2022 Year in Review – Jurisdiction to Litigate Your Tax Dispute

2022 saw much litigation regarding the jurisdiction of courts to hear a tax case.  The biggest case regarding Tax Court jurisdiction during 2022 was obviously Boechler v. Commissioner, 142 S. Ct. 1493 (2022).  While the IRS and the Tax Court interpret the opinion narrowly, the full impact of Boechler remains to be seen.  This post will discuss several cases pending where the taxpayer argues that Boechler makes a difference.  In many ways this year end post is another in the series of post-Boechler updates provided by Carl Smith.  Earlier posts by Carl can be found here, here, here and here.


CDP Determination

While Boechler determined that the time period for filing a CDP petition in Tax Court is not a jurisdictional time period and that a petitioner filing late has the opportunity to demonstrate equitable tolling, we have argued consistently that equitable tolling cases will be few while the IRS failure to raise the timeliness of the petition could provide the more common path to move forward in the Tax Court case.  See the post here discussing an order in a case in which the IRS failed to raise timeliness allowing the petitioner to move forward with the Tax Court litigation.

In Boechler, the Supreme Court carefully looked at the language of IRC 6330 to determine if it contained a clear statement from Congress that the 30-day period within which to file a CDP petition in Tax Court was a jurisdictional requirement.  In finding that Congress had not made a clear statement, the Supreme Court also rejected several other arguments the IRS made.  The arguments not focused on the specific language of IRC 6330 become the most important parts of the decision as the Boechler decision applies to other bases for Tax Court jurisdiction.

The next issue for CDP, and also whistleblower, determination cases will involve cases setting out the Tax Court view of equitable tolling.  While there is a sizable body of case law on equitable tolling in other courts, the CDP cases will offer the Tax Court its chance to make equitable tolling decisions in the context of Tax Court filings.

Editorial Interlude Regarding Jurisdiction

At a recent conference a high-ranking member of Chief Counsel’s Office criticized the bringing of litigation regarding jurisdiction because it impedes administration of the tax laws.  I find this view totally off base.  Taxpayers like Ms. Castillo (scroll to middle of post for discussion), like the individuals described in Carl’s blog post here, and like many others we have encountered, are routinely denied access to Court due to circumstances that qualify for equitable tolling.  While audit reconsideration or offers in compromise provide some relief for these individuals, these remedies remain imperfect.  One client I represent with extremely sympathetic circumstances was recently denied audit reconsideration because the IRS unit considering the request simply did not understand the litigation giving rise to the wrongful imposition of tax on her as a 13-year-old victim of a heinous crime.  After Boechler, the IRS conceded Ms. Castillo’s case in full something it declined to do in the absence of a pathway to court where it would be embarrassed.  In my view it takes a lot of hubris to suggest that as the lawyer for clients who missed their chance to go to court for good reasons, I should not pursue avenues for relief for my clients that the Supreme Court has created because doing so might make administration of the laws more difficult for the IRS.

CDP Request

In addition to the 30-day deadline to file a petition in Tax Court following a CDP determination, the code provides a 30-day deadline at IRC 6330(a)(3)(B) within which to request a CDP hearing.  The question exists whether this time period creates a jurisdictional barrier to obtaining a CDP hearing and whether, even if it does not impose a jurisdictional barrier, whether the time period can be extended by equitable tolling.  The issue is currently pending in Organic Cannabis Foundation v. Commissioner, Dk. No. 381-22L before Judge Goeke.  This is a separate case from the Organic Cannabis deficiency case which the Ninth Circuit, decided pre-Boechler.  Carl Smith wrote about this case, and one other also assigned to Judge Goeke, here.  The IRS filed a motion to dismiss the Organic Cannabis case back on February 25, 2022, based on lack of jurisdiction because of the late filing.  After Boechler, it argued that Boechler had no impact on this 30 day period (a consistent theme of the IRS view of Boechler in any circumstance.)

Petitioner filed a response to the motion to dismiss arguing, inter alia, that Boechler applies to make this time frame non-jurisdictional and that equitable tolling applies.  On October 31, the IRS replied disagreeing that equitable tolling applies and making ambiguous statements regarding its application to the jurisdictional question:

Sections 6320(a)(3)(B) and 6330(a)(3)(B) of the Internal Revenue Code give taxpayers 30 days to request a CDP hearing. These time limits are fixed. Although they may not be jurisdictional—neither provision speaks to a court’s adjudicatory authority or plainly shows that they are imbued with jurisdictional consequences, see Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1497 (2022) —the time limits are not malleable.

In an order dated November 14, 2022, the Tax Court finds that despite the IRS view the Boechler has no impact on this question Boechler does matter in this situation:

Respondent argues that Boechler does not apply. Boechler did not expressly address the 30-day period for requesting a CDP hearing. However, the Court believes that the concepts discussed therein may equally apply to the 30-day period for submitting a CDP hearing request. Accordingly, we will provide petitioner with an opportunity to respond to the arguments raised by respondent in his Response with respect to whether the doctrine of equitable tolling should apply to administrative hearing requests ….

The order directs petitioner to file by January 10, 2023:

a memorandum regarding the application of Boechler to the facts of this case and to address whether “determination” includes the result of an equivalent hearing when the doctrine of equitable tolling would have required respondent to apply the CDP hearing procedures for a timely administrative hearing request.

The Tax Clinic at the Legal Services Center of Harvard Law School will move for leave to file an amicus brief in support of petitioner’s arguments.  The IRS has notified the clinic of its objection to the filing of an amicus brief by the clinic.

 In a similar CDP request filing deadline case of All Is Well Homecare Service LLC, Docket No. 21210-19L, on December 15, 2022, Judge Gustafson ordered the parties to respond seriatim (IRS by Jan. 20. 2023; taxpayer by Feb. 17, 2023) “as to . . .  whether the deadline of section 6320(a)(3)(B) is subject to equitable tolling, and if so, . . .  the standards IRS Appeals should use in determining whether tolling applies in a given case and the standard by which the Tax Court should review such a determination by IRS Appeals.”


After the Boechler decision, the Tax Court took a hard look at its deficiency jurisdiction to decide if the Supreme Court’s decision in Boechler might impact its longstanding interpretation of the statutes granting it deficiency jurisdiction.  It promulgated an opinion in Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (11/29/22),  in which it decided 17-0 that the Boechler decision did not impact its prior interpretation of deficiency jurisdiction that the time period for filing a Tax Court petition is a jurisdictional time frame.  The decision in Hallmark follows in form its decision in Guralnik v. Commissioner, 146 T.C. 230 (2016) in which the Court convened in conference to decide, 17-0, that the time period for filing a CDP petition was a jurisdictional time period. 

As mentioned above, Carl Smith recently wrote an eight-part series of posts analyzing the Hallmark decision.  No further explanation of the decision is necessary here.  While awaiting the Hallmark decision the Tax Court suspended the dismissal of deficiency cases from the beginning of May until November 29.  It has since been issuing dismissals at a decent clip since the decision came out in order to clear out the backlog.  Anna Gooch, from the Center for Taxpayer Rights, Carl and I are reviewing the dismissals as they come out to identify appropriate candidates for appeal. 

