Myers v. Comm'r of Internal Revenue Service

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2018 Decided July 2, 2019

No. 18-1003

DAVID T. MYERS,

APPELLANT

v.

COMMISSIONER OF INTERNAL REVENUE SERVICE,

APPELLEE

On Appeal from the Decision

of the United States Tax Court

Joseph A. DiRuzzo III argued the cause and filed the briefs

for appellant.

Carlton M. Smith was on the brief for amicus curiae The

Federal Tax Clinic of the Legal Services Center of Harvard

Law School in support of the appellant.

Janet A. Bradley, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the briefs were Joan

I. Oppenheimer and Bethany B. Hauser, Attorneys.

Before: HENDERSON and PILLARD, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

2

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

Opinion concurring in part and dissenting in part filed by

Circuit Judge HENDERSON.

GINSBURG, Senior Circuit Judge: The Internal Revenue

Service denied David T. Myers’s application for a

whistleblower award. Myers sought relief from the Tax Court,

which found his claim was untimely and dismissed it for lack

of jurisdiction. We hold first that this court has jurisdiction

over Myers’s appeal. We then reverse the Tax Court’s

dismissal and remand this case for further proceedings because,

although Myers’s petition was untimely, the filing period is not

jurisdictional and is subject to equitable tolling.

I. Background

In 2009 Myers filed an Application for Award of Original

Information (Form 211) with the Whistleblower Office of the

IRS. He alleged his former employer had intentionally

misclassified him and other employees as independent

contractors in order “to avoid paying workmen compensation,

health insurance, vacation time etc.,” and sought a monetary

award under 26 U.S.C. § 7623(b) of the Internal Revenue Code

for bringing to the Secretary’s attention “persons guilty of

violating the internal revenue laws,” id. § 7623(a).

In a letter dated March 13, 2013, the Whistleblower Office

denied Myers’s claim:

We have considered your application for an award

dated 08/17/2009. Under Internal Revenue Code

Section 7623, an award may be paid only if the

information provided results in the collection of

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additional tax, penalties, interest or other proceeds. In

this case, the information you provided did not result

in the collection of any proceeds. Therefore, you are

not eligible for an award.

Although the information you submitted did not

qualify for an award, thank you for your interest in the

administration of the internal revenue laws.

On March 27, 2013 Myers sent a fax to the Whistleblower

Office stating, among other things, “I inexplicably received a

letter denying my claim.”

Myers continued to send correspondence regarding his

claim to the Whistleblower Office, which responded in four

more letters dated November 20, 2013; January 8, 2014;

February 24, 2014; and March 6, 2014. Other than the one

dated February 24, 2014, those letters were identical, stating,

in pertinent part:

We considered the additional information you

provided and determined your claim still does not

meet our criteria for an award. Our determination

remains the same despite the information contained in

your latest letter….

Although the information you submitted did not

qualify for an award, thank you for your interest in the

administration of the internal revenue laws.

The full text of all five letters is reproduced in the Appendix.

Myers alleges that following the March 2014 letter he

began corresponding “with various other Government

officials,” including then-IRS Chief Counsel William Wilkins,

4

“on account of his frustration with the Whistleblower Office.”

Myers v. Comm’r, 148 T.C. 438, 448 (2017).

On January 20, 2015 Myers mailed his pro se petition to

the Tax Court, asking it “to revisit the denial of [his] IRS

Whistleblower (W/B) claim ... that was inexcusably denied by

the IRS on 3/13/2013.” The IRS moved to dismiss Myers’s

petition for lack of jurisdiction on the ground that it was not

timely filed under 26 U.S.C. § 7623(b)(4). That provision

states:

Any determination regarding an award under

paragraph (1), (2), or (3) may, within 30 days of such

determination, be appealed to the Tax Court (and the

Tax Court shall have jurisdiction with respect to such

matter).

In October 2015, the Tax Court held an evidentiary

hearing on the IRS’s motion because the parties disputed

whether the IRS had sufficient evidence of having properly

mailed the determination letters to Myers. The Tax Court

ultimately concluded this issue was immaterial because actual

notice of the IRS’s adverse determination suffices to begin the

filing period. 148 T.C. at 448. The Tax Court then found

Myers had actual notice “no later than April 11, 2014” — the

date of his first email to Wilkins — and on June 7, 2017 entered

an order dismissing Myers’s claim for lack of jurisdiction. Id.

at 441, 448-49.

On June 25, 2017, Myers filed a “Motion for

Reconsideration” in which he “ask[ed] the court to respectfully

reconsider their decision to dismiss the case for lack of

jurisdiction.” The Tax Court denied the motion on July 13,

2017. Myers thereafter appealed to the Tenth Circuit and

mailed the notice of appeal to the Tax Court on September 21,

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2017 — 106 days after that court had entered its order

dismissing his case and 70 days after it had denied his motion

for reconsideration. Myers’s appeal was subsequently

transferred from the Tenth Circuit to this court.

The parties’ briefs did not raise any question concerning

our jurisdiction. Nonetheless, prior to oral argument we

directed the parties to file “supplemental briefs addressing

whether appellant’s notice of appeal was timely under Federal

Rule of Appellate Procedure 13.” Myers v. Comm’r, No. 18-

1003 (D.C. Cir. November 14, 2018) (order).

II. This Court’s Jurisdiction

We begin, as we must, with the question of our own

jurisdiction over this appeal. See, e.g., Sierra Club v. U.S.

Dep’t of Agric., 716 F.3d 653, 656 (D.C. Cir. 2013). If Myers’s

appeal was not timely and if the time limit is “mandatory and

jurisdictional,” Bowles v. Russell, 551 U.S. 205, 209 (2007),

then this court lacks jurisdiction over his claim. The timeliness

of Myers’s notice of appeal depends upon the effect of his

motion for reconsideration.

