CDP Notice of Determination Sentence Causing Late Pro Se Petitions

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Guest blogger Carl Smith offers views on whether taxpayers may challenge a CDP determination even if the petition is filed in Tax Court one day late. Les

Congress has long known that pro se taxpayers have difficulty figuring out from IRS notices the last date to do an act. This is especially true for filings in the Tax Court.  In section 3463 of the IRS Restructuring and Reform Act of 1998, Congress (1) directed the IRS to include the last date to file in all notices of deficiency and (2) amended Code section 6213(a) to let taxpayers rely on any last date shown in such notice, even if that date was incorrect.  Probably by mere oversight, Congress made no similar directions as to the section 6330(d)(1) Collection Due Process (“CDP”) and section 6015(e)(1) stand-alone innocent spouse notices of determination that were also brought into existence by that act, and the IRS has chosen not to include similar “file by” dates in either of those notices of determination.

In CDP notices of determination, when it comes to stating the time period to file, the IRS has mysteriously chosen to use language that differs from the similar language in section 6015(e)(1) notices of determination. This is to report that there is a particular problem in the time period language used in CDP notices of determination.  That language is misleading pro se taxpayers into mailing their petitions to the Tax Court a day late.

I have not made an exhaustive search of all orders of dismissal that can now be found through the Tax Court’s order search function on its website going back to mid-2011. But, just reviewing orders of dismissal over the last 6 months or so, I discovered that, in 2015, in three separate Tax Court cases, pro se taxpayers mailed CDP petitions to the Tax Court a day late, misled, they said, by a sentence in the notices of determination.  By contrast, none was misled into filing late by the language in section 6015(e)(1) notices of determination.  The Tax Court dismissed all three CDP cases for lack of jurisdiction, noting Tax Court precedent that the time period in which to file a CDP petition is jurisdictional and cannot be extended by the court.  Duggan v. Commissioner, Tax Ct. Docket No. 4100-15L (order dated Jun. 26, 2015); Swanson v. Commissioner, Tax Court Docket No. 14406-15S (order dated Jan. 14, 2016) ; Pottgen v. Commissioner, Tax Court Docket No. 1410-15L (order dated Mar. 4, 2016).

At the very least, it is time for the IRS to redraft the CDP notice of determination sentence so that it does not anymore trick pro se taxpayers into filing late.


Prior to its recent amendment by the PATH Act, section 6330(d)(1) provided: “The person may, within 30 days of a determination under this section, appeal such determination to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter).”  (Emphasis added.)  This former language is what governed in all three cases.

In all three cases, the CDP notice of determination did not quote from the statute in providing the period in which to file a Tax Court petition. Instead, the IRS blended language from Tax Court Rule 25(a)(1) (discussing how to count days) and Reg. § 301.6330-1(f)(1) (“The taxpayer may appeal such determinations made by Appeals within the 30-day period commencing the day after the date of the Notice of Determination to the Tax Court.”) and wrote in the notice: “If you want to dispute this determination in court, you must file a petition with the United States Tax Court within a 30-day period beginning the day after the date of this letter.”  (Emphasis added).

To understand how the taxpayers in all three cases read this sentence, let’s use the facts of one of the cases, Duggan.  There, the IRS mailed the notice of determination on January 7, 2015.  As lawyers with experience in how to count days, we know that the IRS was trying to say that the date of the notice was day 0, the day following the date of the notice would be day 1, and the 30th day would be February 6, 2015 (since January has 31 days).  But, like the taxpayers in all three cases, Duggan thought he was being instructed not to count the date of the notice and that January 8, 2015 was the first day of the counting period (day zero, since if you start counting at 12:01 am on that day, a full day hasn’t elapsed until 12:01 am of the following day, January 9, 2015).  Under Duggan’s reading (one which I find grammatically plausible), the last date to mail the petition was February 7, 2015 – the day he mailed his petition to the Tax Court.  But, like the judge, we lawyers would call February 7, 2015, the 31st day after the date of the notice of determination.