The Culp v. Commissioner case, discussed in Carl’s earlier blog posts, is still pending in the 3d Circuit, possibly awaiting oral argument.  In the 11th Cir. in a non-precedential order in Allen v. Commissioner, the court granted a DOJ motion for summary affirmance attached here.  The order basically states that the 11th Circuit is bound by prior precedent in that circuit.  The court states that it does not think anything in Boechler requires the overruling of that precedent.  DOJ filed the same motion in the Culp case and the 3d Circuit denied the motion even though it had essentially the same old circuit precedent that exists in the 11th Circuit.  In both instances the precedent pre-dates the Supreme Court’s pivot in 2004 to require a clear statement in the absence of prior Supreme Court precedent in order for a time period to be a jurisdictional time period.  Any appeal of this issue will undoubtedly face a similar motion in circuits where prior precedent on Tax Court jurisdiction exists.  The only circuits with post-2004 precedent addressing this issue are the 7th and 9th Circuits.  The circuits which seem to have no prior precedential decisions on this issue, either before or after 2004, are the 1st and 4th Circuits.

Innocent Spouse

In his last update on post-Boechler litigation, Carl briefly mentioned Frutiger v. Commissioner, Dk. No. 31153-21, a case in which Judge Buch requested amicus briefs on behalf of the petitioner.  The Tax Clinic at the Legal Services Center wrote an amicus brief for the Center for Taxpayer Rights and filed it on November 18.  A copy of the brief is available here.  The IRS filed a response here.  I don’t mean to be pessimistic, but a 17-0 decision would not surprise me given the Hallmark outcome.

In addition to Frutiger, the issue is pending before Judge Buch in the case of Leach v. Commissioner, Dk. No. 3197-22 and before Special Trial Judge Landy in the case of Doyle v. Commissioner, Dk. No. 28458-21S.

Rule 13(c)

Despite the Boechler opinion clearly stating that the time period for filing a CDP petition is not a jurisdictional time period and the opinion of the DC Circuit in Myers v. Commissioner, 928 F.3d 1025, a controlling opinion under the Golsen rule because of appellate venue, stating the same thing with respect to whistleblower cases, the Tax Court clings to the inaccurate statement in its rules that time periods for filing petitions are jurisdictional.  Rules should provide procedures for handling cases in court and not inaccurate and therefore misleading statements of the law.  In ignoring prior calls to remove or amend this Rule, it stands as a sentinel to the Tax Court’s legacy view of jurisdiction.  Sorry to be snarky about this, but I cannot understand why this rule is still in existence in its current form.

Refund Cases

A series of cases in the Court of Federal Claims and the Federal Circuit have examined issues of jurisdiction in the refund context.  Much of the litigation on these cases occurred in 2021 but it continued into 2022.  You can find post discussing the issues raised here and, in a more favorable opinion, here.

A new tactic by the Department of Justice in knocking out financial disability cases, discussed here, raises issues of jurisdiction as pro se petitioners stumbling to find their way and usually impaired by the condition giving rise to the claim for financial disability continue to lose these cases and now lose them out of the gate if they did not follow the draconian procedures of Rev. Proc. 99-21.

Second Appellate Case on Whether IRC 6213(a)’s Deadline is Still Jurisdictional and First Tax Court Case Involving IRC 6015(e)(1)(A)

It has been six months since Boechler was decided.  Where are we?

In my last post of August 1, 2022, giving an update onlitigation over whether the 90-day deadline in IRC 6213(a) in which to file a Tax Court deficiency petition is, after Boechler, still jurisdictional or is subject to equitable tolling, I noted two principal test cases:  First, the Tax Court is considering the issue in Hallmark Research Collective v. Commissioner, Tax Ct. Docket No. 21284-21, and I expect a ruling from the Tax Court therein probably around Christmas.  Second, the Third Circuit is considering the issue in Culp v. Commissioner, 3d Cir. Docket No. 22-1789, where I expect a ruling next spring.

Since my last post, another appellate case under IRC 6213(a) has surfaced, Allen v. Commissioner, 11th Cir. Docket No. 22-12537. 

And in Frutiger v. Commissioner, Tax Court Docket No. 31153-21 – a case mentioned by Chief Special Trial Judge Carluzzo at the recent ABA Tax Section meeting – the Tax Court will likely decide whether, after Boechler, the 90-day deadline in IRC 6015(e)(1)(A) to file a stand-alone innocent spouse petition is still jurisdictional and not subject to equitable tolling.

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Allen, like the Culps, is a semi-retired non-tax attorney.  Under the IRC 7508A(a) COVID extension set out in Notice 2020-23, the due date for Allen to file his Tax Court deficiency petition was July 15, 2020.  On the due date, he went late in the day to the post office, but the line was unusually long (including 6-foot spacing) and stretched outside the building.  As he waited in line, a post office employee walked up and down it trying to triage the most important filings.  The employee spoke to Allen, who explained that he needed to send the envelope containing the notice certified mail so that it would be postmarked July 15, 2020. The employee thought the post office might close before Allen got up to the window, and the employee persuaded Allen to simply drop the envelope into a slot for regular mail, assuring Allen that the envelope would be postmarked July 15, 2020.  Naturally, the envelope arrived at the Tax Court postmarked July 16, 2020.

The IRS moved to dismiss Allen’s petition for lack of jurisdiction.  In an order dated April 29, 2022, the Tax Court granted the motion.  The dismissal for lack of jurisdiction occurred eight days after the Supreme Court decided Boechler and seven days before the Tax Court suspended ruling on these kinds of motions in deficiency cases, pending the Hallmark ruling.  Allen appealed pro se to the Eleventh Circuit, arguing that, after Boechler, the deficiency petition filing deadline is no longer jurisdictional and is subject to equitable tolling.  Allen argues that both the unusual COVID situation and the actions of the USPS employee caused the late filing.

In the Culp case, the DOJ moved for summary affirmance, but the Third Circuit denied that motion.  In my August 1, 2022 post, I linked to the taxpayers’ subsequent opening brief in Culp.  Since then, the DOJ has filed its Culp opening brief, which you can find here.

In Allen, the DOJ also moved for summary affirmance.  All of the filings are in on that motion since October 6, 2022, and we are awaiting the Eleventh Circuit’s ruling on that motion.

Just as it had done in Culp, the Center for Taxpayer Rights, represented by the Tax Clinic at the Legal Services of Harvard Law School, hopes to file an amicus brief in Allen if the case survives the motion for summary affirmance.

The third biggest jurisdiction of the Tax Court by volume is stand-alone innocent spouse cases.  That jurisdiction now has its own test case pending on whether the IRC 6015(e)(1)(A) 90-day filing deadline is still jurisdictional after Boechler.  The case is Frutiger v. Commissioner, Tax Court Docket No. 31153-21, involving relief for only about $4,000 of liability under subsection (f).  The case was on the eve of trial indeed, the IRS had already filed its pretrial memo – when Judge Buch noticed that the pro se taxpayer’s petition appeared to be mailed to the Tax Court two days late.  In an order dated September 7, 2022, Judge Buch continued the trial and asked the IRS to submit proof of mailing and explain (1) whether the Tax Court’s precedent at Pollock v. Commissioner, 132 T.C 21 (2009) (holding that the filing deadline is jurisdictional and not subject to equitable tolling) is still good law after Boechler and (2) “what would be the consequence of filing an untimely petition” if the deadline is jurisdictional or not.  The IRS response was filed on October 4, 2022. That response provided proof of mailing showing that the taxpayer filed late and argued that Pollock is still good law after Boechler because the Collection Due Process and innocent spouse statutes are not identically phrased.  On October 21, 2022, the IRS moved to allow the filing of a first supplement to its response that more fully attempted to distinguish Boechler, stating, “Respondent recognizes his original response lacked information warranted for consideration regarding the issues raised in the Court’s Order.”  I expect the motion to be granted.  You can find the first supplemental response here.