Federal Rule of Appellate Procedure 13(a)(1)(A) and 26

U.S.C. § 7483 each provides that an appeal from the Tax Court

to the court of appeals must be filed with the Tax Court within

90 days after the entry of the Tax Court’s decision. Because

Myers mailed his notice of appeal 106 days after the Tax

Court’s dismissal order, it would not be timely under those

provisions. That mailing, however, occurred only 70 days after

the Tax Court had denied his motion for reconsideration. Rule

13(a)(1)(B) states:

If, under Tax Court rules, a party makes a timely

motion to vacate or revise the Tax Court’s decision,

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the time to file a notice of appeal runs from the entry

of the order disposing of the motion or from the entry

of a new decision, whichever is later. (Emphasis

added)

Myers apparently did not make a “motion to vacate or

revise” the Tax Court’s decision, which would be brought

under Tax Court Rule 162. Instead, because Myers styled his

filing as a “motion for reconsideration,” the Tax Court treated

it as a “motion for reconsideration of findings or opinion”

under Tax Court Rule 161; that type of motion is not mentioned

in Rule 13. It follows that Myers’s notice of appeal is timely if

the 90-day period to appeal did not begin until the Tax Court

denied his motion for reconsideration. The question before us,

then, is whether a motion for reconsideration restarts the clock,

as described in Rule 13(a)(1)(B), even though the Rule does

not explicitly so state. The IRS and Myers agree that it does,

relying principally upon the Ninth Circuit’s reasoning in

Nordvik v. Commissioner, 67 F.3d 1489, 1493-94 (1995)

(reversing Trohimovich v. Commissioner, 776 F.2d 873, 875

(1985)). *

*

Although no court other than the Ninth Circuit appears to have a

precedential decision on this issue, at least three other circuits have

commented upon it. The Tenth Circuit stated in a dictum, “this court

has never given tolling effect in a tax appeal to a motion for

reconsideration, which is not mentioned in Rule 13.” Mitchell v.

Comm’r, 283 F. App’x 641, 644 (2008). The court did not, however,

rely upon that ground for rejecting the appellant’s notice of appeal

because his motion for reconsideration was itself untimely. In

Spencer Medical Associates v. Commissioner, 155 F.3d 268, 270

(1998), the Fourth Circuit assumed Nordvik was correct but did not

so hold because it similarly found the taxpayer’s motion for

reconsideration was itself untimely. Finally, in an unpublished

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We agree with the parties. We do not read the reference

in Rule 13(a)(1)(B) to a “motion to vacate or revise” to refer

solely to motions brought under Tax Court Rule 162. Any

post-decisional motion that “places the correctness of the

judgment in question” is the “functional equivalent” of a

motion to vacate or revise and should be treated as such for the

purpose of determining timeliness. Rados v. Celotex Corp.,

809 F.2d 170, 171 (2d Cir. 1986) (cleaned up) (treating a

motion for reconsideration as a motion to amend under Fed. R.

Civ. P. 59(e) for the purpose of determining appellate

jurisdiction).

The Supreme Court has made clear that, in general, “[a]

timely motion for reconsideration ... ‘renders an otherwise final

decision of a district court not final’ for purposes of appeal.”

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 717 (2019)

(quoting United States v. Ibarra, 502 U.S. 1, 6 (1991)); see also

Dep’t of Banking, Neb. v. Pink, 317 U.S. 264, 266 (1942) (“A

timely petition for rehearing tolls the running of the [appeal]

period because it operates to suspend the finality of the state

court’s judgment”). The rationales behind this rule are two-

fold. First, it “giv[es] district courts the opportunity promptly

to correct their own alleged errors.” United States v. Dieter,

429 U.S. 6, 8 (1976), which “prevents unnecessary burdens

being placed on the courts of appeals,” Ibarra, 502 U.S. at 5.

And, because “a notice of appeal filed before the disposition of

a post trial motion ... would not embrace objections to the

denial of the motion, it is obviously preferable to postpone the

notice of appeal until after the motion is disposed of.” Fed. R.

App. P. 4(a)(4), advisory committee’s notes to 1979

decision, the Eighth Circuit agreed with the Ninth Circuit that a

timely motion for reconsideration restarts the time for appeal. See

Sanderson v. Comm’r, 231 F. App’x 534, 535 (8th Cir. 2007).

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amendments. This reasoning applies with equal force to

decisions of the Tax Court, which we review “in the same

manner and to the same extent as decisions of the district courts

in civil actions tried without a jury.” 26 U.S.C. § 7482(a)(1);

cf. InverWorld, Ltd. v. Comm’r, 979 F.2d 868, 872 (D.C. Cir.

1992) (applying “general principles familiar from appeals of

district court decisions” to determine whether the Tax Court’s

decision was final).

Illustrating the strength of this general rule, the Supreme

Court in United States v. Healy, a criminal case in which the

district court had dismissed the indictment, held “the 30-day

period [for appeal] begins to run from ... the denial of [the

Government’s] petition for rehearing,” even though Federal

Rule of Criminal Procedure 37(a)(2) provides only that the

time for appeal restarts upon a defendant’s “motion for a new

trial or in arrest of judgment.” 376 U.S. 75, 78, 79 n.3 (1964)

(quoting the 1963 version of the Rules). The Court drew no

negative inference from the silence of the rule with regard to

the Government’s motion. Id. at 79-80 (stating that the Rule

“sheds no light on the relevance of a petition for rehearing”).

The Court therefore concluded it was “constrained to read these

rules as consistent with a traditional and virtually unquestioned

practice” of treating rehearing petitions by the Government and

by the defense “as having the same effect on the permissible

time for seeking review” in “criminal, as well as civil,

litigation.” Id. Then, in Ibarra, the Supreme Court held a

“motion for reconsideration” had the same effect as a “petition

for rehearing” under Healy with regard to the time to appeal.

502 U.S. at 6.

So, too, here: Rule 13 is silent as to the effect of a motion

for reconsideration. Meanwhile, the Advisory Committee’s

Notes to the 1967 Adoption of the Rule explain that Rule 13(a)

simply “states the settled teaching of the case law,” which drew

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no distinction between a motion for reconsideration and any

other post-judgment motion challenging the disposition.

