien filing date and an extremely unusual revocation more than seven years after the expiration of the statute based on a rarely used statute of limitation extension provision the bizarre sending of multiple CDP lien notices followed by a very late filed CDP request keeps pushing the case toward the twilight zone.

If you ignore all of the little procedural issues, then comes the meat of the case – who has the burden of proving that the statute of limitations has held open the collection statute and what proof exists? I will discuss those issues in the next segment of this case.

 

Comments

  1. Carl Smith says:

    One question Keith posits is what happens if the IRS sends the erroneous letter that is sent after an “equivalent hearing”, when the IRS should have sent a notice of determination, and the taxpayer, relying on the language in the erroneous letter, does not petition the Tax Court for review until more than 30 days have elapsed? The Tax Court has held that the 30-day period to file a CDP appeal in the Tax Court is jurisdictional. Boyd v. Commissioner, 124 T.C. 296 (2005), aff’d, 451 F.3d 8 (1st Cir. 2006), So, the Tax Court, if it followed prior precedent, would feel obligated to throw out the case for lack of jurisdiction. In an article I wrote in Tax Notes, “Equitably Tolling Innocent Spouse and Collection Due Process Periods”, 2010 TNT 41-8 (Mar. 3, 2010), I argued that the Tax Court, in making that ruling, had failed to consider recent Supreme Court authority since 2004 that has severely cut back the use of the word “jurisdictional”. Indeed, current Supreme Court case law now holds that claims processing rules — of which times to file in court are quintessential examples — are not jurisdictional unless Congress makes very clear that it wants to, unusually, make the time period jurisdictional. See, e.g., Henderson v. Shinseki, 131 S. Ct. 1197, 1202-1203 (2011) (120-day time period to file in the Article I Ct. of Appeals for Veterans Claims held not jurisdictional). I believe that, under a proper analysis of current Supreme Court case law outside tax, a court of appeals would today hold that the 30-day period to file in the Tax Court was not jurisdictional and, further, that the period could be equitably tolled by the IRS’ misleading behavior in sending the wrong notice saying no appeal was possible.

    I would encourage anyone who wants to litigate this issue to do so, and I would be happy to help. If the Tax Court follows its precedent and dismisses the case for lack of jurisdiction, consider a trip to the appropriate court of appeals (which may be the D.C. Cir., if the case does not involve the underlying tax liability; see Byers v. Commissioner, 740 F.3d 668 (D.C. Cir. 2014))

    • As for the main post, the IRS should not prevail in a case “where the wrong letter is issued and no petition is filed within 30 days thereafter.” That’s because if the wrong letter is issued, then the CDP hearing has yet to conclude. Accordingly, no determination “under this section” [6320, 6330] has been made. At least that is what the Treasury Regulations say.

      Craig would not save the IRS. I must confess I have never liked Craig. Rather than treat a Decision Letter as a Notice of Determination, Craig should have dismissed the case for lack of jurisdiction–but on the ground that Appeals had not issued the proper determination notice.

      In any event, Appeals is bound to follow Treasury regulations. If those regulations say Appeals will issue a Notice of Determination, which they do, then that is the notice Appeals must send. If it does not do so, then it has yet to make a statutory determination.

  2. Reluctantly, I must disagree with another Carl Smith argument. Unlike him, I can’t imagine how any court would hold the 30-day Collection Due Process judicial appeal deadline as anything but jurisdictional.

    Yes, the Henderson v. Shinseki U.S. Supreme Court case did hold that the 120-day period to file an appeal to another Article I court, the Court of Appeals for Veterans Claims, is not jurisdictional. But Carl admits that the Supreme Court will look for Congress’s intent that the appeal statute at issue is jurisdictional. Although the Court did not find that intent in Henderson, it would easily find it in a CDP appeal case.

    Compare:

    “In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.” 38 U.S.C. § 7266(a).

    with

    “The person may, within 30 days of a determination under this section, appeal such determination to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter).” 26 U.S.C. § 6330(d)(2)(1).

    According to the Supreme Court, the first statute quoted above “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [Veterans Court].” Henderson at 1204 (citing and quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). Henderson therefore found “no clear indication that Congress wanted that [statute] to be treated as having jurisdictional attributes.” Id. at 1205.