After Pollock was issued, three Circuit courts had ruled that the IRC 6015(e)(1)(A) filing deadline is jurisdictional and is not subject to equitable tolling.  Rubel v. Commissioner, 856 F.3d 301 (3d Cir. 2017); Matuszak v. Commissioner, 862 F.3d 192 (2d Cir. 2017); Nauflett v. Commissioner, 892 F.3d 649 (4th Cir. 2017).  No other Circuit has any precedent on whether this filing deadline is jurisdictional or subject to equitable tolling.  Frutiger lives in the Ninth Circuit. 

Under IRC 7459(d), a dismissal that is not jurisdictional upholds the deficiency set out in the notice, which would possibly preclude the taxpayer by res judicata from later paying and suing for a refund.  While there is no similar provision to IRC 7459(d) in IRC 6015, there is a special res judicata provisions for innocent spouse cases at IRC 6015(g)(2) that may prove problematic.  There is also conflicting case law over whether district courts (except in one rare situation described in IRC 6015(e)(3)) ever have jurisdiction to consider refund suits seeking IRC 6015 relief.  See the post on the Hockin opinion here.

Judge Buch instructed Frutiger to file a response to the IRS filing by November 18, 2022. 

Recognizing that a pro se taxpayer was probably not likely to be able to present adequate arguments on the legal issues, in his order, the judge invited the submission of motions for leave to file amicus briefs in the case (accompanied by the proposed amicus brief), also by November 18, 2022.  Judge Buch’s action inviting a brief is laudable and consistent with the Tax Court’s March 23, 2022, proposed new Rule 152 on amicus briefs.  You can find a link to an article calling for amicus briefs in certain pro se Tax Court cases within a post of Keith’s on pro se petitions in the Tax Court.  The Tax Court’s proposed new Rule 152 on amicus briefs is linked within another of Keith’s posts.

The Center for Taxpayer Rights, represented by the Tax Clinic at the Legal Services of Harvard Law School, hopes to file an amicus brief in Fruitger.  The parties have told the Center that they would not object to a motion by the Center for leave to file such an amicus brief.  Perhaps Keith’s request to the IRS attorney in the case for the IRS position on a motion for leave to file an amicus brief triggered the IRS to file its fuller, supplemental response?

I would not call it a test case, but Judge Choi may not be aware that in a case before her, Cabral v. Commissioner, Tax Ct. Docket No. 12078-20S, she is facing the same issue as in Frutiger.  Cabral concerns an IRC 6015(e) notice of determination and a petition that was filed about three weeks beyond the 90-day deadline.  On October 13,2022, Judge Choi issued an order to show cause why the court should not dismiss the petition for lack of jurisdiction for late filing.  Judge Choi may want to hold off ruling on her order until after Judge Buch issues his opinion in Frutiger.  The taxpayer in Cabral lives in the Third Circuit, which, of course, has the above-cited Rubel opinion as current precedent.

On a related topic, it appears that, as I expected, the IRS will now try to dispose of at least some late-filed CDP cases by summary judgment motion (see Sherman v. Commissioner, Tax Ct. Docket No. 11951-20L (order dated Oct. 6, 2022), directing the IRS to file the summary judgment motion that it said in a status report that it intended to file).  However, there is, as yet, no ruling on such a motion that I could find – whether or not the taxpayer has also sought equitable tolling.  It may be too early to see orders on such summary judgment motions, but, so far, the IRS-predicted flood of late-filed CDP petitions seeking equitable tolling seems not to have materialized.

At the most recent ABA Tax Section meeting, Judge Carluzzo said that the court would not likely have to rule on equitable tolling in very many cases.  In Christine’s post of October 21, 2022, on that meeting, she reports that he also told the audience what PT has been saying that in CDP cases, the IRS should now assert late petition filing as a statute of limitations defense in answers, and that taxpayers should assert equitable tolling defenses in replies in such case.  That appears to be what Rule 39 requires for pleading special matter.

Supreme Court Update for Taxes and the October 2022 Term

Thanks to Carl Smith, I write to point out the cases accepted for the Supreme Court term starting October 3, 2022, that might have some impact on tax procedure.  Three of the cases are related to the issues of jurisdiction and equitable tolling raised in Boechler during the last term and one relates to the calculation of the FBAR penalty.

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1)  Arellano v. McDonough – This case will be argued October 4.  The questions presented are:  (1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.

2)  United States v. Bittner – This case will be argued on November 2.  Andy Weiner blogged this case for PT back in January.  This case presents the issue of the calculation of the penalty for failure to timely file the Foreign Bank & Financial Accounts information, commonly known as FBAR.  The IRS seeks to calculate the penalty based on each account not reported and taxpayers want to limit the penalty to the failure to file the form (which could contain multiple accounts).  The circuits are split.  The financial difference in the calculation of the penalty can be enormous with the per form approach limiting the penalty to $10,000 per year while the amount with the IRS approach is a multiple of the number of accounts times $10,000.  The Center for Taxpayer Rights has filed an amicus brief on behalf of the per form approach.  This brief was authored by Gwen Moore.  The American College of Tax Counsel has also filed an amicus brief arguing for the per form approach.  This brief was authored by the law firm of Kostelanetz & Fink.

3)  Wilkins v. United States – This is a private quiet title action, where the Circuits are split over whether the quiet title filing deadline in district court is jurisdictional. The issue of equitable tolling is not involved. I think this is an easy win for the petitioners.  The provisions granting district court’s jurisdiction are not the same as the filing deadline, and the filing deadline merely reads:

(g) Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. 

The “shall be barred” language is similar to that in the FTCA deadlines, which were held not jurisdictional in Kwai Fun Wong (2015).  Oral argument has not yet been set.

4) MOAC Mall Holdings LLC v. Transform Holdco LLC — The cert. petition reads:

In Arbaugh v. Y & H Corp., this Court clarified that limitations on judicial relief should not be treated as jurisdictional absent a clear statement by Congress. At least six circuits have held that 11 U.S.C. 363(m) does not limit the appellate courts’ jurisdiction to review unstayed bankruptcy court sale orders, but rather limits only the remedies available in such an appeal. By its plain terms, Section 363(m) presupposes a “reversal or modification on appeal” of a sale order, and specifies only that such reversal or modification “does not affect the validity of [the] sale” to a good faith purchaser, leaving the courts free to fashion other remedies without that effect.

In the present case, the Second Circuit held, to the contrary, that Section 363(m) deprived the appellate courts of jurisdiction over an appeal from a lease assignment order deemed “integral” to an already completed sale order, notwithstanding that: the sale order was not contingent on the assignment; the sale price was fixed without regard to whether the lease could be assigned; and respondent had expressly waived (in successfully opposing a stay) any argument that Section 363(m) would bar appellate review. A month later, the Fifth Circuit re-confirmed that it also treats Section 363(m) as jurisdiction-stripping.

The question presented is:

Whether Bankruptcy Code Section 363(m) limits the appellate courts’ jurisdiction over any sale order or order deemed “integral” to a sale order, such that it is not subject to waiver, and even when a remedy could be fashioned that does not affect the validity of the sale.

Oral argument has not yet been set.

DOJ Apologizes for Misinforming District Court on IRC 6015(f) Deadline

I did a post on August 15 in which I expressed shock that the DOJ lawyers in a district court collection suit told the court that the taxpayer could no longer seek IRC 6015(f) relief, since a two-year period to ask for such relief had passed.  The DOJ had cited a regulation that is no longer effective after a 2019 statutory amendment allowing a taxpayer to seek (f) relief at any time while the collection statute of limitations is still open, as it is in the case before the court.  This is a short post, just to let everyone know that on August 17, the United States filed a document in the district court entitled “United States’ Notice of Errata to United States’ Memorandum in Support of Motion for Partial Summary Judgment.”