Citing Robert Louis Stevenson Apts, Inc. v. Comm’r, 337 F.2d

681, 685 (8th Cir. 1964) (holding the time for appeal restarts

upon any motion that, if “granted, would ... necessitate[] the

Tax Court’s reversing its determination”), and Denholm &

McKay Co. v. Comm’r, 132 F.2d 243, 249 (1st Cir. 1942)

(explaining that a timely motion for reconsideration “retains

the case within the Board [of Tax Appeal]’s jurisdiction,” and

“[t]he decision does not become final until ... after the motion

is denied if it is denied”). In a decision predating those

referenced by the Advisory Committee, this court similarly

recognized that

[i]n the Federal courts the rule is well established that

... the filing of a petition for rehearing, or of a motion

for a new trial, will suspend the running of the period

within which an appeal may be taken, and that this

period then begins to run anew from the date on which

final action is taken on the petition or motion, whether

it be denied or granted. The rule as above stated

applies even though a statute fixes the time within

which appeal may be taken as a definite period from

the entry of judgment. This rule has been applied by

this court, as well as by other circuit courts of appeals,

to proceedings before the Board of Tax Appeals.

Saginaw Broad. Co. v. FCC, 96 F.2d 554, 558 (D.C. Cir. 1938)

(citations omitted) (emphasis added) (The Board of Tax

Appeals is the predecessor of the Tax Court). Considering

these authorities, we do not infer that the phrase a “motion to

vacate or revise” in Rule 13 excludes a motion for

reconsideration.

10

That the Federal Rules of Appellate Procedure “were not

adopted to set traps and pitfalls by way of technicalities for

unwary litigants,” Des Isles v. Evans, 225 F.2d 235, 236 (5th

Cir. 1955), further supports our conclusion. As Myers points

out, the Tax Court Rules “offer no substantive guidance as to

what differentiates the two motions.” Nor does the Tax Court’s

case law erect materially different standards for granting each

motion. Compare Seiffert v. Comm’r, 107 T.C.M. (CCH) 1326

(2014) (“Motions to vacate or revise our decision are generally

not granted absent a showing of unusual circumstance or

substantial error, such as mistake, inadvertence, surprise,

excusable neglect, newly discovered evidence, fraud or other

reasons justifying relief”) with Estate of Quick v. Comm’r, 110

T.C. 440, 441 (1998) (“Reconsideration under Rule 161 serves

the limited purpose of correcting substantial errors of fact or

law and allows the introduction of newly discovered evidence

that the moving party could not have introduced, by the

exercise of due diligence, in the prior proceeding”). As a result,

courts and litigants lack standards by which to determine

whether a filing is truly a motion to vacate or revise for the

purpose of starting the time for appeal. We will not adopt an

interpretation of Rule 13 that invites confusion and

inconsistency. Cf. Fed. R. App. P. 4(a)(4), advisory

committee’s notes to 1993 amendments (describing “the

difficulty” courts had previously encountered in “determining

whether a posttrial motion ... is a Rule 59(e) motion ... or a Rule

60 motion” when only the former tolled the time for appeal).

That the great majority of individual taxpayers proceed pro se

before the Tax Court exacerbates the potential for unfairness.

See James S. Halpern, What Has the U.S. Tax Court Been

Doing? An Update, 151 Tax Notes 1277, 1282 (2016).

For the foregoing reasons, we hold that although Myers

did not make a “motion to vacate or revise” under Tax Court

Rule 162, his timely motion for reconsideration under Tax

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Court Rule 161 restarted the 90-day appeal period, just as a

motion to vacate or revise would have done. Myers’s notice of

appeal was therefore timely under Rule 13(a)(1)(B) and raises

no doubt about our jurisdiction. Consequently, we do not reach

the issue whether the 90-day appeal period is jurisdictional.

III. The Jurisdiction of the Tax Court

Having assured ourselves of our jurisdiction, we turn to

that of the Tax Court, which determined that Myers’s claim

was untimely under 26 U.S.C. § 7623(b)(4) and dismissed it

for lack of jurisdiction. On appeal, Myers contends that the

Tax Court erred in finding that his claim was untimely; in the

alternative, he argues that the filing period is not jurisdictional

and seeks equitable tolling.

This court “review[s] the decisions of the Tax Court ... in

the same manner and to the same extent as decisions of the

district courts in civil actions tried without a jury.” 26 U.S.C.

§ 7482(a)(1). Accordingly, we consider jurisdictional issues

de novo, including whether a filing was timely. See, e.g.,

Mobley v. CIA, 806 F.3d 568, 575 (D.C. Cir. 2015). In

addition, we reiterate that Myers proceeded pro se before the

Tax Court and note that this court “follows the general

principle that a document filed pro se is to be liberally

construed.” Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d

232, 236 (D.C. Cir. 2018) (cleaned up).

A. Whether Myers’s Petition was Untimely

It is undisputed that the 30-day period in § 7623(b)(4)

begins only once there has been a “determination” by the

Whistleblower Office. Myers therefore challenges the Tax

Court’s finding that his petition was not timely on two

accounts: First, the letters sent by the Whistleblower Office

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“were so bereft of information as to not qualify as a

‘determination’ under Section 7623(b)(4)”; and second, he

lacked effective notice of the determination because the IRS

failed to show that it mailed the letters. We reject both

arguments and agree with the Tax Court that Myers’s petition

was not timely.

1. Whether Myers received an appealable

“determination”

The Tax Court concluded that “each of the five letters to

petitioner from the Whistleblower Office reflects an appealable

determination under section 7623(b)(4).” 148 T.C. at 445.

Myers objects that the letters do not (1) “contain any

information regarding the value of [his] claim,” (2) explain

why he is not entitled to an award, or (3) tell him how and when

to petition the Tax Court.

