What Happens After Boechler – Part 2:  The IRS Argues the Floodgates Will Open if the Tax Court Follows Boechler in Interpreting IRC 6213(a)

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Boechler involves the Tax Court’s jurisdiction in Collection Due Process (CDP) cases.  The Tax Court Congressional Budget Justification Fiscal Year 2023 (Feb. 28, 2022), at page 19 reports that CDP cases filed in the fiscal year ended 9/30/21 made up 3.29% of its total caseload and deficiency cases made up 96.46% of its total caseload (though the Tax Court overstates the deficiency case figure by apparently including in that deficiency figure all dockets that do not have letters at the end of their docket numbers — which would mean that the deficiency figure erroneously also sweeps in 6015(e) cases and all those cases later dismissed for LOJ because no ticket to the Tax Court under any jurisdiction had been issued). If the Tax Court determines that the time period for filing petitions in deficiency cases is not a jurisdictional time period, many more petitioners will have the opportunity to argue that the Court should hear their late petition than would have the opportunity in CDP cases – almost 20 times as many.  What does the floodgate argument really mean here?  Should it make a difference?

There are at least two parts to the question of the impact of finding that the time period for filing a Tax Court petition in a deficiency case is not jurisdictional.  One, what is the volume of late filed cases?  Two, how many of the late filed cases have a marginally meritorious case that will require actual resources at the Court and at Chief Counsel, IRS to resolve?  One possible result, discussed below, is that the net effect will cause little if any additional work for the Court or Chief Counsel.  If the Tax Court finds or is instructed that 6213(a) is not a statute in which the time for filing creates a jurisdictional bar, the net result of any additional work should not be significant.


The Tax Clinic at the Legal Services Center of Harvard Law School has been looking at Tax Court dismissals for several years, monitoring the cases in search of meritorious cases that might provide a challenge to the Court’s view that all of its bases for jurisdiction have a jurisdictional time frame.  Looking at the cases primarily means Carl Smith reviewing the daily docket, Carl passing to me any cases that look like they were dismissed for a reason based on late filing where the petitioner has raised some type of excuse that seems more than frivolous, me ordering the documents from the Court that led to the Court’s order, Carl and me reviewing the documents to decide if the case has a potentially meritorious argument on the excuse and on the merits, me calling the taxpayers with a potentially meritorious case to get further information and a sense of their interest in pursuing the case further and a follow up discussion between Carl and me on whether to move forward with the case.  We find very few cases that meet our criteria – less than 10 each year in all Tax Court bases for jurisdiction combined.

Backing up from our criteria to the criteria that will cause work for the Court and Chief Counsel, it’s necessary to decide how many cases will have an argument for equitable tolling that requires a hearing of some type.  When Chief Counsel identifies a case as late filed, more about why I say only Chief Counsel below, it will make affirmative allegations in its answer that the petition was untimely.  It already spends at least as much time as the affirmative allegations will take by filing a motion to dismiss on all of the cases it determines were filed late.  So, no additional work there.  The taxpayer will, or should, respond to the affirmative allegations setting forth the defense(s) that the petition was timely filed and/or that the time for filing should be equitably tolled.  This process saves the Court the time it takes to produce and send out show cause orders.  At some point the Court will rule on the effect of late filing.  The Court already rules on this issue after the show cause order.  So, no additional work there.

Not all taxpayers will file a response to the answer.  Taxpayers who do not respond will cause the IRS to file a Rule 37(c) motion.  This may cause the Court to give the taxpayers a second chance to respond or may cause the Court to rule at that point.  The filing of this motion will cause Chief Counsel a little more work.  If the Court issues an order giving taxpayers a second chance to respond, this will cause the Court a little more work.

Taxpayers who do respond will now respond with different/additional information from the information provided in responses prior to a change in the jurisdictional nature of IRC 6213.  Some taxpayers will respond with a detailed explanation of the reason for the late filing.  Some of these responses will make clear that the taxpayers do not fit into the Court’s criteria for equitable tolling.  It will take the Court several opinions in the early years after determining IRC 6213 does not have a jurisdictional time frame for the Court to develop a body of jurisprudence on equitable tolling.  It must do so now for IRC 6330 cases.  It’s worth noting that the Tax Court could have been building its body of equitable tolling law since the D.C. Circuit’s decision regarding whistleblower petitions in the Myers case.  It has not and may have been holding the Myers case in abeyance pending the outcome of Boechler but that is another source of equitable tolling jurisprudence that can inform IRC 6213 cases.  There is no indication that in the whistleblower or passport cases, both areas of Tax Court jurisdiction with relatively low filing numbers, that a stampede of equitable tolling requests, or any such requests, has occurred. 

So, developing this body of jurisprudence should not add much to the burden of the Tax Court.  Once it has established its criteria for reviewing cases for equitable tolling, it will be able to dismiss some cases in which taxpayers response to the affirmative allegations in the answer discloses a reason for filing a late petition that does not fit within the established bases for accepting the case.  Making decisions on these cases will not cause much additional work and probably will occur in the office of the Chief Judge with the attorneys who work there.  This will cause little or no additional work for Chief Counsel attorneys.