The operative language from the notice is as follows:

[T]he United States . . .  argued that to qualify for relief under § 6015, a taxpayer must first present an administrative claim to the IRS within two years of the date on which the IRS first began collection activity against the taxpayer claiming innocent spouse relief. While innocent spouse relief under 26 U.S.C. § 6015(b) and (c) is limited by a two-year statute of limitations, the United States erroneously asserted that the same statute of limitations also applies to innocent spouse relief sought under 26 U.S.C. § 6015(f). Although Mrs. Weathers remains time barred from seeking innocent spouse relief under 26 U.S.C. § 6015(b) and (c), she could seek relief under 26 U.S.C. § 6015(f) before the IRS. This does not impact the Court’s lack of subject matter jurisdiction, as Mrs. Weathers would still have to avail herself of the administrative processes before the IRS to seek this relief and, if necessary, follow procedures for review established in 26 U.S.C. § 6015(e).

We just understood our error and respectfully alert the Court and parties through this errata filing. As stated, however, our inadvertent error does not impact the Court’s memorandum opinion and Order, which properly dismissed the asserted affirmative defense for lack of subject matter jurisdiction.

Undersigned counsel apologizes to the Court for the mistake.

The case was headed for a jury trial beginning August 22.  However, there is an entry on the docket sheet that the case settled on August 18.  There is no entry (yet?) correcting the district court’s order, though.

DOJ Misinfoms District Court on IRC 6015(f) Relief Filing Deadline

Sometimes, I am amazed at what DOJ attorneys don’t know about tax procedure.  Once, I wrote a post on how a court misapplied the amount lookback period of IRC 6511(b)(2)(A) when a refund claim was mailed before the end of the filing deadline but was received by the IRS afterward.  The DOJ in that case had misled the court by not citing the relevant case law and regulations.  I brought the error to the attention of the taxpayer’s attorney, who got the court to immediately reverse its holding and scold the DOJ for not citing the relevant authority.

Well, the DOJ has done it again:  In a collection suit brought against a husband and wife, where the wife has raised IRC 6015 innocent spouse relief as a defense, United States v. Weathers, Docket No. 5:21-cv-5012 (W.D. Arkansas, 8/10/22), not only did the DOJ get the court to follow likely-incorrect district court holdings saying that IRC 6015 relief cannot be raised in a collection suit, but the IRS persuaded the court that it would be too late for the taxpayer to now file a Form 8857 seeking such relief, citing still-current Reg. 1.6015-5(b) and the opinion in Lantz v. Commissioner, 607 F.3d 479 (7th Cir. 2010) (holding that regulation valid to the extent that it imposes a 2-year limit after collection activity has begun to seek relief under IRC 6015(f)).  While it is true that the statutes impose the 2-year rule for requesting relief under subsections (b) and (c), the regulation, as applied to relief under subsection (f) was abrogated by an amendment to section 6015(f) in 2019 that provides that a taxpayer who hasn’t paid an assessment can file a request for subsection (f) relief at any time while the statute of limitations on collection is still open.  If a collection suit is in process, then the statute of limitations on collection must still be open.

I contacted the taxpayers’ attorney to alert her to the revised statute, but she says that she already brought this information to the attention of the court.  I also suggested to her that the wife immediately file a Form 8857 because, if the wife does so, the district court suit can’t continue against the wife.  IRC 6015(e)(1)(B)(i) prohibits the IRS from levying or commencing or prosecuting a suit for collection of the liability involved in the Form 8857 while the Form 8857 is being considered, including during any subsequent Tax Court suit.  I expect that Form 8857 to be filed very shortly.


I am not surprised that the district court held that it lacked jurisdiction to consider IRC 6015 relief in a collection suit, since as far as I am aware, all district courts to have considered the issue have held that only the Tax Court can consider IRC 6015 relief.  No appellate court has considered the issue, however, and at least one appellate court noted that the DOJ Appellate Section lawyers conceded that a refund suit could be filed in district court where a taxpayer late-filed a Tax Court IRC 6015(e)(1)(A) stand-alone suit that was dismissed for lack of jurisdiction.  The counter-argument to the district court opinions, to which Nina Olson and various tax procedure professors and former professors agree, is that under former IRC 6013(e) (the innocent spouse statute up to 1998), the courts had considered innocent spouse relief in (1) collection cases in district court, (2) refund cases in district court, (3) deficiency cases in Tax Court, and (4) cases in bankruptcy courts.  In 2000, Congress amended IRC 6015 to make clear that the provision of IRC 6015(e)(1)(A) authorizing a Tax Court stand-alone suit is “[i]n addition to any other remedy provided by law”. 

We did a post in September 2019 on the Hockin district court opinion that held that it had jurisdiction to consider IRC 6015(f) relief in a refund suit.  But, we had also done a post in May 2019 on a contrary district court opinion in Chandler.  The IRS settled Hockin, so the jurisdictional issue never went up to the Ninth Circuit, as we had hoped it would.

And, last year, we noted in a post on the Bowman case that the only two bankruptcy courts to have addressed the issue have ruled that the bankruptcy courts have jurisdiction to consider IRC 6015 relief.

I am not surprised that the DOJ cited the uniform district court rulings holding the district courts to lack jurisdiction to decide IRC 6015 relief in collection cases.  But, what really shocked me about the Weathers case is the following passage from the DOJ’s motion for summary judgment:

Furthermore, as explained above, to qualify for relief under § 6015, a taxpayer must first present an administrative claim to the IRS within two years of the date on which the IRS first began collection activity against the taxpayer claiming innocent spouse relief. 26 U.S.C. § 6015(b)(1)(E), (c)(3)(B) and 26 C.F.R. § 1.6015-5(b) (setting a two-year statute of limitations for 26 U.S.C. § 6015(f)); Lantz v. Comm’r, 607 F.3d 479 (7th Cir. 2010) (upholding the two-year statute of limitations for relief under § 6015(f)); Jones v. Comm’r, 642 F.3d 459, 465 (4th Cir. 2011) (same). The regulations define collection activity as including a Section 6330 notice, which is a statutory notice of intent to levy. 26 C.F.R. § 1.6015-5 (b)(2)(ii). Melissa Weathers received notification of a levy as early as August 12, 2019, more than two years ago. (Statement of Facts “S.O.F.” ¶ 13; Exhibit 107, Final Notice of Intent Levy attached to Beatriz Saiz Declaration (“Saiz Dec.”); see also Exhibits 101-106, certified Forms 4340 attached to Castor Dec. 1). Therefore, not only does this Court lack subject matter jurisdiction of her purported innocent spouse defense, but she is precluded from seeking innocent spouse relief before the IRS.

PT readers of a certain age will remember the huge uproar that the Lantz and Jones opinions generated in Congress and the IRS’ July 2011 capitulation in Notice 2011-70 that it would no longer enforce the 2-year filing deadline contained in the regulation as applied to IRC 6015(f) relief.  In July 2019, Congress also amended IRC 6015(f) to provide a new paragraph (2) conforming to the Notice and reading:

A request for equitable relief under this subsection may be made with respect to any portion of any liability that—

(A) has not been paid, provided that such request is made before the expiration of the applicable period of limitation under section 6502, or

(B) has been paid, provided that such request is made during the period in which the individual could submit a timely claim for refund or credit of such payment.