As a preliminary matter, we note that we address Myers’s

claim on its merits, despite the IRS’s contention that Myers

forfeited these three objections by failing to raise them before

the Tax Court. Myers raised his lack of information about his

right to appeal at least twice in his briefs before the Tax Court,

stating, “the only problem is that not a single one of these letters

... inform the Petitioner where he could appeal the respondents

[sic] determination,” and “the respondent’s denial letter

determinations must also advise the W/B of their right to seek

judicial review ... and the respondent failed to comply with this

policy guideline on all five denial letters sent to the Petitioner!”

Because Myers was pro se, we believe this sufficed to preserve

the issue. Although Myers did not preserve his other two

objections, we exercise our discretion to resolve this

“straightforward legal question” that “both parties have fully

addressed ... on appeal.” Prime Time Int’l Co. v. Vilsack, 599

F.3d 678, 686 (D.C. Cir. 2010).

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Turning to the merits, we agree with the Tax Court that

“written notice informing a claimant that the IRS has

considered information that he submitted and has decided

whether the information qualifies the claimant for an award”

suffices to constitute a “determination” for the purpose of

§ 7623(b)(4). 148 T.C. at 443; see also Kasper v. Comm’r, 137

T.C. 37, 41 (2011). In order to assure that a claim is ripe for

review by the Tax Court, the determination need state only the

Whistleblower Office’s final decision. Here, the letters told

Myers “the information [he] submitted did not qualify for an

award”; that sufficed to give him his “ticket[] to the tax court,”

Laing v. United States, 423 U.S. 161, 206 (1976). There is no

requirement under § 7623(b)(4) or any other authority that a

“determination” contain any of the other information Myers’s

desires. †

Of course, we share the Tax Court’s concern that “the

consistent lack” of information in determination letters sent by

the Whistleblower Office about a claimant’s right to appeal

not only is inconsistent with [the IRS]’s practice in

many other areas where [its] jurisdiction is implicated

(in particular, deficiency cases, cases involving relief

from joint and several liability, and lien/levy cases),

but also ... can be prejudicial to claimants —

especially because there are only 30 days to appeal —

and the cause of much unnecessary confusion and

consternation in [its] adjudication of such cases.

†

Myers’s argument that the Whistleblower Office must include

information about the value of a claim is based in part upon Treasury

regulations 26 C.F.R. §§ 301.7623-1 and 301.7623-3. As the IRS

correctly points out, however, those regulations are effective only for

claims submitted on or after August 12, 2014 and are therefore

inapplicable here. §§ 301.7623-1(f), 301.7623-3(f).

14

148 T.C. at 444 n.6. Nevertheless, we decline Myers’s

invitation to craft requirements out of whole cloth. In this case,

it was enough that the letters notified Myers of the

Whistleblower Office’s final decision on his claim.

2. Whether actual notice triggers the beginning of

the filing period

Myers next argues the IRS failed to “prove by direct

evidence the date and fact of mailing or personal delivery” of

its determination, as required by the Tax Court’s case law. 148

T.C. at 446 (citing Kasper, 137 T.C. at 45). The Government

does not dispute that there is insufficient direct evidence of

mailing in this case. Instead, it contends, as the Tax Court held,

that notice to a claimant is effective, and thus the 30-day period

commences, when the claimant receives actual notice “without

prejudicial delay and with sufficient time to file a petition.” Id.

at 446-47.

In Myers’s view, “[i]t is not the receipt of the

determination which creates the jurisdiction of the Tax Court,

but the Commissioner’s mailing of notice.” Putting aside

Myers’s incorrect assumption that § 7623(b)(4) is

jurisdictional — which we address below — we note that

neither the statute nor the applicable Treasury regulations

expressly requires mailing. Instead, the Tax Court’s rule in

Kasper responds to an evidentiary concern: because “the

Government is generally entitled to a rebuttable presumption

of delivery upon presentation of evidence of proper mailing,”

the Tax Court considered it inappropriate to rely upon

“evidence of standard practice” to establish proper mailing.

137 T.C. at 44-45. Direct evidence of actual notice is an

adequate — indeed, superior — alternative to evidence of

mailing plus a presumption of delivery.

15

This result is consistent with our decision in Crum v.

Commissioner, in which the IRS had failed to mail the

deficiency notice to Crum’s “last known address,” as required

by 26 U.S.C. § 6212(b)(1). 635 F.2d 895, 901 (D.C. Cir. 1980)

(interpreting 26 U.S.C § 6213(a)). We therefore held the 90-

day period for filing a petition in the Tax Court began when the

petitioner received actual notice of the deficiency. Id. The

result is also consistent with the various cases Myers cites,

none of which passed upon the issue presented here. See, e.g.,

Weber v. Comm’r, 122 T.C. 258, 262-63 (2004) (holding the

filing period began to run from the date of mailing rather than

the taxpayer’s alleged receipt five months later); Allibone v.

Comm’r, 111 T.C.M. (CCH) 1404 (2016) (rejecting the IRS’s

argument that a phone call established that the final

determination letter was mailed the same day).

In this case, Myers has admitted that he received multiple

determination letters from the Whistleblower Office. As he

does not claim he filed his petition for review with the Tax

Court within 30 days of receiving the notice those letters

provided, his petition was untimely.

B. Whether the 30-day Filing Period is Jurisdictional

Having agreed with the Tax Court’s conclusion that

Myers’s petition was not timely filed, we must now decide

whether that defect deprived the Tax Court of jurisdiction over

Myers’s petition. We hold that it did not.

The Supreme Court in recent years has “pressed a stricter

distinction between truly jurisdictional rules, which govern a

court’s adjudicatory authority, and nonjurisdictional claim-

processing rules, which do not.” Gonzalez v. Thaler, 565 U.S.

134, 141 (2012) (cleaned up). Key to our present decision, the

Court has “made plain that most time bars are

16

nonjurisdictional”; they are “quintessential claim-processing

rules which seek to promote the orderly progress of litigation,

but do not deprive a court of authority to hear a case.” United

States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015)

(cleaned up). Therefore, although the “Congress is free to

attach ... the jurisdictional label to a rule that we would prefer

to call a claim-processing rule,” Henderson v. Shinseki, 562

U.S. 428, 435 (2011), we treat a time bar as jurisdictional “only

if Congress has ‘clearly stated’ as much,” Kwai Fun Wong, 135

S. Ct. at 1632. See also Fort Bend Cty. v. Davis, No. 18-525,

slip op. at 10 (U.S. 2019) (“the Court has clarified that it would

leave the ball in Congress’ court”). The Supreme Court has

explained that this “clear statement requirement” is satisfied

only if the statute “expressly refers to subject-matter

jurisdiction or speaks in jurisdictional terms.” Musacchio v.

