Infrastructure Bill Creates Tolling of Time for Filing a Petition with the Tax Court

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We welcome back guest blogger Steve Milgrom.  Steve is the litigation coordinator at the low income taxpayer clinic located at the Legal Aid Society of San Diego. Today, he provides an overview of the new legislation granting taxpayers additional time to file their Tax Court petitions if the court is closed.  It’s nice that Congress has taken some notice of the fact that the closure of the Tax Court can, among other things, impact the ability of taxpayers to file their petitions on time.  This is particularly true at the Tax Court where 75% of the petitioners do so pro se.  As we have mentioned on many occasions, the ability of petitioners to have their case heard when they have taken reasonable steps to timely file their petition as quickly as possible, is one of great interest to practitioners representing low income taxpayers. 

In addition to this legislation which will provide partial relief, the Supreme Court will soon hear oral arguments in the Boechler case to decide if the time period for filing petitions in Collection Due Process cases is jurisdictional.  The brief of the petitioner was filed yesterday.  The briefs of the amici are due on November 22.  We will provide more information once those briefs are filed.  The Tax Clinic at the Legal Services Center of Harvard Law School will file an amicus brief for the Center for Taxpayer Rights and the National Consumer Law Center which will focus on the issue of equitable tolling.  The combination of the legislation Steve discusses below and the Boechler opinion could create some interesting changes at the Tax Court and a number of precedential opinions.

Here is the language of the legislation:

Tolling of Time for Filing a Petition with the Tax Court. (IRC §7451, Act §80503)

Effective date—The amendments made by this section shall apply to petitions required to be timely filed (determined without regard to the amendments made by this section) after the date of enactment of this Act.

The Act changes the title of IRC §7451 from “Fee for filing petition” to “Petitions.”  The change in title is made as the provision is revised to, in addition to authorizing the Tax Court to charge a fee for filing a petition, to add a new tolling provision when the filing location is inaccessible or otherwise unavailable to the public on the date the petition is due.  The new provision, found at new IRC §7451(b), reads:

(b) Tolling of time in certain cases.—

(1) IN GENERAL.—Notwithstanding any other provision of this title, in any case (including by reason of a lapse in appropriations) in which a filing location is inaccessible or otherwise unavailable to the general public on the date a petition is due, the relevant time period for filing such petition shall be tolled for the number of days within the period of inaccessibility plus an additional 14 days

(2) FILING LOCATION.—For purposes of this subsection, the term ‘filing location’ means—

As Steve mentions below, the interpretation of when the Court is inaccessible or otherwise unavailable to the general public will be key to the impact of this legislation.  Keith

In January I wrote about DAWSON’s debut and the ability to e-file petitions.  I mentioned how the advent of e-filing might lessen the instances where a taxpayer risks losing access to the Tax Court due to the late delivery of a petition as a result of a snowstorm.   While the Tax Court granted snowstorm-related relief in Guralnik v. Commissioner, 146 TC 230 (2016), the extent of the relief available and the circumstances in which the Court will grant it are subject to the Court’s discretion.

Congress has now stepped in to clarify the situation.  The newly passed Infrastructure Investment and Jobs Act amends the Code by tolling the time period for filing a Tax Court petition if the “filing location is inaccessible or otherwise unavailable to the general public on the date a petition is due.”   In such event the filing period is tolled for the number of days of inaccessibility, plus an additional 14 days.

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This is a great advancement, eliminating the uncertainty involved when a petition is late due to problems at the Court.  The key to the new law is the inaccessibility of the filing location.  The phrase “filing location” is defined as “(A) the office of the clerk of the Tax Court, or (B) any on-line portal made available by the Tax Court for electronic petitions.”  Note that the rule is in the alternative, meaning if either one of these is unavailable on the due date of a petition, tolling occurs.

While the tolling provision seems fairly straightforward, the Tax Court will need to clarify its current procedures, which are still impacted by covid.  The Tax Court clerk’s office is located deep in the building’s lower level.  Since March 2020 the Tax Court building has been closed to non-trial related visitors.  According to the Court’s website, mail and deliveries are being accepted.  While a June 24, 2020 Tax Court press release states that the clerk’s office was accepting hand-delivered documents during normal business hours, the home page of the Court’s website indicates this is via a dropbox at the building’s entrance.  I am not comfortable using a dropbox for filing jurisdictional documents.  Early in my career I was given the task of flying to D.C. to file a petition.  I’m sure my boss would have been very unhappy if I had returned to Detroit without a time-stamped copy of the filed petition.

Does the dropbox qualify as the “filing location?”  In Guralnik, mention is made of the lack (at that time) of an after-hours dropbox, but it is unclear how the existence of one would have affected the outcome of the case.  If the newly installed dropbox is not a “filing location” under the statute, then as soon as President Biden signs the Infrastructure bill, all petitions will be tolled until the Tax Court permits hand delivery to the clerk’s office.  Without some clarity from the Court, I now have two reasons to avoid the dropbox.

Comments

  1. Jack Townsend says

    Good post.

    Just to respond to the following quote: “Early in my career I was given the task of flying to D.C. to file a petition.” Why would that have been done with the guaranteed filing methods under § 7502?

    I suppose that if it were really really important a copy of each of the petition and the registered mail certificate could also be sent by regular mail to alert the Tax Court just in case the original registered mail item were lost. (This would be like a courtesy copy because the original mailing in the proper format is effective whether or not the original petition ever gets to the Tax Court).

    I just have to wonder whether this was one of the many ways persons wanting to get the hours and fees up look for and find ways to do it.

    • Steve Milgrom says

      Section 7502 combined with registered mailing is fairly safe. But who uses registered mail?The minimum cost is $42 and you have to stand in line at the post office to get it done. Certified mail is cheaper and easier but offers less protection. Certified mail combined with a return receipt (the little green card) is a step up.

      The petition I was delivering involved an estate tax return where the amount of money involved was too large to take any risk of a missed filing deadline. While the proper use of certified or registered mail does establish prima facie evidence of delivery, if actual delivery does not occur the taxpayer will have to litigate the 7502 question before getting to the substance of the petition. I assume my boss concluded that the risk of relying on the Post Office was just too great.

  2. Stuart J Bassin says

    For many months, the Tax Court has had a backlog in docketing new petitions and serving the petition on Chief Counsel. My experience puts the delay at 5-10 weeks. It would also seem that there are likely notices of deficiency, etc. which were printed through the Service’s computer-generated systems that were not mailed on the date printed due to COVID-related backups at Service Centers.

    I wonder if this provision might be interpreted to provide relief for taxpayers whose petitions have been delayed due to various other COVID-related problems and delays in the system.

  3. Is the Tax Court now going to announce on its website that its Clerk’s Office was unexpectedly closed on a particular day or that the DAWSON system was down for a day, so all taxpayers have 14 more days to file a Tax Court petition?

    And what if DAWSON is only out for 9 am to 5 pm? What if it is only out for 2 hours?

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