In contrast to the filing period stated in CDP notices of determination, section 6015(e)(1) notices of determination contain language tracking more closely to the statute, stating: “If you disagree with our decision, you can file a petition with the United States Tax Court to review our denial.  You must file your petition within 90 days from the date of this letter.”  (Emphasis added.)

And the CDP notice of determination also used to track more closely to the statute. A CDP notice of determination issued on January 21, 2004, quoted in Rustam v. Commissioner, T.C. Memo. 2005-42, read:  “If you want to dispute this determination in court, you must file a petition with the United States Tax Court for a redetermination within 30 days from the date of this letter.” (Emphasis added.)  Whose bright idea was it to change this filing language to the present version?

Clearly, an ideal solution to this problem would be for the IRS to show a last date to file in both the CDP and section 6015 notices of determination.   But, there is a problem if the IRS puts in a last date to file and if the date shown is incorrectly late:  A taxpayer who relied on such an incorrect date would still have her case dismissed, since the Tax Court has held that these two time periods in which to file are jurisdictional and not subject to equitable tolling.

Twice in the past, Nina Olson has called for legislation similar to section 3463 for the innocent spouse time period. See NTA 2001 Annual Report at pp. 159-160; NTA 2006 Annual Report, Vol. 1, pp. 535-536. In the latter report, she speculated that the IRS won’t put in a date to file in section 6015(e)(1) notices of determination for fear of misleading a taxpayer into filing late in a situation where the courts cannot permit late filing.  The IRS knows it will occasionally make mistakes in calculating the last date to file.  It likely doesn’t want to be the cause of late filing.  But, oddly enough, the language the IRS uses in the current CDP notice is itself causing late filing.

Recent Events in the Three Cases

In two prior posts on PT, A Snow Holiday: Not if IRS Can Help It and Matuszak v Com’r: A Tax Court Innocent Spouse Equitable Tolling Case we reported that Keith and I, in two pending Tax Court cases, are questioning whether the time periods in which to file petitions in the Tax Court in a CDP case (Guralnik v. Commissioner) and in a stand-alone innocent spouse case (Matuszak v. Commissioner) can be equitably tolled.  They can’t be tolled under current Tax Court precedents that hold that those time periods are “jurisdictional”.  Jurisdictional time periods can never be equitably tolled.  But, neither the Tax Court nor any appellate court has considered the impact on these two Tax Court filing periods of Supreme Court opinions, issued since 2004, on the subject of equitable tolling and jurisdiction.  Those recent Supreme Court opinions hold that time periods to file are now rarely jurisdictional and that Congress can override that potential interpretation of any statute only by a “clear statement” that a time period is intended to be jurisdictional.  To date, all four opinions out of the Supreme Court in which a party has argued the “clear statement” exception have held that the time periods there involved were still not jurisdictional. Musacchio v. United States, 136 S. Ct. 709 (2016); United States v. Wong, 135 S. Ct. 1625 (2015); Sebelius v. Auburn Regional Med. Cntr., 133 S. Ct. 817 (2013); Henderson v. Shinseki, 562 U.S. 428 (2011).

Duggan has taken a pro se appeal to the Ninth Circuit, Docket No. 15-73819. His opening brief there is due April 11.  In the Tax Court, he primarily argued that it is a violation of his Due Process rights not to let his Tax Court case go forward, since the IRS misled him into filing late.  On March 16, 2016, Keith and I, as pro bono counsel for Ms. Matuszak, filed an unopposed motion for leave to file an amicus brief in Duggan’s appeal.  In the proposed brief, we argue (instead of Due Process) that the 30-day period in which to file a CDP petition in the Tax Court is not jurisdictional and is subject to equitable tolling.  We also point out that a defendant’s misleading the plaintiff into filing late is a common ground for the courts to impose equitable tolling. Glus v. Brooklyn, 359 U.S. 231 (1959).