United States, 136 S. Ct. 709, 717 (2016) (cleaned up). It is

not enough, for instance, that a statute uses “mandatory

language.” Id.

Again, § 7623(b)(4) provides:

Any determination regarding an award under

paragraph (1), (2), or (3) may, within 30 days of such

determination, be appealed to the Tax Court (and the

Tax Court shall have jurisdiction with respect to such

matter).

The IRS contends this constitutes a “clear statement” because

the Congress “placed the jurisdictional language in the same

sentence and subsection as the time limit.” As our amicus

points out, however, the Supreme Court has explicitly rejected

“proximity-based arguments” to that effect. See Sebelius v.

Auburn Reg’l Med. Ctr., 568 U.S. 145, 155 (2013). In Auburn,

the Court dealt with 42 U.S.C. § 1395oo, which lays out the

17

requirements for Medicare providers to bring reimbursement

disputes before an administrative review board:

(a) Any provider of services … may obtain a hearing

… if —

(1) such provider is dissatisfied with a final

determination of the organization

serving as its fiscal intermediary … or is

dissatisfied with a final determination of

the Secretary …, has not received such

final determination from such

intermediary on a timely basis …,

(2) the amount in controversy is $10,000 or

more, and

(3) such provider files a request for a

hearing within 180 days after notice of

the intermediary’s final determination

….

42 U.S.C. § 1395oo(a). The Court held that even if subsections

(a)(1) and (a)(2) are both jurisdictional, the 180-day time limit

in (a)(3) is not. Id. at 156. In so doing, it emphasized that “[a]

requirement we would otherwise classify as nonjurisdictional

… does not become jurisdictional simply because it is placed

in a section of a statute that also contains jurisdictional

provisions.” Id. at 155. Here, as in Auburn, a single sentence

contains both a requirement to file within a stated number of

days and a grant of jurisdiction; yet there is nothing in the

structure of the sentence that “conditions the jurisdictional

grant on the limitations period, or otherwise links” those

separate clauses. Kwai Fun Wong, 135 S. Ct. at 1633. On the

contrary, the jurisdictional grant is separated from the rest of

18

the provision by being put in parentheses and introduced by the

word “and,” which announces a new independent clause. We

therefore do not attach dispositive significance to the proximity

between the provision setting the time period and the

jurisdictional grant.

The IRS counters that “the test is whether Congress made

a clear statement, not whether it made the clearest statement

possible.” See Duggan v. Comm’r, 879 F.3d 1029, 1034 (9th

Cir. 2018). True enough, but we are not saying the Congress

must “incant magic words in order to speak clearly.” Auburn,

568 U.S. at 153. The Congress need only include words linking

the time period for filing to the grant of jurisdiction. See, e.g.,

Nauflett v. Comm’r, 892 F.3d 649, 652 (4th Cir. 2018); Rubel

v. Comm’r, 856 F.3d 301, 306 (3d Cir. 2017); Matuszak v.

Comm’r, 862 F.3d 192, 197-98 (2d Cir. 2017). ‡

‡

Our dissenting colleague suggests we are “at odds with” these

decisions, which held the 90-day filing requirement in 26 U.S.C.

§ 6015(e)(1)(A) is jurisdictional. Dissent 6 n.2. Here is what that

provision says:

In addition to any other remedy provided by law, the individual

may petition the Tax Court (and the Tax Court shall have

jurisdiction) to determine the appropriate relief available to the

individual under this section if such petition is filed— [during a

certain time period].

It differs from the provision at hand in one critical respect: The grant

of jurisdiction is followed by an “if” clause that expressly conditions

jurisdiction upon timely filing. There is no conflict, therefore,

between this case and the cited decisions. Indeed, we think

§ 6015(e)(1)(A) just shows one way the Congress could have more

clearly conditioned the Tax Court’s jurisdiction upon timely filing in

§ 7623(b)(4), viz., with a parenthetical that stated “the Tax Court

19

Our dissenting colleague reads “such matter” in the

parenthetical to provide the connection that makes the filing

period jurisdictional. We agree that “such matter” means “the

subject of litigation previously specified,” which is “an appeal

to the Tax Court.” Dissent 3. In our view, however, the type

of appeal to which “such matter” refers is most naturally

identified by the subject matter of the appeal — namely, “any

determination regarding an award under paragraph (1), (2), or

(3)” — and not by the requirement that it be filed “within 30

days of such determination.”

To be sure, this statute comes closer to satisfying the clear

statement requirement than any the Supreme Court has

heretofore held to be non-jurisdictional. Still, the Court has

demanded an unusually high degree of clarity to trigger the

“drastic” “consequences that attach to the jurisdictional label.”

Shinseki, 562 U.S. at 435. Indeed, as our amicus points out, the

Court has not yet identified a single filing deadline that meets

the “clear statement” test. Because the Supreme Court has

instructed us to consider its “interpretations of similar

provisions in many years past as probative of whether Congress

intended a particular provision to rank as jurisdictional,”

Auburn, 568 U.S. at 154 (cleaned up), we believe the Congress

must make unmistakable its intent to deprive the Tax Court of

authority to hear an untimely petition. In light of the Supreme

Court’s recent jurisprudence, we think “[t]his case is scarcely

the exceptional one,” id. at 155, in which a filing period ranks

as a jurisdictional bar.

shall have jurisdiction with respect to such matter if the appeal is

brought within such period.”

