Information from Court Practice and Procedure Programming at ABA Tax Section Meeting Part 1

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This committee put on a panel including representatives from the Tax Court, the Court of Federal Claims, the Tax Division of the Department of Justice and the Procedure and Administration Division of Chief Counsel (P&A).  I took notes while they were speaking and provide you here with what I found important from the discussion.  Today’s post will focus on the comments from the two judges.  Tomorrow’s post will focus on the comments from P&A with lots of charts.


Tax Court Judge Toro reported that electronic filing of petitions is trending up though the number of electronic filed petitions remains lower than I would expect.  In 2021 the number of electronically filed petitions was 17%.  Electronic petitions provide almost instant confirmation of the filing of the petition.  Filing the petition electronically can eliminate so many problems involving late filing of petitions.  I understand why the Court will struggle to entice pro se petitioners to electronic filing but practitioners should embrace this filing method. 

The comments to the most recently proposed Tax Court rule changes are due by today, Wednesday, May 25, 2022. The comments can be emailed to or snail mailed to the Clerk of Court at the usual address. The Tax Clinic at the Legal Services Center of Harvard Law School sent in comments recently. On the point of electronic filing, the Clinic commented that the Court could encourage more electronic filing by pro se petitioners by making its instructions in the petition package more explicit. Others may have better ideas on how to improve the percentage of electronically filed petitions. No doubt, the Court would appreciate your ideas.

Judge Toro said that the Tax Court has now cleared out its backlog of petitions.  I discussed this recently in my post providing an update on premature assessments.  He said the Court closed over 20,000 cases in 2021.  It held 122 regular trial sessions and 78 small tax trial sessions.  It issued 320 opinions in regular cases and 12 summary opinions.  The number of summary opinions seemed too low to me.  He did not mention the number of bench opinions.  I don’t know if special trial judges are rendering more bench opinions than in prior years or if the number of trials in small cases is way down or if many more of the small cases are being decided by other orders.  The Court has not issued a high number of bench opinions in the past though I haven’t checked recently to see if its practice has changed.

In a couple of Dawson updates, Judge Toro said that the clinic letters will now become a visible part of the docket in hopes that this will make it easier for pro se petitioners to find a clinic. I think the letter to which he is referring is the letter that the Court stuffs into the envelope when it sends a new pro se petitioner notice of receipt of their petition and instructions on what will happen. The clinic letter advises petitioners in each of the Court’s 74 locations of the available clinics at that location. He also said that Dawson is now able to accommodate the sealing of a document in a case without sealing the entire case record. He also noted that the Court has added back the feature that allows for searching orders and opinions.

Judge Wolski from the Court of Federal Claims came and spoke about some activity in that court.  This was one of the first times the committee has invited a member of that court to participate in its panel on updates.  I found the presence of Judge Wolski a welcome addition to the panel.  He started by speaking about some rule changes at the court last August prompted by the changes to partnership law in the 2015 Act.  He said the Court of Federal Claims started with Tax Court Rules 251-257.  He invited comments to the Court on additional rules it should adopt.  Tax issues are a minor part of the docket of the Court of Federal Claims and it has not paid as much attention to updating its rules on tax issues as it might have.

Judge Wolski then moved to talking about jurisdiction in light of Boechler.  He was extremely well versed in the law and the special place that the Court of Federal Claims holds due to its precedent.  The Court of Federal Claims has prior Supreme Court precedent on jurisdictional issues regarding the timing of filing a Tucker Act case in the form of Kendall v. United States, 107 U.S. 123 (1883) and John R. Sand and Gravel v. United States,  U.S.  (2008).  As a result of the precedent set by these cases, the Supreme Court’s position is that time periods default to claims processing rules unless Congress makes a clear statement that the time period is jurisdictional.  In issues involving the Tax Court’s jurisdiction no prior Supreme Court precedent exists so courts must look at the clear statement rule.  In the Claims Court the prior Supreme Court precedent will control the Tucker Act cases making the time period in those cases jurisdictional.  There is a deep split, however, regarding the Little Tucker Act through which cases can also enter the district court.  Seven circuits have said the time period is not jurisdictional and three (the 8th, 11th and Federal Circuit) have said that it is.  The recent case of Weston v. United States saw the Federal Circuit holding the time period jurisdictional.  He also spoke about the cases of Walby v. United States and Brown v. United States that I blogged about recently and Carl Smith blogged about two years ago.  Clearly, the issue of jurisdiction has captured the attention of the Court of Federal Claims as well as the Tax Court.