How could the DOJ attorneys not know that the Lantz and Jones cases and the regulation were all legislatively overruled?  The attorney for the wife in Weathers says she pointed this out in her papers (though I haven’t looked through her papers).  Yet the court, borrowing from the DOJ motion, wrote:

Finally, as to Melissa’s request that these proceedings be stayed to permit her time to file an administrative claim with the IRS, such a stay would be exceedingly inefficient. Moreover, Melissa has yet to pursue the defense before the IRS, and it appears that the time to raise the defense has passed. See C.F.R. § 1.6015-5(b) (noting that to request innocent spouse relief under the provisions of § 6015(b), (c), and (f), “a requesting spouse must first file Form 8857 or other similar statement with the Internal Revenue Service no later than two years from the date of the first collection activity against the requesting spouse . . ., with respect to the joint tax liability”) (emphasis added); Lantz v. C.I.R., 607 F.3d 479, 482-83 (7th Cir. 2010) (rejecting argument that equitable relief under § 6015(f) carries with it a ten-year limitations period, as opposed to a two-year period).

To avoid this misreading, it would certainly have helped if the IRS had finalized its August 12, 2013 proposed regulations under IRC 6015 (REG-132251-11, 78 FR 49242) that mimicked Notice 2011-70 and the later Congressional amendment.  Keith blogged on those proposed regulations here.  The IRS proposed more regulations under IRC 6015 on November 20, 2015 (REG-134219-08, 80 FR 72649), which I blogged about here and here.  I recall that Keith and I submitted comments to at least one set of those proposed regulations (perhaps both).  Considering the tens of thousands of taxpayers who seek IRC 6015 relief each year, I think it a scandal that the Treasury hasn’t yet finalized either of those proposed regulations.  I think it no excuse that the proposed regulations would need to be modified to reflect statutory changes from 2019.  It’s been more than 3 years since those statutory changes, and I don’t think the IRS has proposed any regulations to reflect the 2019 statute.

We will follow developments in the Weathers case.  I have pointed out to the wife’s attorney that in a prior district court case, Dew, where a magistrate originally held that the court lacked IRC 6015 jurisdiction and the taxpayer responded by filing a Form 8857 before the district court considered the magistrate’s holding, the DOJ had to concede that, under the collection suspension filing provision at IRC 6015(e)(1)(B)(i), the case against the taxpayer now could not go forward.  I attach the DOJ filing in Dew, making that concession.

Another Update on Boechler Follow-on Litigation – Part 2

This is Part 2 of my post-Boechler litigation update.  Part 1, involving deficiency litigation, ran on August 1, 2022, and can be found here

Today’s post addresses what is happening in the many CDP cases (including Boechler) that are before the courts where the IRS had argued to the Tax Court that the cases should be dismissed for lack of jurisdiction on account of late filing.  As I noted in my Part 1 introduction, the courts have not yet issued any rulings in CDP cases about whether equitable tolling applies on the facts of any case, and I expect we won’t see the first such ruling until 2023.



The taxpayer in Boechler did not put into the record any information as to why it filed late and so deserved equitable tolling.  In its opinion dated April 21, 2022, the Supreme Court remanded the case to the Eighth Circuit to address whether equitable tolling applied on the facts.  There is a May 23, 2022, entry on the Tax Court docket sheet for Boechler (Docket No. 18578-17L) stating, “U.S.C.A. 8th Circuit mandate is recalled, and case is reopened”.  But there have been no further filings in the case in the Tax Court since that date. 

Since the IRS moved to dismiss Boechler before the IRS filed an answer, the next step in the case will be for the IRS to file an answer in which, if it wants, it will plead late filing as a statute of limitations defense.  Tax Court Rule 39 provides that statute of limitations defenses and equitable arguments are “special matters” that the parties must plead.  If the IRS in its answer raises a statute of limitations defense, the taxpayer will have to respond by filing a reply in which the taxpayer pleads equitable tolling and sets out some facts in support. 

It is far from clear that Boechler will ever generate a ruling on whether the facts therein justify equitable tolling.  Recall that parties at any time can settle non-jurisdictional issues, such as late filing or the merits.  My hunch is that the Boechler case settles on remand after the IRS attorney for the first time looks at the taxpayer’s proof that it filed W-2s with the Social Security Administration.  Boechler merely involves a penalty for alleged non-filing with that agency.


On May 11, 2022, Les did a post on a district court opinion in Castillo.  In that case, the IRS mailed out a CDP notice of determination to the taxpayer and a copy to the taxpayer’s former POA, but not to her current POA.  USPS records reflect that the notice was never delivered to the taxpayer (it’s still listed as “in transit”), and if the prior POA received his copy of the notice, he never alerted the taxpayer or the current POA. 

The current POA is Elizabeth Maresca, the director of the tax clinic at Fordham.  She was puzzled why she hadn’t seen the notice of determination that she had been expecting, so she ordered a transcript of account and discovered thereon an entry for the issuance of such a notice many months before.  Within 30 days after seeing the transcript (but still not having yet seen a copy of the notice), Elizabeth filed a Tax Court petition and sought equitable tolling of the filing deadline.  She also brought suit against the government in district court for the IRS’ wrongful disclosure of tax information to the prior POA.  Les’ post concerns that wrongful disclosure suit.

The IRS in the Castillo Tax Court case (Docket No. 18336-19L) initially filed an answer.  After the court brought to the IRS’ attention the probable late filing of the petition, the IRS then filed a motion to dismiss for lack of jurisdiction.  The Tax Court then dismissed the case for lack of jurisdiction, and Ms. Castillo appealed to the Second Circuit (Docket No. 20-1635).  In the Second Circuit, the parties briefed the issue of whether the CDP petition filing deadline is jurisdictional or subject to equitable tolling, but then asked the Second Circuit to hold the case in abeyance pending the Supreme Court’s ruling in Boechler

Five days after the Supreme Court issued its Boechler ruling, Ms. Castillo moved the Second Circuit to rule by summary reversal, that her Tax Court petition was timely under equitable tolling and to remand the case to the Tax Court for it to consider the merits of her CDP arguments.  On April 29, 2022, the DOJ responded to the motion and agreed that Boechler applied and that the case should be remanded to the Tax Court, but the DOJ argued that the Tax Court, in the first instance, should decide whether the facts justified equitable tolling.

On August 2, 2022, a 3-judge motions panel of the Second Circuit (with one judge mysteriously recusing himself) issued an order vacating the Tax Court’s dismissal order, denying summary reversal, and remanding the case to the Tax Court “for further proceedings in light of the Supreme Court’s decision in Boechler”.

The Tax Court has long held that non-receipt of a properly-addressed notice of deficiency during the 90-day period to file is no excuse for late filing a Tax Court petition, and all those courts of appeal to have faced the issue have agreed.  See, e.g., Guthrie v. Sawyer, 970 F.2d 733, 737 (10th Cir. 1992); Follum v. Commissioner, 128 F.3d 118, 120 (2d Cir. 1997); United States v. Goldston, 324 F. App’x 835, 837 (11th Cir. 2009) (per curiam) (collecting cases).  In Weber v. Commissioner, 122 T.C. 258 (2004), the Tax Court extended this holding to cover properly-addressed CDP notices of determination not received during the 30-day period to file. 

In her initial Tax Court filings and in the Second Circuit briefing, Ms. Castillo argued that, based on legislative history and the structure of CDP, it was wrong of the Tax Court to extend the deficiency precedent to CDP.  I think that for Ms. Castillo to win on remand, she will also have to get the Tax Court to overrule Weber.  In the Second Circuit, The Center for Taxpayer Rights’ amicus brief was devoted entirely to expanding upon the anti-Weber argument.  While the Second Circuit had once, in an unpublished opinion, followed Weber; Kaplan v. Commissioner, 552 Fed. Appx. 77 (2d Cir. 2014); it did so without discussing whether Congress might have wanted a different rule in CDP cases from the rule in deficiency cases.  And Kaplan was litigated by a pro se taxpayer who never argued that Weber was wrongly decided.  The Weber issue has not yet been addressed in any published opinion of any Circuit court. 

