Boechler Challenge to Tax Court Position on IRC 6213

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Hallmark Research Collective, Tax Court Dk. No. 21284-21, filed a petition on September 2, 2021, in response to a notice of deficiency. The IRS answered the case on November 10, 2021; however, the Tax Court in policing cases to determine if it had jurisdiction issued a show cause order on November 17, 2021, seeking a response from the parties regarding why it should not dismiss the case for lack of jurisdiction.

The parties responded to the show cause order and the Tax Court decided that it lacked jurisdiction because the petition in the case was filed one day late. On April 1, 2022, the Tax Court dismissed the case for lack of jurisdiction.

Yesterday, Hallmark filed a Motion to Vacate Order of Dismissal for Lack of Jurisdiction and accompanied the motion with a legal memorandum setting out in detail why IRC 6213 does not create a jurisdictional time period and why prior Tax Court precedent driving dismissal of its case should be overturned following the Supreme Court’s decision in Boechler. Hallmark also argues that the filing deadline is subject to equitable tolling, and Hallmark seeks to present evidence on that issue later in the case. Shortly after the filing of the motion, the Court issued an order giving the IRS 30 days to respond.

While the Tax Court dismisses many deficiency cases for lack of jurisdiction, Hallmark may be the first case to squarely raise the issue of jurisdiction after the Boechler decision. The legal memorandum goes into great detail to explain the reasons why the Court’s prior jurisprudence has lost its underpinnings.

The Tax Court will undoubtedly give the IRS the opportunity to agree with Hallmark before rendering a decision.  I anticipate that the Tax Court will endeavor to act swiftly because of the volume of dismissals each year and the impact of the jurisdictional decision on practice at the Court.

The legal memorandum provides an outline for others who may seek to challenge the Tax Court’s decisions regarding jurisdiction in deficiency cases and details of case dismissals in recent months in order to show the impact of the issue.


  1. Kris Whittington says

    This new 6213 challenge will be similar to the remaining arguments I face in my late filed Petition for Redetermination. I intend on using several cases including but not limiting myself to Boechler.

    As I recall Keith filed a 100 page Brief in an Order to Show Cause Tax Court case arguing equitable tolling should apply in the 6213(a) context.

  2. The Tax Court will undoubtedly give the IRS the opportunity to agree with Hallmark before rendering a decision. I anticipate that the Tax Court will endeavor to act swiftly because of:
    —the volume of dismissals each year and
    —the impact of the jurisdictional decision on practice at the Court.
    —The complete violation of taxpayers’ rights

  3. Bob Kamman says

    How far will this case go if the petitioner’s corporate status has been terminated? That, according to my search today at the California Secretary of State website. The corporation was a “domestic nonprofit mutual benefit society” incorporated in July 2012. The “inactive date” is 2/23/2021.

    Grammar is subject to equitable tolling at the Tax Court. The initial Order to Show Cause refers to “why the Court, on it’s own motion, should not dismiss this case.” The apostrophe would be acceptable in the UK, but not here. It’s (hence, “it’s”) then repeated in responses filed by both petitioner and respondent.

  4. Given that this termination happen during the pandemic, and the increase in delinquent tax returns, I’m not sure it should be assumed that Hallmark’s return was filed timely. Under California law, if a dissolved or terminated entity did not complete the required steps by failing to file a tax return before the following tax year filing deadline (April 18, 2022), then the entity would need to be revived, brought back to good standing, and then terminated again. Therefore, the entity may still be active under California law. So the capacity of this taxpayer may need to be determined under all the facts and circumstances.

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