The Pottgens are now represented by counsel. I have been in touch with that counsel.  As a result, on March 22, 2016, I became co-counsel on a motion they filed in the Tax Court to vacate Judge Ruwe’s order of dismissal.  The motion and accompanying legal memorandum make the same arguments that are being raised in the Duggan amicus brief that Keith and I drafted for the Ninth Circuit.  The Pottgens live in the Third Circuit.

Swanson cannot appeal his dismissal. His case was an S case.

Both Guralnik and Matuszak are appealable to the Second Circuit – absent some argument that a party would raise under Byers v. Commissioner, 740 F.3d 668 (D.C. Cir. 2014), that the cases are appealable to the D.C. Circuit.  It is a little unclear to me whether the Pottgens’ case could be appealed to the D.C. Circuit under Byers, since the D.C. Circuit in that case said that regional Circuits are the proper venue where one of the issues in a CDP case is a challenge to the underlying liability.  The Pottgens are not arguing that their tax was miscalculated, but among the issues they raised is that the IRS failed to properly credit overpayments from other years to the year involved in the CDP case.  Is that petition one “seeking redetermination of tax liability”, within the meaning of section 7482(b)(1)(A) – the provision that directs such cases to the regional Circuit of residence? Matuszak is an innocent spouse case, and no court has yet held whether or not such a case also falls within the language in section 7482(b)(1)(A) about redetermining tax liability. Guralnik, Matuszak, and Pottgen were all filed before the PATH Act amended the venue on appeal statute, for petitions filed after the date of enactment, to overrule Byers and instead direct all CDP and section 6015(e) cases to the regional Circuit of residence by new subparagrpahs (F) and (G) to section 7482(b)(1).


Because the Ninth Circuit has such a large backlog of cases, I don’t expect an opinion out of that court in Duggan before early 2018.  On the other hand, I expect Tax Court opinions in Guralnik, Matuszak, and Pottgen long before then (probably late 2016) – even if one or more of these opinions is forced to go through en banc Tax Court review.  For Keith and me to win our arguments in the Tax Court cases, since we are asking the Tax Court to overrule its prior precedents, such proposed opinions would have to be considered en banc.

Thus, the Ninth Circuit opinion in Duggan would only likely precede, and thereby possibly influence, any appeals of the three pending Tax Court cases in other Circuits.

The PATH Act amendments to section 6330(d)(1) were minor and so not likely to produce different jurisdictional or equitable tolling rulings going forward. Section 424 of the PATH Act modified that paragraph, prospectively, to read:  “The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).”  That is, the Tax Court proceeding is no longer called an “appeal”, and a “petition” is now specifically mentioned.  No changes were made to the parenthetical jurisdictional grant.  In addition, section 424 added a new Code section 6330(d)(2) that provides for a tolling of the 30-day period while a bankruptcy stay is in effect.  Having one statutory exception does not preclude the application of the judicial doctrine of equitable tolling.  In Holland v. Florida, 560 U.S. 631 (2010),the federal habeas statute there involved was held subject to equitable tolling, even though it had a single statutory tolling exception that applied during the pendency of state habeas proceedings.


Carlton Smith About Carlton Smith

Carlton M. Smith worked (as an associate and partner) at Roberts & Holland LLP in Manhattan from 1983-1999. From 2003 to 2013, he was the Director of the Cardozo School of Law tax clinic. In his retirement, he volunteers with the tax clinic at Harvard, where he was Acting Director from January to June 2019.


  1. Norman Diamond says

    It’s impossible to state the last filing date in an IRS notice. As another author pointed out in this blog, there is little correlation between the date written in a notice and the date the notice was mailed. Someone said computation of time depends on the mailing date not the date in the notice, and I sure hope that’s true.

