What’s Wrong With The Tax Court’s Hallmark Opinion: Part 8

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This is the eighth of a multipart post discussing the recent Tax Court opinion in Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (11/29/22).  It is the final (and shortest) part in the post.

On page 15 of the slip opinion, Hallmark observes that IRC 6213(a) also contains a requirement that there be a notice of deficiency:

The requirement of a valid NOD and the 90-day deadline are inseparably linked in that sentence.  If, as Hallmark contends, the 90-day deadline were not jurisdictional, then we do not see how the requirement of a valid NOD could (as the Supreme Court has held) be jurisdictional.  Rather, both prerequisites would then have to be treated as mere claim-processing rules, which might be waived and which, if invoked, would result in dismissal not for lack of jurisdiction but for failure to state a claim—i.e., a merits determination.  But that is a thought experiment.  No court has ever denied (and Hallmark does not dispute) that the Tax Court’s jurisdiction over a deficiency case depends on the issuance of the NOD.

How do I respond?  Well, the Tax Court is right that IRC 6213(a) (which contains both a notice of deficiency and a petition requirement) arguably sets out two more claim-processing rules than just the filing deadline.  However, the Hallmark opinion in fact solves the issue by, on the same page, citing Laing v. United States, 423 U.S. 161 (1976), which states:  “A deficiency notice is of import primarily because it is a jurisdictional prerequisite to a taxpayer’s suit in the Tax Court for redetermination of his tax liability.” Id. at 165 n.4.  My solution is stare decisis:  That statement from Laing has existed for almost 50 years, so I think the Supreme Court will follow the statement if the issue is ever presented to the Court.

IRC 6213(a) would not be unique in having a filing deadline that is not jurisdictional but having other predicate requirements in the same sentence that are jurisdictional.  (By the way, I have never argued that because IRC 6214(a) is the primary basis of the Tax Court’s deficiency jurisdiction, no other provision of the Code could provide additional jurisdictional requirements.)


There have been other Supreme Court opinions involving statutes containing a filing deadline in a sentence that also contains procedural requirements that certain administrative steps be taken before a petition or complaint may be filed.  In these cases, the Supreme Court has treated the administrative steps as jurisdictional, but treated the filing deadline not jurisdictional. 

In Weinberger v. Salfi, 422 U. S. 749, 763-764 (1975), the Court interpreted 42 U.S.C. § 405(g), the first sentence of which provides:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. 

The Supreme Court in Salfi wrote:

Section 405(g) specifies the following requirements for judicial review:  (1) a final decision of the Secretary made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision (or within such further time as the Secretary may allow); and (3) filing of the action in an appropriate district court, in general that of the plaintiff’s residence or principal place of business.  The second and third of these requirements specify, respectively, a statute of limitations and appropriate venue.  As such, they are waivable by the parties [read: not jurisdictional], and not having been timely raised below, see Fed. Rules Civ. Proc. 8(c), 12(h)(1), need not be considered here.  We interpret the first requirement, however, to be central to the requisite grant of subject-matter jurisdiction – the statute empowers district courts to review a particular type of decision by the Secretary, that type being those which are “final” and “made after a hearing.”

Id. at 763-764.  (In Boechler, the Supreme Court cited this passage from SalfiSee 142 S. Ct. at 1499.)

A similar case is Sebelius v. Auburn Regional Med. Cntr., 568 U.S. 145 (2013) (interpreting 42 U.S.C. § 1395oo(a)), also cited by the Supreme Court in Boechler, 142 S. Ct. at 1499.  I quote from Auburn:

Amicus urges that the three requirements in [the single sentence of] § 1395oo(a) are specifications that together define the limits of the PRRB’s jurisdiction.  Subsection (a)(1) specifies the claims providers may bring to the Board, and subsection (a)(2) sets forth an amount-in-controversy requirement.  These are jurisdictional requirements, amicus asserts, so we should read the third specification, subsection (a)(3)’s 180-day limitation, as also setting a jurisdictional requirement.

Last Term, we rejected a similar proximity-based argument.

568 U.S. at 155. 

In Auburn, the Court did not contest the amicus’ argument that the conditions in subsections (a)(1) and (a)(2) are jurisdictional.

Further, if you think about Boechler, IRC 6330(d)(1) contains a jurisdictional grant, “(and the Tax Court shall have jurisdiction with respect to such matter)” that is preceded both by the apparent claim-processing requirements that there have been a notice of determination and a Tax Court petition.  The opinion is about whether the jurisdictional grant refers to (1) the notice of determination, (2) the petition, and (3) the filing deadline.  The Court opts for the holding that the jurisdictional grant does not clearly state that the filing deadline is jurisdictional.  The court thereby lets one conclude that it thinks the issuance of a notice of determination and the filing of a Tax Court petition are the jurisdictional prerequisites – though it does not say this explicitly.

There is nothing incongruous about a sentence containing multiple claim-processing rules, some of which are still going to be held jurisdictional.

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. Encore! (Applause) Encore! (Standing Ovation). I was going to ask Carlton Smith what is planned for an encore, but I found an answer in the Comments colloquy to Part 7, between him and Jack Townsend. Don’t miss it. Some excerpts:

    “In any event, Hallmark’s attorneys have told me that the company is not going to appeal. Future litigation will happen in the Circuit courts from other taxpayers. The issue about whether the IRC 6213(a) filing deadline is jurisdictional after Boechler is now pending in the Culp case in the 3d Cir.”

    “In the 11th Cir. Allen case (which presents the same issue), we are still waiting for the court to rule on the DOJ motion for summary affirmance.”

  2. Richard Stack says

    Carlton – I’ve enjoyed reading your series and illuminating analysis of the Tax Court’s opinion in Hallmark. Great job!

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