What Happens After Boechler – Part 4: The IRS Argues That Equitable Tolling Would Not Apply in Deficiency Cases

April 29, 2022 by 2 Comments

As discussed in the prior three posts of this series, the Supreme Court decision in Boechler clearly rejected the Tax Court’s position set out in the portion of its opinion in Guralnik v. Commissioner, 146 T.C. 230 (2016) that held the time period for filing a petition in the Tax Court in a Collection Due Process (CDP) case is jurisdictional.  Petitioners who file a late Tax Court petition in a CDP case, joining petitioners in whistleblower cases and passport cases, will no longer find themselves tossed from the court automatically based on the date of court filing, but still face significant hurdles.  Petitioners seeking relief in the Tax Court outside of the three types of cases where decisions have removed the time period as a jurisdictional barrier still have some work to do in persuading the Tax Court as to how far the Boechler opinion applies.  Today’s post, part 4 in a four part series looking at the impact of Boechler, discusses the Supreme Court’s approach to the application of equitable tolling, including what CDP petitioners must do to overcome the hurdle of equitable tolling and the application of equitable tolling to deficiency proceedings once the courts determine the time for filing no longer provides a barrier. 

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The Tax Clinic at the Legal Services Center of Harvard Law School wrote its entire amicus brief in the Boechler case on the equitable tolling issue.  It did so because of the importance that the Supreme Court determine not only that the time for filing a petition pursuant to IRC 6330 does not create a jurisdictional barrier but also that petitioners could demonstrate through equitable factors the right to have the merits of their case heard by the Tax Court.  The IRS argued that even if the statute did not create a jurisdictional barrier petitioners should nonetheless still not have the opportunity to come into Tax Court because equitable tolling should not apply to a tax case.  The IRS relied on the Supreme Court’s decision in United States v. Brockamp, 519 U.S. 347 (1997).  The IRS has cited to Brockamp in every case leading up to and including Boechler, essentially arguing that it created a special exception for tax cases making equitable tolling inapplicable.  The Supreme Court soundly rejected this argument.

The Supreme Court started the equitable tolling section of the opinion with a broad statement about the general applicability of equitable tolling:

Equitable tolling is a traditional feature of American jurisprudence and a background principle against which Congress drafts limitations periods. Lozano, 572 U. S., at 10–11. Because we do not understand Con­gress to alter that backdrop lightly, nonjurisdictional limi­tations periods are presumptively subject to equitable toll­ing. Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–96 (1990).

In a footnote it took a mild swipe at a passing argument by the IRS that equitable tolling only applies in Article III courts, noting that it had already applied equitable tolling to non-Article III courts and citing, inter alia, to its decision in favor of the IRS in Young v. United States, 535 U.S. 43, 47 (2002) in which it, at the request of the IRS, granted equitable tolling to determine that the IRS could have a priority claim in a bankruptcy case.  It’s hard to imagine how the IRS could even make a passing argument on this issue given that it sought, and received, equitable tolling in a non-Article III court just two decades ago.

Applying the general principle of equitable tolling to the CDP statute the Supreme Court said:

We see nothing to rebut the presumption here. Section 6330(d)(1) does not expressly prohibit equitable tolling, and its short, 30-day time limit is directed at the taxpayer, not the court. Cf. id., at 94–96 (holding that a statutory time limit with the same characteristics is subject to equitable tolling). The deadline also appears in a section of the Tax Code that is “‘“unusually protective”’” of taxpayers and a scheme in which “‘laymen, unassisted by trained lawyers,’” often “‘initiate the process.’” Auburn, 568 U. S., at 160. This context does nothing to rebut the presumption that nonjurisdictional deadlines can be equitably tolled.

Count on the IRS arguing that the “unusually protective” aspect of CDP prevents equitable tolling from applying in deficiency cases.  As I discussed in the first post of this series, however, CDP should not be viewed as a unique provision and the same reasons that equitable tolling applies in a CDP case should also apply to deficiency cases.

The Court spent the next couple paragraphs explaining why Brockamp does not apply to CDP cases.  For the same reasons discussed in Boechler, Brockamp should not apply in deficiency cases.  Even though far more deficiency cases are filed in Tax Court than CDP cases, the total number of cases bears no comparison to the number of refund claims at issue in Brockamp.  One can only hope that this explanation resonates with the IRS, and it will refrain from citing Brockamp every time someone wants equitable tolling.  We will soon find out.

The Court then addressed the IRS’s final argument regarding equitable tolling – that creating uncertainty in the timing of the collection injunction of IRC 6330(d)(1) will cause big problems.  Here the Court states:

The Commissioner protests that if equitable tolling is available, the IRS will not know whether it can proceed with a collection action after §6330(d)(1)’s deadline passes. The Commissioner acknowledges that the deadline is al­ready subject to tolling provisions found elsewhere in the Tax Code—for example, tolling is available to taxpayers lo­cated in a combat zone or disaster area. Tr. of Oral Arg.37–40. But he says that the IRS can easily account for these contingencies because it continuously monitors whether any taxpayer is in a combat zone or disaster area. Ibid. Tolling the §6330(d)(1) deadline outside these circum­stances, the Commissioner insists, would create much more uncertainty.

In its brief to the Supreme Court the Solicitor General cited unsupported data not in the record of the case about numbers of cases and IRS internal processes.  I do not understand how that is allowed.  This is not information the Supreme Court could take judicial notice of.  In reviewing the information provided, I did not understand how the IRS arrived at the information the Solicitor General cited to the Supreme Court.  The information did not seem correct but it’s hard to argue against unsupported information that just magically appears. 

Aside from the fact that the Solicitor General feels it is appropriate to raise new information not in the record and not publicly available in its brief, which undermines the whole point of having a record, the data was, in fact, wrong.  It later sent a letter to the Supreme Court walking back the information in its brief and stating that the data was wrong but offering new unsupported data.  I found this offensive to the system.  The Court did not comment on it.  Perhaps it’s normal for the Solicitor General and the agency to toss non-public data into a Supreme Court brief, but I cannot understand how that is appropriate.