    As I commented, either on that author’s posting or elsewhere, I received two defective notices from the IRS. In both cases I was eligible for CDP Hearings. One was closed by a notice which whose contents but not title somewhat resembled a Notice of Determination, was sent by registered mail with a postal meter one day later than the date in the notice, and was treated by Tax Court and the IRS sometimes as a Notice of Determination and sometimes not, and I learned too late that I should have moved to dismiss my own Tax Court case for lack of jurisdiction since it wasn’t a Notice of Determination. One was closed by a simpler letter, was sent by ordinary mail (not registered) with a postal meter MORE THAN A MONTH later than the date in the letter, and was treated by Tax Court and the IRS as not being a Notice of Determination, therefore dismissed for lack of jurisdiction.

    On the other hand … “If you want to dispute this determination in court, you must file a petition with the United States Tax Court within a 30-day period beginning the day after the date of this letter” looks pretty unambiguous to me. Despite being a computer programmer accustomed to counting from zero, and despite not being a lawyer, I don’t see any way to count that 30-day period as starting from zero. A 30-day period consists of 30 days, the period begins after the date of … well as mentioned, I sure hope it’s the date of mailing not the date written in the letter. To help anyone who’s still confused, a 1-day period, beginning the day after whichever date, is 1 day long and the count does not begin at zero.

  2. I feel no sorrow for those who cannot count up to 30.

    The CDP notice tells the reader that the key petition period is “30 days.” But Duggan, and the others, unreasonably construed that period as “one month.” Yet we all know that “one month” will equal “30 days” only four times out of twelve.

    So Duggan’s explanation for why he mailed his petition on February 7th for a January 7th dated notice is not “grammatically plausible”; it is mathematically implausible. What’s plausible is that explanation is a mere post-hoc rationalization conjured after an IRS dismissal motion induced an “uh, oh” moment.

    To be sure, we live in a day of “Use By” and “Sell By” dates. But “File By” or “Mail By” dates also mandated by law go too far. Tax simplification, yes; tax simpletons, no.

    • Carl Smith says

      Jason T is pretty hard on pro se taxpayers. While I can’t prove it, I don’t think these were post hoc excuses for miscounting or misunderstanding the difference between 30 days and a month. You should see the amount of underlining of the language on the notice of determination in Mr. Swanson’s response to the motion to dismiss (where he even quadruple underlined the words “day after”). In that response, he was adamant that he had filed in the time period stated in the notice. The notice was issued on April 27, 2015, and he mailed a petition to the Tax Court on May 28, 2015. If he had thought 30 days meant a month, he would have mailed the petition on May 27, 2015.

      Congress obviously did not agree with Jason T. with respect to the most common notice leading to a Tax Court petition — the notice of deficiency. In Rochelle v. Commissioner, 116 T.C. 356 (2001), the judges of the Tax Court were badly split when a notice of deficiency omitted the last date to file that was required to be included by sec. 3643 of the 1998 Act, and the taxpayer mailed his petition to the Tax Court 53 days late.

      In Rochelle, nine judges ruled that the notice was valid, and they did not think that, just because the “file by” date was missing, the taxpayer plausibly concluded that the time period he had to file was infinite (given the sentence in the notice also mentioning the 90-day period). The taxpayer made no argument that he miscounted the 90 days.

      Four judges thought the notice of deficiency should be declared invalid.

      Three more judges thought the notice should be treated as valid, but there should be allowed an unlimited time (or at least the 53 extra days until mailing involved in the case) to file a valid Tax Court petition in response thereto.