20

Although this Circuit is the first to decide whether

§ 7623(b)(4) is jurisdictional in nature, we recognize that our

holding is in some tension with that of another circuit regarding

a similarly worded provision of the Internal Revenue Code, 26

U.S.C. § 6330(d)(1). See Duggan, 879 F.3d at 1034; accord

Guralnik v. Comm’r, 146 T.C. 230 (2016). Section 6330(d)(1)

governs appeals from collection due process hearings; it

provides:

The person may, within 30 days of a determination

under this section, petition the Tax Court for review

of such determination (and the Tax Court shall have

jurisdiction with respect to such matter).

This provision is nearly identical in structure to the one at hand.

Nevertheless, for the reasons given above, we cannot agree that

“timely filing of the petition [is] a condition of the Tax Court’s

jurisdiction” simply because “the filing deadline is given in the

same breath as the grant of jurisdiction.” Duggan, 879 F.3d at

1034. We hold § 7623(b)(4) does not contain a “clear

statement” that timely filing is a jurisdictional prerequisite to

the Tax Court’s hearing the whistleblower’s case.

C. Whether the 30-day Filing Period is Subject to

Equitable Tolling

Because we hold that § 7623(b)(4) is not jurisdictional, we

come to the question whether the filing period is subject to

equitable tolling. Under Irwin v. Dep’t of Veterans Affairs, 498

U.S. 89 (1990) and its progeny, “a nonjurisdictional federal

statute of limitations is normally subject to a rebuttable

presumption in favor of equitable tolling.” Holland v. Florida,

560 U.S. 631, 645-46 (2010) (cleaned up). Because the

“presumption of equitable tolling was adopted in part on the

premise that such a principle is likely to be a realistic

21

assessment of legislative intent,” Auburn, 568 U.S. at 159

(cleaned up), it is rebutted if there is “good reason to believe

that Congress did not want the equitable tolling doctrine to

apply,” United States v. Brockamp, 519 U.S. 347, 350 (1997).

The IRS maintains equitable tolling is not a realistic

assessment of legislative intent with regard to § 7623(b)(4),

citing the Supreme Court’s decision in Auburn. There the

Supreme Court denied the presumption to the 180-day limit for

appealing a Medicare reimbursement determination to an

administrative review board, in part because “unlike the

remedial statutes at issue in many of th[e] Court’s equitable-

tolling decisions,” the statutory scheme is “not designed to be

unusually protective of claimants.” 568 U.S. at 159-160. The

IRS therefore argues that the “whistleblower statute providing

for an ‘award’ is not a remedial provision” “designed to be

unusually protective of claimants.”

Indeed it is not, but the Court in Auburn did not rest its

evaluation of legislative intent on this factor alone. The Court

began its analysis by saying, “[w]e have never applied the

Irwin presumption to an agency’s internal appeal deadline.” Id.

at 159. It then explained that the Secretary of the Department

of Health and Human Services, pursuant to its rulemaking

authority, had expressly prohibited the review board from

extending the filing deadline. Id. at 159; see 42 C.F.R. §

405.1841(b) (2007). Because the Congress had amended the

statute six times, “each time leaving untouched the 180-day

administrative appeal provision and the Secretary’s rulemaking

authority,” the Court inferred that the Congress approved of the

regulation. Id. at 159. Finally, it noted the statutory scheme is

not “one in which laymen, unassisted by trained lawyers,

initiate the process”; instead, providers are “sophisticated”

“repeat players” who are “assisted by legal counsel.” Id. at

160.

22

None of these other indicators of legislative intent is

present in this case: The Tax Court is not an “internal”

“administrative body” and Tax Court petitioners are typically

pro se, individual taxpayers who have never petitioned the Tax

Court before. Moreover, the IRS points to no regulation or

history of legislative revision that might contradict the Irwin

presumption. That the whistleblower award statute is not

unusually protective of claimants is the only consideration on

the IRS side of the ledger. Without more, we are not persuaded

to set aside a presumption that has been so consistently applied.

See, e.g. Young v. United States, 535 U.S. 43, 49 (2002) (“It is

hornbook law that limitations periods are customarily subject

to equitable tolling”) (cleaned up).

We therefore hold the Irwin presumption has not been

rebutted and the filing period in § 7623(b)(4) is subject to

equitable tolling. Accordingly, we will remand the case to the

Tax Court to consider in the first instance whether equitable

tolling is appropriate in this case.

IV. Conclusion

In sum, we agree with the Tax Court’s conclusion that

Myers’s petition was not timely filed under § 7623(b)(4),

reverse its dismissal for want of jurisdiction, and remand the

case for the Tax Court to decide whether Myers is entitled to

equitable tolling.

So ordered.

23

Appendix: Tax Court Letters

1. March 13, 2013 letter

We have considered your application for an award

dated 08/17/2009. Under Internal Revenue Code

Section 7623, an award may be paid only if the

information provided results in the collection of

additional tax, penalties, interest or other proceeds. In

this case, the information you provided did not result

in the collection of any proceeds. Therefore, you are

not eligible for an award.

Although the information you submitted did not

qualify for an award, thank you for your interest in the

administration of the internal revenue laws.

If you have any further questions in regards to this

letter, please feel free to contact the Informant Claims

Examination Team at 801-620-2169.

2. November 20, 2013; January 8, 2014; and March 6, 2014

letters

We considered the additional information you

provided and determined your claim still does not

meet our criteria for an award. Our determination

remains the same despite the information contained in

your latest letter.

Please keep in mind the confidentiality of the

informants’ claims process and understand that we

cannot disclose the facts surrounding an examination,

i.e., taxes collected and audit examination.

24

Although the information you submitted did not

qualify for an award, thank you for your interest in the

administration of the internal revenue laws.

If you have any further questions in regards to this

letter, please feel free to contact the initial Evaluation

Claims at 801-620-2169.

3. February 24, 2014 letter

This letter is in regard to your correspondence dated

February 20, 2014, concerning your claim for award.

We closed your claim for award on March 13, 2013.

I am enclosing a copy of the letter for your

information.