The IRS has to deal with uncertainty that a Tax Court case has begun and the collection injunction has come into existence all the time.  No better example exists than what has happened at the Tax Court during the pandemic.  By failing to notify the IRS of the filing of a Tax Court petition for a few months, the Tax Court set the IRS off into collection mode.  This has created problems for taxpayers and for the IRS but they are problems that get worked out and this has happened with thousands of cases.  Arguing that allowing the taxpayer to raise equitable tolling because it will create a problem when the problem already exists and gets fixed on a regular basis should not serve as a reason for preventing equitable tolling.  That solution is anything but equitable for individuals who miss the deadline for a good reason.

In responding to the IRS’s equitable tolling statute of limitations and levy authority uncertainty argument, the Supreme Court avoided discussing the two statutory extensions that the IRS said it could easily deal with (i.e., the IRC 7508 combat zone and IRC 7508A disaster declaration extensions) and simply focused on the more common statutory extension provided in IRC 7502, the timely-mailing-is-timely-filing extension.  The Court wrote:

We are not convinced that the possibility of equitable tolling for the relatively small number of petitions at issue in this case will appreciably add to the uncertainty already present in the process. To take the most obvious example, petitions for review are considered filed when mailed. 26 U. S. C. §7502(a)(1). The 30-day deadline thus may come and go before a petition “filed” within that time comes to the IRS’s attention. Presumably, the IRS does not monitor when petitions for review are mailed. So it is not as if the IRS can confidently rush to seize property on day 31 anyway.

Thus, one would expect that the equitable tolling statute of limitations and levy authority uncertainty argument will be rejected as well in a future court case involving equitable tolling of the IRC 6213(a) deficiency petition filing deadline.

The Supreme Court’s decision sends the Boechler law firm back to the Tax Court which will now decide if the late petition meets the equitable tolling tests.  Because the Tax Court has previously determined all of its deadlines for hearing cases are jurisdictional, it has not developed a body of law on equitable tolling.  Undoubtedly, it will now look to equitable tolling jurisprudence developed in other jurisdictions that did not bar its consideration.  What should we expect?

As the Tax Clinic’s brief points out, courts have generally developed three bases for applying equitable tolling: 1) actively misleading taxpayers about the filing deadline as the IRS did in Rubel, Matuszak and Nauflett; 2) extraordinary circumstances which prevent taxpayers from timely filing as occurred in Castillo and Atuke; and 3) timely filing petitions in the wrong forum as regularly happens and as we discussed here.

One of the first cases that the Tax Court may hear is the Castillo case which has been held by the Second Circuit awaiting the decision in Boechler.  The Fordham Tax Clinic represents Ms. Castillo who has yet to receive her CDP notice of determination even though it was mailed by the IRS to her last known address more than two years ago.  Postal records show it has never been delivered.  She filed her CDP petition late after finding out about the CDP notice of determination through an informal channel long after the deadline for filing passed. Castillo should provide the Tax Court with a slam dunk opportunity to grant equitable tolling and begin to develop its jurisprudence on this issue.  Undoubtedly petitioners will seek the benefit of equitable tolling without the favorable facts present in the Castillo case and the Tax Court will have the opportunity over the next few years to set the standards it will apply in letting in the handful of cases with deserving facts.  If you are bringing an equitable tolling case to the Tax Court look at the factors other courts have developed and bring deserving cases to the Court with well-developed arguments.

Filed Under: Collection Due Process, Equitable tolling, Federal Courts - Jurisdiction, SCOTUS, Tax Court

What Happens After Boechler – Part 1: The IRS Argues IRC 6330 is Unique

April 25, 2022 by 4 Comments

In Boechler, the Supreme Court parsed the language of IRC 6330 looking for a clear statement from Congress that Congress intended to make into a jurisdictional limit the 30-day deadline to file a Tax Court petition after a Collection Due Process (CDP) notice of determination.   It did not find that clear statement. 

The next big fight will be interpreting IRC 6213(a) to determine if Congress made a clear statement in that provision.  In today’s blog post and in the posts in this series that will follow, I will examine the arguments the IRS will make based on the arguments it has made previously.  The posts will focus on the clear statement rule since the Supreme Court has held on numerous occasions that two tests apply in determining if a statute provides a jurisdictional time frame.  Carl Smith blogged about the jurisdictional nature of the time period in IRC 6213(a) two years ago when the Tax Clinic at the Legal Services Center filed motions for reconsideration in three cases with strong equitable facts and favorable merits arguments. 

In addition to the clear statement rule, the second test – whether controlling Supreme Court jurisprudence exists to create a stare decisis exception to the general rule that filing deadlines are not jurisdictional – clearly does not apply to IRC 6213(a), since the question of whether the time period for filing a petition in Tax Court is jurisdictional has never resulted in a Supreme Court decision.  The Tax Court (in Guralnik) and the IRS have pointed to a long list of lower court opinions holding the IRC 6213(a) filing deadline jurisdictional.  Those cases do not qualify for the stare decisis exception. 

In Boechler, the IRS also cited that IRC 6213(a) precedent to the Supreme Court when arguing that Congress in 1998 intended to make the CDP filing deadline jurisdictional.  The Court not only rejected this argument, but also dismissed giving any deference to the IRC 6213(a) authority as follows:

The Commissioner’s weakest argument is his last: He insists that § 6330(d)(1)’s filing deadline is jurisdictional because at the time that deadline was enacted, lower courts had held that an analogous tax provision regarding IRS deficiency determinations is jurisdictional. (That provision says that “[w]ithin 90 days . . . the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.” 26 U.S.C. § 6213(a).) According to the Commissioner, Congress was aware of these lower court cases and expected § 6330(d)(1)’s time limit to have the same effect. So, he says, the statutory backdrop resolves any doubt that might linger in the text.

The Commissioner’s argument misses the mark. The cases he cites almost all predate this Court’s effort to “bring some discipline” to the use of the term “jurisdictional.”  Henderson, 562 U.S., at 435. And while this Court has been willing to treat “‘a long line of [Supreme] Cour[t] decisions left undisturbed by Congress’” as a clear indication that a requirement is jurisdictional, Fort Bend County v. Davis, 587 U.S. ___, ___, 139 S. Ct. 1843 (2019), no such “long line” of authority exists here.

So, I will spend no further time on the second test and focus exclusively on the clear statement rule.  I assume the IRS will do the same.