Unquestionably, some cases will respond to the motion and raise enough concerns about the nature of their argument for jurisdiction that the Court will need to schedule a hearing in order to take evidence and to allow further argument.  These cases will cause more work for the Court and for Chief Counsel.  In order to guess how many cases we might be talking about here, it is necessary to start with the number of cases typically dismissed for lack of jurisdiction based on an untimely petition.  No need to look at other bases for dismissal since they are not implicated by the Boechler decisions.

Carl Smith did research on the number of dismissals for lack of jurisdiction based on timeliness and found 103 cases in February and March of 2022.  At that pace one might expect about 600 cases in a year.  Based on these raw numbers, we need to determine how many of the petitioners filed a response that would require more work of the Court and Chief Counsel.  Carl Smith has been reviewing all orders of dismissal for the last four months for late filing under all jurisdictions, and he estimates he has seen only about 30 orders where taxpayers have tried to provide a good excuse for late filing.  Assuming that number holds and that similar numbers of articulated excuses in future cases will require the litigation of equitable tolling if the filing deadlines are no longer jurisdictional, that means that about 90 cases a year will involve parties doing filings relating to the assertion of equitable tolling.  So, probably there would be 87 cases a year that would require additional work from the Tax Court and Chief Counsel to deal with taxpayer-pleaded equitable tolling defenses if IRC 6213 creates a claims processing rule.  Under Boechler, about 3 cases a year will probably be CDP cases in which a taxpayer pleads equitable tolling.  That low CDP number may surprise a lot of people who thought Boechler would open floodgates under CDP.  Of course, the new legal possibility of equitable tolling under all jurisdictions may bring additional taxpayers to assert facts that can give rise to equitable tolling, but it is hard to believe that these new assertions would any more than double the number of cases each year where equitable tolling would be argued.  Further, probably only a third of such cases will actually be granted equitable tolling (30).  There will be additional work to Counsel and the Court on the merits in such cases, but 30 cases is only 0.1% of the Tax Court’s docket each year.  So, given that over 90% of cases settle on the merits anyway, the additional work will probably not involve more than a single extra merits trial a year.

Tomorrow’s post will explain in more detail why Chief Counsel must make its objection early in the case.  Chief Counsel attorneys will also have a time savings because they will no longer need to respond to orders to show cause in cases where they do not raise the issue in the answer.  For reasons discussed in the next post, the failure to raise the timing of the filing in the answer will probably end any argument on timing allowing the parties to focus on the merits.


  1. Kris Whittington says

    Keith, Les, Carl, Nina, Pro Bono Counsel, and all law students, former law students, and anyone else who helped in the victory against the big bad wolf (the IRS).

    Boechler has the potential to really help a considerable number of people just like me. Congrats. My name is Kris Whittington, I have a Tax Court Deficiency/CDP case. Tax Court Case No. 13258-21L. I brought the case to Keith and his assistants back last fall. I developed a very detailed factual record, and had audio recordings and several contradictory letters from various Departments within the IRS to help support my claims of equitable estoppel, and claim that the Statutory Notice of Deficiency was invalid. In fact the IRS Department Head Mr. Layne Carver of the Ogden Utah SB/SE Examination Division penned each and every letter I received from Ogden. No low level desk clerk here. Problem is Cincinnati, and Holbrook Campuses were all working on the case at the same time and issued conflicting written Notices to me. This is how all the errors occurred 3 separate Offices working on the case at the same time.

    Alas, the perfect tolling case all gift wrapped. Or so I thought. Apparently no one ever wins the equitable tolling in the Tax Court, even if you have a perfect estoppel argument. But I was actually playing the long game as the Sixth Circuit and some District Courts within the Sixth Circuits jurisdiction have been more stingy with the IRS than the Tax Court.

    Keith initially agreed to take my case and I was in a very bad physical and emotional way at the time (and was happy to have the Harvard Tax Law Clinic on my side). Frankly, after nearly 4 years I was worn down and ready for Keith and his astute group to take over.

    I was on board with most of what the law students wanted to do in my case. However, I am a very detail oriented person and am not particularly trusting without seeing a workable plan laid out. I could not figure out how the collective group was going to get past the 6330 preclusion issue since an SNOD had been issued and no timely Petition for redetermination had been filed. None of the team members made this very clear. Yes I had been mislead both orally and in writing but I was not feeling the team wanted to pursue this issue.

    Since my liability at that time was $118,000, not counting $35,000 to Kentucky based upon an invalid Notice of Deficiency. I wanted to make 2 primary arguments that Keith and the rest of the team gave very short shrift.