An outline of the cases and material discussed by the two judges is attached.


  1. Carl Smith says

    Just to clarify for readers, when a tax refund suit under 28 usc 1346(a)(1) is brought either in the district court or CFC, the SOL for bringing the suit is the 2-year deadline of IRC 6532(a). There is conflicting precedent on whether the section 6532(a) deadline is jurisdictional or subject to equitable tolling. In cases decided before the Supreme Court changed the rules on jurisdiction (in 2004), there were several Circuit courts, including the Fed. Cir. in RHI Holdings, Inc. v. U.S., 142 F.3d 1459 (1998), that held that SOL jurisdictional. In a post I did long ago on the Wagner opinion; see ; though, a 9th Cir. district court recognized that under current Supreme Court case law, the section 6532(a) SOL should be held not jurisdictional and subject to equitable tolling. Boechler’s analysis now makes Wagner’s holding obviously correct, since the SOL doesn’t refer to the court’s jurisdiction, and the jurisdictional grant is far away in Title 28.

    When Judge Wolski referred to John R. Sand, he was discussing an SOL that applies in the CFC in many non-tax cases, 28 U.S.C. 2501. Section 2501 provides a catchall 6-year SOL for CFC suits where no other provision of the U.S. Code provides a different rule. In John R. Sand, the Supreme Court held that section 2501 is jurisdictional, not because it would be under the new rules making filing deadlines not jurisdictional unless Congaree makes a clear statement to that effect, but under stare decisis to a long line of Supreme Court opinions, which the Court assumed Congress was aware of and relied on. In Boechler, there was no possibility of stare decisis to prior Supreme Court opinions because the Court had never before discussed whether any Tax Court filing deadline is jurisdictional, including the 90-day deadline to file a deficiency petition under section 6213(a).

    In the Hallmark Research Collective case pending before Judge Gustafson, the issue is whether, after Boechler, the section 6213(a) filing deadline is jurisdictional or subject to equitable tolling. The IRS’ filing in Hallmark is due next week (June 2), and it is not certain what the IRS will argue. At the recent ABA meeting, a Chief Counsel attorney said that the IRS is reconsidering its position on Tax Court petition filing deadlines other than in CDP (the deadline at issue in Boechler), though the attorney did not commit the IRS to any change of position on section 6213(a).

    Interestingly, Judge Gustafson’s son, Adam, published a law review article in 2011 wherein Adam argued that the catchall 6-year SOL applied in tax refund suits as an overlay on the 2-year SOL of section 6532(a), such that a refund suit must comply with both SOLs. See He has persuaded me, but not the DOJ. And the old Court of Claims (whose precedents still govern the Fed. Cir.) long ago held that section 6532(a) is the sole SOL applicable to tax refund suits in Detroit Trust v. United States, 130 F. Supp. 815 (1955).

    Judge Wolski’s references to the Little Tucker Act and the Circuit split on the SOL under that provision need some clarification, as well. The Little Tucker Act is at 28 usc 1346(a)(2), and it allows district court suits against the government seeking $10,000 or less where a claim is based on a statute or the constitution. The Little Tucker Act does not apply to tax refund suits, which are governed by section 1346(a)(1). In Pfizer (on which I long ago blogged), the 2d Cir. held that a suit for millions of dollars of overpayment interest could not be brought in the district court either under section 1346(a)(1) (because overpayment interest is not described in the paragraph) or under section 1346(a)(2) (because it exceeded the $10,000 threshold). So, the 2d Cir. transferred the Pfizer case to the CFC, which has jurisdiction of the suit under the real Tucker Act, 28 usc 1491(a)(1). Section 2501’s 6-year SOL applies to suits under the Tucker Act.

    There is a parallel 6-year catchall SOL for district court suits at 28 usc 2401(a). Since the Supreme Court has no precedent on whether section 2401(a) is jurisdictional, lower courts have been filling in the gap. When John R. Sand was decided, in a separate opinion, Justice Ginsburg set out the Circuit split for section 2401(a) at the time. Since 2004, though, I think all the Circuits to have faced the question have decided that the filing deadline is not jurisdictional and is subject to equitable tolling. Still, the Circuit split currently exists, and this is what Judge Wolski was discussing.