The remand order says nothing about this anti-Weber argument.  I presume that the anti-Weber argument can be considered by the Tax Court under the terms of the Second Circuit’s remand order, but I am not 100% certain, as the order makes no reference to the argument.

In Part 1 of this post, I discussed the Culp case, which is a notice of deficiency case where the taxpayers did not receive the notice during the 90-day period to file.  In their brief to the Third Circuit, the Culps go farther and argue that the deficiency precedent should no longer survive Boechler, since there is precedent outside the tax area that non-receipt or late receipt of governmental “tickets” to court are circumstances beyond the plaintiff’s control that can justify equitable tolling.  See, e.g., Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014) (en banc) (120-day period to file in the Court of Appeals for Veterans Claims); Kramer v. Commissioner of Soc. Sec., 461 Fed. Appx. 167 (3d Cir. 2012) (60-day period in 42 U.S.C. § 405(g) to challenge denial of Social Security disability benefits in district court).

Amanasu Environment Corp.

 In Amanasu Environment Corp. v Commissioner, Docket No. 5192-20L, on December 13, 2019, the IRS issued a CDP notice of determination to a taxpayer having an address in Vancouver, British Columbia.  Presumably because this was international mail, records of the USPS and Canada Post show that the taxpayer did not receive the notice until January 18, 2020 – several days after the 30-day Tax Court petition filing deadline passed.  On March 13, 2020, the taxpayer mailed a petition to the Tax Court, accompanied by a request for New York City as the place of trial.  On March 17, 2020, the Tax Court received and filed the petition and request.  On September 2, 2020, the IRS surprisingly filed an answer in the case.  (The initial filing of answers in the CDP cases of Castillo and Amanasu and the deficiency case of Gruis — discussed in Part 1 of this post — shows, among other things, how often IRS lawyers miss late filing of petitions.)  On November 19, 2020, the IRS woke up and moved to dismiss the case for lack of jurisdiction for late filing. 

Frank Agostino represents the taxpayer, having picked up the case at a New York City calendar call.  Frank responded to the motion to dismiss by arguing that the CDP filing deadline is not jurisdictional and is subject to equitable tolling and should be tolled in this case.  The Tax Court held the motion in abeyance pending the ruling in Boechler.  On May 18, 2022, Judge Carluzzo issued an order, reading in full:

For the reasons set forth in Boechler, P.C. v. Commissioner, No. 20-1472 (U.S. April 21, 2022), it is

ORDERED that respondent’s motion to dismiss for lack of jurisdiction, filed November 19, 2020 is denied.

It is further ORDERED that jurisdiction in this case is no longer retained by the undersigned.

It is further ORDERED that this case is restored to the general docket for trial or other disposition.

On June 22, 2022, the IRS submitted an unopposed motion for leave to file an amendment to its answer in which it raised the statute of limitations defense.  On July 22, 2022, the Tax Court granted the motion.  Frank will be filing a reply to the amendment to the answer, raising equitable tolling as the taxpayer’s defense to the IRS statute of limitations defense.  Since no one has ever seen what such an amendment to answer pleading a statute of limitations defense on account of a petition’s late filing looks like, I attach a copy of the amendment to answer here, courtesy of Frank.


The filing deadline under IRC 7623(b)(4) for a Tax Court whistleblower award petition was held not jurisdictional and subject to equitable tolling in Myers v. Commissioner, 928 F.3d 1025 (D.C. Cir. 2019).  However, as in CDP, to date, the Tax Court has not issued a ruling on whether equitable tolling applies on the facts of Myers or any other such whistleblower award case. 

It is my understanding that the Tax Court held off on making any ruling on equitable tolling in Myers, just in case the Supreme Court ruled for the IRS in Boechler.  Had the Supreme Court ruled for the IRS in Boechler, effectively, that would likely have overruled the Myers opinion, since the two filing deadline statutes are worded so similarly. 

In June 2020, the IRS filed an amended answer raising late filing as a statute of limitations defense, and the taxpayer filed a reply seeking equitable tolling.  In November 2020, the IRS moved for summary judgment that the facts alleged in the reply do not give rise to equitable tolling.  That motion is currently pending before Judge Ashford.

Other Cases

By an order dated September 30, 2021, the Supreme Court agreed to hear Boechler.  Shortly thereafter, the Tax Court stopped dismissing late-filed CDP cases for lack of jurisdiction, pending the Supreme Court’s ruling in Boechler

In May and June 2022, after the Supreme Court decided Boechler, the Tax Court issued orders in all of the cases where the motions had been held in abeyance.  There were about 30 such orders, and they all look like the terse order Judge Carluzzo issued in Amanasu (which was one of the 30-or-so cases). 

That there were only about 30 CDP cases with this issue over 7 months confirms that the IRS and DOJ have always vastly overstated to the courts the number of Tax Court cases that would be affected by Boechler annually.  In oral argument at the Supreme Court, the lawyer arguing the case on behalf of the Solicitor General told Justice Thomas that the government estimated that 300 cases a year would be affected by the Boechler ruling.  That figure was obviously wrong because it was an estimate of how many CDP cases are dismissed each year for lack of jurisdiction for any reason, not how many cases are dismissed for lack of jurisdiction for late filing.  Typically, two-thirds of dismissals for lack of jurisdiction are only for failure to pay the filing fee or obtain a fee waiver. 

Keith and I knew that far fewer than 100 CDP cases each year would be affected by Boechler and that the primary effect of the Boechler ruling would be to eliminate the Tax Court’s sua sponte issuing orders to show cause why a CDP case should not be dismissed for lack of jurisdiction for late filing.  Probably a quarter of all dismissals of late-filed CDP and deficiency cases come after the Tax Court has pointed out to the IRS, in an order to show cause, the probable late filing of the petition – a fact which the IRS hadn’t noticed.  After Boechler, such orders to show cause in CDP will be a thing of the past, and so a small but significant number of taxpayers who filed late will stay in the Tax Court, even without having to argue for, or even having facts plausibly justifying, equitable tolling.

In the roughly 30 CDP cases where the IRS moved to dismiss for lack of jurisdiction or the Tax Court issued an order to show cause, the IRS will now have to file answers or amendments to answers if it wants to argue for dismissal for late filing.  Other than Amanasu, I haven’t looked an any of these cases’ docket sheets to see whether the IRS has yet done so.  It is my expectation that the IRS will again complain of late filing in nearly all of these cases.  And it is my further expectation, based on the usual lack of response by taxpayers to motions to dismiss for late filing, that only about 5% of taxpayers will respond with what could be termed an equitable tolling excuse for late filing.  Five percent of 30 is 1.5 cases, and one of those cases is Amanasu.  So, I expect extremely few of the other 30-or-so cases to become litigating vehicles for equitable tolling.  (The number of deficiency equitable tolling cases, if Hallmark goes the taxpayer’s way, will be an order of magnitude higher, though still not back-breaking for the IRS or Tax Court.) 

I think the Tax Court will issue a precedential opinion the first time that it considers whether the facts in any CDP or whistleblower award case qualify for equitable tolling.  A published opinion is needed because it is unclear what law on equitable tolling would apply in the Tax Court.  There appears to be a federal common law of equitable tolling generated outside the tax law that I suspect the Tax Court will adopt.  Among other things, I hope the Tax Court looks to equitable tolling opinions coming out of the Article I Court of Appeals for Veterans Claims and its reviewing court, the Federal Circuit, that have been applied to late-filed petitions in the Veterans Court for decades. 

My guess is that the initial ruling of how the Tax Court will apply the doctrine of equitable tolling will come in Amanasu or Myers, which are furthest along on the newly-required pleading of the issues.  I also guess that the first equitable tolling ruling will come out in 2023.

