Tax Court Temporarily Stops Issuing Dismissals for Lack of Jurisdiction of Late Deficiency Petitions

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This is an update to the post of May 3, 2022, which discussed a May 2, 2022 motion to vacate a dismissal for lack of jurisdiction of a late-filed deficiency case in Hallmark Research Collective, Docket No. 21284-21.  In the motion, Hallmark argued that, after Boechler (a Collection Due Process case), the IRC 6213(a) deadline for filing a deficiency petition also is not jurisdictional and is subject to equitable tolling.  The prior post noted that, a day after the motion was filed, the Chief Judge issued an order directing the IRS to file a response within 30 days (i.e., by June 2).  The update is that on May 10, the Chief Judge assigned the motion to Judge Gustafson for purposes of ruling on the motion.    Motions in cases that had been decided by the Chief Judge are usually assigned to Special Trial Judges for disposition, not currently active Tax Court judges.  So, this unusual assignment shows the Court is taking the motion to vacate very seriously.

Simultaneously, it appears that the Tax Court, unannounced, has stopped issuing orders of dismissal for lack of jurisdiction in late-filed deficiency cases until Judge Gustafson (or, more probably, the Tax Court en banc) rules on the Hallmark motion.


Research shows that the Tax Court in February and March 2022, combined, dismissed 103 late deficiency petitions for lack of jurisdiction – an average dismissal rate of between 2 and 3 cases a business day.  Yet, the last order of dismissal of a deficiency petition for late filing was entered on Friday, May 6. 

PT will post the IRS response to Hallmark’s motion when that response is filed, though PT expects the IRS will ask for and get a bit more time to file its response, to coordinate its response with the National Office.

One effect of the Tax Court’s suspension of ruling on such motions to dismiss in late-filed deficiency cases is that the Court will thus not, for some time, be creating appealable orders which could be challenged by appeals to the Circuit courts as test cases for the IRC 6213(a) issue.  The time is ticking on any appeals that may be filed concerning orders of dismissal entered between mid-February and May 6.

PT is aware of only one case where an order of dismissal has been appealed:  The February 15, 2022 order of dismissal in Culp, Docket No. 14054-21, was timely appealed to the Third Circuit on April 25, 2022 (3d Cir. Docket No. 22-1789).  In Culp, the IRS sent a notice of deficiency to the taxpayers, but the taxpayers say they never received the notice and only became aware of its possible issuance when the IRS started levying.  (We assume that the Culps also did not receive the notice of intention to levy, since they filed no Collection Due Process hearing request.)  They belatedly filed a Tax Court petition, arguing that the IRS had never sent a notice of deficiency to their last known address.  In response, the IRS produced a copy of the notice and proof of proper mailing to their last known address.  So, the court dismissed the petition for lack of jurisdiction for late filing – the long-standing position of the Tax Court and most courts of appeal, pre-Boechler, being that timely filing of a deficiency petition is a necessary predicate to the Tax Court’s jurisdiction. 

The Center for Taxpayer Rights plans to file an amicus brief in Culp (drafted by the Tax Clinic at the Legal Services at Harvard Law School) that sets forth all the arguments made in the memorandum of law filed to accompany the motion to vacate in the Tax Court Hallmark case for why the Tax Court was wrong to treat timely filing as a jurisdictional requirement of a deficiency suit.

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. Carl Smith says

    As a further update, at the request of the IRS, Judge Gustafson on June 2 allowed the IRS an additional 21 days to file its response to Hallmark’s motion — i.e., until June 23. And Judge Gustafson ordered that the taxpayer should file a reply to the IRS response on or before July 22.

    More evidence that the Chief Judge has told other judges not to rule on motions to dismiss deficiency cases for late filing pending the outcome in Hallmark is the May 18 order in Spears, Tax Court Docket No. 6232-21, which reads, in full:

    This case is currently calendared for trial at the Court’s Chicago, Illinois trial
    session beginning on May 23, 2022. On May 12, 2022, Respondent filed with the Court
    a Motion to Dismiss for Lack of Jurisdiction, alleging that the Tax Court petition in
    this deficiency case was untimely filed.

    Pending before the Court in Hallmark Research Collective v. Commissioner
    (Docket No. 21284-21) (Hallmark) is a motion asking the Court to vacate its previous
    order granting dismissal of Hallmark’s deficiency case for lack of jurisdiction. The
    Hallmark motion to vacate asks the Court to address whether I.R.C. § 6213(a)’s 90-
    day limit for filing a petition in this Court (after the issuance of a notice of deficiency)
    is jurisdictional or may be equitably tolled in light of the recent United States
    Supreme Court decision Boechler, P.C. v. Commissioner, No. 20-1472 (U.S. April 21,
    2022). Before taking further action in this case, we will await the ruling of this Court
    on the Hallmark motion to vacate. Accordingly, it is

    ORDERED that respondent’s Motion to Dismiss for Lack of Jurisdiction, filed
    May 12, 2022, is held in abeyance until our Court rules on [Hallmark’s] Motion to
    Vacate Order of Dismissal for Lack of Jurisdiction filed May 2, 2022 in Docket No.
    21284-21. It is further

    ORDERED that this case is stricken from the above-referenced trial session,
    and the parties are excused from appearing at the calendar call on May 23, 2022. It
    is further

    ORDERED that jurisdiction of this case is retained by this Division of the

    (Signed) Elizabeth A. Copeland

  2. David Myers says

    Mr Smith, if you get a chance can you please post chief counsels response to the memorandum of law in the hallmark research collective case. thank you

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