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The IRS will argue that Congress created IRC 6330 as a benefit for taxpayers uniquely crafted to play a highly protective role by a Congress seeking to remedy perceived IRS abuses.  This makes IRC 6330 special and the outcome in Boechler limited. 

Looking back almost 100 years, you can find that the deficiency procedure created in 1924 also resulted from a Congress that sought to protect taxpayers from having to pay the relatively new income and estate taxes before contesting IRS adjustments.  The legislative history has statements about allowing taxpayers to avoid the need to go into bankruptcy because of an inability to pay and an inability to contest the additional taxes in court without first paying.  While the general perception sees the CDP provisions as taxpayer friendly ones and perceives, at this point in time, the deficiency procedures simply as the way the code is structured, both provisions arose out of a desire to protect taxpayer rights.  CDP provisions arrived later after Congress began enacting assessable penalties that skirted the deficiency procedures and after it broadened the scope of citizens impacted by taxes from the narrow band of high income individuals taxed in 1924 to the entire populace by 1998.  So, we shouldn’t dismiss Boechler as unique because it pertains to a provision designed to protect taxpayers.

Parsing IRC 6213(a) looking for a link between the grant of jurisdiction and the time period for filing presents an even greater challenge for the IRS than IRC 6330.  IRC 6213(a) just doesn’t link the time period for filing the petition with the grant of jurisdiction.  Bryan Camp’s article New Thinking About Jurisdictional Time Periods in the Tax Code (January 21, 2019), 73 The Tax Lawyer 1 (2019) parses several Tax Court jurisdictional provisions and determines that IRC 6213 does not link the time period to the grant of jurisdiction.  In getting to the parsing of the current language, Bryan takes a long walk through the history of IRC 6213(a) and how it arrived at its current language.  He then walks through the current language of this section of the Code:

The text of sentence (1) is not the kind of text that the Supreme Court has ever held to speak in jurisdictional terms. It contains no mandatory language, such as “the taxpayer must file . . . .” Even if it had mandatory language, the Court has repeatedly said that “Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it.” 101 And there is nothing special about the text in sentence (1) of section 6213(a). It says nothing about what powers the Tax Court has. It says only what a taxpayer must do: petition for redetermination.

Sentence (4) does contain the magic word “jurisdiction.” The new thinking teaches that even the magic word “jurisdiction” appearing somewhere in the statute is not the kind of “clear statement” needed to overcome the presumption unless it hooks up to the limitations period tightly. At first glance, sentence (4) appears to contain the requisite connection because it references the need for a “timely petition.”

A closer look at what sentence (4) does dispels the appearance. The sentence removes power from the Tax Court in the face of an untimely petition. What power? Why, the power granted the Tax Court in sentence (3), the power to enjoin the Service. Sentence (4) does not say that the Tax Court shall have no powers at all in the face of an untimely petition, just that it will not have jurisdiction to enjoin or order a refund. The word jurisdiction in sentence (4) thus quite reasonably links to the Tax Court’s power to enjoin given in sentence (3). But nothing in sentence (4) hooks the timing requirements in sentence (1) to the jurisdictional grant in section 6214 to redetermine a deficiency.

Bryan discusses the link between IRC 6213 and 6214.  He finds that each provision contains a separate grant of jurisdiction.  Section 6213 creates jurisdiction to prohibit assessment with an injunction while section 6214 gives jurisdiction to redetermine a deficiency.  The injunction power, another taxpayer friendly provision, was added to the Code in 1988 as part of the first Taxpayer Bill of Rights.  Bryan points out that the word jurisdiction refers to the Tax Court’s power to enjoin and to issue a refund and not time limitations.  Even the title of the provision supports this reading – “Restrictions Applicable to Deficiencies: Petition to Tax Court.”

The Supreme Court’s precedent on jurisdiction does not turn on whether a statute seeks to assist or other factors that might make certain provisions unique.  Instead, it starts with a presumption that a time period is not jurisdictional.  It moves from that presumption to examining the statute to determine whether Congress has made a clear statement.  Making the determination requires carefully examining the text of the statute.  As described above in the language quoted from Bryan’s article, the text does not lead to the conclusion that IRC 6213(a) links the 90-day period to filing a petition to the grant of jurisdiction.

Not only is the text important but context is as well.  How does the time period relate to the statutory scheme surrounding the provision?  Bryan’s article looks at legislative context, judicial context and statutory context in explaining why, in none of these contexts, IRC 6213 provides the type of language or history that suggests the 90-day period for filing of petition creates a jurisdictional rule.

The main reason why the courts of appeal in Tilden v. Commissioner, 846 F.3d 882 (7th Cir. 2017), and Organic Cannabis Foundation v. Commissioner, 962 F.3d 1082 (9th Cir. 2020), held the IRC 6213(a) filing deadline jurisdictional under the “clear statement” exception – despite the first sentence of that section not even containing the word “jurisdiction” – is the word “jurisdiction” in the fourth sentence of IRC 6213(a), which limits the Tax Court’s injunctive jurisdiction to cases in which the petition in the main Tax Court action under the first sentence is “timely filed”.  But, that logic can no longer be relied on after Boechler.  IRC 6330(e)(1) contains copycat language giving the Tax Court jurisdiction to enjoin the IRS from improper levying during a CDP case in the Tax Court only if there was a “timely petition” in the main CDP action under IRC 6330(d).  Boechler’s demolition of the argument that IRC 6330(e)(1) language can cause the IRC 6330(d)(1) filing deadline to be jurisdictional should fully undermine the argument that similar language in the fourth sentence of IRC 6213(a) makes the filing deadline in the first sentence of that subsection jurisdictional.  Here’s what the Court wrote about this in Boechler:

The Commissioner contends that a neighboring provision clarifies the jurisdictional effect of the filing deadline.  Section 6330(e)(1) provides that “if a [collection due process] hearing is requested . . . the levy actions which are the subject of the requested hearing . . . shall be suspended for the period during which such hearing, and appeals therein, are pending.” To enforce that suspension, a “proper court, including the Tax Court,” may “enjoi[n]” a “levy or proceeding during the time the suspension . . . is in force,” but “[t]he Tax Court shall have no jurisdiction under this paragraph to enjoin any action or proceeding unless a timely appeal has been filed under subsection (d)(1).” § 6330(e)(1).