    First I wanted to argue that my Tax Court Deficiency challenge was timely and that 6213(a) was not jurisdictional and subject to equitable tolling. Bryan Camp and Nina Olson convinced me of the tolling issue along with a recent Federal Circuit Court Opinion Taylor v. Mcdonough, No. 2019-2211 (June 30, 2021, Currently En banc )

    The Second argument I wanted to make was that the Notice of Deficiency was invalid because no “6212 determination had been made”. At the time the Notice of Deficiency was issued I was not in default of the 30 day letter, timely responded to the 30 day latter with my delinquent tax return for 2011. The IRS being the IRS got my original filed date for the 2011 return wrong. The original filing date was April 4, 2017, not April 21, 2017. Why does this matter say you, well a taxpayer actually has 45 days to respond to 30 day letter 30 plus 15 for mailing and handling. The IRS always argues the 30 day letter is not described or contained in the IRC but this is not the case after the RRA of 1998. In any event My 30 day letter was issued on February 27, 2017, and my tax return was mailed on March 19, 2017. Plus there are the seven documented phone calls I have phone records for between February 27, 20117 and May 1, 2017. Yet the IRS still issued a Notice of Deficiency and did not consult my original delinquent return when issuing the Notice of Deficiency. The Notice of Deficiency consisted solely of the February 27, 2017 Substitute for Return, which was simply appended to the Notice of Deficiency and the exact figures were parroted from the SFR into the SNOD. To top it all off I called the IRS on the day the SNOD was filed, and was told by an IRS employee in Ogden Exam I did not need to Petition the Tax Court, the SNOD was issued in error by the computer.

    Subsequent to May 1, 2017. I received multiple written letters stating that I owed $5,700, not $108,000. Magically after the time to Petition the Tax Court lapsed suddenly the balance changed to $111,000. The administrative record in my case is paper thin and there is no Form 9984 as is required by the RRA of 1998.

    Keith and his team did not want to argue the SNOD was invalid, but I just could not agree under my fact pattern the team had actually grasped and understood my arguments. So in the end Keith and his team bowed out. I was devastated at the time but continued to work hard on the case.

    And in reality I knew my case better than Keith or any other law student or anyone else for that matter. The Commissioner got their pants beat off in my Response to their Summary Judgment Motion. I did a factual response of 50 pages under oath, and also filed a 160 page Brief with an 18 page Table of Authorities. I doubt Local Counsel for the IRS has ever seen, nor will they see again, a document that was literally prepared with blood, sweat, and tears. It ain’t bad even if I do toot my little horn myself. And guess what? I argued and predicted the U.S. Supreme Court would hold 6330 and 6213 were not jurisdictional.

    So I thought I had a 50/50 chance of convincing the Tax Court I had the perfect case for the doctrine of equitable tolling and possible an administrative judicial estoppel. The Notice of Deficiency in my case was issued in May 2017, but my Tax Court Petition was not filed until April 2021. My case sat in the Independent Office of Appeals (for 30 months). Yes 30 months only to get a Notice of Determination that was factually and legally riddled with errors. Yes CDP findings don’t have to be correct, just reasonable in the Tax Court’s jurisprudence.

    Independent, I think not. In any event the Commissioner did not file a Motion to Dismiss my case, which I took as a sign there was something amiss. Then the local IRS Counsel never sent a Branerton Letter, and did not produce the administrative record until after she filed her Motion for Summary Judgment. I sent Local IRS Counsel a 13 page Branerton Letter.

    Now remember, I had been filing written document requests starting with the Taxpayer Advocate, and continuing thru Appeals under the pertinent IRM’s and then the 7803 Taxpayer First Act. Never you mind the facts, Appeals nor anyone from the IRS appeared to realize they were required to actually produce case files and the administrative record “regarding disputed issues”. Not to be deterred I had to actually file written discovery requests and a Motion to Compel.

    In the meantime the Local IRS counsel did shall we say a generic job on her boiler plate Summary Judgment Motion. At the time the IRS had filed their SJ Motion, I had already drafted 90 percent of my anticipated arguments. However, the drafting was done without the benefit of the administrative record so it was helpful to see just how bad the record was. Turns out lots of ex-parte communications and emails between Appeals HO and SO. Of course now Local Counsel admits I didn’t get the complete record even though there are multiple written communications to counsel requesting this info. But what really saved the day was the fact that I had actually recorded all my CDP interactions with my HO and SO. And needless to say that pesky CASE ACTIVITY RECORD was pure fiction in parts. Oddly, all the parts that made me look bad! Records are funny things when you have them (and boy I did). I used a nice transcription service and boy it’s amazing how the story changes when one side gets caught with their hand knee deep in the cookie jar. Kind of ironic having a transcript of the SO talking about how diligent you were, and how professionally you interacted with Appeals, while Local Counsel implies you were uncooperative. I was actually told by my Appeals SO that if I wanted Appeals to consider Collection Alternatives, I had to waive my right o go to Tax Court. My SO was actually honest about one thing, she described the various assessments against me as “extraordinarily unusual and convoluted”. Hard to argue I should have known what to look for when a 30 year Appeals SO describes the assessments that way.

    Hope you and your team are able to help many more deserving tax payers now that the Supreme Court has spoken in Boechler.


    Kris Whittington

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