Another Update on Boechler Follow-on Litigation – Part 1

On June 28, 2022, I did a post summarizing the status of post-Boechler litigation over whether the IRC 6213(a) deficiency petition filing deadline is still jurisdictional and not subject to equitable tolling after Boechler.  There have been a few developments in the two cases discussed in the post, and I wanted to update you and provide links to recent filings.  The short update is that (1) all briefing has been completed in the Hallmark case before Judge Gustafson, and he is presumably already actively working on a Tax Court opinion, and (2) the Culp case in the Third Circuit survived the government’s motion for summary affirmance, and the Culps have filed their opening brief.  The Third Circuit also denied the government’s motion to strike the merits amicus brief of The Center for Taxpayer Rights that had been filed shortly after the government moved for summary affirmance. 

I also wanted to do an initial post on what has been happening after Boechler with CDP cases that present the questions resolved by the Supreme Court.  The short update here is that the courts have not yet issued any rulings in CDP cases about whether equitable tolling applied on the facts of a particular case, and I don’t expect we will see the first such ruling until 2023.  

Because of the length of the update, I am breaking it into two parts.  Part 1 discusses the deficiency litigation.  Part 2 will discuss the CDP litigation.



In my June 28 post, I wrote that, a few days after Boechler was decided, a taxpayer named Hallmark Research Collective had moved to vacate the Tax Court’s dismissal for lack of jurisdiction of its one-day-late deficiency petition.  Even before the Supreme Court decided Boechler, Hallmark had argued that the deficiency filing deadline is no longer jurisdictional and is subject to equitable tolling.  Hallmark is seeking COVID-related equitable tolling. 

The motion to vacate was assigned to Judge Gustafson, and the Tax Court promptly stopped issuing orders of dismissals for lack of jurisdiction in all other cases where the IRS moved to dismiss a deficiency case for lack of jurisdiction, pending the ruling in Hallmark.  In a post Keith did on Hallmark on May 3, 2022, Keith provided links to the taxpayer’s motion to vacate and its 51-page memorandum of law that accompanied the motion.  In my July 28 post, I provided a link to the IRS’ 18-page response objecting to granting the motion.  On July 15, 2022, the taxpayer filed a 32-page reply to the IRS’ response, which you can find here.

As to why the reply was so long, the main reason is that the taxpayer chose to expand upon its argument that the filing deadline in IRC 6213(a) is not jurisdictional by presenting a more detailed analysis of how the Board of Tax Appeals acquired its deficiency jurisdiction in 1924 and 1926. 

The original Board filing deadline for income tax deficiency petitions was in the second sentence of sec. 274(a) of the Revenue Act of 1924.  The taxpayer argues that the actual jurisdictional grant to the Board to hear deficiency cases was at sec. 900(e) of that act, though neither provision used the word “jurisdiction”.

In the Revenue Act of 1926, sec. 274(a)’s second sentence was amended to prohibit Sundays from being the end of the filing deadline, but Congress did not, when redrafting the sentence, include the word “jurisdiction”.  By contrast, Congress first used the word “jurisdiction” in multiple provision of that act (which made the Board more court-like and provided for Circuit Court direct review of Board rulings).  Congress also enacted in that act the predecessors of IRC 6214(a) and (b) and 6512(b)(2), in each case using the word “jurisdiction”.

Hallmark’s reply also contains several pages of quotes from opinions by Tax Court judges (most currently sitting) calling IRC 6214(a) the source of the Tax Court’s deficiency jurisdiction.  In its response, the IRS had simply ignored the argument that IRC 6214(a) is the source of the Tax Court’s deficiency jurisdiction, not IRC 6213(a).  The IRS argues that IRC 6213(a) is the source of the Tax Court’s deficiency jurisdiction, except in cases where a larger deficiency is sought than is set out in the notice of deficiency, in which case IRC 6214(a) is merely the source of the Tax Court’s jurisdiction for the excess.

Hallmark is now fully briefed.  My expectation is that Judge Gustafson will be drafting an opinion that the Chief Judge will send to the full court for review.  I would love to be proved wrong and see an earlier opinion, but my guess is that the opinion of the full court in Hallmark will not come out before Christmas, even though hundreds of motions to dismiss are probably already currently sitting in limbo pending the opinion and more will be filed in the interim.


In my June 28 post, I wrote about a pro se appeal of a Tax Court dismissal of a late-filed deficiency case, Culp, that is before the Third Circuit.  The Culps argue that they filed a late Tax Court petition both (1) because before they filed they had never received the original or a copy of the notice of deficiency and (2) because TAS, purporting to help them fight levies, bamboozled them into not going to court.  TAS never told them that a notice of deficiency had been sent.  The Culps seek equitable tolling and a refund of monies taken by (1) levies on their Social Security benefits and (2) an offset of a later-year overpayment against the deficiency.

In my post, I mentioned the DOJ’s motion for summary affirmance.  I also mentioned and provided a link to the merits amicus brief that The Center for Taxpayer Rights filed in the case a few days after the DOJ motion for summary affirmance, but before the Third Circuit had ruled on the motion.  The DOJ had also moved to strike the amicus brief as premature.  On July 6, 2022, a 3-judge motions panel of the Third Circuit denied both DOJ motions, so the case proceeds to regular briefing.

On July 29, 2022, the Culps filed their opening brief for the appellants, which can be found here.  Although the Culps are retired lawyers in their 70s, their specialty was employment discrimination law.  Their pro se brief may disappoint some of us who are tax procedure specialists.

The DOJ’s brief for appellee is due in late August or early September.  (I am not sure the exact date because the Culps filed their brief a few days early, and I don’t know if that impacts the date that the DOJ’s brief is due.)  However, I anticipate that the DOJ will, as usual, ask for and be granted a 21- or 30-day extension to file its brief.

I expect oral argument in Culp will occur in the Third Circuit early next year and an opinion will be issued in the spring.  I expect that the Tax Court’s ruling in Hallmark (1) will precede the Third Circuit’s ruling in Culp and (2) will be brought to the attention of the Third Circuit before it rules.

Other Deficiency Cases

Of course, once an opinion in Hallmark is issued, the Tax Court will likely promptly issue hundreds of similarly-ruling orders in cases in which either the IRS had moved to dismiss a late-filed deficiency petition for lack of jurisdiction or the Tax Court had issued an order to show cause why the deficiency case should not be dismissed for lack of jurisdiction on account of late filing. 

If the Tax Court in Hallmark rules against the taxpayer, those hundreds of orders will be final and immediately appealable to nearly every Circuit Court of Appeals, except the Federal Circuit.  However, I don’t expect many taxpayers to appeal such dismissals.  It would only make sense to appeal such a dismissal if the taxpayer thought he or she had good ground for equitable tolling.  And, I suspect that only about 5% of such dismissals would involve even a plausible argument for equitable tolling. 

Hallmark is appealable to the Ninth Circuit, and I expect that it would be the first case to be appealed.  I would be surprised if more than 5-8 deficiency cases got appealed in 2023 to Circuits other than the Ninth Circuit.  Over time, though, new orders of dismissal in other case would be issued.  If any Circuit disagreed with another Circuit in a post-Boechler ruling, I would anticipate a new Supreme Court opinion to resolve the issue, unless Congress (hopefully) stepped in to resolve the dispute.  I do not look forward to so much future appellate litigation.

If the Tax Court in Hallmark holds that the deficiency filing deadline is no longer jurisdictional and is subject to equitable tolling, the court will deny all of the held-up IRS motions to dismiss and discharge any held-up orders to show cause.  Such rulings allowing the cases to go forward would be interlocutory rulings, not ordinarily subject to immediate review.