Section 6330(e)(1) thus plainly conditions the Tax Court’s jurisdiction to enjoin a levy on a timely filing under § 6330(d)(1). According to the Commissioner, this suggests that § 6330(d)(1)’s filing deadline is also jurisdictional. It would be strange, the Commissioner says, to make the deadline a jurisdictional requirement for a particular remedy (an injunction), but not for the underlying merits proceeding itself. If that were so, the Tax Court could accept late-filed petitions but would lack jurisdiction to enjoin collection in such cases. So if the IRS disobeyed § 6330(e)(1)’s instruction to suspend the levy during the hearing and any appeal, the taxpayer would have to initiate a new proceeding in district court to make the IRS stop.

We are unmoved—and not only because the scenario the Commissioner posits would arise from the IRS’s own recalcitrance. The possibility of dual-track jurisdiction might strengthen the Commissioner’s argument that his interpretation is superior to Boechler’s. Yet as we have already explained, the Commissioner’s interpretation must be not only better, but also clear. And the prospect that § 6330(e)(1) deprives the Tax Court of authority to issue an injunction in a subset of appeals (where a petition for review is both filed late and accepted on equitable tolling grounds) does not carry the Commissioner over that line. If anything, § 6330(e)(1)’s clear statement—that “[t]he Tax Court shall have no jurisdiction . . . to enjoin any action or proceeding unless a timely appeal has been filed”—highlights the lack of such clarity in § 6330(d)(1).

Think of IRC 6213(a) when you read the quote.

Avoid thinking about IRC 6330 as somehow a unique tax statute creating a time period for filing a Tax Court petition that is not jurisdictional.  Instead, focus on the purpose and the language of IRC 6213(a) in recognizing that for the same reason, though parsing though different statutory language, that the CDP provision does not create a jurisdictional time period for filing a petition, neither does the deficiency statute.

Filed Under: Collection Due Process, Equitable tolling, Federal Courts - Jurisdiction, SCOTUS

Winning Boechler Took a Village

April 21, 2022 by 5 Comments

Today we welcome back retired blogger, Carl Smith.  Carl was the architect of the argument that time periods for filing a petition in Tax Court are not jurisdictional based on his reading of Supreme Court cases coming out in other areas of the law.  He worked with the Tax Clinic at the Legal Services Center of Harvard Law School to assist in writing briefs and preparing the students to make oral arguments to Circuit courts.  He worked to identify cases in which we should make the arguments, including the first case it entered (as an amicus), Guralnik v. Commissioner, in which the Tax Clinic made the argument in a case involving a snow day and the Tax Court rejected our argument 17-0.  He also worked with attorneys around the country who had these cases helping them craft their arguments and helping the Harvard students write amicus briefs.  Today’s post is Carl recognizing the village, but I want to recognize him for creating the legal designs that ultimately led to the Supreme Court’s decision.  Keith

In Boechler v. Commissioner, the Supreme Court held that the filing deadline for a Tax Court Collection Due Process petition is not jurisdictional and is subject to equitable tolling.  This victory was about 15 years in the making, and it took a village of almost all pro bono attorneys and clinicians to make it happen.  I wanted to send out thanks to those who helped along the way:

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Jason Grimes – the young pro bono Florida attorney who first made the argument, in a district court suit brought by the IRS to collect taxes, that one of the taxpayers should be entitled to raise section 6015 innocent spouse relief as a defense.  The district court (I think, erroneously) concluded that it lacked jurisdiction to consider relief under section 6015.  Jason persuaded the district court to equitably toll the section 6015(e) filing deadline so that the taxpayer could belatedly file a Tax Court petition.  United States v. Pollock, 2007 U.S. Dist. LEXIS 98153 (S.D. Fla. 2007).  When Jason filed the Tax Court petition on behalf of Mrs. Pollock, he argued that the recent Supreme Court non-tax case law making filing deadlines usually not jurisdictional required the Tax Court to accept the case.  The Tax Court rejected accepting the case, holding the deadline jurisdictional and not subject to equitable tolling.  Pollock v. Commissioner, 132 T.C. 21 (2009).  I became aware of the argument that Tax Court filing deadlines might no longer be jurisdictional when I read the Pollock opinion and the recent Supreme Court non-tax opinions concerning jurisdiction, and I made the same argument Jason did (also unsuccessfully) for a client of the Cardozo Tax Clinic in Gormeley v. Commissioner, T.C. Memo. 2009-252.  (By the way, appeals were docketed from both the Pollock and Gormeley opinions, but the taxpayer appeals were dropped before opinion after the IRS stopped pursuing Mrs. Pollock for collection and the IRS belatedly discovered (at my insistence that they look) that they had never sent Ms. Gormeley the notice of deficiency that underlay her section 6015 relief request.)

Keith Fogg – who, as the Director of the Tax Clinic at the Legal Services Center of Harvard Law School, agreed to lend his clinic’s name and assistance to an amicus brief that he and I filed in the Tax Court case of Guralnik v. Commissioner, 146 T.C. 230 (2016), arguing that the section 6330(d)(1) deadline to file a Tax Court Collection Due Process (CDP) petition is not jurisdictional and is subject to equitable tolling under the recent Supreme Court non-tax case law on jurisdiction and equitable tolling.  We lost that argument in the case by a vote of 17 judges to zero, which might have deterred Keith from ever making the argument again, but he persisted in lending the clinic’s name and students to many later cases in which the clinic  argued (either as counsel for taxpayers or as amicus) that the Tax Court filing deadlines for innocent spouse, CDP, deficiency, and whistleblower awards petitions are not jurisdictional and are subject to equitable tolling.  In addition to Boechler v. Commissioner, 967 F.3d 760 (8th Cir. 2020) (CDP), the Harvard clinic was involved in Organic Cannabis Foundation LLC v. Commissioner, 962 F.3d 1082 (9th Cir. 2020) (deficiency); Myers v. Commissioner, 928 F.3d 1025 (9th Cir. 2019) (whistleblower award); Nauflett v. Commissioner, 892 F.3d 649 (4th Cir. 2018) (innocent spouse); Cunningham v. Commissioner, 716 Fed. Appx. 182 (4th Cir. 2018) (CDP); Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018) (CDP); Matuszak v. Commissioner, 862 F.3d 192 (2d Cir. 2017) (innocent spouse); and Rubel v. Commissioner, 856 F.3d 301 (3d Cir. 2017) (innocent spouse).