    Would the Supreme Court say the same about 6330(d)(2)? In a parenthetical phrase that immediately follows that statute’s 30-day appeal language, Congress expressly vests jurisdiction in the Tax Court. For good measure, in 6330(e)(1), Congress vests the Tax Court with authority to enjoin an unlawful collection action–but only if “a timely appeal has been filed under subsection (d)(1).”

    I don’t see how this is even a close question.

    • Carl Smith says:

      Jason,

      I don’t want to get into a discussion of all the other Supreme Court cases, but simply having the word “jurisdiction” in a parenthetical near the time period I don’t think is enough to prove Congress meant the time period to be jurisdictional (although the Supreme Court has never decided an exactly similar case). The Supreme Court has held that mere proximity of the time period to the words “jurisdiction” (say, within the same sentence, but a different subparagraph) is not enough to make a time period Jurisdictional. See, e.g. Gonzalez v. Thaler, 132 S. Ct. 641, 651 (2012) (“In characterizing certain requirements as nonjurisdictional, we have on occasion observed their ‘”separat[ion]'” from jurisdictional provisions. E.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, ___, 130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010)); Arbaugh, 546 U.S., at 515, 126 S. Ct. 1235, 163 L. Ed. 2d 1097. The converse, however, is not necessarily true: Mere proximity will not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle.”); Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817, 825 (2013) (“A requirement we would otherwise classify as nonjurisdictional . . . does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions.”). The statute’s language is also far less emphatic about the time period than other statutes of limitations that have been held not to be jurisdictional by the Supreme Court. In the FTCA cases before the Supreme Court (to be heard on Dec. 10), the en banc 9th Cir., held that a statute that said that a person who did not file in a certain period would be “forever barred” was also not jurisdictional.

      • Carl,

        Here are a few additional considerations regarding your “non-jurisdictional” argument as applied to the 30-day CDP appeal:

        1. Tellingly, the Tax Court has continually described its jurisdiction in CDP cases as those that include both a valid notice of determination and a “timely petition for review.” By “timely,” the Tax Court never intimated that a petition could be considered timely filed after the 30-day statutory period;

        2. Before 2006, one could appeal an adverse CDP ruling to either the Tax Court or to a District Court. If he appealed to “the wrong court,” however, the law said he had 30 additional days in which to appeal to “the correct court.” Sometimes, though, CDP petitioners or plaintiffs would not meet that second 30-day deadline. And in several of those cases, the Notice of Determination had misled the taxpayer to appeal to “the wrong court.” The result? The “correct court” (which included numerous district courts) dismissed the case for lack of jurisdiction because the second statutory filing was untimely;

        3. If 6330(d)(1) is a mere non-jurisdictional claims-processing rule, what then becomes of 6330(e)(1), which suspends several statutes of limitation “for the period during which such hearing, and appeals therein, are PENDING”?; and

        4. Even if you are technically correct (which I still don’t believe that you are), your argument will fail simply because the case involves tax collection. Any court would hold that a delinquent taxpayer does not enjoy the same (for lack of a better word) sympathetic status as does a veteran’s benefits claimant, a Social Security benefits claimant, or even a death row inmate.

        Instead, you would receive an opinion that thunders about fundamental tax collection principles. You know, taxes are the lifeblood of government; their prompt and assured collection is therefore of utmost importance. Also, the taxpayer is fortunate to have the CDP provisions, which he did not have for a few centuries. And in light of those principles and that history, Congress could not have intended that the 30-day CDP appeal period be turned into an open-ended shield against the tax collection.

        Ad nauseum and case dismissed.

  3. Coincidentally, today the Tax Court decided a case where I think Carl Smith’s non-jurisdictional 30-day CDP period argument SHOULD apply.

    In Ziegler v. Commissioner, docket No. 26774-12 L, the petitioner lost a CDP case by summary judgment. Generally, that outcome is common–but the grounds for that summary judgment are rare.

    Unlike Carl’s would-be petitioner, Mr. Ziegler timely filed his Tax Court petition. And, yes, the Office of Appeals issued a Notice of Determination. The problem: Mr. Ziegler was one day late in filing his CDP hearing request.

    After the case was at issue, the IRS moved to dismiss for lack of jurisdiction. But the Tax Court denied that motion, citing Kim v. Commissioner, T.C. Memo 2005-96.
    The Tax Court, however, then granted the IRS’s subsequent summary judgment motion because…Ziegler did not timely file his CDP hearing request. That was the same action the Tax Court had taken in Kim.