IRC 7482(a)(2)(A) states:

When any judge of the Tax Court includes in an interlocutory order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals may, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of such order.  Neither the application for nor the granting of an appeal under this paragraph shall stay proceedings in the Tax Court, unless a stay is ordered by a judge of the Tax Court or by the United States Court of Appeals which has jurisdiction of the appeal or a judge of that court.

Tax Court Rule 193(a) provides, in part:

For the purpose of seeking the review of any order of the Tax Court which is not otherwise immediately appealable, a party may request the Court to include, or the Court on its own motion may include, a statement in such order that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation.  Any such request by a party shall be made by motion which shall set forth with particularity the grounds therefor and note whether there is any objection thereto.  

Perhaps being over-confident that it will win the Hallmark case, the IRS has not yet filed any motion under Rule 193(a).  It is unclear whether a pro-taxpayer ruling in Hallmark will, without such a motion, contain a statement “that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation.”

It is my hope that, if the Tax Court rules that IRC 6213(a)’s deficiency filing deadline is not jurisdictional and is subject to equitable tolling, both the IRS and DOJ would accept that ruling and would argue in support of that ruling in any appellate court that, on its own, decides to consider the issue.  Perhaps my hope is naïve, but one can always hope.

I am aware of only one other late-filed deficiency case in which the taxpayer is already arguing that the IRC 6213(a) filing deadline is not jurisdictional and is subject to equitable tolling, Gruis v. Commissioner, Tax Court Docket No. 11951-22.  I mentioned Gruis in my June 28 post.  On May 27, 2022, a lawyer for an LITC who is aware of the Boechler opinion late-filed the petition, which asked for equitable tolling.  The case involves HOH status and disallowed EITC and CTC.  It will be appealable to the Eighth Circuit – the same Circuit that got the law wrong on CDP in Boechler.  As an update, surprisingly, on July 15, 2022, the IRS filed an answer in the case.  The IRS has not (yet) moved to dismiss for lack of jurisdiction.  I don’t know where this case might be going.  It may get resolved a different way, though, since the taxpayer also argues that the IRS sent the notice of deficiency to an address that was no longer her last known address (hence, she did not receive the notice in time to timely petition).

Another Tax Provision Found to Not Create a Jurisdictional Time Period for Filing

In Clark v. United States, No. 9:21-cv-82056 (S.D. Fla. 2022) a tax attorney, Celia Clark, brought an action for unlawful disclosure under IRC 7431.  The IRS moved to dismiss the case for lack of jurisdiction arguing that she waited too long to bring the suit.  The court denied the motion finding that the time period for filing suit under section 7431 is not a jurisdictional time period.


The opinion indicates that during the years 2008 to 2016 Ms. Clark’s tax practice involved assisting small businesses establish microcaptive insurance companies.  It states that the IRS started investigating her in 2012 to determine if she was promoting abusive tax shelters.  Following its investigation, it assessed penalties against her for over $11 million.  She brought a complaint against the IRS alleging the investigation was abusive both because of its length and its failure to take “a firm position on the proper tax treatment of captive insurance companies.”

Relative to the issue here, she also alleged that during the investigation the IRS inappropriately provided information about her to her clients and to others in violation of the disclosure provisions.  During the course of the investigation she had complained to the IRS and to the Treasury Inspector for Tax Administration (TIGTA) alleging disclosure violations.

She filed her complaint in November, 2021 and the IRS filed a motion to dismiss for lack of jurisdiction the disclosure portion of the complaint in February, 2022 alleging that the two-year statute of limitations set out in 7431(d) barred the complaint.  Attached to its motion, the IRS provided the court with five letters sent in 2014 from Mr. Clark’s attorneys at Caplin & Drysdale to the IRS and TIGTA.  The letters complained about communications by IRS agents.  The IRS argued that the letters show the discovery of any disclosure violations occurred in 2014 seven years before she brought suit.

As it does in every case, the IRS argued that the time to bring the disclosure suit is a jurisdictional time frame.  The IRS remains uninterested in Supreme Court opinions regarding jurisdiction.  Ms. Clark cited an opinion from the district court in DC, Bancroft Global Dev. v. United States, 330 F. Supp. 3d 82 (D.D.C. 2018) which analyzed 7431(d) and determined it did not create a jurisdictional time period.  The court states that “The Government did not respond or further address this point in Reply.”  The court in Clark analyzed the Bancroft decision and agreed with it. 

In Bancroft, the district court noted the change in Supreme Court case law since Kontrick v. Ryan, 540 U.S. 443 (2004), and that the Supreme Court now holds that a filing deadline is not jurisdictional unless Congress makes a “clear statement” that it wants the filing deadline to be jurisdictional.  Bancroft applied that case law and found no clear statement from Congress that the deadline in IRC 7431(d) should be jurisdictional, noting, among other things, that the jurisdictional grant for these suits in district court is in IRC 7431(a) and is separate from the filing deadline in IRC 7431(d).  The Bancroft court quoted from Gonzalez v. Thaler, 565 U.S. 134, 146-148 (2012) (comparing the wording of close subparagraphs of a habeous corpus statute), that “[m]ere proximity will not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle”. 

The Bancroft court noted that by 2018, only two Circuits had directly addressed this issue under IRC 7431(d).  In Gandy v. United States, 234 F.3d 281, 283 (5th Cir. 2000) (i.e., decided before Kontrick), the Fifth Circuit held that the filing deadline is jurisdictional.  In Aloe Vera of America, Inc. v. United States (9th Cir. 2009), the Ninth Circuit — much influenced by language in a recent Supreme Court opinion in John R. Sand & Gravel, Inc. v. United States, 552 U.S. 130 (2008) (finding the filing deadline at 28 U.S.C. 2501 jurisdictional) — held the IRC 7431(d) filing deadline jurisdictional.  The Bancroft court noted that more recent Supreme Court opinions make clear that John R. Sand’s holding was based really on an exception to the new jurisdictional rules in the case of a long line of prior Supreme Court cases holding the filing deadline jurisdictional.  But, the Bancroft court stated that, since the Supreme Court has never addressed IRC 7431(d), the John R. Sand case exception does not apply.  The Bancroft court cited several post-2009 Supreme Court opinions making clear how the new jurisdictional rules apply.  Oddly, though, the Bancroft court did not cite a very analogous opinion from its supervising Circuit, the D.C. Circuit, in Keohane v. United States, 669 F.3d 325, 330 (D.C. Cir. 2012), holding the filing deadline in IRC 7433(d) (a provision almost identically-phrased to IRC 7431(d)) not jurisdictional under current Supreme Court case law.

Based on that decision, it refused to dismiss the case based on the Federal Rule of Civil Procedure (FRCP) 12(b)(1) motion submitted by the IRS.

That did not end the inquiry because the court then shifted to an analysis of whether it should dismiss the case under FRCP 12(b)(6).  This rule requires a complaint to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”  To avoid dismissal under this rule the complaint must state a claim for relief plausible on its face meaning that the complaint will allow the court to draw an inference that the defendant committed an act that could give rise to relief.

The court decided that it could not base a dismissal of the case on the attached letters at this stage of the proceeding.  While Ms. Clark did not challenge the authenticity of the letters the court found that a significant dispute remains regarding the centrality of the letter to her disclosure complaint.  In other words, it’s possible that the IRS made wrongful disclosures after these letters and within the statutory time period for bring suit.  The court’s decision does not mean Ms. Clark will win the case or even that the IRS committed a disclosure violation at any time.  It simply allows the case to proceed so that she can show a disclosure violation occurred and that it did so in the appropriate time frame relative to the bringing of the suit.