    Section 2401(a) has little application to the Tax Court. The catchall provision in it only applies when Congress has not set out a specific filing deadline for an action. Congress has specified filing deadlines for all Tax Court actions but one, passport actions under section 7345(e). That section also allows passport actions to be brought in district courts. In CC-2018-005, Chief Counsel, I believe correctly, stated that the appropriate SOL for passport actions is section 2401(a). In a blog post I did in 2018; see ; I noted that, in the very unlikely situation where a taxpayer belatedly, but with good grounds, wanted to file a passport action more than 6 years after the IRS notified the taxpayer of passport revocation, there were planning possibilities, since all passport actions in the Tax Court were appealable to the D.C. Cir. under the flush language at the end of section 7482(b)(1), and the D.C. Cir.’s position was that section 2401(a)’s deadline is jurisdictional and is not subject to equitable tolling. I recommended that a taxpayer seeking to file a passport action who needed to argue for equitable tolling not file in the Tax Court, which would follow D.C. Cir. precedent under Golsen, but should file in district court if in a Circuit that held the section 2401(a) deadline not jurisdictional and subject to equitable tolling.

    My advice was sound then, but has since been superseded. In Jackson v. Modly, 949 F.3d 763 (D.C. Cir. 2020), the D.C. Cir., considering the recent Supreme Court precedent on jurisdiction, overruled its prior precedent and held the section 2401(a) deadline not jurisdictional and subject to equitable tolling. That means that, now, any passport action taxpayer who wants equitable tolling can file in the Tax Court. The taxpayer can also file in a district court in a Circuit that has held the section 2401(a) filing deadline not jurisdictional and subject to equitable tolling, but should not file in a district court in a Circuit that has held the section 2401(a) filing deadline jurisdictional.

    I am not aware of any current cert. petition trying to resolve the Circuit split over section 2401(a)’s filing deadline. Nor does Congress seem to want to get involved in resolving the split.

  2. Carl Smith says

    I forgot to add a comment on the non-precedential case of Weston v. U.S., 2022 U.S. App. LEXIS 9907, 2022 WL 1097361 (Fed. Cir. 4/13/22), mentioned by Judge Wolski. On May 10, 2022, Keith wrote a blog post that includes the facts and holding of Weston. The unsurprising holding is that 7502 literally does not apply to the filing of a CFC complaint, so the 2-year period in section 6532(a) to bring suit had expired before the filing by mail arrived, even though the complaint was mailed before the end of that period. See .
    Keith’s post explained how the two administrative refund claims filed that were the subject of the Weston refund suit were limited in amount to zero taxes, in any event, under section 6511(b)(2)(A) because the claims were filed more than 3 years after the last tax payments. What Keith’s post did not mention about Weston was that, before holding that the section 6532(a) deaddline had not been met, the Weston court pointed to Fed. Cir. precedent (specifically the RHI Holdings opinion I cited in my prior comment) holding the section 6532(a) filing deadline jurisdictional and simply followed that precedent without comment. That is why Judge Wolski mentioned that in Weston, the Fed. Cir. just reaffirmed its position that the deadline in section 6532(a) is jurisdictional — albeit Weston is non-precedential. Weston did not engage in any analysis concerning whether recent Supreme Court case law since 2004 effectively overrules RHI Holdings, as I think it clearly does. But, the parties in Weston had not briefed the issue of the changes since 2004 in what deadlines the Supreme Court considers jurisdictional.

    If we had noticed the pro se Weston case before the Fed. Cir. ruled, the Harvard clinic might have tried to file an amicus brief pointing out that the section 6532(a) filing deadline should today be treated as non-jurisdictional. We even thought about persuading the taxpayer doing a motion for reconsideration of the Fed. Cir. opinion concerning whether the section 6532(a) filing deadline is jurisdictional. (Note that Boechler was decided 8 days after Weston.) But, we decided not to try retroactively to make Weston a test case for the 6532(a) jurisdictional issue because the taxpayer’s claims were limited under section 6511(b)(2)(A) to zero, and we were not aware of any equitable tolling facts in the case (so, even if the filing deadline of section 6532(a) wasn’t jurisdictional, that would be of no help to the taxpayer). We would rather await a test case where it really matters to a taxpayer whether the filing deadline is still jurisdictional.

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