In a post I did on August 11, 2023 – the day after the Tax Court first resumed dismissing late-filed deficiency cases for lack of jurisdiction after the temporary halt of such dismissals caused by Culp v. Commissioner, 2023 U.S. App. LEXIS 18287 (3d Cir., July 19, 2023) – I cited all of the 9 dismissal orders issued on August 10, 2023. That was not a large sample of cases to look at, so I could not from them answer one question that I still had: What would the Tax Court do with respect to pending motions to dismiss late-filed deficiency cases that are appealable to the First, Third, and Fourth Circuits? The answer is in, at least tentatively.
I know of only one case where there is a pending motion to dismiss for lack of jurisdiction for late filing that is appealable to the Third Circuit, Salsi v. Commissioner, Docket No. 1645-23, which I described in a prior post. Under Golsen, the Tax Court must follow the binding precedent of a Circuit, even if the Tax Court disagrees with that precedent. That is why, since Culp held the filing deadline nonjurisdictional, the Tax Court has not dismissed any cases appealable to the Third Circuit. But, the Tax Court also has not, citing Golsen, denied the pending motion to dismiss for lack of jurisdiction in Salsi. Rather, since my last post on Salsi, the Chief Judge has assigned the motion to Senior Judge Cohen for her to rule on it. Judge Cohen then ordered that the IRS, by September 5, 2023, “shall file a Reply to petitioners’ Response and Objection to Respondent’s Motion to Dismiss for Lack of Jurisdiction filed April 6, 2023.” Does this mean that the Tax Court intends to use Salsi as the case in which it will reconsider whether it will follow Culp in any other Circuit that has no precedent on the jurisdictional question? Otherwise, why not just issue a one-sentence order in Salsi denying the motion, citing Culp and Golsen?
The Tax Court’s opinion in Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 at *37 (Nov. 29, 2022), stated that the Tax Court and every Circuit to which cases from the Tax Court could be appealed – other than the First and Fourth Circuits – have precedents holding the deficiency petition filing deadline jurisdictional, and even in the First and Fourth Circuits, similar holdings have occurred in non-precedential opinion. So, I waited a week, and after having reviewed all 70-plus dismissal orders of late-filed deficiency cases for lack of jurisdiction through August 18, 2023, I can now report that the Tax Court has not issued any orders on motions to dismiss late-filed deficiency cases for lack of jurisdiction that would be appealable to the First or Fourth Circuit. So, the post-Culp suspension of rulings appears still to be in effect for cases appealable to the First or Fourth Circuits.
By contrast, the Tax Court has issued at least one order of dismissal for lack of jurisdiction in late-filed deficiency cases appealable to every Circuit that has precedent holding the filing deadline jurisdictional (i.e., Second, Fifth-Eleventh, and D.C.). The practice, since August 10, 2023, is that the Tax Court dismissal order not only cites Hallmark for the proposition that the filing deadline is jurisdictional, but cites a precedential opinion from the Circuit to which the case would be appealable for the same proposition. Prior to Culp, such orders of dismissal usually cited only Hallmark and, in addition, sometimes Organic Cannabis v. Commissioner, 962 F.3d 1082 (9th Cir. 2020). Presumably, the Tax Court cited Organic Cannabis because it was the most recent precedential opinion of a Circuit court holding the filing deadline jurisdictional.