When we receive allegations of non-compliance, the

information is evaluated to determine if an

investigation or audit is appropriate. The evaluation

considers many factors; however, we cannot share our

analysis with you because of the taxpayer privacy

provisions of section 6103 of the Internal Revenue

Code. At the conclusion of our review, we can only

tell you whether the information you provided met the

criteria for paying an award. Unfortunately, we

cannot give you specific details about what actions we

take, if any, because of the privacy laws that protect

the tax information of all taxpayers.

I am sorry that my response cannot be more specific.

If you have further questions about your claim, please

call or write the Whistleblower Office, ICE Team at

the above address or phone number. Thank you for

your interest in compliance with the tax laws.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in part and dissenting in part: Although my colleagues find that

David Myers (Myers) failed to file his appeal to the United

States Tax Court (Tax Court) within the 30-day filing period

provided in I.R.C. § 7623(b)(4), they nevertheless reverse the

district court’s dismissal for lack of jurisdiction because they

conclude that § 7623(b)(4)’s filing period is not jurisdictional.

Majority Op. 15–20. I believe, however, that the statutory text

clearly demonstrates that the Congress intended to make

§ 7623(b)(4)’s filing period jurisdictional. I therefore

respectfully dissent from my colleagues’ conclusion on this

issue but join them in the remainder of the majority opinion.

I. Background

In August 2009, Myers applied to the Internal Revenue

Service’s (IRS) Whistleblower Office for a monetary award for

information he provided—his belief that his employer

misclassified him and his co-workers as independent

contractors to avoid statutory obligations owed to employees.

See I.R.C. § 7623(b)(1) (authorizing Treasury Secretary to

award whistleblower from 15 to 30 per cent of unpaid tax

collected based on information whistleblower provides). The

Whistleblower Office sent Myers five letters denying his

application. Myers received the last of the letters no later than

April 11, 2014 and had 30 days within which to appeal the

Whistleblower Office’s determinations, see I.R.C.

§ 7623(b)(4). Instead, from April 2014 to February 2015,

Myers sent a total of twenty-four emails to various government

officials, including the IRS chief counsel. The officials never

responded. Myers eventually filed a pro se appeal with the Tax

Court but not until January 26, 2015—more than eight months

after the filing period had passed.

The Tax Court dismissed Myers’s appeal as untimely.

Myers v. Comm’r of Internal Revenue, 148 T.C. 438, 449

(2017). It held that § 7623(b)(4)’s 30-day filing period is

2

jurisdictional, that the Whistleblower Office’s letters were

valid determinations, that the filing period began to run no later

than April 11, 2014 (by which time Myers had received all five

Whistleblower Office letters) and that Myers did not file his

appeal until January 26, 2015. Id. at 442–48. The Tax Court

concluded that it lacked jurisdiction of Myers’s appeal and

accordingly dismissed his appeal. Id. at 449. Myers appeals

the Tax Court’s dismissal.

II. Analysis

Because the majority affirms the Tax Court’s findings that

the Whistleblower Office’s letters were valid determinations

and that the filing period began to run no later than April 11,

2014, Majority Op. 12–15, whether the Tax Court correctly

dismissed Myers’s appeal turns exclusively on whether

§ 7623(b)(4)’s 30-day filing period is jurisdictional. The

majority answers the question in the negative, id. at 20, but I

am not persuaded.

The majority is correct that “most time bars are

nonjurisdictional” and instead are “quintessential claim-

processing rules which seek to promote the orderly progress of

litigation, but do not deprive a court of authority to hear a case.”

Majority Op. 15–16 (quoting United States v. Kwai Fun Wong,

135 S. Ct. 1625, 1632 (2015)). The general rule, however, is

not unqualified. “[The] Congress is free to attach . . . the

jurisdictional label to a rule that we would prefer to call a

claim-processing rule.” Henderson v. Shinseki, 562 U.S. 428,

435 (2011). To deviate from the general rule and make

jurisdictional what is normally a claim-processing rule, the

Congress must speak “clearly.” Fort Bend Cty. v. Davis, 139

S. Ct. 1843, 1850 (2019) (quoting Arbaugh v. Y & H Corp., 546

U.S. 500, 515 (2006)).

3

The 30-day filing period in § 7623(b)(4) is one of the rare

instances in which the Congress has clearly expressed its intent

to make the time bar jurisdictional. That provision states: “Any

determination regarding an award under paragraph (1), (2), or

(3) may, within 30 days of such determination, be appealed to

the Tax Court (and the Tax Court shall have jurisdiction with

respect to such matter).” I.R.C. § 7623(b)(4). There is no

doubt that the parenthetical clause—“(and the Tax Court shall

have jurisdiction with respect to such matter)”—is

jurisdictional because it expressly “speak[s] in jurisdictional

terms,” Musacchio v. United States, 136 S. Ct. 709, 717 (2016).

In turn, the parenthetical clause renders the remainder of

§ 7623(b)(4) jurisdictional “by incorporating [it] into [the]

jurisdictional provision.” Fort Bend Cty., 139 S. Ct. at 1849.

The parenthetical clause states that the Tax Court “shall have

jurisdiction with respect to such matter.” I.R.C. § 7623(b)(4)

(emphasis added). “Matter” can mean “something that is a

subject of disagreement, strife, or litigation,” and “such” refers

to things “previously characterized or specified.” Webster’s

Third New International Dictionary 1394, 2283 (2002). Here,

the subject of litigation previously specified is an “appeal[] to

the Tax Court.” I.R.C. § 7623(b)(4). The type of appeal of

which the “Tax Court shall have jurisdiction,” however, is not

every conceivable appeal; § 7623(b)(4) specifies the type of

appeal that constitutes “such matter” by use of two descriptors:

first, it must arise from “[a]ny determination regarding an

award under paragraph (1), (2), or (3)” and second, it must be

filed “within 30 days of such determination.” Id. The

parenthetical clause’s use of “such matter” therefore provides

what my colleagues say they cannot find: “words linking the

time period for filing to the grant of jurisdiction.” Majority Op.

18; see also id. at 17 (“[T]here is nothing in the structure of the

sentence that ‘conditions the jurisdictional grant on the

4

limitations period, or otherwise links’ those separate clauses.”