    I had not remembered Kim, but I don’t like either it or Ziegler. How can the Tax Court claim jurisdiction to review Appeals’ determination made “under this section,” but then award summary judgment to the IRS because the CDP hearing was untimely under the same section?

    Carl, I’m with you if your argument would extend to and include cases such as Kim and Ziegler.

    • Carl Smith says:

      Jason,

      I don’t want to litigate the case of the 30-day period to file in the Tax Court here. You make some good points, but I could also make a few points going the other way.

      I will say that the idea that you can’t equitably toll any time period in tax collection (an idea that comes to DOJ briefs from a toss-off incorrect comment in the Supreme Court’s Brockamp opinion from 1997 that taxes are not normally subject to equitable exceptions) is about to take a big blow — an even bigger one that its rejection in dicta by Judge Posner in Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572, 577 (7th Cir. 1999) (“The government asks us, on the authority of Brockamp, to broaden the exception to cover the entire tax code. But Brockamp is not broadly written.”; case involved 90-day period in which to file a Tax Court declaratory judgment proceeding under 7476). I have blogged here before about the 9th Cir. Volicelli v. U.S. wrongful levy case. In that case, the plaintiff was 10 when the IRS took his college money for his dad’s tax debts. When the plaintiff turned 18 and could finally bring suit on his own behalf, the DOJ argued that his suit was untimely because the 9-month period to file a wrongful levy suit at 6532(c) is jurisdictional, and even if it is not, citing Brockamp, it is not subject to equitable tolling during the period of the plaintiff’s minority when he could not act. On Oct. 7, the 9th Cir. heard oral argument, and it is clear (you can listen to the argument) that the 9th Cir. will rule for the plaintiff and remand for an inquiry into whether the actual (not simply alleged) facts justify tolling in that case. You can hear two judges state that they find Brockamp totally distinguishable, with the only overlap between Brockamp (involving 6511) and 6532(c) (involved in Volpicelli) being that they are in the tax code, which the judges clearly did not think enough of a justification to make 6532(c)’s time period either jurisdictional or not subject to tolling. I expect the SG to ask for cert., since the 3d Cir. has ruled the other way. So, in the Oct. 2015 Term of SCOTUS we may get an answer to your assertion that nothing involving tax collection can be subject to equitable tolling.

      BTW, I think the argument for tolling the wrongful levy statute of limitations is a bit easier than being able to toll the 30-day period to file a Tax Court CDP appeal, since the jurisdictional grant for wrongful levy suits is at 7426 and 28 usc 1346 — more clearly not at 6532(c) — but, as you point out, the parenthetical grant of Tax Court CDP appeal jurisdiction is right next to the time period in 6330(d)(1). My prior post indicates why I don’t think this is fatal, but it makes for a harder argument for tolling the 30-day period to file in the Tax Court.

      As to the 30-day period in which to request a CDP hearing, I have commented before on another blog post about how the legislative history of CDP actually includes a sentence saying that if a person did not receive an NOIL, then the person can (apparently belatedly) ask for a CDP hearing, and collection should be stopped and a hearing should be afforded (presumably a real CDP hearing, not an equivalent hearing that does not stop collection ). That is one example of Congress suggesting that at least the 30-day period to request a CDP hearing is not rigid, but flexible. It has always disappointed me that the Tax Court has never cited this sentence in one of its opinions.

  4. Carl Smith says:

    A further thought: I know that people have seen me argue for the non-jurisdictional status of various Code time periods and, as well, for their ability to be equitably tolled. I don’t want people to think that I believe that all time periods in the Code are non-jurisdictional and that all non-jurisdictional time periods in the Code are also tollable. It is simply that, in light of recent (i.e., last decade’s-worth of) non-tax Supreme Court case law putting a rebuttable presumption in favor of time periods not being jurisdictional and because of the presumption in favor of tolling of non-jurisdictional time periods established in Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990), the courts today — both the Tax Court and the courts of appeals — have a duty to reexamine holdings on these issues that may have been issued in earlier times.