Amy Feinberg – a student of Keith’s in the Tax Clinic who did oral argument to the 4th Cir. in Cunningham while a Harvard Law student, and then, while at Latham & Watkins, persuaded her firm to allow her to do the oral argument in the 8th Cir. in Boechler pro bono.  Amy also persuaded her firm to do the Supreme Court Boechler case pro bono.  Amy also helped draft the taxpayer’s Supreme Court filings.  In addition to Amy, Harvard Law Students Jeff Zink, now an associate with Covington and Burling in D.C., argued the Matuszak case before the Second Circuit and Allison Bray, now an associate with Kirkland and Ellis in San Francisco, argued the Nauflett case before the Fourth Circuit.  Numerous students at the Tax Clinic assisted in writing amicus briefs over the six years since the Tax Clinic began pursuing this issue.  Jonathan Blake and Nathan Raab worked on the amicus brief in Boechler following a long line of prior clinic students. 

Melissa Sherry – the Latham attorney who took on the Supreme Court Boechler case pro bono and did one of the most outstanding oral arguments I have ever heard and who did briefing in the Supreme Court case that improved on several of the arguments that Keith and I had first made in Guralnik.

Carolyn Flynn – a Latham attorney who helped write the Supreme Court briefs in Boechler.

Joseph DiRuzzo – who, at my suggestion, entered a pro bono appearance for the petitioner in Myers v. Commissioner, where Joe successfully argued that the whistleblower award filing deadline at section 7623(b)(4) is not jurisdictional and is subject to equitable tolling.  Myers created the Circuit split that caused the Supreme Court to grant review in Boechler, since there is no practical difference between the language of sections 6330(d)(1) and 7623(b)(4).

David Clark Thompson – who represented the taxpayer in Boechler in the Tax Court and 8th Cir. and had the wisdom to make the argument that the Harvard clinic had made in Duggan to the 9th Cir.

Elizabeth Maresca – Director of the tax clinic at Fordham, who decided to pursue the argument that the CDP petition filing deadline is not jurisdictional and is subject to equitable tolling in the factually-appealing case of Castillo v. Commissioner (currently pending in the 2d Cir., waiting the Boechler ruling) – a case much cited in the briefs in the Supreme Court in Boechler.

Nina Olson – who, as IRS National Taxpayer Advocate, argued that Congress should clarify that all Tax Court petition filing deadlines are not jurisdictional and are subject to equitable tolling.  Later, as the Director of the Center for Taxpayer Rights, Nina also lent her organization’s name to briefs drafted by Keith, me, and students in the Harvard clinic in Boechler.

Frank Agostino – who, acting pro bono, raised the Boechler argument in a late-filed CDP case apparently appealable to the D.C. Circuit, Amanasu Environment Crop. v. Commissioner, T.C. Docket No. 5192-20L, even before the Supreme Court granted cert. in Boechler.  Frank was hoping not only to benefit the taxpayer, but create a direct Circuit split with the 8th Cir. Opinion in Boechler over the section 6330(d)(1) filing deadline – on the assumption that the D.C. Circuit panel would feel compelled to follow a prior panel’s Myers opinion involving the whistleblower award filing deadline.  To this end, in April 2021, Frank also successfully made a motion to remove the case’s original small tax case designation.  However, the Tax Court deferred deciding the pending motion to dismiss in the case until after the Boechler opinion was issued.

Lavar Taylor and team at Skadden, Arps, Slate, Meagher & Flom LLP (Sam Auld, Peter Bruland, Shay Dvoretzky and Emily Kennedy) – who wrote excellent amicus briefs in support of Boechler.

Filed Under: Collection Due Process, Equitable tolling, SCOTUS Tagged With:

Supreme Court Decides Boechler Case

April 21, 2022 by Leave a Comment

The Supreme Court held 9-0 that the time for filing a petition in a Collection Due Process case is not a jurisdictional time period.  It also held that late filing is subject to equitable tolling.  A copy of the opinion is here.  We will have more about the case in days to come.

Filed Under: Collection Due Process, Equitable tolling, SCOTUS

No Rehearing En Banc for Goldring: Is Supreme Court Review Possible?

March 25, 2022 by Leave a Comment

The last time we talked about Goldring v. United States, 15 F.4th 639 (5th Cir. Oct. 4, 2021), the taxpayers had won their case for a refund of deficiency interest, creating a circuit split with FleetBoston Fin. Corp v. United States, 483 F.3d 1345 (Fed. Cir. 2007).  On November 18th, the government petitioned for a rehearing en banc.

On March 2, 2022, after briefing by the parties in early December, the court denied the petition for rehearing en banc.  The court was polled, with seven judges (Smith, Stewart, Dennis, Haynes, Graves, Higginson, and Costa) voting for rehearing and ten judges (Owen, Jones, Elrod, Southwick, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson) voting against.  That may be the end of things, with taxpayers filing future cases in district courts rather than the Court of Federal Claims, hoping to repeat the Goldring result.

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It’s also possible that the government will consider filing a petition for a writ of certiorari, hoping to reverse.  For one thing, the government argued in its petition that there were more potential cases with this issue than I had anticipated.

The Chief Counsel, Internal Revenue Service, has advised us that nearly 4.4 million individual taxpayers have claimed successive credit elects in the past three years.  Chef Counsel estimates that approximately 25,000 of those individuals will have a later determined income-tax deficiency, and could file claims for refund of underpayment interest under the reasoning of the panel’s decision.  For corporate taxpayers, to whom the panel’s reasoning equally applies, Chief Counsel foresees roughly 2,000 potential refund claims, which could range into the multiple millions of dollars.  All of these claims must be manually processed, as the rule in this case would require the IRS to determine to what extent a taxpayer’s credit balances, year over year, offset a deficiency determination before interest can be computed on the difference.

