Briefs in the Boechler Case

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The Boechler case involves the issue of whether the time period for filing a Tax Court petition in a Collection Due Process case is jurisdictional or a claims processing rule.  Last week I provided a link to the excellent brief written on behalf of the petitioner.  Also last week, the Supreme Court set the oral argument in this case for January 12, 2022.

Yesterday, seven days after the filing of the petitioner’s brief, amicus briefs were due in support of the petitioner.  Four amicus briefs were filed in support of petitioner’s position that the time period is not jurisdictional.  For those following this issue, the briefs are provided here.

The Tax Clinic at the Legal Services Center of Harvard Law School filed an amicus brief on behalf of the Center for Taxpayer Rights and the National Consumer Law Center.  This brief focuses on the issue of equitable tolling.

Skadden Arps filed a brief on behalf of Federal Tax Clinics, Legal Aid Groups and Tax Professors.  This brief argues that treating the time period as jurisdictional undermines Congressional intent and disproportionately harms low income taxpayers.

The National Taxpayer Union Foundation and National Federation of Independent Business Small Business Legal Center filed an amicus brief arguing that tax exceptionalism is an anachronism and that even if tax law is special the result should be greater tax protection through doctrines such as equitable tolling.

Regular Guest Blogger and procedural expert Lavar Taylor filed an amicus brief arguing that tax exceptionalism should not prevent equitable tolling, the IRS has argued for and received equitable tolling beneficial to it, and many statutory deadlines in the Code are amenable to equitable tolling and CDP especially so.  Lavar also spends time pointing out the impact of the lack of equitable tolling on individuals living abroad given the extremely short time for filing the petition in CDP cases and the mailing issues for those overseas.


  1. Jack Townsend says

    Is there some reason that the petitioner’s briefs in Boechler and other amici briefs do not mention tax exceptionalism but some other briefs seem to make tax exceptionalism a centerpiece of the briefs (at least in a sloganly sense)?

    On tax exceptionalism, see Alice G. Abreu and Richard K. Greenstein, Tax: Different, Not Exceptional, 71 Admin. L. Rev. 663, 701 (2019):

    While there are many ways in which tax is different from other fields of law (just as there are many ways in which contracts is different from torts), and a particular difference may call for different treatment of an issue in tax than in other areas of the law, it is the analysis of the import of the specific difference that is useful. The concept of exceptionalism adds nothing. It is an empty vessel.

    The concept of tax exceptionalism is an empty vessel even in the area where it has most flourished—the application of administrative law principles to tax.

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