      One of the judges who voted in the majority, Judge Beghe, wrote separately, expressing his concern that the IRS not take this case as license not to put the “file by” date in future notices of deficiency — especially in light of pro se taxpayers. Judge Beghe wrote:

      Because petitioner has failed to dispel the impression that the late filing of his petition was a product of his conscious resolve to test the validity of the notice, or even to allege that he was confused by the notice, I don’t believe he’s entitled to a ticket of admission to the Tax Court. I’m therefore comfortable in making our usual comment that he’s not without a remedy — he can pay the deficiency, and claim and sue for a refund, see, e.g., Zimmerman v. Commissioner, 105 T.C. 220, 226 n. 4 (1995) (citing McCormick v. Commissioner, 55 T.C. 138, 142 (1970)). In any event, attorneys, who are professionally charged with the responsibility generally of counting days for statute of limitations purposes — not just in tax cases — should be held to a higher standard than other pro se petitioners. Cf. Rendina v. Commissioner, T.C. Memo 1996-392; Sisson v. Commissioner, T.C. Memo 1994-545; deRochemont v. Commissioner, T.C. Memo 1991-600, citing Whitaker v. Commissioner, T.C. Memo 1988-418 (citing Fihe v. Commissioner, 265 F.2d 511, 513 (9th Cir. 1958), affg. a Memorandum Opinion of this Court)).

      All this leaves for another day the question of what to do with the case of a late filing pro se lay petitioner, who might be suffering from cognitive deficit, dyscalculia, or other disability. The resulting residual uncertainty about what we would do in such a case should help to stiffen the Commissioner’s resolve to achieve 100-percent compliance in the future.

      • Unlike Profs Smith and Fogg, I trust that the American citizen can (at least) count up to 30. Their labors to assist the few who might suffer from “dyscalculia,” or other numerically related maladies, amount to tax quackery.

        Although Carl tries to fool us with date sleight-of-hand, he validates my earlier point:

        Swanson held the same unreasonable “30 days must mean one month” belief that waylaid Duggan. Carl tells us that we should see how Mr. Swanson four times underlined the “day after” language in his CDP Notice of Determination to emphasize that he had filed a timely petition. Well, let’s pretend that we see it now. Now let’s follow that quadruple underlining effort to its (il)logical conclusion–

        1. CDP Notice of Determination dated April 27, 2015;
        2. Tax Court petition due within 30 days of the “day after” April 27, 2015;
        3. Underline “day after” four times;
        4. Day after April 27, 2015 is April 28, 2015;
        5. “30 days must mean one month”; and so,
        6. File Tax Court petition one month from April 28, 2015, on May 28, 2015.

        Thus went Swanson’s swan song.

        The good profs should trust in the American citizens’ ability to count up to 30. Yes, a few will lose their cases along the way. But that probability is not unconscionable; at least not enough to warrant the federal government’s expenditure of its (supposedly limited) staff and budget resources on Profs Smith’s & Fogg’s Endless Equitable Tolling Tax Elixir.

  3. Norman Diamond says

    Rochelle had the wits to move for dismissal of his own case for lack of jurisdiction because the notice was deficient. How could that be anything other than a slam dunk?

    The circuit judges wrote: “The notice showed the mailing date […]”. Such a coincidence is possible but that doesn’t make the notice’s display reliable. If someone needs evidence of mailing dates differing from notice dates, including some that are registered, I ask owners of this blog to give my e-mail address to someone who has such a worthy cause.

  4. Norman Diamond says

    Although I still think the IRS notice adequately described which 30 day period is involved, to some extent it is understandable why laypersons might not notice that 30 days doesn’t mean a month.

    In a previous millennium I read a bank’s loan contract stating that interest would be calculated as though each month had 30 days and each year had 360 days. To the best of my understanding, in commerce, invoices often state things like “net 30 days” but really mean a month. A person who encounters problems with the IRS for the first time might not be aware that laws do not use the same informality.

    This might be why a law was changed to require IRS notices to state the actual deadline for some matters, though I still think it’s impossible since the mailing date isn’t known yet when the notice is printed.

    Perhaps it would help to add one sentence to all IRS notices: A period denominated in days means that exact number of days, not a number of months.

    (Except that it’s not always that exact number of days. Hey, a new question: If the last day of the period is a legal holiday in the District of Columbia but not in the state where the person’s local Appeals office is located or the state where the person resides, is the period still extended to the next business day? What about the opposite case, if the District of Columbia is open for business but the person’s local Appeals office is closed?)

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