Further, the panel’s opinion seemed to base the decision on a rationale with which the DOJ Tax Division strongly disagrees.  The panel started with a statement about the purpose of interest.  “Under the use-of-money principle, a taxpayer is liable for interest only when the Government does not have the use of money it is lawfully due.”  It later noted “the simple, undisputed fact that the IRS was never deprived of its use of the money the Goldrings lawfully owed it at any point during the five-year underpayment interest assessment period.”  But since the IRS held that money in accounts for other tax years, that sounds very much like a broad “netting” principle – that an overpayment in any tax year can be used to offset an underpayment in another tax year to reduce interest on the latter. 

The DOJ Tax Division, on the other hand, construes the use-of-money principle more narrowly, as an aid for interpretation when the statute is ambiguous rather than a broad equitable principle.  See a 2012 version of the DOJ Tax Division Settlement Reference Manual, specifically Appendix Y (Interest), page 2:

While case law is important in interpreting these statutes, interest liability may not be extended beyond what the statute prescribes. For example, the “use-of-money” principle is frequently invoked in tax cases.  This principle, which is stated to be the rationale for charging interest, is a useful guide for interpreting interest statutes where the statute is ambiguous or where the application of the statute to a particular fact situation is unclear.  Nonetheless, the use-of-money principle is not a principle of substantive law and (contrary to arguments sometimes advanced by taxpayers) cannot impose liability for interest that is beyond the scope of the Code’s interest provisions. 

This is the most recent version of the manual I was able to find online.  I’m not sure if there’s a more recent version, but I would be surprised if this attitude had changed in the past ten years.

I’ve heard/seen the attitude toward “use-of-money” arguments expressed somewhat more, shall we say, sharply or forcefully by at least one or two DOJ attorneys over the years.  And the statutory netting provision of section 6621(d) is written more narrowly than the result in Goldring, arguably demonstrating that Congress specifically decided against offering the netting benefit that the Goldrings argued for.  So, I wouldn’t be surprised if the DOJ attorneys here argued for a trip to the Supreme Court to try to overturn the Goldring result.  I’m just speculating, of course, but I’d love to be a fly on the wall in the “Room of Lies” that Keith described here and here.

Filed Under: Interest, SCOTUS Tagged With:

January 2022 Digest

February 1, 2022 by 2 Comments

A lot has happened in the tax world since the year began, then filing season began last week, and the ABA Tax Section 2022 Virtual Midyear Meeting began yesterday. There are no signs that things will slow down soon, except for (maybe) IRS notices.

Procedurally Taxing will continually provide comprehensive updates and information, but if you fall behind with your reading or struggle to keep up- I’ll be digesting each month’s posts from here on out.

January’s posts highlighted the NTA’s Report, the ongoing impact of the pandemic, and recent Circuit splits.

National Taxpayer Advocate’s Report

NTA Report Released: Essential Reading: The Report is available and contains new features, including an enhanced summary of the Ten Most Serious Problems and a change in the methodology used to determine the Most Litigated Issues.

What are the Most Litigated Issues and What’s Happening in Collection?: A closer look at the Most Litigated Issues. EITC issues are often petitioned but rarely result in an opinion, suggesting that most are settled before trial. In Collection, lien cases referred to the DOJ have declined substantially over the years corresponding with the decline in Revenue Officers and resources.

Who Settles Cases – Appeals or Counsel (and Why?): An analysis of data on the number of Tax Court cases settled by Appeals or Counsel. An increasing percentage of settlements are handled by Counsel, but why? Possible reasons and possible solutions are considered.

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Where Have Tax Court Deficiency Cases Come from in the Past Decade?: Most deficiency cases have come from correspondence exams of low- and middle-income pro se taxpayers. The focus of IRS examinations over the past decade has influenced the cases that end up in Tax Court. A shift in focus may be coming as IRS seeks to hire attorneys to specifically combat syndicated conservation easements, abusive micro-captive insurance arrangements and other tax schemes.

The Melt – Cases That Drop Away in Tax Court: Around 20% of Tax Court cases get dismissed each year- likely due, in part, to untimely filed petitions. Also due to a failure to prosecute, that is the petitioner abandoned the process somewhere along the way. Ways to address this issue are worth exploring, such as increasing access to representation and implementing a model utilized by the Veterans Court of Appeals.

Supreme Court Updates and Information

Who Qualifies as Press and the Boechler Supreme Court Argument Today: Being consider a member of the press comes with benefits, including the option to attend Supreme Court arguments with a press day pass when Covid-restrictions end. In lieu of being there in person, real-time broadcast links of Oral Arguments are made available on the Supreme Court website.

Transcript of Boechler Oral Argument: A link to the transcript of the Boechler Oral Argument is provided and Keith shares his in-person experiences observing the Supreme Court and the options available to others who are interested in doing so when Covid-restrictions end.

Pandemic-Related Considerations

Refund Claims and Section 7508A: A well-informed analysis of the disaster area suspensions under section 7508A and the refund lookback limits. Does the language in section 7508A allow for an extended lookback period? The IRS Office of Chief Counsel doesn’t think so, but TAS has recommended that Congress amend section 6511(b)(2)(A) for that purpose, and there is an argument that a regulatory solution is already available.

 Making Additional Work for Yourself and Others: The IRS has been cashing taxpayer payments without acknowledging receipt of the associated return. This improper recordkeeping resulted in the IRS sending CP80 notices to taxpayers requesting duplicate returns. This created more work for the IRS, practitioners, and clients. The IRS, however, recently announced it would stop doing this, as summarized directly below.

IRS Announces Stoppage of Notice to Paper Filers Who Remitted Payment and Tax Court Announces Continued Zooming: The IRS will stop requesting duplicate returns from paper filers who remitted payments with their original returns. Members of Congress also made specific requests to the IRS with the goal of providing relief to taxpayers until the IRS backlog is resolved, including temporarily halting automated collections, among other things. The Tax Court announced all February trial sessions will be by Zoom.

Practice and Procedure Considerations

“But I’ve Always Done It That Way!” Practitioner Considerations on Subsequent Year Exams: A TIGTA recommended change to IRS procedure may increase the audit risk for taxpayers who do not respond to audit notices. There is no blanket prohibition on telling clients about audit rates and general likelihoods of audit, so practitioners should be able to advise their clients of this potentially emerging risk and ways to avoid it.