(quoting Kwai Fun Wong, 135 S. Ct. at 1633)).

The majority, Myers and amicus offer no other plausible

way to read the parenthetical clause’s reference to “such

matter.” See id. at 15–20. Indeed, amicus concedes that “it is

arguable ‘such matter’ in the jurisdictional parenthetical refers

to (1) the filing of an appeal and (2) rigid compliance with the

30-day requirement.” Rather than identify another plausible

interpretation of “such matter,” however, amicus suggests only

that the Congress could have spoken more clearly if

§ 7623(b)(4) had stated “the Tax Court shall have jurisdiction

with respect to such matter only if the appeal is brought within

such period.” See also id. at 18 n.‡ (suggesting similar

additional language). But as even the majority recognizes, “the

test is whether Congress made a clear statement, not whether it

made the clearest statement possible.” Id. at 18; accord

Duggan v. Comm’r of Internal Revenue, 879 F.3d 1029, 1034

(9th Cir. 2018); see Sebelius v. Auburn Reg’l Med. Ctr., 568

U.S. 145, 153 (2013) (Congress need not “incant magic words

in order to speak clearly”). That the Congress could have

spoken even more clearly does not mean it has not spoken

clearly enough to render § 7623(b)(4)’s 30-day filing period

jurisdictional. In the absence of any other plausible reading of

“such matter,” I think the Congress’s intent is sufficiently clear.

Downplaying the textual connection between

§ 7623(b)(4)’s jurisdictional grant and its filing period, my

colleagues invoke the rule that proximity to a jurisdictional

provision does not render a filing period jurisdictional.

Majority Op. 16–18. Granted, “[m]ere proximity [to a

jurisdictional provision] will not turn a rule that speaks in

nonjurisdictional terms into a jurisdictional hurdle.” Gonzales

v. Thaler, 565 U.S. 134, 147 (2012). This principle, however,

5

says nothing about a filing period that is both proximate and

textually connected to a jurisdictional grant.

Even were I to join my colleagues and find no textual

connection within § 7623(b)(4), I would still not be persuaded

that the principle that “mere proximity” is not enough renders

§ 7623(b)(4)’s filing period nonjurisdictional. They rely

heavily on Sebelius v. Auburn Regional Medical Center, in

which case the United States Supreme Court held that a filing

deadline for an administrative appeal under the Medicare Act

was not jurisdictional. 568 U.S. at 148–49; see Majority Op.

16–18. The Supreme Court concluded that even if paragraphs

(a)(1) and (a)(2) of 42 U.S.C. § 1395oo were jurisdictional, that

did not also make paragraph (a)(3)’s 180-day filing period

jurisdictional. Auburn, 568 U.S. at 155–56. As part of its

holding, the Court stated that “[a] requirement we would

otherwise classify as nonjurisdictional . . . does not become

jurisdictional simply because it is placed in a section of a statute

that also contains jurisdictional provisions.” Id. at 155. I do

not read Auburn to be applicable here, where the filing period

and jurisdictional grant occupy the same statutory provision,

not neighboring provisions. 1 Unlike the filing period in

Auburn, § 7623(b)(4)’s filing period is not simply proximate to

1

My colleagues point out that, as in § 7623(b)(4), the

jurisdictional grant and filing period at issue in Auburn are part of

the same grammatical sentence. Majority Op. 17. Although perhaps

interesting, this fact is not helpful. Whereas § 7623(b)(4)’s

jurisdictional grant and filing period are part of a 36-word sentence

and share the same statutory paragraph, the “sentence” at issue in

Auburn is 344 words long and is divided into separate statutory

paragraphs, sub-paragraphs and sub-sub-paragraphs, see 42 U.S.C.

§ 1395oo(a). The two sentences are thus chalk and cheese.

6

other jurisdictional provisions; it “is given in the same breath

as the grant of jurisdiction.” Duggan, 879 F.3d at 1034. 2

* * *

Based on the text of § 7623(b)(4), I believe that the

Congress has clearly expressed its intent that the 30-day filing

period is meant to be jurisdictional. Because Myers failed to

appeal to the Tax Court within that period, I would conclude

that the Tax Court lacked jurisdiction to consider his appeal or

to equitably toll the filing period, see Kwai Fun Wong, 135 S.

Ct. at 1634, and would therefore affirm the Tax Court’s

dismissal.

2

The majority’s holding is also at odds with several decisions

from other circuits. The Ninth Circuit has concluded that the nearly

identical language in I.R.C. § 6630(d)(1) is “unambiguous” that the

filing period is jurisdictional. Duggan, 879 F.3d at 1034–35. In

addition, the Second, Third and Fourth Circuits have also found

I.R.C. § 6015(e)(1)(A)’s similarly worded filing period to be

jurisdictional. See Matuszak v. Comm’r of Internal Revenue, 862

F.3d 192, 196 (2d Cir. 2017); Rubel v. Comm’r of Internal Revenue,

856 F.3d 301, 305 (3d Cir. 2017); Nauflett v. Comm’r of Internal

Revenue, 892 F.3d 649, 652–53 (4th Cir. 2018). The majority does

not meaningfully address the Ninth Circuit’s decision and attempts

to distinguish the others on the ground that § 6015(e)(1)(A) uses the

subordinating conjunction “if” before the filing period and

§ 7623(b)(4) does not. See Majority Op. 18–20 & n.‡. The phrase

“such matter” in § 7623(b)(4), however, serves the same function as

“if” in § 6015(e)(1)(A): it expressly links the provision’s

jurisdictional grant to its filing period. Section 6015(e)(1)(A)’s

jurisdictional clause is similarly “separated from the rest of the

provision by being put in parentheses and introduced by the word

‘and’”—two of the reasons the majority uses to conclude that

§ 7623(b)(4)’s jurisdictional grant operates independently of the

remainder of the provision. Id. at 17–18. Sections 6015(e)(1)(A)

and 7623(b)(4) are equivalent in all material aspects.