    Let me give an example of a time period in the Code that I feel is jurisdictional and not subject to tolling. (I used this example a few years ago in a Tax Notes article.) When the Tax Court’s predecessor, the Board of Tax Appeals (BTA), was created in 1924, the jurisdiction of the BTA was essentially limited to redeterminng deficiencies and transferee liability. It is clear from the legislative history (both in 1924 and in 1926, when Congress made appeals from the BTA go to courts of appeals and for the first time gave res judicata status to BTA rulings) that Congress intended that a person who did not file in the BTA, or who did not file a timely petition there, could still use the alternative, pre-existing way of contesting deficiencies by paying them, filing a refund claim, and, if the claim was not granted, suing in district court.

    The current provision of the Tax Court’s deficiency jurisdiction is at 6213(a) — largely identical to BTA provisions. The Tax Court has long held that failure to file a deficiency petition in 90 (or, if applicable, 150) days constitutes a jurisdictional defect and thus that no equitable exceptions for late-filing can be admitted. While I no longer accept the reasoning of the Tax Court’s rulings — which are predicated on an outdated (since Irwin and other cases) view of waivers of sovereign immunity — when I apply the reasoning of current Supreme Court case law on jurisdiction, I reach the same result.

    I need not get into whether the words of 6213(a) alone, under current case law, indicate that Congress intended the 90 and 150-day periods to be jurisdictional because there is another provision of the Code that would frustrate Congress’ original intention about how the Tax Court and district courts should operate if the period were held non-jurisdictional: 7459(d). That subsection states:

    “If a petition for a redetermination of a deficiency has been filed by the taxpayer, a decision of the Tax Court dismissing the proceeding shall be considered as its decision that the deficiency is the amount determined by the Secretary. An order specifying such amount shall be entered in the records of the Tax Court . . . unless the dismissal is for lack of jurisdiction.”

    Assume a taxpayer filed a late Tax Court petition under 6213(a) for which there were no factual excuses for applying equitable tolling, even if tolling were allowable. If it were to be held that 6213(a) is not jurisdictional, then any holding by the Tax Court that the filing was too late would be required by 7459(d) to be accompanied by an order (decision) upholding the correctness of the proposed deficiency. This would have res judicata effect, and a taxpayer could not then take the alternative route of filing a suit for refund in district court. It is the legislative history of 6213(a)’s predecessors, coupled with 7549(d), that leads me to conclude that Congress specifically did not intend the usual non-jurisdictional status of filing deadlines to apply to 6213(a).

    The Supreme Court has also recently held (e.g., in John R. Sand & Gravel Co. in 2008) that it will follow, on stare decisis grounds only, repeated holdings by itself over a long period of time (perhaps over a hundred years) that a time provision was jurisdictional — even where the Supreme Court, if writing on a clean slate today, would hold otherwise. This is rationalized by the Court on Congress for a long period likely operating under that interpretation in drafting subsequent laws for the tribunal involved.

    The Supreme Court has only ever called one time period in the Tax Code “jurisdictional”: In 1990 in Dalm, in the Term right before it adopted the Irwin presumption in favor of tolling, it called the 6511(a) timely filing of refund claim periods jurisdictional. The Supreme Court has recently warned not to follow its prior toss-off callings of certain time periods jurisdictional (what the Court today calls its “drive-by jurisdictional rulings”). Clearly the Supreme Court did not take the jurisdictional statement in Dalm seriously, for in Brockamp (in 1997), the Court did not even mention Dalm (or the word “jurisdiction”) and went to great length in explaining how the Irwin presumption, if it applied to 6511, was rebutted. If the Court had considered Dalm to have resolved the jurisdictional question, Brockamp could have been one sentence long: “Since jurisdictional time periods can never be equitably tolled, and we called the 6511(a) time periods jurisdictional in Dalm, there can never be tolling of the 6511(a) time periods.”

    All I ask is for the courts, applying current Supreme Court case law, to revisit any holdings that a Tax Code time period is “jurisdictional” or that it is non-jurisdictional, but still not subject to tolling. Not all prior holdings would be reversed, though all would come down on different reasoning. It is my hope that the 9th Cir. opinion in Volpicelli starts this trend by looking at recent Supreme Court non-tax case law and that other courts (including the Tax Court) take it up. Of course, if Volpicelli is heard later by the Supreme Court and comes out holding 6532(c) non-jurisdictional and subject to tolling (as I expect it will under current Court precedents), then I doubt that I will have to urge anyone to reconsider past Tax Code jurisdictional and equitable tolling rulings. Everyone will know to do so without my suggestion.

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