New Rules in Effect for Refund Claims For Section 41 Research Credits Raise A Number of Procedural Issues: New rules for research credit refund claims require extensive documentation which increases costs and the risk of a deficient claim determination. Procedures for determinations were issued at the beginning of the month and have generated concern among practitioners because a determination cannot be challenged with a traditional refund suit and because the IRS modified regulatory requirements without utilizing formal notice and comment procedures.

Tax Court News

Tax Court Going Remote for the Remainder of January[and February]: January calendars (and now February, as mentioned above) scheduled in-person sessions have switched to remote sessions due to ongoing Covid-concerns.

Tax Court Orders and Decisions

The Tacit Consent Doctrine May Extend Far Beyond Signing a Joint Return: The Court in Soni v. Commissioner, allowed the tacit consent doctrine (where facts and circumstances led to finding of consent on the part of a non-signing spouse) to apply to returns, power of attorney authorizations and forms 872. The doctrine could be expanded in future cases, so it should be kept in mind when representing innocent spouses.

Timely TFRP Appeal?: The administrative 60-day deadline to respond to TFRP notices is discussed in an order requesting that the IRS supplement its motion for summary judgment. The origin of a deadline is important. Jurisdictional deadlines are different from administrative deadlines, and cases involving administrative deadlines can be reviewed for abuse of discretion.

Circuit Court Decisions

Eleventh Circuit finds Regulation Invalid under APA: The Eleventh Circuit, in Hewitt, calls into question who has the burden to show that a comment made during a notice and comment period: 1) was significant, and 2) consideration of it was adequate. The Tax Courts says it’s the taxpayer, the Eleventh Circuit says it’s the IRS, but what does this mean for everyone else?

The Fifth Circuit Parts Ways with the Ninth Circuit Regarding the Non-Willful FBAR Penalty: A difference in statutory interpretation results in a recent split between the Ninth and Fifth Circuits over whether the non-willful penalty under section 5321(a)(5)(A) should be assessed on a per-form or per-account basis. The Ninth Circuit held that legislative history, purpose, and fairness support a per-form penalty, but the Fifth Circuit held that Congress’ intent and the objective of the penalty support a finding that it’s per-account.

Goldring is Back with a Circuit Split: The Fifth Circuit addresses how underpayment interest should be computed on a later assessed deficiency when a taxpayer elects to credit forward an overpayment from an earlier filed return. It held “a taxpayer is liable for interest only when the Government does not have the use of money it is lawfully due.” This contrasts with other Circuits which have decided that the law allows the IRS to begin computing interest when an amount is “due and unpaid.”

Polselli v US: Circuit Split on Notice Rules for Summonses to Aid Collection: A recent Sixth Circuit decision continues a circuit split on a fundamental issue in IRS summons practice: does the IRS have to give notice when it issues a summons on accounts owned by third parties in the aid of collecting an assessed tax? The Sixth, Seventh and Tenth Circuits read section 7609 notice requirements and its exclusion without limitations, which contrasts with the Ninth Circuit’s more narrow interpretation.

D.C. Circuit Narrows Tax Court Whistleblower Award Jurisdiction: The D.C. Circuit overturns Tax Court precedent by holding that the Tax Court lacks jurisdiction over appeals of threshold rejections of whistleblower requests. Since all appeals of whistleblower cases go to the D.C. Circuit, the Tax Court is bound by the decision unless the Supreme Court takes up the issue. 

Liens and Judgments

Local Taxes and the Federal Tax Lien: The effect of the Tax Lien Act of 1966 was reiterated in United States v. Tilley.  Section 6323(a) sets up the first in time rule of law, but 6323(b) provides ten exceptions, including one for local property taxes, which allows a local lien to defeat a federal tax lien even when the local lien comes later in time.

Tax Judgments and Quiet Titles: Tax judgments can benefit the IRS beyond the 10-year federal collection statute of limitations. Boykin v. United States, like Tilley, involves real property held by nominal owners. The taxpayer brought suit to quiet title, the IRS counterclaimed that the money used to purchase the property was fraudulently transferred, and the taxpayer argued that a state statute of limitations prevented the IRS’s argument. The Boykin Court disagreed with the taxpayer relying upon Supreme Court precedent that state statutes do not override controlling federal statutes.

Bankruptcy and Taxes

Diving Beneath the Surface of In re Webb: An in-depth analysis of a technical bankruptcy issue that can impact taxes involving an election under section 1305, which allows postpetition tax claims to be deemed prepetition claims. The classification of the claims impacts whether a subsequent IRS refund offset violates a debtor’s rights.

Filed Under: Administrative Procedure Act (APA), Appeals, Bank Secrecy Act, Burden of Proof, Collection Due Process, Earned Income Credit, Equitable tolling, Exam, FBAR, Form 2848, Innocent Spouse, Interest, Judgment, Lien, Monthly Digest, Overpayment Interest, SCOTUS, Statutes of Limitation, Taxpayer advocate

Transcript of Boechler Oral Argument

January 13, 2022 by Leave a Comment

For those unable to listen to the Boechler hearing or unwilling to devote that much time to it, here is a link to the transcript of the argument.  I tried to listen to the argument, but it was a windy day on the farm causing me to catch bits and pieces but not the whole thing.  I am very thankful for the bill that passed in the fall that will bring upgraded internet to rural communities.

If you want to totally waste your time, you can read about my prior trips to the court below.

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Visiting the Supreme Court in Normal Times

I have had the good fortune to visit the Supreme Court on multiple occasions and based on those visits can suggest different ways to visit an argument once the pandemic allows the Court to return to normal or the next version of normal.

As a first-year law school student, I was obliged to participate in a moot court argument as part of the curriculum at my school.  The 80 students in my section all made an argument in front of a panel of professors, volunteer lawyers, or upper-class members.  Out of that group, I was one of 16 selected to move into the non-mandatory round leading to a champion.  The selected 16 were paired with a random class member.  I was fortunate to be paired with a friend and high school classmate, Faye Ehrenstamm, who has gone on to a distinguished career at the Department of Justice.  Faye and I made it to the finals where we lost to one of my good friends at the law school who deserved to win. 

I mention this story because it led to my first trip to the Supreme Court.  The mock case we argued in the winter of 1975 was based on Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).  Our final moot court argument occurred shortly before the real case was argued before the Supreme Court on March 25, 1975.  It arose out of Virginia and concerned the then-enforced mandatory fee schedules for legal services.  The lawyers for each side were on the bench at the law school for our argument in the final round, which made for a mighty engaged bench.  The friend who defeated me in the finals had a contact at the Supreme Court who was able to get us guest seats.  We drove up to DC and got to see our moot court judges argue a case before the Supreme Court with which we were intimately familiar.  It was a magical experience for a first-year law student and one I had hoped to create for my students who worked on the tax clinic’s amicus brief in Boechler.  Alas, the pandemic strikes again.

The guest seats in which I sat in 1975 provide a springboard for talking about how you can get to watch the Supreme Court in normal times or at least pre-pandemic normal times.  It’s been a couple decades since I last went to visit the Supreme Court so I could be a little dated on my knowledge. 

Most people who visit the Supreme Court in session do so by standing in line and coming in the front door of the court on their way to a seat in the public gallery.  Depending on the importance of the case, the weather, and the time of year, the line might be quite long or relatively short.  Once you get in, I think you can stay until the end of the day’s arguments or leave when tired of listening to an arcane discussion of some narrow point of law.  It’s also possible to watch the Court for three minutes if you just want to say that you have been by standing in a separate line that moves much faster. 

If you are a member of the bar of a state for three years and in good standing, you can become a member of the Supreme Court bar, which entitles you to sit in front of the “bar” at the Court in a section reserved for bar members.  You stand in line for this privilege as well, though the line is shorter and the possibility of getting in also depends on the popularity of the case being argued.  When you join the Supreme Court bar, you have the option to get admitted remotely or to do it during a session.  If you choose to do it during a session, there is usually a short ceremony at the beginning of each session in which your sponsor tells the Court your name and the Chief Judge welcomes you.  This would be a way to get into the Court and bypass the line on the day of your admission.  I think you get to stay after you are admitted.

If you happen to know someone on the Court or know someone who knows someone, you can watch the sessions as a guest as I did as a law student.  This is how I have typically seen cases because I have never joined the Supreme Court bar.  I do not remember whose guest I was in 1975, but I have subsequently been the guest of the Solicitor General, the Librarian of the Supreme Court and the Chief Justice of the Supreme Court.  If you come to the Court as a guest, you get to enter through a different portal than the public or the bar and sit in a chair on the side of the Court near the front.  When I worked for IRS Chief Counsel as a Branch Chief in the National Office, I worked in the development and perhaps in discussions in the Room of Lies on several cases that went to the Supreme Court.  These were the cases I went to watch.  Other than arriving early for an argument that preceded the case in which I was interested, I have had the good fortune to always watch a case in which I was intimately familiar with the facts and the law.

Of course, another path to watching a Supreme Court case is to be a member of the press.  Perhaps one day I will enter through that door, but I am not holding my breath for that to happen.

Filed Under: SCOTUS

Who Qualifies as Press and the Boechler Supreme Court Argument Today

January 12, 2022 by 3 Comments

When Les and I went to the last Tax Court judicial conference, we were told that we needed to follow the rules of the press at the conference which involved, inter alia, not attributing comments to specific speakers so everyone felt comfortable in the space.  It felt funny to be treated as part of the press, but there can be advantages.  Recently, a FOIA request was made in which PT asked to be treated as the press to obtain expedited treatment.  A request was also made by PT regarding early receipt of the National Taxpayer Advocate’s annual report.  The IRS agreed to both requests.  With thousands of subscribers, millions of page views, and a body of posts, I think it is fair to say that we qualify as the press and there is some court precedent supporting bloggers as members of the press as well as blog posts suggesting bloggers are members of the press.

Today, the Boechler case is being argued in the Supreme Court.  The issue is one the Harvard Tax Clinic has been working on for six years, and I wanted to attend the hearing.  The problem with attending the hearing is that because of the pandemic the justices would just as soon not sit in a room filled with hundreds of strangers, so the hearings before the Supreme Court at present are ones in which only essential Court personnel, the litigants and the press can attend. 

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Press Passes

A nice Tax Court judge who heard me talk about my desire to watch the Boechler oral argument suggested to me that perhaps I should seek to attend the hearing as a member of the press.  After all, no news outlet has provided more coverage of this case than PT, even if our audience may not be as large as some news vendors.  So I thought why not ask.  It turns out the Supreme Court has two categories of press passes – day passes and hard passes.  There’s a reason they are called hard passes.  They are definitely hard to come by.  Here is a list of the persons holding hard passes.  No bloggers on there, not even someone from the SCOTUSblog. For a SCOTUSblog post on the case, look here.

I thought I might have a shot at a day pass, and maybe I did; you can see the requirements here with additional details here, and I had a need to report from the Court for all of you – our faithful readers, but unfortunately the current restrictions only allow members of the press with hard passes and not day passes.  When I spoke to the friendly person at the Supreme Court about attendance, I did not get warm fuzzy feelings that she was interested in having me attend, but she did point me to the broadcast of the argument.  I pass along to any of you who have not listened to Supreme Court arguments but who might be interested in listening to this morning’s argument that same possibility.

The Argument

If you go to this link at 10:00 AM ET this morning, you should be able to hear the oral argument.  Melissa Sherry of Latham & Watkins is making the argument for the petitioner.  She and her team of Caroline Flynn and Amy Feinberg, a former student of the Harvard Tax Clinic who argued this issue before the 4th Circuit while a student and this case before the 8th Circuit remotely during the pandemic, have done an outstanding job of briefing the case.  I anticipate Melissa will make an excellent argument.  When I have had the opportunity to go to the Supreme Court in person in the past and see oral arguments, the person arguing for the Solicitor General’s office has always done an excellent job.  I expect no less today.

I provided links to the opening brief by the petitioner and the amicus briefs in this post.  Here are the answering brief of the government and the reply brief of the petitioner for those of you interested in a complete set.  At the ABA Tax Section mid-year meeting which starts at the end of this month, I will join Bryan Camp, Kandyce Korotky and Amy Feinberg on a panel taking place on February 2, 2022, from 12:30 – 2:00 PM ET to discuss the case and its possible impact.  You can register for the meeting here.

Filed Under: Collection Due Process, Equitable tolling, Federal Courts - Jurisdiction, SCOTUS, Statutes of Limitation, Tax Court